What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11

What Rights Do Employees
Have Under the NLRA…

And How Is The Labor Board
Expanding Them?

Presented by:

D. Albert Brannen

www.lab orlawye rs .com

Atlanta · C h arlotte · C hicago · C le ve land · C olu m b ia · D allas · D e nve r · F o rt Lau d e rd ale · H ou s ton · Irvine · Kans as C ity · Las Ve gas · Lo s
An ge le s · Lou is ville · N e w E ngland · N e w Je rs e y · N e w O rle ans · O rland o · P h ilad e lp h ia · P h o e nix · P ortland · S an D ie go · S an F rancis co ·
Tam p a · Was h ington D C

2010 In Review
A Significant Year For Labor
• Balance of power in Congress shifted
• EFCA and other union supported legislative “reforms” are
dead
• Union supporters will use other means to advance their
agenda

Fisher & Phillips LLP
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Solutions at W ork®

What Is “Plan B” For Big Labor?

• Union supporters have “stacked the deck” at the NLRB
• The President’s appointees are now the majority
• NLRB cannot amend the NLRA, but it can:
• Use its “rulemaking” powers
• Reverse or modify prior decisions
• Interpret the law in ways to favor unions

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NLRB Chairman
Wilma Liebman
• On the Board since 1997
• Conspicuous dissents on Bush Board
• Public support of
• Labor law reforms
• President’s nominees to fill open slots
• Believes “policy oscillations” are normal

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4

NLRB Recess Appointee
Craig Becker
• SEIU counsel since 1990
• Senate voted not to confirm (52-33)
• Radical views
• Election procedures
• Employer rights
• Rulemaking

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NLRB Board Member
Mark Pearce
• 2010 Obama appointee
• Former NLRB lawyer
• Represented unions in private practice in NY

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The “Acting” General Counsel
Lafe Solomon
• Career Board lawyer
• Held numerous positions
• Now the Board’s chief prosecutor
• Served as “acting” GC since Fall 2010

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Lafe Solomon
Already Making Changes
• Has filed notable cases
• Boeing
• AMR
• Builders.com
• Issued many 10(j) injunctions
• Enacted or proposed other rules

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Other NLRA Rule Changes

• Interest calculations
• Settlement procedures (default notice)
• Electronic posting of remedial notices
• More aggressive remedies
• Threats to sue states for “secret ballot” laws
• Proposed new “Rights” poster
• Seeking amicus briefing on various issues
• “Employee statements”
• Union access to employer premises

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Where Do We Go Now?
Rules For Seeking Guidance
• We can rely on specific sources for definitive guidance:
• New NLRB rules or proposed rules
• NLRB’s “official” website
• Statutory language
• Supreme Court precedent
• New cases decided by this majority
• We can speculate about future changes the
current Labor Board may make:
• Rules
• Case holdings

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NLRB Poster
For Federal Contractors
• Executive Order 13496
• Proposed

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NLRB’s Proposed Poster
For ALL Employers
Under the NLRA, you have the right to:
• Discuss your terms and conditions of employment
or union organizing with your co-workers or a
union.

• Take action with one or more co-workers to improve
your working conditions by, among other means,
raising work-related complaints directly with your
employer or with a government agency and
seeking help from a union.

• Strike and picket, depending on the purpose or
means of the strike or the picketing.

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Statutory Rights
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, and shall also have the right
to refrain from any or all such activities… “

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“Concerted” Activities

• Supreme Court upheld the Interboro
doctrine
• An individual’s exercise of a right he
“reasonably believes” to be protected
under a CBA is protected concerted
activity
• Followed by NLRB in Meyers II

NLRB v. City Disposal Systems, 465 U.S. 822 (1984)

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Definition of “Concerted” Activity

• Those situations where an individual seeks to
• Initiate
• Induce
• Prepare for group action or
• Bring group complaints to the employer’s attention

Meyers Industries Inc., 281 NLRB 883 (1986) (Meyers II)

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Examples of “Protected” Activities

• Solicitation/distribution
• Wearing union insignia
• Strikes or other refusals to work
• Complaints about pay or benefits
• Discussing pay or benefits with other employees
• Disclosing information to third parties
• Disparaging the employer’s business
• Complaining to government agencies
• Enlisting support of government agencies
• Promoting legislation
• Filing charges or litigation

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Solicitation/Distribution Is Protected

• Employees have a right to solicit during lunch
and break times, even though they are on
their employer’s property
• Employees have right to wear union insignia
at the workplace

Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1943)

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There Are Limits
To Protected Solicitation & Distribution
• Employees have a right to solicit except in
special circumstances
• Employer bears burden of proving special
circumstances warrant limiting employee rights

Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978)

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Work Stoppages By
Non-Union Employees Are Protected
• A spontaneous walkout by 7 employees to
protest cold working conditions was protected
• Reasonableness of their decision was
irrelevant
• No misconduct involved

NLRB v. Washington Aluminum, 370 U.S. 9 (1962)

See also Atlantic Scaffolding Company and United
Brotherhood of Carpenters and Joiners of America,
Local 502, 356 NLRB No. 113 (3/18/11).

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Complaints About Pay or Benefits

• Presentation of grievances clearly protected
• In considering whether “intemperate” language
is protected, Board considers
• Place of conversation
• Subject matter
• Nature of the outburst
• Whether the outburst was provoked
• Very subjective standard: courts and Board(s)
disagree

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Discussion Of Pay & Benefits
With Other Employees
Employees have the right to discuss their
pay with other employees

Automatic Screw Products Co., 306 NLRB 1072 (1992)

See also Jeannette Corp. 217 NLRB 653 (1975)
[enforced by 3d Circuit 1976]

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Disclosure Of Information
To Outside Parties
• Employees have a limited right to discuss
their pay and benefits with third parties
• They can discuss them with unions or
others who may help them negotiate or
improve them

Long’s Drug Stores Co., 347 NLRB 500 (2006)

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Disclosure Of Information
To Outside Parties
• Rules declared unlawful:
• Release of “any confidential information”
Cintas Corp. 344 NLRB 943 (2005)
[enforced by DC Circuit 2007]

• Release of “any and all information
regarding business, employees …
conducted in this office”
Inter-disciplinary Advantage Inc. 349 NLRB 480 (2007)
[enforced by 6th Circuit 2008]

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Enlisting Support
Of Outside Parties
• Employees have a right to bring employment-
related concerns to the attention of third parties:
• A news reporter
• Customers
• State or federal agencies

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Enlisting Support
Of Outside Parties
• Employees have a right to bring
employment-related concerns to the
attention of third parties UNLESS:
• Disparaging employer’s product or services in a
way that meets the “disloyalty-indefensibility”
standard of Jefferson Standard or
• Remarks are defamatory and made with
knowledge of their falsity or in reckless disregard
of the truth.

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Promoting Legislation

• Circulation of literature urging employees
to vote against proposed amendment to
state constitution and to lobby for a higher
minimum wage was protected
• At some point the relationship between the
activity and the workplace becomes “too
attenuated”
• Court defers to NLRB to “find the line”

Eastex Inc. v. NLRB, 437 U.S. 556 (1978)

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Promoting Legislation

• Participating in a protest opposing increased
restrictions and penalties on employers who
hire illegal workers is for “mutual aid and
protection” and thus protected
• GC-08-10 (July 22, 2008)

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Filing NLRB Charges Or Litigation

• Employees protected from retaliation by
Sec. 8(a)(4)
• In U-Haul of Southern California NLRB
held a broad, mandatory arbitration policy
was facially unlawful
• GC 10-06 (June 16, 2010)

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Behavioral Rules

• NLRB found unlawful rule forbidding
employees from “making false, vicious,
profane or malicious statements toward
or concerning the Hotel or any of its
employees”
• NLRB standard: does the rule
reasonably tend to chill employees in
the exercise of their Section 7 rights?
• Very subjective standard

Lafayette Park Hotel, 326 NLRB 824 (1998)

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Recent Obama Board Decision
Parexel International, LLC
• 2-1 Board found that employer’s discharge of
employee for complaints about wages and
discrimination was unlawful
• Board found that employer discharged
employee in an unlawful pre-emptive strike
• Employer’s conduct unlawful regardless of
whether the initial conduct was concerted

Parexel International, LLC , 356 NLRB No. 82
(January 28, 2011)

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Worldmark By Wyndham
• 2-1 Board found that the employer
unlawfully disciplined an individual employee
when he questioned his supervisor, in front
of a number of his co-workers, about a
newly-promulgated dress code change

Wyndham Resort Development Corp. d/b/a Worldmark by
Wyndham, 356 NLRB No. 104 (March 2, 2011)

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Jurys Boston Hotel
• Representation case
• Board found 3 rules “objectionable” conduct:
• Solicitation
• Loitering
• Limits on wearing insignia and buttons
• Even though no evidence of enforcement

Jurys Boston Hotel, 356 NLRB No. 114 (March 28, 2011)

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Recent Complaint Against AMR

• Company rule stated:
Employees are prohibited from making disparaging,
discriminatory or defamatory comments when
discussing Company or the employees’ superiors, co-
workers or competitors.
• Employee posted disparaging remarks on
Facebook about the company and her supervisor
• Company fired the employee
• NLRB issued a complaint alleging unlawful
conduct
• Case settled

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Other Recent Complaints
Involving Social Media
• Builders.com
• Reuters

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Recent Complaint Regarding Boeing

• Boeing opened a non-union plant is S.C.
• Boeing’s President made anti-union comments
• NLRB has filed a complaint to restore the work to
union represented workers in the Northwest
• Thousands of jobs and ≥ $1 billion at stake

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Situations Where The Obama Board
May Expand Employee Rights
• Weingarten rights for unrepresented employees
IBM Corp., 343 NLRB 301 (2006)
• E-mail/internet
The Register Guard, 351 NLRB 1110 (2007)
• Rules prohibiting “disloyalty”
Tradesmen International, 338 NLRB 460 (2002)
• Rules prohibiting “profanity”
Martin Luther Memorial Home, Inc. 343 NLRB 646 (2004)

ATTORNEYS AT LAW

Situations Where The Obama Board
May Expand Employee Rights
• Rules prohibiting “fraternization”
Guardsmark, LLC, 344 NLRB 809 (2005)
• Rules prohibiting “offensive” conduct
Palms Hotel and Casino, 344 NLRB 351 (2005)
• Rules regarding union buttons
W San Diego, 348 NLRB 372 (2006)
• Rules regarding union stickers
Leiser Construction, LLC 349 NLRB 413

ATTORNEYS AT LAW

So, What Should You Do?

• Continue building a “pro-employee” work place
• Keep educating managers
• Use your right of “free speech”
• Review your employee handbook
• Resolve employee grievances
• Stay informed about developments

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Final Questions?

D. Albert Brannen
1500 Resurgens Plaza
945 East Paces Ferry Road
Atlanta, Georgia 30326

Direct: (404) 240-4235
Fax: (404) 240-4249
dabrannen@laborlawyers.com

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What Rights do employees Have Under The NLRA ..And How is the Labor Board Expanding Them?5-4-11

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