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Navigating the NLRB


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Navigating the NLRB

  1. 1. Navigating the NLRB’s IncreasinglyAggressive Regulation of PersonnelPolicies in the Non-Union WorkplaceThursday, February 28, 2013Robert Nichols, Partner and Leslie Selig Byrd, Partner
  2. 2. The National Labor Relations Board –The Philosophical Outlook of theCurrent Members • By Design, the Board is a Reflection of the Administration’s Politics – Members and General Counsel are appointed by the President • Current Makeup of the Board – Mark Gaston Pearce – former union attorney – Sharon Block – former Senate staffer for the late Senator Edward Kennedy – Robert Griffin – former union attorney • Acting General Counsel Lafe Solomon – President Obama appointee • Significance of Current Dispute Over Recess Appointments 2
  3. 3. Section 7 of the NLRA –The Vehicle for BoardRegulation of PersonnelPolicies 3
  4. 4. The Text of Section 7“Employees shall have the right to self-organization, toform, join, or assist labor organizations, to bargaincollectively through representatives of their own choosing,and to engage in other concerted activities for thepurpose of collective bargaining or other mutual aid orprotection…” 4
  5. 5. The Significance of Section 7• Protects private sector employees in both union and non-union workplaces• Guarantees employees among other rights: – to discuss wages and benefits and other terms and conditions of employment with co-workers or third parties including unions, media, customers, and others – to take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints directly with the employer, a government agency, a union, the media, or other third parties• In exercising Section 7 rights, employees do not necessarily lose the protection of the law simply because their concerted activities are, in the view of the employer, discourteous, divisive, disparaging, or even offensive or profane 5
  6. 6. When Do Personnel PoliciesViolate the NLRA?• Section 8(a)(1) of the NLRA prohibits employers from interfering with employees’ exercise of Section 7 rights• “An employer violates Section 8(a)(1) when it maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights.”• If the rule or policy explicitly restricts Section 7 rights, it is unlawful.• If it does not, the existence of a violation is dependent upon a showing of one of the following: – (1) employees would reasonably construe the rule’s language to prohibit Section 7 activity; – (2) the rule was promulgated in response to union activity; or – (3) the rule has been applied to restrict the exercise of Section 7 rights. 6
  7. 7. Policies Calling for Courtesy,Respectfulness, Or OtherwiseEstablishing Civility Rules OftenViolate Section 7 7
  8. 8. Karl Knauz BMW,Sept. 28, 2012• The facts of the case itself concerned social media issues• However, in its decision, the Board struck down a handbook policy that did not simply apply to social media, but applied to employee conduct generally• The policy read: – “Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”• In a 2-1 decision, the Board found the mere fact this courtesy policy was maintained in the employer’s handbook constituted a violation of the NLRA 8
  9. 9. Karl Knauz BMW,Sept. 28, 2012 (cont’d)• “We find the ‘Courtesy’ rule unlawful because employees would reasonably construe its broad prohibition against "disrespectful" conduct and "language which injures the image or reputation of the Dealership" as encompassing Section 7 activity, such as employees protected statements—whether to co-workers, supervisors, managers, or third parties who deal with the Respondent—that object to their working conditions and seek the support of others in improving them.”• The majority noted there was “nothing in the rule, or anywhere else in the employee handbook, that would reasonably suggest to employees that employee communications protected by Section 7 of the Act are excluded from the rules broad reach.” – In other words, neither the “courtesy” rule itself nor the handbook generally included any disclaimer indicating that its provisions are not intended to limit Section 7 rights 9
  10. 10. Karl Knauz BMW,Sept. 28, 2012 (cont’d)• Majority insisted that its decision is not intended to ban all good conduct rules rather the key as to why the rule violated Section 7 rights was that: – “an employee reading this rule would reasonably assume that the [employer] would regard statements of protest or criticism as ‘disrespectful’ or ‘injur[ious] [to] the image or reputation of the Dealership.’"• Majority made note of other examples of civility-type work rules that might violate Section 7 rights: – Prohibition on “derogatory attacks” on company representatives – Prohibition on “negative conversations” about co-workers or managers – Prohibition on making “false or misleading statements” about the company or co-workers 10
  11. 11. Costco, Sept. 7, 2012• Handbook provision prohibited employee communications “that damage the Company” or “ defame any individual or damage any person’s reputation”• The Board found the policy unlawful• The “broad prohibition…clearly encompasses concerted communications protesting the [employer’s] treatment of its employees.”• While these rules specifically related to electronic communications, the Board’s analysis would apply to rules regulating any communications, whether they be electronic or otherwise• Board once again noted the absence of a disclaimer as supporting the finding of a violation 11
  12. 12. TT&W Farm Products,Sept. 11, 2012• Handbook provision prohibited employees from “bearing false witness” again the Company• Board pointed out in prior cases the agency has taken the position that having a rule that employees could be punished for making merely “false” statements about the employer, supervisors or co- workers violated employees’ Section 7 rights• Board takes the position that employees may be chilled in their exercise of their Section 7 rights by such a rule – For example, an employee may be afraid to advocate a position about wage or benefit levels for fear that the employer may label the assertion as “false” and punish the employee• On the other hand, the Board has approved of rules that provide that employees can be punished for making “maliciously false” statements about the company, supervisors or co-workers 12
  13. 13. Takeaways Concerning Civility –Related Work Rules• Avoid broad rules or policies imposing generalized prohibitions on disrespectful, discourteous, defamatory, false, misleading, harmful, or otherwise uncivil conduct• Remember you do not need a work rule, particularly in a non-union environment, to discipline an employee for reprehensible behavior• Also, you can still maintain more narrowly tailored written rules about unacceptable behavior - including, for example, specific prohibitions on: – Unlawful harassment or discrimination – Threats of violence – Falsification of company records, such as time sheets• Include a disclaimer in the policy at issue or, at least, in the handbook or manual at issue, explaining that nothing in the document is intended to restrict employees’ rights under Section 7 of the NLRA or any other law 13
  14. 14. Confidentiality Agreements orPolicies That ArguablyEncompass “Personnel” or“Employee” Information MayViolate Section 7 14
  15. 15. Flex Frac Logistics,Sept. 11, 2012•All employees of this Fort Worth-based company were required tosign an agreement concerning confidentiality of company informationthat provided: “Employees deal with and have access to information that must stay within the Organization. Confidential Information includes, but is not limited to, information that is related to: our customers, suppliers, distributors; [our] organization management and marketing processes, plans and ideas, processes and plans; our financial information, including costs, prices; current and future business plans, our computer and software systems and processes; personnel information and documents, and our logos, and art work. No employee is permitted to share this Confidential Information outside the organization, or to remove or make copies of any [of our] records, reports or documents in any form, without prior management approval. Disclosure of Confidential Information could lead to termination, as well as other possible legal action.” [Emphasis added.] 15
  16. 16. Flex Frac Logistics,Sept. 11, 2012 (cont’d)• The Board concluded that the agreement violated Section 7 because it restricted the “disclosure” of “personnel information and documents”• Non-supervisory employees have a broad right to discuss wages, benefits and other terms and conditions of employment• Any agreement or policy that might reasonably lead an employee to believe that right has been restricted by the employer violates the NLRA• The Board found that the fact that the agreement only restricted disclosure to those “outside the organization” did not save the agreement from violating the law – Non-supervisory employees have the right to speak with not only co-workers, but also union organizers and other outsiders about terms and conditions of employment 16
  17. 17. DIRECTV, Jan. 25, 2013• Company handbook included provision entitled “Communications and Representing DIRECTV” that, in part, read: “Do not contact the media”• Employees have the right under Section 7 to communicate with the media about labor disputes, including disputes or concerns over unionization as well as matters related to wages, benefits or other terms or conditions of employment• Board found that “employees would reasonably construe the unequivocal language in the ... rule as prohibiting any and all such protected communications to the media regarding a labor dispute.”• Board pointed out that the company made no effort in the language of the rule to distinguish between acceptable and unacceptable communications to the media 17
  18. 18. Takeaways ConcerningConfidentiality Agreements/Policies • Include no references in any confidentiality agreement/policy to information pertaining to “employment,” “employees,” ”personnel,” “compensation,” or similar terms or concepts • Scrutinize the agreement/policy for any other language that arguable might lead employees to believe it restricts their right to discuss terms or conditions of employment • Give examples of what the agreement/policy does cover so as to establish its limited scope. For example you may reference: – Intellectual property – Confidential customer information – Business development and strategic plans • With media rules, you can restrict employees from communicating “as a representative of the company” or “on behalf of the company” • Consider including an appropriate disclaimer 18
  19. 19. Board Limits Employers’Rights to Maintain Confidentialityof Internal Investigations
  20. 20. Hyundai America Shipping Agency(2011)• NLRB ruled that a non-union employer’s practice of routinely advising its employees not to discuss ongoing internal investigation matters with their co-workers violated Section 8(a)(1) of the NLRA• Employer’s generalized concern with protecting the integrity of its internal investigation is insufficient to outweigh employees’Section 7 rights• FYI, in Hyundai, an employee was subject to discipline as a result of violating the employer’s oral confidentiality rule 20
  21. 21. Hyundai America Shipping Agency (2011)• Board rejected Hyundai’s justification (possibly belated) in a sexual harassment investigation: – desire to protect victim, witnesses & accused – Preserve confidentiality consistent with EEOC guidelines – Avoid potential defamation claims• Board found no evidence of any preliminary analysis of case- specific need for confidentiality 21
  22. 22. Banner Health System(July 30, 2012)• During the Hospital’s investigation of complaint involving procedures for the sterilization of medical devices, Human Resources suggested to employee that he not discuss matter under investigation with co-workers• Request for confidentiality was included in hospital’s standard “Introduction for all Interviews” instructions• There was no oral or written rule• There was no potential for discipline 22
  23. 23. Banner Health System(July 30, 2012) Applying and expanding Hyundai : •On case-by-case basis, before requiring confidentiality during an investigation, the Employer must conduct a preliminary evaluation of following factors: – whether witness needs protection; – whether evidence is in danger of being destroyed, – whether testimony is in danger of being fabricated: or – whether other reason warrants confidentiality. 23
  24. 24. Banner Health System(July 30, 2012)• NLRB extends Hyundai to “practice” of suggesting employees not discuss ongoing internal investigation matters with their co-workers• Even in the absence of a written or oral rule• Even in the absence of discipline or potential discipline• Employer’s generalized concern with protecting the integrity of its internal investigation is an insufficient business justification to outweigh employees’Section 7 rights. 24
  25. 25. Banner Health System(July 30, 2012) • Significant Implications to Employer’s Legal Obligations to Conduct Reasonable Investigations: – Sexual Harassment – Retaliation – Safety Complaints – FLSA Complaint – Etc. • Banner potential conflict with employer’s other obligations and no defense to tainted investigation 25
  26. 26. Banner Health System(July 30, 2012)• Former Member Hayes Dissenting: – It is axiomatic that, to violate the Act, an employers work rule must be an actual work rule with binding effect on employees. – Employer did not promulgate any rule at all; it merely suggested that employees not discuss matters under investigation; there was no threat of discipline.• Takeaway: Dilemma: A “blanket approach” to requesting confidentiality in every investigation is not permitted . . . Yet, employers must comply with duty to conduct thorough, reasonable & effective investigation• Consider preliminary written checklist genuinely evaluating nature of specific investigation 26
  27. 27. Board Further ComplicatesEmployers’ Ability to RegulateOff-Duty Access to Workplace
  28. 28. NLRB Long-Standing PrinciplesTri-County Medical Center, 222 NLRB 1089 (1976)•To be valid, an off-duty access policy must – Limit access solely to interior of facility and other work areas – Be clearly disseminated to all employees – Apply to off-duty employees seeking access for any purposes (not just those engaging in union activities)Lafayette Park Hotel, 326 NLRB 824 (1998) – In limited circumstances, employer may include exceptions to an access restriction for off-duty employees 28
  29. 29. NLRB Long-Standing Principles • Board duty to balance the competing interests of employee’s right to communicate with fellow employees at the workplace on their own time and employer’s private property interest in controlling access to property. • Recently, NLRB takes arbitrary, unreasonable position: • Unless NO off-duty access, policy violates Tri-County’s third prong. 29
  30. 30. NLRB’s 2011/2012 Reversal• Saint John’s Health Center (Dec. 30, 2011) – “Off-duty employees are not allowed access to interior of building or other work areas except to cafeteria and to attend Health Center sponsored events (e.g. retirement parties, baby showers).”• Sodexho Am. LLC (July 3, 2012) – “Off-duty employees no access to interior of Hospital or other work area except as patient or to conduct “hospital- related business” in “pursuit” of normal duties.• Marriott Int’l Inc. (Sept. 28, 2012) – “Off-duty” employees can only enter company property with supervisor permission, except parking areas & outside non- working areas. 30
  31. 31. Saint John’s – Sodexho - Marriott • NLRB Holds : ALL unlawful policies because did not prohibit off-duty access FOR ANY PURPOSE • Saint John’s: “Except for employer-sponsored events” = “You may not enter the premises off-duty unless we say you can” • Sodexho : “Except to conduct hospital-related business as directed by management” = same “unfettered discretion” • Marriott: “Subject to prior manager approval” = broad unlimited discretion to decide when and why 31
  32. 32. Marriot Int. (Sept. 28, 2012) • Example of NLRB Tortured Rationale in Marriott: – Rule “invites or compels” reasonable employees to believe that Section 7 activity is prohibited without prior management permission." – Employees would reasonably conclude they were required to disclose to management the nature of the activity for which they sought access – “a compelled disclosure that would certainly tend to chill the exercise of Section 7 rights.” – Find irrelevant non-discriminatory application of rule; no evidence of union animus or fact not limited to parking lot and non-work exterior areas. 32
  33. 33. Takeaways• Best Expressed by Member Hayes Dissenting:• “Because the majoritys decision continues this Boards dismantling of the careful balance between an employers right to control its property and an employees right to engage in Section 7 activity, I respectfully dissent.”• Third prong of the Tri-County test prohibits discrimination against union activity and does not require a blanket prohibition on all off-duty access. 33
  34. 34. Takeaways – Dissent Cont’d: – Requiring employers to prohibit all access in order to prohibit any makes it virtually impossible for an employer to draft an enforceable rule restricting off-duty employee access. • What if an employee forgets her medication at the workplace and faces a medical emergency if she cannot retrieve it? – Absent concrete examples of an exception the majority would find legitimate, the concept remains illusory and of no practical benefit to employers seeking guidance in this area. 34
  35. 35. Solicitation and DistributionRules: A Brief Refresher OnWhat Is Permissible 35
  36. 36. Solicitation: What You Can andCannot Prohibit• Under Section 7, non-supervisory employees have the right to engage in union organizing and related activities – even at work• However, an employer may impose certain limited restrictions• A policy prohibiting employees from engaging in solicitation during “working time” is facially valid• However, such a rule cannot be lawfully applied to what otherwise would be protected Section 7 activity, if the rule is not uniformly applied to essentially all solicitations. Therefore, the solicitation ban must be applied to such things as: – The sale of products for worthy causes (e.g., Girl Scout cookies) – Charitable fund-raising – Entrepreneurial efforts of individual employees (e.g., Amway, Avon) 36
  37. 37. Solicitation: What You Can andCannot Prohibit• Terminology is key: your rule must specifically restrict solicitations during “working time” – Policies phrased in terms of “work hours” or “company time” are viewed as unlawful by the Board because they can be construed to include breaks or meal periods • Employees must be free to solicit during formal or informal breaks from their duties• Special Rule for Retailers – Because of the unique nature of retailing, the Board permits that a retail business may ban both employee solicitation and distribution in the selling areas of stores even when workers are on their own time.• Special Rules for Hospitals and Certain Other Healthcare Providers – Solicitation may also be prohibited in “immediate patient care areas” 37
  38. 38. Distribution: What You Can andCannot Prohibit• When solicitation involves the distribution of literature or other written materials an employer may impose not only a temporal restriction but also locational restriction• Specifically, distribution may be prohibited, not only during working time, but also in working areas 38
  39. 39. Non-employee Access for Purposesof Solicitation or Distribution• The United States Supreme Court has concluded that, based on property rights, an employer has greater latitude to restrict solicitation and distribution by non-employees, such as non- employee union organizers• Generally, an employer may bar non-employee solicitation and distribution anywhere on its property, unless the employees are situated in a workplace such that they are beyond the reach of reasonable union efforts to communicate with them• However, if an employer allows other nonemployees onto the property to solicit, it cannot deny that same access to union organizers 39
  40. 40. Bulletin Boards• An employer can limit the use of bulletin boards to company business completely• However, that limitation must be absolute and must be strictly enforced – Employer cannot allow some personal use of bulletin boards by employees and then prohibit the use of those bulletin boards for union organizing 40
  41. 41. The Board’s Position on SocialMedia Policies: An Update 41
  42. 42. Actions by the Board Related toSocial Media Policies• Is now very clear that social media postings by employees that relate directly or indirectly to their jobs, co-workers, supervisors, or the employer itself, will, very often, be regarded as protected Section 7 activity• The General Counsel has now issued three reports offering guidance on what social media rules are impermissible• The last of those reports, issued in May 2012, is particularly important and instructive – The General Counsel considered six actual social media policies used by employers and found them all to include one or more unlawful provisions – Importantly, the General Counsel found that a modified policy issued by Wal-Mart did not include any provisions violating the NLRA 42
  43. 43. Actions by the Board Related toSocial Media Policies• Based on the Karl Knauz BMW and Costco decisions issued in 2012, it appears that the Board itself agrees with the General Counsel’s basic analysis with regard to social media policies• There is one significant apparent difference, however, in the analysis of the General Counsel and the Board as it relates to the value of a disclaimer included in the social media policy – In his guidance, the General Counsel suggests that disclaimers will generally not save an otherwise unlawful social media policy – In its Costco decision, however, the Board appeared to emphasize the significance of a savings clause in a social media policy instructing that the policy does limit Section 7 rights • “there is nothing in the rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule” 43
  44. 44. Some Practical GuidanceConcerning Social Media Policies• Is your company really well served by having a social media policy? – You can discipline employees for plainly unacceptable online behavior, such as disparaging a customer, violating copyright laws, engaging in sexual harassment, or threatening violence, without having a social media policy• If you are determined to have a policy: – Avoid broad courtesy or other civility rules – Avoid broad prohibitions on disclosure of company information – When including prohibitions, offer examples which illustrate that the prohibition is limited narrowly to very serious misconduct so that an employee could not wrongly assume it bars Section 7 activity• Include a disclaimer that expressly states that nothing in the policy limits activity protected by Section 7 of the NLRA 44
  45. 45. More Guidance Concerning SocialMedia Policies – Limit policy to key prohibitions such as employees must not: • disclose or misuse company intellectual property or true trade secrets and other confidential business information (remember to offer examples) • disparage customers or the company’s products or services • threaten violence • engage in unlawful harassment or discrimination • violate copyright and other laws • breach FTC rules by making posts about products/services without disclosing connection to the company • make posts in which they represent that they are speaking on behalf of the company 45
  46. 46. Impending Restrictions onEmployers’ Ability to RestrictEmployee Use of Company E-mail
  47. 47. The Register-Guard (2007)•Bush-Era Board controversial decision•Communications Systems Policy prohibited use of company e-mail forall non-job related solicitations•Register-Guard (a union employer) permitted personal e-mails (e.g.,joke, baby shower announcements) and United Way solicitations forCompany-sponsored campaign but prohibited e-mails on Section 7matters•An issue of first impression, Board upheld Register-Guard policy andheld that employees have no statutory right to use an employer’s e-mailsystem for Section 7 matters (e.g. notice of union rally).•Vigorous dissent: Broad ban on employee non-work-related e-mailcommunications presumptively unlawful absent special circumstances 47
  48. 48. The Register-Guard (2007)• Board theory -- Not all discrimination is unlawful; discrimination if “unequal treatment of equals.”• Absent union animus, unlawful discrimination is disparate treatment of activities or communications of a similar character due to union or other Section 7 protected status• Employer may distinguish between – charitable solicitations vs. non-charitable – solicitations of personal nature vs. for commercial sale of product – Invitations of personal nature vs. for an organization• Certainly may not permit employees to solicit for one union but not another; solicitations by anti-union but not pro-union employees 48
  49. 49. Roundy’s, Inc. (Nov. 12, 2010)• Curious springboard for Board’s attempt to invalidate Register- Guard.• Roundy presented common issue of whether employers can prevent non-employee union representatives from accessing an employer’s private property.”• Law is clear on issue: In Sandusky Mall (1999), NLRB held that if an employer permits an outside group to use its property, comparable access must be granted to union organizers• NLRB rare invitation to interested groups to file briefs• Acting GC Lafe Solomon response: Sandusky Mall should apply to ALL forms of access Register Guard should be overruled – Similar to his pronouncements on social media, argued that communications systems are indistinguishable from face-to-face conversations under NLRA. 49
  50. 50. Takeaway• Significant Risk: Apex of NLRB’s expansion of Section 7 to prohibit blanket rules banning work e-mail for personal use• Potentially violative of employer’s property interests and First Amendment implications of requiring employers to open up e-mail to facilitate speech• Reflective of Former Board Member Wilma Liebman dissent in Register Guard (“Only a Board that has been asleep for the past 20 years could fail to recognize that e-mail has revolutionized communication both within and outside the workplace.”)• Overturning Register Guard would provide union supporter’s broad and effective access to company e-mail systems. 50
  51. 51. Pitfall forFraternization Policies
  52. 52. Guardsmark, LLC v. NLRB,475 F3d 369 (DC Cir. 2007)• Guardsmark’s Policy: – “You must NOT fraternize on duty or off duty, date or become overly friendly with co-employees.”• NLRB Held: “Fraternize” could be interpreted as beyond dating and reach to prohibit fraternal discussions of terms and conditions of employment. 52
  53. 53. Takeaway• Narrowly define or avoid the term “fraternize.”• If the restriction could conceivably have a “chilling effect” on protected activity, the policy will be invalid. 53
  54. 54. Board Efforts to RegulateArbitration Policies andAgreements 54
  55. 55. D.R. Horton Case – BoardProhibition on Class-Action Waivers • What is a class-action waiver? – A provision in an employment arbitration policy or agreement requiring that all claims by employees be arbitrated by each employee individually and not by a group of employees as a class action or collective action • Why do employers want class-action waivers? – Class or collective actions are very expensive to litigate and involve the potential for very substantial damages – Plaintiffs’ attorneys are attracted to class and collective actions • The United States Supreme Court appears to favor the rights of parties to include class-action waivers – AT&T Mobility v. Concepcion – in this 2011 case, the Supreme Court, based on the Federal Arbitration Act, struck down a California law which prohibited class-action waivers in arbitration agreements. 55
  56. 56. D. R. Horton, NLRB finds Class-Action Waivers Violate Section 7• In this 2012 decision, the Board found that class-action waivers in arbitration agreements violate Section 7 of the NLRA• The Board adopted the view that bringing suit is a class-action constituted protected “concerted activity” by the employees• D. R. Horton has appealed to the Fifth Circuit Court of Appeals – The Court of Appeals heard oral arguments in the case earlier this month – A decision is expected later this year – Most labor attorneys expect that the relatively conservative Fifth Circuit, relying on Concepcion and other Supreme Court authority, will reject the Board’s ban on class-action waivers • However, nothing is certain • Notably, the Fifth Circuit has permitted briefing in the case on the recess appointment issue 56
  57. 57. Supply Technologies, LLC,Disclaimer in Arbitration Agreementis Critical • In its December 2012 Supply Technologies decision, the Board held that an arbitration agreement or policy violates Section 7 if it fails to include a disclaimer that expressly provides that employees retain the right to file charges with the Board under the NLRA • The arbitration policy at issue did include a disclaimer which read “[b]oth [the employer] and [the employee] can still file a charge or complaint with a government agency.” • The Board, however, concluded that this disclaimer was not adequately specific. – The Board complained that the disclaimer included no express reference to any “statute or government agency.” 57
  58. 58. A Specific NLRA Disclaimer inArbitration Agreements is Essential • Accordingly, a disclaimer that reads similar to the following may be appropriate: – “This arbitration agreement does not limit in any way employees’ rights to file charges or complaints with any federal, state or local governmental agency including, for example, charges with the National Labor Relations Board pursuant to the National Labor Relations Act.” 58
  59. 59. NLRB Judge Finds ThatConfidentiality Requirement InArbitration Agreement ViolatesSection 7 Rights• In July 2012 Advanced Services decision, an NLRB Administrative Law Judge found that a clause in an arbitration program providing that arbitration proceedings would be confidential violated the NLRA because it “chilled” employees Section 7 rights to communicate about terms and conditions of employment, including work-related disputes with the employer 59
  60. 60. Takeaways for Drafting ArbitrationPrograms •Class-Action Waivers : For many employers, continuing to include class-action waivers will make sense given the benefit of those provisions and the apparent rejection by the federal courts of the Board’s ban on those waivers (however, some risk remains until more definitive case authority is issued) •NLRA Disclaimer : employers should include an explicit disclaimer that specifically informs employees that they retain the right to file NLRA charges with the Board •Confidentiality: employers are well advised to eliminate confidentiality requirements from arbitration agreements 60
  61. 61. Grievance/Complaint ResolutionProcedures •As with arbitration policies, internal grievance, complaint resolution or open door procedures should be carefully written so as not to suggest that employees must, or are expected to, resolve their concerns through that procedure – For example, these kinds of policies should never include provisions that suggest that “employees should first attempt to resolve workplace concerns through this procedure.” – The policy should explicitly indicate it is a voluntary process that employee may, or may not, choose to utilize •Employers also need to be careful not to create grievance committees or other employee participation committees that may be viewed as a company-created “labor organization” in violation of Section 8(a)(2) of the NLRA 61
  62. 62. Board Refines Position withRegard to Dress CodeRules Relating to Insignia
  63. 63. Long Standing Board Law on DressCodes• London Memorial Hospital, 238 NLRB 704, 708 (1978) – Employees have a protected right to wear union insignia at work in the absence of "special circumstances.”• NLRB v. Baptist Hospital, 442 U.S. 773, 781 (1979). – In healthcare facilities, restrictions on wearing insignia in immediate patient care areas are presumptively valid, while restrictions on insignia in other areas of a hospital are presumptively invalid. 63
  64. 64. Saint Johns Health Center, (Dec.30, 2011) – Ban on RN ribbons stating, “Saint John’s RNs for Safe Patient Care” provided by union organizers violation 8(a)(1) – Hospital provided no special circumstances warranting ban (and discipline if violation) – Board rejected Hospital’s “detrimental and disruptive to patient care” defense especially in view of: • hospital-provided ribbon stating, “St. John’s mission is safe patient care” which was permitted in patient areas • prior permitted insignia including union and political buttons in patient areas – “Respect & Dignity” – “St. John’s –the Heart of Healthcare.” – May not selectively ban union insignia in patient areas without demonstrating necessary to avoid disruption of operations or disturbance to patients 64
  65. 65. Takeaway• Board is particularly protective of concerted rights relating to expressions of union support via insignias, t-shirts, buttons• Policies should be as narrowly tailored as possible to protect employer’s legitimate business interests.• Consistent, non-discriminatory enforcement of valid policies essential 65
  66. 66. Board Clarifies Positionon Acceptable At-WillDisclaimer Language
  67. 67. Restrictions on At-Will EmploymentPolicies• American Red Cross, No. 28-CA-234433 (NLRB Feb.1, 2012): “I agree that the at-will employment relationship cannot be modified in any way.” ALJ: Violation - interpreted as waiver of right to change at-will employment by acting concertedly• Hyatt Hotels, No. 28-CA-061114 (Complaint filed Feb 2, 2012) (Settled) “At-will employment cannot be altered, except for a written agreement signed by you or the President.” Violation -- Precludes possibility that policy could be modified by CBA signed by union.• NLRB theory: Disclaimer language that may be interpreted to preclude employees from seeking to change at-will status may “chill” employees from engaging in concerted activity 67
  68. 68. General Counsel Voice of Reason?• Acting GC Division of Advice provided more reasonable guidelines to evaluate At-Will Employment Policy• Lawful: “No representative of Company (except the President in writing) has authority to enter into any agreement contrary to foregoing “employment at will” relationship.” (Rocha Transportation/Mimi’s Café)• Unlawful: Policy requires employees to refrain from seeking (or “chills” employees from seeking) a change in at-will status (e.g., through union representation) or to agree that at-will status cannot be changed.• Takeaway: A carefully worded at-will employment policy will survive NLRB scrutiny and still serve the employer’s legal purposes 68