NLRB Developments

11:00 a.m.-11:30 a.m.

Presented byKelly Baier

Bradley & Riley PC2007 First Ave. SE

Cedar Rapids, Iowa 52406Phone: 9-861-8723

Friday, November 15, 2013

2013 Labor and Employment Seminar

NLRB DEVELOPMENTS

Kelly BaierBradley & Riley PC319-861-8723kbaier@bradleyriley.com

NLRB Significant Issues

Organizing/“Micro-units”/ Neutrality Pacts

NLRB action in non-union workforces

Recess Appointments/Two member decisions

Dues Checkoff

Witness Statements

Social Media

Rulemaking

Inflatable rats

Organizing “Micro-units”

Kindred Nursing Centers East v. NLRB, __ F.3d ___, 2013 WL 4105632 (6th Cir. 2013).

Employer argued Board’s determination that 53 CNAs constituted a bargaining unit was not appropriate

Employer wanted 33 other employees included

Board ruled that employer that wants more employees in a unit must show an “overwhelming community of interest.”

6th Circuit granted Board’s enforcement order

Significance: Easier for unions to “cherry pick” employees to be in bargaining unit.

Neutrality Pacts

Mulhall v. UNITE HERE Local 355, 667 F.3d 1211 (11th Cir. 2012) cert. granted, (No. 12-99, argument 11-13-13).

Fla. Greyhond track’s agreement to stay neutral in an organizing campaign, allow union access to nonpublic work areas, and provide employees’ names and addresses to union may be a “thing of value” that violates Section 302 of LMRA.

Supreme Court Issues: Do employer and union violate Section 302 by entering into agreement in which employer exercises its:

Freedom of speech by promising to remain neutral

Property rights by granting union limited access to employer’s property

Freedom of contract by obtaining the union’s promise to forgo its rights to picket, boycott or otherwise put pressure on the employer’s business.

NLRB Action/Non-union

Grand Canyon Education, Inc., 359 NLRB No. 164 (2013).

Employer found to have violated NLRA when its HR representative interviewed employees to evaluate a supervisor.

Questions included inquiry about other employees who had complained

Significance. When evaluating supervisors through employee interviews:

Advise employees of purpose of interview;

Advise employees it is voluntary;

Advise no reprisals for statements;

Don’t inquire about other employees;

Don’t tell employees they can’t talk about the meeting.

Jones & Carter/Cotton Surveying Co., (16-CA-27969)(Feb 8, 2013).

Employee alleged employer unlawfully maintained rule in handbook that prohibits discussions among employees about their salaries.

NLRB found for employee. Ordered reinstatement and back pay.

Significance:

Policies and handbooks must be changed.

Train managers.

Recess Appointments

Noel Canning v. NLRB, 7-5 F.3d 490 (D.C. Cir. 2013) cert. granted (No. 12-1281)(decision not expected until 2014).

D.C. Court of Appeals held that three recess appointments to NLRB were unconstitutional

Cases decided by recess appointees likely invalid

Third Circuit (NLRB v. New Vista Nursing and Rehabilitation) and Fourth Circuit (NLRB v. Enterprise Leasing Company Southeast) have also ruled the recess appointments were invalid.

More than 200 NLRB decisions are subject to challenge.

New NLRB

President Obama submitted full slate of 5 nominees to the Senate, 3 Democrats and 2 Republicans as is tradition. Senate approved the slate.

During shutdown, 1600 NLRB employees furloughed. 11 remained working, which include all 5 Board members.

Two Member Decisions

New Process Steel v. NLRB, 103 S.Ct. 2635 (2010).

Supreme Court ruled that the Board must at all times have at least three members approved by the Senate

January 2008 through April 5, 2010, NLRB operated with two members.

Supreme Court decision invalidated approximately 600 rulings

About 500 “closed through compliance with original decision, settlement, withdrawal or other means.”

About 100 ultimately contested.

Dues Checkoff

WKYC-TV, Inc., 359 NLRB No. 30

Board overruled 50 year precedent and held that following expiration of contract, employer must continue to honor a dues-checkoffprovision of that agreement until the parties have either reached agreement or a valid impasse permits unilateral action by the employer

Witness Statements

American Baptist Homes, 359 NLRB No. 46

For almost 35 years, NLRB had held that witness statements obtained during an employer’s investigation are exempt from disclosure in pre-arbitration discovery

Board now will apply balancing test to determine whether employer confidentiality concerns outweigh its obligation to provide information to the union

Employer must bargain with union over whether there is another way to provide the info that meets employer’s confidentiality concerns.

Social Media

Costco Wholesale Corporation, 358 NLRB No. 106

NLRB found that Employer unlawfully maintained a rule prohibiting employees from electronically posting statements that damaged the Company or damage a person’s reputation

Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012)

NLRB found unlawful the following policy:

“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.”

Quicken Loans, Inc., 359 NLRB No. 141 (2013).

Employment agreement requiring bankers to keep in “strictest confidence” non-public information relating the company’s business, including personnel information violates Section 7.

Rulemaking

Proposed rules shortening deadlines for elections struck down by U.S. District Court for D.C.

Two federal Courts of Appeal have invalidated the NLRB Notice-Posting Rule which would require employers to post notices explaining employee rights under the NLRB.

DOL “Advice Exception” to the LMRDA “Persuader Regulations”

Regulations to be implemented Nov. 2013.

Expand reporting requirements on employers, labor relations consultants and attorneys.

Inflatable Rats

Sheet Metal Workers Local 15, 356 NLRB No. 162

Inflatable rat at a secondary employer’s premises to protest the labor practices of its non-union contractor is not coercive, does not violate U.S. labor law and is only “peaceful persuasion.”

Free Speech

1

NLRB DEVELOPMENTS

Kelly BaierBradley & Riley PC319-861-8723kbaier@bradleyriley.com

NLRB Significant Issues

Organizing/“Micro-units”/ Neutrality Pacts

NLRB action in non-union workforces

Recess Appointments/Two member decisions

Dues Checkoff

Witness Statements

Social Media

Rulemaking

Inflatable rats

Organizing “Micro-units”

Kindred Nursing Centers East v. NLRB, __ F.3d ___, 2013 WL 4105632 (6th Cir. 2013).

Employer argued Board’s determination that 53 CNAs constituted a bargaining unit was not appropriate

Employer wanted 33 other employees included

2

Board ruled that employer that wants more employees in a unit must show an “overwhelming community of interest.”

6th Circuit granted Board’s enforcement order

Significance: Easier for unions to “cherry pick” employees to be in bargaining unit.

Neutrality Pacts

Mulhall v. UNITE HERE Local 355, 667 F.3d 1211 (11th Cir. 2012) cert. granted, (No. 12-99, argument 11-13-13).

Fla. Greyhond track’s agreement to stay neutral in an organizing campaign, allow union access to nonpublic work areas, and provide employees’ names and addresses to union may be a “thing of value” that violates Section 302 of LMRA.

Supreme Court Issues: Do employer and union violate Section 302 by entering into agreement in which employer exercises its:

Freedom of speech by promising to remain neutral

Property rights by granting union limited access to employer’s property

3

Freedom of contract by obtaining the union’s promise to forgo its rights to picket, boycott or otherwise put pressure on the employer’s business.

NLRB Action/Non-union

Grand Canyon Education, Inc., 359 NLRB No. 164 (2013).

Employer found to have violated NLRA when its HR representative interviewed employees to evaluate a supervisor.

Questions included inquiry about other employees who had complained

Significance. When evaluating supervisors through employee interviews:

Advise employees of purpose of interview;

Advise employees it is voluntary;

Advise no reprisals for statements;

Don’t inquire about other employees;

Don’t tell employees they can’t talk about the meeting.

4

Jones & Carter/Cotton Surveying Co., (16-CA-27969)(Feb 8, 2013).

Employee alleged employer unlawfully maintained rule in handbook that prohibits discussions among employees about their salaries.

NLRB found for employee. Ordered reinstatement and back pay.

Significance:

Policies and handbooks must be changed.

Train managers.

Recess Appointments

Noel Canning v. NLRB, 7-5 F.3d 490 (D.C. Cir. 2013) cert. granted (No. 12-1281)(decision not expected until 2014).

D.C. Court of Appeals held that three recess appointments to NLRB were unconstitutional

Cases decided by recess appointees likely invalid

5

Third Circuit (NLRB v. New Vista Nursing and Rehabilitation) and Fourth Circuit (NLRB v. Enterprise Leasing Company Southeast) have also ruled the recess appointments were invalid.

More than 200 NLRB decisions are subject to challenge.

New NLRB

President Obama submitted full slate of 5 nominees to the Senate, 3 Democrats and 2 Republicans as is tradition. Senate approved the slate.

During shutdown, 1600 NLRB employees furloughed. 11 remained working, which include all 5 Board members.

Two Member Decisions

New Process Steel v. NLRB, 103 S.Ct. 2635 (2010).

Supreme Court ruled that the Board must at all times have at least three members approved by the Senate

January 2008 through April 5, 2010, NLRB operated with two members.

6

Supreme Court decision invalidated approximately 600 rulings

About 500 “closed through compliance with original decision, settlement, withdrawal or other means.”

About 100 ultimately contested.

Dues Checkoff

WKYC-TV, Inc., 359 NLRB No. 30

Board overruled 50 year precedent and held that following expiration of contract, employer must continue to honor a dues-checkoffprovision of that agreement until the parties have either reached agreement or a valid impasse permits unilateral action by the employer

Witness Statements

American Baptist Homes, 359 NLRB No. 46

For almost 35 years, NLRB had held that witness statements obtained during an employer’s investigation are exempt from disclosure in pre-arbitration discovery

7

Board now will apply balancing test to determine whether employer confidentiality concerns outweigh its obligation to provide information to the union

Employer must bargain with union over whether there is another way to provide the info that meets employer’s confidentiality concerns.

Social Media

Costco Wholesale Corporation, 358 NLRB No. 106

NLRB found that Employer unlawfully maintained a rule prohibiting employees from electronically posting statements that damaged the Company or damage a person’s reputation

Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012)

NLRB found unlawful the following policy:

8

“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.”

Quicken Loans, Inc., 359 NLRB No. 141 (2013).

Employment agreement requiring bankers to keep in “strictest confidence” non-public information relating the company’s business, including personnel information violates Section 7.

Rulemaking

Proposed rules shortening deadlines for elections struck down by U.S. District Court for D.C.

Two federal Courts of Appeal have invalidated the NLRB Notice-Posting Rule which would require employers to post notices explaining employee rights under the NLRB.

9

DOL “Advice Exception” to the LMRDA “Persuader Regulations”

Regulations to be implemented Nov. 2013.

Expand reporting requirements on employers, labor relations consultants and attorneys.

Inflatable Rats

Sheet Metal Workers Local 15, 356 NLRB No. 162

Inflatable rat at a secondary employer’s premises to protest the labor practices of its non-union contractor is not coercive, does not violate U.S. labor law and is only “peaceful persuasion.”

Free Speech