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WHAT DO YOU MEAN YOU’RE ON STRIKE?

The NLRB And The Rights of Non-Union Workers

William M. Thacker Jeffrey M. Beemer wthacker@dickinsonwright.com jbeemer@dickinsonwright.com (734) 623-1902 (615) 620-1719

TOPICS FOR DISCUSSION • Application of Section 7 of the NLRA to non-unionized

employers

• Forms of Protected/Concerted Activity

• NLRB attacks on employer policies

• The special problem of social media policies

• What’s next?

• Your questions

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SECTION 7 OF THE NLRA • NLRA applies to private sector employees

• Protections not limited to unionized employees

• The NLRB can issue complaints against private sector employers alleging unlawful conduct, even if the employees involved are non-union.

• The Board may require employers to remedy an unlawful discharge by reinstating the employee, plus pay full back pay with interest.

• The Board may require revisions to the employer’s policies, plus require posting of notices that the employer’s policy has been revised to comply with the law.

SECTION 7 OF THE NLRA

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, 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, and shall also have the right to refrain from any or all such activities.”

29 U.S.C. § 157.

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SECTION 7 OF THE NLRA

Protected Concerted Activity

• NLRA protects not only “union activity” but, also, “other concerted activities.”

• In other words, non-union employers also have obligations under Section 7 of the NLRA.

• NLRB has been expanding these rights.

SECTION 7 OF THE NLRA

Concerted Activity

• Employee attempts to organize a union.

• Employee raises concerns on behalf of another employee/employees.

• Two or more employees act to address terms or conditions of employment.

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SECTION 7 OF THE NLRA

Concerted Activity

From the NLRB:

• Is the activity concerted? Generally, this requires two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others.

• Does it seek to benefit other employees? Will the improvements sought – whether in pay, hours, safety, workload, or other terms of employment – benefit more than just the employee taking action? Or is the action more along the lines of a personal gripe, which is not protected?

SECTION 7 OF THE NLRA

Protected Activity

• Very broadly defined by NLRB.

• Current NLRB very expansive.

• From NLRB website: Is it carried out in a way that causes it to lose protection? Reckless or malicious behavior, such as sabotaging equipment, threatening violence, spreading lies about a product, or revealing trade secrets, may cause concerted activity to lose its protection. (www.nlrb.gov/rights-we-protect/protected-concerted-activity)

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SECTION 7 OF THE NLRA

Protected Concerted Activity

• Protected concerted activity for employees’ “mutual aid or protection.”

• “Mutual aid or protection” means the activity must be directly or indirectly connected to the terms and conditions of employment.

FORMS OF PROTECTED/CONCERTED ACTIVITY

STRIKES/WORK STOPPAGES

• Non-union employees have the right to engage in work stoppage/strike for their mutual aid and protection.

• Must be “protected;” i.e., concern wages, hours, or terms and conditions of employment.

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FORMS OF PROTECTED/CONCERTED ACTIVITY

STRIKES/WORK STOPPAGES

• Not all work disruptions are protected.

• Sick-outs, work slow downs are not protected.

• Intermittent strikes are not protected.

Burden is on the employer to show that action is part of a plan or

pattern of intermittent work action.

FORMS OF PROTECTED/CONCERTED ACTIVITY

STRIKES/WORK STOPPAGES

• Violence and property damage are not protected.

Picket line conduct

Sabotage

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FORMS OF PROTECTED/CONCERTED ACTIVITY

ATTACK ON EMPLOYER POLICIES

• NLRB expanding limits – some might argue beyond reason.

• Non-compliant policy is an unfair labor practice, as such a policy might “chill” exercise of Section 7 rights.

• Just having a non-compliant policy is enough – regardless of how it is applied.

FORMS OF PROTECTED/CONCERTED ACTIVITY

ATTACK ON EMPLOYER POLICIES

• Disclosure and discussion of wage and salary information may not be prohibited.

• Non-Solicitation Rules:

“Work time” versus “working hours.”

May not prohibit during breaks/lunch time.

Uniformity of application – if allow Avon sales during working time, can you ban union solicitation?

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FORMS OF PROTECTED/CONCERTED ACTIVITY

DISTRIBUTION RULES

• May not forbid distribution of union literature.

• Limit to non-working areas.

• Uniformity of application – if you permit an employee to hand out flyers for a fundraiser, have you opened the door for union flyers?

FORMS OF PROTECTED/CONCERTED ACTIVITY

AT-WILL DISCLAIMERS

• American Red Cross – An NLRB ALJ held that an at-will disclaimer violated employees’ Section 7 (protected concerted activity) rights because it implied unionization would be futile: “… the at-will employment relationship cannot be amended, modified or altered in any way.”

• To survive NLRB scrutiny, an at-will disclaimer must allow that modifications can be made: “… except as modified in writing by the President of the Company.”

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FORMS OF PROTECTED/CONCERTED ACTIVITY

INTERNAL INVESTIGATIONS

• Banner Health System, 358 NLRB No. 93 (2013). NLRB held that a policy or practice of asking or requiring employees involved in internal investigations not to discuss violated employees’ Section 7 rights.

• Employers must have “legitimate business justification” to request employees to keep investigations confidential:

Protect witnesses

Prevent destruction of evidence

Protecting the integrity of the investigation is insufficient to outweigh the employee’s Section 7 rights.

FORMS OF PROTECTED/CONCERTED ACTIVITY

CONFIDENTIALITY OF INVESTIGATIONS

• Banner Health System was followed in Boeing Co., where an NLRB ALJ struck down Boeing's policy of asking employees involved in workplace investigations to keep them confidential.

• Blanket policies requesting or requiring employees to keep internal investigations confidential are unlawful and infringe on employees’ rights to engage in protected concerted activity.

• General Counsel guidance on policies: “[Employer] may decide in some circumstances” to request confidentiality to preserve integrity of investigations. Evaluate on a case-by-case basis.

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FORMS OF PROTECTED/CONCERTED ACTIVITY

EMPLOYEE CONDUCT POLICIES

• Requiring employees to be respectful and avoid use of profanity may “chill” Section 7 rights.

• Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012). NLRB held that an employee handbook requiring “courtesy” was unlawful because a reasonable employee could interpret such a requirement as prohibiting discourteous behavior such as advocating for better terms and conditions of employment.

FORMS OF PROTECTED/CONCERTED ACTIVITY

CONTACT WITH MEDIA

• NLRB prohibits blanket prohibition on employee contact with media.

• Employees may interpret policy to preclude speaking with media about terms and conditions of employment.

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FORMS OF PROTECTED/CONCERTED ACTIVITY

OPEN DOOR/GRIEVANCE POLICY

• Policies are unlawful which suggest employees must raise concerns with company management.

Right to raise concerns with NLRB

Right to discuss among themselves/with outsiders any issues with terms and conditions of employment.

FORMS OF PROTECTED/CONCERTED ACTIVITY – THE SPECIAL PROBLEM OF SOCIAL MEDIA

POLICIES • Social media cases continue to expand notions of protected concerted

activity.

• The dilemma: Companies want to protect their brands by prohibiting employee communication on Facebook, Twitter, or other social media platforms that:

> Reflect poorly on the company and its image

> Make unauthorized statements, endorsements, or product claims

• Section 7 applies to employee discussions of wages, benefits, and other shared work-related issues, even if the communication occurs outside of work and some of the recipients are outside third parties.

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FORMS OF PROTECTED/CONCERTED ACTIVITY – THE SPECIAL PROBLEM OF

SOCIAL MEDIA POLICIES

• An NLRB ALJ ruled in April 2014 that Kroger’s Online Communications Policy was unlawful.

• Provisions found unlawful:

Requiring employees to use a specific disclaimer if publishing work-related information on-line.

Banning use of Company insignia, banner, or logo.

Restricting use of Company “confidential information.”

Prohibiting “inappropriate” on-line behavior.

FORMS OF PROTECTED/CONCERTED ACTIVITY – THE SPECIAL PROBLEM OF SOCIAL MEDIA POLICIES

• DirectTV, 359 NLRB No. 54 (2013). NLRB struck down an employer’s rule against employees making comments to the media and directing employees to refer such statements to the communications department. Company also advised employees to “never discuss details about your job, company business or work projects with anyone outside the company.”

• Pier Sixty, LLC, a 2013 NLRB ALJ decision. During a union organizing election, an employee posted comments about his manager on Facebook: “Bob is such a NASTY M****F****R don’t know how to talk to people!!! F**** his mother and his entire f****g family!!! What a LOSER!!! Vote YES for the UNION.” The NLRB ALJ held that this was protected concerted activity because the comments were made in the context of encouraging union activity and opposing what employees perceived to be rude treatment by managers.

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FORMS OF PROTECTED/CONCERTED ACTIVITY--EXAMPLES OF UNLAWFUL TERMINATIONS

Actual Employee Facebook Posts:

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

“What the f… Try doing my job. I have 5 programs.”

“What the Hell, we don’t have a life as is!”

“Tell her to come do [my] f’ing job. If I don’t do enough, this is just dum (sic).”

FORMS OF PROTECTED/CONCERTED ACTIVITY--EXAMPLES OF UNLAWFUL TERMINATIONS

• Five licensed social workers of a non-profit social services provider fired for Facebook posts (on a Saturday) responding to criticism of poor job performance by a co-worker. The co-workers assisted victims of domestic violence.

• Employer’s Executive Director considered the Facebook comments to be “cyber-bullying” and harassing behavior in violation of employer’s zero tolerance policy prohibiting such conduct.

• NLRB ordered reinstatement with back pay because the Facebook posts were concerted activity because they related to employee staffing levels, and the discharges were motivated by the employees’ protected concerted activity.

Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (2012)

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FORMS OF PROTECTED/CONCERTED ACTIVITY--EXAMPLES OF UNLAWFUL TERMINATIONS

“It’s pretty obvious that my manager is as immature as a person can be and she proved that this evening even more so. I’m am (sic) unbelievably stressed out and I can’t believe NO ONE is doing anything about it! The way she treats us in (sic) NOT okay but no one cares because every time we try to solve conflicts NOTHING GETS DONE!!”

FORMS OF PROTECTED/CONCERTED ACTIVITY--EXAMPLES OF UNLAWFUL TERMINATIONS

•Two employees who worked for a retail clothing company were in a dispute with the store manager about closing hours, which was a safety concern.

•Employer fired the employees six days after Facebook posts criticizing their supervisor because “things were not working out.”

•The employees’ concerted activity was presenting concerns about working late hours in an unsafe neighborhood. The Facebook posts were a continuation of that effort.

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FORMS OF PROTECTED/CONCERTED ACTIVITY--EXAMPLES OF UNLAWFUL TERMINATIONS

• NLRB ALJ ruled the firings violated the employee’s Section 7 rights to engage in protected concerted activity.

• The ALJ ordered reinstatement of both employees with back pay.

Design Technology Group, d/b/a Bettie Page Clothing, 359 NLRB No. 96 (2013)

FORMS OF PROTECTED/CONCERTED ACTIVITY-- EXAMPLES OF LAWFUL TERMINATIONS

“The Government needs to step in and set a limit on how many kids people are allowed to have based on their income. If you can’t afford to feed them, you shouldn’t be allowed to have them…. Our population needs to be controlled! In my neck of the woods, when the whitetail deer get to be too numerous, we thin them out!... Just go to your nearest big box store and start picking them off…. We cater too much to the handicapped nowadays! Hell, if you can’t walk, why don’t you stay the f___ home!!!!!”

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FORMS OF PROTECTED/CONCERTED ACTIVITY--EXAMPLES OF LAWFUL TERMINATIONS

•Angry rant about customers by Wal-Mart greeter on Facebook resulted in his termination.

•The NLRB dismissed the employee’s charge because the NLRA was not implicated.

•The employee’s communications did not address working conditions, nor did they arise out of any concern or complaint about his working conditions.

•Mere gripes not made in relation to group activity among employees is generally not protected under the NLRA.

Advice Memorandum, Office of the Gen. Counsel, Walmart, No. 11-CA-067171 (N.L.R.B. May 30, 2012)

FORMS OF PROTECTED/CONCERTED ACTIVITY – THE SPECIAL PROBLEM OF

SOCIAL MEDIA POLICIES

TAKEAWAYS

• Common sense, longstanding policies are increasingly under attack.

• A rule is clearly unlawful if it explicitly restricts Section 7 protected activities.

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FORMS OF PROTECTED/CONCERTED ACTIVITY – THE SPECIAL PROBLEM OF

SOCIAL MEDIA POLICIES • If the policy does not explicitly restrict protected activities, it will only

violate Section 8(a)(1) upon a showing that:

• Employees would reasonably construe the language to prohibit Section 7 activity;

• The rule was promulgated in response to union activity; or

• The rule has been applied to restrict the exercise of Section 7 rights.

• Policies must be narrowly tailored and must make clear that protected concerted activity is not prohibited.

• Review of current policies is recommended.

WHAT’S NEXT?

• Purple Communications, Inc. – NLRB looking to overturn 2007 decision (Register-Guard) holding that workers have no statutory right to use their employers’ e-mail for Section 7 purposes.

• Micro Units after Specialty Healthcare, 357 NLRB 83 (2011)

• Quickie Election Rules

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QUESTIONS