Overview. NLRA Rights Of Unrepresented Workers. Overview FINAL Fisher & Phillips LLP

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1 Solutions at Work NLRA Rights Of Unrepresented Workers Presented by: D. Albert Brannen NLRB publications Overview Statutory basis of rights Concerted activity Protected activity Examples of PCA The Obama Board may expand these rights Atlanta Charlotte Chicago Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Solutions Louisville at Work 1 New Jersey New Orleans Orlando Philadelphia Phoenix Portland Phone (404) ME Portland OR San Diego San Francisco Tampa Washington DC 2 Overview For the purposes of this session, particular emphasis on: Statutory language SCOTUS precedent NLRB cases and communications 3 4 1

2 NLRB Posters NLRB s Proposed Poster Executive Order Proposed 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. Copyright Statutory Rights Section 7 Concerted Activities 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 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) 7 8 2

3 Board Definition of Concerted Activity Examples of Protected Activities 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) 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 9 10 Solicitation/Distribution Is Protected There Are Limits To Protected Solicitation & Distribution 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 Employees have a right to solicit except in special circumstances The employer bears the burden of proving the special circumstances warrant limiting employee rights Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1943) Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978)

4 Work Stoppages By Non-Union Employees Are Protected Complaints About Pay or Benefits 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) 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 by a ULP Very subjective standard: courts and Board(s) disagree Discussion Of Pay & Benefits With Other Employees Disclosure Of Information To Outside Parties 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] 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)

5 Disclosure Of Information To Outside Parties Enlisting Support Of 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 6 th Circuit 2008] Employees have a right to bring employment-related concerns to the attention of third parties: A news reporter Customers State or federal agencies Enlisting Support Of Outside Parties Promoting Legislation 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. Circulation of literature urging employees to vote against proposed amendment to the state constitution and to lobby in favor of a higher federal 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)

6 Promoting Legislation Filing NLRB Charges Or Litigation 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 (July 22, 2008) 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 (June 16, 2010) Behavioral Rules Lafayette Hotel Has Been Modified By Bush II Board & Courts NLRB found unlawful a rule forbidding employees from making false, vicious, profane or malicious statements toward or concerning the Hotel or any of its employees NLRB standard: did the rule reasonably tend to chill employees in the exercise of their Section 7 rights? Not all rules are facially invalid Must look to context Lafayette Park Hotel, 326 NLRB 824 (1998)

7 Situations Where The Obama Board May Expand Employee Rights Weingarten rights for unrepresented employees IBM Corp., 343 NLRB 301 (2006) /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) 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 Recent Obama Board Decision Parexel International, LLC Recent Obama Board Decision Worldmark By Wyndham 2-1 Board found that employer s discharge of an employee for complaining about wages and discrimination in the setting of wages was unlawful Board found that the employer discharged the employee in an unlawful pre-emptive strike Employer s conduct unlawful regardless of whether the initial conduct was concerted 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, ) Parexel International, LLC, 356 NLRB No. 82 (January 28, )

8 Recent Obama Board Decision 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 Recent Complaint Regarding Twitter Reuters in New York Complaint issued Alleged improper limits on employees use of Twitter Jurys Boston Hotel, 356 NLRB No. 114 (March 28, ) Final Questions? D. Albert Brannen Fisher & Phillips, LLP 1075 Peachtree Street NE Suite 3500 Atlanta, GA Direct: Fax: [email protected] 31 8