National Labor Relations Board (NLRB) Update Important Awareness for the Non-union Leader

1. National Labor Relations Board (NLRB) Update Important Awareness for the Non-union Leader WVHHRA Fall Conference September 14, 2012

2. Program Agenda • Current composition & mindset of the Recent National Labor Relations Board (NLRB) • Update on decisions affecting non-union leaders • Update on protected concerted activity • Keeping it on the radar: The Wage & Hour class action lawsuit epidemic and healthcare leaders’ top vulnerabilities

3. Foundation Knowledge:The Current NLRB • Chairperson Mark Pearce (D), union side lawyer • Richard Griffin (D), former general counsel IUOE • Sharon Block (D), former labor department deputy assistant secretary for congressional affairs • Bryan Hayes (R), management side lawyer • RESIGNED (effective 7/24): Terence Flynn (R), former chief counsel to Hayes • Allegations he disclosed non-public information about board deliberations and other issues when he was counsel to former member Shaumber *Craig Becker (D), former union side lawyer for AFL-CIO and SEIU influential in recent decisions but went off Board December 2011

4. Mindset “Workers should not be able to choose against having a union as their monopoly-bargaining agent.” - Craig Becker

5. August 26, 2011The “tipping point” • A series of union-favored NLRB decisions issued • September 22: U.S. House Committee on Education & the Workforce Hearing “The Culture of Union Favoritism: Recent Actions of the National Labor Relations Board”

6. Two Sides: Two Positions • House Committee • This is “assault on American workers and job creators undermining our nation’s ability to grow and prosper” • Cannot stand by and allow an unelected board to wreak havoc on our workforce • NLRB • Takes seriously our mission to protect worker free choice, promote collective bargaining, preserve labor peace • 400 decisions this year: mix of findings for employers, labor unions, and individual employees

7. August 26 Decisions Reversal of Law: • Easier to organize sub-units of employees • Harder to get union out in a card check New Rule: 3. Undermines ability for employer to keep unity in workplace

8. Non-Acute Care Facilities Affected • Union may petition for any group of employees • Burden is now on employer to show “overwhelming commonality of interest” • Much easier for union to organize

9. Commonality of Interest Similarity of: • Job function • Earnings • Benefits • Hours • Required skills • Supervision • Location of production/work close proximity • Considerable interaction

10. Update on “Micro Units” • June 14 Senate Appropriations Committee attempt to overturn fails 15-15 (vote was down party lines) • Under review by 4th and 6th Circuit US Court of Appeals (critiqued by many opponents as moving too slowly)

11. New Posting Rule Was to be effective April 30 (now third delay) Postings where other federal notices are maintained Electronic if policies are electronic

12. Posting Status Spring Court Decisions • Washington DC lower court held not an automatic ULP if not posted • South Carolina federal court held posting not enforceable and not in spirit of the NLRA NLRB • Appealing all decisions • Delayed posting for consistency and clarification reasons

13. Election Procedures(effective April 30) • Time between petition & election potentially cut in half • Now 10 to 21 days • Was 25 to 42 days • Limits employer time to educate employees

14. Procedural Changesaffecting time frame • No guarantee of legal briefs after hearings • No required Board review for regional pre-election decisions • No requirement elections be held a minimum of 25 days from petition filing • Supervisory issues and job class issues (less than 10%) will be post-election issues

15. Update on Election Procedures • US District Court held a quorum was not met in order to make these rule changes. • NLRB filed June 11 motion showing Brian Hayes was “present and participating” in an “electronic room” • Chamber of Commerce & Coalition for Democratic Workplace filed opposition brief on June 27 • Rules not in effect pending judicial outcome

16. Developing Forms of Protected Concerted Activity • Social Media & the NLRB • A “flurry” of unfair labor practice (ULP) charges over employers disciplining for social media activity

17. Non-union employees have a right to engage in concerted activity. Activity must be done in order to advance the employees’ “mutual aid or protection”. Activity must be related to a workplace concern that the employer has some control over. Activity must be lawful. Protected Concerted Activity Refresher

18. NLRB Social Media Jurisdiction • Employees have the right to collectively (protected concerted activity) discuss terms and conditions of work – good or bad • Social media is analogized to water cooler conversations • Employers cannot suppress or chill employee rights to discuss through policy or practice

19. Protected Concerted Activity Refresher (continued) Traditional Examples of Protected Concerted Activity An ambulance driver refusing to drive an ambulance with faulty brakes. Employees walking out to protest excessive heat, cold or unsafe working conditions. A strike to protest an employee discharge. Drafting and circulating a petition alleging unsafe work conditions, protesting an employee discharge or supporting an employee grievance. Refusal to work due to a protest of some condition of work (sit downs).

20. Case Study February 2011An NLRB Preview • One late night you are surfing FaceBook for high school friends you have lost touch with over the years. You somehow land on an employee’s page that is not privatized. You curiously start reading and see the employee is talking about how terrible working conditions are at the organization and calls her supervisor a profane word starting with “B”. She then goes on to say that her supervisor is a “psychological patient”. What can you legally do?

21. The First Real CaseBuffalo, New York • A complains on FaceBook about B’s poor work performance • Four other employees join in and complain about B, laced with profanity • B sees the post and gives to supervisor • The five involved are fired for the zero tolerance harassment policy • Outcome?

22. Is it Protected? Important Questions Leaders’ Analysis Individual or “concerted” issue; meant to continue conversation? Company time? Among co-workers or to random people? Terms & conditions of work? • How are comments phrased? • Where & when did the conversation take place? • Who is the audience? • What is the subject?

23. Mid-2011 NLRB Social Media Decisions • Employee posts pictures and make comments to coworkers, who reply, about employer’s choice of inexpensive food at function • Employee complained about supervisor to coworkers; called her a “scumbag” • Employee posts dissatisfaction, to coworkers and others, about employer’s failure to withhold state taxes and poor paperwork • A nurse complained about a coworker’s frequent absences and the burden it placed on staffing, then solicited any coworker with any details contact her

24. Mid-2011 NLRB Social Media Decisions (continued) • Tweets by one employee critical of other employees, along with tweets with sexual content on a work-related account • A single employee’s FaceBook posting about his employer’s tipping policy • A sole employee’s criticism of her employer on a politician’s FaceBook page

25. Late 2011 NLRB Social Media Decisions Are We Seeing an Evolvement? • Concerted is requiring “initiate, induce or prepare” with others for action • Mere gripe to coworkers is not enough • Mere response of sympathy no longer enough • If conduct interferes with own or others’ work may be addressed even if policy is broad • Action may hold, but policy may not

26. Late 2011 NLRB Social Media Decisions of Interest (continued) • Phlebotomist uses EAP for peer issues. Criticized by staff. Vents on FB about boss, coworkers, employer. Fired for posting that could affect reputation of employer. • Respiratory Therapist posted to coworkers about another coworker sucking his teeth and how she would like to hit him with a ventilator. Also complained how doctors did not respect RTs. Fired for threatening another employee and disrespect to coworker.

27. Social Media Cautions(continued) • Beware of “overly broad” policies • Give examples when referring to: • Defamation • Damaging the organization • Disparaging or embarrassing comments • Compromising privacy

28. Update on Protected Concerted Activity • Labeled “one of the best kept secrets of the NLRA…” • Web page developed by NLRB describing the rights of employees to engage in activity • http://www.nlrb.gov/concerted-activity • “A right only has value when people know it exists”

29. NLRB Concerted Activity Page Select Examples • (WA) Construction workers on U-Tube citing safety concerns • (MN) Urgent care staff wrote letter asking owner to reconsider 10% wage cuts • (WI) Manufacturing women wrote letter about discovery supervisor registered sex offender • (MO) Cloth diaper supplier worker discussed wages with coworker • (TX) Supervisor at dental association refused to give names of employees signing petition protesting top leadership

30. Update on Protected Concerted Activity (continued) • Employees will be directed to call NLRB Information Officer; focus will be: • Is activity concerted? • Does it seek to benefit other employees? • Is it carried out in a way that causes it to lose its protection? • Examples given refusing to do work for safety reasons, talking about pay with coworker, postings on FaceBook

31. Wage & Hour Class Action Lawsuits • Department of Labor targeting healthcare; predicted 99% hospitals in violation of laws • Hundreds of new investigators added • Epidemic: More than 7,000 class/collective action lawsuits filed in federal/state courts in 2009. • More than 80% were wage and hour related • Multi-million dollar settlements and fines

32. Top Vulnerabilities • Meal Periods • Continuous, consecutive uninterrupted “30” • Off the Clock Work • Post and preliminary work • Work related e-mails • Education • Mandated, requested or suggested paid • Lunch staff meetings paid • Education modules done at home paid real time