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Unions Today: The New NLRB and Game-Changing Rules Impacting ALL Employers

Unions Today: The New NLRB and Game-Changing Rules Impacting ALL Employers. Tanja L. Thompson Littler Mendelson March 20, 2012 tthompson@littler.com 901.795.6696. Unions: Desperate For Members. 1980. 2011*. 1950. 11.8%. 38%. 27%. 87.7%. 73%. 62%. Union. Non-Union

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Unions Today: The New NLRB and Game-Changing Rules Impacting ALL Employers

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  1. Unions Today:The New NLRB and Game-Changing Rules Impacting ALL Employers Tanja L. Thompson Littler Mendelson March 20, 2012 tthompson@littler.com 901.795.6696

  2. Unions: Desperate For Members 1980 2011* 1950 11.8% 38% 27% 87.7% 73% 62% Union Non-Union *Private sector rate is 6.9%

  3. Union Membership By Gender Women increase of 36,000 members Men increase of 12,000 members Source: CEPR Report, January 2012

  4. NLRB Petitions 1994 - 2010

  5. 2010 NLRB Election Data

  6. The New NLRB Mark Pearce (D) – Term expires 8/17/13 Brian Hayes (R)– Term expires 12/16/12 Terrence Flynn (R)– Term expires 2013 Sharon Block (D) – Term expires 2013 Richard Griffin (D) – Term expires 2013

  7. NLRB Recess Appointments • Obama made three recess appointments on Jan. 4, 2012 while Senate was in Pro Forma session • Recess appointees sworn in on Jan. 10, 2012 bringing Board to full five-member strength for first time since 2010 • Recess appointees are: • Griffin (D) – Former GC for IUOE • Block (D) – Deputy Asst. Secretary for Congressional Affairs, U.S. DOL • Flynn (R) – Chief Counsel, NLRB Member Hayes

  8. Acting General Counsel NLRB Acting GC – Lafe Solomon • Career NLRB Lawyer • Nominated to Become General Counsel by President Obama on January 5, 2011 • Confirmation unlikely in 2012 in light of election, fallout from Boeing case, proposed NLRB election rule changes, and other controversial GC memos and actions

  9. The NLRB Agenda • Save private sector unions • Increase union power without regard to employee rights and legitimate management interests • Implement new NLRB “Quickie” Election Rules

  10. What To Expect • More active and aggressive NLRB • Without suggesting any lack of integrity, a Board leaning through its decisions and rules toward: • Strengthening employee Section 7 rights and derivative union rights • Weakening employer property rights • Encouraging organizing • Enhancing remedies • A willingness to reconsider cases, particularly those decided by Bush Board

  11. prospective policy and rule changes

  12. Employer Poster Requirement • Effective April 30, 2012 • Employers required to display poster advising employees of rights under NLRA • Applies to All private sector employers covered by NLRA • March 2, 2012 – D.C. District Court strikes down unfair labor practice and statute of limitations tolling penalties in Rule – but affirms posting requirement

  13. NLRB Election Rule Changes Currently elections are held 42-49 days from filing of Petition • Petition filed • NLRB Hearing within 14 days • Briefs due in 7 days • Decision • List of eligible voters due 7 days later • Election held minimum of 10-13 days after union receives voter list

  14. Proposed New NLRB Election Timeline 10-21 days from filing of Petition • Petition filed • NLRB Hearing within 7 days • No Briefs • Decision • List of eligible voters due 2 days later • Union can waive 10-day time period from when it receives voter list • Election held as quickly as 10 days

  15. New “Quickie” Election RulesEffective April 30, 2012 • Restrict pre-election hearings to questions re: representation – voter eligibility resolved post-election • Limit evidence at pre-election hearing • Give hearing officers discretion re: post-hearing briefs • Eliminate parties’ right to file pre-election request for review of RD’s decision • Eliminate rule that elections should ordinarily not be scheduled sooner than 25 days after direction of election • Limit circumstances under which request for special permission to appeal to Board will be granted • Make Board review of RD's or Judge's resolution of post-election disputes discretionary

  16. New “Quickie Election” RulesDeprive Employees of Right to Know • Employer has insufficient time to assess situation, analyze unit and eligibility issues, and prepare response • Employer may not litigate most issues or challenge the decision before a vote • Employer has little time to educate employees • Election in approximately 28-35 days in Union’s preferred unit will likely lead to more Union wins • Little time to make legal operational changes

  17. NLRB’s Proposed Election Rules: A Game Changer • Remaining union-free will require continual, ongoing pro-active measures 24/7/365 • Heightened vigilance and awareness of employee issues and rapid responses • Continuous informational campaign to educate employees and convince them not to sign union authorization cards will be essential • Once a petition for an election is filed, it likely will be too late

  18. Pending Election Rules:More to Come? • Electronic filing of Petitions • Pre-Election Hearing – 7 days from filing of Petition • Preliminary Voter List – Due by opening of the pre-election hearing • Voter List – 2 days from hearing close, union may waive – must include employee’s phone number and e-mailif known • Notice of Election – 2 days before Election

  19. Acting GC issues memo establishing “optimal” timeline for 10(j) injunctions in organizing campaigns -- goal of giving all unlawful discharges in organizing cases “priority action and speedy remedy” Memo establishes “effective remedies” for ULPs in organizing campaigns Broadens scope of effort in 10(j) memo to include: Promises or grants of benefits Solicitation of grievances Interrogation/surveillance Interfering with the ability to communicate between employees AGC Memo 10(j) Injunctions

  20. NLRB Cases Likelyto be Reconsidered • Limiting Union E-Mail Solicitation Rights – Register Guard, 351 NLRB 1110 (2007) • Removing Weingarten Rights for Non-Union Employees – IBM Corp., 341 NLRB 1288 (2004). • Broadly Defining Supervisors Under the NLRA – Oakwood Healthcare Corp., 348 NLRB 686 (2006). • Excluding Temporary Workers from Bargaining Unit – Oakwood Care Center, 343 NLRB 659 (2004).

  21. Changing the Playing Field:Micro Bargaining Units • Pre-Specialty Healthcare • Distinct community of interest • All employees of employer or something less, department, etc. • Specialty Healthcare • Any two or more employees doing the same job in the same location

  22. Specialty Healthcare357 NLRB No. 83 (2011) • Micro units • Co-extensive with extent of organization by union • “Readily identifiable” is a very broad concept - job classification, departments, functions, work location, skills, or similar factors • So long as not a fractured unit - “an arbitrary segment,” unit will be ok • “Overwhelming community of interest” • What does it mean? • Not enough to be merely an “even more appropriate unit” -- essentially insurmountable standard

  23. Explosive Growth of Social MediaWakes up Employers,Employees and the NLRB • Cases impacting non-union workplace • 100 New Charges in last 12 months, mostly against non-union employers • Unionized workplaces also confront social media policies and disciplinary action for same • April 2011 – GC issues mandate requiring all social media cases to go to Advice • 75 Cases Submitted to Advice as of 1/25/12 • August 2011 – First report Acting GC issuing guidance in 14 cases • January 2012 – Second report issuing guidance in 14 additional cases

  24. First Question: Is the Posting Concerted Activity or Mere Individual Griping? Questions to Ask: • Does posting seek to initiate, induce or prepare for group action? • Does posting reference conversations with co-workers that occurred before postings were made so that the posting is a logical outgrowth of those conversations? • Does posting seek to bring truly group complaints to the attention of management? • Are any co-workers of the employee posting Facebook friends or Twitter (or other blog) followers? • Did any co-worker respond to the online post? • If so, what was the nature of that response?

  25. Next Questions • Does posting reference, involve or concern wages, hours, benefits, working conditions or other terms and conditions of employment? • Are the postings so outrageous, disloyal or disparaging of the Company’s product or service so as to lose the protection of the Act?

  26. When Are Social MediaPolicies Unlawful? • Where on their face they restrict protected concerted activity • Where they could reasonably be construed to chill protected concerted activity or union activity • Test: (1) employees would reasonably construe policy to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) rule has been applied to restrict exercise of Section 7 rights • Is policy narrowly tailored to achieve legitimate purpose or overbroad?

  27. Organizing Tactics • Modern Approach: Utilizing Technology • Outreach through Social Media • Blogs, Discussion Groups, Facebook, YouTube Videos • Union Websites, Virtual Leafletting • Texting • Traditional Approaches • Carrot: “Brotherly Love,” Patriotism, Duty, Money • Stick: Strong Arm, Threats, Ostracize, Belittle

  28. What’s the Big Deal? • AFL-CIO Secretary Treasurer Liz Shuler said “young workers are the guinea pigs” • The number one goal is to reach non-union workers younger than age 30… • …and the only way to do so effectively will be through social media

  29. Employee Ranting Sites • www.jobvent.com • www.hateboss.com • www.workrant.com • www.rantasaurus-ex.com

  30. Back to the Basics:Why Employees Join Unions • Poor treatment by leadership • Lack of dignity and respect • Lack of trust • Lack of appreciation and recognition • To have a voice • Changes • Decisions • Information • To be heard

  31. Why Employees Join Unions • Inconsistent or unfair policy/practice administration • Attendance • Discipline • Opportunities for growth or advancement • Perceived inequities in pay or benefits • Internal • External • Job insecurity • Discipline • Layoff

  32. Keys to Remaining Union Free Understand and meet requirements for employee satisfaction daily Respond to problems/issues quickly Do not tolerate mistreatment by supervisors or managers Talk about unions when appropriate (probably before organizing occurs) Train supervisors and managers to respond to union activity

  33. Unions Today:The New NLRB and Game-Changing Rules Impacting ALL Employers Tanja L. Thompson Littler Mendelson March 20, 2012

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