The Post-Election National Labor Relations Board


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CLE Presentation: Mark Jacobs, Litigation Partner at Armstrong Teasdale

Whether you are a union or non-union employer, it can be tricky to navigate the ever-evolving legal issues that arise in regulating employee conduct. Learn what to watch out for and how the NLRB’s take on the law affects you and your employees.

The choice of a lawyer is an important decision and should not be based solely on this presentation. All rights are reserved and content may not be reproduced, disseminated or transferred, in any form or by means, except with the prior written consent of Armstrong Teasdale.

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The Post-Election National Labor Relations Board

  1. 1. © 2013 Armstrong Teasdale LLP
  2. 2. The Post-Election National Labor Relations Board Presented by: Mark G. Jacobs© 2013 Armstrong Teasdale LLP
  3. 3. The Current Board Mark Gaston Pearce, Sharon Block Richard F. Griffin, Jr. Chairman© 2013 Armstrong Teasdale LLP
  4. 4. The Acting General Counsel (“AGC”) Lafe Solomon© 2013 Armstrong Teasdale LLP
  5. 5. Section 7 – Employee “Bill of Rights”  Employees shall have the right to: • Self-organization. • Form, join, or assist labor organization. • Engage in other concerted activities for the purposes of: − Collective bargaining or − Other mutual aid or protection.  Applies to union and non-union employers© 2013 Armstrong Teasdale LLP
  6. 6. Section 7 – Employee “Bill of Rights”  Protected concerted activity • Typically 2 or more employees acting together to attempt to improve their terms and conditions of employment. • Employees are protected against retaliation for discussing or complaining about terms and conditions of employment.© 2013 Armstrong Teasdale LLP
  7. 7. Active Issues Affecting Union and Non-Union Employers  Notice Posting  At-Will Disclaimers  Confidentiality of Investigations  Off-Duty Access  Social Media© 2013 Armstrong Teasdale LLP
  8. 8. NLRB Notice Posting  Originally scheduled to take effect April 30, 2012 - currently on hold  Covers most private sector employers – with or without unions  Must post in “conspicuous places” where employer customarily posts personnel rules, policies or employment notices© 2013 Armstrong Teasdale LLP
  9. 9. At-Will Disclaimers  Handbooks, offer letters, etc.  Policy example: • “I further agree that the at will employment relationship cannot be amended, modified, or altered in any way.” • ALJ found that the above language violated the NLRA because an employee may “reasonably” conclude that the at- will status cannot even be changed through collective bargaining.© 2013 Armstrong Teasdale LLP
  10. 10. At-Will Disclaimers  Acting General Counsel: • Overly broad “at-will” disclaimers chill Section 7 Rights. • Employees should not be led to believe that at-will status can never change.© 2013 Armstrong Teasdale LLP
  11. 11. At-Will Disclaimers Mimi’s Café • “The relationship between you and Mimis Cafe is referred to as employment at will… No representative of the Company has authority to enter into any agreement contrary to the foregoing ‘employment at will’ relationship…”© 2013 Armstrong Teasdale LLP
  12. 12. At-Will Disclaimers  Rocha Transportation • “Employment with Rocha Transportation is employment at- will… No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specific period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.”© 2013 Armstrong Teasdale LLP
  13. 13. Confidentiality of Investigations  Blanket Confidentiality Provisions  NLRB says employers must show something more than a “generalized concern with protecting the integrity of the investigation.”  Conflicts with EEOC guidance?© 2013 Armstrong Teasdale LLP
  14. 14. Confidentiality of Investigations  Banner Health System – July 30, 2012 • Internal investigation re alternative equipment sterilization procedures. Human resources asked employee not to discuss the investigation with others until she concluded the investigation. No threat of discipline for doing otherwise. • The NLRB held that the confidentiality directive amounted to a rule that “had a reasonable tendency to coerce employees, and so constituted an unlawful restraint of Section 7 rights,” regardless of whether or not the employer threatened disciplinary action for breaching confidentiality.© 2013 Armstrong Teasdale LLP
  15. 15. Confidentiality of Investigations  Banner Health System – July 30, 2012 • The NLRB stated that the employer should have first made a determination “that it has a legitimate business justification that outweighs employees’ Section 7 rights.” − An employer’s “generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees’ Section 7 rights.” Rather, the employer should have determined whether, in this particular case, it needed to protect witnesses, evidence or testimony or prevent a cover- up, which would presumably justify an instruction to maintain confidentiality.© 2013 Armstrong Teasdale LLP
  16. 16. Off-Duty Access  “Off-duty employees are not allowed to enter or re-enter the interior of the Hospital or any other work area outside the Hospital except to visit a patient, receive medical treatment or to conduct hospital-related business. • An off-duty employee is defined as an employee who has completed his/her assigned shift. • Hospital-related business is defined as the pursuit of the employee’s normal duties or duties as specifically directed by management. • Any employee who violates this policy will be subject to disciplinary action.”© 2013 Armstrong Teasdale LLP
  17. 17. Off-Duty Access  NLRB said the policy violated the NLRA because it gives employers “unlimited discretion to decide when and why employees may access the facility.”  The Board asked – Would a “reasonable” employee reading the policy believe that he or she could come onto the employer’s property when off-duty and performs activities protected under Section 7 of the Act?© 2013 Armstrong Teasdale LLP
  18. 18. Social Media  May 30, 2012 – AGC issued Report of the Acting General Counsel Concerning Social Media Cases • Memo reviewed numerous employer social media policies that had been found unlawful by the Board.  Common Theme – Policies restricting employees from criticizing the employer’s labor policies or treatment of employees are going to be found to violate Section 7.  Common Theme – Policies that have specific examples showing that the policy is not meant to prohibit criticism of employer’s labor policies more likely to be lawful.© 2013 Armstrong Teasdale LLP
  19. 19. Social Media – NLRB Unlawful  “If you enjoy blogging or using online social networking sites such as Facebook and YouTube…please note that there are guidelines to follow if you plan to mention [Employer] or your employment with [Employer] in these online vehicles. Don’t release confidential guest, team member or company information. . . .”  NLRB says unlawful because: “…would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves…”© 2013 Armstrong Teasdale LLP
  20. 20. Social Media – NLRB Lawful  “Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.”© 2013 Armstrong Teasdale LLP
  21. 21. Social Media – NLRB Unlawful  “Treat Everyone With Respect: Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline…”  NLRB says unlawful because “…this provision proscribes a broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees.”© 2013 Armstrong Teasdale LLP
  22. 22. Social Media – NLRB Lawful  “Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.”© 2013 Armstrong Teasdale LLP
  23. 23. The Year Ahead  “Protected Concerted Activity” charges in the non-union setting are expected to increase.  More NLRB rulemaking  More labor friendly decisions© 2013 Armstrong Teasdale LLP
  24. 24. Contact Information Mark G. Jacobs 314.621.5070© 2013 Armstrong Teasdale LLP