2012 Managing Labor & Employee Relations Seminar

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Employers today encounter more and more restrictions on the management of their workplace. An effective employee relations program is crucial for managing your most valuable asset, your employees. …

Employers today encounter more and more restrictions on the management of their workplace. An effective employee relations program is crucial for managing your most valuable asset, your employees.

“Managing Labor & Employee Relations” specifically addresses the issues facing employers. This half-day session will provide information to better equip you in dealing with workplace management issues including reasonable accommodation end employee benefits to OSHA inspection survival and an overview of how the NLRB affects non-union employers.

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  • “qualified individual”- the indv satisfies the requisite skill, experience, education and other job-related requirements of the employment position that the individual holds w/ or w/o reasonable accommodations and can perform the essential functions of the job“disability”- physical or mental impairment that substantially limits one or more of the major life activities of the individual; a record of such impairment; being regarded as having such impairment
  • Applicants- essentially adjust the application process so the person can be considered for the position they desireEssential functions- modifications to the environment, how the work is performed, that will enable the indv to perform the essential functions of the jobModifications that enable the indivi to enjoy the same benefits and privileges of employment that other similarly situated employees without disabilities do
  • Remember- employers must provide RAs to qualified indvs w/disabilities, UNLESS…“undue hardship”- refers to financial difficulty, RAs that are unduly extensive, substantial, disruptive, would fundamentally alter the nature or operation of the business
  • Mention FMLA cases where intermittent leave is completely ridiculous
  • = recess appointments under attack from Republicans who claim senate never actually in recessBoard can’t make rules or regulations unless have at least 3 members.
  • D.R. Horton Case (Feb. 2012) Mandatory arbitration of class action claims violates NLRA
  • Supervisory status of individual employees and other voter-eligibility issues previously able to be litigated pre-election can only be raised post-election
  • the Charging Party’s supervisors informed her that due to low call volume in the inbound calls group, she was being moved to one of the outbound calls groups. The following day, the Charging Party approached her supervisor and expressed her frustration with the transfer decision, arguing that given her high performance level, it did not make sense to transfer her.After arriving home, the Charging Party posted a status update on her Facebook page. Using expletives, she stated the Employer had messed up and that she was done with being a good employee.The Charging Party was Facebook “friends” with approximately 10 coworkers, including her direct supervisor. One coworker indicated she was “right behind”the Charging Party and was also angry. Another coworkermade a similar comment. Several former employees alsoposted, with one of them commenting that only bad behaviorgets rewarded, and that honesty, integrity, and commitmentare a foreign language to them. This coworker also wrotethat the Employer would rather pay the $9 an hour peopleand get rid of higher paid, smarter people.The Charging Party returned to work on October 12. At the end of the day, she was told that she was being terminated due to her comments on Facebook, and the Employer showed her a copy of her Facebook wall from October 8.
  • the Charging Party’s supervisors informed her that due to low call volume in the inbound calls group, she was being moved to one of the outbound calls groups. The following day, the Charging Party approached her supervisor and expressed her frustration with the transfer decision, arguing that given her high performance level, it did not make sense to transfer her.After arriving home, the Charging Party posted a status update on her Facebook page. Using expletives, she stated the Employer had messed up and that she was done with being a good employee.The Charging Party was Facebook “friends” with approximately 10 coworkers, including her direct supervisor. One coworker indicated she was “right behind”the Charging Party and was also angry. Another coworkermade a similar comment. Several former employees alsoposted, with one of them commenting that only bad behaviorgets rewarded, and that honesty, integrity, and commitmentare a foreign language to them. This coworker also wrotethat the Employer would rather pay the $9 an hour peopleand get rid of higher paid, smarter people.
  • His introduction to the photos remarked that he was happy to see that the employer had gone all out for the party. The NLRB said the salesman was vocalizing the concerns of his co-workers, whose salaries were based entirely on commissions. The posting that wasn't protected, showed photos of a vehicle owned by a sister dealership nearby that was accidentally driven into a pond.Under Jefferson Standard, the inquiry is whether the communication is related to an ongoing labor dispute and whether it is not so disloyal, reckless, or maliciously untrue as to lose the Act’s protection. Here, the employee’s postings were neither disparaging of the Employer’s product nor disloyal. The postings merely expressed frustration with the Employer’s choice of food at the sales event. They did not refer to the quality of the cars or the performance of the dealership and did not criticize the Employer’s management.
  • In the following days, the Charging Party informed oneor two coworkers and a supervisor about the incident thathad prompted her Facebook posts. These individuals offeredtheir sympathy, but none of them indicated that they viewedthe incident as a group concern or desired to take furthergroup action. During a social dinner, the Charging Partyalso mentioned the incident to the same coworker who“liked” her original Facebook status. That coworkerexpressed sympathy and may have generally referenced herdispleasure with her own job, but work-related issues werenot the primary subject of their conversation.On October 5, the Store Manager and a Human ResourcesManager interviewed the Charging Party and asked her toexplain her Facebook comments. She stated that she had
  • Here, the Employer’s rule limits employee discussion of terms and conditions of employment to discussions conducted in an “appropriate” manner, thereby implicitly prohibiting “inappropriate” discussions of terms and conditions of employment. The policy does not define what an“appropriate” or “inappropriate” discussion of terms and conditions of employment would be, either through specific examples of what is covered or through limiting language that would exclude Section 7 activity. We concluded that employees would therefore reasonably interpret the rule to prohibit protected activity, including criticism of the Employer’s labor policies, treatment of employees, and terms and conditions of employment.We also found that the “savings clause” in the Employer’s social media policy was insufficient to cure the ambiguities in the rule and remove the chill upon Section 7. The savings clause provided that the policy would not be interpreted or applied so as to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities. We explained that an employee could not reasonably be expected to know that this language encompasses discussions the Employer deems “inappropriate.”
  • The Employer’s employee handbook contained a nosolicitation/no distribution rule. This rule stated thatemployees may not solicit team members while on companyproperty and that employees may not solicit others while oncompany time or in work areas.An employer’s prohibition on any “post or display comments about coworkers or supervisors or the Employer that [is] vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.” (This prohibition was actually an updated version of the last bullet item listed above – the Board found this employer had corrected the Board’s concerns about the word “defamatory”.)An employer’s policy that banned “using or disclosing confidential and/or proprietary information, including personal health information about customers or patients, and it also prohibited employees from discussing in any form of social media “embargoed information,” such as launch and release dates and pending reorganizations, and that prohibited employees from referring to the company “by name,” “publishing any promotional content,” and requiring employees employees, “while engaging in social networking activities for personal purposes, [to] indicate that their views were their own and did not reflect those of their employer.” (The latter provisions the Board found OK because they were found only in a section of the policy called “Promotional Content,” and that as a result, “employees could not reasonably construe the rule to apply to their communications regarding working conditions, as they would not consider those communications to promote or advertise on behalf of the Employer.”)
  • the Union began a campaign to organize Control employees at various Long Island shopping malls, including Simon's Roosevelt Field Mall and Smith Haven Mall. According to the stipulation, on three occasions, off-duty Control employees sought to distribute handbills to customers at the exterior entrances of Roosevelt Field and Smith Haven, as follows:3 All dates are in 1999 unless specified otherwise.First, on August 28, a group of 5 to 8 off-duty Control employees who regularly worked at Smith Haven distributed leaflets on the sidewalk outside a Smith Haven entrance and in its parking lot. 4 Agents of Simon directed the Control employees to stop distributing the flyer to the public and to leave the sidewalk and parking lot. Based on testimony, the judge found further that Simon agents threatened to call the police if handbilling continued; that Smith Haven Security Director Michael Trombino called the police, after which about four to six police cars arrived on the scene; and that Smith Haven Mall Manager Dennis Hejen asked the police to arrest Control employees and union representatives who did not stop handbilling. 54 That handbill—which was also distributed at Roosevelt Field on September 24—stated, among other points, “[w]e are appealing for your support in our effort to unionize because Control Services is NOT TREATING US FAIRLY” (emphasis in original) and “[p]lease show support by telling Simon that you support the cleaners in this mall.” The handbill also stated “[n]o dispute with any other employer or Simon Administration. No request to any person to cease performing] services or making deliveries. This is an appeal to [the] public.”5 The Control employees were not ticketed or arrested; however, the record reflects that the police required them to move off the mall's property.The Control employees who handbilled at Smith Haven Mall on August 28 and October 23 were accompanied by union organizers who were not employed by Control or Simon. The General Counsel did not allege, and the judge did not find, that Simon acted unlawfully with regard to the union organizers.Second, on September 24, two off-duty Control employees who regularly worked at Roosevelt Field handed out union flyers on the sidewalk outside Roosevelt Field's grand entrance and were told by a Simon agent that they were not allowed to hand out flyers on mall property and that if they continued to do so they would be arrested for trespassing.Third, on October 23, off-duty Control employees who regularly worked at Smith Haven distributed leaflets to the public on the sidewalk outside one of Smith Haven's main entrances. 6 Simon directed the Control employees to stop distributing union leaflets to the public and threatened to call the police if the leafleting continued. According to Simon's incident report regarding the October 23 events, the police were called but the Control employees had already stopped leafleting when they arrived.Republic Aviation Corp. v. NLRB, 324 U.S. 793 between the union activities of employees and nonemployees. In cases involving employee activities, we noted with approval, the Board “balanced the conflicting interests of employees to receive information on self-organization on the company's property from fellow employees during nonworking time, with the employer's right to control the use of his property.” Id., at 109-110. In cases involving nonemployee activities (like those at issue in Babcock itself), however, the Board was not permitted to engage in that same balancing (and we reversed the Board for having done so). By reversing the Board's interpretation of the statute for failing to distinguish between the organizing activities of employees and nonemployees, we were saying, in Chevron terms, that Section 7 speaks to the issue of nonemployee access to an employer's property. Babcock's teaching is straightforward: Section 7 simply does not protect nonemployee union organizers except in the rare case where “the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to Page 2230communicate with them through the usual channels,” 351 U.S., at 112.could not prohibit employee distribution of union organizational literature on company property in non-working areas or union solicitation during non-working time, absent a showing that such a ban was necessary to maintain plant discipline or production.
  • “Off-duty employees are not allowed access to the interior of the Health Center's building or to other working areas at the Health Center. Off-duty employees are permitted access to the cafeteria and are also permitted access to the building to attend Health center sponsored events, such as retirement parties and baby showers. Employees are expected to arrive at their work area at or shortly before the beginning of their scheduled shift, and are expected to leave their work area promptly after completing their shift.”
  • Having allowed other types of insignia to be worn in immediate patient care areas, the Respondent may not now rely on the protection of the presumption of validity applicable to an across-the-board ban to justify its selective ban of only the specific union insignia at issue. Under the circumstances presented here, we find that the Respondent's ban on the Union's ribbon is not protected by the presumption of validity.The judge further ruled that because there were no “special circumstances” to justify the employer’s refusal to allow the shirts, such as jeopardizing employee safety, damaging machinery or product, exacerbating employee tension, unreasonably interfering with an employer’s public image, or failing to maintain employee discipline and decorum.By a 2-1 vote, the NLRB affirmed the judge’s decision while rejecting the company’s argument that allowing the shirts would cause fear among  customers.The NLRB’s dissenting member, Brian Hayes, argued in vain that the employer demonstrated a legitimate concern — customer fear — especially because of publicity regarding a 2007 home invasion and murder by paroled felons.

Transcript

  • 1. Be Reasonable?!? - An Update On Leave As A Reasonable Accommodation Under The Americans With Disabilities Act presented by Margeaux Kimbrough Kegler, Brown, Hill & Ritter Labor & Employee Relations Seminar March 6, 2012
  • 2. Requirement• Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations to qualified individuals with disabilities who are employees or applicants for employment, unless doing so would cause undue hardship
  • 3. Definition of Reasonable Accommodation• Any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities
  • 4. Categories of “Reasonable Accommodations”1. Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires;2. Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or3. Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.
  • 5. Purpose• Removes workplace barriers for individuals with disabilities
  • 6. Undue Hardship• Means significant difficulty or expense• Focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation
  • 7. Leave as a Reasonable Accommodation• Permitting the use of accrued paid or unpaid leave is a form of reasonable accommodation, when doing so is necessitated by the employee’s disability
  • 8. Modification of Attendance Policies• Employer may need to modify attendance policy as a reasonable accommodation, absent undue hardship• Such as… – Adjusting arrival/departure times – Providing periodic breaks
  • 9. “No-Fault” Leave Policies• If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its “no-fault” leave policy• Exceptions – There is another effective accommodation that would enable the person to perform the essential functions of the position – Undue hardship
  • 10. Indefinite Leave• Employers need not grant indefinite leave• However…. – Approximate date of return – Time period for return
  • 11. Intermittent Leave• An employee may take intermittent leave as a reasonable accommodation, if doing so does not cause an undue hardship on the employer
  • 12. Example• Ms. Krabappel has epilepsy and is ineligible for FMLA• Ms. Krabappel has 2 seizures at work within a 3-month period. Every time Ms. Krabappel has a seizure, she must take off the remainder of the day. She is able to return to work the next day.• Dr. Hibbert provides documentation which states that Ms. Krabappel will have seizures once every 2 to 4 months, that there is no way to predict when they will happen, and Ms. Krabappel will need to take off the remainder of the day when she has one.• Reasonable Accommodation
  • 13. Example• Comic Book Guy has multiple sclerosis and works for a small comic book store that is not covered by the FMLA, but is covered under the ADA• Comic Book Guy requests intermittent leave as a reasonable accommodation• Comic Book Guy has already taken 5 days off• He requests a 2-day and 3-day leave of absence• Dr. Nick provides documentation showing that Comic Book Guy will need intermittent leave for at least several months of 1 to 3 days each time• Reasonable Accommodation
  • 14. What Employers DON’T Have to Accept • Employers need not completely exempt an employee from time and attendance requirements, grant open-ended schedules, or accept irregular, unreliable attendance • Employers generally do not have to accommodate repeated instances of tardiness or absenteeism that occurs with some frequency, over an extended period of time, and often without advanced notice
  • 15. Example• Homer works at the Springfield nuclear power plant and has a severe case of asthma. Homer’s job as a safety inspector requires him to run safety audits every day beginning at 7:00 a.m.• Homer’s asthma has gotten worse. As a result, Homer has taken 12 days of leave during the past two months. Homer suffers symptoms at night, so he generally calls in sick the next morning• Dr. Hibbert is unable to predict when symptoms will flare up and has not been able to find treatments that will control the symptoms• The power plant has no positions available for reassignment• The power plant does not have to retain Homer
  • 16. Example• Maggie grows up and becomes a wedding coordinator for David Tutera• Maggie is out of FMLA leave due to a disability and requests additional intermittent leave as a reasonable accommodation• Maggie cannot predict when she will need leave or how much leave she will need• David Tutera agrees to give Maggie 14 days of leave over a period of two months• Dr. Hibbert provides documentation showing that Maggie will need similar amounts of intermittent leave over the next 6 months• David Tutera does not have any vacant positions• David Tutera is not required to retain her
  • 17. EEOC Guidance ?
  • 18. Thank You!Margeaux Kimbrough, Associate mkimbrough@keglerbrown.com (614) 462-5437
  • 19. Hot Topics for Employee Benefits presented by Tom Sigmund Kegler, Brown, Hill & Ritter Labor & Employee Relations Seminar March 6, 2012
  • 20. Status of Healthcare Reform• W-2 reporting• Amendments to HSA, FSA, and HRA• Small business wellness programs• Form 1099 reporting• Uniform explanation of coverage (SBCs)• Medicare payroll tax increase• Automatic enrollment• Vouchers• Non-discrimination rules for non-grandfathered plans• Preventative health services and cost-sharing limitations• Claims and appeals process
  • 21. Maintaining Grandfathered Status• Effect of being grandfathered• How to maintain or lose grandfather status• Collectively bargained plans• Provisions affecting non-grandfathered plans: – Nondiscrimination rules – Dependent coverage to age 26 – Coverage of preventative health services and cost-sharing limitations – Choice of primary care provider – Claims and appeals process – Emergency department services – Transparency in coverage disclosures (HHS submissions)
  • 22. Welfare Benefit Plan Disclosure Rules• SPD• SBC (summary of benefits and coverage)• 60-day Notice• Penalties
  • 23. Qualified Retirement Plan Fee Disclosures• Fiduciary Duties Under ERISA• Prohibited Transactions• Service Provider Fee Disclosures• Participant Fee Disclosures
  • 24. Wellness Programs• Health Benefits and Discrimination – ERISA – ADA – GINA• Non-discriminatory Wellness Plans• Best Practices• Legal Principles
  • 25. Thank You!Tom Sigmund, Director tsigmund@keglerbrown.com (614) 462-5462
  • 26. How To Survive An OSHA Inspection presented by Timothy A. Kelley Kegler, Brown, Hill & Ritter Labor & Employee Relations Seminar March 6, 2012
  • 27. Who/What Is OSHA?OSHA! BUT: the OSHA C.O. is Not• “to assure safe and your friend. healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance”
  • 28. Why?• Since 2006, OSHA has been more active. – Bigger budget. – More inspections. – Harsher citations. – Bigger fines.
  • 29. From 2006 To 2010:• OSHA’s budget increased by 7.68%.• Total number of inspections increased by 6.2%.• Whistle-blower inspections increased by 8.8%.• Programmed inspections increased by 15.1%.
  • 30. Who Is Targeted For Programmed Inspections?Heavy industry? Yes. Nursing homes…yes!
  • 31. From 2006 To 2010:• Total violations increased 15.3%• Total SERIOUS violations increased 22.1%• Total WILLFUL violations increased 217.1%
  • 32. What Does A Willful Citation Mean For You?
  • 33. What Should You Do BEFORE An Inspection? Implement and enforce aTrain your supervisors. disciplinary program.
  • 34. Train Your Supervisors• Prepare them for what to do during an OSHA inspection.• Ensure they know the safety/compliance issues specific to their department.• Make sure they inform their employees of their rights, duties, and obligations during an OSHA inspection.• REMEMBER: the OSHA inspector is not your friend.
  • 35. Implement And Enforce A Disciplinary Program• Why: to preserve the employee misconduct defense. – existence of program; – communication to employees; – steps to discover violations; – enforcement.• Secretary v. Skanska Koch, Inc. – “ground inspection” of tie-off rule insufficient.• Secretary v. CB&I Constructors, Inc. – employees lied about compliance=insufficient.
  • 36. What To Do When The OSHA C.O. Knocks On Your Door? • Call your attorney. • Why is OSHA here? • Will you let OSHA inspect without a warrant? • Be proactive during the inspection. • Seek immediate resolution.
  • 37. Call Your Attorney • Your attorney can assert your rights during an OSHA inspection. • Your attorney can help you decide if/when/where you will allow the inspection to proceed.
  • 38. Why Is OSHA Here?• Ask for credentials.• Designate an employer representative. – advise employees that access is denied until the employer representative is present. – all communications go through the representative.• Determine the reason for the inspection. – programmed, complaint, incident, follow-up.• Determine the scope of the inspection. – entire facility, or just one piece of equipment?
  • 39. Will You Let OSHA Inspect Without A Warrant?• OSHA cannot conduct a warrantless search without employer consent.• OSHA should be able to get the warrant, but it will take time.• Factors to consider: – possibility of a repeat violation (i.e. bigger fine). – more thorough/detailed inspection once warrant is procured.
  • 40. BE PROACTIVE DURING THE INSPECTION.• Employer representative should accompany C.O. at all times. – control the route (“plain view” doctrine).• C.O. may speak to employees privately, but employees may be informed that they are not required to talk, or that they may request the presence of the employer representative.• Do NOT concede anything to the C.O.
  • 41. REMEMBER: the C.O. is not your friend,AND he might not know what he is doing.
  • 42. Do NOT Concede Anything To The C.O.• Do not offer superfluous information (“I don’t know” is ok). – except for obvious answers.• Do not admit to violations. – ask why inspector believes there is a violation, and what actions should be taken to correct it.• You are not obligated to run a machine that is not currently operating.• Enforce facility rules restricting photography when possible.
  • 43. Do NOT Concede Anything To The C.O.• But: be polite, proactive, and conscientious to employee safety/OSHA compliance.• “Keep your friends close, but your enemies closer.”
  • 44. Seek Immediate Resolution• If possible, correct alleged violations immediately. – may demonstrate good faith. – but remember, do not ADMIT to the violation.• Use the closing conference to your advantage. – seek information, but do not engage in speculation. – clarify any mistaken impressions the C.O. may have formed during the inspection. – demonstrate willingness to comply with standards, but be resolute in position that no violations exist.
  • 45. What Is Your Goal?• Show the C.O. your good-faith commitment to employee safety and OSHA compliance.• Determine strength or weakness of any alleged violation.• Begin to decide if you want to contest the citation(s).
  • 46. What If Your Business Isn’t Subject To Specific OSHA Standards?• You are still subject to the General Duty Clause.• “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees….”
  • 47. Black Friday Stampedes • 2008, a Wal-Mart employee was killed by a stampede of shoppers. • Wal-Mart cited for exposing workers to the “recognized hazard” of being crushed by a crowd. • Wal-mart fined $7,000 spent approx. $2 million defending.
  • 48. Insane Patient Shooting Nurse In A Hospital • 86 year-old hospital patient pulled a revolver on a nurse and shot him 3 times. • Hospital cited for “failing to provide a workplace free from recognized hazards …in this case the hazard of employees being injured by violent patients. • Union president: “this validates us, 100%.”
  • 49. Questions?Timothy A. Kelley, Associate tkelley@keglerbrown.com (614) 462-5407
  • 50. The NLRB for the Non-Union Employer presented by Brendan Feheley Kegler, Brown, Hill & Ritter Labor & Employee Relations Seminar March 6, 2012
  • 51. Every New Beginning Comes From Some Other Beginning’s End• NLRA passed in 1935 – Major component of New Deal Legislation – to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy – Mission accomplished???
  • 52. Who Are You (I Really Wanna Know)• NLRA enforced by NLRB• Current NLRB – Mark G. Pearce, Chairman • union and plaintiff side labor and employment lawyer (Buffalo NY) – Brian Hayes • Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions. 25 years experience representing management in employment law – Sharon Block* • Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. – Terence F. Flynn* • Chief Counsel to Board Member Brian Hayes and former NLRB Board Member Peter Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the National Labor Relations Act. – Richard Griffin* • General Counsel for International Union of Operating Engineers (IUOE).
  • 53. We’re Not Gonna Take It• We’re not union, we’re not gonna be, this don’t apply to me Wrong! – Section 7: “Employees shall have the right to self organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection …” – Section 8(a)(1) forbids employers: “to interfere with, restrain, or coerce” employees in the exercise of Section 7 rights.
  • 54. 4 Critical Areas To Be Aware Of• Elections – Who’s in, Who’s out, Timing, rules & rights• Protected Concerted Activity – Employee speech and communication• Handbilling, Demonstrating – What employees can and can’t do• Handbooks – Social media, confidentiality, Open door etc…
  • 55. Election RulesOld Rule New Rule• Prior to an election, the Board • Hearings will only be held to could hold a hearing pre- resolve questions regarding election issues, such as the supervisory status and “whether a question of classifications representation exists.”• After a pre-election hearing, • Hearing Officers have parties could submit post- hearing briefs advocating their discretion to allow or not respective positions regarding allow the filing of post- the issues litigated hearing briefs.
  • 56. Election Rules (cont.)Old Rule New Rule• Parties could appeal certain pre- • Pre-election rulings by Regional election rulings to the full, 5-member Directors can only be appealed to the NLRB pre-election. full NLRB post-election.• In the event a pre-election hearing • A Regional Director no longer must was held, no election could take wait until a decision has issued from place until 25-30 days after the a pre-election hearing before Regional Director issued a decision directing an election regarding the issues litigated at the hearing • The NLRB has discretion to review• Appeals of Regional Director election Regional Director rulings. rulings generally had to be reviewed by the full NLRB
  • 57. What do these changes mean• Faster elections – Helps Unions win.• Train your supervisors – Know what this is• Strategize – What is the Company’s position on a Union
  • 58. Social Media: The NLRB’s Attack On Your Brand• Section 7 vs. Section 8(a)(1)• What’s in play – Employer’s interest in protecting image on-line and brand – Employer’s desire to keep dirty laundry “in-house” – Employee’s legal right to discuss terms and conditions with other employees and with Company – Employee’s legal right to engage in activity, with or on behalf of other employees.• Board has to weigh the competing interests – How do you think they’re doing?
  • 59. Collect (Your Belongings)• Employer is a collection agency• The Employer’s rule prohibited “*m+aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.”• Employee updates status• Other employees make comments about Company• First Employee fired.
  • 60. Bring Out The Caviar• Employee criticized the dealership for serving hot dogs and bottled water to customers at a luxury-car promotion and followed an earlier discussion among workers in person that commissions could suffer. – Did employer know about earlier discussion?
  • 61. How Far Is Too Far?• Supervisor reprimands employee in front of the Regional Manager for failing to perform a task that she had never been instructed to perform• Employee uses cell phone during her lunch break to update her Facebook status with a comment that consisted of an expletive and the name of the Employer’s store – Four individuals, including one of her coworkers, “liked” that status• 30 minutes later, the Charging Party posted again, this time commenting that the employer did not appreciate its employees. – the four coworkers who were her Facebook “friends” did not respond.• Firing ok?
  • 62. Threats = Termination• Supervisor says employee will lose attendance points if he left work early because he felt unwell. Employee writes on Facebook he is "a hair away from setting it off in that b—," apparently referring to the warehouse where he worked.• A human-resources manager later told the employee the comment sounded like a threat to shoot everyone in the warehouse, according to the NLRBs written account of its investigation.• The employee, told HR he was just venting and "setting it off" meant swearing at someone or walking out on the job, according to an NLRB report.• The NLRB said the comments werent protected.
  • 63. Comments About Employer Service... Gray Area• Employee protests over the quality of service provided by an employer are not protected where such concerns have only a tangential relationship to employee terms and conditions of employment.• On the other hand, when employees engage in conduct to address the job performance of their coworkers or supervisor that adversely impacts their working conditions, their activity is protected.• Bartender opinion
  • 64. Problems With Social Media Policies• The Employer’s rule prohibited “*m+aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.”• “in external social networking situations, employees should generally avoid identifying themselves as the Employer’s employees, unless there was a legitimate business need to do so or when discussing terms and conditions of employment in an appropriate manner.”• “insubordination or other disrespectful conduct” and “inappropriate conversation” are subject to disciplinary action.• prohibits employees from using social media to engage in unprofessional communication that could negatively impact the Employer’s reputation or interfere with the Employer’s mission or unprofessional/inappropriate communication regarding members of the Employer’s community.
  • 65. Holding Your Hand(book) To The Fire• Non-disclosure policy – employees have a right to discuss their wages and other terms and conditions of employment • Policy that limits that= not ok• Open door policy – If says don’t communicate with other employees then not ok – Board says only relates to individual grievance not group, Court says no• Working hours policy – “*p+erforming activities other than Company work during working hours”• Personnel Files – Any unauthorized disclosure of information from an employee’s personnel file is a ground for discipline, including discharge.”
  • 66. So What Can We Do?• Wait, watch, pay attention...• Make sure your policy includes disclaimer language.• Define conduct that is appropriate, and inappropriate. – Vulgar, obscene, threatening= inappropriate.
  • 67. Handbilling• Test: – “*T+he property owner may lawfully exclude such employees only where: • the owner is able to demonstrate that their activity significantly interferes with his use of the property or • where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline (as those terms have come to be defined in the Boards case law).”• Simon DeBartolo Group (Dec. 30, 2011)192 LRRM 1231
  • 68. You Don’t Have To Go Home, But You Can’t Stay Here (Off Duty Access)Saint Johns Health Center (Dec. 2011) 192 LRRM 1249• Policy ok if : (1) limits access solely with respect to the interior of the plant and other working areas; (2) is clearly disseminated to all employees; and (3) applies to off duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity.”
  • 69. Articles Of ClothingSt. John’s Hospital• Here, the Respondent banned the Unions ribbon stating, “Saint Johns RNs for Safe Patient Care,” but allowed employees to wear a hospital endorsed ribbon that was almost identical to the one issued by the Union. – In addition, the Respondent allowed other union insignia and political buttons to be worn throughout the hospital including in immediate patient care areas.AT&T Connecticut• technicians who conducted service calls at customers’ homes wore shirts resembling prison uniforms as a statement about a bargaining dispute between the union and the company. The text “INMATE #” appeared on the front of the shirts. One the back were bars and vertical stripes with the text “PRISONER OF AT&T.” – Employees have a protected right to make known their concerns and grievances pertaining to the employment relationship, which includes the wearing of union insignia while at work.
  • 70. Don’t You Move! (And We Mean It)• The NLRB had charged that Boeing decided to open the plant, in order to punish the union for past strikes that shut down the aircraft makers production lines.• Boeing officials argued that no union member was hurt by the new plant since it was maintaining full employment at its union-covered plants in the Pacific Northwest. – But it said the need to protect itself from the threat of future strikes was a reason for the new plant.
  • 71. Boeing (con’t)• The union said its members future job security depended on them handling all the assembly of the 787, the companys groundbreaking plane that improves fuel economy through its construction from composite materials rather than aluminum.• In December, the union and Boeing reached a deal to keep production of another new plane, the 737 MAX, at union-represented plants in the Pacific Northwest.
  • 72. Closing Time• The NLRA applies to you – The NLRB doesn’t want to allow you to run your business or monitor your brand – They don’t even want to let you choose where you open your facility• Investigate the circumstances surrounding any postings.• Before you take any disciplinary action talk with your favorite employment lawyer...
  • 73. Thank You!Brendan Feheley, Associate bfeheley@keglerbrown.com (614) 462-5482