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2012 Managing Labor & Employee Relations Seminar
 

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.

2012 Managing Labor & Employee Relations Seminar 2012 Managing Labor & Employee Relations Seminar Presentation Transcript