State Of the Unions: Where We Are and Where the Law May Be Taking Us Jeff Wray

1. State Of the Unions: Where WeAre and Where the Law May BeTaking Us Jeff Wray

3. State of the Unions • Only 6.9 percent of private sector workers are union members; 36.2 percent of public sector workers belong to unions • North Carolina has the lowest rate of unionization at 3.2 percent; New York has the highest rate at 24.2 percent • In Texas, 5.4 percent of workers (public and private) belong to unions, and 6.7 percent are represented by a unionSource: United States Bureau of Labor Statistics, News Release, January 2010

4. Union Wins Source: Bureau of National Affairs Daily Labor Report, May 3, 2011

5. The Political Timetable • January 2009: President Obama inaugurated following election with support from unions • January 2009: so-called Employee Free Choice Act introduced with support of President, majority in both houses; not passed • April 2010: Obama-appointed majority of NLRB takes office • June 2010: Supreme Court invalidates scores of decisions issued by 2-member NLRB, forcing Board to concentrate on reissuing

6. The Political Timetable • November 2010: Republicans take control of House, effectively stiffling union agenda • Fall 2010: “Obama Board” begins issuing decisions, proposing rules • August 2011: First new final rule issued • August 2011: Chairman Wilma Liebman’s term expires, leaving Board with 3 members

7. NLRB Rule: Required Employer Posting • Aug. 25, 2011: The National Labor Relations Board (NLRB) announced a Final Rule requiring all employers covered by the National Labor Relations Act (NLRA) to post a notice of employee rights under the NLRA. • Effective Date: Likely November 14, 2011 • Covered Employers: Private employers (including unions) having an impact on interstate commerce. • Specifically excluded: Public employers, railway and airline employers, and agricultural laborers.

8. Posting Requirements • Poster must be 11 inches x 17 inches, posted in conspicuous and typical notice-posting place (all sites) • Electronic posting required if employer uses intranet or internet to communicate policies to employees • Email delivery and specific notification of posting is not required • In locations where 20% or more of workforce is not proficient in English, must be translated into spoken language; poster will be available in several languages

10. The Required Posting • Advises employees of rights under the NLRA, including but not limited to the right to: • Organize a union to negotiate with the employer about wages, hours, and other work terms and conditions • Form, join, or assist a union • Bargain collectively through chosen representatives • Discuss work terms and conditions or organizing a union with co-workers or a union • Take action with a co-worker(s) to improve working conditions • Strike and picket • Choose not to do any of these activities

11. The Required Posting • Advises employees that it is illegal for an employer to: • Prohibit an employee from non-work union solicitation • Question an employee about union support or activities in a manner that discourages engagement in such activity • Fire, demote, transfer, reduce hours, change shift, take other adverse action, or threaten such, because an employee joins or supports a union, engages in concerted activity, or chooses not to engage in any such activity • Threaten work closure if workers choose union representation • Promise/grant promotions/raises/benefits for anti-union support • Generally prohibit an employee from wearing union items • Spy or videotape peaceful union activities

12. General Questions • Why did the NLRB issue this Rule? • Congressional reaction • Will there be legal challenges to the Rule? • First Amendment challenge • NLRB rule-making authority (Section 6) vs. adjudication • When will challenges likely arise? • Is this a big deal?

13. Consequences of Failure to Post • Failure to post is an unfair labor practice • If employer is unaware of obligation and agrees to post, Board will follow usual settlement practices • Will failure to post result in election set-aside? • Board will extend six month statute of limitations if employee was unaware of his/her rights • If employer knowingly fails to post, that would be evidence of unlawful motive in another unfair labor practice case

14. Employer’s Counter Notice • Can an employer lawfully post a “counter” notice? • Employer has a First Amendment and Section 8(c) Statutory Right of Free Speech: • “The expressing of any view, argument, or opinion, or the dissemination thereof, whether written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice . . . if such expression contains no threat of reprisal or force or promise of benefit.” • Can a lawyer give advice? Will that change?

15. NLRB Acting GC’s Memorandum on Social Media Issues • http://nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases • Memorandum covers 14 social media cases with the goal of providing guidance on this hot issue • Nine cases raised issue of online protected concerted activity: Four protected; five not protected • Chamber of Commerce Study of 117 charges: NLRB General Counsel’s office issued 4 ULP charges: http://www.uschamber.com/reports/survey-social-media-issues-nlrb

16. Some Fundamentals • Basic ground rule: The same rule applies to on-line and off-line communications • Problems: • Social media is viral: it can broadcast to the world • Transportable technology: Ipads, smart phones, • Damage of employee communications can be greater • Public interest in social media issues is strong • Proceed cautiously • Employer may need to involve more disciplines than just HR and regular employment lawyer (e.g., labor lawyer; regulatory person; PR/media person; etc.)

17. Section 7: The “Heart of the NLRA” • “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities”

18. Unfair Labor Practices (ULPs) • Employer • § 8(a)(1) – Interfere with, restrain, or coerce employees in their exercise of § 7 rights • § 8(a)(2) – Form or dominate “company” unions • § 8(a)(3) – Refuse to hire, or fire, discipline, or otherwise discriminate against employees for their union activities • § 8(a)(4) – Retaliate for filing charge or testifying • § 8(a)(5) – Refuse to bargain • Prohibitions for unions also exist – See § 8(b)

19. What factors make social media “protected concerted activity”? • Depends on nature of the complaint and to whom it was made • Individual complaint v. more than one employee • To family and friends v. employees, customers, vendors, union, etc. • Requires examination of more than just the initial social media comment • Defense employer may raise: knowledge of only one individual gripe

20. No Bright Line Test:Will you know it when you see it? • Discussion of protected activity: • Employees complained about dealership’s inexpensive sales possibly affecting their sales; later, salesperson posted comments and pictures about event as he told workers he would do; posting was “outgrowth” of earlier discussion and employee was “vocalizing” his sentiments • Discussion of non-protected activity: • Bartender’s communication to relative not protected, as he did not address it to co-workers, made no attempt to initiate group action, and made no effort to take concerns to management • Be careful: “The object of inducing group action need not be express” – Hispanics United of Buffalo

21. Is there any speech that will never enjoy NLRA protection? • Not protected “concerted activity”: • Communications not about work terms and conditions • Individual griping • Other communications that are not “concerted” • Communications that violate an employer’s policies against harassment and discrimination? • Communications that disclose confidential information or trade secrets? • Negative communications about company brand? • Not always easy to tell

22. What happens with mixed messages? • Troublesome area because the line is often blurred • In theory, if employee’s non-protected activity is a legitimate basis for discipline or termination, then such should be fine (provided, e.g., consistent practice) • Be careful to define clearly and carefully limit the basis for termination • In practice, risky area that turns on the nature of the protected activity and the extent to which it is interwoven with non-protected activity • NLRB will analyze “true motive”

23. Key Concepts For Employers • If you have a social media policy, do a legal analysis to make sure it is not overbroad • Would a carve-out (e.g., “except as prohibited under the NLRA/set forth in the poster”) work? • Be prepared to combat negative social media: Have a well-developed social media communication strategy • Train supervisors (e.g., supervisor’s after-work social media communication, such as making disparaging comments about workers wanting to unionize, can be a problem under Section 8(a)(1))

24. Board Majority Proposes to Reduce Time to Elections • In June, the National Labor Relations Board (NLRB) published 50 pages of proposed changes to its rules, the most extensive change ever • The proposed rules are intended to “streamline” NLRB representation cases, to the end that elections will be held more quickly and most issues resolved post-election only if necessary

25. NLRB Campaign Campaign Union Card-Signing Effort Union files petition ElectionDirected SecretBallot Union Typically KeepsEffort Secret As Long as Possible

26. NLRB Campaign Campaign Union Card-Signing Effort Union files petition ElectionDirected SecretBallot Union may file any time with 30% NLRB pushes for election within 42 days: in FY 2010 initial elections were held in an average of 38 days

27. NLRB Campaign Campaign Union Card-Signing Effort Union files petition ElectionDirected SecretBallot Regional Office seeks to achieve agreement of parties concerning appropriate unit, election details; if no agreement, hearing held, Regional Director makes decision

28. NLRB Campaign Campaign Union Card-Signing Effort Union files petition ElectionDirected SecretBallot Employer furnishes list of names and addresses of eligible voters. Union has at least 10 days to use

29. NLRB Campaign Campaign Union Card-Signing Effort Union files petition ElectionDirected SecretBallot Election is usually held on employer premises and vote counted following close of polls

30. Statement of Chairman Wilma B. Liebman… “[T]he current rules seem to build in unnecessary delays, to encourage wasteful litigation, to reflect old-fashioned communication technologies….the proposed changes do not establish inflexible deadlines or mandate that elections be conducted a set number of days after the filing of a petition.”

31. Statement of Dissenting Member Brian E. Hayes… “[T]he proposed rules will (1) substantially shorten the time between the filing of a petition and the election date, and (2) substantially limit the opportunity for full evidentiary hearing or Board review on contested issues involving, among other things, appropriate unit, voter eligibility, and election misconduct.”

32. Statement of Dissenting Member Brian E. Hayes… “[B]y administrative fiat in lieu of Congressional action the Board will impose organized labor’s much sought-after ‘quickie election’ option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition. Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.”

33. What’s the rush? • 95.1 percent of all initial elections are conducted within 56 days of the filing of the petition • Initial elections are conducted a median of 38 days from the filing of the petition • 86.3 percent of all representation cases are closed in less than 100 days • Voluntary election agreements were obtained in 92 percent of the cases • Unions won 67.6 percent of elections in calendar year 2010, 68.7 percent in calendar year 2009

34. Got Issues? That won’t delay rush to election • Board majority says statutory requirement of hearing is limited to existence of whether there is a question concerning representation; all other issues can properly be delayed for resolution • Under proposed rule, Regional Director can issue direction of election before resolving issues raised, wait to decide disputes anytime before vote count • If at any time in hearing, disputed placement issues affect less than 20 percent of unit, hearing is to close and disputed positions to be resolved after vote

35. Some of the New Provisions • Petition can be filed by email; union and NLRB will serve by email on employer • Employer will be asked to fill out new “Statement of Position” Form, containing: • Position re Board’s jurisdiction • Appropriateness of petitioned-for unit • Any proposed exclusions from the petitioned-for unit • The existence of any bar to election • Type, dates, times, and location of election; eligibility period • Any other issues it intends to raise at a hearing

36. Some of the New Provisions • If the employer takes the position that the petitioned for unit is inappropriate, it must state the basis for its contention and describe the most similar unit it agrees is appropriate • The Statement of Position must state the full names, work locations, shifts, and job classifications of all individuals in the proposed unit. The employer must furnish the Regional Director but not the union with the full names, addresses, and available email addresses and available telephone numbers of these individuals

37. Some of the New Provisions • If the Statement of Position is not completed by the employer in a timely fashion, the employer will be precluded from contesting the appropriateness of the unit at any time and from contesting the eligibility or inclusion of any individuals at the hearing. • The employer will also be served with an Initial Notice of Election which must be posted immediately, and distributed to employees electronically if the employer customarily communicates with employees electronically. Failure to do so can result in election set aside.

38. Some of the New Provisions • The proposed rules reduce the time for service of the voter eligibility (Excelsior) list from 7 to 2 days after the direction of election, and require for the first time that the employer furnish available email and telephone numbers, shifts, work locations, and job classifications in addition to name and home address. • A Final Notice of Election will also accompany the direction of election, and also must be served electronically by the employer if it normally communicates with employees electronically. The Region will serve it electronically as well.

39. Some of the New Provisions • The proposed rules make all appeals to the Board from action by the Regional Director subject to the discretion of the Board • Post-election objection procedures shorten the time for presenting evidence, expedite hearing and decision

40. Other Union-Friendly Acts • General Counsel issues complaint against Boeing because it located plant in South Carolina, allegedly in retaliation for union strikes in Washington state • Board upholds bannering, use of giant inflatable rats • Board reverses Bush decision requiring notice and opportunity to overturn voluntary recognition (Dana) • Board may be paving way for smaller units for election and bargaining

41. For More Information… Jeff Wray is the partner in charge of the Houston labor and employment practice of the international law firm Fulbright & Jaworski L.L.P. He has over 35 years of experience representing management in all aspects of labor and employment law, including union organizational attempts, unfair labor practice charges and litigation, collective bargaining, strike and picketing matters, and decertification of unions. He has extensive jury and non-jury experience in labor, civil rights, wage-hour, and other employment litigation. Jeff, a certified specialist in labor and employment law, is listed in Best Lawyers in America and Texas Super Lawyers, and has been named one of the Nation’s Top 100 Most Powerful Employment Attorneys by Human Resource Executive Magazine. He is a member of the College of Labor and Employment Lawyers and is a frequent author and speaker. 713.651.5585 tjwray@fulbright.com