1. Navigating the NLRB’s Increasingly
Aggressive Regulation of Personnel
Policies in the Non-Union Workplace
Thursday, February 28, 2013
Robert Nichols, Partner and Leslie Selig Byrd, Partner

2. The National Labor Relations Board –
The Philosophical Outlook of the
Current Members
• By Design, the Board is a Reflection of the Administration’s
Politics
– Members and General Counsel are appointed by the
President
• Current Makeup of the Board
– Mark Gaston Pearce – former union attorney
– Sharon Block – former Senate staffer for the late
Senator Edward Kennedy
– Robert Griffin – former union attorney
• Acting General Counsel Lafe Solomon – President Obama
appointee
• Significance of Current Dispute Over Recess Appointments
2

3. Section 7 of the NLRA –
The Vehicle for Board
Regulation of Personnel
Policies
3

4. The Text of Section 7
“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…”
4

5. The Significance of Section 7
• Protects private sector employees in both union and non-union
workplaces
• Guarantees employees among other rights:
– to discuss wages and benefits and other terms and conditions of
employment with co-workers or third parties including unions,
media, customers, and others
– to take action with one or more co-workers to improve working
conditions by, among other means, raising work-related
complaints directly with the employer, a government agency, a
union, the media, or other third parties
• In exercising Section 7 rights, employees do not necessarily lose
the protection of the law simply because their concerted activities
are, in the view of the employer, discourteous, divisive, disparaging,
or even offensive or profane
5

6. When Do Personnel Policies
Violate the NLRA?
• Section 8(a)(1) of the NLRA prohibits employers from interfering
with employees’ exercise of Section 7 rights
• “An employer violates Section 8(a)(1) when it maintains a work rule
that reasonably tends to chill employees in the exercise of their
Section 7 rights.”
• If the rule or policy explicitly restricts Section 7 rights, it is unlawful.
• If it does not, the existence of a violation is dependent upon a
showing of one of the following:
– (1) employees would reasonably construe the rule’s language to
prohibit Section 7 activity;
– (2) the rule was promulgated in response to union activity; or
– (3) the rule has been applied to restrict the exercise of Section 7
rights.
6

7. Policies Calling for Courtesy,
Respectfulness, Or Otherwise
Establishing Civility Rules Often
Violate Section 7
7

8. Karl Knauz BMW,
Sept. 28, 2012
• The facts of the case itself concerned social media issues
• However, in its decision, the Board struck down a handbook policy
that did not simply apply to social media, but applied to employee
conduct generally
• The policy read:
– “Courtesy is the responsibility of every employee. Everyone is
expected to be courteous, polite and friendly to our customers,
vendors and suppliers, as well as to their fellow employees. No
one should be disrespectful or use profanity or any other
language which injures the image or reputation of the
Dealership.”
• In a 2-1 decision, the Board found the mere fact this courtesy policy
was maintained in the employer’s handbook constituted a violation
of the NLRA
8

9. Karl Knauz BMW,
Sept. 28, 2012 (cont’d)
• “We find the ‘Courtesy’ rule unlawful because employees would
reasonably construe its broad prohibition against "disrespectful"
conduct and "language which injures the image or reputation of the
Dealership" as encompassing Section 7 activity, such as
employees' protected statements—whether to co-workers,
supervisors, managers, or third parties who deal with the
Respondent—that object to their working conditions and seek the
support of others in improving them.”
• The majority noted there was “nothing in the rule, or anywhere else
in the employee handbook, that would reasonably suggest to
employees that employee communications protected by Section 7
of the Act are excluded from the rule's broad reach.”
– In other words, neither the “courtesy” rule itself nor the
handbook generally included any disclaimer indicating that its
provisions are not intended to limit Section 7 rights 9

10. Karl Knauz BMW,
Sept. 28, 2012 (cont’d)
• Majority insisted that its decision is not intended to ban all good
conduct rules rather the key as to why the rule violated Section 7
rights was that:
– “an employee reading this rule would reasonably assume that
the [employer] would regard statements of protest or criticism as
‘disrespectful’ or ‘injur[ious] [to] the image or reputation of the
Dealership.’"
• Majority made note of other examples of civility-type work rules that
might violate Section 7 rights:
– Prohibition on “derogatory attacks” on company representatives
– Prohibition on “negative conversations” about co-workers or
managers
– Prohibition on making “false or misleading statements” about
the company or co-workers
10

11. Costco, Sept. 7, 2012
• Handbook provision prohibited employee communications “that
damage the Company” or “ defame any individual or damage any
person’s reputation”
• The Board found the policy unlawful
• The “broad prohibition…clearly encompasses concerted
communications protesting the [employer’s] treatment of its
employees.”
• While these rules specifically related to electronic communications,
the Board’s analysis would apply to rules regulating any
communications, whether they be electronic or otherwise
• Board once again noted the absence of a disclaimer as supporting
the finding of a violation
11

12. TT&W Farm Products,
Sept. 11, 2012
• Handbook provision prohibited employees from “bearing false
witness” again the Company
• Board pointed out in prior cases the agency has taken the position
that having a rule that employees could be punished for making
merely “false” statements about the employer, supervisors or co-
workers violated employees’ Section 7 rights
• Board takes the position that employees may be chilled in their
exercise of their Section 7 rights by such a rule
– For example, an employee may be afraid to advocate a position
about wage or benefit levels for fear that the employer may label
the assertion as “false” and punish the employee
• On the other hand, the Board has approved of rules that provide
that employees can be punished for making “maliciously false”
statements about the company, supervisors or co-workers
12

13. Takeaways Concerning Civility –
Related Work Rules
• Avoid broad rules or policies imposing generalized prohibitions on
disrespectful, discourteous, defamatory, false, misleading, harmful,
or otherwise uncivil conduct
• Remember you do not need a work rule, particularly in a non-union
environment, to discipline an employee for reprehensible behavior
• Also, you can still maintain more narrowly tailored written rules
about unacceptable behavior - including, for example, specific
prohibitions on:
– Unlawful harassment or discrimination
– Threats of violence
– Falsification of company records, such as time sheets
• Include a disclaimer in the policy at issue or, at least, in the
handbook or manual at issue, explaining that nothing in the
document is intended to restrict employees’ rights under Section 7
of the NLRA or any other law
13

14. Confidentiality Agreements or
Policies That Arguably
Encompass “Personnel” or
“Employee” Information May
Violate Section 7
14

15. Flex Frac Logistics,
Sept. 11, 2012
•All employees of this Fort Worth-based company were required to
sign an agreement concerning confidentiality of company information
that provided:
“Employees deal with and have access to information that must stay
within the Organization. Confidential Information includes, but is not limited
to, information that is related to: our customers, suppliers, distributors;
[our] organization management and marketing processes, plans and
ideas, processes and plans; our financial information, including costs,
prices; current and future business plans, our computer and software
systems and processes; personnel information and documents, and our
logos, and art work. No employee is permitted to share this Confidential
Information outside the organization, or to remove or make copies of any
[of our] records, reports or documents in any form, without prior
management approval. Disclosure of Confidential Information could lead
to termination, as well as other possible legal action.”
[Emphasis added.]
15

16. Flex Frac Logistics,
Sept. 11, 2012 (cont’d)
• The Board concluded that the agreement violated Section 7
because it restricted the “disclosure” of “personnel information and
documents”
• Non-supervisory employees have a broad right to discuss wages,
benefits and other terms and conditions of employment
• Any agreement or policy that might reasonably lead an employee to
believe that right has been restricted by the employer violates the
NLRA
• The Board found that the fact that the agreement only restricted
disclosure to those “outside the organization” did not save the
agreement from violating the law
– Non-supervisory employees have the right to speak with not
only co-workers, but also union organizers and other outsiders
about terms and conditions of employment
16

17. DIRECTV, Jan. 25, 2013
• Company handbook included provision entitled “Communications
and Representing DIRECTV” that, in part, read:
“Do not contact the media”
• Employees have the right under Section 7 to communicate with the
media about labor disputes, including disputes or concerns over
unionization as well as matters related to wages, benefits or other
terms or conditions of employment
• Board found that “employees would reasonably construe the
unequivocal language in the ... rule as prohibiting any and all such
protected communications to the media regarding a labor dispute.”
• Board pointed out that the company made no effort in the language
of the rule to distinguish between acceptable and unacceptable
communications to the media
17

18. Takeaways Concerning
Confidentiality Agreements/Policies
• Include no references in any confidentiality agreement/policy
to information pertaining to “employment,” “employees,”
”personnel,” “compensation,” or similar terms or concepts
• Scrutinize the agreement/policy for any other language that
arguable might lead employees to believe it restricts their right
to discuss terms or conditions of employment
• Give examples of what the agreement/policy does cover so as
to establish its limited scope. For example you may reference:
– Intellectual property
– Confidential customer information
– Business development and strategic plans
• With media rules, you can restrict employees from
communicating “as a representative of the company” or “on
behalf of the company”
• Consider including an appropriate disclaimer
18

19. Board Limits Employers’
Rights to Maintain Confidentiality
of Internal Investigations

20. Hyundai America Shipping Agency
(2011)
• NLRB ruled that a non-union employer’s practice of routinely
advising its employees not to discuss ongoing internal
investigation matters with their co-workers violated Section
8(a)(1) of the NLRA
• Employer’s generalized concern with protecting the integrity of
its internal investigation is insufficient to outweigh
employees’Section 7 rights
• FYI, in Hyundai, an employee was subject to discipline as a
result of violating the employer’s oral confidentiality rule
20

21. Hyundai America Shipping Agency (2011)
• Board rejected Hyundai’s justification (possibly belated) in a sexual
harassment investigation:
– desire to protect victim, witnesses & accused
– Preserve confidentiality consistent with EEOC guidelines
– Avoid potential defamation claims
• Board found no evidence of any preliminary analysis of case-
specific need for confidentiality
21

22. Banner Health System
(July 30, 2012)
• During the Hospital’s investigation of complaint involving
procedures for the sterilization of medical devices, Human
Resources suggested to employee that he not discuss matter
under investigation with co-workers
• Request for confidentiality was included in hospital’s standard
“Introduction for all Interviews” instructions
• There was no oral or written rule
• There was no potential for discipline
22

23. Banner Health System
(July 30, 2012)
Applying and expanding Hyundai :
•On case-by-case basis, before requiring confidentiality during an
investigation, the Employer must conduct a preliminary evaluation
of following factors:
– whether witness needs protection;
– whether evidence is in danger of being destroyed,
– whether testimony is in danger of being fabricated: or
– whether other reason warrants confidentiality.
23

24. Banner Health System
(July 30, 2012)
• NLRB extends Hyundai to “practice” of suggesting employees not
discuss ongoing internal investigation matters with their co-workers
• Even in the absence of a written or oral rule
• Even in the absence of discipline or potential discipline
• Employer’s generalized concern with protecting the integrity of its
internal investigation is an insufficient business justification to
outweigh employees’Section 7 rights.
24

25. Banner Health System
(July 30, 2012)
• Significant Implications to Employer’s Legal Obligations to
Conduct Reasonable Investigations:
– Sexual Harassment
– Retaliation
– Safety Complaints
– FLSA Complaint
– Etc.
• Banner potential conflict with employer’s other obligations
and no defense to tainted investigation
25

26. Banner Health System
(July 30, 2012)
• Former Member Hayes Dissenting:
– It is axiomatic that, to violate the Act, an employer's work
rule must be an actual work rule with binding effect on
employees.
– Employer did not promulgate any rule at all; it merely
suggested that employees not discuss matters under
investigation; there was no threat of discipline.
• Takeaway:
Dilemma: A “blanket approach” to requesting confidentiality in
every investigation is not permitted . . . Yet, employers must
comply with duty to conduct thorough, reasonable & effective
investigation
• Consider preliminary written checklist genuinely evaluating
nature of specific investigation
26

27. Board Further Complicates
Employers’ Ability to Regulate
Off-Duty Access to Workplace

28. NLRB Long-Standing Principles
Tri-County Medical Center, 222 NLRB 1089 (1976)
•To be valid, an off-duty access policy must
– Limit access solely to interior of facility and other work
areas
– Be clearly disseminated to all employees
– Apply to off-duty employees seeking access for any
purposes (not just those engaging in union activities)
Lafayette Park Hotel, 326 NLRB 824 (1998)
– In limited circumstances, employer may include
exceptions to an access restriction for off-duty
employees
28

29. NLRB Long-Standing Principles
• Board duty to balance the competing interests of employee’s
right to communicate with fellow employees at the workplace
on their own time and employer’s private property interest in
controlling access to property.
• Recently, NLRB takes arbitrary, unreasonable position:
• Unless NO off-duty access, policy violates Tri-County’s third
prong.
29

30. NLRB’s 2011/2012 Reversal
• Saint John’s Health Center (Dec. 30, 2011)
– “Off-duty employees are not allowed access to interior of
building or other work areas except to cafeteria and to
attend Health Center sponsored events (e.g. retirement
parties, baby showers).”
• Sodexho Am. LLC (July 3, 2012)
– “Off-duty employees no access to interior of Hospital or
other work area except as patient or to conduct “hospital-
related business” in “pursuit” of normal duties.
• Marriott Int’l Inc. (Sept. 28, 2012)
– “Off-duty” employees can only enter company property with
supervisor permission, except parking areas & outside non-
working areas.
30

31. Saint John’s – Sodexho - Marriott
• NLRB Holds : ALL unlawful policies because did not
prohibit off-duty access FOR ANY PURPOSE
• Saint John’s: “Except for employer-sponsored events” =
“You may not enter the premises off-duty unless we say
you can”
• Sodexho : “Except to conduct hospital-related business
as directed by management” = same “unfettered
discretion”
• Marriott: “Subject to prior manager approval” = broad
unlimited discretion to decide when and why
31

32. Marriot Int. (Sept. 28, 2012)
• Example of NLRB Tortured Rationale in Marriott:
– Rule “invites or compels” reasonable employees to believe
that Section 7 activity is prohibited without prior
management permission."
– Employees would reasonably conclude they were required
to disclose to management the nature of the activity for
which they sought access – “a compelled disclosure that
would certainly tend to chill the exercise of Section 7
rights.”
– Find irrelevant non-discriminatory application of rule; no
evidence of union animus or fact not limited to parking lot
and non-work exterior areas.
32

33. Takeaways
• Best Expressed by Member Hayes Dissenting:
• “Because the majority's decision continues this Board's
dismantling of the careful balance between an employer's
right to control its property and an employee's right to
engage in Section 7 activity, I respectfully dissent.”
• Third prong of the Tri-County test prohibits discrimination
against union activity and does not require a blanket
prohibition on all off-duty access.
33

34. Takeaways
– Dissent Cont’d:
– Requiring employers to prohibit all access in order to prohibit
any makes it virtually impossible for an employer to draft an
enforceable rule restricting off-duty employee access.
• What if an employee forgets her medication at the
workplace and faces a medical emergency if she cannot
retrieve it?
– Absent concrete examples of an exception the majority would
find legitimate, the concept remains illusory and of no practical
benefit to employers seeking guidance in this area.
34

35. Solicitation and Distribution
Rules: A Brief Refresher On
What Is Permissible
35

36. Solicitation: What You Can and
Cannot Prohibit
• Under Section 7, non-supervisory employees have the right to
engage in union organizing and related activities – even at work
• However, an employer may impose certain limited restrictions
• A policy prohibiting employees from engaging in solicitation during
“working time” is facially valid
• However, such a rule cannot be lawfully applied to what otherwise
would be protected Section 7 activity, if the rule is not uniformly
applied to essentially all solicitations. Therefore, the solicitation ban
must be applied to such things as:
– The sale of products for worthy causes (e.g., Girl Scout cookies)
– Charitable fund-raising
– Entrepreneurial efforts of individual employees (e.g., Amway,
Avon)
36

37. Solicitation: What You Can and
Cannot Prohibit
• Terminology is key: your rule must specifically restrict solicitations
during “working time”
– Policies phrased in terms of “work hours” or “company time” are
viewed as unlawful by the Board because they can be
construed to include breaks or meal periods
• Employees must be free to solicit during formal or informal
breaks from their duties
• Special Rule for Retailers
– Because of the unique nature of retailing, the Board permits that
a retail business may ban both employee solicitation and
distribution in the selling areas of stores even when workers are
on their own time.
• Special Rules for Hospitals and Certain Other Healthcare Providers
– Solicitation may also be prohibited in “immediate patient care
areas” 37

38. Distribution: What You Can and
Cannot Prohibit
• When solicitation involves the distribution of literature or other
written materials an employer may impose not only a temporal
restriction but also locational restriction
• Specifically, distribution may be prohibited, not only during working
time, but also in working areas
38

39. Non-employee Access for Purposes
of Solicitation or Distribution
• The United States Supreme Court has concluded that, based on
property rights, an employer has greater latitude to restrict
solicitation and distribution by non-employees, such as non-
employee union organizers
• Generally, an employer may bar non-employee solicitation and
distribution anywhere on its property, unless the employees are
situated in a workplace such that they are beyond the reach of
reasonable union efforts to communicate with them
• However, if an employer allows other nonemployees onto the
property to solicit, it cannot deny that same access to union
organizers
39

40. Bulletin Boards
• An employer can limit the use of bulletin boards to
company business completely
• However, that limitation must be absolute and must be
strictly enforced
– Employer cannot allow some personal use of bulletin
boards by employees and then prohibit the use of
those bulletin boards for union organizing
40

41. The Board’s Position on Social
Media Policies: An Update
41

42. Actions by the Board Related to
Social Media Policies
• Is now very clear that social media postings by employees that
relate directly or indirectly to their jobs, co-workers, supervisors, or
the employer itself, will, very often, be regarded as protected
Section 7 activity
• The General Counsel has now issued three reports offering
guidance on what social media rules are impermissible
• The last of those reports, issued in May 2012, is particularly
important and instructive
– The General Counsel considered six actual social media
policies used by employers and found them all to include one or
more unlawful provisions
– Importantly, the General Counsel found that a modified policy
issued by Wal-Mart did not include any provisions violating the
NLRA
42

43. Actions by the Board Related to
Social Media Policies
• Based on the Karl Knauz BMW and Costco decisions issued in
2012, it appears that the Board itself agrees with the General
Counsel’s basic analysis with regard to social media policies
• There is one significant apparent difference, however, in the
analysis of the General Counsel and the Board as it relates to the
value of a disclaimer included in the social media policy
– In his guidance, the General Counsel suggests that disclaimers
will generally not save an otherwise unlawful social media policy
– In its Costco decision, however, the Board appeared to
emphasize the significance of a savings clause in a social
media policy instructing that the policy does limit Section 7
rights
• “there is nothing in the rule that even arguably suggests that
protected communications are excluded from the broad
parameters of the rule”
43

44. Some Practical Guidance
Concerning Social Media Policies
• Is your company really well served by having a social media policy?
– You can discipline employees for plainly unacceptable online
behavior, such as disparaging a customer, violating copyright
laws, engaging in sexual harassment, or threatening violence,
without having a social media policy
• If you are determined to have a policy:
– Avoid broad courtesy or other civility rules
– Avoid broad prohibitions on disclosure of company information
– When including prohibitions, offer examples which illustrate that
the prohibition is limited narrowly to very serious misconduct so
that an employee could not wrongly assume it bars Section 7
activity
• Include a disclaimer that expressly states that nothing in the policy
limits activity protected by Section 7 of the NLRA
44

45. More Guidance Concerning Social
Media Policies
– Limit policy to key prohibitions such as employees must not:
• disclose or misuse company intellectual property or true
trade secrets and other confidential business information
(remember to offer examples)
• disparage customers or the company’s products or services
• threaten violence
• engage in unlawful harassment or discrimination
• violate copyright and other laws
• breach FTC rules by making posts about products/services
without disclosing connection to the company
• make posts in which they represent that they are speaking
on behalf of the company
45

46. Impending Restrictions on
Employers’ Ability to Restrict
Employee Use of Company E-mail

47. The Register-Guard (2007)
•Bush-Era Board controversial decision
•Communications Systems Policy prohibited use of company e-mail for
all non-job related solicitations
•Register-Guard (a union employer) permitted personal e-mails (e.g.,
joke, baby shower announcements) and United Way solicitations for
Company-sponsored campaign but prohibited e-mails on Section 7
matters
•An issue of first impression, Board upheld Register-Guard policy and
held that employees have no statutory right to use an employer’s e-mail
system for Section 7 matters (e.g. notice of union rally).
•Vigorous dissent: Broad ban on employee non-work-related e-mail
communications presumptively unlawful absent special circumstances
47

48. The Register-Guard (2007)
• Board theory -- Not all discrimination is unlawful; discrimination if
“unequal treatment of equals.”
• Absent union animus, unlawful discrimination is disparate treatment
of activities or communications of a similar character due to union
or other Section 7 protected status
• Employer may distinguish between
– charitable solicitations vs. non-charitable
– solicitations of personal nature vs. for commercial sale of product
– Invitations of personal nature vs. for an organization
• Certainly may not permit employees to solicit for one union but not
another; solicitations by anti-union but not pro-union employees
48

49. Roundy’s, Inc. (Nov. 12, 2010)
• Curious springboard for Board’s attempt to invalidate Register-
Guard.
• Roundy presented common issue of whether employers can prevent
non-employee union representatives from accessing an employer’s
private property.”
• Law is clear on issue: In Sandusky Mall (1999), NLRB held that if
an employer permits an outside group to use its property,
comparable access must be granted to union organizers
• NLRB rare invitation to interested groups to file briefs
• Acting GC Lafe Solomon response: Sandusky Mall should apply to
ALL forms of access Register Guard should be overruled
– Similar to his pronouncements on social media, argued that
communications systems are indistinguishable from face-to-face
conversations under NLRA.
49

50. Takeaway
• Significant Risk: Apex of NLRB’s expansion of Section 7 to prohibit
blanket rules banning work e-mail for personal use
• Potentially violative of employer’s property interests and First
Amendment implications of requiring employers to open up e-mail to
facilitate speech
• Reflective of Former Board Member Wilma Liebman dissent in
Register Guard (“Only a Board that has been asleep for the past 20
years could fail to recognize that e-mail has revolutionized
communication both within and outside the workplace.”)
• Overturning Register Guard would provide union supporter’s broad
and effective access to company e-mail systems.
50

51. Pitfall for
Fraternization Policies

52. Guardsmark, LLC v. NLRB,
475 F3d 369 (DC Cir. 2007)
• Guardsmark’s Policy:
– “You must NOT fraternize on duty or off duty, date or become
overly friendly with co-employees.”
• NLRB Held: “Fraternize” could be interpreted as beyond dating and
reach to prohibit fraternal discussions of terms and conditions of
employment.
52

53. Takeaway
• Narrowly define or avoid the term “fraternize.”
• If the restriction could conceivably have a “chilling effect” on
protected activity, the policy will be invalid.
53

54. Board Efforts to Regulate
Arbitration Policies and
Agreements
54

55. D.R. Horton Case – Board
Prohibition on Class-Action Waivers
• What is a class-action waiver?
– A provision in an employment arbitration policy or agreement
requiring that all claims by employees be arbitrated by each
employee individually and not by a group of employees as a
class action or collective action
• Why do employers want class-action waivers?
– Class or collective actions are very expensive to litigate and
involve the potential for very substantial damages
– Plaintiffs’ attorneys are attracted to class and collective actions
• The United States Supreme Court appears to favor the rights of
parties to include class-action waivers
– AT&T Mobility v. Concepcion – in this 2011 case, the Supreme
Court, based on the Federal Arbitration Act, struck down a
California law which prohibited class-action waivers in
arbitration agreements.
55

56. D. R. Horton, NLRB finds Class-
Action Waivers Violate Section 7
• In this 2012 decision, the Board found that class-action waivers in
arbitration agreements violate Section 7 of the NLRA
• The Board adopted the view that bringing suit is a class-action
constituted protected “concerted activity” by the employees
• D. R. Horton has appealed to the Fifth Circuit Court of Appeals
– The Court of Appeals heard oral arguments in the case earlier
this month
– A decision is expected later this year
– Most labor attorneys expect that the relatively conservative Fifth
Circuit, relying on Concepcion and other Supreme Court
authority, will reject the Board’s ban on class-action waivers
• However, nothing is certain
• Notably, the Fifth Circuit has permitted briefing in the case
on the recess appointment issue
56

57. Supply Technologies, LLC,
Disclaimer in Arbitration Agreement
is Critical
• In its December 2012 Supply Technologies decision, the Board
held that an arbitration agreement or policy violates Section 7 if it
fails to include a disclaimer that expressly provides that employees
retain the right to file charges with the Board under the NLRA
• The arbitration policy at issue did include a disclaimer which read
“[b]oth [the employer] and [the employee] can still file a charge or
complaint with a government agency.”
• The Board, however, concluded that this disclaimer was not
adequately specific.
– The Board complained that the disclaimer included no express
reference to any “statute or government agency.”
57

58. A Specific NLRA Disclaimer in
Arbitration Agreements is Essential
• Accordingly, a disclaimer that reads similar to the
following may be appropriate:
– “This arbitration agreement does not limit in any way
employees’ rights to file charges or complaints with
any federal, state or local governmental agency
including, for example, charges with the National
Labor Relations Board pursuant to the National Labor
Relations Act.”
58

59. NLRB Judge Finds That
Confidentiality Requirement In
Arbitration Agreement Violates
Section 7 Rights
• In July 2012 Advanced Services decision, an NLRB
Administrative Law Judge found that a clause in an
arbitration program providing that arbitration
proceedings would be confidential violated the NLRA
because it “chilled” employees Section 7 rights to
communicate about terms and conditions of
employment, including work-related disputes with the
employer
59

60. Takeaways for Drafting Arbitration
Programs
•Class-Action Waivers : For many employers, continuing to include
class-action waivers will make sense given the benefit of those
provisions and the apparent rejection by the federal courts of the
Board’s ban on those waivers (however, some risk remains until more
definitive case authority is issued)
•NLRA Disclaimer : employers should include an explicit disclaimer
that specifically informs employees that they retain the right to file
NLRA charges with the Board
•Confidentiality: employers are well advised to eliminate confidentiality
requirements from arbitration agreements
60

61. Grievance/Complaint Resolution
Procedures
•As with arbitration policies, internal grievance, complaint resolution or
open door procedures should be carefully written so as not to suggest
that employees must, or are expected to, resolve their concerns
through that procedure
– For example, these kinds of policies should never include
provisions that suggest that “employees should first attempt to
resolve workplace concerns through this procedure.”
– The policy should explicitly indicate it is a voluntary process that
employee may, or may not, choose to utilize
•Employers also need to be careful not to create grievance committees
or other employee participation committees that may be viewed as a
company-created “labor organization” in violation of Section 8(a)(2) of
the NLRA
61

62. Board Refines Position with
Regard to Dress Code
Rules Relating to Insignia

63. Long Standing Board Law on Dress
Codes
• London Memorial Hospital, 238 NLRB 704, 708 (1978)
– Employees have a protected right to wear union insignia at work
in the absence of "special circumstances.”
• NLRB v. Baptist Hospital, 442 U.S. 773, 781 (1979).
– In healthcare facilities, restrictions on wearing insignia in
immediate patient care areas are presumptively valid, while
restrictions on insignia in other areas of a hospital are
presumptively invalid.
63

64. Saint John's Health Center, (Dec.
30, 2011)
– Ban on RN ribbons stating, “Saint John’s RNs for Safe Patient
Care” provided by union organizers violation 8(a)(1)
– Hospital provided no special circumstances warranting ban (and
discipline if violation)
– Board rejected Hospital’s “detrimental and disruptive to patient
care” defense especially in view of:
• hospital-provided ribbon stating, “St. John’s mission is safe
patient care” which was permitted in patient areas
• prior permitted insignia including union and political buttons
in patient areas – “Respect & Dignity” – “St. John’s –the
Heart of Healthcare.”
– May not selectively ban union insignia in patient areas without
demonstrating necessary to avoid disruption of operations or
disturbance to patients
64

65. Takeaway
• Board is particularly protective of concerted rights relating to
expressions of union support via insignias, t-shirts, buttons
• Policies should be as narrowly tailored as possible to protect
employer’s legitimate business interests.
• Consistent, non-discriminatory enforcement of valid policies
essential
65

66. Board Clarifies Position
on Acceptable At-Will
Disclaimer Language

67. Restrictions on At-Will Employment
Policies
• American Red Cross, No. 28-CA-234433 (NLRB Feb.1, 2012):
“I agree that the at-will employment relationship cannot be modified
in any way.” ALJ: Violation - interpreted as waiver of right to
change at-will employment by acting concertedly
• Hyatt Hotels, No. 28-CA-061114 (Complaint filed Feb 2, 2012)
(Settled)
“At-will employment cannot be altered, except for a written
agreement signed by you or the President.” Violation -- Precludes
possibility that policy could be modified by CBA signed by union.
• NLRB theory: Disclaimer language that may be interpreted to
preclude employees from seeking to change at-will status may “chill”
employees from engaging in concerted activity
67

68. General Counsel Voice of Reason?
• Acting GC Division of Advice provided more reasonable guidelines
to evaluate At-Will Employment Policy
• Lawful: “No representative of Company (except the President in
writing) has authority to enter into any agreement contrary to
foregoing “employment at will” relationship.” (Rocha
Transportation/Mimi’s Café)
• Unlawful: Policy requires employees to refrain from seeking (or
“chills” employees from seeking) a change in at-will status (e.g.,
through union representation) or to agree that at-will status cannot
be changed.
• Takeaway: A carefully worded at-will employment policy will survive
NLRB scrutiny and still serve the employer’s legal purposes
68