Download presentation
Presentation is loading. Please wait.
Published byAlberta Robertson Modified over 6 years ago
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
Similar presentations
© 2024 SlidePlayer.com. Inc.
All rights reserved.