The NLRB’s Expanded Agenda
and Regulatory Efforts
Megan Belcher, Vice President and Chief Employment Counsel, ConAgra Foods
Nicky Jatana, Partner, Jackson Lewis LLP
Deanna Lindquist, Assistant General Counsel, Head of the Employment Section, Wells Fargo
What We Will Cover Today
• The New NLRB Members
• Protected Concerted Activity
• Social Media
• Employee Handbooks, At-Will Statements and Codes of Conduct
• Confidentiality of Investigations
• Class/Collective Action Waivers and Confidentiality Provisions in Arbitration Agreements
• Status of Quickie Elections and Notice Posting Rule
• What is Coming in 2014
The New NLRB Members
• The establishment of the first fully-confirmed National Labor Relations Board since 2003 as well as the
confirmation of Thomas Perez as Secretary of Labor, foretell renewed efforts to enact big labor’s policy
agenda through the regulatory, administrative, and enforcement processes.
• On August 12, 2013 the following 4 new NLRB members were sworn in and the NLRB officially has a
– Nancy Schiffer
– Harry I. Johnson, III
– Kent Hirozawa
– Philip A. Miscimarra
• Mark Gaston Pearce remains Chairman of the Board
Protected Concerted Activity
In determining whether employee activity is entitled to the protections of Section 7, the Board looks at the
• whether the activity is “concerted”
• Examples: two or more employees – usually (but not always), class-action lawsuits, calling a
government agency about safety/working conditions, filing administrative charges to remedy
sexual harassment, complaining to news media or customers;
• whether the activity is “for mutual aid or protection”
• Examples: improvements in wages, benefits, safety, overtime, staffing or other terms and
conditions of employment
• Broadly interpreted to cover conduct that has only minimal impact on the “terms and conditions of
employment” of an employee’s employment; and
• whether the activity has lost the protection of Section 7 by reasons of (1) its means or (2) its objectives
Social Media and Concerted Activity
• NLRB extends concerted activity to social media; Board reviewing over 100 cases involving Twitter, Facebook, YouTube and
other forms of social media
• Questions to Ask:
– Do posts suggest collective action by employees?
– Do posts reference prior discussions that could be concerted activity?
– Did other employees respond to post?
– Did employee responses indicate agreement with post or only sympathy?
– Did employees take action after posts, such as engaging in discussions offline?
– “Like” buttons count!
– When may an employer discipline an employee based on the employee’s online activities?
– Do the employer’s social media policies prohibit the kinds of activities protected by the NLRA?
Portions of your handbooks which should be reviewed for compliance with the NLRA in view of recent NLRB
decisions dealing with the “chilling” of organizational rights:
Speaking to the Media
Insignia and Dress Code Policies
Chain of Command
“At-Will” Employment Policies
“Goals and Objectives,” “In the Company’s Interests,” Cooperation, Loyalty and Attitude Rules
NLRB Extending Reach to Non-Union Employers
Over past few years, NLRB has taken a more aggressive approach to
nonunion workplace policies. Why?
Only 6.9% of the private workforce is unionized.
Attempting to establish relevance to other 93.1% through:
• Education: “Protected Concerted Activity” site at
• Rulemaking: Mandatory Poster Regarding Union Rights at
• Decisions that impact employer policies and practices:
• At-will employment language
• Code of Business Conduct and other Handbook terms
• Confidentiality of investigations
• Class Action Waivers
At-Will Employment Statements
• Found at-will language might chill employees from advocating concertedly to
change at-will status if it is written in such a way to suggest that policy cannot
be changed through union organizing or collective bargaining.
• Focus on the integration and modification language that accompanies at-will
language, not basic at-will relationship itself.
• Board has approved certain at-will modification language, such as:
• “No representative of the Company has authority to enter into any agreement contrary
to the foregoing ‘employment at will’ relationship.”
• “No manager, supervisor, or employee of Rocha Transportation has any authority to
enter into an agreement for employment for any specified period of time or make an
agreement for employment other than at-will. Only the president of the Company has
the authority to make any such agreement and then only in writing.”
• Review offer letters, employment agreements, handbooks, codes of conduct,
and other agreements such as trade secret agreements to ensure at-will
clause is in line with recent NLRB decisions and continue to monitor NLRB
Handbook and Code of Business Conduct Policies
• Contact with the Media:
• Policies limiting employee’s contact with media struck down as unlawful restriction on
ability to discuss terms and conditions with third parties.
• Internal Complaint Procedures:
• Board struck down employer policy indicating to whom employees should voice
complaints, finding that it “implicitly prohibits its employees from making complaints to
other employees or entities.”
• Definition Confidential Information:
• Defining “personnel information and documents” and “financial information, including
costs” as confidential is overbroad.
• Standards of Employee Conduct:
• Prohibiting employee from engaging in “inappropriate behavior while on Company
property” or “performing activities other than Company work during working hours”,
“walking off the job” or using loud, abusive or foul language is overbroad.
• Other Handbook Provisions:
• Insignia and Dress Code Harassment Email
• Recordings Off-Duty Conduct Fraternization
• Solicitation and Distribution Off-Duty Access Cooperation, Loyalty and Attitude
Banner Health System and
Confidentiality of Investigations:
• Employer policy to instruct all employees interviewed as part of an
investigation to maintain the confidentiality of investigation struck down.
• Rationale: “generalized concerns with protecting the integrity of an
investigation is insufficient to outweigh employees’ Section 7 rights.”
• Blanket confidentiality instructions are prohibited; instead employers must
show specific, legitimate business reason to request confidentiality, taking
• Protecting Complainant and Witnesses: Is there a risk of intimidation or
retaliation? Did the complainant or witness express a concern of retaliation?
• Protecting against Destruction of Evidence: Is there a risk that witnesses may
alter or destroy documents, emails or other relevant materials?
• Protecting against Fabrication of Evidence: Is there a risk that witnesses may
influence others to alter their statements or recollection of events?
• Protecting against a Cover-up: Is there a risk of non-cooperation if witnesses
prematurely learn of the investigation?
D.R. Horton and Class or Collective Action Waivers
• NLRB held that home builder D.R. Horton’s arbitration agreement violated
the NRLA because it required employees – as a condition of employment –
to forgo class and collective action court and arbitration proceedings.
• Rationale: Section 7 affords employees the right to have their
employment-related claims adjudicated collectively.
• Recently, an ALJ held that JP Morgan Chase’s class action waiver violated
NLRA and ordered JP Morgan Chase to withdraw a motion to dismiss the
employees’ wage and hour class action.
• Several courts have enforced class action waivers, despite D.R. Horton.
• D.R. Horton currently is on appeal to the Fourth Circuit; issue appears
destined for the U.S. Supreme Court.
Status of the NLRB’s Notice Posting Rule
What is the Notice Posting rule?
• How to form or join unions
• Bargain collectively
• Strike or engage in other concerted activities
• Physical posting
• Posting of link
What happened once the NLRB issued?
What if you are a federal contractor?
What is the status of the rule now?
• D.C. Circuit (May)
• Fourth Circuit (June)
• Posting ruling activities by NRLB
Specialty Healthcare & Micro Units
"Micro-unit" is the term used to refer to a small group of employee,
who reside within a larger employee group at a particular worksite,
that a union seeks to represent.
Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB
No. 83 (2011)
Certified nursing assistants at a nursing home may comprise an appropriate
• Without including other nonprofessional employees at the facility
• Unions get to carve out the unit they want
• Even if more employees share a community of interest with the
petition or unit
• Radical departure from traditional community of interest analysis
• Burden on employers to rebut with “overwhelming” community of
Micro Unit Madness
Kindred Nursing Centers East, LLC v. NLRB, 2013 WL
4105632 (6th Cir. Aug. 15, 2013)
• Affirmed the NLRB’s Specialty Health Care ruling of 2011.
• An employer challenging a proposed bargaining unit on the basis that it
improperly excludes certain employees is required to prove that the excluded
workers share "an overwhelming community of interest" with those in the
Why should employers care?
• Smaller units often are easier to organize
• Smaller units create the likelihood of inefficiency in operations
• Increases the chances of multiple bargaining units and multiple unions at the
• Quickie election with smaller units = employer disadvantage
Getting proactive with labor audits
The Path Forward in 2014?
Unions’ Continued Fight Against Loss of Union Membership
Union Membership Decline Change
National Education Association (NEA) 99,175 to 3.1 million -3%
International Brotherhood of Teamsters 51,924 to 1.3 million -4%
Service Employees International Union (SEIU) 44,960 to 1.9 million -2.3%
American Federation of State, County and Municipal Employees 37,288 to 1,386,296 -2.6%
American Federation of Teachers (AFT) 25,131 to 848,323 -2.9%
United Food and Commercial Workers 13,102 to 1,272,313 -1%
Laborers International Union of North America (LIUNA) 8,422 to 571,065 -1.5%
International Association of Machinists 4,033 to 576,947 -.7%
Many of the nation’s largest unions lost significant membership in
2012, keeping with a thirty year trend, according to annual financial
disclosure reports filed with the U.S. Department of Labor,
Bloomberg/BNA’s Daily Labor Report has reported. The 2012 reports
show the following among the ten largest unions:
The Path Forward in 2014?
The NLRB and its Agenda
The new Board and the rite of passage of reversal of prior Board
Noel Canning and its continuing evolution
The new vs. the old General Counsel
• Notes on the General Counsel’s Report on the Midwinter Meeting of the
ABA Practice and Procedure Committee of the Labor and Employment
The new and evolving era of Section 7 rights
Continued attacks on company polices and the at will employment
Where will they go with employee’s email “rights”?
Witnesses in employee interviews – another change?
The Path Forward in 2014?
Refocused and Agile Organizing Techniques
Corporate Campaigns 2.0
Focus on new industries with big employee populations
The NLRB has an app for that
Aggressive techniques approved by NLRB
Technology and social media
Utilizing third party advocacy groups
Pushing the “corporate responsibility” lever
Targeting specific geographic areas