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LATEST DEVELOPMENTS FROM THE NLRB

Brenton D. SoderstrumBrownWinick

666 Grand Avenue, Suite 2000Des Moines, IA 50309-2510

Telephone: 515-242-2474Facsimile: 515-323-8574

E-mail: soderstrum@brownwinick.com

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National Labor Relations Board (NLRB)

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NLRB

Regulates employee rights to engage in collective activities in

businesses in “interstate commerce”

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Concerted activities for purposes of mutual aid and protection

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Interstate Commerce

• Non-retail establishments -- $50,000 gross receipts

• Retail/Construction establishments -- $500,000 gross receipts

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NLRB majority controlled by Obama-administration appointees

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NLRB Proposed Rulemaking

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Proposed Rule: Notice to Employees of NLRA Rights

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“No less prominently”

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Effective Date

• Originally 11/14/2011

• Delayed to 01/31/2012

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Impact of Failure to Post

Tolling of Statute of Limitations Evidence of Anti-union Animus Per Se Unfair Labor Practice

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Download from NLRB

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Purchase from Vendor

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Preparation

Begin/Continue Union-free Plan Counter-Posting Supervisor Training

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Proposed Rule:

Quickie Elections

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Effective Date:

Still in Review

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• Election 10-21 days after petition

• Shortened hearing procedures

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Proposed Rule:

Reporting Persuader Activity

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Effective Date:

Still in Review

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Narrows “advice exception” to legal requirement that

employers report to federal government activity and

expenses spent maintaining union-free

status

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NLRB Guidance

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Guidance on Social Media

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Result of 14 unfair labor practice cases involving discipline for

employee statements made in social media (blogs, Facebook,

etc.)

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Where employer acts to interfere, restrain or coerce employees in exercise of protected activity,

NLRB will intervene

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Examples . . .

Discussions between employees on workplace responsibilities and performance

• Even involving swearing/sarcasm/insults

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Examples . . .

Soliciting input online from co-workers about work disputes

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Examples . . .

Clicking on a “like” button

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Examples . . .

Overly broad social media policies

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Disclaimer: Nothing in this policy shall be construed to limit in any way your rights under applicable federal, state or local law, including but not limited to the National Labor Relations Act

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Guidance on No-Solicitation Rules (pending)

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Concerns the legal standard NLRB should apply in determining

whether discrimination has occurred when limiting non-

employees access to employer premises

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• Permitting charitable (civic organizations) to solicit on employer premises is not discrimination

Existing Standard

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Review your existing rules and protocols, enforce consistently,

and train managers

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May extend to e-mail accounts – The Guard Publishing Co., 375

NLRB No. 27 (2011)

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Important Recent NLRB Decisions

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Lamans Gasket Co.: Employer decision to grant recognition

based on card check cannot be challenged for “reasonable period

of time”

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Specialty Healthcare and Rehabilitation Center of Mobile:

CNAs in a nursing home will constitute an appropriate bargaining unit in absence of proof that excluded

employees share an “overwhelming community of interest”

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Sheet Metal Workers Local 15:

16 foot tall, 12 foot wide balloon rat protesting secondary employer

not prohibited

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Northeastern Land Services, Ltd.:

Salary confidentiality policy found to be illegal

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Go Ahead N.A., LLC:Election voided due to improper

union conduct

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Crystal Ball Gazing

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Website: www.brownwinick.comToll Free Phone Number: 1-888-282-3515

OFFICE LOCATIONS:

666 Grand Avenue, Suite 2000Des Moines, Iowa 50309-2510

Telephone: (515) 242-2400Facsimile: (515) 283-0231

616 Franklin PlacePella, Iowa 50219

Telephone: (641) 628-4513Facsimile: (641) 628-8494

DISCLAIMER: No oral or written statement made by BrownWinick attorneys should be interpreted by the recipient as suggesting a need to obtain legal counsel from BrownWinick or any other firm, nor as suggesting a need to take legal action. Do not attempt to solve individual problems upon the basis of general information provided by any BrownWinick attorney, as slight changes in fact situations may cause a material change in legal result.