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The NLRB’s Expanded Agenda and Regulatory Efforts

Megan Belcher, Vice President and Chief Employment Counsel, ConAgra Foods

Nicky Jatana, Partner, Jackson Lewis LLP

Deanna Lindquist, Assistant General Counsel, Head of the Employment Section, Wells Fargo

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What We Will Cover Today

• The New NLRB Members• Protected Concerted Activity• Social Media• Employee Handbooks, At-Will Statements and Codes of Conduct• Confidentiality of Investigations• Class/Collective Action Waivers and Confidentiality Provisions in Arbitration Agreements• Micro-units • Status of Quickie Elections and Notice Posting Rule• What is Coming in 2014

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The New NLRB Members• The establishment of the first fully-confirmed National Labor Relations Board since 2003 as well as the confirmation

of Thomas Perez as Secretary of Labor, foretell renewed efforts to enact big labor’s policy agenda through the regulatory, administrative, and enforcement processes.

• On August 12, 2013 the following 4 new NLRB members were sworn in and the NLRB officially has a proper quorum: – Nancy Schiffer– Harry I. Johnson, III– Kent Hirozawa– Philip A. Miscimarra

• Mark Gaston Pearce remains Chairman of the Board

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Protected Concerted ActivityIn determining whether employee activity is entitled to the protections of Section 7, the Board looks at the following:• whether the activity is “concerted”

• Examples: two or more employees – usually (but not always), class-action lawsuits, calling a government agency about safety/working conditions, filing administrative charges to remedy sexual harassment, complaining to news media or customers;

• whether the activity is “for mutual aid or protection” • Examples: improvements in wages, benefits, safety, overtime, staffing or other terms and conditions of

employment• Broadly interpreted to cover conduct that has only minimal impact on the “terms and conditions of

employment” of an employee’s employment; and• whether the activity has lost the protection of Section 7 by reasons of (1) its means or (2) its objectives

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Social Media and Concerted Activity

• NLRB extends concerted activity to social media; Board reviewing over 100 cases involving Twitter, Facebook, YouTube and other forms of social media

• Questions to Ask:– Do posts suggest collective action by employees?– Do posts reference prior discussions that could be concerted activity?– Did other employees respond to post?– Did employee responses indicate agreement with post or only sympathy?– Did employees take action after posts, such as engaging in discussions offline?– “Like” buttons count!– When may an employer discipline an employee based on the employee’s online activities?– Do the employer’s social media policies prohibit the kinds of activities protected by the NLRA?

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Employee HandbooksPortions of your handbooks which should be reviewed for compliance with the NLRA in view of recent NLRB decisions dealing with the “chilling” of organizational rights:

ConfidentialitySpeaking to the MediaInsignia and Dress Code PoliciesRecordingsHarassmentSolicitation/DistributionOff-Duty ConductChain of CommandOff-Duty AccessSocial Media“At-Will” Employment PoliciesEmailFraternization“Goals and Objectives,” “In the Company’s Interests,” Cooperation, Loyalty and Attitude Rules

NLRB Extending Reach to Non-Union Employers

Over past few years, NLRB has taken a more aggressive approach to nonunion workplace policies. Why?

Only 6.9% of the private workforce is unionized. Attempting to establish relevance to other 93.1% through:

• Education: “Protected Concerted Activity” site at https://www.nlrb.gov.faq/nlrb

• Rulemaking: Mandatory Poster Regarding Union Rights at http://www.nlrb.gov/poster

• Decisions that impact employer policies and practices:• At-will employment language• Code of Business Conduct and other Handbook terms• Confidentiality of investigations• Class Action Waivers

At-Will Employment Statements

• Found at-will language might chill employees from advocating concertedly to change at-will status if it is written in such a way to suggest that policy cannot be changed through union organizing or collective bargaining.

• Focus on the integration and modification language that accompanies at-will language, not basic at-will relationship itself.

• Board has approved certain at-will modification language, such as:• “No representative of the Company has authority to enter into any agreement contrary

to the foregoing ‘employment at will’ relationship.”• “No manager, supervisor, or employee of Rocha Transportation has any authority to

enter into an agreement for employment for any specified period of time or 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.”

• Review offer letters, employment agreements, handbooks, codes of conduct, and other agreements such as trade secret agreements to ensure at-will clause is in line with recent NLRB decisions and continue to monitor NLRB developments.

Handbook and Code of Business Conduct Policies

• Contact with the Media:• Policies limiting employee’s contact with media struck down as unlawful restriction on ability to

discuss terms and conditions with third parties.

• Internal Complaint Procedures:• Board struck down employer policy indicating to whom employees should voice complaints,

finding that it “implicitly prohibits its employees from making complaints to other employees or entities.”

• Definition Confidential Information:• Defining “personnel information and documents” and “financial information, including costs” as

confidential is overbroad.

• Standards of Employee Conduct:• Prohibiting employee from engaging in “inappropriate behavior while on Company property” or

“performing activities other than Company work during working hours”, “walking off the job” or using loud, abusive or foul language is overbroad.

• Other Handbook Provisions:• Insignia and Dress Code Harassment Email• Recordings Off-Duty Conduct Fraternization• Solicitation and Distribution Off-Duty Access Cooperation, Loyalty and Attitude

Banner Health System and Confidentiality of Investigations:

• Employer policy to instruct all employees interviewed as part of an investigation to maintain the confidentiality of investigation struck down.

• Rationale: “generalized concerns with protecting the integrity of an investigation is insufficient to outweigh employees’ Section 7 rights.”

• Blanket confidentiality instructions are prohibited; instead employers must show specific, legitimate business reason to request confidentiality, taking into account:• Protecting Complainant and Witnesses: Is there a risk of intimidation or

retaliation? Did the complainant or witness express a concern of retaliation?• Protecting against Destruction of Evidence: Is there a risk that witnesses may

alter or destroy documents, emails or other relevant materials?• Protecting against Fabrication of Evidence: Is there a risk that witnesses may

influence others to alter their statements or recollection of events?• Protecting against a Cover-up: Is there a risk of non-cooperation if witnesses

prematurely learn of the investigation?

D.R. Horton and Class or Collective Action Waivers

• NLRB held that home builder D.R. Horton’s arbitration agreement violated the NRLA because it required employees – as a condition of employment – to forgo class and collective action court and arbitration proceedings.

• Rationale: Section 7 affords employees the right to have their employment-related claims adjudicated collectively.

• Recently, an ALJ held that JP Morgan Chase’s class action waiver violated NLRA and ordered JP Morgan Chase to withdraw a motion to dismiss the employees’ wage and hour class action.

• Several courts have enforced class action waivers, despite D.R. Horton.• D.R. Horton currently is on appeal to the Fourth Circuit; issue appears

destined for the U.S. Supreme Court.

Status of the NLRB’s Notice Posting Rule

What is the Notice Posting rule?• How to form or join unions• Bargain collectively• Strike or engage in other concerted activities• Physical posting• Posting of link

What happened once the NLRB issued? What if you are a federal contractor? What is the status of the rule now?

• D.C. Circuit (May)• Fourth Circuit (June)• Posting ruling activities by NRLB

Specialty Healthcare & Micro Units

"Micro-unit" is the term used to refer to a small group of employee, who reside within a larger employee group at a particular worksite, that a union seeks to represent.

Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011)

Certified nursing assistants at a nursing home may comprise an appropriate bargaining unit

• Without including other nonprofessional employees at the facility• Unions get to carve out the unit they want

• Even if more employees share a community of interest with the petition or unit

• Radical departure from traditional community of interest analysis• Burden on employers to rebut with “overwhelming” community of

interest evidence

Micro Unit Madness

Kindred Nursing Centers East, LLC v. NLRB, 2013 WL 4105632 (6th Cir. Aug. 15, 2013)• Affirmed the NLRB’s Specialty Health Care ruling of 2011.• An employer challenging a proposed bargaining unit on the basis that it improperly

excludes certain employees is required to prove that the excluded workers share "an overwhelming community of interest" with those in the proposed unit.

Why should employers care?• Smaller units often are easier to organize • Smaller units create the likelihood of inefficiency in operations• Increases the chances of multiple bargaining units and multiple unions at the

same worksite• Quickie election with smaller units = employer disadvantage

Getting proactive with labor audits

The Path Forward in 2014? Unions’ Continued Fight Against Loss of Union Membership

Union Membership Decline ChangeNational Education Association (NEA) 99,175 to 3.1 million -3%International Brotherhood of Teamsters 51,924 to 1.3 million -4%Service Employees International Union (SEIU) 44,960 to 1.9 million -2.3%American Federation of State, County and Municipal Employees 37,288 to 1,386,296 -2.6%American Federation of Teachers (AFT) 25,131 to 848,323 -2.9%United Food and Commercial Workers 13,102 to 1,272,313 -1%Laborers International Union of North America (LIUNA) 8,422 to 571,065 -1.5%International Association of Machinists 4,033 to 576,947 -.7%

Many of the nation’s largest unions lost significant membership in 2012, keeping with a thirty year trend, according to annual financial disclosure reports filed with the U.S. Department of Labor, Bloomberg/BNA’s Daily Labor Report has reported. The 2012 reports show the following among the ten largest unions:  

The Path Forward in 2014? The NLRB and its Agenda

The new Board and the rite of passage of reversal of prior Board decisions

Noel Canning and its continuing evolution The new vs. the old General Counsel

• Notes on the General Counsel’s Report on the Midwinter Meeting of the ABA Practice and Procedure Committee of the Labor and Employment Law Section

The new and evolving era of Section 7 rights Continued attacks on company polices and the at will employment

relationship Where will they go with employee’s email “rights”? Witnesses in employee interviews – another change?

The Path Forward in 2014? Refocused and Agile Organizing Techniques

Corporate Campaigns 2.0 Focus on new industries with big employee populations “Quickie” Strikes The NLRB has an app for that Aggressive techniques approved by NLRB Technology and social media Utilizing third party advocacy groups International publicity Pushing the “corporate responsibility” lever Targeting specific geographic areas