David M. Buday Keith E. Eastland - millerjohnson.com · David M. Buday Keith E. Eastland The materials and information have been prepared for informational purposes only. This is
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Appointment is particularly meaningful due to the role that the General Counsel plays in setting the Board’s litigation positions
General Counsel Appointed by the President to a 4-year term
Independent from the Board
Responsible for investigation / prosecution of unfair labor practice cases and for supervision of the NLRB field offices in the processing of cases
What this means Driving force for potential changes in the law
The GC’s decisions and course of action will shape what issues the Board addresses over the next few years, and the stance the NLRB will take on those issues
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Hint: This will be a significant departurefrom the previous General Counsel.
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Mark Gaston Pearce’s second term recently expired on August 27, 2018
Departure was widely expected upon Trump’s election due to Pearce’s notoriously pro-labor approach and decisions
Surprisingly, President Trump nominated him for another term, and he is currently awaiting Senate confirmation
In Boeing Company (12/14/17), the NLRB gave voice to every frustrated employer’s issue with the agency’s position on rules and policies:
“Over the past decade, the Board has invalidated a large number of common-sense rules and requirements that most people would reasonably expect every employer to maintain. We do not believe that when Congress adopted the NLRA in 1935, it envisioned that an employer would violate federal law whenever employees were advised to ‘work harmoniously’ or conduct themselves in a ‘positive and professional manner’.”
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The Board proceeded to overrule Lutheran Heritage’s “reasonably construe” standard
“Mere maintenance” of facially neutral employment policies, work rules, and handbook provisions will no longer turn on a single inquiry
Instead, the Board will take into account two things1. The nature and extent of the potential impact on
NLRA rights
2. The employer’s “legitimate justifications” associated with the rule
A memo from Peter Robb, General Counsel (6/6/18) explains further:
Category 1: Rules that are generally lawful to maintain Civility Rules: “Behavior that is rude, condescending or
otherwise socially unacceptable” is prohibited.
No-Photography / Recording Rules, Rules Against Insubordination or Non-cooperation, Disruptive Behavior Rules, Rules Protecting Confidential Information, Rules Against Defamation / Misrepresentation, Rules Against Use of Employer Intellectual Property, Rules Banning Disloyalty or Nepotism
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Peter Robb, Memo (6/6/18) cont.
Category 2: Rules warranting individualized scrutiny Look to see if the rule interferes with rights guaranteed by
the NLRA, and if so, whether any adverse impact on those rights is outweighed by legitimate justifications
Category 3: Rules that are unlawful to maintain Confidentiality Rules specifically regarding wages, benefits,
or working conditions, and Rules against joining outside organizations or voting on matters concerning employer
Remember how we told you not to try and “NLRB-proof” your handbook? Good thing you listened!!!
If you didn’t listen, it’s time to revert back to your old handbook.
MJ’s 2015presentation
While the Boeing decision is an important return to common sense handbook rules, it does not excuse discriminatory application of facially neutral language Don’t think the Boeing decision will
excuse the trampling of otherwise protected concerted activity If you apply facially-neutral language only
to stifle protected concerted activity, that application still violates the Act
What is a Microunit?A microunit was simply a small grouping of
employees within a larger workplace. By using these small units, Unions could gain a foothold in a location where the majority of employees would not otherwise approve a union.
What happened? The Board overruled the 2011 case of Specialty
Healthcare & Rehabilitation Center of Mobile in a 3-2 decision
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What is the new standard? The Board reinstated the traditional community-of-
interest standard for determining an appropriate bargaining unit in union representation cases (PCC Structurals, Inc.)
As mentioned above, the GC of the NLRB has an pivotal role in determining the stance of the NLRB on important labor issues.
Mr. Robb released a memo in March providing some insight into areas we could likely see changes in the near future Standard for Protected Concerted Activity
Obama Rule – Fresh & Easy Neighborhood Markets The Board found that an employee was engaged in
PCA for the purpose of mutual and protection when she individually solicited three coworkers to sign a piece of paper onto which she had copied amessage displayed on a whiteboard in the employee break room. The purpose was to have coworkers attest to the contents of a message in connection with the individual’s complaint about the message’s sexually offensive nature.
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Essentially, this led to the conclusion that an individualized complaint could receive protection as concerted activity “The solicited employees have an interest in helping the
aggrieved individual—even if the individual alone has an immediate stake in the outcome—because ‘next time it could be one of them that is the victim.’ ‘An injury to one is an injury to all’ is one of the oldest maxims in the American labor lexicon.” (Fresh & Easy Neighborhood Markets)
Problematic to apply – blurred lines between individual issue and concerted activity
Potential solution: Return to pre-Obama Board Standard? Goodyear Tire and Rubber (1984): An employee who
complained about his subjective belief as to equipment safety did not engage in concerted activity
Meyers Industries (II) (1986): An employee’s complaints about safety concerns in the employer vehicle the employee personally used was not concerted activity
Adelphi Inst. (1988): An employee who asked another employee whether she had ever been suspended was not engaged in concerted activity
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Section 7 of the National Labor Relations Act (NLRA) requires employers, except in very limited circumstances, to open their corporate e-mail systems to union organizing by employees and to group discussions among employees about the terms and conditions of employment during non-work time
Significantly, because Section 7 applies to all employers, not just unionized ones, the Board's decision affected almost every U.S. employer that provides a corporate e-mail system
GC Robb identified Purple Communications as an area of focus, with many suspecting it will be overturned
In August of 2017, the NLRB issued a notice, inviting the filing of briefs on whether the Board should uphold, modify or overrule Purple Communications. The GC’s office recently filed a brief arguing for the rule to be overturned for several reasons.
The decision (Purple Communications) impermissibly created a right for employees to use employer owned / financed communications systems, even where the employees have other options for communication
Purple Communications places an undue burden on employers’ business operations and has the practical effect of reducing productivity and disrupting business operations
The GC’s office also argued that the decision requires employers to provide and pay for employee communications in violation of their First Amendment Rights
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Practical impact of change Return to the old Register Guard Standard, thereby
restoring control of corporate email by allowing an employer to restrict the purpose for which it is used
Note: The GC’s brief did mention that exceptions should be made on a case-by-case basis where the Board determines that the employees are unable to communicate in any way other than through the employer’s email system, but this would likely be a rare situation
Under Pier 60, all kinds of vulgar and outlandish social media posts gained protection. Examples of protected posts Bob is such a NASTY MOTHER F**KER don't know how to
talk to people!!!!!! F**k his mother and his entire f**king family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!! (Pier Sixty LLC, 362 N.L.R.B. No. 59 (March 31, 2015))
“As I look at my pay stub…One worse than the other. I would just like to thank all the F*#KTARDS out there that voted ‘NO’…The chance they gave them was to screw us more and not get back the things we lost…Eat $hit ‘NO’ Voters…” (Novelis Corporation, 364 NLRB No. 101 (2016))
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Dissent from Pier 60: “In concluding Perez’ offensive online rant, which was fraught
with insulting and obscene vulgarities directed toward his manager and his manager’s mother and family, my colleagues recast an outrageous, individualized griping episode as protected activity. I cannot join in concluding that such blatantly uncivil and opprobrious behavior is within the Act’s protection.
Future Change? We expect any change to be more in line with the dissent,
where an employee can’t post outlandish things on social media, and hide behind the guise of NLRA protection
This is not an identified GC priority, but seems like it is ripe for change Old Rule: The NLRB would not schedule an election fewer than 25
days after the direction of election to allow the NLRB to rule on a request for review of the decision. At minimum, this gave employers at least 25 days (and often 42 days) to educate employees of the drawbacks of unionization.
New Rule (Quickie Elections): Changes in the process of filing a representation
petition, allowed for elections to be held within 13 days of the filing of said petitions
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Impact of Quickie Elections: In the three years preceding the Rules
Union files unfair labor practice charges against U of M Failure to bargain in good faith
Making changes in work shifts without negotiating
Refusing to bargain over certain conditions of employment
Discriminating against union members who are supporting their right to collective bargaining.
Three day strike authorized by U of M nurses on September 17
University of Michigan Professional Nurses Council represents 5,700 nurses at U-M hospitals and other facilities. In a recent vote on whether or not to authorize a strike, 4,000 nurses cast their ballot, with 94% voting in favor of a strike.
No date was set for the strike, but the Union said the strike would go forward if the university did not respond to claims of unfair labor practices
Tentative Agreement Reached Early on September 29, 2018, the Michigan Nurses
Association and the University of Michigan announced they had reached a tentative agreement on a three-year contract to end the ongoing labor dispute. The proposed contract language has not been made available to
the public to date.
A ratification vote remains to be scheduled, but should took place within a few weeks. Notably, the bargaining team for the MNA is recommending
The Decision, June 27, 2018 In Janus, the Supreme Court held that a public employer violates
the First Amendment when it withholds agency fees (sometimes referred to as “union dues”) from an employee for the purposes of disbursing such fees to the employee’s union if the employee does not affirmatively consent to pay such fees. The Janusdecision is revolutionary because it directly contradicts and overrules a 1977 Supreme Court decision called Abood v. Detroit Board of Education, which reached the opposite conclusion to the same question when issued 41 years ago.
Employers in the private sector will see no direct impact from the Janus decision. But because many unions are likely to see reductions in revenue as a result of this decision, Janus may decrease the overall strength of organized labor nationwide
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Impact of JanusMakes employer liable under Section 1983 if dues
are extracted contrary to consent of the employee
Essentially establishes “national” right-to-work for all public sector employers
Involves public sector employees only, BUT weakens unions (less money) with substantial public sector representation (SEIU, burse’s unions, UAW, AFSCME)
Redefines the role of the First Amendment for corporations and businesses – “weaponized first amendment”