ON STRIKE? The NLRB And The Rights of Non- Union Workers William - PDF document

6/16/2014 WHAT DO YOU MEAN YOU’RE ON STRIKE? The NLRB And The Rights of Non- Union Workers William M. Thacker Jeffrey M. Beemer wthacker@dickinsonwright.com jbeemer@dickinsonwright.com (734) 623-1902 (615) 620-1719 TOPICS FOR DISCUSSION • Application of Section 7 of the NLRA to non-unionized employers • Forms of Protected/Concerted Activity • NLRB attacks on employer policies • The special problem of social media policies • What’s next? • Your questions 1

6/16/2014 SECTION 7 OF THE NLRA • NLRA applies to private sector employees • Protections not limited to unionized employees • The NLRB can issue complaints against private sector employers alleging unlawful conduct, even if the employees involved are non-union. • The Board may require employers to remedy an unlawful discharge by reinstating the employee, plus pay full back pay with interest. • The Board may require revisions to the employer’s policies, plus require posting of notices that the employer’s policy has been revised to comply with the law. SECTION 7 OF THE NLRA “ Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain 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 such activities . ” 29 U.S.C. § 157. 2

6/16/2014 SECTION 7 OF THE NLRA Protected Concerted Activity • NLRA protects not only “union activity” but, also, “other concerted activities. ” • In other words, non-union employers also have obligations under Section 7 of the NLRA. • NLRB has been expanding these rights. SECTION 7 OF THE NLRA Concerted Activity • Employee attempts to organize a union. • Employee raises concerns on behalf of another employee/employees. • Two or more employees act to address terms or conditions of employment. 3

6/16/2014 SECTION 7 OF THE NLRA Concerted Activity From the NLRB: • Is the activity concerted? Generally, this requires two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others. • Does it seek to benefit other employees? Will the improvements sought – whether in pay, hours, safety, workload, or other terms of employment – benefit more than just the employee taking action? Or is the action more along the lines of a personal gripe, which is not protected? SECTION 7 OF THE NLRA Protected Activity • Very broadly defined by NLRB. • Current NLRB very expansive. • From NLRB website: Is it carried out in a way that causes it to lose protection? Reckless or malicious behavior, such as sabotaging equipment, threatening violence, spreading lies about a product, or revealing trade secrets, may cause concerted activity to lose its protection. (www.nlrb.gov/rights-we-protect/protected-concerted- activity) 4

6/16/2014 SECTION 7 OF THE NLRA Protected Concerted Activity • Protected concerted activity for employees’ “mutual aid or protection. ” • “Mutual aid or protection” means the activity must be directly or indirectly connected to the terms and conditions of employment. FORMS OF PROTECTED/CONCERTED ACTIVITY STRIKES/WORK STOPPAGES • Non-union employees have the right to engage in work stoppage/strike for their mutual aid and protection. • Must be “protected ; ” i.e., concern wages, hours, or terms and conditions of employment. 5

6/16/2014 FORMS OF PROTECTED/CONCERTED ACTIVITY STRIKES/WORK STOPPAGES • Not all work disruptions are protected. • Sick-outs, work slow downs are not protected. • Intermittent strikes are not protected.  Burden is on the employer to show that action is part of a plan or pattern of intermittent work action. FORMS OF PROTECTED/CONCERTED ACTIVITY STRIKES/WORK STOPPAGES • Violence and property damage are not protected.  Picket line conduct  Sabotage 6

6/16/2014 FORMS OF PROTECTED/CONCERTED ACTIVITY ATTACK ON EMPLOYER POLICIES • NLRB expanding limits – some might argue beyond reason. • Non-compliant policy is an unfair labor practice, as such a policy might “chill” exercise of Section 7 rights. • Just having a non-compliant policy is enough – regardless of how it is applied. FORMS OF PROTECTED/CONCERTED ACTIVITY ATTACK ON EMPLOYER POLICIES • Disclosure and discussion of wage and salary information may not be prohibited. • Non-Solicitation Rules:  “Work time” versus “working hours. ”  May not prohibit during breaks/lunch time.  Uniformity of application – if allow Avon sales during working time, can you ban union solicitation? 7

6/16/2014 FORMS OF PROTECTED/CONCERTED ACTIVITY DISTRIBUTION RULES • May not forbid distribution of union literature. • Limit to non-working areas. • Uniformity of application – if you permit an employee to hand out flyers for a fundraiser, have you opened the door for union flyers? FORMS OF PROTECTED/CONCERTED ACTIVITY AT-WILL DISCLAIMERS • American Red Cross – An NLRB ALJ held that an at-will disclaimer violated employees’ Section 7 (protected concerted activity) rights because it implied unionization would be futile: “… the at-will employment relationship cannot be amended, modified or altered in any way. ” • To survive NLRB scrutiny, an at-will disclaimer must allow that modifications can be made: “… except as modified in writing by the President of the Company. ” 8

6/16/2014 FORMS OF PROTECTED/CONCERTED ACTIVITY INTERNAL INVESTIGATIONS • Banner Health System , 358 NLRB No. 93 (2013). NLRB held that a policy or practice of asking or requiring employees involved in internal investigations not to discuss violated employees’ Section 7 rights. • Employers must have “legitimate business justification” to request employees to keep investigations confidential:  Protect witnesses  Prevent destruction of evidence  Protecting the integrity of the investigation is insufficient to outweigh the employee’s Section 7 rights. FORMS OF PROTECTED/CONCERTED ACTIVITY CONFIDENTIALITY OF INVESTIGATIONS • Banner Health System was followed in Boeing Co ., where an NLRB ALJ struck down Boeing's policy of asking employees involved in workplace investigations to keep them confidential. • Blanket policies requesting or requiring employees to keep internal investigations confidential are unlawful and infringe on employees’ rights to engage in protected concerted activity. • General Counsel guidance on policies: “[Employer] may decide in some circumstances” to request confidentiality to preserve integrity of investigations. Evaluate on a case-by-case basis. 9

6/16/2014 FORMS OF PROTECTED/CONCERTED ACTIVITY EMPLOYEE CONDUCT POLICIES • Requiring employees to be respectful and avoid use of profanity may “chill” Section 7 rights. • Karl Knauz Motors, Inc ., 358 NLRB No. 164 (2012). NLRB held that an employee handbook requiring “courtesy” was unlawful because a reasonable employee could interpret such a requirement as prohibiting discourteous behavior such as advocating for better terms and conditions of employment. FORMS OF PROTECTED/CONCERTED ACTIVITY CONTACT WITH MEDIA • NLRB prohibits blanket prohibition on employee contact with media. • Employees may interpret policy to preclude speaking with media about terms and conditions of employment. 10

6/16/2014 FORMS OF PROTECTED/CONCERTED ACTIVITY OPEN DOOR/GRIEVANCE POLICY • Policies are unlawful which suggest employees must raise concerns with company management.  Right to raise concerns with NLRB  Right to discuss among themselves/with outsiders any issues with terms and conditions of employment. FORMS OF PROTECTED/CONCERTED ACTIVITY – THE SPECIAL PROBLEM OF SOCIAL MEDIA POLICIES • Social media cases continue to expand notions of protected concerted activity. • The dilemma: Companies want to protect their brands by prohibiting employee communication on Facebook, Twitter, or other social media platforms that: > Reflect poorly on the company and its image > Make unauthorized statements, endorsements, or product claims • Section 7 applies to employee discussions of wages, benefits, and other shared work-related issues, even if the communication occurs outside of work and some of the recipients are outside third parties. 11