Developments Before the National Labor Relations Board...Lamons Gasket Co., 357 NLRB No. 72 (Aug. 26, 2011) • Overruled Dana Corp., 351 NLRB 434 (2007) – created a 45-day window

Granite State Human Resources Conference

Presented By:

Mark T. Broth, Esquire111 Amherst StreetManchester, NH 03101603.669.1000

Developments Before theNational Labor Relations

Board

ELECTIONS

Employee Free Choice Act of 2009H.R. 1409 (111th)

Would have amended NLRA by:

• Eliminating need for secret ballot election ifa majority of workers signed cardsexpressing a wish to have a union– Dubbed “Card Check Elections”

• Requiring employer to begin negotiating withunion within 90 days or be referred tocompulsory mediation and bindingarbitration, if necessary

• Increasing penalties on employers whoengage in discriminatory practices againstworkers who are involved in the union

Not Enacted

Lamons Gasket Co., 357 NLRB No.72 (Aug. 26, 2011)

• Overruled Dana Corp., 351 NLRB 434 (2007)– created a 45-day window in which employees

could request a secret ballot election followingthe voluntary recognition of a union by theiremployer

• Returned to “recognition bar” rule– prevents elections for a “reasonable period of

time” after voluntary recognition of the uniondesignated by a majority employees

• Defined “a reasonable period of bargaining,during which the recognition bar will apply,to be no less than 6 months after theparties’ first bargaining session and no morethan 1 year.”

Specialty Healthcare and Rehab. Ctr.of Mobile, 357 NLRB No. 83

(Aug. 26, 2011)

Switched Burden for Challenging BargainingUnit:

“[I]n cases in which a party contends that apetitioned-for unit containing employeesreadily identifiable as a group who share acommunity of interest is neverthelessinappropriate because it does not containadditional employees, the burden is on theparty so contending to demonstrate that theexcluded employees share an overwhelmingcommunity of interest with the includedemployees.”

Workforce Democracy and FairnessAct: HB 3094

Purpose: Avoid the proliferation of“micro” bargaining units by-

• Stipulating that “employees will not beexcluded from the unit unless the interestsof the group sought are sufficiently distinctfrom those of other employees to warrantestablishment of a separate unit”;

• Establishing criteria to determine whetheremployees share a “community of interest”;and,

• Requiring Board to determine appropriatebargaining unit before election takes place

Not Enacted

New NLRB Election RuleRule Effective as of April 30, 2012

• Limits Scope of Pre-Election Hearing toDetermining Whether an Election Should beConducted

• Limits Ability to Submit Post-Hearing Briefs

• Eliminates Pre-Election Appeals andAssociated 25-day Waiting Period

• Limits Interlocutory Appeals to“Extraordinary Circumstances”

• Establishes Post-Election Procedures

New NLRB Election RuleRule Effective as of April 30, 2012

Stated Purpose of New Election Rule:Reduce Unnecessary Litigation Beforeand After Representation Election

Effect of New Election Rule:

• Significantly Shortens Time BetweenElection Petition and Election

– Dubbed the “Quickie Election” Rule

• Makes All Board Review of RegionalDirectors’ Decisions on Post-HearingMatters Discretionary

EMPLOYEESOLICITATION

Employee Rights Notice Posting RuleEffective Date Postponed Indefinitely

• Requires most private sector employers topost a notice advising employees of theirrights under the NLRA

– Notice must be placed in a conspicuous place, whereother notifications and employer rules/policies areposted, as well as on any internet or intranet that isregularly used by the employees

– If 20% of an employer’s workforce speaks anotherlanguage, employers must post notices in thelanguages spoken by those employees

Employee Rights Notice Posting RuleEffective Date Postponed Indefinitely

STATUS OF RULE

• D.C. District Court– Upheld NLRB’s authority to issue the rule

– Struck down provision making it an Unfair LaborPractice for employers to refuse to post the notice

• South Carolina District Court– Held NLRB posting rule is unlawful

• D.C. Circuit Court of Appeals– Temporarily enjoined rule from going into effect

pending determination of NLRB authority onappeal

Extended Rights of Access Provided toEmployees of a Contractor:

“[A] property owner may lawfully exclude [off-duty] employees [of its contractor engaged inorganized activity] only where the owner isable to demonstrate that their activitysignificantly interferes with his use of theproperty or where exclusion is justified byanother legitimate business reason.”

New York New York, LLC, 356 NLRBNo. 119 (Mar. 25, 2011)

Sheet Metal Workers Int’l Ass’n, 356NLRB No. 162 (May 26, 2011)

Expanded Ability of Employees ofContractors to Engage in OrganizingEfforts:

• Held that displaying a 16-foot tall inflatablerat and distributing employee leaflets atsecondary employer location was notunduly coercive, and thus lawful

GRIEVANCE ANDARBITRATION

Memorandum GC 12-01

Guideline memorandum to NLRBregional offices stating that in caseswhere employees allege unlawfuldiscrimination or interference withemployee rights:

• Deferral to grievance/ arbitrationprocedures allowed only if doing so wouldnot require NLRB deferral for more than ayear; and,

• Deferral should be rejected where employerhas blocked employee access to disputeresolution procedures

D.R. Horton, Inc., 357 NLRB No. 184(Jan. 3, 2012)

• Held that employers may not, as a term orcondition of employment, require union ornonunion employee to sign arbitrationagreements that “waive [employees’] rightto collectively pursue employment relatedclaims in all forums, arbitral and judicial”

• Held that such arbitration agreements alsoindependently violate Sec. 8(a)(1) if they donot contain an express carve-out allowingemployees to file charges with the NLRB orEEOC

Conflicts with United States SupremeCourt Decisions

AT&T Mobility v. Concepcion, 131 S.Ct.

1740 (2011)

• Approved the use of class action waivers inarbitration agreements

CompuCredit Corp. v. Greenwood, No. 10-948, 2012 WL 43514 (Jan. 24, 2012)

• Held that federal statute providing right tofile class action lawsuits did not override thepresumption under the Federal ArbitrationAct that arbitration agreements should beenforced according to their terms

SOCIAL MEDIA

“Engaged in Protected Activity”

Protected activities are those thatrelate to the employees terms andconditions of employment

Ex. Protected Activities:

• Protesting supervisory actions– Datwyler Rubber and Plastics, Inc., 350 NLRB 669 (2007)

• Making statements related to employee staffing levels where it isclear from the context that they implicated work conditions

– Valley Hospital Medical Center, 351 NLRB 1250 (2007)

Ex. Unprotected Activities:

• Protesting over quality of service provided by employer whichhas only a tangential relationship to employee terms andconditions

– Five Star Transportation, Inc., 349 NLRB 42 (2007)

“Concerted Activity”

Employee activity is concerted when:

“An employee acts with or on the authority of otheremployees and not solely by and on behalf of theemployee himself.”

Meyers I, 268 NLRB 493, 497 (1984)

“Those circumstances where individual employees seekto initiate or to induce or to prepare for group action.”

Meyers II, 281 NLRB 882, 887 (1986)

Social Media and ConcertedActivities

Facebook postings found to beprotected concerted activity where:• Motivation of posting is directly related to

upcoming meeting with management;

• Topic of posting relates to job performance,staffing, and/or other terms and conditions ofemployment;

• Comments on posting are exchanged betweencoworkers

• Motivation of posting is to express the previouslydiscussed sentiment of the employee group relatedto concerns over commissions; and/or,

• Topic of posting had previously been brought to theemployer’s attention and thus the postingembodied “truly group complaints”

Social Media and ConcertedActivities

Facebook postings found to be notprotected concerted activity where theyare “individual gripes.”

For example, found not protected where:• Posting was not discussed with any coworkers

• No coworkers responded to posting, although they may havebeen “friends” with the posting employee

• No employee meeting or any attempt to initiate groupaction concerning the topic of the posting

• Posting was not an attempt to take employee complaints tomanagement

• Posting was not an outgrowth of employees’ collectiveconcerns

• Postings were simply inappropriate and/or offensivecomments not involving protected concerted activities

Work Rules

An employer violates Sec. 8(a)(1)through the maintenance of a workrule if that rule “would reasonablytend to chill employees in theexercise of their Section 7 rights.”

Lafayette Park Hotel, 326 NLRB 824, 825 (1998)

Work Rules

A work rule will be held to “chill employees inthe exercise of their Section 7 rights” if:

• The rule explicitly restricts Section 7protected activities

OR

• Upon a showing that:– (1) employees would reasonably construe the

language of the rule to prohibit Section 7 activity;

– (2) the rule was promulgated in response to unionactivity; or

– (3) the rule has been applied to restrict theexercise of Section 7 rights

Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004)

Work Rules

Work rules found unlawfully broad by the NLRBinclude employer prohibitions on:• Posting pictures of themselves in any media which

depict the company, brand, product, or logo in anyway

• Making disparaging comments when discussing thecompany, superiors, coworkers, and/or competitors

• Using language or engaging in actions that areinappropriate or of a general offensive or defamatorynature

• Using any social media that may violate orcompromise the privacy expectations of any person orentity

Work Rules

Remedy: Policies should explicitly define or limitbroad terms to ensure that they do not infringe onSection 7 activities

Example

Titled: “Media Relations and Press Interviews Policy”

Substance:

• Only public affairs office was authorized to make officialexternal communications

• Employees were expected to maintain confidentiality aboutsensitive information

• It was imperative that only one person should speak for theemployer to prevent misinformation

• Employees not allowed to use cameras in store or in parkinglot

• Employees questioned by media were directed to reply thatthey are not to comment for employer

Work Rules

“Discipline imposed pursuant to anunlawfully overbroad rule violates theAct in those situations in which anemployee violated the rule by

(1) engaging in protectedemployee conduct; or,

(2) engaging in conduct thatotherwise implicates concernsunderlying Section 7 of the Act.”

The Continental Group, Inc., 357 NLRB No. 39 (2011)

ENFORCEABILITY OFRECENT NLRB

DEVELOPMENTS

Recess Appointments

“The president shall have the power tofill up all vacancies that may happenduring the recess of the Senate, bygranting commissions, which shall expireat the end of their next session.”

- Article II, Section 2

Recess Appointments

Current NLRB Board

Mark G. Pearce, ChairmanConfirmed by Senate

Brian HayesConfirmed by Senate

Sharon BlockAppointed during Recess on Jan. 9, 2012

Terence F. FlynnAppointed during Recess on Jan. 9, 2012

Richard GriffinAppointed during Recess on Jan. 9, 2012

RIGHT TO WORK

Right to Work Law in NH: HB 1677

• HB 1677 is as Right-to-Work Bill vetoed byGovernor Lynch last year

• Governor Lynch announced that he wouldveto the bill if it were passed by both houses

• NH House voted to passed the Bill in March,but without the 2/3 majority necessary tooverturn a gubernatorial veto

• Senate was scheduled to debate bill in April,but Senate President chose to table the billfor the remainder of the session

CURRENT STATUS: Tabled for the remainder of 2012legislative session