1. How to avoid labor relations problems in the Workplace
Both in a union and non-union setting

2. National Labor Relations Act
Applies to all Employees in Private Sector
11/17/2018
Kimberly K. Geariety

3. Public Employees Relations commission
Washington State and Local Governments
11/17/2018
Kimberly K. Geariety

4. “Section 7” Rights
Section 7 of the National Labor Relations Act (NLRA) provides that: (i) Employees have the right to “form, join or assist a labor organization”…in other words…engage in union activity (ii) Employees can also “join together for the purposes of mutual aid and protection”…otherwise known as “protected concerted activity”
11/17/2018
Kimberly K. Geariety

5. Protected Concerted Activity
In general, employees have the right to discuss their wages, hours and other terms and conditions of employment Therefore, an Employer’s policy or work rules cannot: (i) specifically restrict or prohibit such discussions, or (ii) be written in a way that employees would “reasonably understand” the rule to prohibit such discussions
11/17/2018
Kimberly K. Geariety

6. Unions’ Stated Objective Today
“Make it our first priority to help millions more workers form unions so that we can build a strong movement for rewarding work in America…” “Fight for Fifteen” – New approach seeking public opinion and legislative action to achieve objectives
11/17/2018
Kimberly K. Geariety

7. The NLRB: Politically Motivated
Rulemaking by NLRB
General Counsel Guidelines re: Handbooks
Expedited Elections
Adjudication – Imposition of new, different interpretations
Ruling re: Joint Employers
Currently very generous view of worker’s and union’s rights since President Obama took office
11/17/2018
Kimberly K. Geariety

8. BEWARE: Non-Union Private Sector
Unions want your employees -- all non-union employees are vulnerable to union organizing today
Best practice: BE PROACTIVE
If a union “knocks on your door” or if there is any indication of possible union activity, what should you do?
CYA
11/17/2018
Kimberly K. Geariety

9. Public Sector Labor Relations Future
Public Sentiment and Legislative Action States Rights (Remember Wisconsin)
11/17/2018
Kimberly K. Geariety

10. Handbooks and policies
ALERT
11/17/2018
Kimberly K. Geariety

11. Is Your Organization Compliant?
Since 2004 the standard for handbooks, policies, and work rules under the NLRA has been established by Lutheran Heritage Village-Livonia (343 NLRB 646) The basic analysis has been whether an Employer’s policies, procedures or work rules “have a chilling effect” on an employee’s right to engage in conduct that is protected (“PCA”) under Section 7
11/17/2018
Kimberly K. Geariety

12. Report of NLRB General Counsel
On March 18, 2015, the top lawyer for the National Labor Relations Board issued a report intended to Provide “Guidance” to Employers on the Board’s View of the Legality or Illegality of Various Employer Handbook Provisions based on recent case law
11/17/2018
Kimberly K. Geariety

13. Rules affected – Common Policies
Confidentiality Employee Conduct Toward Company and Supervisors Employee Conduct Toward other Employees Third Party Communications (outside of organization) Company Logos, Copyrights, and Trademarks
Photography and Recording/Personal Electronic Devices Restrictions for Leaving Work Conflict of Interest Handbook Disclosure Social Media Policy No Distribution/No Solicitation
11/17/2018
Kimberly K. Geariety

14. Confidentiality
Unlawful: “Do not disclose customer or employee information outside of work” Unlawful: “Never publish or disclose the Employer’s or another’s confidential or other proprietary information” Unlawful: “Do not disclose any details about the Employer”
11/17/2018
Kimberly K. Geariety

15. Conduct toward Company and Supervisors
Unlawful: “Be respectful to the company, other employees, customers, partners, and competitors” Unlawful: “Do not make fun of denigrate or defame your coworkers, customers, franchisees, suppliers, the Company or other competitors” Unlawful: “Disrespectful conduct or insubordination, including but not limited to refusing to follow orders from a supervisor or designated representative. “ Unlawful: “Refrain from any action that would harm persons or property or cause damage to the Company’s business or reputation.”
11/17/2018
Kimberly K. Geariety

16. Conduct toward Fellow Employees
Unlawful: “Do not make insulting, embarrassing, hurtful, or abusive comments about other company employees online and avoid the use of offensive, derogatory or prejudicial comments.” Unlawful: “Do not send unwanted offensive or inappropriate s.” Unlawful: “Material that is fraudulent, harassing, embarrassing or sexually explicit, profane, obscene, intimidating, defamatory or otherwise unlawful or inappropriate may not be sent by .”
11/17/2018
Kimberly K. Geariety

17. Third Party Communications
Unlawful: “Employees are not authorized to speak to any representative of the print and/or electronic media about company matters unless designated to do so by HR and must refer all media inquiries to the company media hotline.” Unlawful: “All inquiries from the media must be referred to the Director of Operations in the corporate office, no exceptions.” Unlawful: “if you are contacted by any government agency you should contact the Law Department immediately for assistance.”
11/17/2018
Kimberly K. Geariety

18. Company Logos, ETC.
Unlawful: “Do not use any Company logos, trademarks, graphics, or advertising materials in social media” Unlawful: “Company logos and trademarks may not be used without written authorization.”
11/17/2018
Kimberly K. Geariety

19. Photos and Recordings
Unlawful: “Taking unauthorized pictures or video on company property is prohibited.” Unlawful: A total ban on use of possession of personal electronic equipment on Employer property. Unlawful: Prohibition from wearing cell phones, making personal calls or viewing or sending texts while on duty.
11/17/2018
Kimberly K. Geariety

20. Leaving Work
Unlawful: “Walking off the job is prohibited.” Unlawful: “Failure to report to your scheduled shift for more than three consecutive days without prior authorization is prohibited.”
11/17/2018
Kimberly K. Geariety

21. Conflict of Interest
Unlawful: “Employees may not engage in any action that is not in the best interest of the Employer.” Unlawful: ”…your responsibility to avoid any conflict between your personal interests and those of the Company. A conflict of interest occurs when our personal interests interfere with – or appear to interfere - with our ability to make sound business decisions on behalf of the [Company]…”
11/17/2018
Kimberly K. Geariety

22. Other Categories
Handbook Disclosure: Prohibiting disclosure of handbook to third parties unlawful No Distribution/No Solicitation: While an employer may restrict distribution of literature in paper form in work areas, it has no legitimate business justification to restrict employees from distributing literature electronically while employees are in work areas if done on non-work time
11/17/2018
Kimberly K. Geariety

23. Other Categories
Social Media: Prohibiting an employee from commenting about the Company’s business, policies, or employees without authorization particularly when it might reflect negatively found unlawful. Prohibiting an employee from blogging about their job or making false and misleading representations about their job or Company found unlawful “Be thoughtful and respectful in all your communications and dealings with others, including and social media. Do not harass, threaten libel, malign defame, or disparage fellow professionals, employees clients competitors or anyone else. Do not make personal insults, use obscenities or engage in any conduct that would be unacceptable in a professional environment.”
11/17/2018
Kimberly K. Geariety

24. Interpreting the Guidelines
Policies will be found to be unlawful if:
If the rule explicitly restricts Section 7 activity
Employees would reasonably construe the rule to prohibit Section 7 activity
The rule was promulgated in response to union or other Section 7 activity
The rule was actually applied to restrict the exercise of Section 7 rights
11/17/2018
Kimberly K. Geariety

25. So, what Does this All mean?
The Good News
The Bad News
Rarely Reviewed in a Vacuum Instead Evaluated Against the Totality of the Circumstance
Employee Awareness of Section 7 Rights on the Rise More Complaints filed with NLRB Another HR Project for 2016????
11/17/2018
Kimberly K. Geariety

26. Legitimate Business Reason
An Organization’s Best Defense
11/17/2018
Kimberly K. Geariety

27. Links to NLRB Information
Good Luck and Best Wishes for 2016
Handbooks: h/all/GC15-04 Social Media: outreach/fact-sheets/nlrb- and-social-media
11/17/2018
Kimberly K. Geariety