NLRB Labor Law Developments Under New Board

The Post-Election National
Labor Relations Board
Presented by:
Mark G. Jacobs


The Current Board

Mark Gaston Pearce, Sharon Block Richard F. Griffin, Jr.
Chairman


The Acting General Counsel (“AGC”)

Lafe Solomon


Section 7 – Employee “Bill of Rights”

 Employees shall have the right to:
• Self-organization.
• Form, join, or assist labor organization.
• Engage in other concerted activities for the purposes of:
− Collective bargaining or
− Other mutual aid or protection.
 Applies to union and non-union employers


Section 7 – Employee “Bill of Rights”

 Protected concerted activity
• Typically 2 or more employees acting together to attempt to
improve their terms and conditions of employment.
• Employees are protected against retaliation for discussing or
complaining about terms and conditions of employment.


Active Issues Affecting Union and Non-Union
Employers
 Notice Posting
 At-Will Disclaimers
 Confidentiality of Investigations
 Off-Duty Access
 Social Media


NLRB Notice Posting
 Originally scheduled to take
effect April 30, 2012 -
currently on hold
 Covers most private sector
employers – with or without
unions
 Must post in “conspicuous
places” where employer
customarily posts personnel
rules, policies or
employment notices


At-Will Disclaimers

 Handbooks, offer letters, etc.
 Policy example:
• “I further agree that the at will employment relationship
cannot be amended, modified, or altered in any way.”
• ALJ found that the above language violated the NLRA
because an employee may “reasonably” conclude that the at-
will status cannot even be changed through collective
bargaining.


At-Will Disclaimers

 Acting General Counsel:
• Overly broad “at-will” disclaimers chill Section 7 Rights.
• Employees should not be led to believe that at-will status
can never change.


At-Will Disclaimers

 Mimi’s Café
• “The relationship between you and Mimi's Cafe is referred to
as employment at will… No representative of the Company
has authority to enter into any agreement contrary to the
foregoing ‘employment at will’ relationship…”


At-Will Disclaimers

 Rocha Transportation
• “Employment with Rocha Transportation is employment at-
will… No manager, supervisor, or employee of Rocha
Transportation has any authority to enter into an agreement
for employment for any specific period of time or to 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.”


Confidentiality of Investigations

 Blanket Confidentiality Provisions
 NLRB says employers must show something more than a
“generalized concern with protecting the integrity of the
investigation.”
 Conflicts with EEOC guidance?



 Banner Health System – July 30, 2012
• Internal investigation re alternative equipment sterilization
procedures. Human resources asked employee not to discuss
the investigation with others until she concluded the
investigation. No threat of discipline for doing otherwise.
• The NLRB held that the confidentiality directive amounted to
a rule that “had a reasonable tendency to coerce employees,
and so constituted an unlawful restraint of Section 7 rights,”
regardless of whether or not the employer threatened
disciplinary action for breaching confidentiality.



 Banner Health System – July 30, 2012
• The NLRB stated that the employer should have first made a
determination “that it has a legitimate business justification
that outweighs employees’ Section 7 rights.”
− An employer’s “generalized concern with protecting the
integrity of its investigations is insufficient to outweigh
employees’ Section 7 rights.” Rather, the employer should
have determined whether, in this particular case, it needed to
protect witnesses, evidence or testimony or prevent a cover-
up, which would presumably justify an instruction to maintain
confidentiality.


Off-Duty Access

 “Off-duty employees are not allowed to enter or re-enter the
interior of the Hospital or any other work area outside the
Hospital except to visit a patient, receive medical treatment
or to conduct hospital-related business.
• An off-duty employee is defined as an employee who has
completed his/her assigned shift.
• Hospital-related business is defined as the pursuit of the
employee’s normal duties or duties as specifically directed by
management.
• Any employee who violates this policy will be subject to
disciplinary action.”


Off-Duty Access

 NLRB said the policy violated the NLRA because it gives
employers “unlimited discretion to decide when and why
employees may access the facility.”
 The Board asked – Would a “reasonable” employee reading
the policy believe that he or she could come onto the
employer’s property when off-duty and performs activities
protected under Section 7 of the Act?


Social Media

 May 30, 2012 – AGC issued Report of the Acting General
Counsel Concerning Social Media Cases
• Memo reviewed numerous employer social media policies
that had been found unlawful by the Board.
 Common Theme – Policies restricting employees from
criticizing the employer’s labor policies or treatment of
employees are going to be found to violate Section 7.
 Common Theme – Policies that have specific examples
showing that the policy is not meant to prohibit criticism of
employer’s labor policies more likely to be lawful.


Social Media – NLRB Unlawful

 “If you enjoy blogging or using online social networking sites
such as Facebook and YouTube…please note that there are
guidelines to follow if you plan to mention [Employer] or your
employment with [Employer] in these online vehicles. Don’t
release confidential guest, team member or company
information. . . .”
 NLRB says unlawful because: “…would reasonably be
interpreted as prohibiting employees from discussing and
disclosing information regarding their own conditions of
employment, as well as the conditions of employment of
employees other than themselves…”


Social Media – NLRB Lawful

 “Maintain the confidentiality of [Employer] trade secrets and
private or confidential information. Trades secrets may
include information regarding the development of systems,
processes, products, know-how and technology. Do not post
internal reports, policies, procedures or other internal
business-related confidential communications.”


Social Media – NLRB Unlawful

 “Treat Everyone With Respect: Offensive, demeaning, abusive
or inappropriate remarks are as out of place online as they
are offline…”
 NLRB says unlawful because “…this provision proscribes a
broad spectrum of communications that would include protected
criticisms of the Employer’s labor policies or treatment of
employees.”


Social Media – NLRB Lawful
 “Nevertheless, if you decide to post complaints or criticism, avoid
using statements, photographs, video or audio that reasonably
could be viewed as malicious, obscene, threatening or
intimidating, that disparage customers, members, associates or
suppliers, or that might constitute harassment or bullying.
Examples of such conduct might include offensive posts meant to
intentionally harm someone’s reputation or posts that could
contribute to a hostile work environment on the basis of race, sex,
disability, religion or any other status protected by law or company
policy.”


The Year Ahead

 “Protected Concerted Activity” charges in the non-union
setting are expected to increase.
 More NLRB rulemaking
 More labor friendly decisions


Contact Information
Mark G. Jacobs
mjacobs@armstrongteasdale.com
314.621.5070


NLRB Labor Law Developments Under New Board

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