Recent NLRB Developments Impact ALL Employers and HR Professionals

1. Recent NLRB Developments Impact ALL Employers and HRProfessionals Stanford G. Wilson Elarbee, Thompson, Sapp & Wilson, LLP 800 International Tower 229 Peachtree St., NE Atlanta, GA 30303 www.elarbeethompson.com (404) 582-8434

2. What is the National Labor Relations Act (“NLRA”)? • Originally passed in 1935 to promote “labor peace” • NLRA applies to private sector employers/employees • Protects employees who form and join labor unions • Governs union elections and collective bargaining • Sets rules for engaging in strikes against employers • Protects employees who engage in certain types of concerted activity in support of employees’ demands about wages, hours, benefits and other working conditions

3. Is My Company Governed by the NLRA? MOST LIKELY! • The NLRA covers most businesses that “affect commerce” • The number of employees does not control coverage • Limited exclusions from coverage (railroads/airlines/agriculture) • NLRA restricts employer conduct even when no union activity

4. What is the NLRB? • The National Labor Relations Board (“NLRB”) is the federal agency charged with conducting elections for labor union representation and with investigating and remedying unfair labor practices, known as ULPs • The NLRB’s General Counsel investigates and prosecutes ULPs • The President appoints the 5 board members to the NLRB and appoints the NLRB’s General Counsel

5. NLRB Members

6. The NLRB’s Acting General Counsel, Lafe Solomon, Commands Attention

7. Recent Developments at the NLRB • Recess Appointments of NLRB Board Members • A New and Aggressive NLRB General Counsel • New NLRB Notice about Employee Rights • New NLRB Rules Allow Quickie Elections • “Concerted Activity” Law Aggressively Applied to Non-Union Employers by NLRB • Prohibition of Collective & Class Action Waivers • NLRB Guidance on Social Media Policies

8. NLRB Notice ofEmployee Rights

9. NLRB Notice ofEmployee Rights -NLRB Created Notice Regarding NLRA Rights -Employers Must Post With Other Notices -Deadline for Posting was April 30, 2012 -Penalties for Failure to Post the Notice -Chamber of Commerce and NAM Sued NLRB -NLRB Has Delayed Posting Requirement

10. First Legal Challenge to NLRB Notice of Rights • On March 2, the U.S. District Court in the District of Columbia issued a decision in National Association of Manufacturers v. NLRB, • The Court held that the NLRB can promulgate a rule requiring employers to post a workplace notice informing employees of basic NLRA rights. • But, the Court also held that the NLRB exceeded its authority in setting the types of penalties for failure to comply with the notice requirement.

11. Second Legal Challenge to NLRB Notice of Rights On April 13, the U.S. District Court for the District of South Carolina issued a decision in Chamber of Commerce of the United States v. NLRB. The Court held that the NLRB exceeded its authority in promulgating the notice posting rule. Stay Tuned . . . .

12. NLRB Amends Election Rules to Allow Quickie Elections -New Rules Will Speed the Election Process -Elections Held in 14 Days, rather than 42 days? -Rules Effectively Eliminate Company’s Campaign -Rules Took Effect on April 30, 2012 -Chamber of Commerce Sued NLRB over Rules Stay Tuned . . . .

13. New Election Procedures

14. Protected Concerted Activity • The NLRB protects employees who engage in concerted activities “for the purpose of collective bargaining or other mutual aid or protection.” • Examples of protected, concerted activity: • Confronting the employer on behalf of a group of employees about poor working conditions • Asking the employer questions about late paychecks • Employees who gather after leaving work to discuss problems involving particular co-workers or supervisors • Employee who raises a safety issue on behalf of an entire department

15. Protected Concerted Activity • Examples of employer conduct that violates the NLRA even when a union is not involved: • Questioning employees about their activities in circumstances that tend to interfere with, restrain or coerce employees in the exercise of their rights under the Act. • Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing or threatening employees because they engaged in protected concerted activity. • Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they filed unfair labor practice charges or participated in an investigation conducted by NLRB.

16. D.R. Horton Case: Collective/Class Action Waivers Interfere with Concerted Activity • In D.R. Horton, Inc., the Board found that the employer violated the NLRA by maintaining a mandatory arbitration agreement that did not allow its employees to file joint, class, or collective employment-related claims. • The Board found that by requiring only individual arbitration of employment-related claims and excluding access to any forum for collective claims, the employer interfered with employees‘ right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

17. Social Media

18. Social Media Policies • Over 100 ULP charges have challenged the lawfulness of employers’ social media policies and the application of those policies • NLRB Acting General Counsel has released 2 reports describing social media cases reviewed by his office • The case analysis by the NLRB are wide-ranging and confusing • Employers must revise policies and rules which are overbroad and “chill” employee’s Section 7 rights (8/18/11 GC Report) • HR professionals must carefully review all provisions of social media policies and any discipline based on those policies

19. Legality of Social Media Policies? • Restrictions on disparaging or inappropriate communications regarding the company or its employees • Restrictions on "confidential" information • Restrictions on employees' presenting false, dishonest, or misleading, but not "maliciously false," information •  Restrictions on use of company logos and trademarks • Inclusion of general disclaimer language in policies to stress that section 7 rights are not infringed • Prior approval by the employer for postings which reveal the name of employer and related information

20. Other Protected Concerted Activity The NLRB’s protection of concerted activity also applies to ALL employers which implement: • Rules Requiring Confidentiality of Wages and Bonuses • Email Policies Prohibiting Communications About Unions • Non-Solicitation Policies which Limit Unionization Efforts • Non-Fraternization Policies Preventing Employee Gatherings • Non-Distribution Policies which Limit Union Cards & Literature

21. Questions?

22. THANK YOU Stan Wilson Elarbee, Thompson, Sapp & Wilson, LLP 800 International Tower 229 Peachtree Street, N.E. Atlanta, GA 30303 404.582.8434 Swilson@ElarbeeThompson.com www.ElarbeeThompson.com