Michael VanDervort, Executive Director of CUE Inc. and former Manager of Labor Relations for Publix Super Markets, breaks down the role social media, the NLRB and unions can play in building or breaking workplace relationships. The Role Social Media, the NLRB and Unions Can Play in Building or Breaking Workplace Relationships

1. BOTTOM LINE HAPPINESS
THROUGH POSITIVE EMPLOYEE
RELATIONS
The Role Social Media, the NLRB and Unions
Can Play in Building or Breaking Workplace
Relationships

2. A Showing of Hands
• Does your company…..
– Use social media to promote your
employment brand?
– Use social media to speak to your customers?
– Use social media for positive employee
relations?
• Have you experienced a corporate
campaign?
• Have you experienced union organizing?

3. Overview
• Current Landscape
• Activism on many fronts
– Labor Organizations
– Government Agencies
• What you need to know

4. CURRENT LANDSCAPE

5. Current State of Labor Relations
• Union Membership in Steep Decline
• Unions are Shifting Focus to Service Sector
• Organizing Efforts in Non-Union Areas
• Emergence of “Alt-Labor”
• NLRB Activism
• Movement of Issues to Local Level
– Minimum Wage, Schedules, Paid Leave

6. Declining Union Membership

7. Labor is Rebranding
“It’s pretty obvious to all of our
progressive partners that none of us
can do it alone. If we’re going to
change the political and economic
environment, it’s going to take us all
working together.
AFL-CIO President Richard L. Trumka
“You can’t solve the problem of the
labor movement or the progressive
movement until you restore the belief
in collective power.”
Karen Nussbaum, Executive Director,
Working America, an AFL-CIO affiliate

8. What Employers Face Today
• Activist NLRB
– Protected Concerted
Activity (all
employees)
– Handbooks /Social
Media
– “Ambush” Election
Rules
– Email Access and
Electronic Signatures
– Joint Employer
– Access to Property
• Labor Activism
– Worker Centers/
Service sector
campaigns
– McDonald’s, Walmart,
Fight for $15
– Issue Driven
Campaigns
• Minimum Wage
• Steady Work
Schedule
• Paid Leave
• Tipped Wages

9. Labor Campaign Approach - 2016
Target Brand
Fight for $15
Paid Leave
Work Schedule
Wage Theft
NLRB & Joint
Employer
Community
Organizing
Social Media –
PCA & Organizing
Protected
Concerted Activity

10. ACTIVISM ON MANY FRONTS

11. Fight for $15 – “Whatever it takes”
v

12. Fight for $15 - Tactics
• Not traditional labor unions -
funding
• Brand attacks via social media
• Protest and occupy
• Cooperation with labor unions
and other activist groups
• Demographic shifts elevating
interest in labor causes
– Women, minorities and
youth more receptive to
related issues like
immigration, part-time
work, and minimum wage
• Pew Research shows 51% of
Americans in favor of labor
unions

14. Going to Cali, and NY…..and

16. Organizing with technology
• Facebook
• Snapchat
• Twitter
• Kik
• GroupMe

17. Smart Phones & Texting
• Under the new “ambush election
rules” employers are now
REQUIRED to furnish telephone
numbers.
• This includes cell phone numbers
• Unions have been using text
messaging for organizing for a long
time.
• Expect texting to increase.

18. The Mission – to boldly go where
no NLRB has gone before!

19. NLRB - “The law we
enforce gives
employees the right
to act together to try
to improve their pay
and working
conditions, with or
without a union. If
employees are fired,
suspended, or
otherwise penalized
for taking part in
protected group
activity, the National
Labor Relations
Board will fight to
restore what was
unlawfully taken
away.”

20. The NLRB & General Counsel

21. NLRB.GOV

22. NLRB Opens Case Against McDonald’s
“This would represent a sea change in how franchisees and
franchisors deal with each other.” - Paul Millus (Quote &
photo via QSR Magazine)

23. Protected Concerted Activity
• Pay and working
conditions
• Letters/petitions
• Employees
request a
meeting
• Picketing and
protesting
• ULPs

24. Social Media and PCA – still an issue
NLRB orders reinstatement and back pay after
termination over tweets and old policy.
Photo: Philly.com

25. Triple Play
• "Maybe someone should do the owners of
Triple Play a favor and buy it from them.
They can’t even do the tax paperwork
correctly!!! Now I OWE money...Wtf!!!!“
• "Hahahaha he’s such a shady little man.
He prolly [sic] pocketed it all from all our
paychecks.“
• “I owe too. Such an a**hole.”
Three D, LLC (Triple Play), 361 NLRB No. 31 (2014)

26. Triple Play
The Board said:
• “The employees engaged in protected concerted
activity by taking part in a social media discussion
among offsite, off-duty employees, as well as two
non-employees…. Although we do not condone
her conduct, we find that Sanzone’s use of a
single expletive to describe a manager, in the
course of a protected discussion on a social media
website, does not sufficiently implicate the
Respondent’s legitimate interest in maintaining
discipline and order in the workplace…”
Three D, LLC (Triple Play), 361 NLRB No. 31 (2014)

27. The Picket Line
An employee was caught on video making
racist remarks:
“Hey, did you bring enough KFC for
everyone?”
• “Hey, anybody smell that? I smell fried
chicken and watermelon.”
http://www.scribd.com/doc/268209701/Cooper-Tire-Rubber-Company

28. The Picket Line
• The NLRB said:
• “[The] “KFC” and “fried chicken and watermelon”
statements most certainly were racist, offensive, and
reprehensible, but they were not violent in character,
and they did not contain any overt or implied threats
to replacement workers or their property….The record
evidence in this case does not establish that Runion’s
statements were coercive or intimidating to the
exercise of employees’ Section 7 rights, and it does
not establish that the statements raised the likelihood
of imminent physical confrontation.”
http://www.scribd.com/doc/268209701/Cooper-Tire-Rubber-Company

29. More WTF?
• Employees at ATT&T show
up at work wearing buttons
that read:
• “WTF Where’s the
Fairness?”
• “FTW Fight to Win”
• “Cut the Crap! Not My
Healthcare.”
• AT&T sends employees
home after refusing to
remove the buttons before
leaving the office to work in
and around customer
homes and businesses.

30. More WTF?
The Board disagreed with AT&T:
• “We agree with the judge that
the content of the “WTF,”
“FTW,” and “Cut the Crap!”
buttons and stickers was not
so vulgar and offensive as to
cause employees wearing
them to lose the protection of
the [National Labor Relations
Act]. In particular, we
emphasize that the “WTF” and
“FTW” buttons and stickers
provided a nonprofane,
nonoffensive interpretation on
their face.”

31. Common sense sometimes matters
• During contract negotiations
in 2009 Communications
Workers in Connecticut
wore T-shirts with “Inmate
# ____” on the front and
“Prisoner of AT$T” on the
back. The boss said they
could not wear them if they
were going into customer
homes or were working in
public. Many did anyhow,
and 183 got suspended.
• Board said it was okay!!!
• DC Circuit overturned in
July
http://www.cadc.uscourts.gov/internet/opinions.nsf/80AD773E2F0DF13385257E7E0052C14A/$file/11-1099-1561845.pdf

32. Perez Pier Sixty
• While on break at work, employee uses
his iPhone to post about his boss on his
personal Facebook page:
• “Bob is such a NASTY MFer don’t know
how to talk to people!!!!!!! F*** his
mother and his entire f***ing family!!!!
• What a LOSER!!!! Vote YES for the
UNION!!!!!!!”
http://www.scribd.com/doc/260742549/Perez-Pier-Sixty

33. Perez Pier Sixty
• “The overwhelming evidence establishes
that, while distasteful, the Respondent
tolerated the widespread use of profanity
in the workplace, including the words
“f**k” and “m*****f***er.” Considered in
this setting, Perez’ use of those words in
his Facebook post would not cause him to
lose the protection of the Act.”
• They ordered reinstatement!!!
http://www.scribd.com/doc/260742549/Perez-Pier-Sixty

34. Protected Tweets
In January 2015, after a
customer tweeted out
thanks for a freebie at
Chipotle's, Kennedy
tweeted back,
“@ChipotleTweets,
nothing is free, only
cheap #labor. Crew
members only make
$8.50hr how much is
that steak bowl really?"

35. What to do?
• One Approach

36. WHAT YOU NEED TO KNOW

37. Upping the Ante
Integrated
Strategies
Employer of
Choice
Brand &
Reputation
Management
Union
Campaign
Ready
Corporate
Campaign
Ready
Worker
Center
Specific

38. Why Employees Seek A Union
Employees join unions for a reason, including:
• Failure to address employee concerns
• Perceived favoritism
• Poor communication
• Heavy-handed management
• Management not responsive to employee
issues or questions
• Actual or Perceived Unfairness
• Poor Working Conditions

39. Impact Of A Union
• Changes Your Company Culture
• “Us vs. Them”
• No Longer Able to Deal Directly With
Employees
• Higher Cost, Less Efficient
• External Issues More Likely

40. The Election Process
Authorization Cards
• Petition for election
• Election Campaign
Activities
• Excelsior List
• Communication
• Bar to Election

42. What to do?
• Have a drink
• Review handbook and
policies regularly
• NLRB guidance memos
from General Counsel
• Hire competent legal
counsel
• Treasure your
employees
• Get started now!

43. Responding
• Must be strategic and
tactical
• Labor relations training
• Executive team support
• Cultural values
• Proactive monitoring of
social media
• Cross functional
response teams trained
• Protect property rights,
Off-duty law
enforcement

44. Labor Relations 101
• Avoid Unfair Labor
Practices (ULP) by
practicing TIPS and
FOE
• TIPS: THREATEN
INTERROGATE
PROMISE SPY
• FOE : FACTS
OPINIONS
EXPERIENCES

45. • Increased complaints/charges
• Group actions or petitions
• Secretive conversations that stop when Managers
approach
• Comments regarding unions
• Threats by Crewmembers who have been disciplined

46. Labor Response Plan
• Culture of company matters
• Communication & Trust
• Train supervisors
• Company policies and procedures
• Consistent, fair and non-discriminatory treatment
• Management/leadership trained w/ written plan
• Legal restrictions and obligations NLRB, EEO,
OSHA, DOL wage/hour)

47. Daily Actions Matter
Work HR and managers can do daily!
• Say “Thank You”
• Resolve Problems (Open Door)
• Active safety programs
• Active employee recognition
• Employee feedback process and action on feedback
• Supervisory training and monitoring
• Active management communications process in place
• Employee engagement in process
• Audit for consistent policy administration and trust in
supervision

48. Thank you
Michael VanDervort
Executive Director
CUE Inc. – an organization for
positive employee relations
863-370-3560
Mvandervort@cueinc.com
Twitter: @MikeVanDervort