Navigating the legal landscape in 2015

1. Title Goes Here
Presented By:
Howard Rubin
NAVIGATING THE LEGAL LANDSCAPE IN 2015
Columbia Basin SHRM – February 18, 2015

2.  6.7% of private employer’s employees were
union members in 2013.
 Limit on NLRB’s relevance?
Non-Unionized Employers
9 . 4
9 . 0
8 . 5
7 . 9
7 . 4
7 . 6
6 . 9 6 .9
6 . 6 6 . 7
9 . 5
9 . 7
1 0 . 2
1 0 . 4
1 0 .9
1 1 . 2
1 1 . 5
1 1 . 9
1 2 . 1
1 2 . 4
1 2 . 9
1 5 . 5
1 3 . 4
1 4 . 6
1 4 . 0
5 .0
6 .0
7 .0
8 .0
9 .0
1 0 .0
1 1 .0
1 2 .0
1 3 .0
1 4 .0
1 5 .0
1 6 .0
'8 4 '8 5 '8 6 '8 7 '8 8 '8 9 '9 0 '9 1 '9 2 '9 3 '9 4 '9 5 '9 6 '9 7 '9 8 '9 9 '0 0 '0 2 '0 4 '0 6 '0 8 '1 0 '1 1 '1 2 '1 3

3. NLRB’s Jurisdiction
 NLRB’s Jurisdiction = private employers who
engage in interstate commerce.
 How does the NLRB impact non-unionized
employers?
– Overzealous interpretation of rules and policies.
– Overzealous interpretation of Protected
Concerted Activity (PCA).
– Related to wages, hours, and working conditions
– including complaints about the employer or
management
– www.nlrb.gov/concerted-activity
NLRB’s Jurisdiction

4. Pertinent NLRA Sections
 Section 8(a)(1) – Cannot interfere with, restrain
or coerce employees in the exercise of Section
7 rights.
 Section 7 – Employees shall have the right to:
– self-organization
– form, join, or assist unions
– bargain collectively
– engage in PCA
– refrain from these activities

5. PCA: Social Media
 Is clicking on Facebook a
protected concerted activity? “YES”
 Expression of support “was sufficiently meaningful
as to rise to the level of PCA.”
Three D, LLC d/b/a Triple Play Sports Bar and
Grille, 361 NLRB No. 31 (Aug. 22, 2014).

6. PCA: Getting Statements from Coworkers
 Seeking statements from co-workers to support a sexual
harassment complaint is PCA.
 “[C]oncertedness is not dependent on a shared objective
or on the agreement of one’s coworkers with what is
proposed.”
 “An injury to one is an injury to all.”
Fresh & Easy Neighborhood Market, Inc., 361 NLRB
No.12 (August 11, 2014).

7. What Happened to Confidential
Investigations?
 NLRB held unlawful the employer’s routine practice of
asking employees involved in investigations not to
discuss them with coworkers.
 Requesting confidentiality of the investigation is allowed
only if the company demonstrates it is necessary to a
legitimate business interest
 Must first show legitimate business justification
 Protect witness
 Preserve testimony
 Prevent a cover-up
 Another legitimate business interest
Banner Health, 358 NLRB No. 93 (July 30, 2012)

8. What Happened to Confidential
Investigations?
 Determine confidentiality on a case-by-
case basis.
 Circumstances must justify confidentiality
(e.g., witnesses need to be protected,
evidence is in danger of being destroyed,
testimony is in danger of being
fabricated, or there is a need to prevent a
cover-up).
 KEY: No blanket confidentiality
requirements.

9. Employee Handbooks
Remember: Employers may not promulgate a rule
that “reasonably tends to chill employees” exercise
of PCA.

10. The Legal Standard
 Explicit restrictions
 Implicit restrictions
(1) the rule is reasonably construed
to prohibit Section 7 activity;
(2) the rule was promulgated in
response to union activity; or
(3) the rule has been applied to
restrict Section 7 rights.

11. At-Will Disclaimer/Acknowledgement
I agree that the at-will employment relationship
cannot be amended, modified, or altered in
any way.
UNLAWFUL
American Red Cross Arizona Blood Services Region, 28-
CA-23443 (Div. of Judges, Feb. 1, 2012)

12. At-Will Disclaimer/Acknowledgement
Only the Company President is authorized to
modify the Company’s at-will employment policy or
enter into any agreement contrary to this policy.
Any such modification must be in writing and
signed by the employee and the President.
LAWFUL
Windsor Care Center, 32-CA-087540 (NLRB Div. of Advice
Memo, Feb. 4, 2013)

13. I Don’t Get No Respect
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 Company].
UNLAWFUL
Karl Knauz Motors, Inc., 358 NLRB No. 164 (Sept. 28, 2012)

14. I Don’t Get No Respect
You may not make disparaging or defamatory
comments about [Company], its employees,
officers, directors, vendors, customers,
partners, affiliates or our, their, services.
UNLAWFUL
Dish Network Corp., 359 NLRB No. 108 (2013)

15. I Don’t Get No Respect
Employees that participate in or instigate gossip about
the company, an employee, or customer will receive
disciplinary action….Most people involved in gossip
may not intend to do harm, but gossip can have a
negative impact as it has the potential to destroy a
person’s or organization's reputation and credibility.
UNLAWFUL
Laurus Technical Institute v. Joslyn Henderson, Case 10-
CA-093934 (Dec. 11, 2013)

16. I Don’t Get No Respect
[Employees] will not make negative comments
about our fellow team members…[and
employees] will not engage in or listen to
negativity or gossip.
UNLAWFUL
Hills and Dale Hospital and Danielle Corlis, Case 07-CA-
053556 (April 1, 2014)

17. I Don’t Get No Respect
 A barista was discharged after he told an assistant
manager “You can go f*** yourself” when the manager
asked about the barista’s union button.
 The NLRB ruled that Starbucks had fired the barista
because of his union activities in violation of the NLRA.
 The Seventh Circuit criticized the NLRB for not
considering the employee’s use of profanity in front of
customers.
 The NLRB punted on this issue and found the discharge
unlawful on other grounds.
Starbucks, Inc., 360 NLRB No. 134 (June 11, 2014).

18. I Don’t Get No Respect
 Auto salesman yells at the dealership owner
that he was “stupid”, a “f***ing crook”, and “an
a***hole.”
 Dealership owner also warned that if the
salesmen was fired, the owner “would regret it.”
 NLRB found that employer provoked the
employee and his discharge was illegal.
Plaza Auto Ctr., Inc., 360 NLRB No. 117 (May 28, 2014).

19.  Prohibition on disclosing names, addresses,
phone numbers, non-company e-mail
addresses of other employees and employee
lists.
Unlawful
Tiffany & Co., No. 01-CA-111287 (August 5, 2014).
Confidentiality Policies

20. You also need to protect confidential information when
you communicate it.
You should never share confidential information with another
team member unless they have a need to know the
information to do their job…
Don’t have conversations regarding confidential information
in the break room or in any other open area. Never discuss
confidential information at home or in public areas.
UNLAWFUL
Target Corporation, 359 NLRB No. 103 (Apr. 26, 2013)
Confidentiality Policies

21.  The National Labor Relations Board says
employees have a right to use employer email
systems
 To discuss unions and working conditions
 During non-working time
 Applies to all unrepresented and represented
employees
Purple Communications, Inc., No. 21-CA-095151
(December 11, 2014)
E-MAIL POLICIES

22. What Should Employers Do Now?
 Advise employees their email is monitored
and they have no expectation of privacy
 Establish a monitoring procedure and
protocol
 Determine extent to which employees are
currently using company equipment for non-
work purposes (football pools, etc.)
 Train supervisors

23. NLRB Teams Up ….
 OSHA will now notify all complainants who file
untimely OSHA whistleblower charges of their
right to file a ULP with the NLRB.
Office of General Counsel Memorandum OM 14-
60 (May 21, 2014).

24.  Pre-election hearing can be held within 8
days of Union’s filing of Petition.
 Election as soon as 10 days after
Petition is filed.
 Hearing required only on question of
appropriateness of unit – i.e., issues
related to supervisory status deferred.
Ambush Elections

25. Takeaways
 Review and revise policies.
 Train your supervisors on Protected Concerted
Activity developments.
– Remember: “Section 7 is as broad as your
imagination.”
 Review business structure/staffing
arrangements.
 Expect the unexpected.
– Longstanding precedent is no deterrent to
the current Board.