HRACO 2012 Labor Law Update

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  • Most laws evolve consistently over years, i.e. discrimination (initially did not cover any harassment, then covered quid pro quo but not hostile environment, then opposite sex, now much broader)NLRA has very few amendments since 1935. Administered through ‘reasonable interpretation of NLRB’Sitting president’s party has 3 of 5 seats (3 of 4 today, 3 of 3 after December), ‘reasonable interpretation’ changes a lotEmployers in compliance one year can be violating the law the next year.Weingarten a favorite flip flopper: Only for union members, Clinton says all, Bush II says only union members, surprised still that way with Obama
  • President Obama appointed three new Board Members to the NLRB in Jan ‘12without the Senate’s approval. Republican Senators say this is not allowed and are challenging the appointments as unconstitutional. So whether any NLRB 2012 decisions are valid will be determined in the months ahead.
  • Violates Section 7 of NLRA to have employees sign arbitration agreement for joint, class, or collective actionsIssued on Becker’s final day (but day ended at noon); Hayes recused himself; was 2-0 vote; Did Board have quorum?
  • Field supervisors are permitted to encourage workers to vote in favor of a union despite long-standing rules to the contrary. The NLRB felt that the supervisors in question did not have enough authority to speak on management’s behalf and were thus treated as non-managerial employees. (DIRECTV Holdings, LLC, 357 NLRB No. 149, Dec. 2011)
  • Initial rule required all employers to hang a poster telling workers of their right to organize a unionOne judge said NLRB can issue such a rule, but had problem with the penalty for not posting it.Another judge said NLRB cannot issue such a rule to beginning withNLRB appealed and oral arguments were held in Sept. Expect a decision around end of 12/beginning of 13Importance: if rule upheld, it’s a huge endorsement for NLRB’s ability to engage in “rule making”
  • Ruleviolates NLRA because itcould confuse employees into believing that they could not engage in union solicitation during breaks and meal periods. According to the NLRB, “working hours” now means time when you are at work, not time spent actually working. (Hyundai American Shipping, Inc., 357 NLRB No. 80, Dec. 2011)
  • The Board made it much more difficult for employees to challenge a union’s status as their exclusive bargaining representative after an employer voluntarily recognizes a union (Lamon’s Gasket Co., 357 No. 72, Aug. 2011) or after a company purchases a unionized company (UGL-UNICCO Service Co., 357 NLRB 76, Aug 2011)
  • Return to the old wayOver time units tried to become wall to wall; consistency, one union rules supremeResulted in decreased unionization rates (easier to organize 7 than 350)Micro units have always been around, just under utilized and easier to avoid
  • Set to take effect on April 30, 2012. Time period bt filinga petition foran election and the holding of the election reduced from the standard ~45 days to 7-10. Statistics =less time employers have to campaign against union, the more likely the employees are to vote in favor of union representation.
  • Unions believe there is a misuse of IC by employers seeking to avoid unionizationRoadway = employees (degree of $ support from company, display Roadway logo on truck, required attendance, set drivers schedules)St. Joseph’s News-Press = IC (Liebman Dissent) (ICs controlled/subcontracted routes, had employees, no training from News)Current Bd likely to follow Liebman’s dissent and give more weight to “economic dependence” and “relative bargaining strength”Liebman’s view has significant practical impact across industry lines; Many IC relationship will not withstand Bd scrutinyReview IC relationships
  • State law Donning and Doffing claims preempted by LMRAPs claim denied $ for time spent donning and doffing, brought FLSA lawsuit and State law claimFLSA claim not affectedState claim preempted by LMRA bc CBA governed when time spent donning/doffing was compensable So have to go through grievance/arbitration procedure, not state courtSmall nuance, but precedent that state wage claims are trumped by CBA
  • ER violated NLRA by terminating the wife of a man who was seeking to organize the company’s 200 drivers. Wife's supervisor relayed the CEO's message that the plant would shut down if it was unionized and inquired about her husband's attempts to organize.  Supervisor even asked the wife to discourage her husband's organizing efforts. She refused and was terminated on the following day.Wife wasreinstated and made whole.
  • Eleventh Circuit Reminds NLRB It Is Obligated To Follow Court Orders TooGimrockConstruction, Inc. The Court saidBoard cannot modify a court order, incl requiring more specific behavior by an employer.1995 Gimrock employees strike,replaced. When employees agreed to return to work, the employer refused to reinstate them, claiming that the employees engaged in an unlawful jurisdictional strike. After years of litigation, the NLRB and the Eleventh Circuit ordered the employer to reinstate the employees with backpay and meet with them for bargaining.On a subsequent additional appeal, the NLRB ordered the employer to meet with the union no less than 16 hours a week for bargaining. The Eleventh Circuit previously had not established a specific number of hours that the parties were required to meet.The employer then refused to comply with the NLRB’s orderCourt refused to enforce Bd’s order: “Once issued, only this court had the power to modify its order and, for example, require Gimrock to meet with the union at set times.” The NLRB had no authority to modify the Court’s more general order simply requiring the employer to bargain with the union. The Court also noted that if the Board had thought it appropriate to order Gimrock to meet at specific times, it could have petitioned the Court for such a modified order. Importantly though, without such a modified Court order, the Board had no authority to require the employer to do anything more than the Court originally required.
  • Explain Dues CheckoffSeparate contract between employee and unionWhat happens if ER continued deducting dues from members who resign from union?Complaint issued: ER liable for deducting, Union liable for accepting – but Complaint dismissed w/o resolutionCheck your checkoffs – make sure employees can withdraw with ease (not only during hiatus, renewal period, etc.)
  • Board found employer (OS Transport) violated NLRA by threatening, discriminated, and fired employees engaged in union organizing.Normal penalties assessed (reinstatement, backpay, post a notice)ER also had to read the notice aloud to every workerUsed to be post a notice / mailbox / email / intranet / all languages / read aloud
  • New language in standard settlement agreement: 14 days after notice of non-compliance, Board can re-issue complaint, answer is waived, Board wins, no chance at appeal. Really bad for employers.Don’t agree to this language if: 1) questions of law exist, 2) employer in ongoing battle with union and add’l ULPs likely, 3) disputed remedy – boilerplate gives NLRB ability to include whatever remedy it wants
  • Costco Case – employees in organizing drive, ULPs filed, all ULPs dismissed, handbook policies (social media) found to violate NLRABoard asking for handbook whenever ULP is filed, even though not related to charge; seeking to find violations of Section 7Most handbooks violate the new standardsAnything that could restrict workers ability to discuss wages, terms, conditions of work with union organizer = badDisclaimer saying that handbook does not intend to impede on violate Section 7 rights not helpful
  • “Voice your complaints directly to your immediate supervisor or to human resources through our ‘open door’ policy…Complaining to your fellow employees will not resolve problems” allegedly prohibited employees from speaking to co-workers about terms and conditions of employment. (Hyundai American Shipping, Inc., 357 NLRB No. 80, Dec. 2011)
  • Discussing private matters of union members and other employees, defined to include sick calls, leaves of absence, FMLA call-outs, ADA accommodations, and workers comp issues violates employees Section 7 rights.
  • Sharing any “sensitive information” with people outside the organizing, including membership, payroll, confidential financial, credit card numbers, social security numbers, employee personal health information, or employees names, addresses, telephone numbers, and email addresses violates employees Section 7 rights.
  • Only OK if 1) witness needs protection, 2) Evidence at risk of being destroyed, 3) Testimony in danger of being fabricated, and 4) Need to prevent a cover up
  • Electronically posting statements that damage the Company or damage any person’s reputation violates employees Section 7 rights. Broad enough to cover Facebook, Twitter, etc., despite social networking sites not referenced in the policy.
  • A policy that prohibited “walking off the job and/or leaving the premises during working hours without permission” violates 8(a)(1) because it could reasonably be construed as prohibiting Section 7 activity.
  • First official Board Case September 28thBd struck down policy that prohibited employees from making disparaging comments about employer through social media Echostar TechnologiesCostco case from before, “employee be aware that statements posted electronically (such as to online message boards or discussion groups” that damage the company, defame any individual, or damage any person’s reputation or violates the policies outlined in Costco Employee Agreement may be subject to discipline, up to and including termination of employment.”
  • NLRB Guidelines = what GC thinks Board should do, not what Bd will do, not what courts will do.Board provided “model” social media policy, but it’s weak“Use your best judgment and exercise personal responsibility” “If you are about to engage in something that makes you even the slightest bit uncomfortable, don’t do it.”Policies Can:Prohibit posts that violate workplace policies (but do those policies violate the NLRA?)Prohibit disclosure of confidential trade secrets, health privacy rulesProhibit vulgar, obscene, threatening, intimidating, harassing comments (within reason and context)Prohibit comments on behalf of the employerRequire disclaimers when posts involve employers products or services
  • HRACO 2012 Labor Law Update

    1. 1. Is Your Head Spinning? If Not it Should BeOverview of Recent & Proposed NLRB Changes Presented by Matt Austin 17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    2. 2. Traditional Labor Law is Different From Other Employment Laws17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    3. 3. Status of New Board Member Appointments17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    4. 4. Employee Arbitration Agreements that Violate the National Labor Relations Act17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    5. 5. Field Supervisors as Union Recruiters17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    6. 6. Do Not Hang the Poster17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    7. 7. Cannot Require Employees to Only Perform Work During Working Hours17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    8. 8. Challenging Union Status After Employer Voluntarily Recognizes the Union17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    9. 9. Micro Bargaining Units17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    10. 10. Quickie Elections17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    11. 11. Independent Contractor Test17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    12. 12. Donning and Doffing17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    13. 13. Don’t Fire The Wife of a Union Organizer17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    14. 14. NLRB Cannot Mandate Bargaining 16 Hours per Week17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    15. 15. What Does Your Dues Checkoff Say?17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    16. 16. Story Time Courtesy of The National Labor Relations Board17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    17. 17. Hazardous New Boilerplate Settlement Language17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    18. 18. Personnel Policies17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    19. 19. At Will Policies17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    20. 20. Open Door Policy17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    21. 21. Discussing Private Matters17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    22. 22. Sharing Sensitive Information17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    23. 23. Confidential Workplace Investigations17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    24. 24. Electronic Posting Policy17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    25. 25. No Walking Off the Job17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    26. 26. Social Media17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    27. 27. If at First You Don’t Succeed, Issue Social Media Guidance Memoranda Number Three17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    28. 28. Any Questions?17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com
    29. 29. Is Your Head Spinning? If Not it Should BeOverview of Recent & Proposed NLRB Changes Presented by Matthew Austin 17 South High Street, Suite 810, Columbus, Ohio 43215 | P: 614.285.5342 | Matt.Austin@Austin-Legal.com

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