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What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11
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What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11

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This presentation explains the rights that employees have under the National Labor Relations Act and how the current Obama/Lieman Labor Board is expanding those rights.

This presentation explains the rights that employees have under the National Labor Relations Act and how the current Obama/Lieman Labor Board is expanding those rights.

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  • 1. What Rights Do Employees Have Under the NLRA… And How Is The Labor Board Expanding Them? Presented by: D. Albert Brannen www.lab orlawye rs .comAtlanta · C h arlotte · C hicago · C le ve land · C olu m b ia · D allas · D e nve r · F o rt Lau d e rd ale · H ou s ton · Irvine · Kans as C ity · Las Ve gas · Lo sAn ge le s · Lou is ville · N e w E ngland · N e w Je rs e y · N e w O rle ans · O rland o · P h ilad e lp h ia · P h o e nix · P ortland · S an D ie go · S an F rancis co · Tam p a · Was h ington D C
  • 2. 2010 In Review A Significant Year For Labor • Balance of power in Congress shifted • EFCA and other union supported legislative “reforms” are dead • Union supporters will use other means to advance their agendaFisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 3. What Is “Plan B” For Big Labor? • Union supporters have “stacked the deck” at the NLRB • The President’s appointees are now the majority • NLRB cannot amend the NLRA, but it can: • Use its “rulemaking” powers • Reverse or modify prior decisions • Interpret the law in ways to favor unionsFisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 4. NLRB Chairman Wilma Liebman• On the Board since 1997• Conspicuous dissents on Bush Board• Public support of • Labor law reforms • President’s nominees to fill open slots• Believes “policy oscillations” are normalFisher & Phillips LLPATTORNEYS AT LAW 4Solutions at W ork®
  • 5. NLRB Recess Appointee Craig Becker • SEIU counsel since 1990 • Senate voted not to confirm (52-33) • Radical views • Election procedures • Employer rights • RulemakingFisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 6. NLRB Board Member Mark Pearce • 2010 Obama appointee • Former NLRB lawyer • Represented unions in private practice in NYFisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 7. The “Acting” General Counsel Lafe Solomon • Career Board lawyer • Held numerous positions • Now the Board’s chief prosecutor • Served as “acting” GC since Fall 2010Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 8. Lafe Solomon Already Making Changes • Has filed notable cases • Boeing • AMR • Builders.com • Issued many 10(j) injunctions • Enacted or proposed other rulesFisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 9. Other NLRA Rule Changes • Interest calculations • Settlement procedures (default notice) • Electronic posting of remedial notices • More aggressive remedies • Threats to sue states for “secret ballot” laws • Proposed new “Rights” poster • Seeking amicus briefing on various issues • “Employee statements” • Union access to employer premisesFisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 10. Where Do We Go Now? Rules For Seeking Guidance • We can rely on specific sources for definitive guidance: • New NLRB rules or proposed rules • NLRB’s “official” website • Statutory language • Supreme Court precedent • New cases decided by this majority • We can speculate about future changes the current Labor Board may make: • Rules • Case holdingsFisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 11. Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 12. NLRB Poster For Federal Contractors • Executive Order 13496 • ProposedFisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 13. NLRB’s Proposed Poster For ALL Employers Under the NLRA, you have the right to: • Discuss your terms and conditions of employment or union organizing with your co-workers or a union. • Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency and seeking help from a union. • Strike and picket, depending on the purpose or means of the strike or the picketing.Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 14. Statutory Rights 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, and shall also have the right to refrain from any or all such activities… “Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 15. “Concerted” Activities • Supreme Court upheld the Interboro doctrine • An individual’s exercise of a right he “reasonably believes” to be protected under a CBA is protected concerted activity • Followed by NLRB in Meyers II NLRB v. City Disposal Systems, 465 U.S. 822 (1984)Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 16. Definition of “Concerted” Activity • Those situations where an individual seeks to • Initiate • Induce • Prepare for group action or • Bring group complaints to the employer’s attention Meyers Industries Inc., 281 NLRB 883 (1986) (Meyers II)Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 17. Examples of “Protected” Activities • Solicitation/distribution • Wearing union insignia • Strikes or other refusals to work • Complaints about pay or benefits • Discussing pay or benefits with other employees • Disclosing information to third parties • Disparaging the employer’s business • Complaining to government agencies • Enlisting support of government agencies • Promoting legislation • Filing charges or litigationFisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 18. Solicitation/Distribution Is Protected • Employees have a right to solicit during lunch and break times, even though they are on their employer’s property • Employees have right to wear union insignia at the workplace Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1943)Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 19. There Are Limits To Protected Solicitation & Distribution • Employees have a right to solicit except in special circumstances • Employer bears burden of proving special circumstances warrant limiting employee rights Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978)Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 20. Work Stoppages By Non-Union Employees Are Protected • A spontaneous walkout by 7 employees to protest cold working conditions was protected • Reasonableness of their decision was irrelevant • No misconduct involved NLRB v. Washington Aluminum, 370 U.S. 9 (1962) See also Atlantic Scaffolding Company and United Brotherhood of Carpenters and Joiners of America, Local 502, 356 NLRB No. 113 (3/18/11).Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 21. Complaints About Pay or Benefits • Presentation of grievances clearly protected • In considering whether “intemperate” language is protected, Board considers • Place of conversation • Subject matter • Nature of the outburst • Whether the outburst was provoked • Very subjective standard: courts and Board(s) disagreeFisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 22. Discussion Of Pay & Benefits With Other Employees Employees have the right to discuss their pay with other employees Automatic Screw Products Co., 306 NLRB 1072 (1992) See also Jeannette Corp. 217 NLRB 653 (1975) [enforced by 3d Circuit 1976]Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 23. Disclosure Of Information To Outside Parties • Employees have a limited right to discuss their pay and benefits with third parties • They can discuss them with unions or others who may help them negotiate or improve them Long’s Drug Stores Co., 347 NLRB 500 (2006)Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 24. Disclosure Of Information To Outside Parties • Rules declared unlawful: • Release of “any confidential information” Cintas Corp. 344 NLRB 943 (2005) [enforced by DC Circuit 2007] • Release of “any and all information regarding business, employees … conducted in this office” Inter-disciplinary Advantage Inc. 349 NLRB 480 (2007) [enforced by 6th Circuit 2008]Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 25. Enlisting Support Of Outside Parties • Employees have a right to bring employment- related concerns to the attention of third parties: • A news reporter • Customers • State or federal agenciesFisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 26. Enlisting Support Of Outside Parties • Employees have a right to bring employment-related concerns to the attention of third parties UNLESS: • Disparaging employer’s product or services in a way that meets the “disloyalty-indefensibility” standard of Jefferson Standard or • Remarks are defamatory and made with knowledge of their falsity or in reckless disregard of the truth.Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 27. Promoting Legislation • Circulation of literature urging employees to vote against proposed amendment to state constitution and to lobby for a higher minimum wage was protected • At some point the relationship between the activity and the workplace becomes “too attenuated” • Court defers to NLRB to “find the line” Eastex Inc. v. NLRB, 437 U.S. 556 (1978)Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 28. Promoting Legislation • Participating in a protest opposing increased restrictions and penalties on employers who hire illegal workers is for “mutual aid and protection” and thus protected • GC-08-10 (July 22, 2008)Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 29. Filing NLRB Charges Or Litigation • Employees protected from retaliation by Sec. 8(a)(4) • In U-Haul of Southern California NLRB held a broad, mandatory arbitration policy was facially unlawful • GC 10-06 (June 16, 2010)Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 30. Behavioral Rules • NLRB found unlawful rule forbidding employees from “making false, vicious, profane or malicious statements toward or concerning the Hotel or any of its employees” • NLRB standard: does the rule reasonably tend to chill employees in the exercise of their Section 7 rights? • Very subjective standard Lafayette Park Hotel, 326 NLRB 824 (1998)Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 31. Recent Obama Board Decision Parexel International, LLC • 2-1 Board found that employer’s discharge of employee for complaints about wages and discrimination was unlawful • Board found that employer discharged employee in an unlawful pre-emptive strike • Employer’s conduct unlawful regardless of whether the initial conduct was concerted Parexel International, LLC , 356 NLRB No. 82 (January 28, 2011)Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 32. Recent Obama Board Decision Worldmark By Wyndham • 2-1 Board found that the employer unlawfully disciplined an individual employee when he questioned his supervisor, in front of a number of his co-workers, about a newly-promulgated dress code change Wyndham Resort Development Corp. d/b/a Worldmark by Wyndham, 356 NLRB No. 104 (March 2, 2011)Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 33. Recent Obama Board Decision Jurys Boston Hotel • Representation case • Board found 3 rules “objectionable” conduct: • Solicitation • Loitering • Limits on wearing insignia and buttons • Even though no evidence of enforcement Jurys Boston Hotel, 356 NLRB No. 114 (March 28, 2011)Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 34. Recent Complaint Against AMR • Company rule stated: Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing Company or the employees’ superiors, co- workers or competitors. • Employee posted disparaging remarks on Facebook about the company and her supervisor • Company fired the employee • NLRB issued a complaint alleging unlawful conduct • Case settledFisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 35. Other Recent Complaints Involving Social Media • Builders.com • ReutersFisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 36. Recent Complaint Regarding Boeing • Boeing opened a non-union plant is S.C. • Boeing’s President made anti-union comments • NLRB has filed a complaint to restore the work to union represented workers in the Northwest • Thousands of jobs and ≥ $1 billion at stakeFisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 37. Situations Where The Obama Board May Expand Employee Rights • Weingarten rights for unrepresented employees IBM Corp., 343 NLRB 301 (2006) • E-mail/internet The Register Guard, 351 NLRB 1110 (2007) • Rules prohibiting “disloyalty” Tradesmen International, 338 NLRB 460 (2002) • Rules prohibiting “profanity” Martin Luther Memorial Home, Inc. 343 NLRB 646 (2004)Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 38. Situations Where The Obama Board May Expand Employee Rights • Rules prohibiting “fraternization” Guardsmark, LLC, 344 NLRB 809 (2005) • Rules prohibiting “offensive” conduct Palms Hotel and Casino, 344 NLRB 351 (2005) • Rules regarding union buttons W San Diego, 348 NLRB 372 (2006) • Rules regarding union stickers Leiser Construction, LLC 349 NLRB 413Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 39. So, What Should You Do? • Continue building a “pro-employee” work place • Keep educating managers • Use your right of “free speech” • Review your employee handbook • Resolve employee grievances • Stay informed about developmentsFisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork®
  • 40. Fisher & Phillips LLPATTORNEYS AT LAWSolutions at W ork® Final Questions? D. Albert Brannen Fisher & Phillips LLP 1500 Resurgens Plaza 945 East Paces Ferry Road Atlanta, Georgia 30326 Direct: (404) 240-4235 Fax: (404) 240-4249 dabrannen@laborlawyers.com Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at W ork®

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