Labor Law & NLRB Update NHRMA 2017

Transcription

1 Labor Law & NLRB Update NHRMA 2017 Kellis Borek Vice President, Labor & Legal Services

2 NLRB changes Agenda Status and future of Obama Era decisions and initiatives Current cases What s coming?

3 New NLRB Members Phillip Miscimarra, (R): Chair, December 2017 Mark Gaston Pierce, (D): August 2018 Lauren McFerran, (D): December 2019 Marvin Kaplan, (R): August 2020 William Emanuel, (R): Pending Source: NLRB

4 Pending Board Nomination William Emanuel long time management-side labor and employment lawyer Expected to be confirmed in September Source: YouTube

5 General Counsel NLRB General Counsel Richard Griffin, Jr. since 2013 Former General Counsel of the IUOE Term expires November 2017 Trump will appoint new General Counsel

6 Cuts in Funding House Appropriations Committee 2018 budget: NLRB to receive $249 million, a $25 million decrease from 2017 Restrict NLRB from applying Joint employer standard and micro unions Bar jurisdiction over Tribes Proposals to close Anchorage, Little Rock and San Antonio regional offices

7 Obama Era Decisions and Initiatives

8 Major Obama NLRB & Labor Initiatives The Campaign to Increase Unionization Joint Employer Right to Work Protected Concerted Activity Arbitration Rights Civility Rules Confidentiality Employer Micro Units Quickie Election Rules

9 Right to Work State laws provide that employees do not have to join union to work at union employer 18 States RTW 1980 s 28 States RTW now

10 Pension Crisis Source: National Right to Work

11 Quickie Elections Enacted in 2015 Union win rates steady

12 Quickie Election Rules

13 Quickie Election Rules Hand over those phone numbers! Quickie Election rules require employers to give a union available home and cell phone numbers and personal addresses for all employees eligible to vote Employers must provide any and all phone numbers, even if they are not actually maintained in the company s records RHCG Safety Corp., 365 N.L.R.B. No. 88 (June 2017)

14 Quickie Election Rules New NLRB could revise election schedule Distinguish between small and large employers Elimination of penalties that allow elections in favor of employer to be set aside June 14, 2017: Workforce Democracy and Fairness Act July 3, 2017: Employee Privacy Protection Act

15 Blacklisting Rule March 2017: Trump signed a resolution to permanently block blacklisting regulations that would have required federal contractors to report labor violations Required contractors to disclose violations of 14 basic workplace protections addressing wage and hour, safety and health, collective bargaining, family and medical leave, and civil rights

16 Persuader Rules March 2016: Rule amended requiring employers and their labor relations consultants, including legal counsel, to publicly disclose relationships which had long been permitted to remain confidential under the Labor-Management Reporting and Disclosure Act ( LMRDA ) June 12, 2017: DOL announced intention to rescind persuader rule Comment period on rescinding rule ended August 2017 August 11: 17 state coalition of AG s to DOL

17 Micro Units Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) Now, NLRB Chairman Miscimarra saying that the Specialty Healthcare decision wrongly decided Cristal USA, Inc., 365 NLRB No. 74 (2017) Republican controlled NLRB likely to overrule Specialty Healthcare

18 Arbitration Rights Mandatory class and collection action waivers violates employee s Section 7 rights, D.R. Horton (2012) 9 th and 7 th Circuit agrees with NLRB but 5 th and 8 th Circuit disagree The Board is routinely filing unfair labor practice complaints against employers that maintain such arbitration agreements US Supreme Court review Epic Systems Corp. v. Lewis Argument October 2017

19 Joint Employment Browning Ferris Industries (2015) held a business is joint employer if exercises even indirect control over working conditions of another business s employees, or even if it merely reserves the right to do so On appeal to DC Circuit New NLRB likely to revert to direct control standard Save Local Business Act July 2017 HR 3441

20 Use of Employer Purple (I) Communications (2014), employers, unionized or not, generally must allow employees to use corporate systems during non-work time to engage in concerted and protected activity Purple (II) (2017), NLRB confirmed the decision (2 against 1) Non-work time often will be received and read by another employee during his or her own work time Employer s legitimate right to monitor use of its technology NLRA s prohibition of employer surveillance of NLRA protected activity

21 Confidentiality in Internal Investigations Banner Healthcare (2015), employers union and nonunion precluded from compelling employees to maintain confidentially during an investigation Opportunity to over rule Banner Healthcare declined in April 2017 by DC Circuit Still the law of the land

22 Concerted Activity What may employer prohibit in workplace through policy? Being rude? Disparaging the company, supervisors, or co-workers? Bugging the workplace? Being dishonest? Trespassing? Using profanity? Using racist slurs?

23 What are Section 7 Rights? For Union and Non-Union Employees: Concerted: acting together Individual action on authority of other employees Attempting to instigate group action Protected: for mutual aid and protection Working conditions Not mere griping or ranting Unprotected: Egregious misconduct

24 Recording In Workplace Whole Foods Mkt. Grp. Inc. v. NLRB (2015) affirmed by 2 nd Circuit employer s rules prohibiting recording of company meetings or conversations in the workplace may prevent employee Section 7 rights AT&T Mobility, LLC (2017)(ALJ Dec n, 5-CA ): AT&T Mobility must rescind a workplace privacy rule at all of its U.S. facilities AT&T can protect customers by adopting a narrower rule against recording conversations that refer to customers network and financial information

25 Dishonesty Charles Schwab & Co. (ALJ Dec n, 27-CA ) handbook rules considered: Banning employees from misrepresentations or other misleading conduct Forbidding employees from disrespectful, unprofessional or rude conduct, including making disparaging comments about co-workers But handbook rule forbidding dishonest conduct was permissible under the NLRA in securities firm context

26 Access to Employer Premises MEI-GSR Holdings, LLC, 365 NLRB No. 76 (May 2017): former employee worked for the casino for two weeks She continued to hang out at one of the casino s nightclubs and filed a class FLSA action against the casino A year after the filing of the suit, the casino began denying her access to the nightclub, expressly referring to the lawsuit ULP upheld against employer

27 Access to Employer Premises Burgerville, LLC v. Industrial Workers of the World, (May 2017) Burgerville s rules said that off-duty employees could not hang out or loiter around the premises Overbroad and ambiguous loitering policy must be revise Source: Theme Park Insider

28 Racists Insults Cooper Tire & Rubber Co. v. NLRB (6th Circuit 2017) firing employee for his conduct on picket line violated Section 7 rights Employee made statements, concerning fried chicken and watermelon, at replacement workers during strike Racially derogatory comments but were not accompanied by any threatening behavior or physical acts of intimidation directed towards the replacement workers Employee engaged in protected activity, no just cause for termination

29 Profanity NLRB v. Pier Sixty, LLC (2 nd Circuit May 2017) Facebook posting wrote about the supervisor during an authorized break: Bob is such a NASTY MOTHER F***ER don t know how to talk to people!!!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!! Posting protected activity

30 Profanity Although the post contained vulgar attacks, the subject matter of the message included workplace concerns Pier Sixty consistently tolerated widespread profanity amongst its workers, including supervisors, and had never before terminated any employees for such behavior until two days before the union election The location of the comments was an online mode of communication among co-workers and was not in the immediate presence of co-workers

31 Civility T-Mobile USA, Inc. v. NLRB (5th Circuit July 2017) ruled in favor of T-Mobile US, Inc. and found that a requirement that employees maintain a "positive work environment" allowable work policy Context matters: conduct in a responsible workplace

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33 Disparagement of Company Product MikLin Enterprises, Inc. v. NLRB (8th Circuit July 2017) Source: Bloomberg Businessweek

34 Facebook Postings Butler Medical Transport, LLC v. NLRB (July 2017): A former employee posted that she believed she had been unjustly terminate, a still-employed worker responded by stating, Sorry to hear that but if you want you may think about getting a lawyer and taking them to court [Y]ou could contact the labor board too. Employer Policy: I will refrain from using social networking sights [sic] which could discredit Butler Medical Transport or damages [sic] its image.

35 Facebook Postings Laborer s Intl. Union of N. America v. NLRB (2017): Union removed union member from hiring hall out of work list when member posted criticisms of the union and its business representative on Facebook Unlawful interference with Section 7 rights, no matter that member s posting hurt union s reputation

36 Social Media Posting James Damore, Google engineer, fired after posting anti-diversity manifesto Google's left bias has created a politically correct monoculture" which prevented honest discussion of diversity Women are prone to neuroticism, which explains their low participation in the tech workforce

37 Dress Code In N-Out Burger, Inc. v. NLRB (March 2017): Employees can t be prohibited from wearing union buttons supporting the Fight for $15 campaign ordering the fast-food chain to revise its national uniform policy to allow for such insignia Source: KUT 90.5

38 Dress Code Medco Health Solutions of Las Vegas (NLRB 2016) Employee wore t-shirt, I don t need a WOW to do my job! WOW was employee recognition program Employer prohibited t-shirt because it would produce a negative impression on clients Board disagreed, any such harm to its public image was conjectural

39 Concerted Activity King Soopers, Inc.(NLRB 2016) Starbucks Barista in a grocery store told to bag groceries after she asked about taking a lunch break Her union contract guaranteed her a lunch break and she asked, What about my lunch break according to the contract? I have to leave at 2:00 pm today. Every time union employee cites a right under a collective bargaining agreement they are engaging in protected activity Make whole: back pay, benefits, search for work and interim employment expense

40 Labor Law First! Professional Janitorial v. SEIU (October 2016) Jury awarded employer $5.3 million dollars from a union that used scorched earth tactics in an organizing campaign Recruitment of employees to file false wage claims, 20 ULP s, false information published about company causing business to lose customers First time in history aggressive union tactics addressed by court

41 UBER City of Seattle enjoined by federal court from implementing ordinance allowing UBER drivers, despite their independent contractor status to organize Months for appeal process to play out

42 Conclusion

43 Bargaining Mandatory subjects of bargaining: signing bonuses and non-compete clause Washington Paid Sick Leave effective January 1, 2018 Washington Paid Leave Law effective 2019 Federal Contractor Notices and Marijuana

44 Thank You! Contact Information: Kellis M. Borek Archbright Website