Profanity, Threats, & Elections! Oh My! An NLRB Update Mary E. Funk Kami M. Petitgoue Nyemaster Goode, P.C. Unity Point mef@nyemaster.com kami.petitgoue@unitypoint.org 515.283.8029 515. 241.4661

Labor Law Fundamentals National Labor Relations Act (NLRA) guarantees American workers the right to unionize Section Seven of the Act guarantees a worker's right to join a union and bargain collectively Section Eight of the Act prohibits an employer from violating these rights Generally, it is unlawful for employers to threaten, interrogate, spy on employees or offer "bribes" not to join a union

To Whom Does the NLRA Apply? Virtually all private sector employers and employees, regardless of whether they are unionized Employees are protected against adverse action for engaging in concerted activity to improve work conditions – in ALL workplaces All employers are prohibited from discouraging or retaliating against such activity

Section 7 “Employees shall have the right to self- organization, to form, join, or assist labor organizations, to bargaining collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities….” The NLRB has consistently held that an employer violates Section 7 if its acts would “reasonably tend to chill” an employee’s exercise of their rights. Concerted Protected Activity

What does “concerted” mean? Group activity by two or more employees Activity by one person but done on behalf of a group Activity by one person intending to initiate group action Activity by one person to enforce an existing collective bargaining agreement

What Types of Activities are Protected? Employee actions aimed at improving the lot of the workforce, including complaints about terms and conditions of employment Salting Activities related to forming or exploring the formation of a union or the collective bargaining process Strikes, hand billing, picketing or other efforts to make public a union dispute Discussions of working conditions, including wages and hours Other activity for “mutual aid or protection” – not specifically union-oriented

Purple Communications, 361 NLRB No. 126 (Dec. 11, 2014) Employers cannot prohibit employees from using company email to engage in concerted activity – including organization.

Prof’l Elec. Contractors of Connecticut, Inc. , No Prof’l Elec. Contractors of Connecticut, Inc., No. 34-CA-071532 (June 4, 2014) Cannot institute blanket prohibition on recordings or photos

Three D LLC d/b/a/ Triple Play Sports Bar and Grille, 361 NLRB No Using the “Like” button is protected activity Cannot prohibit “inappropriate discussions”

Protected or not? Richmond District Neighborhood Center, Case No. 20-CA- 091749 (October 28, 2014) Encouraged insubordination, neglect of duties to jeopardize Center’s after school program Pier Sixty LLC, 362 NLRB No. 59. (2015) Called managers a “nasty mother f@#$%r” and a “loser” Said “f@#k his mother and his entire f@#$%^g family” So egregious; protection lost Not too egregious; protected

Review employee handbooks for policies that may violate the NLRA and correct them before a union comes calling. If the Company does not have a no-solicitation policy, implement one ahead of any union organizing. Carefully distinguish between working time/non- working time and working areas/non-working areas in no-solicitation rules.

Best Enforce no-solicitation rules even-handedly to avoid claims of disparate treatment. Provide examples of unprotected conduct prohibited by your rules. It will make it easier to argue that the rule cannot reasonably be read to reach statutorily-protected activity. For added insurance, incorporate an express statement into the rule that it does not extend to activities that would be protected under the NLRA.

Report of the General Counsel Concerning Employer Rules March 18, 2015 https://www.nlrb.gov/reports- guidance/general-counsel-memos Guide to lawfulness of common handbook provisions or workplace rules Unintentional violation is not a defense

Is your employee handbook is NLRA-compliant? Cannot state or imply an infringement of Section 7 rights Solicitation Distribution Loitering Confidentiality Fraternization Chain of Command Dress Code Social Networking Bulletin Boards and Email Systems Rules of Conduct

Policies that are lawful…or not? Require self- identification when posting online about the Company or policy Prohibit use of Company logo Prohibit wearing pins or insignia Unlawful Boch Imports, Inc. CA–083551 (April 30, 2015)

Policies that are lawful…or not? Prohibit release of confidential information of guest, team member or company Prohibit posting of secret, confidential or attorney-client privileged information Unlawful Lawful

Policies that are lawful…or not? Prohibition on harassment, bullying, retaliation, discrimination after work, from home on home computers Prohibition of offensive, demeaning or inappropriate comments on line Lawful Unlawful

Policies that are lawful…or not? Respect and follow copyright and IP laws, fair use, trademarks and brands Do not defame or discredit the company’s products or services Avoid harming Company’s image or integrity Lawful Unlawful

Policies that are lawful…or not? Prohibit rudeness to customers Do not pick fights with co-workers Requiring use of chain of command to make complaint Require all media inquiry referrals to the company Lawful Unlawful

Policies that are lawful…or not? Prohibit engaging in action that is not in best interests of employer Solicitation during non-work time only Prohibit distribution of materials in work areas Mandate participation in workplace investigations Unlawful Lawful

But they aren’t even our employees!

Treatment of Franchisors & Franchisees OGC – McDonald’s Litigation (2014) Nutritionality, Inc. d/b/a Freshii Cases 13- CA-134294, 13-CA-138293, and 13-CA- 142297 (Apr. 28, 2015)

Quickie Election Rules effective 4/14/15

NLRB Quickie Election Rule Shorter election time frames Electronic filing Notice of Petition posting requirement Statement of Position New hearing process Voter List Request for Board review

Union Organizing—How it Works

Electronic Signatures The General Counsel of the Board recently adopted a policy that permits employees to electronically authorize union representation Pursuant to this new policy employees can authorize unions to represent them, and to be valid the electronic submission must have the following: Signer’s name Email address or social media account Phone number Authorization language agreed to Date Name of employer

Provide Effective Training Assess the Company's Supervisors Perform a Vulnerability Audit Analyze the Potential Bargaining Unit Issues Form a Rapid Response Team Collect Data

Review Company Policies Evaluate and Improve the Company's Communications Plan Prepare for an Organizing Drive and Election Campaign Understand Employee Concerns