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National Labor Relations Board Update

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National Labor Relations Board Update

Any employer or employee representative, must keep abreast of the rulings and guidance provided by the National Labor Relations Board (NLRB). The rulings and guidance impact both employees in unions and those not in unions. The current NLRB has been very active since taking majority status on the Board, either issuing new decisions that changed old precedents or creating new law impacting all employers. This course will provide background on the latest important rulings of the NLRB and portend what may lie ahead in the not so distant future.

Transcript

Hello, my name is Paul Burmeister. I am an attorney. I'm located in Chicago, Illinois. I'm at a firm called Davis and Campbell. My firm, one of its areas of specialty, is in the area of traditional labor law and employment law. And I'm here this afternoon to talk to you about. Traditional Labour and the National Labor Relations Board and the goings on with the Board and its effect on the National Labor Relations Act. If you have ever had the chance to see me present before, you would know that I try to gear this to both people who are perhaps more seasoned. But I'll certainly start off with people who may be new to the field of of labor law. I know some of it may be esoteric and there may not be a whole lot of people who are in the field. But I'm going to try to start you out there so you can get a general idea of what's going on with the National Labor Relations Act before I get into recent changes and where we see things going in the future. Um, the other part of this that I like to do, and I think it's particularly going to be true here. Is that this presentation I'm going to weave in a lot of lore that has been or is being formed at the National Labor Relations Board with its interpretation of the National Labor Relations Act as it applies to non-union facilities. So hopefully if you have a union or don't have a union, you are going to find this presentation useful. I said, I'm going to mix in both. If you have this or if you are watching this and have additional questions. I enjoy talking about traditional labor law and I would be happy to field any questions. If you would be like to give me a call or an email if that information is available to you. So with no further ado the mid 2023 update. So for those of you who are new to the National Labor Relations Act and the National Labor Relations Board, there are some interesting things about this particular federal agency that may are similar but have some differences with other agencies. So the board itself, the National Labor Relations Board in Washington, D.C., is composed of five members. The president, who is in power, appoints a majority of the board members who are representing his party. So. In this instance, they're all five members of the NLRB are appointed and there was going to be three that are, quote unquote, Democrats and two that are, quote unquote, Republicans. The current chair is a woman by the name of Lauren Mcferran. She has been in place since February of 2021 and is still the current chair. So in order to create a viable opinion, the board must have a majority, which would be three of its board members sitting for any of its decisions to be valid. For those of you who have experience in traditional labour and follow, the lawmaking of the National Labor Relations Board are probably familiar with a little case that went to the Supreme Court called Noel Canning, and that was the ruling with regards to they must have a quorum or a majority of people sitting in order for the board decisions as a part of their regulations to to be effective. So there's the same kind of makeup, as I just said about the Biden NLRB that and you'll hear me refer to these as I think I'll go back to Obama. I don't think I'm going back to Clinton or Bush during this presentation because we're talking about updates, but I usually break them out by Obama. Bored Trump bored. Biden bored. Just following along with Paul. So we have the three Democrats. It's Lauren Mcferran who I said is the chair. She was there during Trump's administration as well. There are two new Democrats that are on there. One is Gwen Wilcox. Ms.. Wilcox is a labor attorney out of New York City, as I recall her background that she does a lot of work with the SEIU, the Service Employees union there, and in particular a union which I love to follow, which is 1199, which is a nurses and healthcare workers union, which is very active in New York area. I think it's New York and New Jersey. And David Prouty, who is a union attorney who is out of the Minnesota area, the two Republicans have been hanging in there for a while. I don't exactly know when they were appointed, but they were there during the Trump era, and that's John Ring and Marvin Kaplan. Oftentimes when you see decisions by the National Labor Relations Board, unsurprisingly, you're going to see a lot of three twos. There certainly are some, which are five O's, but a lot of three twos, particularly in things that we're talking about, the areas that we're gonna be talking about today, which are a little more. Controversial. I don't know if I'd necessarily want to use that word, but certainly have some argument back and forth. So the purpose of the board is to enforce federal laws regarding employees rights, to engage in concerted activity and to advance their wages, hours and conditions of work. Now, I may say this later on, but there's a couple of things here that I want you to note. If you're new is that when you're talking about the National Labor Relations Act, you have two or more employees. It is concerted activity. And for those who may have practiced a long time, you can say, yeah, but this one time, you know, this instance where there's one person understood generally, however it is two or more people acting in concert and they're talking about a fairly broad topic with regards to their employment, which is wages, hours and conditions of work and conditions of work is pretty broad. The law itself, and I'm not going to get into all the nuts and bolts of it unless you want to be here all day, which I would love to talk to you about this all day. It's going to show you some things. You look through it that are that would not fall under conditions of work. But typically just about everything you can possibly think of is going to fall under conditions of work. If you're not a labor attorney and have these kind of questions come up, I can't more stress you talk to someone who practices in this area to get your arms around what may or may not be conditions of work because it's pretty broad. The board then has an enforcement arm. They're there to prevent interference and workers rights under the National Labor Relations Act. So that would be and you'll be hearing me use this term that when those are the term for something that's as deemed a violation of the act is called an unfair labor practice or an unfair labor practice charge, or as it's commonly referred to as a ULP. So if you hear me say ULP, that's me, meaning unfair labor practice charge. That's the means with which the board enforces the act. I'm going to talk somewhat about union elections because we still kind of are in a Covid era, at least with our friends at the federal government, the National Labor Relations Board. So they regulate and hold elections for unions and they hold those elections per the per the act. I'll talk about that just a little bit. But obviously, part of what the labor board does is when there is a showing of interest, they will hold that union election. You may be hearing those things. Starbucks is pretty common if you're reading, for example, Bloomberg Law and you get those a lot of lot of information about Starbucks. There's lots of union elections going on there. So the two things and I will own up here and my background a little bit, I don't necessarily want to share, but I'm currently a management cited attorney. But to let anyone who's listening know who may be a union cited. I also was a union organizer and union rep for six years prior going to law school. So I say that knowing that I may be looking a little bit like it's employer sided, but I'm certainly free to talk about from either side. So the act has several parts to it, several sections. But Section seven is really the area where the oomph is. It's a long, rambling paragraph which basically creates the rights of employees to engage in not converted but concerted activity to improve their wages, hours and conditions of work. You may remember that from a few slides ago. But if you want to look up the law, if you're new here and want to find out, Hey, what's going on? Section seven is where you're going to get. If you're looking to see then and the enforcement part that is under section eight A of the act coming right after Section seven and it talks about regulation of employers in relation to their employees rights under Section seven. There is also a section with regards to what unions can and can't do, and that is eight B and the board does take cases with regards to alleged issues. That happens with unions. But I get the sheets every day from or every week from the National Labor Relations Board and the union charges are swamped by the employer related charges. So unless anyone viewing this at some point has specific questions about that, you can contact me. But it's mostly going to be about the employers. So here are the things that you can't do. And there's a lot of can't do's that are under the National Labor Relations Act coming from stemming from Section seven and then are enforced through section 88A. You cannot threaten workers who act to form a union or advocate for better working conditions. Um, that should be pretty clear what is meant by that? Can't promise benefits to reject unionization. So you have employees, look, you're representing a business and they come and tell you that, hey, we think that there are people here are talking about unionizing. We find leaflets, you see union reps, whatever it is they're wearing, buttons, whatever it may be. You can't tell employees that, hey, tell those bozos to go home. We'll just do whatever you guys want. Can't do that. You can't promise them any benefits to reject the union. You can't question query whatever it is employees about their personal support for a union, and you can't ask them about what other people think about it. Hey, Joe, what do you. I see that there's union flyers lying around here. What do you think about the union? Can't ask that. Can't ask. Hey, Joe. I see there's union flyers lying around. What does Susie think about the union? Not asking Joe, but you can't either. Ask Joe about what Susie thinks. Either either one of them are invading upon their rights to have to form a union. You can't pull employees about the union, and I don't see this too much, but like, for example, in construction settings and some manufacturing settings. Um, they have employees huddle up in the morning and they kind of go through the tasks of the day, safety talks, whatever may be happening. And the supervisor says, Hey, I've been asked or on my own, which happens, unfortunately. Want to ask you guys, raise your hands. Who here supports the union? I see there's leaflets running around. Can't ask to pull employees about that. You can't prevent your employees from talking about the union on work time. If they can talk about other non-work topics, they can talk about March of Dimes, Girl Scout cookies, Tupperware parties. Typically, you can't have a policy by an employer which is going to allow other people to talk about all sorts of stuff and then carve out talking about the union on work time. I'm not going to get too much into employee handbooks because those there's tends to be a lot of flip flopping by the various Obama, Trump, Biden boards on on policies and employee handbooks. But just be cognizant if you're helping a business with an employee handbook to make sure that you have a facially neutral policy about discussions between employees. You can't spy on employees or even make it appear a semblance that they are being surveilled regarding their union activities. I'm going to get into that a little more in depth later here because the current general counsel does not like surveillance of employees whatsoever would be a pretty fair. I've never met or talked to her, but if we asked her, that's probably what she would say. Not a big fan of spying on employees. If you are. Oftentimes if you have labor relations professionals, not even necessarily attorneys who come and help, if there's organizing or other issues with unions, they will give presentations that are called tips or spit or pits or whatever acronym. I don't know if there are different parts of the country. I say tips because I like it best. But you're you're four on the acronym or don't threaten, don't interrogate, don't promise and don't spy on tips. So for those beginners here, those are things that you need to advise or don't do yourself. Businesses with regards to dealing with employees that may or may not be forming a union. So a little bit and I'm wanting to get putting this together. It's a little bit outdated, but I have discovered that the National Labor Relations Board, even now in 2023, some of the offices are remote, some of them are not remote, some of them are hybrid remote. So there's going to be issues with regards to how union organizing and union elections have been run during the coronavirus era. So typically. The the board policies, the handbooks that the that the board has talking about union organizing mandate under almost all circumstances, that there is a I don't have video on here so you can't see me air quote but a manual ballot that employees have to report to their place of work and there is a place there where they can then vote. And I don't want to get too down, drill down too much into it. But you will find if you're working for employers that employers like to have voting done on site. Or we can talk about that. You can call me off. We can talk about that. But that's typically the preference of employers. So because of Covid, there are provisions that were within the regulations that allows for a mail ballot vote. So they kind of expanded on their Aspirus Keweenaw case, which is a nursing home election case out of Michigan in 2020. So first thing to do is kind of check out your local area where you are and see where your NLRB office is and see how they're running. If they're open, if they're remote or they're hybrid, kind of may help guide you in what is your thoughts are about dealing with this. But that's the first one is the office under an under a mandatory telework status. As I said in 2023, has been my experience that some of the NLRB offices are still running under some kind of Covid provisions. So when you're looking at that, then you're going to look at the 14 day trend in Covid cases in the county where the facility is located and look to see if they're going higher. Again, we'll be talking to your NLRB agent running this to kind of see what's going on with regards to ordering a mail versus a manual ballot. One of the things that you'd be looking at. If there is a manual election site, you need to check if they're local or state health orders with regards to maximum gathering size. Can't look in every area, but I know that they are out there still for Covid. If you have to make sure that you can look into that and determine that you don't otherwise violate any other law that exists by having a manual election. There are certain parts of Memo 2010 which talks about suggested manual election protocols. Those are things such as letting workers come in to vote one at a time. That's just an example. I'm not going to go through it, but I told you where to look at it. And my practice tip here is if you are new to this, the nlrb.gov website to me continues to improve and that you can go there and there are dropdown menus to look at news and there and there's memos and you pull 2010 go to 2020 pull ten and it will tell you what you need to know. There's obviously a current Covid outbreak. Can't have an in house election. So. A couple of the items that I want to make sure that you are aware of with regards to union elections and organizing and the coronavirus is that there are captive audience speeches. Paul, what's a captive audience speech? Well. Up to 24 hours beforehand. Employers are given the opportunity to. Poll employees in to a meeting room in pay status and have conversations with them about their opinions about the union or union organizing. And I will tell you, as an attorney, I tend not to attend these. Um, but that's, that's the general gist of it, that under the National Labor Relations Act said a lot, a lot of don'ts do that can happen is there can be a captive audience speech during right before an election. So there's a 24 hour cooling off period, I like to call it, or a 24 hour bar that prevents the employer from having these captive audience speeches or having contacts like a no contact period. So the thing is, is that during a mail ballot election, okay, that that 24 hour rule runs 24 hours before the ballots go out. So if you're new to this, you're going to get an order from the National Labor Relations Board that's going to tell you when the election is going to be run. They're going to say we're going to run a mail ballot election. The ballots are going to go out July 31st. I'm not going to say anything else about it. The ballots will be, you know, sent out and have to be collected by August 14th. So your your it's the the the captive audience under the peerless plywood rule. There's a lot of case law around this. It's typically the one is that during a mail ballot election, that 24 hour period starts 24 hours before the mail ballots go out. So we're talking about July 31st. You're done on July 30th, and you can't have any contact during that, for example, 14 day period or whatever it is that's in the order where the ballots are out and sent to your employees to vote. So that's that that is one to really make sure that if this is happening and you have a mail ballot election, which you're seeing more and more of even in other areas that have people back, make sure you're mindful of that. Um, I have something here called the Western Wall System case, that the board realizes that there are failures within the mail ballot system. It's old. I'm just drawing your attention to it. It's out there in case the practice tip. There are issues that came up during the mail ballot election to perhaps take a look at that case and raise it if there ever was any issue on an appeal that may be helpful to you or it may not. But the board said they're going to reexamine the mail ballot system in the future. To my knowledge, that has not happened. But that case is is out there. So. The thing is, is that union organizing has really, really come on gangbusters over the last couple of years. Great time to be a labor attorney. Um. It is not only Starbucks or Amazon or anything else that's happening. The board is seeing an enormous increase in union petitions that are being filed. It is in manufacturing. And the one here that I'd like to note is like at Activision. Video game testers voted to unionize. And I've seen and I don't that worked in this area personally, but I certainly have seen some really interesting unionizing efforts that have come across in reports over the last six months. Exotic dancers have been organizing as well. I mean, it's there's a lot going on in that area. Um, so they have really the board has really seen an increase and here I say increase 58%. They have, they don't have their new data out. But over last year they saw an enormous increase in the amount of petitions for unions being filed. So again, note take note the unfair labor practice charges, they do have data out for this year and theirs have increased 16% just in the first 16 months. So the board in there and said you can do it clicked in, you can read their news. They think that they're just going to have a lot more work to do and the agency over the coming months and years. So the reason this is important is that there have been battles in Congress about funding for the National Labor Relations Board. And I'm sorry, I don't remember off the top of my head what the number is, so don't quote it. But they did just get an infusion of money to hire and to deal with some of these cases that have been backlogged for some period of time. Just yesterday. I don't have it in here. The board also hired five new administrative law judges. I think they had some retirements. I think they're trying to fill those and also add ALJs in order to have more hearings. So enforcement will be going up. So one of the the whether the secret ballot so I'm probably may touch this a couple of times but I found this pretty interesting. I think it's really my last election based slide for you guys. Um, but something to keep track of. If this is happening, you run across this. So for anyone new doing this, the act, as we talked about it, provides for a secret ballot election. Like a manual election. You go into a booth, there is a curtain around it. You strike on a piece of paper usually yes or no, and you put it in a box and the box is sealed. No one knows who signed it. So that has really been in place for many, many years. That's how we run union elections. So there's an interesting brief that came out, um, a year or so ago with regards to a matter called Joy Silk Mills, which talks about the ability of an employer or excuse me, of a union to establish that they have majority without going through an election, How would they establish it? Not exactly sure. As I said, as I said, part of this is updating and letting you know what might be coming down the road. So it could be something as they show authorization cards. Again, if you're not familiar with this, typically unions will have employees to show their interest in order to call for an election of the National Labor Relations Board. They will sign a card saying I Joe, I want local union one, two, three to represent me for negotiating wages, hours and conditions of work. Or they sign a petition saying as such and they present it to the employer and say, you have 100 employees. We've got 80 of them that have signed this. They want a union right now. So that's something to to to to be aware of that there may be an instance coming in the near future where that has happened and the board is going to look at and say there's there's clearly majority status here. So we're going to allow the union to go ahead without a secret ballot. Um, my last slide all the way at the end. If we get there during this, I call it unicorns. This may be unicorn, but that was with some interest when I read that coming out some months ago because that standard was abandoned in 1969. So that is the same year with which I was born. So I can tell you as an old goat, it has been a long time since that's been the standard also as well, I've mentioned the captive audience speeches. That is also something which the general counsel and the board are going to take a look at because they believe. Again for right or for wrong that a captive audience speech perhaps gives unfair advantage to employers because they have an opportunity to bring everybody in and have these discussions and it may somehow affect a free and fair election. Again, not current law may be coming down the pike, and I've seen that recently as well. This was in April of 22. But and I'm sorry, it's not in here, but there's there's something earlier this year about it as well. Anyways, I digress. So. Kind of getting into the update portion specifically now of of my presentation. So the NLRB just a few weeks ago, I'm in mid-July here, talked about non-competes and the next set is going to be severance agreements. And I told you, I promised you that we're going to talk about areas that don't apply necessarily to union situations. So if you're doing any type of employment law non-compete agreements, they're pretty they're pretty common. If you're in certain industries and you have to remember that areas where there's non-compete so they're talking about here, they're not talking about guys working like in a coal mine or in a factory. They're not really non-competes for that. They're talking about generally all non-competes. So the issues which the general counsel has had with non-competes is that. She believes that the non-competes can interfere with an employee's ability to use to basically leave their employer in order to seek better wages, hours and conditions of work. Okay. So you get what I'm saying is that that's a big one, is that, you know, if the working conditions stink. If I have a non-compete that's going to really interfere with my ability as an employee to leave and go to someplace that's better. So again, the memo and you can find it again in the dropdown menu. It's listed as General Counsel's memorandum on Non-competes. It wasn't very specific about it, but that's the general gist. And I see I always gets crunched for time, so I'm going to jump to kind of the bigger ones here. But. The other part of this is oftentimes there's like a no poaching provision or no rating that an employee leaves and then contacts other employees, their former coworkers, to come go work for them because the working conditions are much better. Now, to me, that seems more of a concerted activity that those employees are having conversations about improving their wages, hours and conditions of work. And a part of that they have a non-compete but want to abandon employer A to go to employer B to to better their working conditions. I think similarly we're talking about the fact that the fact that a non-compete itself exists. Has been used as a shield or cloak for employers to not really engage in conversations about improving wages, hours and conditions of work because the employer has the non-compete that they can say, Well, the employee can't really leave. So you guys kind of get the gist of where the non-compete is going. And I think where the I think where the board is going with their premise on non-competes. So I want to make clear that the board does not say that non-competes are illegal. They clearly say in the memo that they can be legal. But she does outline some things which they're looking at to narrowly tailor these. Um, one is that the provisions restrict the individual's managerial or ownership interests in a competing interest. That's something which would not be wage hour and condition of work. That there exists a true independent contractor relationship. Now, I don't really want to get into employment law side as to whether you have a non-compete, whether that would be a common law independent contractor relationship. I digress a lot and I'm doing so here. But independent contractors are not covered under the National Labor Relations Act. They are excluded. They are not employees. Um, there may be narrowly tailored instances where there are non-competes which an employer can show by special circumstances. Um. I'm trying to remember what those might be, and I don't think there were any provided in there. But I can tell you from experience one thing that the board will look at, and I'm going to talk about the severance agreements as well as they look at, for example, intellectual property. Those are areas that they will look at non-competes. And I think there are some legs to making arguments there. So kind of just coming off the, the non-compete agreements, um, just before that the board had come out with and I want to clarify one thing if I can for one second is that that's a memo with regards to, in my opinion, where I believe the board is looking at issues of. Non-competes. With regards to the severance agreements, we do have a case from February 2023 called McLaren McComb. And severance agreements. As I say in my slide here, it's kind of flipped a little bit from Obama to Trump to Biden. And that's one of the things when you remember all the way back, oh, those long minutes ago to when I said that, hey, the president in power gets to a point and that allows the board to oftentimes flip the law from Republican to Democratic president about how they view things. So that's why if I had said before and I'll say it again, if you have instances coming up where the NRA is involved or a union election, make sure you have a labor attorney because it's constantly updated and it's constantly changing anyways. So. There are some really interesting things about the severance agreements that it basically states that as you if you do severance agreements or an employment lawyer have written them, that they have pretty broad waivers under the severance agreement. Obviously, the point of it is to provide compensation money. You know, the peppercorn in order to get the release on several other things, including rights to sue, oftentimes included in those, and I have certainly seen them may have drafted them myself at points in my career, that that you would be waiving any other rights under the National Labor Relations Act. The board has made it clear and they made it clear, I think, on the Obama administration as well, that they don't like that. They don't like waivers of rights under the National Labor Relations Act. So note to self on those. But really, the areas that that they saw issues with are and this this again, kind of harkens back to the Obama era. But we're back disparaging the employer a lot of these not severance agreements are saying hey you can't say bad things once you're out the door about us. Um, can't do that. The board's view is that in order to have conversations about your employment there, that there may be points where it wasn't very good and you disparage the employer when you're thereafter. The other part is disclosing the terms of the agreement itself. Oftentimes severance agreements that I've seen or written will say, Hey, you can talk to your spouse, your attorney. And your accountant about it and the board, you know, again, kind of going back the severance agreement say, look, if there's employees that were there that have had conversations about working conditions, we can't really limit the amount with which these employees should be able to talk to each other about wages, hours and conditions of work. So in March, the GC then issued her memorandum regarding severance agreements following the McLaren McComb, which to me provides a little better clarity. Hope that was good. A little better. That's kind of what we got. So there's still lawful. Obviously there's no severance agreements aren't banned. Um, they're going to look at these when they have overly broad provisions which affects the rights of employees which engage with one another to improve their lot as employees. That's what I just said, that, you know, parts of your parts of your severance agreement that prevents them from talking to people that used to work there, for example. Um, and again, kind of to me kind of slides into that non-compete as well. When you're having a non poaching, those kind of things, are they really kind of part and parcel to me when I started reading these, um, the real Corker here and, and two and three were Corker's is that it does not matter where the employee executed the severance agreement or not. Their belief is, is that that merely offering the invalid severance agreement itself may violate the National Labor Relations Act. Having practiced in this field, I was not surprised. But I think for people who may not be familiar with labor law, got to be careful about your your severance agreements and make sure they comply so you don't have the the, you know, the employee going to the National Labor Relations Board about it and that she has stated in three that they may look at severance agreements retroactively even though there's a six month limitations period that's contained therein. Okay. So just be careful of those. I don't know how the six month limitation period would work here. I haven't seen any case law that's occurred from this since March of 23. That's that's litigated that that I've seen. But just something to keep an eye on. So other things that they had looked at are confidentiality clauses. Kind of what I talked to you about before, that you can't really prevent employees from talking to each other. But also really what they're looking at is you can't be discouraged or precluding employees from talking to the NLRB or a union or to the media about what they may think are unlawful conditions that have occurred at the previous employer, or that things with regards to improving wages, hours and conditions of work. So the board kind of summed up what they view as an overbroad severance. As I said, it encompasses all disputes, terms and conditions. Again, I think the really the big one to me is anything that's going to prevent them from exercising rights under the Nlra, that when there's no temporal limitation on it, which I haven't practiced in every state, but pretty much every state has some temporal limit on severance agreements anyway. But I digress again, and limitations to an application of parents, affiliates and individual officers, representatives, directors and agents. So make sure you take a look at that and make sure you're boned up on severance agreements when you're if you're putting one together that you're not going to potentially violate the act. My last one here on severance agreements, which I did quote directly. The things they're looking at are the non-competes is discussed, no solicitation, no poaching discussed, and those broad releases that can impair an employee or former employees ability to do any cooperation with other with other employees or or with the National Labor Relations Board or with unions or to testify in such cases when there's a charge filed. So, again, make sure your severance agreements aren't overbroad. I talked to you about surveillance earlier here. And this is this to me, thought's been very interesting. And I'm not a technological wonk by any stretch. However. There are lots of cases out there about the use of surveillance. So I talk to you about that. Oh, so many minutes ago and how it impacts the National Labor Relations Act. And really, as I said, I'm an old goat, so I'm always used to like just cameras are installed there. And but it's really, really expanded, obviously, beyond that. And she and he quotes that conversation recordings, tracking of movements, cameras that are on, let's say, like you're a driver, a delivery driver, and they have a camera on you so you can show that you delivered a package. Um, things that can monitor radio, radio frequencies or GPS tracking devices on trucks or other equipment. So and she even goes so far as to say like keylogging software, screenshots, things that are, you know, like you can see like whether you're being active at work. I know I've seen the software like at the green, yellow and red, whether you've been at your computer. So it's again, not just like union or manufacturing situations. They're talking about areas where employees are being monitored. That said, disciplined employees who fall short of quotas leaves. So again, be really careful about advising with regards to surveillance and blown up or talk to a labor attorney if you are not one about surveillance at work, because the general counsel believes that surveillance has a very large impact on chilling and employees rights under Section seven. In other words, if you're being watched, you can't have discussions about forming a union. You can't have discussions or complaints about your place of work, because if you have anything tracking what you're seeing or where you are or whether it sees that you're congregating with four other employees, that starts to make the National Labor Relations Board concerned that folks are being watched. So last year. And I and personally, I think this is going to be an ongoing area of concern with the National Labor Relations Board. But she did put a memo out, which I've quoted here, parts of it that close constant surveillance and management through electronic means threatens employees basic ability to exercise their rights. That's boom. That's really what they're looking at. Electronic surveillance and breakneck breakneck pace of work set by automated systems limits or prevents employees from engaging in protected conversations. Kind of what I just said. Moreover, they're going to look to see if surveillance extends to break and non-work areas. I mean, again, I think what she's looking at is kind of where the modern workplace is taking us, that, you know, we have a lot of work if we're very productive. And that however, during non-work times, those are times which under law employees, including break times, employees, can talk to each other about anything, including unionization and improving their own wages, hours and conditions of work. So the fear is that, she says, is that the surveillance will extend even beyond the workplace. I mean, I'm thinking things like you're monitoring cell phones, for example, an employee employer issued cell phones. Those are things which the board may take a look at. They think that these are really could be harming the ability of individual workers to get together with others in order to form a union or talk about improving their wages, hours and conditions. So again, it's still developing. If, for example, you have a unionized workforce, you probably are familiar with the use of surveillance at work and cameras that typically the installation of new cameras or surveillance technology must be bargained with. The union when I talked earlier about that broad conditions of work use, the use of cameras has has long been found to be falling under what is considered conditions of work. So this is kind of gone back and forth on the independent contractors, those of you who are labor lawyers and practice in the field probably remember the the Fedex home delivery, then the super shuttle DFW during the Trump administration and what this means for independent contractors. Well, just a few weeks ago, or even just a month ago, the board issued its ruling on independent contractors in its Atlanta opera case, looking at people who, I think prepare wigs and makeup, if I recall. Yes, I'm looking at the bottom of my slide. It is makeup artists and the board there rejected the standard that was set by the Trump board in Supershuttle DFW and returned it to the Obama era bar board standard for Fedex, too. So what's the difference? So Fedex home delivery really has the independent contractor status guided by, oh boy, 20 some whatever it is, the 24 common law factors, whichever may be in your state. There also is a National Labor Relations Board has you click on to their handy dropdown pages. They will have areas with regards to what they view as independent contractors as opposed to a more. Different system, which makes it easier for employers, or at least in theory, easier for them to identify certain employees as independent contractors, which would be their entrepreneurial opportunities. I am unfortunately spacing on the facts of Supershuttle DFW, but if I recall, it was kind of given away by the taste. I think it was drivers of shuttles at at Dallas Fort Worth. But in any event, what happened in Atlanta Opera is that these makeup artists were petitioning for a union election. They were initially denied because it was determined that they were independent contractors. I don't necessarily have all the facts of that case memorized. They were determined that they were not covered under the act. In this case says, nope, we're going to go back to this common law factor standard and determine whether they are independent contractors under that standard. Why do you care? You care because if you have a are guiding a business with a lot of independent contractors, for example, in in driving and deliveries, that it makes it harder, I believe, in my opinion, and I believe perhaps in actuality, to establish that someone's an independent contractor using the common law factors. And as I stated earlier, independent contractors are not employees and thus not covered under the National Labor Relations Act. So as was going on in Atlanta Opera, the premise was that they would not be able to form a union at the Atlanta Opera because they were exempted under the independent contractor. They weren't employees. So this will give more opportunities for certain employees who are deemed independent contractors to form a union if it's determined that they actually would be an employee under the common law factors. Well, if a lot to say there for many of you in the employment field, probably something pretty common. So stepping up a little bit and where we're going from more entry level to more advanced or remedies for egregious conduct. And there was a case Noah's Ark processors and it was this year am I believe it was in February or March. But don't quote me, but bad things happened, okay? There was a union in place and the employer was bargaining with the union and allegedly in bad faith and declared impasse and implemented its last best and final offer. I won't get into the nitty gritty of that because if you're not a labor attorney and you're involved with this, you will contact one and have conversations about that. But there are certain things that the board determined that were egregious. And really the remedies part is where I want folks, you know, if you're not well versed in this area to understand kind of where the current board's thinking is with regards to remedies in these situations. So typically in the past, for old goats like me, is that money kind of resolves most issues. The board would require the employer sometimes to post saying we were bad, we won't do this again. They may in other, more egregious circumstances, have a bargaining order that they must go back to the table, that they did act in bad faith and bad employer, go back to the table and negotiate with the union. So things that have been discussed in that case was adding an explanation of rights where that the employer and gosh darn it, um. I'm trying to remember exactly what happened here, and I'm sorry, but they either had to have the union or someone from the employer with the union read read the remedial order to all gathered employees as to what was happening. So there was a distribution of the notice in the explanation of rights to the employees, um, requiring supervisors or officials involved to participate and be present for the reading of. Just answered my own question. I'm sorry that they were present for the reading of it and a union agent was there during the reading of the notice and explanation of rights provided the National Labor Relations Board that if the employee wasn't there, they had them mailed to their home. Um, that they have a person who bears responsibility for this to sign the notice. So a chief negotiator, for example, or a CEO or a COO, whomever may be responsible or deemed responsible for, for causing the bad faith, bargaining in this case would have to sign it. They may require it to be published in local papers that that the posting and generally the posting is 60 days. They may require it to be posted for a longer period of time. They may require on site visits by the National Labor Relations Board to see that you employer are complying and reimbursement of unions bargaining expenses and make whole provisions for employees who lost wages by attending these bad faith bargaining sessions. So in this matter, they ordered the employer to pay their costs and reimburse them and mandated more bargaining. So a lot was going on there. And I've been doing this for a long time. And. It. That is this would be an expansion of of of remedies available to the National Labor Relations Board. So be prepared if you're having conversations, because we all talk about weighing risks, particularly if we are engaged in collective bargaining or engaged in a union organizing drive that an employer does not want to have the union there, that you make sure that you understand where the current board is going and their thought process, if they're found to be a violation of the act by the employer. So the board has also and this was, if I recall, actually, there's been some stuff specifically with Elon Musk on this one, if I recall, um, that it was Tesla and Tesla basically had policies preventing employees from wearing union insignia. And this again, has kind of gone back and forth. There's a 2019 policy which says that in some situations the employer may. Um, may allow the employee to to bar some types of union insignia if they're allowed to like smaller or less obtrusive insignia or there were some other business related reason not to do so. But it's been a pretty long standing precedent that employers can't really impose any restrictions on the use or display of union insignia, including wearing t shirts. Buttons. I think buttons was the issue in this case, as I remember, absent special circumstances that justify the restriction. Paul, what are the circumstances? If I'm working a big piece of machinery and I have a big button and you determine you employer or supervisor believes the button may fall into there and suck the employee in and kill or maim them. There are safety reasons which they can't do that. But again, generally the case is if they can't wear buttons, for example, that they can wear t shirts or hats or whatever it is that would fall within the policy. Kind of what I talked about earlier with regards to policies and your employee handbook like blanket policy, saying none of these is going to get flagged. So just beware, be wary of the uniforms and union insignia. And I've seen this. And again, I'm not picking on certain places. But again, Starbucks, I believe, has had because they have their barista uniforms and I believe there's issues with buttons on there for someone from Starbucks. And I'm wrong, please let me know. But if I recall, that was one of the issues that has come up there. So it's a fairly common issue. Now we're really doing a deep dive here. And this is on with the Johnny's poultry and employee questioning. This is probably way beyond beginners area of expertise. But there are definitely been some questions about Johnny's poultry. There's lots of circuits who don't like it. Paul What's Johnny's poultry? So I have a quote in there from what it is, but essentially is that. If you're asking employees in situations where there has been union organizing or it's with regards to an unfair labor practice charge that exists and they are a bargaining unit, employee or an employee, not a supervisor. He says it stands now that the employee has to be read, writes. And you can generally, I think Google these and people have put out what you have to read them, but you have to basically let them know that you're being asked questions about the current unfair labor practice and that they may they may choose not to answer and that they will not be discriminated against for their participation. So some of the circuits have have have certainly raised some questions about it. And what happens typically if there's an alleged violation of Johnny's poultry. And I'll say this a little digression, one of the reasons I love labor law is that you talk to a labor attorney and say Johnny's poultry, they immediately know what you're talking about. There's all sorts of cutesy phrases and cases that are out there that are long standing. Johnny's poultry being one of them. So if there's an alleged violation, a statement wasn't read to the employee. What bad things can happen to you? The evidence may not be used and it can create an avenue for another unfair labor practice charge because it'd be another violation of of article of Section seven. But as I said, some of the circuits are looking at a totality of the circumstances test. They don't like Johnny's poultry because it's really black line. Like they're saying, hey, look, if you don't read this and and the questions were asked, I don't care how benign they may have been or how friendly, like I am a person asking said questions are. You violate it. And the courts are saying, hey, we want to look at the totality of the circumstances, what actually happened here. We can make the courts saying that they can they can make determinations when they've reviewed these instances, saying that and don't think this was coercive. And I don't think that the employee was was under the threat of being discriminated against. So whether there was a statement read or not, they want to look at that reason. I'm saying this, of course, in December of last year, six months ago. The board has taken a look at this. And two in the Sunbelt rentals case which have cited there below. They reaffirmed their they reaffirmed their commitment to the Johnny's poultry requirements. So you may you may be looking up if you're looking up Johnny's poultry and you see that your particular circuit has questions, you got a yellow flag or whatever it is on Westlaw or whatever it is you're looking at on Johnny's poultry type questions. Really got to go look at the board and see where they are on it because they they like Johnny's poultry. So you can still draw an unfair labor practice on that regardless of what the circuit says. So I'm going to go over a little bit. So let me get a few of these real quick ones, because I did promise what to expect, what we're going over here. So the nice thing is, is I don't need to have a crystal ball. The general council has issues. At least this general council has been issuing annual goals and it's shrunk because when she did her first one, I think in 19, it was several pages long. And she's she's she's done good. She's coming through with a lot of what she wants to do. She has a few out there that's listed for this year. The first one is and I'm going to be real brief, but things that come up is that you have a non-union business that wants to purchase or acquire or merge, whatever it is. That's not my area of law, particularly with a organization, a business that has an incumbent union. I'm not going to get into the esoteric parts of that. But let's just say this, that there are laws with regards to how successor owners will deal with the incumbent union when they are when the two companies are brought together. And that would be the burn successorship bargaining obligation. But what the what the board wants to do is to make sure that the new organization bringing in the incumbent union. It's not somehow discriminating against hiring people that were in the union in the previous on the previous business. Definitely something you want to talk to a labor attorney about. If this is something that's confusing, you can contact me, you can Google it. There's lots of good sources out there to talk about this, but it definitely deals with the relationship between a business buying a business that has an incumbent union. She wants to and this is I've seen this for a while to expand Weingarten rights to include potentially non-union settings. And what Weingarten reads, it's kind of like. Rights of having a Miranda rights, basically. But these are rights read to when you're going to discipline a union employee that says, hey, you have the right to have a steward here available as well to get you through this disciplinary process. The board has been looking at trying to expand that to non union settings, which. That would be interesting. But just want to make you aware that something being looked at. So kind of again, more esoteric is withdrawal of recognition. So if you have an incumbent union, the law states that even if there's a collective bargaining agreement that exceeds three years, have lots of times of negotiated five, seven year agreements, sometimes particularly in trades. That and that the the union is not locked in to the union after three years. Yeah. What I'm saying after three years anyway, the union, even though they're under contract employees can, can, can, can file for decertification. They're not married to the union for that period of time. Obviously, in that case, you know, international unions would negotiate like 50 year agreements. So they you know, the union doesn't have any opportunity to decertify. Similarly, at times where I talked about this again, and I wish I just had an all day to talk about this, but. Um, that really the, the strength of the union comes from them showing they have majority status. And there are times when an employer believes that the union has lost majority status and has asked to withdraw their recognition of the union after three years of contract duration really took me a long time to get to that. But the board is going to reevaluate, not necessarily, as I understand, looking at whether they can file a decertification election, but to bar or make it more difficult for employers to withdraw recognition after three years if they have a good faith belief there's no longer majority status. Well, if that was a lot to say. Again, we talked about remedies really earlier. But again, looking for this is just an additional areas. And this Thrive case came out, I believe, last late last year that they're also looking for additional things to do, including actual economic losses and consequential damages. Guys, I raise this because I want you to understand, if you're advising in this area, in your new labor attorneys know this stuff, but that this board is looking at not only back pay, but lost benefits, attorney's fees. You talked about the bargaining orders. But another interesting part of this is incidental costs. If you have a an employee who is subject to that unfair labor practice charge and they prevail, and in order to make it, they couldn't find another job. They had to dip into their 401. K to sustain themselves. The board's going to look at the at the ability of an employer or necessity of employer to compensate that employee for use dipping into their 401. K. Beware. We talked about bargaining orders a little bit. So I'm not going to spend too long on here. But I'll just say this, that the board has seen that they are pretty ready to go ahead and provide orders to employers to do affirmative bargaining, even if in particular, we think there's been unlawful implementation of a of a last, best and final offer. And in other circumstances. They're going to look at. General interference matters. Things that happen during organizing like Common statement that happens, as I understand. Again, I don't I'm not on the floor. I see that these things happens, that Hey. You bring the union in here? The employees can't go to the supervisor without their union. The union's always the third party that's hanging out in there. Or that. Hey, look, you know, if you guys bring a union in here and it increases costs, we're going to have to close the plant. To the we're going to have to move everybody general threats that happen. Those are things with the board again, has talked about looking at and trying to make changes to either probably through a memo, but probably through a case law. But keep your eyes on those. Again, not as much information about strikes, but there are questions that have come up, certain old cases that are being reviewed by the National Labor Relations Board about hiring replacement workers, which has been part of the law for well, that one's exceeded, I think, how as old as I am, 50 plus years and whether the hiring of replacement workers and the reasoning behind the motive to do so. Was it for business reasons or not? For business reasons, For example, they address the ability of unions to call intermittent strikes. For example, I call them rolling strikes that the union can't call a strike on Monday, come back on Tuesday, go on on Friday, come back the next Wednesday. Union the board has talked about looking at that and also loosening the ability of an employer of a union to picket another employer associated with with that particular employer they have a dispute with, again, has been law on the books for decades. This is pretty much where I'm going to end this, because I believe I have exceeded my my one hour by a few minutes here. But I just want to make you aware that the board, they've done a lot of cross agency work. Good for them, like with the Department of Labor and the EEOC. But they put out a memo last year, an operations memo on 2209. Again, go to the drop out menu and nlrb.gov. And stating that they realize and to me, I believe that this has always been the case, but just to make sure everyone knows. That the protections under the National Labor Relations Act also apply to foreign workers and immigrants that are working in the United States. So the law, the Nlra, is not restricted only to US citizens and those types of employees. If you look at the act itself, if I recall, it doesn't limit it to just us employees. So as long as they're working in the US under US jurisdiction, it doesn't matter. They're they're an American citizen or whatever their immigration status is at that time. If you have farm workers, for example, that have come into the country and they have and again, I'm picking on it, but not meaning to I'm just being realistic. Um, you know, there's questionable status, their immigration status, they can still form a union and they can still demand to bargain regardless whether they're US citizens or not, and have the protections of the National Labor Relations Act and the board. So as I said, I know this we have an immigration practice cetera. Our business is trying to bring immigrant employees because it's a tight labor market. So if you're practicing in that area, just something to keep your eyes on. That said, I think I'm going to in some I have a couple more after this, but I'm going to end up here. So I've told you to kind of keep your eyes on board rulings if you're practicing the area of employment law or you're a labor lawyer, you know this to just get on the the NLRB's website and ask to have their weekly updates, it will keep you abreast of what they're doing. It's definitely going, in my opinion, to a more employee friendly position. I think that's just obvious. I'm not picking one biased or picking one side or another, but to that extent, because it can change quickly. Make sure when you're doing things to constantly keep updated on what's going on with the National labor relations, once they doing things like make sure it's part of your mindset when doing legal analysis and employment settings. Some of these are objectives. I have the pro act, which I'm going to skip that slide. The pro act, which is there, it is like talking about unicorns. It's really pro-union legislation to make it really a lot easier to form unions. They were talking about that in the Obama era. I just don't think that that's really, really going to happen. Even changes that came to the timing. Um, those are really that's just I don't think it'd be really hard for those kind of things to get passed through. Thank you. So again, in sum, it's a really, to me, an exciting and dynamic area of the law. So whether you have a union setting, non-union setting or advising just the employment areas, please make sure to keep the National Labor Relations Act and the doings of the board in your mind. We have an aggressive board that is looking to expand union rights and employee rights. So make sure that when you're making decisions or advising people that you are squared up with the National Labor Relations Act. Thank you very much. Um, I love this stuff. If anyone has any questions, there's a means to contact me. Please feel free to do so. I'm more than happy to talk about it. Thanks again.

Presenter(s)

PBJ
Paul Burmeister, JD
Attorney
Davis & Campbell, LLC

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                                                                                                            Available until
                                                                                                            Status
                                                                                                            Pending
                                                                                                            Credits
                                                                                                              Available until
                                                                                                              Status
                                                                                                              Not Offered
                                                                                                              Credits
                                                                                                              • 1.05 general
                                                                                                              Available until

                                                                                                              July 20, 2024 at 11:59PM HST

                                                                                                              Status
                                                                                                              Approved
                                                                                                              Credits
                                                                                                              • 1.0 general
                                                                                                              Available until

                                                                                                              July 31, 2024 at 11:59PM HST

                                                                                                              Status
                                                                                                              Approved
                                                                                                              Credits
                                                                                                                Available until
                                                                                                                Status
                                                                                                                Pending
                                                                                                                Credits
                                                                                                                • 1.0 general
                                                                                                                Available until

                                                                                                                July 20, 2025 at 11:59PM HST

                                                                                                                Status
                                                                                                                Approved
                                                                                                                Credits
                                                                                                                  Available until
                                                                                                                  Status
                                                                                                                  Not Eligible
                                                                                                                  Credits
                                                                                                                  • 1.0 general
                                                                                                                  Available until

                                                                                                                  July 20, 2025 at 11:59PM HST

                                                                                                                  Status
                                                                                                                  Available
                                                                                                                  Credits
                                                                                                                    Available until
                                                                                                                    Status
                                                                                                                    Pending
                                                                                                                    Credits
                                                                                                                      Available until
                                                                                                                      Status
                                                                                                                      Not Eligible
                                                                                                                      Credits
                                                                                                                        Available until
                                                                                                                        Status
                                                                                                                        Not Eligible
                                                                                                                        Credits
                                                                                                                          Available until
                                                                                                                          Status
                                                                                                                          Pending

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