1. Profanity, Threats, & Elections! Oh My! An NLRB Update
Mary E. Funk Kami M. Petitgoue
Nyemaster Goode, P.C Unity Point

2. 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

3. 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

4. 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

5. 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

6. 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

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

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

9. 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”

10. Protected or not?
Richmond District Neighborhood Center, Case No. 20-CA (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 and a “loser”
Said his mother and his entire family”
So egregious;
protection lost
Not too egregious; protected

11. 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.

12. 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.

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

14. 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 Systems
Rules of Conduct

15. 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– (April 30, 2015)

16. 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

17. 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

18. 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

19. 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

20. 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

21. But they aren’t even our employees!

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

23. Quickie Election Rules effective 4/14/15

24. 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

25. Union Organizing—How it Works

26. 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
address or social media account
Phone number
Authorization language agreed to
Date
Name of employer

27. 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

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