The Times They Are A-Changin: The NLRAs Application to Non-Union - - PowerPoint PPT Presentation

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The Times They Are A-Changin’: The NLRA’s Application to Non-Union Employers

Presented by: Lisa M. Vickery Phone: (503) 205-8095 Email: lvickery@fisherphillips.com

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Obviously 5 Believers: Who Is The NLRB?

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Who Is The NLRB?

• Independent Federal Agency
• Purpose: To Interpret and Administer the National Labor

Relations Act (NLRA)

• Two Main Functions:
• “To conduct representation elections and certify the results”; and
• “To prevent employers and unions from engaging in unfair labor

practices”

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Who Is The NLRB: The Board And The General Counsel

Two Sides to the NLRB

• Office of the General Counsel
• Investigates and Prosecutes Unfair Labor Practice Charges (“ULPs”)
• 26 Regional Offices
• Investigates ULPs
• Administer representation elections
• Five-Member Board
• Adjudicates cases
• Appointed by the Party in office
• Two Democrats
• Two Republicans
• One member from the political party of the President

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Chair

D D D R R

“Obama Board” 2013 - 2017

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Chair

R R R D D*

“Trump Board” Today

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North Country Blues: What Is The National Labor Relations Act?

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The National Labor Relations Act (NLRA)

Composed of Three Statutes

• The Wagner Act of 1935
• Taft Hartley Act of 1947
• Labor Management Reporting and Disclosure Act of 1959

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Who Is Covered By The NLRA?

All Private Sector Employers who engage in a minimal level of interstate commerce:

• Non-retail: $50,000/year
• Retail: $500,000/year
• Shopping Centers/Office Buildings:
• $100,000/year
• Based on Gross Volume of Business

The Employer need not have unionized employees for the NLRA to apply.

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It Ain’t Me Babe: The NLRA For Non-Union Workplaces

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National Labor Relations Act Section 7 (Rights Of Employees)

EMPLOYEES SHALL HAVE THE RIGHT:

• To self-organize, form, join, or assist labor organizations
• To bargain collectively through their chosen representatives
• To engage in other concerted activities for the purpose of

collective bargaining or other mutual aid or protection; or

• To refrain from any or all such activities….

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NLRB’s Application Of Section 7

• During the “Obama Board” years, the NLRB dramatically

expanded its application of Section 7

• Most notable change: evaluating the lawfulness of handbooks

and work rules of non-unionized employers

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Handbooks And Work Rules

Lutheran Heritage, 343 NLRB 646 (2004)

A facially neutral work rule is unlawful if employee could reasonably construe it as prohibiting protected concerted activity.

• Obama-era NLRB found many common work rules unlawful under Lutheran Heritage:
• No profanity or abusive behavior toward co-workers (“workplace civility” rules);
• No disclosure of “confidential” information;
• No photography or surreptitious audio or video recording in the workplace;
• No conducting “personal business” on the employer’s premises;
• No making “false, disparaging [or] misleading” statements about the employer online;
• Employees must behave in a “positive and professional manner”; and
• No unauthorized employee use of the employer’s logos, insignia, and other trademarks.
• NLRB also issued General Counsel Memo 15-04 (2015) (“Wendy’s Memo”), which
• utlined lawful v. unlawful handbook provisions.

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Tell Me That It Isn’t True: The New Board and New General Counsel

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New Board, New General Counsel, New “Law”

• Board “law” swings to and fro.
• Party holding the White House moves the pendulum.
• Following Trump’s January 2017 inauguration, the Board had a

Republican majority for the first time in 10 years.

• Agency bureaucracy is more consistent.
• Regional directors, ALJs, and other staff are largely unchanged.
• Will continue applying Obama-era precedent.
• Until the new GC, the NLRB, or federal courts change it.

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Who is the NLRB: The Current Board

John Ring, Chairman William Emmanuel, Board Member Marvin Kaplan, Board Member Lauren McFerran, Board Member

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Who Is The NLRB: General Counsel

Peter B. Robb

Sworn in November 17, 2017

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General Counsel Memo 18-02 (Dec. 1, 2017)

• Mandatory submission to Advice.
• Regional directors must submit certain issues and cases to the

Division of Advice prior to taking action.

• Including many Obama-era cases that overturned precedent.
• Listed examples:
• Joint employer standard.
• Use of employer’s e-mail.
• Common employer handbook rules.
• Off-duty access to employer’s property.
• Boundaries of protected concerted activity.
• Conflicts between NLRA and other statutes’ requirements.

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Don’t Think Twice, It’s Alright: Recent Changes To The NLRB’s Application Of Section 7

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Handbooks And Work Rules

The Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017).

Facially neutral work rule is unlawful if, when reasonably interpreted, it potentially would interfere with Section 7 activity.

• Overruled Lutheran Heritage
• New test—the NLRB will evaluate:
• (i) the nature and extent of the potential

impact on NLRA rights; and

• (ii) legitimate justifications associated

with the rule.

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General Counsel Memo 18-04 (June 6, 2018)

• The Boeing Co. decision established three “categories” of

policies and rules

• Category 1: Rules which are always lawful to maintain because:

(i) when reasonably interpreted, the rule does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.

• Category 2: Rules that warrant individualized scrutiny as to whether

they would prohibit or interfere with NLRA rights

• Category 3: Rules which are unlawful to maintain
• These new categories created uncertainty, so the General

Counsel issued general guidance for the Regional Offices

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General Counsel Memo 18-04 (June 6, 2018)

Category 1: Generally Lawful to Maintain

• No recording, no photography rules;
• Civility rules;
• Rules against insubordination, non-cooperation, or on-the-job

conduct that adversely affects operations;

• Disruptive behavior rules;
• Rules protecting confidential, proprietary, and customer information
• r documents;
• Rules against defamation or misrepresentation;
• Rules prohibiting the use of company logos or intellectual property;
• Rules requiring authorization to speak on behalf of the company; and
• Rules banning disloyalty, nepotism, or self-enrichment.

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General Counsel Memo 18-04 (June 6, 2018)

Category 2: Warrant Individualized Scrutiny

• Depends on the reasoning behind a rule to determine if it can

lawfully remain in a handbook.

• Examples:
• Confidentiality rules broadly encompassing “employer business” or

“employee information”;

• Rules regarding disparagement or criticism of the employer;
• Rules generally restricting speaking to the media or third parties; and
• Rules banning off-duty conduct that might harm the employer.

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General Counsel Memo 18-04 (June 6, 2018)

Category 3: Unlawful To Maintain

• Confidentiality rules specifically regarding wages, benefits, or

working conditions; and

• Rules against joining outside organizations or voting on

matters concerning an employee’s employer. If you have one of these policies, Regional Director will issue a Complaint as they are per se unlawful.

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Mandatory Class and Collective Action Waivers

Alternative Entertainment, Inc., 363 NLRB No. 131 (2016).

Rule: Required that disputes "relating to ... employment with the company" must be resolved "exclusively through binding arbitration.”

• Also required employees to agree that "claim may not be

arbitrated as a class action, also called `representative' or `collective' actions" or "otherwise be consolidated or joined with the claims of others."

• The Board found this violated the Act because it prevented

employees from engaging in concerted legal action, which in turn violated of Section 7.

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Mandatory Class and Collective Action Waivers

Supreme Court overturned this case on May 21, 2018, holding that that class action waivers in employment arbitration agreements do not violate the National Labor Relations Act (NLRA) and are, in fact, enforceable under the Federal Arbitration Act (FAA). Epic Systems Corporation

• v. Lewis; Ernst & Young, LLP v. Morris; and NLRB v.

Murphy Oil USA, Inc.

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Mandatory Class and Collective Action Waivers

Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (June 18, 2019) Arbitration Agreement included the following provision: “all claims or controversies for which a federal or state court would be authorized to grant relief”, without specifically including or excluding claims arising under the NLRA.

• Applying the Boeing balancing test, the Board found it was otherwise unlawful.
• The arbitration agreement at issue, when reasonably interpreted potentially

interfered with employees’ rights because it effectively covered all claims (with limited exceptions) and did not expressly exclude NLRA claims.

• The potential impact on employee rights was significant, opining that the

right to file charges with the NLRB was “indispensable to the effectuation of national labor policy.”

• Check your arbitration agreements! If it contains only general disclaimer

language, this likely violates the NLRA.

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No Solicitation/No Loitering Rules

Kroger Ltd. Partnership, 368 NLRB No. 64 (September 6, 2019).

• An employer is not required to grant nonemployees

access to its property.

• However, an employer may not discriminate against Union

agents while allowing “other distribution.”

• NLRB v. Babcock & Wilcox, Inc., 351 U.S. 105, 112 (1956).
• Expanded by NLRB in Sandusky Mall Co., 329 NLRB 618

(1999)

• Employers must allow access to nonemployee union agents for

any purpose if it has allowed “substantial civic, charitable, and promotional activities” by other nonemployees.

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No Solicitation/No Loitering Rules

Kroger Ltd. Partnership, 368 NLRB No. 64 (September 6, 2019).

• In Kroger, the employer barred two union representatives from

collecting signatures for a petition protesting the transfer of union-represented employees in the parking area adjacent to the store.

• Employer had “unofficial” policy prohibiting solicitation, but had

previously permitted charity organizations and other groups to solicit donations/distribute literature in the same area.

• The Board reversed Sandusky Mall, finding an employer only

violates Babcock & Wilcox when it discriminates against activities that are “similar in nature.”

• In making such a determination, the Board look beyond the activity

itself (e.g., handbilling) to consider the underlying “purpose of the activity.”

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[The Answer, My Friend, is] Blowin’ In the Wind: Potential Changes To The Application Of Section 7

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Workplace Photography And Recordings

T-Mobile USA, Inc., 365 NLRB No. 15 (Jan. 23, 2017)

Rule: No photography or audio or video recordings in the workplace.

• NLRB found employees could construe this broad rule as prohibiting

protected concerted activity, e.g., documenting wage schedules and

• ther terms and conditions of employment.
• Employer’s purpose of preventing harassment, maintaining individual

privacy, encouraging open communication, and protecting confidential information did not justify the broad rule.

• Decision affirmed on appeal
• T-Mobile USA, Incorporated v. NLRB, No. 16-60284 (5th Cir. July 25, 2017).
• Important: Merely maintaining a rule that may have a chilling

effect is unlawful, even if it is never enforced.

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Workplace Photography And Recordings

T-Mobile USA, Inc., 365 NLRB No. 15 (Jan. 23, 2017)

• Trump Board may change its position regarding recording

rules if/when it has the opportunity to apply its Boeing analysis.

• GC’s Memo is very encouraging, as it states these are Category

1 rules (“Generally Lawful to Maintain”).

• May approve bans limited to certain areas and circumstances.

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Broad Confidentiality Rules

Rio-All Suites Hotel & Casino, 362 NLRB No. 190 (2015)

Rule: “Employees are prohibited from disclosing to anyone

• utside the Company, indirectly or directly, any information

about the Company which has not been shared by the Company with the general public.”

• Included, “Company financial data” and “organizational charts,

salary structures, policy and procedures manuals.”

• Exceptions included “disclosures authorized by the Company or

required or authorized by the law.”

• Surprise, the Board found this rule far too broad!

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Broad Confidentiality Rules

Rio-All Suites Hotel & Casino, 362 NLRB No. 190 (2015)

• This rule was not facially neutral:
• Long been unlawful to prohibit disclosure of wages.
• Long been unlawful to prohibit disclosure of employee

handbooks and other policies.

• Unlawful to limit disclosure to only that which management

has approved.

• This is a Category 3 rule (“Generally Unlawful to

Maintain”), so the Trump Board is unlikely to change its position.

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Rules Prohibiting “Disrespectful” Conduct

Casino San Pablo, 361 NLRB No. 148 (2014)

Rule: Prohibited “gossiping about other employees (including supervisors, managers, etc.),” as well as “insubordination or other disrespectful conduct.”

• Board found rule against gossiping was lawful because:
• Gossip “is commonly defined and reasonably understood as chatty talk or

rumors or reports of an intimate nature.”

• Board believed employees would understand that, and would understand the

rule did not prohibit protected activity.

• Board found rule against “insubordination and disrespectful conduct”

unlawful:

“Where traditional managerial prerogatives and supervisory hierarchies are maintained, employees would reasonably understand this phrase as encompassing any form of Section 7 activity that might be deemed insufficiently deferential to a person in authority—in other words, as referring to something less than actual insubordination.”

• This is a Category 1 Rule (“Generally Lawful to Maintain”).
• Expect Trump Board to overturn this case.

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Employees’ “Right” To Use Employer’s E-Mail

Purple Communications, 361 NLRB No. 126 (2014)

Current Board Law:

• If employees have been granted access to their employer’s e-

mail system for work-related purposes;

• The Board presumes they have a right to use the system to

engage in protected communication during non-work time;

• Unless the employer shows special circumstances warrant

restricting that presumptive Section 7 right.

• This decision invades employers’ property rights.
• The Board requested briefing on whether it should adhere to,

modify, or overrule Purple Communications.

• Rio All-Suites Hotel & Casino, Case No. 28-CA-060841

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Social Media Policies

Boch Honda, 362 NLRB No. 83 (2015).

Policy: Required employees to identify themselves as employees when posting comments about the company, its business or a company policy.

• Board found employees would reasonably construe this as

applying to comments regarding their terms and conditions of employment.

• Thus, the self-identification requirement would interfere with their

protected activity in social media outlets.

• Presumably because they might fear retaliation.
• Trump Board may overturn since the GC doesn’t support

this approach.

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Use Of Company Logos

Boch Honda, 362 NLRB No. 83 (2015)

Policy: Prohibited employees’ use of the company’s logos “in any manner.”

• The Board found this would interfere with Section 7 rights, but

didn’t clearly explain why.

• In other cases, however, the Board has found employees have

the right to use their employers’ logos in Section 7 activity.

• This is a “Category 2” policy (“Rules Warranting

Individualized Scrutiny”).

• Will Trump Board overrule when presented with the right case?

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Limits Of Protected Activity

Pier Sixty, LLC, 362 NLRB No. 59 (2015)

Employee used extremely vulgar language to attack his supervisor and supervisor’s family—on Facebook.

• Applying a 9-factor test, Board found the activity protected.
• Employer failed to show conduct was so egregious as to lose

protection.

• Employer “consistently tolerated profanity among its workers.”
• Facebook is “a key medium of communication among coworkers

and [an organizing tool] in the modern era.”

• Second Cir. Court of appeals enforced the decision.

The Board has solicited amicus briefs on this issue, due November 4, 2019.

• General Motors LLC, 368 NLRB No. 68 (Sept. 5, 2019)

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Confidentiality of Investigations

Banner Estrella Med. Ctr., 362 NLRB No. 137 (2015).

• HR routinely asked employees not to discuss on-going

investigations with co-workers.

• Board found this unlawful:
• Employees have a Section 7 right to discuss disciplinary issues

with co-workers for mutual aid and protection.

• Employers may restrict such discussions only where legitimate

and substantial business justification outweighs employee rights.

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Confidentiality of Investigations

Banner Estrella Med. Ctr., 362 NLRB No. 137 (2015).

• New two-part process to justify confidentiality requests:
• Employer must determine, on a case-by-case basis, whether:
• a witness needs protection,
• evidence is in danger of being destroyed,
• testimony is in danger of being fabricated, or
• there is a need to prevent a cover up.
• If so, employer may require confidentiality to prevent corruption.
• This is somewhat out of touch with reality, and with

employers obligations under Title VII and other laws!

• Trump Board is likely to overturn it given the opportunity.

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Off-Duty Access To Employer’s Property

Piedmont Gardens, 360 NLRB No. 100 (2014).

Rule: Prohibited employees from remaining on premises after their shift “unless previously authorized by” their supervisor.

• Since 1976, rules restricting off-duty access have been

lawful if they:

• Limited access solely with respect to the interior of the facility

and other work areas;

• Were clearly disseminated to all employees; and
• Applied to all employees, regardless of the reason they wanted

access.

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Off-Duty Access To Employer’s Property

Piedmont Gardens, 360 NLRB No. 100 (2014).

• Obama Board found Piedmont’s rule unlawful because it

gave the employer unlimited discretion to deny access to pro-union employees.

• Merely having the rule might discourage employees from

seeking permission, and thus from exercising their rights.

• Must have an all or nothing access policy.
• The Trump Board would probably overturn this.
• But! The Board made clear in Kroger that its analysis did not

apply to off-duty access by employees.

• It therefore remains to be seen how far the Board would reach
• n this issue.

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Summary

• The new Board has made its intentions clear (mostly).
• Some Obama-era actions have already been reversed.
• Others changes are likely
• Until the Board or a court actually changes a particular law,

employers should behave accordingly.

• Long-established law is not likely to change (e.g., unlawful

rules against discussing wages)

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Maggie’s Farm Handbook Hypo

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Questions?

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Thank You

Presented by: Lisa M. Vickery Phone: (503) 205-8095 Email: lvickery@fisherphillips.com