The Post-Election National Labor Relations Board

© 2013 Armstrong Teasdale LLP © 2013 Armstrong Teasdale LLP

© 2013 Armstrong Teasdale LLP

The Post-Election National Labor Relations Board Presented by: Mark G. Jacobs



The Current Board

Mark Gaston Pearce, Chairman

Sharon Block Richard F. Griffin, Jr.


The Acting General Counsel (“AGC”)

Lafe Solomon


Section 7 – Employee “Bill of Rights”

Employees shall have the right to: • Self-organization.

• Form, join, or assist labor organization.

• Engage in other concerted activities for the purposes of: − Collective bargaining or

− Other mutual aid or protection.

Applies to union and non-union employers


Section 7 – Employee “Bill of Rights”

Protected concerted activity • Typically 2 or more employees acting together to attempt to

improve their terms and conditions of employment.

• Employees are protected against retaliation for discussing or complaining about terms and conditions of employment.


Active Issues Affecting Union and Non-Union Employers

Notice Posting At-Will Disclaimers Confidentiality of Investigations Off-Duty Access Social Media


NLRB Notice Posting

Originally scheduled to take effect April 30, 2012 - currently on hold Covers most private sector

employers – with or without unions Must post in “conspicuous

places” where employer customarily posts personnel rules, policies or employment notices


At-Will Disclaimers

Handbooks, offer letters, etc. Policy example:

• “I further agree that the at will employment relationship cannot be amended, modified, or altered in any way.”

• ALJ found that the above language violated the NLRA because an employee may “reasonably” conclude that the at-will status cannot even be changed through collective bargaining.


At-Will Disclaimers

Acting General Counsel: • Overly broad “at-will” disclaimers chill Section 7 Rights.

• Employees should not be led to believe that at-will status can never change.


At-Will Disclaimers

Mimi’s Café • “The relationship between you and Mimi's Cafe is referred to

as employment at will… No representative of the Company has authority to enter into any agreement contrary to the foregoing ‘employment at will’ relationship…”


At-Will Disclaimers

Rocha Transportation • “Employment with Rocha Transportation is employment at-

will… No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specific period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.”


Confidentiality of Investigations

Blanket Confidentiality Provisions NLRB says employers must show something more than a

“generalized concern with protecting the integrity of the investigation.” Conflicts with EEOC guidance?



Banner Health System – July 30, 2012 • Internal investigation re alternative equipment sterilization

procedures. Human resources asked employee not to discuss the investigation with others until she concluded the investigation. No threat of discipline for doing otherwise.

• The NLRB held that the confidentiality directive amounted to a rule that “had a reasonable tendency to coerce employees, and so constituted an unlawful restraint of Section 7 rights,” regardless of whether or not the employer threatened disciplinary action for breaching confidentiality.



Banner Health System – July 30, 2012 • The NLRB stated that the employer should have first made a

determination “that it has a legitimate business justification that outweighs employees’ Section 7 rights.”

− An employer’s “generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees’ Section 7 rights.” Rather, the employer should have determined whether, in this particular case, it needed to protect witnesses, evidence or testimony or prevent a cover-up, which would presumably justify an instruction to maintain confidentiality.


Off-Duty Access

“Off-duty employees are not allowed to enter or re-enter the interior of the Hospital or any other work area outside the Hospital except to visit a patient, receive medical treatment or to conduct hospital-related business.

• An off-duty employee is defined as an employee who has completed his/her assigned shift.

• Hospital-related business is defined as the pursuit of the employee’s normal duties or duties as specifically directed by management.

• Any employee who violates this policy will be subject to disciplinary action.”


Off-Duty Access

NLRB said the policy violated the NLRA because it gives employers “unlimited discretion to decide when and why employees may access the facility.” The Board asked – Would a “reasonable” employee reading

the policy believe that he or she could come onto the employer’s property when off-duty and performs activities protected under Section 7 of the Act?


Social Media

May 30, 2012 – AGC issued Report of the Acting General Counsel Concerning Social Media Cases

• Memo reviewed numerous employer social media policies that had been found unlawful by the Board.

Common Theme – Policies restricting employees from criticizing the employer’s labor policies or treatment of employees are going to be found to violate Section 7. Common Theme – Policies that have specific examples

showing that the policy is not meant to prohibit criticism of employer’s labor policies more likely to be lawful.


Social Media – NLRB Unlawful

“If you enjoy blogging or using online social networking sites such as Facebook and YouTube…please note that there are guidelines to follow if you plan to mention [Employer] or your employment with [Employer] in these online vehicles. Don’t release confidential guest, team member or company information. . . .” NLRB says unlawful because: “…would reasonably be

interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves…”


Social Media – NLRB Lawful

“Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.”


Social Media – NLRB Unlawful

“Treat Everyone With Respect: Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline…” NLRB says unlawful because “…this provision proscribes a

broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees.”


Social Media – NLRB Lawful

“Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.”


The Year Ahead

“Protected Concerted Activity” charges in the non-union setting are expected to increase. More NLRB rulemaking More labor friendly decisions


Contact Information

Mark G. Jacobs [email protected]

314.621.5070

Business

The Post-Election National Labor Relations Board