National Labor Relations Board (r-li)

THE NATIONAL LABOR

RELATIONS BOARD What you don’t know can (and usually will) hurt you…

RUSSELL L. LICHTENSTEIN, ESQ. Chairman, Labor & Employment Practice Group

The NLRB – Not your Father’s Board

The NLRB –

Who they are and what they do • They purport to be an “independent federal agency” that

protects the rights of private sector employees who join

together, with or without a union, to improve their wages

and working conditions.

• Appointed by the President with advice and consent of the

Senate to staggered 5-year terms.

• 5 members: 3 Democrats, 2 Republicans - all Obama

appointees.

• The Noel Canning fiasco.

NLRB Organizational Chart

The NLRB –

Who they are and what they do • What they do:

• Conduct Elections

• Investigate Charges

• Decide Cases

• Enforce Orders

• Facilitate Settlements

The NLRB and the NLRA

• The Board is the gatekeeper for the National Labor

Relations Act.

• Two primary sections of the Act which impact employers

in non-election settings are Sections 7 and 8.

The NLRB and the NLRA

• TRUE or False: The Act only applies to unions, union

employees and unions attempting to organize employees.

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 of such activities except to the

extent that such right may be affected by an agreement

requiring membership in a labor organization as a

condition of employment as authorized in Section 8(a)(3).

The NLRB and Employee Misconduct

• “Hey, did you bring enough KFC for everyone?”

• “Go back to Africa, you bunch of fucking losers.”

The NLRB and Social Media

• On a break while at work, employee posts to his

Facebook page the following:

• The Assistant Director of Banquets is such a NASTY MOTHER

FUCKER, don’t know how to talk to people!!!!!! Fuck his mother and

his entire fucking family!!!! What a LOSER!!!! Vote YES for the

UNION!!!!!!

The NLRB and Employee Handbooks

• What do the following policies have in common?

• “Be respectful to the Company, other employees, customers, partners

and competitors.”

• “Do not make fun of, denigrate, or defame your co-workers,

customers, franchisees, suppliers, the Company, or our competitors.”

• “Be respectful of others and the Company.”

• “Do not make defamatory, libelous, slanderous or discriminatory

comments about the Company, its customers and/or its competitors,

its employees or management.”

• “Do not make statements that damage the Company or the Company’s

reputation, or that disrupt or damage the Company’s business

relationships.”

• “Never engage in behavior that would undermine the reputation of the

Company, your peers, or yourself.”


• Media Contact – what’s the difference?

• “Employees are not authorized to speak to any representatives of

the print or electronic media about company matters unless

designated to do so by Human Recourses, and must refer all media

inquiries to the company media hotline.”

• “The company strives to anticipate and manage crisis situations in

order to reduce disruption to our employees and to maintain our

reputation as a high quality company. To best serve these

objectives, the company will respond to the news media in a timely

and professional manner only through designated spokespersons.”


• Disclosure of Confidential Information


• Wage and Salary Disclosure:

Compensation programs are confidential between the

employee and GRQ Investments, LLC. Disclosure of

wages or compensation to any third party or other

employee is prohibited and grounds for discipline up to

and including termination.


• Security and Confidentiality of Commercial Information:

As a matter of course, employees of GRQ Investments,

LLC will have access to confidential and proprietary

information. This information includes, but is not limited

to, personnel information, pricing information, client lists,

contractual agreements, intellectual property and

marketing/sales strategies. It is a condition of employment

that you not disclose this information to third parties

during or after employment. Disclosure of GRQ

Investments confidential information without express

written approval is prohibited.

The NLRB and Employer Email

• The “new water cooler”???

• Business Use of Email Policy:

Computers, laptops, internet access, voicemail, electronic

mail (email), iPhones, BlackBerrys, cellular telephones,

and/or other GRQ Investment equipment is provided to

facilitate GRQ business. All information and messages

stored, sent, and received on these systems are the sole

and exclusive property of GRQ, regardless of the author

or recipient. All such equipment and access should be

used for business purposes only.

The NLRA and Organization Activities

• How do you know that it’s about to happen – Some Early

signs:

• Noticeable increase in casual employee gatherings

• And a tendency to stop talking when supervisors approach

• Employees seem unusually busy during breaks, lunch, and before

and after work

• Discussions of informal employee “get togethers” after hours

• Nature and frequency of employee complaints and issues

NOTICEABLY changes

• Complaints and concerns now presented by a delegation of

employees rather than an individual

• New “cliques” forming – with new leaders

The NLRA and Organization Activity

• More signs that a Union is afoot:

• Suddenly, new terms become part of the conversation like “job

security,” “concerted activity,” “economic pressure” etc.

• Sudden changes in employee attitudes coupled with a reluctance

to speak individually with management

• You start to see some former employees – especially discharged

ones – hanging around company property

• Requests for the names and addresses of employees

• Unknown individuals showing up on site and meeting with groups

of employees

• Dead giveaway - a letter or a visit from a union official


• You know of a union organizing attempt – what can

and can’t you do?

• We’ve been talking about raises for a while, let’s give them out

now.

• My brother-in-law works here as a driver and he can report back to

us after the meeting.

• The meeting is at the Econo-Lodge on Main Street. We can have

Joe park a company car across the street and watch what’s going

on from a distance.

• If a Union comes in, it will ruin our business and we’ll have to close

down. Let’s just tell our employees the truth.


•What you CANNOT do:

• Threats

• Interrogation

• Promises

• Spying


• Some things you CANNOT do:

• Attend union meetings or engage in any clandestine actions or

activity related to union meetings.

• Punish, threaten or intimidate union “pushers.”

• Ask employees if they are organizing, if they are affiliated, or if they

have signed an authorization card.

• Grant wage increases linked to keeping the union out – directly or

indirectly.

• Threaten to close up, shut down, move, lay-off employees, or

curtail operations if the union gets in. Even if true!

• Treat union pushers, or those you believe to be union pushers,

differently than others.

• Link pre-planned raises or benefit increases to the union

organization success or failure.


• But all is not lost – you CAN:

• Keep non-employee union organizers off of your property (but not

public areas).

• Remind employees of the benefits they already have – with no

threats or promises – veiled or otherwise.

• Inform employees that signing a card does not obligate them to

vote for the union.

• Inform employees of the disadvantages of belonging to a union,

such as the possibility of strikes, dues, picketing, etc.

• Inform employees of an employer’s legal right to replace workers

who go on strike for economic reasons.

• Inform employees that a union cannot obtain more than an

employer is able to give.


• And you CAN:

• Inform employees of untrue or misleading statements made by

union pushers or organizers, and give the true and actual facts.

• Respond to union attacks upon company policies, practices, or

individual managers and supervisors.

• Accurately advise employees of their rights under the NLRA,

including their right to not be represented by a union.

Union Avoidance

Union Avoidance

• GET OUT IN FRONT

• Become “Union Redundant.”

• Adopt the TEAM approach

• Train your supervisors/managers

• Educate your employees

• Accessibility of upper management

• Modernize policies

NLRA’s New “Quickie Election” Rules

• Effective April 14, 2015

• From Petition to Election in 21 days!!!

You never know who you’ll get …

Some Takeaways …

• “Don’t think it won’t happen just because it hasn’t

happened yet.”

• At the appropriate level – BE PREPARED

• Train your Supervisors/Managers/Executives

• Don’t try this at home

• Know what you know and – more importantly - what you don’t

• Don’t hire your butcher to fix your car

• An ounce of prevention …

• Know your greatest asset

• Take the temperature of your workforce

• Seriously, HAVE POLICIES REVIEWED AND UPDATED

• Your POSTINGS?

THE NATIONAL LABOR

RELATIONS BOARD What you don’t know can, and usually will, hurt you…

RUSSELL L. LICHTENSTEIN, ESQ. Chairman, Labor & Employment Practice Group

National Labor Relations Board (r-li)

Law

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