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2014 NLRB Update
- 1. NLRB Update Non-Union Companies Pay Attention Presented by Matt Austin 17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Austin@LaborEmploymentOSHA.com
- 2. Presented by Matt Austin 17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Austin@LaborEmploymentOSHA.com Noel Canning
- 3. Presented by Matt Austin 17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Austin@LaborEmploymentOSHA.com Current NLRB Mark Gaston Pearce Kent Hirozawa Nancy Schiffer Harry Johnson III Philip Miscimarra Richard Griffin, Jr.
- 4. Presented by Matt Austin 17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Austin@LaborEmploymentOSHA.com Notice Posting
- 5. Presented by Matt Austin 17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Austin@LaborEmploymentOSHA.com Ambush Elections
- 6. Presented by Matt Austin 17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Austin@LaborEmploymentOSHA.com Combatting Ambush Elections & Micro-Units
- 7. Presented by Matt Austin 17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Austin@LaborEmploymentOSHA.com Social Media
- 8. Presented by Matt Austin 17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Austin@LaborEmploymentOSHA.com Confidentiality
- 9. Presented by Matt Austin 17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Austin@LaborEmploymentOSHA.com Class Action Waivers and Mandatory Arbitration
- 10. Presented by Matt Austin 17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Austin@LaborEmploymentOSHA.com Recording Workplace Conversations
- 11. NLRB Update Non-Union Companies Pay Attention Presented by Matt Austin 17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Austin@LaborEmploymentOSHA.com
Editor's Notes
- Pearce “Senior” member, Began term 2010, Union lawyer, vision of extremely active rulemaking NLRB Hirozawa – Pearce protégé (repped unions 20 years in private practice in Buffalo and Pearce’s chief counsel at NLRB) Schiffer – Fmr GC AFL-CIO, before that Deputy GC UAW Johnson & Miscimarra – Management Lawyers Griffin – Fmr GC Operating Engineers, Fmr “illegally appointed NLRB Member”, Current RICO defendant
- Dead.
- Same one proposed in June 2011, implemented Dec. 2011, stalled in court / New Board withdrew legal challenges and re-issued same rules Electronic RC Petitions Representational hearings 7 days after filing RC petition ER to provide position statement on the union’s election petition, due at hearing. ER to identify any issues about composition of proposed bargaining unit, day, time, and place of the election, and other election-related matters. Any issues omitted by the employer from its statement would be waived by the employer and may not be raised later. NLRB hearing office can deny right to file post-hearing brief (w/ legal citations, support) Excelsior list issues: ER to provide directly to union w/in 2 days of direction of election, now includes email addresses and telephone numbers. NLRB hearing officer limits evidence to issues concerning representation; questions of inclusion/exclusion of certain employees resolved post-election, if necessary Elections 10-21 days after RD’s direction of election Limits an employer’s ability to communicate with employees Are Front-Line Supervisors in BU or not? ULP if treated like management and in BU ERs who have not determined appropriate BUs before petition screwed No more urgent time to start union avoidance training than now New rules to take place sometime after April 7th; challenges expected
- Micro-units & NLRB’s “overwhelming community of interest” standard are here to stay. Persuader rules and quickie ambush elections are right around the corner. An aggressive pro-union NLRB will make sure that 2014 is the year that unionization proliferates. Companies wanting to remain union free must at least do the following immediately: Examine your organization to determine which job classifications or departments share skill levels so that they can be combined to make broad identifiable groupings. Flatten your management organizing so that more employees report to the same managers. Develop incentive plans or productivity measurements that cover the larger grouping. Cross-train employees in the larger group so that they can move easily across traditional job classifications and departments. Establish compensation grids and promotional opportunities that are common for all employees in the larger unit. I know this is asking a lot and most companies think it is problematic and disruptive to the way they’ve always done business. But believe me, negotiating and administering a union contract and dealing with a union business agent is much more problematic and disruptive. Clients who have preemptively contacted me to help examine their company’s organization charts for union susceptibility are light years ahead of companies who think that their workers won’t go union. It only takes a few workers – literally 2 or 3 friends can get together – to get a union into your workplace.
- In recent interview Chairman Pearce favorably noted the widespread publicity the Board received from its social media decisions and also hinted that the Board could announce entirely new social media standards in the future, which should give employers little comfort. Rules of Thumb Employer policies that generally prohibit the use of social media to compromise the privacy or confidentiality of others, or that prohibit posting anything that employees would “not want their manager to see” or that might “put their job in jeopardy,” will not pass scrutiny “making disparaging or defamatory comments” about the company, its officers, directors, customers, partners, or products “engaging in negative electronic discussion” during company time banned union activities during breaks “even if your social media conduct is outside of the workplace and/or non-work related, it must not reflect negatively on Georgia Pacific’s reputation, its products, or its brands.” The Board will approve social media policies that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that the policy limitations could not reasonably be construed to prohibit activity protected by Section 7 of the National Labor Relations Act (NLRA). Chairman Pearce’s comments about potential new social media standards should be concerning to employers. The Board has several social media cases currently pending, and the Chairman stated that the Board would be issuing a large number of decisions involving social media during 2014.
- Policies in Handbooks, i.e. “don’t discuss wages” “don’t discuss this situation or discipline with others” Workplace Investigations, i.e. “don’t talk about this while we’re investigating the situation” “No Gossip Policies” Unlawful: employment agreement requiring EEs to maintain confidential all proprietary and confidential information defined as "personnel lists, rosters, personal information of co-workers, managers, executives and officers; handbooks, personnel files, personnel information such as home phone numbers, cell phone numbers, addresses and email addresses." Unlawful: social media policy prohibiting employees from blogging, entering chat rooms, posting messages on public websites, or otherwise disclosing "company information" that has not already been disclosed as a public record.
- Class Action Waivers – unlawful; but courts say lawful. NLRB’s position: just 1 or 2 courts, not yet the binding precedent. Mandatory Arbitration – unlawful; Plaintiff employment lawyers starting to become savvy to filing ULPs long with employment based lawsuits
- Whole Foods Policy prohibited recording conversations in the workplace without prior approval Policy intended to eliminate the “chilling effect” on expression of views when one person is concerned that his or her conversation is being recorded Policy reminded workers of Whole Foods’ open door policy Policy applied only during working hours on Whole Foods’ property & parking lot, not while EEs on break Employee could be disciplined / terminated for violating this policy Judge said OK since rule not implemented in response to any union activity