NO UNION, NO PROBLEM...BUT IS IT?  THE NLRA'S IMPACT ON NON-UNION EMPLOYERS

Dean BurrellGary Harrison-Ducros

Darren Jones Samantha Martinez

Background: Section 7

Employees shall have the right to self-organization, to form, join, or assist labor organizations, and 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.

I.

SOCIAL MEDIA POLICIES

Goal of social media policies Restrict employees’ online conduct Control image of company and

management to general public Enforce standards of professionalism

and respect online

NLRB Standard for Policies Overbroad if…

“would reasonably chill employees in exercise of their Section 7 rights”

No actual adverse impact required Only POTENTIAL to impact

Overbroad policies

No disparagement of company, management, coworkers, and competitors

No disclosure of personal information of co-workers, clients, partners, or customers without their express consent

No use of company logos or photographs online

Overbroad policies

Ensure that all online posts are completely accurate and non-misleading

Ensure that all online posts do not reveal non-public information

No contact with media or government regarding the company

Must seek company’s approval before giving presentations, speeches, or appearances

Correct policies

Office of the General Counsel Advice Memorandum, No. 17-CA-087612, October 19, 2012

“Nothing in Cox’s social media policy is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment. Cox Employees have the right to engage in or refrain from such activities . . .”

Correct policies

DO NOT make comments or otherwise communicate about customers, coworkers, supervisors, the Company, or Cox vendors or suppliers in a manner that is vulgar, obscene, threatening, intimidating, harassing, libelous, or discriminatory on the basis of age, race, religion, sex, sexual orientation, gender identity or expression, genetic information, disability, national origin, ethnicity, citizenship, marital status, or any other legally recognized protected basis under federal, state, or local laws, regulations, or ordinances. Those communications are disrespectful and unprofessional and will not be tolerated by the Company . . .

Correct policies

DO respect the laws regarding copyrights, trademarks, rights of publicity and other third-party rights. To minimize the risk of a copyright violation, you should provide references to the source(s) of information you use and accurately cite copyrighted works you identify in your online communications. Do not infringe on Cox logos, brand names, taglines, slogans or other trademarks.

Correct policies

No inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate and unlawful conduct

Be respectful Be fair and courteous No “malicious, obscene, threatening,

or intimidating” behavior

Discipline under policies

STANDARD:

No discipline if activity is-Concerted

- With or on behalf of others- Designed to initiate group action- Even if without prior knowledge or

support of coworkers

No discipline if activity isProtected

To improve terms and working conditions To otherwise improve employees’ “lot”

through channels outside the employer-employee relationship

Losing protection of statute Employers may STILL discipline if:

“So loyal, reckless, or maliciously untrue as to lose the Act’s protection”

If outburst against management Place of discussion Subject matter of discussion Nature of outburst Whether outburst was provoked by unfair

labor practice

Protected conduct

Hispanics United of Buffalo, Inc. 359 NLRB No. 37 (2012), 194 L.R.R.M. 1303, 2012 NLRB LEXIS 852 (NLRB Dec. 14, 2012).

Post: Lydia Cruz, a coworker feels that we don’t help our clients enough at [the agency;] I about had it! My fellow coworkers how do u feel?”

Responses: “What the f… try doing my job I have 5 programs”

“Tell her to come do [my] f[-]ing job … if I don’t do enough.”

Result: Company terminates employees for harassment of Lydia Cruz.

Activity was for mutual aid and protection

Actions not so unreasonable as to lose the Act’s protection

Protected conduct

Three D, LLC. 34-CA-12915 (2012) (Esposito, ALJ).

Company sets meeting to discuss employees’ complaints regarding payment of state taxes.

Before meeting, former employee posts Maybe someone should do the owners of [Three

D] a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money… Wtf!!!!”

“It’s all Ralph’s fault. He didn’t do the paperwork right. I’m calling the labor board to look into it because he still owes me about 2000 in paychecks.”

Former employee also posted: “I’m already getting my 2000 after

writing to the labor board and them investigating but now I find out he’s f***ed up my taxes and I owe the state a bunch. Grrr.”

“Hahahaha he’s such a shady little man. He probably pocked [the tax payments] from all our paychecks. I’ve never owed a penny in my life till I worked for him. [Thank] goodness I got outta there.”

Current employees post: “I owe, too. Such an asshole.”

Another current employee “liked” the comments.

Two current employees were fired within days for allegedly different reasons.

Violation found.

Proper discipline

Customer service employee is called “faggot” by customer

Employee accesses Google + account on cell phone: “Just because you are having problems

with your tv service does not mean you should call me a faggot! F*** YOU!”

Other lewd messages found OK to fire employee for insulting

customer

II.

ARBITRATION AGREEMENTS

D.R. Horton, 357 NLRB No. 184 (2012), 192 L.R.R.M. 1137, 2012 NLRB LEXIS 11 (Jan. 3, 2012).

Arbitration agreement required employees to forego class or collective actions

Board found this violated Section 7 Currently appealed to Fifth Circuit

NLRB: Public policy mandates employees join

forces to balance against employer power Claimed in harmony with Federal

Arbitration Act Courts in contra:

Eighth Circuit Southern District of Texas Southern District of New York [find rest plus those that enforce it]

III.

NON SOLICITATION NOTICES

No solicitation signs and policies NLRB Advice Memorandum (Aug. 30,

2012) Lawful if restricted to work time “No solicitation” signs on door of

public place OK because they apply to general public, not employees

IV.

AT-WILL EMPLOYMENT STATEMENTS

ALJ Decision

Am. Red Cross Az. Blood Svcs. Region, No. 28-CA-23443 (Meyerson, ALJ)

At-will waiver unlawful: “I further agree that the at-will

employment relationship cannot be amended, modified, or altered in any way.”

Forecloses opportunity to work collectively to amend at-will status

Advice Memoranda

NLRB Advice Memorandum, No. 28-CA-084365 (Oct 31, 2012); NLRB Advice Memorandum No. 32-CA-086799 (Oct 31, 2012)

Lawful Handbook statement: employment at-will and

can end at any time Handbook statement: no contract of

employment created by handbook No representative of company has authority to

modify at-will status, except for company president

Still arguably unlawful Waivers of right to challenge at-will

status

VI.

CONFIDENTIALITY IN INVESTIGATIONS

Banner Health System, 368 NLRB 93 (2012) Companies may not instruct non-

supervisory employees to keep investigation interviews confidential

Exceptions: protecting witnesses preventing destruction of evidence preventing fabrication of testimony preventing a cover up

Effect on attorney-client privilege?

Confidentiality required for Upjohn warning

Another exception to Banner Health?

VI.

PICKETING OF NON-UNION WORKPLACES

Wal-Mart, Advice Memorandum NLRB Advice Memorandum, No. 26-

CP-093377 (January 30, 2013) Picketing illegal for over 30 days

without filing representation petition NLRB-sanctioned work-around?

OK if intent not to organize, just support Wal-Mart employees

Union placed statement of intent not to organize on website for 60 days