My would-be slide deck for #DisruptHR Denver

1. Dear NLRB, WTF?!!?
No Seriously – WTF???

2. The Mission – to boldly go where no
NLRB has gone before!
HR

3. The Original Avengers NLRB

4. The New NLRB Avengers

5. NLRB - “The law we
enforce gives
employees the right
to act together to try
to improve their pay
and working
conditions, with or
without a union. If
employees are fired,
suspended, or
otherwise penalized
for taking part in
protected group
activity, the National
Labor Relations
Board will fight to
restore what was
unlawfully taken
away.”

6. The NLRB & General Counsel

7. NLRB.GOV

8. Triple Play
• "Maybe someone should do the owners of
Triple Play a favor and buy it from them. They
can’t even do the tax paperwork correctly!!!
Now I OWE money...Wtf!!!!“
• "Hahahaha he’s such a shady little man. He
prolly [sic] pocketed it all from all our
paychecks.“
• “I owe too. Such an a**hole.”
Three D, LLC (Triple Play), 361 NLRB No. 31 (2014)

9. Triple Play
The Board said:
• “The employees engaged in protected concerted
activity by taking part in a social media discussion
among offsite, off-duty employees, as well as two
non-employees…. Although we do not condone
her conduct, we find that Sanzone’s use of a
single expletive to describe a manager, in the
course of a protected discussion on a social
media website, does not sufficiently implicate the
Respondent’s legitimate interest in maintaining
discipline and order in the workplace…”
Three D, LLC (Triple Play), 361 NLRB No. 31 (2014)

10. The Picket Line
An employee was caught on video making racist
remarks:
“Hey, did you bring enough KFC for everyone?”
• “Hey, anybody smell that? I smell fried
chicken and watermelon.”
http://www.scribd.com/doc/268209701/Cooper-Tire-Rubber-Company

11. The Picket Line
• The NLRB said:
• “[The] “KFC” and “fried chicken and watermelon”
statements most certainly were racist, offensive, and
reprehensible, but they were not violent in character,
and they did not contain any overt or implied threats
to replacement workers or their property….The record
evidence in this case does not establish that Runion’s
statements were coercive or intimidating to the
exercise of employees’ Section 7 rights, and it does not
establish that the statements raised the likelihood of
imminent physical confrontation.”
http://www.scribd.com/doc/268209701/Cooper-Tire-Rubber-Company

12. More WTF?
• Employees at ATT&T show
up at work wearing buttons
that read:
• “WTF Where’s the
Fairness?”
• “FTW Fight to Win”
• “Cut the Crap! Not My
Healthcare.”
• AT&T sends employees
home after refusing to
remove the buttons before
leaving the office to work in
and around customer
homes and businesses.

13. More WTF?
The Board disagreed with AT&T:
• “We agree with the judge that
the content of the “WTF,”
“FTW,” and “Cut the Crap!”
buttons and stickers was not
so vulgar and offensive as to
cause employees wearing
them to lose the protection of
the [National Labor Relations
Act]. In particular, we
emphasize that the “WTF” and
“FTW” buttons and stickers
provided a nonprofane,
nonoffensive interpretation on
their face.”

14. Common sense sometimes matters
• During contract negotiations in
2009 Communications
Workers in Connecticut wore
T-shirts with “Inmate # ____”
on the front and “Prisoner of
AT$T” on the back. The boss
said they could not wear them
if they were going into
customer homes or were
working in public. Many did
anyhow, and 183 got
suspended.
• Board said it was okay!!!
• DC Circuit overturned in July
http://www.cadc.uscourts.gov/internet/opinions.nsf/80AD773E2F0DF13385257E7E0052C14A/$file/11-1099-1561845.pdf

15. Perez Pier Sixty
• While on break at work, employee uses his
iPhone to post about his boss on his personal
Facebook page:
• “Bob is such a NASTY MFer don’t know how to
talk to people!!!!!!! F*** his mother and his
entire f***ing family!!!!
• What a LOSER!!!! Vote YES for the
UNION!!!!!!!”
http://www.scribd.com/doc/260742549/Perez-Pier-Sixty

16. Perez Pier Sixty
• “The overwhelming evidence establishes that,
while distasteful, the Respondent tolerated
the widespread use of profanity in the
workplace, including the words “f**k” and
“m*****f***er.” Considered in this setting,
Perez’ use of those words in his Facebook post
would not cause him to lose the protection of
the Act.”
• They ordered reinstatement!!!
http://www.scribd.com/doc/260742549/Perez-Pier-Sixty

17. Protected Tweets
In January 2015, after a
customer tweeted out
thanks for a freebie at
Chipotle's, Kennedy
tweeted back,
“@ChipotleTweets, nothing
is free, only cheap #labor.
Crew members only make
$8.50hr how much is that
steak bowl really?"

18. Lone Wolf PCA
• The NLRB determined
that an individual who
filed a collective
action FLSA claim in
federal court was
engaged in protected
concerted activity –
even if no other
employees asked him
to do it.

20. What to do?
• Have a drink
• Review handbook and
policies regularly
• NLRB guidance memos
from General Counsel
• Hire competent legal
counsel
• Treasure your
employees
• Get started now!