Gxxze good news_from_the_nlrb

2018 HR INDIANA ANNUAL CONFERENCE
Date of Presentation
Title of Presentation
Name of Presenter
Presenter Contact Info
August 20, 2018
Good News from the NLRB??? Yes!
David Pryzbylski
Barnes & Thornburg LLP
317-231-6464
david.pryzbylski@btlaw.com

David J. Pryzbylski
Partner
317-231-6464
317-231-7433 Fax
david.pryzbylski@btlaw.com
11 South Meridian Street
Indianapolis, Indiana 46204-3535
Recently recognized as one of the top under-40 labor lawyers in the nation by
Law360, David J. Pryzbylski’s interest in labor relations began early in high school,
having grown up next to several of the largest steel mills in the world. Today, David
is a Partner in Barnes & Thornburg LLP’s Labor & Employment Department.
Building on his interest in labor relations, he concentrates a large portion of his
practice on assisting employers with traditional labor matters, including collective
bargaining; work stoppages; arbitrations; union avoidance training and strategies;
union representation elections; unfair labor practice charges; contract
administration; and various other labor relations issues.
David has helped companies secure favorable outcomes with labor issues around
the country, and he has experience with numerous labor unions: the Steelworkers,
Teamsters, Laborers, Sheet Metal Workers, CWA, UFCW, UAW, IBEW, BTCGM,
GMP, and the Trades (e.g., Carpenters, Pipefitters, etc.).
Traditional Labor Matters – David’s representative experience includes:
 Assisted a global manufacturing company successfully implement and
manage a six-month lockout of more than 200 employees during collective
bargaining negotiations in Pennsylvania that resulted in the union
accepting company proposals that significantly addressed business
needs, including the elimination of retiree health benefits.
 Was counsel of record for a national grocery chain in an injunction action
filed in Indiana federal court by a union seeking to force the company to
rescind changes to its healthcare plan.
 Successfully defended a national manufacturer in a NLRB action in
Maryland where the union sought to prevent the closure of a site that was
not performing up to company expectations.
 Negotiated a plant shutdown agreement that included vacating a long-
standing collective bargaining agreement at a steel mill on behalf of a
private investment group based in Miami.
 Assisted numerous companies around the U.S., ranging in size from
dozens to thousands of employees, remain union-free in the face of union
organizing efforts. His successes on the union avoidance front have
occurred in New York, Missouri, Illinois, Tennessee, Mississippi, Michigan,
West Virginia, and Indiana.
To maintain a well-rounded practice and offer a full range of labor and employment
services to his clients, David also defends employers in employment litigation
matters alleging wrongful discharge; discrimination; retaliation; harassment; wage-
related claims; breach of contract; and claims regarding the classification of
workers as independent contractors under various state and federal laws. In
addition, David has defended clients in class actions and high stakes qui tam
Bar Admissions
Indiana
Other Court Admissions
U.S. District Court for the
Northern District of Indiana
Southern District of Indiana
Western District of Michigan
U.S. Court of Appeals for the
D.C. Circuit
U.S. Court of Appeals for the
Seventh Circuit
Education
J.D., Indiana University
Robert H. McKinney School
of Law, summa cum laude,
2008
B.A., Wabash College,
summa cum laude, 2005

actions – often initiated by current or former disgruntled employees – brought
under the False Claims Act by government agencies and the Department of
Justice.
Litigation Matters – David’s representative experience includes:
 Served as lead defense counsel in a qui tam action brought under the
False Claims Act in New Hampshire seeking more than $3.5 million in
damages.
 Secured a favorable summary judgment ruling for Roche Diagnostics
Corporation in the Eastern District of New York on an age discrimination
claim and then successfully argued for more than $6,000 in costs being
awarded to the company, including e-discovery costs.
 Successfully secured dismissal of a race discrimination and retaliation
complaint filed against Rolls-Royce Corporation in Indiana federal court
based on a plaintiff’s failure to disclose the lawsuit in his
contemporaneous bankruptcy proceedings. The case was dismissed
before discovery, saving the company significant litigation costs.
 Obtained summary judgment for a national warranty company in a wage-
payment suit where an employee alleged he was entitled to over $100,000
more than what he was actually paid under the terms of a revised bonus
plan. The court’s ruling precluded the formation of a class action by other
employees affected by the revised bonus plan terms.
 Successfully appealed a California Employment Development Department
determination that a national manufacturer had misclassified nearly 100
workers as independent contractors, which resulted in a nearly $1 million
tax assessment being vacated.
David also assists employers with proactive counseling, both in the employment
and labor context. This portion of his practice involves reviewing and drafting
employment policies; conducting training on issues spanning the labor and
employment spectrum; and otherwise advising clients when daily, complex
employee-relations issues arise.
In recognition for his employer-defense work, David has been recognized as one of
the top 5 under-40 labor lawyers in the U.S. by Law360; honored in Chambers
USA since 2015; honored with the "Leadership In Law: Up and Coming Lawyer"
award by The Indiana Lawyer in 2015; named on the “Rising Stars” list by Super
Lawyers since 2012; and named on The Best Lawyers in America list in the 2018
edition.
David earned his J.D., summa cum laude, from the Indiana University School of
Law in 2008. While in law school, David became a member of the Order of the
Barristers in recognition of his distinction during the school’s moot court
competition; served as an editor on the Indiana Law Review; was a Dean’s Tutorial
Fellow; and received a pro bono award for work he did in New Orleans for victims
of Hurricane Katrina.
David earned his B.A., summa cum laude, from Wabash College in 2005, where
he was a member of the Phi Beta Kappa Society. While attending Wabash
College, David served as the president of the Phi Kappa Psi Fraternity, served as a
class representative on the Student Senate, and won the David W. Peck Award, an
honor that recognizes the most outstanding pre-law student in the class. He also
studied in France on two separate occasions and remains conversationally fluent
in French.

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including breaking labor and employment topics
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CONFIDENTIAL © 2018 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the
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• A New Labor Regime
• Changes to Unfair Labor
Practices
• Recent Decisions of the
New Board
• Changes on the Horizon
• The NLRA and Workplace
Investigations
Agenda
A New Labor
Regime

• Robb was confirmed by the Senate
on November 8, 2017 by a 49-46
party line vote.
• Replaces staunch union advocate
Richard Griffin, former head of the
IUOE.
• Experience:
– Represented FAA in 1981 Air Traffic
Controllers Strike.
– Management-side attorney in private
practice.
Peter Robb
(NLRB General Counsel)
A New Labor Regime
Peter Robb
• The General Counsel functions as top executive of the Agency
and they have broad authority to issue unfair labor practice
charges and bring cases before the NLRB.
• His Senate confirmation hearing insinuated that he will:
– Ensure the rights of employees who dissent from their union's
positions;
– And set a higher bar for unions to prove that they have majority
support of workers before certifying an election.
• As General Counsel, Robb could—and already has—targeted
“test cases” to bring to the Board to reverse many of the union-
friendly decisions of the Obama Board.
Implications for Employers
A New Labor Regime
Peter Robb

• Philip Miscimarra’s term
ended on December 16,
2017.
• A frequent dissenter during
the Obama-Board era.
• Went out with a bang:
– Joint Employer.
– Bargaining obligations.
– Handbook policies.
– Micro-units.
Philip Miscimarra
(Former NLRB Chairman)
A New Labor Regime
Philip Miscimarra
• Senate confirmed President Trump’s
NLRB nominee, Marvin Kaplan, on
August 2, 2017.
• Vote was 50-48 along party lines.
• Sworn in on August 10, 2017.
• Appointed Chairman on December
22, 2017 following the end of Philip
Miscimarra’s term.
• Experience:
– Chief Counsel of the Occupational
Safety and Health Review Commission.
– Counsel to the House Oversight and
Government Reform Committee.
– Policy Counsel to House Education and
the Workforce Committee.
Marvin Kaplan
(NLRB Member)
A New Labor Regime
Marvin Kaplan

• President Trump appointee
William Emanuel, was
confirmed on September 25,
2017.
• 49-47 Vote following a
filibuster by Democrats.
• Sworn in September 27, 2017.
• Experience:
– Management-side attorney in private
practice.
William Emanuel
(NLRB Member)
A New Labor Regime
William Emanuel
• Ring was nominated by President
Trump on January 12, 2018.
• Confirmed by a 50-48 vote on
April 11, 2018.
• Replaces Philip Miscimarra and re-
establishes a 3-2 employer friendly
majority.
• Experience:
– Management-side attorney in private practice.
John Ring
(NLRB Chairman)
A New Labor Regime
John Ring

• McFerran is serving her first term,
which expires on December 16,
2019.
• Nominated by President Obama in
2014.
• Experience:
– Chief Labor Counsel to Senate Committee
on Health, Education Labor, and Pensions.
Lauren McFerran
(NLRB Member)
A New Labor Regime
Lauren McFerran
• Pearce is serving his second term,
which expires on August 27, 2018.
• Nominated by President Obama in
2010.
• Chairman from 2011-2017.
• Experience:
– Plaintiff and Union-side Labor & Employment
lawyer in private practice.
Mark Gaston Pearce
(NLRB Member)
A New Labor Regime
Mark Gaston Pearce

Changes to Unfair
Labor Practices
1. General Counsel Advice Memo
2. Deferral Standard
3. Default Language
4. NLRB Restructuring
Changes to ULPs
Changes to Unfair Labor Practices

• One duty of the General Counsel is to publish advice
memorandums.
• Peter Robb published his first advice memorandum on
December 1, 2017 signaling brighter days ahead for
employers.
Memorandum GC 18-02
General Counsel Advice Memo – December 1, 2017
• The memo requires all NLRB Regional Directors to submit to the
General Counsel, for advice, “significant legal issues;” defined as
any NLRB decision from the previous 8 years that overruled
precedent and involved one or more dissents.
• Decisions falling in this category include:
– Purple Communications: Establishing employee’s right to use employer
email for union activities.
– Browning-Ferris: Changing the joint employer standard.
– DuPont: Constricting an employer’s right to make changes to terms
and conditions of employment pursuant to past practice.
– Piedmont Gardens: Making it more likely for an employer to be
required to share witness statements with the union.
Memorandum GC 18-02

• The Memo also rescinded 8 GC Memos from the
previous administration – including two relating to the
Board’s deferral policy and default language in
settlement agreements.
• The Memo was a strong indicator of Robb’s intention
to use his position to roll back the expansive pro-
union labor law changes from the Obama-era NLRB.
• The Memo foreshadowed big decisions made by the
Board in December 2017.
• For decades, the NLRB favored “deferring” unfair labor practice
disputes between employers and unions to the agreed-upon
arbitration procedure in collective bargaining agreements.
• In 2012, the General Counsel published a memo adding
limitations on the issues the Board would defer.
• The NLRB followed suit and a more restrictive policy was put in
place, which led to more labor charges being heard by the
NLRB.
• This practice was costly for employers.
Deferral Policy
Deferral Policy

• The restrictive deferral policy was withdrawn
by Robb in his December 1 Memo.
• The NLRB will need to adopt this change, but
that could happen at some point in 2018.
Deferral Policy
Deferral Policy
• More disputes will be handled
through arbitration than through
NLRB proceedings.
• This is financially beneficial for
employers.
• The intent of parties’ agreements in
their contracts will be given effect.
Deferral Policy

• In 2011, the former NLRB General Counsel mandated that all
settlement agreements contain “default” language.
• The language said that if a charged party (most often the
employer) violates any terms of the settlement agreement,
then the party will consent to a default judgment related to the
underlying allegations being entered against it.
• This was a difficult pill to swallow and was an impediment to
settling cases before the Board.
• Robb’s Dec. 1 Memo withdrew this policy, signaling that the
default language is no longer required in settlement
agreements.
Default Language
Default Language
• Removing the default language should encourage
Employers to settle more cases before the Board.
• This could provide cost savings to Employers and
make their labor relations problems easier to
manage.
Default Language

• It has been reported that Peter Robb may restructure the
organization of the NLRB.
• Currently, there are Regional Directors in 26 regions that have
significant autonomy to investigate and rule on cases.
• Robb is said to be interested in reducing the number of
regions and centralizing more power in the General Counsel’s
office, with regional directors reporting directly to the General
Counsel.
NLRB Restructuring
NLRB Restructuring
• This could greatly impact how charges and
representation cases are handled.
• This could slow down the speed of resolution and
even impact the outcome of cases.
– The General Counsel is appointed by the President.
– Regional Directors stay in their positions through
political change.
NLRB Restructuring

Recent Decisions
of the New Board
The Boeing Company Case
• Background
• Discussion
• Example Policies
• What Does It Mean?
Recent Decisions of the New Board
Handbook Standard
The Boeing Company, 365 NLRB No. 154 (2017)

• Lutheran Heritage, a 2004 NLRB decision, articulated the
previous standard used by the Board to determine if facially
neutral workplace rules violated the NLRA.
• Under that standard, facially neutral rules were invalid if:
– The rules would be “reasonably construed” by an employee to
prohibit the exercise of NLRA rights.
• This standard allowed the previous Board to invalidate
numerous handbook policies including:
– Policies prohibiting or restricting use of recording devices;
– Policies promoting a positive work environment; and
– Confidentiality policies.
Background
Handbook Standard
• That onerous standard is no
longer law.
• On December 14, the new NLRB
overruled Lutheran Heritage.
• The new test will allow the Board
to evaluate two things when
analyzing a facially neutral policy:
– The nature and extent of the
potential impact on NLRA rights;
and
– Legitimate justifications
associated with the new rule.
Discussion
Handbook Standard

– Do not discuss customer or employee information outside of work,
including phone numbers and addresses.
– Never publish or disclose the Employer’s Confidential Information.
Confidential Information means all information in which its loss,
undue use, or unauthorized disclosure could adversely affect the
Employer’s interests.
– [The Company] expects all employees to behave in a professional
manner that promotes efficiency, productivity, and cooperation.
Employees are expected to maintain a positive work environment by
communicating in a manner that is conducive to effective working
relationships with internal and external customers, clients, co-
workers, and management.
– Arguing or fighting with co-workers, subordinates or supervisors;
failing to treat others with respect; or failing to demonstrate
appropriate teamwork is unacceptable.
Examples of Previously Unlawful Policies
Handbook Standard
• The new standard gives the Board more
discretion in weighing the employer’s
rationale for the workplace rule versus
the impact it will have on employees’
rights under the NLRA.
• Will likely make it easier for employers to
maintain facially neutral work rules.
• Not all previously unlawful policies will be
lawful under the new standard.
• Employers’ justifications for implementing
rules will be given more weight.
WHAT DOES IT MEAN?
Handbook Standard

Hy-Brand Industrial Contractors, Ltd. Case
• Background
• Discussion
• Vacated
Joint Employer Standard
Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017)
• Browning-Ferris, a 2015 decision, changed the joint
employer standard, making it more likely that an employer
would be deemed jointly responsible for the labor law
obligations of a staffing agency, temporary labor provider,
or franchisee.
– These obligations could include bargaining obligations and unfair
labor practice charges.
• The joint employer standard prior to Browning-Ferris
required the second employer to exercise actual and
direct control over the workforce.
• Browning-Ferris only required reserved or indirect control.
Background

• On December 14, 2017 the new NLRB
overruled Browning-Ferris and returned
to the previous joint employer standard
requiring actual and direct control.
• Hy-Brand had been found to be a joint
employer with Brandt Construction over a
group of workers who were unlawfully
discharged.
• The Board affirmed that finding by the
ALJ, but found that the standard used
was “contrary to the Act…ill-advised as a
matter of policy.”
Discussion
• The NLRB Inspector General investigated Board
Member William Emmanuel for a possible
conflict of interest in the Hy-Brand case.
• Inspector General found that Emmanuel should
have recused himself from the Hy-Brand
decision because his former law firm was
involved with the Browning-Ferris case, a wholly
separate matter but a matter involving the same
legal issues as Hy-Brand.
• In response, the Board vacated their decision in
Hy-Brand, meaning Browning-Ferris’ joint
employer standard is once again the law.
• A similar ethics complaint has been made
against Emmanuel for taking part in Boeing.
Vacated

• The Board will have to wait for another opportunity to
reverse Browning-Ferris.
• There is no reason to believe this is still not a primary
objective of the Board now that Ring has been
confirmed.
• The Board will have to overturn Browning-Ferris in a
way that does not create a potential conflict of interest
for Emmanuel.
• This may mean waiting until the Browning-Ferris case is
resolved, as it is still on appeal in the federal courts.
• For now, Employers must operate under the unfriendly
“indirect” or “reserved” control standards from Browning-
Ferris.
WHAT DOES IT MEAN?
PCC Structurals, Inc. Case
• Background
• Discussion
Micro-Units
PCC Structurals Inc., 365 NLRB No. 160 (2017)

• Before a union election takes place, the bargaining unit must be
established. Traditionally, wall-to-wall units were favored by the law,
but were harder for unions to organize.
• Specialty Healthcare, a 2011 decision, made it easier for unions to
organize “micro-units,” which are smaller, fractional groups of
employees that are much easier to organize.
• Under that case, an employer challenging the micro-unit in favor of a
larger proposed unit had to show that the larger unit of employees
shared an “overwhelming community of interest.”
• The decision was intended to apply only to healthcare units, but over
the past 5 years micro-units have been certified for election in other
industries.
Background
Micro-Units
• That onerous standard is no longer law.
• On December 15, 2017, the Board
abandoned the “overwhelming
community of interest” standard with their
holding in PCC Structurals Inc.
• The Board returned to the traditional
community of interest standard.
• That standard allows the NLRB to
evaluate the interests of all employees,
both in the proposed unit and outside of it
so that a properly constituted unit is
established.
Discussion
Micro-Units

• Will likely lead to a reduction in the number
of micro-units certified by the NLRB.
• Will make it harder for unions to organize.
• Employers with unionized workforces may
have fewer unions to bargain with, lowering
the cost of bargaining.
WHAT DOES IT MEAN?
Micro-Units
Raytheon Network Centric Systems
Case
• Background
• Discussion
Bargaining Obligations
Raytheon., 365 NLRB No. 161 (2017)

• In DuPont, a 2016 decision, the Board held that employers must
bargain with unions over changes to employment terms unless they
were authorized in the expired contract, regardless of what the
established practice had been.
• This curtailed an important tool employers previously had, making
unilateral changes pursuant to established past practices.
• In Raytheon, after CBA expiration, the employer made unilateral
changes to their health plan, an annual past practice that had
happened for 12 straight previous years.
• Under DuPont, this would be deemed a failure to bargain in good faith
because it was not authorized under the expired CBA.
Background
• On December 15, 2017, the new
Board overruled DuPont, and found
that this was a lawful unilateral
change made pursuant to past
practice.
• The Board returned to the standard
as it stood before DuPont, finding
that a “change” in terms and
conditions that requires bargaining
only arises when it is materially
different from an established past
practice.
Discussion

• Employers’ bargaining obligations are
lessened.
• Employers can safely rely on their
established past practices, even when
their CBA has expired.
• The Board’s busy December was a sign
of good things to come.
WHAT DOES IT MEAN?
Village Red Restaurant Corp. Case
• Background
• Discussion
Class and Collective Actions
Village Red Restaurant Corp, 366 NLRB No. 42 (2018)

• In 2015, the NLRB ruled for the first time that an
individual who filed a collective action claim pursuant to
the Fair Labor Standards Act (FLSA) in federal court
was engaged in “protected activity” under the NLRA.
• The Board made a similar ruling in 2017.
• Until recently, it was unclear how the new Board would
rule on this issue.
• In Village Red Restaurant Corp., a group of employees
filed a lawsuit under the FLSA.
Background
• Those employees were terminated,
some allegedly “constructively.”
• The new Board held that filing
claims pursuant to the FLSA can
constitute protected activity under
the NLRA.
• The company in this case was
found to have violated the NLRA by
discharging or constructively
discharging those employees.
Discussion

• Employers must still operate under the
assumption that class or collective
actions may be protected activity.
• Perhaps this stance could change now
that the Board has returned to a 3-2
Republican majority.
• For now, this is one area where the new
Board’s stance has not changed.
WHAT DOES IT MEAN?
Delaware County
Memorial Hospital Case
• Background
• Discussion
Requests for Information
Delaware County Memorial Hospital, 366 NLRB No. 28 (2018)

• Employers are required to provide unions with “relevant” information upon
request under the NLRA.
• The previous Board took an expansive view of the types of information
employers must provide.
• Employers may be able to limit or even decline to furnish information that is
confidential or unrelated to terms and conditions of employment.
• In Delaware County Memorial Hospital, the new Board was tasked with
determining if a hospital unlawfully refused to provide the union representing
its employees with a copy of an asset purchase agreement related to a
hospital at which the union represented employees.
• The employer refused to furnish the requested information because portions
of the agreement contained confidential business information.
Background
• The Board ruled that the employer
failed to engage in “accommodative
bargaining” by flatly refusing the
request and not bargaining with the
union over an accommodation.
• As a remedy to the violation, the
Board ordered the hospital to
produce the entire agreement,
including the portions with
confidential business information.
• The hospital waived its right to limit
disclosure.
Discussion

• Employers must carefully navigate
the legal nuances of union requests
for information – even under the
new Board.
• While there remain categories of
information an employer need not
produce – this area is riddled with
complexities.
WHAT DOES IT MEAN?
KHRG Employer, LLC
• Background
• Discussion
Protected Activity and Employee Misconduct
KHRG Employer, LLC, 366 NLRB No. 22 (2018)

• “Protected activity,” or conduct
protected by the NLRA, often
provides a life line for employees
discharged or otherwise disciplined
for misconduct in the workplace.
• In the past, the Board has
overturned terminations and
reinstated workers in situations
where egregious misconduct was at
issue.
– e.g., belligerent and profane
outbursts, racially insensitive
comments, etc.
Background
• Employee attempting to organize hotel workers was
discharged for engaging in misconduct during
demonstration outside hotel.
• Demonstrators wanted to deliver petition to manager
in the hotel.
• Employee lied to security and said all 20 people
were employees, when only 6 were.
• Employee then intentionally misused a company
security passcode to gain access to a secured area
of the hotel where the manager was located.
• Board said the employee’s flagrant misconduct lost
him the protection of the Act.
Discussion

• Even where employees are
engaged in possible “protected
activity,” they do not have carte
blanche to disregard established
security or other procedures.
• Even under the often daunting rule
of the NLRB, employers do still
retain the right to discipline and
manage their workforce.
WHAT DOES IT MEAN?
Social Media Policies
• Background
• Discussion

• In previous years the Board has
invalidated numerous social
media policies for violating the
NLRA.
• The most common situation is
where a policy is construed as
“chilling” employees’ section 7
rights under the Act.
– e.g., discipline resulting from
employee profanely voicing
workplace grievances on social
media.
Background
• The Washington Post was recently hit with
an unfair labor practice complaint by the
NLRB General Counsel’s Office over its
social media policy which prohibits conduct
that “adversely affects The Post’s
customers, advertisers, subscribers,
vendors, suppliers, or partners.”
• Main allegation was failure to bargain over
implementation.
• Different from past social media cases,
which focused on potential “chilling” of
protected activity.
Discussion
The Washington Post

• February 2018 GC Advice Memo found
that Teamsters Local Union 610 violated
the NLRA by engaging in cyber-bullying
of one of its own members.
• Senior union members created a “secret”
Facebook page that criticized and
ridiculed a member who had raised
concerns that new workers did not have
the same “voice” at the bargaining table
as more senior members.
• Upon learning of the group, the
employee filed charges with the NLRB.
Discussion
Teamsters Local Union 610
• The NLRB is interested in employer
social media policies and the overall
impact social media is having on
labor relations.
• Policies in this area should be
carefully drafted so as not to run
foul of the Act.
• The NLRA protects the rights of
employees, which means even
Unions can violate the Act.
WHAT DOES IT MEAN?

Changes on the
Horizon?
Ambush Election Rule
• Background
• Discussion
Changes on the Horizon?

• In April 2015, the NLRB published a new rule governing union
elections.
• That rule aimed to shorten the time period between union
petition and election.
• The rule was successful, as the median time from petition to
election has shrunk from 38 days in 2014 to 23 days in 2017.
• This greatly shortens the time period an employer has to run a
union campaign and educate their workers on the costs of
inviting a union into the employment relationship.
Background
• Change could be on the horizon.
• On December 12, 2017, the NLRB began
seeking input on the rule to see if it
should be rescinded, modified, or kept as
is.
• On March 14, the NLRB announced it
was extending the deadline for public
input for a second time, which made the
deadline April 18, 2018.
• The comment period has closed, but no
new rule has issued yet.
Discussion

• The NLRB is likely to at least make
modifications to the rule.
• The previous NLRB’s attempt to modernize
the election process resulted in a truncated
election period that greatly burdens
employers.
• Despite the continued delay, be on the
lookout for changes to this rule in 2018.
WHAT DOES IT MEAN?
Confidentiality Clauses in
Severance Agreements
• Background
• Discussion
Confidentiality Clauses in Severance Agreements

• Confidentiality provisions in severance agreements are
commonplace.
– They prohibit disclosures related to the terms and sometimes to the
existence of a severance agreement.
• In recent years, the NLRB has taken a hard line view against
“confidentiality” provisions of severance agreements.
• The Board has said in multiple cases that these provisions chill
employees’ rights under the NLRA to discuss terms and
conditions of employment.
– The NLRB only found these clauses lawful when narrowly tailored.
Background
• On December 27, 2017, Members
Kaplan and Emanuel stated in an
order that they want to revisit the
Board’s rigid stance on severance
agreements.
Discussion

• The NLRB could change their
stance on the legality of
confidentiality provisions in
severance agreements.
• Recently confirmed Member
John Ring could join Members
Kaplan and Emanuel in
changing the Board’s position.
WHAT DOES IT MEAN?
Misclassification of Workers
• Background
• Discussion

• Proper classification of workers (i.e., employees v. independent
contractors) is always an important issue for employers.
• Improper classification can lead to back taxes, penalties, etc.
• The Board has previously said it may consider misclassification
an independent violation of the NLRA in some circumstances,
such as:
– Where an employer attempts to classify employees as independent
contractors in an attempt to avoid union organizing.
• However, the Board has not yet acted on this issue.
Background
• On February 15, 2018 the NLRB
announced it is inviting the public to file
briefs in the case Velox Express, Inc.
• The Board’s release read:
– “Briefs should address under what
circumstances, if any, the Board should
deem an employer’s act of misclassifying
statutory employees as independent
contractors a violation of Section 8(a)(1)
of the National Labor Relations Act.”
Discussion

• For better or worse, we likely will have
an answer on the Board’s position.
• Regardless of the Board’s position,
employers should take careful steps
to properly classify employees, as it
has far-ranging consequences.
WHAT DOES IT MEAN?
The NLRA and
Workplace
Investigations

Conflict with Federal Workplace
Discrimination Laws
• Discussion
The NLRA and Workplace Investigations
Conflict with Federal Workplace Discrimination Laws
• In the past, the NLRA has conflicted with federal
workplace discrimination and harassment laws in areas
where potentially harassing behavior or speech was
deemed “protected activity” by the NLRB.
– For example, racial slurs hurled on the picket line during strike.
• The current NLRB may attempt to harmonize the NLRA
with our federal workplace discrimination laws.
Discussion

• NLRB General Counsel Peter Robb is
reportedly meeting with EEOC leaders to
try and resolve the conflict between
offensive speech protected under the
NLRA and comments that may be
harassment under workplace
discrimination laws.
• Recent NLRB cases are a positive
development:
– The Boeing Company
– KHRG Employer, LLC
WHAT DOES IT MEAN?
Confidentiality of
Workplace Investigations
• Background
• Discussion
Confidentiality of Workplace Investigations

• NLRB’s 2015 Banner Health System decision made it more likely that
an employer will violate the NLRA by requiring employees to keep
workplace investigation’s confidential.
• The Board’s reasoning is that the NLRA protects an employee’s right
to discuss workplace issues, including workplace investigations.
• Banner Health System requires an employer to show one of the
following to justify requiring confidentiality:
1. Witness needs protection;
2. Evidence is in danger of being destroyed;
3. Testimony is in danger of being fabricated; and/or
4. There is a need to prevent a cover-up.
Background
• The Board recently reaffirmed
that holding in Costco, where
an ALJ found that the
employer violated the
principles set out in Banner
Health System.
• The Board affirmed the ALJ’s
ruling, placing their stamp of
approval on the test outlined
in Banner Health System.
Discussion

• Banner Health System was one of
the cases cited by Peter Robb in
his December 1, 2017 memo.
• While Members Kaplan and
Emanuel did participate in the
decision, the Banner Health
System test could face scrutiny
under a 3-2 Republican Majority.
WHAT DOES IT MEAN?
The NLRA and Workplace Harassment

Union organizing campaigns. Tough labor
negotiations. Tricky terminations. Collective
bargaining actions. That’s all right in our
sweet spot. Barnes & Thornburg steps up
with a national Tier One ranking for its labor
law and employment law practices. So bring
the heat.
Sweet spot.
Uncommon Value
ATLANTA CALIFORNIA CHICAGO DELAWARE INDIANA MICHIGAN MINNEAPOLIS OHIO TEXAS WASHINGTON, D.C.
btlaw.com

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