Presenting a live 90 minute webinar with interactive Q&A. Today s faculty features:

Transcription

1 Presenting a live 90 minute webinar with interactive Q&A NLRB: Key Labor Law Developments for Union and Non Union Employers Complying with New Decisions and Rules Impacting Social Media, Decertification, Election Procedures and More WEDNESDAY, JANUARY 18, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Douglas Darch, Partner, Baker & McKenzie, Chicago James F. Hendricks, Jr., Partner, Ford & Harrison, Chicago The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 Presenters Jim Hendricks Ford & Harrison Chicago, Illinois Douglas Darch Baker & McKenzie Chicago, Illinois

6 Agenda Welcome & Introduction Use of Social Media by Employees as a Protected Activity Under National Labor Relations Act Decision in KNAUZ BMW Mini Micro Minority Bargaining Units Biggest Changes in NLRB decisions Proposed Election Timelines and Decertification Procedures Questions & Answers (we hope!) 6

7 SOCIAL MEDIA: WHAT IS IT? Twitter Facebook LinkedIn MySpace Blog (web log) 7

8 NATIONAL LABOR RELATIONS BOARD (NLRB) WHO ARE THEY? Established by the NLRB in 1935 to protect employees rights under 7: RIGHTS OF EMPLOYEES 7. [ 157.] Employees shall have the right to self-organization, to form, join, or assist labor organizations, 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 also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title]. 8

9 Applies to both union and non-union employees. Therefore, a non-union Employer may be met with unfair labor practice charges by the NLRB knowing nothing about what this is! 9

10 WHAT IS PROTECTED, CONCERTED ACTIVITY? 10

11 Facebook: The new water cooler! PROTECTED To be protected, the posts must be about employees terms and conditions of employment. Most common: wages/benefits treatment by supervisors work assignments discipline of employees 11

12 CONCERTED Social media communication must normally involve 2 or more employees NOT griping or solely for the benefit of one individual COULD be a posting by 1 individual may be posting a group complaint if previously discussed with other employees The Board has found calling supervisors liar and a bitch, an egotistical f k and a f king son of a bitch protected! 12

13 RECENTLY REPORTED CASES HISPANICS UNITED OF BUFFALO (03-CA ) Complaints by employee about other employee job performance; others criticized her for her complaints she posted. Employer terminated those critical of the employee posts as bullying and harassment. ALJ: Criticism was protected, concerted activity. Employees don t lose protection of the Act by engaging in misconduct during the course of their protected activity (made during non-work hours on personal computers). 13

14 KNAUZ BMW CASE (13-CA-46452) Background: Ultimate Driving Event-posting Land Rover Accident-posting Termination NLRB Press Release Facebook postings Hot dogs protected Accident not protected t Board filed exceptions to ALJ decision. 14

15 What s Next? Will place of discussion affect NLRB analysis? Does it matter if employees post while at work v. non-work kti time? Does it matter if using company v. private computer? Scrutinizing work rules. 15

16 Mini Micro Minority Bargaining Units The Appropriate Bargaining Unit Requirement Imposed by Section 9(b) [t]he Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof. 16

17 Presumptively Appropriate Units The Act Employer unit Craft unit Plant unit Subdivision thereof By Decision Single terminal unit (truck drivers) System-wide unit (public utilities) Service & Maintenance unit (Nursing homes) Skilled maintenance unit (Nursing homes) 17

18 Community of Interest Factors Focus: How Employer has chosen to structure its workplace. Purpose: Bargaining i will occur within boundaries that t make sense in the employer s particular workplace. 18

19 Community of Interest Factors (cont.) Separate departments Distinct skills and training Distinct job functions (duties) Perform distinct work (amount and type of job overlap between classifications) Functionally integrated with other employees Frequent contact with other employees Interchange with other employees Distinction terms and conditions of employment 19

20 Community of Interest Factors (cont.) Separately supervised Similarity of wages Similarity of benefits Similarity of working conditions 20

21 Micro Mini Minority Units Specialty Healthcare (2011) Step 1 Is petitioned-for proposed unit readily identifiable as a group whose similarity il it of function and skills create a community of interest? (A cohesive unit relatively free of conflict of interest) Step 2 Is the petitioned-for unit clearly inappropriate? Overwhelming community of interest t defined d as traditional community of interest factors overlap almost completely. (Burden of proof on employer.) 21

22 Changes in Presumption Re: Majority Support Voluntary Recognition Union presumed to have majority support tfor 6to 12 months (Lee Lumber test) t) Lamons Gasket Company, 357 NLRB No. 72 Successor Employer If successor assumes CBA terms then bargains 6 months. If successor sets initial terms before bargaining 6 to 12 months (Lee Lumber test) t) UGL UNICCO Service Co. 357 NLRB No

23 Access to Premises Contractor s off-duty employees have access to host employer s premises to same extent as host employer s employees. New York, New York, LLC, 356 NLRB No. 119 Nova Southeastern University, 357 NLRB No

24 Hostile Work Environment Receives Protected Status Telling employees to refrain from taunting, making verbal or physical threats, t engaging in confrontational ti conduct: Held - unlawful Tenneco Automotive, 357 NLRB No. 84 Posting memo reminding employees of admittedly lawful anti-harassment policy during organizing campaign: Held -unlawful l Boulder City Hospital, 355 NLRB No

25 Hostile Work Environment (cont.) Discharge of all members of employee delegation which physically restrained a manager during a confrontation: Held - unlawful LaGuardia Assoc., 357 NLRB No. 95 Only those delegation members who were in physical contact with manager could be discharged Delegation member who briefly touched security guard could not be discharged. 25

26 Hostile Work Environment (cont.) Discharge of two employees who stated during a confrontation, it was going to get ugly and that their supervisor had better bring his boxing gloves : Held - unlawful Kiewit Power Constructors Co., 355 NLRB No

27 Good News for Employers Filing of union-financed lawsuit during union election A. If filed during critical period constitutes objectionable conduct B. If filed outside critical period not objectionable Stericycle, Inc., 357 NLRB No. 61 Discharge of employee who called owner of Company a F ing crook, an a hole and stupid, and said owner would regret firing him. Reversed and remanded by Court of Appeals for 9th Circuit. Plaza Auto Center v. NLRB,, 27

28 Message for Employers 1. Plan Ahead Structure Workplace to avoid micro units Train managers and supervisors 2. Develop and Implement Policies Eg. Policy to (i) periodically remind employees of existing policies, or (ii) remind employees after complaints made. 28

29 NLRB REQUIRES PRIVATE EMPLOYERS TO POST EMPLOYEE RIGHTS POSTER The NLRB, by rulemaking, has now required private sector employers, covered by the NLRA, both unionized and non-unionized, to put an Employee Rights notice advising employees of their rights under the National Labor Relations Act (NLRA). At the request of a federal judge, this posting requirement has been postponed until April 30,

30 Lawsuit Filed to Stop Implementation of Amended Rule On December 20, 2011, the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace filed a lawsuit to stop implementation of the amended rule, claiming it is contrary to the National Labor Relations Act and the First and Fifth Amendments to the U.S. Constitution. The lawsuit also claims the way the rule was enacted violates the Administrative Procedures Act and the Regulatory Flexibility Act. See Chamber of Commerce v. National labor Relations Board (D. D.C. December 20, 2011). 30

31 WHAT IS REQUIRED? The Board s rule requires employers covered by the NLRB to post this notice in conspicuous places where [it] is readily seen by employees, ees including all places where notices to employees concerning personnel rules or policies are customarily posted. The notice requirement does not apply to employers who are not covered by the NLRA, including, among others, any person subject to the Railway Labor Act, as well as entities over whom the Board has been found not to have jurisdiction or over which the Board has chosen not to assert jurisdiction. 31

32 WHAT IS REQUIRED? Under the final rule, all private sector employers subject to the NLRB s jurisdiction are required to post the 11 x17 employee rights notice in conspicuous places where other workplace notices are customarily posted. Employers also must publish the notice on an intranet or internet site if the employer routinely uses such media to communicate with employees about its rules and policies. In addition, translated versions of the notice must be posted at workplaces where at least 20% of employees are not English-proficient. If an employer s workforce includes two or more groups constituting at least 20% of the workforce but who speak different languages, the employer must either physically post the notice in each of those languages or, at the employer s option, post the notice in the language spoken by the largest group of employees and provide each employee of the other language groups a copy of the notice in the appropriate language. 32

33 CONSEQUENCES? The NLRB has stated that an employer s failure to post the required notice will constitute an unfair labor practice and may toll the six-month statute of limitations for filing a charge involving other unfair labor practice allegations. The NLRB also may consider an employer s knowing failure to comply with the requirement to post as evidence of an unlawful motive in any unfair labor practice case. 33

34 NLRB PUBLISHES AMBUSH ELECTION RULE The National Labor Relations Board (NLRB) has published its final rule amending its election procedures, which will ultimately result in a shorter time period between the filing of an election petition i and the date of the election. These new ambush election rules will give Big Labor what it wants quicker elections that deny employers a meaningful opportunity to educate employees on the risks and disadvantages d of union representation. ti 34

35 NLRB PUBLISHES AMBUSH ELECTION RULE The final rule makes the following amendments to the Board s regulations governing representation case procedures: Explicitly states that the statutory purpose of a pre-election hearing is to determine whether a question of representation exists and gives hearing officers the authority to limit the presentation of evidence relevant to a question of representation. ti Consequently, issues such as the eligibility ibilit of voters will be decided after an election, which may result in more challenges to election results. Makes the filing of post-hearing briefs, including subjects to be addressed and time for filing, subject to the discretion of the hearing officer. Under the current rules post-hearing briefs are permitted and are not subject to the hearing officer s discretion. 35

36 Current Election Process - Stipulation 92% of cases result in stipulation of unit and election date Average time from petition to election where the parties stipulate t is 38 days Unions won 68.5% of elections in 2009; similar in 2010 Many employers first receive notice upon receiving the petition 36

37 Current Election Process No Stipulation Non-adversarial proceeding Hearing can allow for extended delay in election process Allows for significant ifi amount of time to campaign and inform employees Review from the NLRB available midstream Allows for litigation of supervisory status and unit determination issues before the election Ballots may be impounded for years before NLRB makes decision

38 Proposed Election Process - Stipulation Shortens period of time to decide whether to stipulate from 14 days to 7 Excelsior list due 2 days after stipulation rather than 7 Unions is entitled to 10 days to use Excelsior list, but could waive a portion to speed up election Bottom line elections in half the time or less 38

39 Proposed Election Process No Stipulation Adversarial hearing New requirements: preliminary voter list and statement of position Right to litigate t issues waived if not raised in statement of position Hearing process drastically different Litigation of eligibility ibilit issues less than 20% of unit deferred until after election No ability to obtain review from NLRB Hearing officer has ultimate decisionmaking authority Briefing at discretion of hearing officer Bottom line entirely different process 39

40 NLRB PUBLISHES AMBUSH ELECTION RULE Eliminates the rights of the parties to file a pre-election request for review of a regional director s decision and direction of election, and instead defers all requests for Board review until after the election, when any such request can be consolidated d with a request for review of any post-election rulings. The new rule also provides that a request for special permission to appeal to the Board will only be granted under extraordinary circumstances, when it appears that the issue will otherwise evade review. Eliminates the procedure of not scheduling a vote until 25 days after a direction of election to permit the Board to rule on any requests for review. This means a vote is likely to be scheduled much more quickly following direction of election than in the past. Creates a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases and provides that Board review of regional directors resolution of such disputes is discretionary. 40

41 Staying Union-Free Under the Proposed Rules Awareness: More focus on the pulse of the workplace be aware of common grievances and correct (not after becoming aware are of union activity) Training: Train supervisors in advance of what to look for early identification allows for additional campaign time Planning: Create an action plan and act quickly when union activity is occurring you may only have two weeks to campaign! 41