2017 Jackson Lewis P.C. 1

Transcription

1 2017 Jackson Lewis P.C. 1

2 Your Guide To The New NLRB Richard F. Vitarelli, Esq. Jackson Lewis P.C. Hartford Jackson Lewis P.C. 2

3 Key Topics Addressed The New Board Policy Cases Arbitration Agreements/Class Waiver Weingarten Cases Employer/Employee Status Joint Employment 2017 Jackson Lewis P.C. 3

4 Hot Off The Presses Senate Confirms Kaplan and Emanuel for Board Membership Board Chairman Miscimarra Declines Second Term, Signals Need to Increase Board Output Peter B. Robb Confirmed as Next Board General Counsel U. S. Supreme Court to Hear Challenge to Public Sector Union Fees Board GC Memorandum Advocates Extending Weingarten Rights to Non- Union Workplaces Public s Approval of Unions Goes Up, Gallup Reports Trumka Advocates for New AFL-CIO Organizing Strategy Congress Takes Up Bills Limiting NLRB Authority NLRB Releases Updated Version of Outline of Law and Procedure in Representation Cases 2017 Jackson Lewis P.C. 4

5 The New Board The U. S. Senate has confirmed Republican appointees Marvin Kaplan and William Emanuel, as well as new General Counsel, Peter B. Robb. As discussed in previous quarterly updates, member Kaplan is former counsel to the Commissioner of the Occupational Safety and Health Review Commission. Member Emanuel and General Counsel Robb were management-side lawyers working in private practice. Kaplan s term runs through August 27, 2020, and Emanuel s runs through August 27, Kaplan and Emanuel will serve with fellow Republican Board appointee Chairman Phillip Miscimarra, whose term expires on December 16, Kaplan and Emanuel also join Democrats Mark Gaston Pearce and Lauren McFerran on the Board. Board Member Pearce s term expires on December 16, 2018, and Board Member McFerran s term expires on December 15, Jackson Lewis P.C. 5

6 The New Board With a 3-2 Republican majority, the now fully-constituted Board is expected to reverse many Obama-era pro-employee rulings, including rules on: class action waivers joint employer status temporary workers quickie elections expansion of protected concerted activity (e. g., its impact on workplace policies) the definition of appropriate bargaining units, and the status of college/university faculty and student athletes, among others. Despite the expected wave of pro-employer rulings, in his first two decisions as a Board member, Marvin Kaplan has declined to express disagreement with decisions and rules issued by the Obama Board. In his first decision, Kaplan voted (in an unpublished summary order) to deny an employer s request to stay an election Jackson Lewis P.C. 6

7 Union Resurgence Gallup poll (August 2 to 6, 2017): 61% of adults answered that they approve when asked, Do you approve or disapprove of unions? This is the highest percentage since 2003, when 65% said they approve. While only 22% of respondents believe unions will become stronger in the future and 46% believe they will become weaker, 39% of respondents would like unions in the United States to have more influence. This is the highest figure recorded in the 18 years Gallup has asked the question. Poll results are based on telephone interviews conducted among a random sample of 1,017 adults at least 18 years old, living in the 50 states and the District of Columbia. The margin of error is ±4% Jackson Lewis P.C. 7

8 Union Resurgence Employers should make note of this result. A likely significant reason for the decline in the number of unionized employees in the private sector (now at 6.6%) has been Americans negative view of unions. Not long ago, the AFL-CIO spent millions of dollars on an advertising campaign touting the slogan Union Yes, which was designed to promote a positive view of unions (hence, the Yes ). Now that six out of 10 Americans view unions positively, a window has opened for unions to regain some of the strength they once had 2017 Jackson Lewis P.C. 8

9 New Organizing Strategy Despite the growing public approval of organized labor, AFL-CIO head Richard Trumka has said that his organization must rethink its organizing strategy, to increase the scale of its organizing campaigns. In remarks given at a recent breakfast for labor and political leaders, Trumka cited the growth of right-to-work organizations and well-funded political adversaries as creating a new need to organize on a mass scale, suggesting industry-wide organization might be necessary, as opposed to facility-by-facility organizing drives, which are prevalent now Jackson Lewis P.C. 9

10 Positive Workplace Policies In T-Mobile USA, Inc. v. NLRB, Case No (5th Cir. Jul. 25, 2017), (1) A positive work environment policy: [The Employer] expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation. Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management. NLRB Illegal Court - Legal 2017 Jackson Lewis P.C. 10

11 Integrity Policies (2) An integrity policy: [W]e expect all employees, officers and directors to exercise integrity, common sense, good judgment, and to act in a professional manner. We do not tolerate inconsistent conduct. While we cannot anticipate every situation that might arise or list all possible violations, the acts listed below are unacceptable Arguing or fighting with coworkers, subordinates or supervisors; failing to treat others with respect; or failing to demonstrate appropriate teamwork. NLRB Illegal Circuit Court - Legal 2017 Jackson Lewis P.C. 11

12 Policies Prohibiting Videotaping (3) A policy banning certain recordings: To prevent harassment, maintain individual privacy, encourage open communication, and protect confidential information employees are prohibited from recording people or confidential information using cameras, camera phones/devices, or recording devices (audio or video) in the workplace. Apart from customer calls... employees may not tape or otherwise make sound recordings of work-related or workplace discussions. Exceptions may be granted when participating in an authorized [Employer] activity or with [Employer] permission.... If an exception is granted, employees may not take a picture, audiotape, or videotape others in the workplace without the prior notification of all participants. Outcome - Illegal 2017 Jackson Lewis P.C. 12

13 Policies Banning Insignias In G4S Secure Solutions (USA), Inc., (11th Cir. Sept. 1, 2017), The Employer s handbook rule stated that [n]o insignias, emblems, buttons, or items other than those issued by the company may be worn on the uniform without expressed permission. The Union filed ULP charges alleging the handbook rule violated the Act. The Circuit Court, affirming the Board s decision, held the rule could be reasonably construed as prohibiting employees from wearing union insignia while off duty, which the Circuit Court held the Employer had no legitimate basis for doing Jackson Lewis P.C. 13

14 Policies Governing Confidential Information Macy s, Inc., 365 NLRB No. 116 (Aug. 14, 2017). The Employer s handbook policy prohibited employees from disseminating to the public confidential and personally-identifiable information about customers, including social security numbers and home and office contact information: What is confidential information?... any information, which if known outside the Company could harm the Company or its business partners, customers or employees or allow someone to benefit from having this information before it is publicly known. All Non-Public Information is sensitive. Any information that is not generally available to the public that relates to the Company or the Company customers, employees, vendors, contractors, service providers, systems, etc., that you receive or to which you are given access during your employment or while you are performing services for the Company is classified as Confidential or Internal Use Only under the [Company] Information Security Policy Jackson Lewis P.C. 14

15 Policies Governing Confidential Information [The Company] maintains certain information regarding its present and former associates, customers and vendors. [The Company] respects the privacy of this data where it includes personally-identifiable information ( Personal Data ). Personal Data includes names, home and office contact information, social security numbers, driver s license numbers, account numbers and other similar data. [The Company] is committed to handling Personal Data responsibly and using it only as appropriate for legitimate business purposes. Balancing the Employer s confidentiality rights against Section 7 rights, the Board held the Employer s rule was lawful, because it narrowly defined the confidential information as including sensitive information (like social security numbers) that is not generally available and could harm the customers if disclosed. The Board held that while employees do have the right to contact employees under Section 7 and to disclose customer information, they do not have the right to access or disclose sensitive information as prohibited by the policy Jackson Lewis P.C. 15

16 Social Media Policies In Nat. Captioning Institute, Inc., Nos. 16-CA , et al. (Sept. 18, 2017): If you opt to post about your job on social media, it must be done responsibly... [here are]... our guidelines Do not post about [our] software. A lot of our software... was invented by [us].... Don't post screenshots of our software... and do not refer to any of our software by name. Avoid anything other than vague descriptions Do not identify clients by name.... [D]on t post subjective commentary that could reflect poorly upon [the Company s] professionalism or reputation. 3. Refrain from commenting on the quality of other captioning Jackson Lewis P.C. 16

17 Social Media Policies 4. Don't use the [Company s] name on any posts that are Googlesearchable. Posts... are Googleable.... It is fine to list your job title and employer name on your social media profiles. 5. You are NOT anonymous on the internet. Online harassment... [that does not] reflect well upon the Company [is prohibited] Jackson Lewis P.C. 17

18 Social Media Policies The ALJ found the social media policy violated the Act, because: 1) the Board has found that analogous social media policies unlawfully limited employees right to criticize the employer; 2) the policy unlawfully bans usage of the Employer s name in Section 7-protected posts about terms and conditions of work; 3) it is unlawfully vague by prohibiting online harassment [that does not] reflect well without defining the key terms in that phrase; and 4) it bans software postings without leaving an exception for matters touching on collective concerns Jackson Lewis P.C. 18

19 Rules Prohibiting Attacks on Employers Products and Reputation In Miklin Enterprises, Inc. d/b/a Jimmy John's, Case Nos , No (8th Cir. Jul. 3, 2017), the U. S. Court of Appeals for the Eighth Circuit, reversing a Board decision and the Circuit Court s panel decision, held the Employer did not violate the act when it fired employees for placing posters in the city where the Employer did business that implied the Employer s sandwiches posed a health risk to customers. A Minneapolis Jimmy John s sandwich shop s sick-leave policy required employees calling in sick to find a replacement worker to cover the sick employee s shift. Six employees plastered Minneapolis with the posters, which suggested the policy would lead employees to go to work sick, thereby contaminating sandwiches Jackson Lewis P.C. 19

20 Rules Prohibiting Attacks on Employers Products and Reputation The Union organizing the workers filed ULP charges after the Employer fired the employees who led the poster campaign. The Board found the firings were unlawful, because they were in response to protected concerted activity, and a three-judge panel of the Circuit Court affirmed. Reversing the panel, the Circuit Court sitting en banc held the Act does not protect such calculated, devastating attacks upon an employer s reputation and products. The poster campaign, the Circuit Court held, demonstrated such detrimental disloyalty as to provide cause for the terminations Jackson Lewis P.C. 20

21 Arbitration Agreements/Class Action Waivers The U. S. Supreme Court heard oral arguments on October 2 in Ernst & Young LLP et al. v. Stephen Morris et al., Case No ; NLRB v. Murphy Oil USA Inc., Case No ; and Epic Systems Corp. v. Lewis, Case No , the consolidated case in which the Court is expected to resolve the circuit split over whether an arbitration agreement that requires an employee to waive his or her right to bring or participate in a class action violates the NLRA. The U. S. Department of Justice on June 16, 2017 filed an amicus brief arguing for the legality of such mandatory arbitration agreements, reversing the DOJ s position as set out in the Obama-era certiorari petition in the matter, and taking a position opposed to the NLRB. Until the Court renders its decision, the circuit split on this issue remains, with the Sixth, Seventh and Ninth Circuits holding class and collective action waivers violate the Act, while decisions of the Second, Fifth, Eighth and Eleventh Circuits have upheld the legality of such waivers. State Courts are not necessarily in sync with federal circuit decisions covering such states Jackson Lewis P.C. 21

22 Weingarten Rights for Non-Union Employees On September 7, 2017, Board General Counsel Richard Griffin released a memorandum concluding that non-union employees should have the right to representation by coworkers if requested during investigatory interviews that may lead to discipline. The memorandum advises a Regional Director in Region 6 that the employer in two cases being considered in that Region likely violated the Act when it failed to provide non-union employees with coworkers representatives of their choosing during disciplinary investigatory meetings. While the Board had previously held that employees in non-union settings had a right to representation by a coworker during investigatory interviews, the Board reversed that position in IBM Corp., 341 NLRB 1288 (2004) Jackson Lewis P.C. 22

23 Weingarten Rights for Non-Union Employees The GC s position in the recent memorandum effectively advocates a reversal of IBM Corp. and a return to the Board s earlier position. The GC memo also represents a departure from the Board s position as it stood in a case decided just a few months ago Jackson Lewis P.C. 23

24 New Classes of Employees Graduate student research and teaching assistants Independent contractors 2017 Jackson Lewis P.C. 24

25 New Classes of Employees Graduate Students The New School, 02-RC (Jul. 6, 2017) University of Chicago, 13-RC (Aug. 8, 2017) Boston College, Case No. 01-RC (Sept. 11, 2017) 2017 Jackson Lewis P.C. 25

26 New Classes of Employees Independent Contractors In Minnesota Timberwolves Basketball, LP, 365 NLRB No. 124 (Aug. 18, 2017), the Board, reversing a Regional Director s decision, held the crew controlling the video displayed on a basketball arena s four-sided display board during games were employees under the Act and not independent contractors. The Minnesota Timberwolves organization engaged 16 individuals per game who selected and developed the content displayed on the arena display. While the team engaged the crew on a per-game basis, many had performed work for the organization for several years, and the team maintained both proprietary rights to the content displayed and veto power over the producers creative decisions. When the Union attempted to organize the producers, the Timberwolves argued they were independent contractors excluded from coverage by the Act Jackson Lewis P.C. 26

27 New Classes of Employees Independent Contractors The Regional Director, accepting the Employer s argument, dismissed the election petition, and the Union appealed to the Board. Reversing the RD s decision and directing an election, the Board, applying its decision in FedEx Home Delivery found the producers were employees, not contractors, based on the control the team exerted over the producers, the long-term relationship between them, and because the team controlled when, where and how the producers completed their work Jackson Lewis P.C. 27

28 Joint Employment Current status and enforcement of the National Labor Relations Board s Browning-Ferris Industries decision, which held that two businesses are joint employers under the NLRA and share collective bargaining responsibility when one has potential control over aspects of the other s workforce. Current status of legislation including the federal Save Local Business Act (H.R. 3441) which could potentially roll back different federal agency interpretations during the Obama Administration Jackson Lewis P.C. 28

29 Legislative Developments On September 7, Republican Senators reintroduced the Employee Rights Act (S. 1774), which would, among other things, reverse the quickie election rules, require unions to obtain explicit approval for the use of dues for political purposes, mandate recertification votes following periods where there is significant turnover at a workplace and would require that for a union to win an election, it must win a majority of all eligible voters, not just a majority of all votes cast. The bill was introduced by Sen. Orrin G. Hatch (R-UTtah), Sen. Lamar Alexander (R-Tenn.) and 13 co-sponsors, and was referred to the Senate Committee on Health, Education, Labor and Pensions (HELP) Jackson Lewis P.C. 29

30 Legislative Developments Meanwhile, in the U. S. House, the Workforce Democracy and Fairness Act, H. R. 2776, was introduced by Rep. Tim Walberg (R-Mich.) on June 6, 2017, and received prompt attention from the House Committee on Education and the Workforce. Ten other Republican Representatives have signed on as co-sponsors, and Sen. Lamar Alexander (R-Tenn.) has introduced a virtually identical bill in the Senate (S. 1350). H. R would undo many key aspects of the quickie election rules, including: Requiring any pre-election hearing be held at least 14 days after the filing of a petition (instead of the average 8-10 days before a hearing under the current rules); 2017 Jackson Lewis P.C. 30

31 Legislative Developments Requiring all relevant and material issues that may moot or impact the election are resolved prior to the holding of the election. (Under current rules, most issues cannot be litigated until after the election); and Ensuring that an election is not held sooner than 35 days after the filing of a petition. (Elections are currently held in about 23 days, and sometimes as quick as 11 days, after petition is filed). H. R also would change how the Board analyzes an election petition: The Board must determine the appropriate unit (rather than evaluate whether a proposed unit is an [one of possibly two or more] appropriate unit); 2017 Jackson Lewis P.C. 31

32 Legislative Developments The bargaining unit must include all employees with a sufficient community of interest, according to eight factors, and the burden is on the requesting party to demonstrate that certain employees should be excluded based on having sufficiently distinct interests; and Accretions (additions to an existing bargaining unit) must have an overwhelming community of interest before they are added. While unions may campaign long before a petition is filed, and may directly ask employees whether they support unionization (which is illegal for employers to do), employers benefit from a longer campaign period to explain its message and perspective on unionization. By emphasizing the importance of inclusion of employees in the bargaining unit, the proposals would prevent unions from carving out dissenters based on slight differences in their particular work, conditions, or environment Jackson Lewis P.C. 32

33 Legislative Developments Both the U. S. House and the Senate have voted on spending bills for FY 2018 that impact spending at the Department of Labor and the NLRB. Two U.S. House bills that passed that chamber earlier this year contain cuts to DOL funding by about 11 percent, and include NLRB funding cuts of approximately 9%. House members attached several riders to the bills that would restrict the NLRB from enforcing its Specialty Healthcare decision, would prevent the NLRB from making any determination of joint-employer status, and would prohibit the NLRB from provid[ing] employees any means of voting through any electronic means in [a representation] election. Meanwhile, the Senate Committee on Appropriations passed its own Labor- Health and Human Services Department spending bill on September 7, which would cut DOL funding by only 1.6%, and hold the NLRB s funding level unchanged Jackson Lewis P.C. 33

34 Legislative Developments The bill does not contain the labor-related policy riders contained in the House version. Still, it remains to be see whether the full Senate will approve the measure, since 60 votes are required to pass a spending bill in that chamber. While both houses are considering spending bills, Congressional leaders and the White House may now negotiate a comprehensive omnibus spending deal, which could would fund the whole fiscal year and replace the series of individual spending bills voted on by the House and the Senate Jackson Lewis P.C. 34

35 QUESTIONS? 2017 Jackson Lewis P.C. 35