1 Texas Hospital Association February 1, 2012 Regional Director Martha Kinard

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Texas Hospital Association

February 1, 2012

Regional Director Martha Kinard

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TWO PRINCIPAL FUNCTIONS

1) To determine and implement through secret ballot elections the choice by employees as to whether they want to be represented by a union

2) To prevent and remedy unlawful acts by either employers or unions or both

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ORGANIZATIONAL STRUCTUREOF THE NLRB

The NLRB is divided into two distinct Offices:

Within each Office, there are various administrative and casehandling divisions and branches.

• Office of the General Counsel

• Board

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THE BOARD• A five-member Board reviews cases that have been

decided by the ALJs as well as cases that go directly to the Board, in both unfair labor practice (C cases) and representation (R cases) cases.

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Status of GC AppointmentActing General Counsel Lafe Solomon named Acting GC June 2010

Recess Appointment/Nominated in January 5, 2011

Unlikely to be confirmed

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Status of Board Appointments (D) Chairman Mark Pearce (confirmed June 2010) - term will expire August 2013.

(D) Member Sharon Block was appointed to a recess position on January 4, 2012.

(D) Member Richard Griffin was appointed to a recess position on January 4, 2012.

(R) Member Brian Hayes (confirmed June 2010) - term will expire December 2012.

(R) Member Terry Flynn (formerly Chief Counsel) was appointed to a recess position on January 4, 2012.

MKinard

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Status of Board Appointments All recess appointments will expire when the Senate adjourns this session of Congress at the end of 2013.

The Agency has already been sued.

MKinard

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The Future Because the Supreme Court spoke in New Process

Steel, L.P. v. NLRB, 130 S.Ct. 2635, 188 LRRM 2833 (2010), we know that a two-member Board does not have a quorum and may not decide cases.

The Agency operated without a quorum on the afternoon of January 3, 2012 when former Member Becker’s term expired at noon.

What does this mean?

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Rule-Making 12/22/10 Notice of Proposed Rulemaking What? Rule would require employers to notify

employees of their rights under the National Labor Relations Act.

Why? To increase knowledge of the NLRA and to enable the exercise of rights under the statute and promote compliance by employers and unions.

Who? Employers (including unions) would post where other workplace notices are typically posted. And perhaps electronically.

60-day comment period; closed 2/22/11

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Rule-Making At least 3 law suits have been filed to prohibit the

Notice Posting. Oral argument was held and briefs were filed in December and January.

National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business asked the judge on January 13, 2012 in the Notice Posting cases to enjoin the Rule because the Board “lost its authority to implement and enforce” the Rule because of the invalid recess appointments.

Implementation of Notice Posting is postponed until April 30, 2012.

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New R Case Rules

Board proposed wide-ranging new rules in June 2011

65,000 comments filed Board implemented much narrower rules on

December 22, 2011 by publishing in the Federal Register.

Republican Member Brian Hayes vigorously dissented.

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New R Case Rules Require….

1) Hearings in the regions will be limited to issues relevant to the question of whether an election should be conducted.

2) Hearing Officer may decide whether to accept briefs.

3) All appeals of regional director decisions to the Board will be consolidated into a single post-election request for review.

4) Board review of regional directors’ decisions will be discretionary.

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The Acting GC’s Initiatives

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Effective Remedies in Organization Campaigns. See GC 10-07, September 30, 2010 and GC 11-01, December 20, 2010.

Give all unlawful discharges in organizing cases priority and a speedy remedy.

Enhanced remedies to include reading of Notices; union access to bulletin boards; list of names and addresses of employees; union access to electronic communications and property.

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Default Language Added to All Settlement Agreements. See GC 11-04 dated Jan. 12, 2011 and clarification GC 11-10 dated March 30, 2011.

Regions have no discretion to omit default language.

Regions have no discretion to modify default language.

Regions WILL have discretion with regard to seeking default.


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Deferral to Arbitration Awards. See GC 11-05 dated Jan. 20, 2011.

Region will routinely complete investigation of CP evidence in newly filed deferral cases.

In post-arbitration cases, we will not defer to the award unless the party urging deferral demonstrates that:

1) the contract had the statutory right incorporated in it or the issue was presented to the arbitrator; 2) the arbitrator correctly enunciated the statutory principles and applied them; and3) the award is not clearly repugnant to the Act.


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Deferral to Arbitration Awards. See GC 11-05 dated Jan. 20, 2011.

The Region will be litigating one of the first of these cases. In a case set for trial at the end of February, 2012 the Region is seeking reinstatement and backpay for two employees. The arbitrator did not consider the statutory rights of these employees and did not award them a complete remedy. The Region is asserting that the award is repugnant under the Act under current law and does not adhere to the new guidelines as noted above.


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SOCIAL MEDIA

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OM 11-74 dated August 18, 2011 Reviewed many cases involving all aspects of

social media including Facebook, Twitter, etc. Existing standards concerning workplace rules

will be applied. Will violate the law if it would “reasonably tend

to chill employees in the exercise of Section 7 rights.”

Applies standard protected concerted activity analysis.

SOCIAL MEDIA

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PROTECTED CONCERTED

ACTIVITY

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Protected Concerted Activity

Section 7 of the Act says:

Employees shall have the right to self-organization, 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 have the right to refrain from any or all such activities.

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What is Protected Activity?

What activities are “other mutual aid or protection?”

What is mutual aid?

What is mutual protection?

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Mutual Aid

“We want a raise!”

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Mutual Aid“It’s hot in here, we need a fan!”

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Mutual Aid

“We want a lunch break!”

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Mutual Protection

“We want Better Safety Training!”

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Mutual Protection

“We want the boss to stop bullying us!”

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Mutual Aid and Protection

“We don’t want to tuck in our shirts!”

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Worldmark by Wyndham, 356 NLRB No. 104 (March 2, 2011)

In Worldmark, the employees didn’t get together before the meeting to discuss any kind of plan. Their dissent was an ad hoc reaction to a change in the terms and conditions of their employment.

The Board, by a 2-1 majority, overturned the ALJ who found that the employees were not engaged in concerted activity.

Two or three were gathered; the action was concerted.

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Parexel, International, 356 NLRB No. 82 (2011)

The Board overturned the ALJ who found no violation in the employee’s discharge. The employee was called in and questioned about her activities and complaints about wages and other favoritism. The Board held that the “pre-emptive strike” engaged in by the Employer to prevent her from engaging in activity protected by the Act was a violation.

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Is the activity “protected?”

The Board considers four factors when determining whether an employee who is engaged in protected, concerted activity has by opprobrious conduct lost the protection of the Act:

(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by

an employer’s unfair labor practice. Atlantic Steel, 245 NLRB at 816.

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AMR of Connecticut, out of Region 34, Hartford, Connecticut.

Otherwise known as the “Facebook” case.

Complaint alleged that employee’s discharge violated 8(a)(1) because she was engaged in protected activity when she posted comments about her supervisor and responded to comments about her supervisor on Facebook.

The complaint also alleged an overly broad rule regarding blogging, internet posting and communications between employees. Employer agreed to revise its rules. The discharge was resolved through private agreement.

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Hispanic United of Buffalo, ALJD, 3-CA-27872 (September 2, 2011)

Group of employees used Facebook to discuss a coworker’s complaints about the job. Coworker criticized other employees. Other employees responded. The employer fired the employees for bullying and violating the employers’ anti-harassment policy.

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Hispanic United of Buffalo

Was this concerted activity?

Was it protected?

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Hispanic United of Buffalo

The Board found that the employees were engaging in group discussions of terms and conditions of employment.

The Board also found that they did not lose protection, despite some profanity.

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Not all concerted activity is protected!In Karl Knauz Motors, 13-CA-46452

(September 28, 2011) the ALJ found a salesman’s posts on Facebook NOT to be protected.

THESE CASES ARE HIGHLY FACT INTENSIVE.

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Texas Dental Association, 354 NLRB NO. 107 (2009)

An employee was fired for engaging in protected concerted activity and a supervisor was fired for refusing to engage in unlawful activity of divulging employees’ identities who engaged in protected concerted activities. The ALJ and Board found a violation. While pending before the 5th Circuit, the case settled. For $900,000.

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Animal Care, 353 NLRB No. 128 (2009)The Board found that a vet hospital in Round Rock

maintained unlawful work rules restricting employees’ discussions and discharged two employees because they talked with other employees about these issues.

The Employer failed to answer the ALJ, Board or compliance proceedings. Ultimately, we sought a body attachment of the owner and president, and standing before the magistrate, he agreed to comply.

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Atlantic Scaffolding Co, 356 NLRB No. 113 (2011)

The Board, reversing the ALJ, found that employees, who engaged in a work stoppage for a contractor at an ExxonMobil turnaround in Beaumont, were protected from discharge by the Employer. The work stoppage was in support of their demand for higher wages and did not interfere with the Respondent’s use of its property. 74 employees must be offered reinstatement and backpay.

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Just a word about union organizing in hospitals….

During a five week period during the spring of 2010, the Region conducted 11 elections at 5 Texas hospitals for bargaining units covering several thousand employees and involved a neutrality agreement. The National Nurses Organizing Committee-Texas and the SEIU were the petitioners. The elections were held in McAllen, El Paso, Corpus Christi, and Brownsville and were conducted in an average of 15 days. The Unions won 10 out of 11.

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Just a word about union organizing in hospitals….

Since the union was certified at these hospitals, • 12 charges have been filed• 2 complaints have issued• 2 settled• 4 8(g) (merit in 1)• 1 complaint pending

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HOT CASES! Don’t get burned.

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HOT CASES

Saint John’s Health Center, 357 NLRB No. 170 (December 30, 2011)

The Board determined that a hospital’s ban on the wearing of a “Saint John’s RNs for Safe Patient Care” ribbon in immediate patient care areas violated the Act. The hospital’s prohibition was a “selective ban” on a specific union insignia and “special circumstances” did not justify the ban. Further, the Board found that the hospital’s off-duty employee access rule violated the Act because it had not been clearly disseminated and did not uniformly prohibit off-duty employee access for any purpose.

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HOT CASES

D.R.Horton, 357 NLRB No. 184 (January 3, 2012)

The Board found that the employer violated the Act by maintaining a mandatory arbitration agreement that did not allow employees to file joint, class or collective employment-related claims in any forum. The employer required its employees to sign the agreement as a condition of employment and had rejected employees’ requests for class arbitration. This interfered with Section 7 rights to engage in concerted activity.

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HOT CASES

New York New York, LLC d/b/a New York New York Hotel & Casino, 356 NLRB No. 119 (March 25, 2011)

• 3-1 decision (Dissent by Hayes)• Board found that a Las Vegas casino violated the Act by

prohibiting off-duty employees of restaurants inside the casino from distributing handbills on casino property.

• Restaurant employees were trying to organize and gave handbills to casino customers at restaurant entrances and casino’s main entrance.

• For an employer to be able to prohibit this activity, it must significantly interfere with the employer’s use of the property or be justified by another legitimate business reason.

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HOT CASES

Dana Corporation, 356 NLRB No. 49 (2010)

• 2-1 (Hayes dissent)• Board found that the pre-recognition agreement entered

into by the Union and the Employer was not a violation of the Act. Agreement included employer neutrality and card check, ground rules for organizing campaign, union access, roadmap for future bargaining and a binding interest arbitration provision.

• The question was whether the agreement was an illicit form of employer assistance to the Union that interferes with employee free choice.

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What else is out there?

Plenty. IBM/Epilepsy Foundation Oakwood Healthcare, Inc., 348 NLRB No. 37

(2006) (assign, responsibly direct, independent judgment).

New York University grad students. Region dismissed the petition based on a 2003 case, Brown University. Case pending before the Board NOW.

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What else is out there?

Independent contractor. Are shuttle bus drivers independent contractors? Region 16 case.

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So is the NLRB still relevant?

The NFL and NLFPA think so. The NBA Referees think so. The NBA thinks so. All of the above resolved before the NLRB

could decide the cases. Your employees are likely involved in

Facebook, so you need to know what the NLRB thinks.

If you or your employees use Twitter, you need to know what the NLRB is doing.

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From Former Chairman Wilma Liebman’s 2011 Congressional Testimony:

“Although I might wish it were less rancorous, I welcome the controversy: its intensity is a sign that labor law still matters deeply in this country. Labor law matters because democracy in the workplace is still basic to a democratic society and because collective bargaining is still basic to a fair economy.”

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WEBSITE: www.nlrb.gov

Questions?

Documents

1 Texas Hospital Association February 1, 2012 Regional Director Martha Kinard