1. THE NATIONAL LABOR
RELATIONS BOARD
What you don’t know can (and usually will) hurt you…
RUSSELL L. LICHTENSTEIN, ESQ.
Chairman, Labor & Employment Practice Group
3. The NLRB –
Who they are and what they do
• They purport to be an “independent federal agency” that
protects the rights of private sector employees who join
together, with or without a union, to improve their wages
and working conditions.
• Appointed by the President with advice and consent of the
Senate to staggered 5-year terms.
• 5 members: 3 Democrats, 2 Republicans - all Obama
appointees.
• The Noel Canning fiasco.
5. The NLRB –
Who they are and what they do
• What they do:
• Conduct Elections
• Investigate Charges
• Decide Cases
• Enforce Orders
• Facilitate Settlements
6. The NLRB and the NLRA
• The Board is the gatekeeper for the National Labor
Relations Act.
• Two primary sections of the Act which impact employers
in non-election settings are Sections 7 and 8.
7. The NLRB and the NLRA
• TRUE or False: The Act only applies to unions, union
employees and unions attempting to organize employees.
8. Section 7 of the NLRA
• 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 of such activities except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a)(3).
9. The NLRB and Employee Misconduct
• “Hey, did you bring enough KFC for everyone?”
• “Go back to Africa, you bunch of fucking losers.”
10. The NLRB and Social Media
• On a break while at work, employee posts to his
Facebook page the following:
• The Assistant Director of Banquets is such a NASTY MOTHER
FUCKER, don’t know how to talk to people!!!!!! Fuck his mother and
his entire fucking family!!!! What a LOSER!!!! Vote YES for the
UNION!!!!!!
11. The NLRB and Employee Handbooks
• What do the following policies have in common?
• “Be respectful to the Company, other employees, customers, partners
and competitors.”
• “Do not make fun of, denigrate, or defame your co-workers,
customers, franchisees, suppliers, the Company, or our competitors.”
• “Be respectful of others and the Company.”
• “Do not make defamatory, libelous, slanderous or discriminatory
comments about the Company, its customers and/or its competitors,
its employees or management.”
• “Do not make statements that damage the Company or the Company’s
reputation, or that disrupt or damage the Company’s business
relationships.”
• “Never engage in behavior that would undermine the reputation of the
Company, your peers, or yourself.”
12. The NLRB and Employee Handbooks
• Media Contact – what’s the difference?
• “Employees are not authorized to speak to any representatives of
the print or electronic media about company matters unless
designated to do so by Human Recourses, and must refer all media
inquiries to the company media hotline.”
• “The company strives to anticipate and manage crisis situations in
order to reduce disruption to our employees and to maintain our
reputation as a high quality company. To best serve these
objectives, the company will respond to the news media in a timely
and professional manner only through designated spokespersons.”
13. The NLRB and Employee Handbooks
• Disclosure of Confidential Information
14. The NLRB and Employee Handbooks
• Wage and Salary Disclosure:
Compensation programs are confidential between the
employee and GRQ Investments, LLC. Disclosure of
wages or compensation to any third party or other
employee is prohibited and grounds for discipline up to
and including termination.
15. The NLRB and Employee Handbooks
• Security and Confidentiality of Commercial Information:
As a matter of course, employees of GRQ Investments,
LLC will have access to confidential and proprietary
information. This information includes, but is not limited
to, personnel information, pricing information, client lists,
contractual agreements, intellectual property and
marketing/sales strategies. It is a condition of employment
that you not disclose this information to third parties
during or after employment. Disclosure of GRQ
Investments confidential information without express
written approval is prohibited.
16. The NLRB and Employer Email
• The “new water cooler”???
• Business Use of Email Policy:
Computers, laptops, internet access, voicemail, electronic
mail (email), iPhones, BlackBerrys, cellular telephones,
and/or other GRQ Investment equipment is provided to
facilitate GRQ business. All information and messages
stored, sent, and received on these systems are the sole
and exclusive property of GRQ, regardless of the author
or recipient. All such equipment and access should be
used for business purposes only.
17. The NLRA and Organization Activities
• How do you know that it’s about to happen – Some Early
signs:
• Noticeable increase in casual employee gatherings
• And a tendency to stop talking when supervisors approach
• Employees seem unusually busy during breaks, lunch, and before
and after work
• Discussions of informal employee “get togethers” after hours
• Nature and frequency of employee complaints and issues
NOTICEABLY changes
• Complaints and concerns now presented by a delegation of
employees rather than an individual
• New “cliques” forming – with new leaders
18. The NLRA and Organization Activity
• More signs that a Union is afoot:
• Suddenly, new terms become part of the conversation like “job
security,” “concerted activity,” “economic pressure” etc.
• Sudden changes in employee attitudes coupled with a reluctance
to speak individually with management
• You start to see some former employees – especially discharged
ones – hanging around company property
• Requests for the names and addresses of employees
• Unknown individuals showing up on site and meeting with groups
of employees
• Dead giveaway - a letter or a visit from a union official
19. The NLRA and Organization Activities
• You know of a union organizing attempt – what can
and can’t you do?
• We’ve been talking about raises for a while, let’s give them out
now.
• My brother-in-law works here as a driver and he can report back to
us after the meeting.
• The meeting is at the Econo-Lodge on Main Street. We can have
Joe park a company car across the street and watch what’s going
on from a distance.
• If a Union comes in, it will ruin our business and we’ll have to close
down. Let’s just tell our employees the truth.
20. The NLRA and Organization Activities
•What you CANNOT do:
• Threats
• Interrogation
• Promises
• Spying
21. The NLRA and Organization Activities
• Some things you CANNOT do:
• Attend union meetings or engage in any clandestine actions or
activity related to union meetings.
• Punish, threaten or intimidate union “pushers.”
• Ask employees if they are organizing, if they are affiliated, or if they
have signed an authorization card.
• Grant wage increases linked to keeping the union out – directly or
indirectly.
• Threaten to close up, shut down, move, lay-off employees, or
curtail operations if the union gets in. Even if true!
• Treat union pushers, or those you believe to be union pushers,
differently than others.
• Link pre-planned raises or benefit increases to the union
organization success or failure.
22. The NLRA and Organization Activity
• But all is not lost – you CAN:
• Keep non-employee union organizers off of your property (but not
public areas).
• Remind employees of the benefits they already have – with no
threats or promises – veiled or otherwise.
• Inform employees that signing a card does not obligate them to
vote for the union.
• Inform employees of the disadvantages of belonging to a union,
such as the possibility of strikes, dues, picketing, etc.
• Inform employees of an employer’s legal right to replace workers
who go on strike for economic reasons.
• Inform employees that a union cannot obtain more than an
employer is able to give.
23. The NLRA and Organization Activity
• And you CAN:
• Inform employees of untrue or misleading statements made by
union pushers or organizers, and give the true and actual facts.
• Respond to union attacks upon company policies, practices, or
individual managers and supervisors.
• Accurately advise employees of their rights under the NLRA,
including their right to not be represented by a union.
25. Union Avoidance
• GET OUT IN FRONT
• Become “Union Redundant.”
• Adopt the TEAM approach
• Train your supervisors/managers
• Educate your employees
• Accessibility of upper management
• Modernize policies
26. NLRA’s New “Quickie Election” Rules
• Effective April 14, 2015
• From Petition to Election in 21 days!!!
29. Some Takeaways …
• “Don’t think it won’t happen just because it hasn’t
happened yet.”
• At the appropriate level – BE PREPARED
• Train your Supervisors/Managers/Executives
• Don’t try this at home
• Know what you know and – more importantly - what you don’t
• Don’t hire your butcher to fix your car
• An ounce of prevention …
• Know your greatest asset
• Take the temperature of your workforce
• Seriously, HAVE POLICIES REVIEWED AND UPDATED
• Your POSTINGS?
30. THE NATIONAL LABOR
RELATIONS BOARD
What you don’t know can, and usually will, hurt you…
RUSSELL L. LICHTENSTEIN, ESQ.
Chairman, Labor & Employment Practice Group
