Thursday, November 8, 2012

The NLRB will be active in the non union workplace and more visible to the public.

That is the message I took away from attending three panel sessions with Board representatives last week at the ABA Labor and Employment Section CLE conference in Atlanta.   Members Pearce, Block, and Griffin addressed one session.  Acting General Counsel Solomon addressed another session, and three Regional Directors--Margaret Diaz from Region 12, Wayne Gold from Region 4, and Claude Harrell, Jr. from Region 10 addressed a third.  I have summarized the highlights from each of the three sessions.

The Board
Chairman Pearce indicated that although the Board is smaller, it is definitely still around.  He said that the new protected, concerted activity page on the website is the fourth most accessed page.  He indicated that the Board will continue to pursue public awareness since "A right only has value when people know it exists."  In difficult economic times, employees need to see for themselves and understand what protected, concerted activity is.  He said it is one of the best kept secrets of the NLRA.

There are currently three social media cases pending with the Board dealing the use and restrictions of social media.  There are two cases pending concerning an employer's obligation to provide witness statements to the union which will determine whether and under what circumstances such production is required.  He said that there are three cases pending regarding the use of company equipment and the impact of Register-Guard. 

Member Block echoed the need for public awareness of the rights under the statute.  With respect to the Board's rulemaking, she stated that the notice that the Board seeks to have employers post tracks the language used by the Department of Labor with federal contractors.  The RC rules are designed to eliminate unnecessary litigation and remove it as an obstacle to elections.  She also discussed the litigation challenging the recess appointments.

Member Griffin expressed his surprise at the reaction to the Board's decision in Banner Health Systems, 358 NLRB No. 93 (2012) with respect to the employer violation by requesting employees not to talk to co-workers about the internal investigation.  He said that the  panel was more focused on the conduct complained of---using hot water from a coffee maker to sterilize instruments. He said that the Board is not saying that employers cannot conduct confidential investigations.  Rather, the employer must demonstrate adequate business justification for the need.  This showing is necessary because a confidentiality requirement impacts upon "working conditions."  Griffin said that this Board has experience in knowing whether there is a legitimate concern, such as in harassment cases, or whether the concern is mere rhetoric without any basis in fact.  It is a factual decision.  He also addressed cases involving employer rules and their impact on protected, concerted activity.  He referred to the decision in 2 Sisters Food Group, Inc., 357 NLRB No. 168 (2011) concerning rules that prohibit activity such as prohibiting walking off the job, which violates the Act with a rules that prohibit leaving the premises without permission, which are permissible.

The Acting General Counsel
AGC Solomon  discussed his recent memo on the legality of at will disclaimers.  He stated that where a company states that no manager or supervisor has the right to change the at will nature of employment and that it can only be done by the president in writing, the clause is not illegal because it states the intention of the company and is not requiring an employee to give something up.  A clause where the employee states that he agrees to the at will nature of employment is illegal since it is requires the employee to sign a waiver of his right to join a union and covered by a collective bargaining agreement.  The focus is on whether the employee is forced to waive rights.  He said that there are no "live" at will disclaimer cases pending with the  Board.  The Regional Directors have been instructed to send all cases involving at will disclaimers to him.

With respect to social media cases, Solomon addressed a question concerning disclaimers added to the end of policies.  He indicated the employee would have to go back and translate the policy in order to determine what was protected and allowed.  He indicated that it is the better practice to give examples of what is allowed and not allowed.  He was asked if an employer adopted the Walmart social media policy in total and merely changed the name on the policy, would the Board accept it as permissible?  Solomon indicated that as long as he was Acting General Counsel, he would.  He indicated that there have been no unlawful surveillance cases raised in the social media context.  In all of the cases, a "friend" had given the Facebook pages to the employer.  He said that if the "friend" were a supervisor, it would be hard for the employee tto argue unlawful surveillance.

Regional Directors
The Regional Directors stated that the social media cases were really nothing new and were not an expansion of protected, concerted activity.  They were asked if the regions had received any directive concerning ongoing review of employer handbooks.  Diaz stated that in most discipline cases, the employer refers to the handbook, and it is submitted as part of the investigation.  If the region comes across a potential violation, it will advise the charging party so that the can be amended. Gold stated that he takes a more aggressive approach and always asks for the handbook which is then reviewed by the region.  If a violation is discovered, the charging party will be advised so the charge can be amended.  He said that the region would not ignore a violation.  The Regional Directors agreed with Chairman Pearce that it was important to inform the public of what their rights are under the Act.




















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