November 2012

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Page 39 of 59

Unions Changing Labor Laws Landscape Taking Stock of the An unelected federal board has imposed startling influence over U.S. employment policy – with dizzying effects. BY KIM PHELAN The National Labor Relations Board (NLRB) has not only morphed in four years into something fiercely aggressive in its anti-employer posture but grew into its present rulemaking and game-changing form on the sly, you might say, through key presidential appointments made during congressional recesses. What we have today is a small, unelected, yet powerful board, unapproved by the Senate (required by law) that has condoned outrageous behavior so as to prop open the door for all possible condi- tions that could favorably benefit union organizing. So says attorney Jim Hendricks, who specialized in representing employers (frequently dealers in the auto, truck and RV industries) in employee lawsuits and union organizing campaigns. What dealers should be most wary of today, regardless of election fallout, is that compliance with NRLB rules and decisions is akin to obeying a traffic signal with a short circuit or visiting a fun house where everything's in motion – only it's not so fun. Ultimately, as Hendricks explained recently through cases anecdotes, extreme rules and NRLB court deci- sions that seem contrary to common civility for workers and the workplace have begun to create an environ- ment exempt of boundaries wherein union activity is entirely unfettered. "Don't look for logic in this stuff, because it doesn't exist," Hendricks said. Social Media and Employer Handbooks "Facebook has taken on a life of its own, though their stock may not reflect it," joked Hendricks. "It is now 38 | www.cedmag.com | Construction Equipment Distribution | November 2012 considered the new water cooler by the NLRB; posts by employees are picking up everyday." Hendricks cites recent cases, many of which he is personally involved in, in which the NRLB has ruled in favor of employees terminated for what used to be considered gross misconduct. Essentially redefining "protected concerted activity," the board has taken sides with employees who have used social media sites, primar- ily Facebook, to rant about employers and defame super- visors with profane name-calling; employees that openly criticize employer policies and customer events; and even employees that harass and taunt other employees. He warns that whether a dealership currently has a social media policy in place or is considering drafting one, soliciting the review of legal counsel is a prudent measure, given the unpredictable and shifting landscape. Even employee handbooks as a whole should be regularly reviewed and checked for compliance, Hendricks says, because neither ignorance of the rules, lack of training, minority ownership, nor good intentions are defensible pleas with the NLRB. An auto dealership embroiled in a wrongful termina- tion case of a salesman came under the scrutiny of the NLRB, which was supporting the employee who had posted criticisms about his employer's sales open house on Facebook and also insensitive photos and comments about a near-tragic accident involving a minor at a competitive dealer's lot. While investigating the case, NLRB took issue with several policies written in the company's employee handbook, including, said (continued on page 40)

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