The Mount Everest of Regulations Examining the NLRB s New Quickie Election Rules

Transcription

1 The Mount Everest of Regulations Examining the NLRB s New Quickie Election Rules Derek G. Barella William G. Miossi Joseph J. Torres Winston & Strawn LLP December 19, 2014

2 Today s elunch Presenters Derek Barella Partner Chicago DBarella@winston.com +1 (312) Bill Miossi Partner Washington, D.C. WMiossi@winston.com +1 (202) Joseph Torres Partner Chicago Jtorres@winston.com +1 (312)

3 Agenda Quick overview of NLRB and its election process Review NLRB s new quickie election rules Planning recommendations Two related NLRB case law developments Employee access to work for organizing purposes Union s ability to organize micro-units Additional planning recommendations 3

4 NLRB and Its Election Process

5 National Labor Relations Board Overview Agency responsible for the National Labor Relations Act Handles election ( R ) cases and ULP ( C ) cases Initially processed by Regional Offices Board has ultimate decision/policy authority Board itself has five members (including one Chairperson) Presidential appointees If confirmed, serve five-year terms By tradition, three from President s party, two from other party Current Board is considered favorable to organized labor 5

6 NLRB Election Process Overview Can be initiated by employees or a labor union Employees show support by, e.g., signing petition or authorization cards Must involve a defined unit (e.g., all janitors, all store employees) Need at least 30% of employees in proposed unit to signify support Unions likely won t proceed unless they have greater than 50% support Process starts by filing a petition to hold election Unless there are legal problems with proposed unit, election will be set Currently, average time between petition and election is 38 days Employers have right to express their opposition and opinions Union must secure 50% plus one of employees who vote 6

7 NLRB Election Process Overview (cont d) Two other notable points to keep in mind No limit on how long employees/union can campaign before filing No requirement that employees/union announce their pre-petition activity 7

8 Holidays Come Early for Organized Labor Long-anticipated wish list items are delivered Big ticket item Changes to rules and procedures for representation elections Stocking stuffer Purple Communications employees have Section 7 right to use work for non-business purposes, including union organizing Accessory gift that keeps on giving Ability to organize micro-units 8

9 Why So Important to Labor? Union membership stagnant Total union membership density: 11.3% Private sector: 6.7% Union election win rates hover around 50% But, ROI is low Many more petitions filed than elections held Time and resources are significant commitments To drive membership/dues gains, labor needed a boost 9

10 Quickie Election Rules

11 NLRB Election Rules June 2011: NLRB first proposes rules changes November 2011: NLRB votes to adopt rules changes Chairman Pearce and then member Becker vote aye Member Hayes declines to vote or take any action May 2012: D.C. District Court invalidates rules changes Board lacked a properly constituted quorum February 2014: NLRB re-issues rules changes No further action through mid-term elections 11

12 NLRB Election Rules (cont d) Dec. 12, 2014: Divided Board adopts new rules Chairman Pearce, members Hirozawa and Schiffer majority Members Miscimarra and Johnson dissent Rules changes are effective April 14,

13 What s Changed? Current New Parties cannot file petitions electronically Regions do not electronically transmit certain R Case documents Election petitions, notices, and voter lists can be transmitted electronically Regions transmit case documents electronically Notice of Election is posted in facility after RD directs election; or Approves stipulated election agreement Employer must post Notice of Election within two business days of Region s service of petition before Unit issues are raised or resolved 13

14 What s Changed? Current New Pre-election hearings typically scheduled within week to ten days from petition Region sets pre-election hearing to begin eight days after notice served with petition, and Post-election hearing 14 days after filing of objections No pre-hearing filing requirements Non-petitioning party must identify any/all issues in statement of position Must be filed one day before hearing Issues not raised are waived 14

15 What s Changed? Current Employer must provide prospective voter list after RD directs election or approves stipulated election agreement New Employer must provide prospective voter list with job classifications, shifts, and work locations, to Region and other parties with its pre-hearing statement of position, before unit issues are raised/resolved Pre-election hearing addresses issues and disputes concerning scope of proposed unit and voter eligibility Pre-election hearings limited to only fundamental questions concerning NLRB jurisdiction and whether election bar exists Most issues concerning unit and voter eligibility are deferred to postelection proceedings 15

16 What s Changed? Current Parties have right to file post-hearing briefs within seven days of hearing, with permissive extensions New Oral argument allowed before close of hearing No post-hearing briefs unless RD determines they are necessary RD schedules election days after decision and direction of election to allow filing of request for review with NLRB day scheduling parameter is eliminated Most requests for NLRB review of RD decisions are deferred to postelection 16

17 What s Changed? Current Employer must provide Excelsior voter list with names and home addresses Due seven days after RD decision or approval of stipulated election agreement Board required to review every aspect of most post-election disputes New Employer must provide Excelsior voter list with names, home addresses, personal phone numbers, and personal addresses (if available) Due two days after RD decision or approval of stipulated election agreement Board s review of post-election disputes is more limited and subject to discretion 17

18 Practical Impact of the New Rules Median 38 days Maximum 42 days Current Pre-election hearing and unit issues Opportunities to seek NLRB review Petition RD Decision and Direction of Election Election days (likely) New Limited hearing and unit issues Limited opportunity for NLRB review Petition DDE Election 18

19 Practical Impact of the New Rules days (likely) Union campaign likely ongoing for 6+ months Limited hearing Limited opportunity for NLRB review Petition DDE Election 19

20 What s Next? Legal challenges likely Focus on claimed due process/first Amendment flaws in rules Grounds for prior invalidation by D.C.D.C. have been cured Member Schiffer off/member McFerran on unlikely shift in Board position or agenda in near future Employers should prepare for life under the new rules 20

21 Recommendations Labor relations strategy must become even more proactive vs. reactive The best counter-campaign is a sustained employee engagement effort Principal focus should be on positive aspects of workplace Not the negatives of having union Cannot begin when the petition is filed Too little, too late 21

22 Recommendations (cont d) Candidly assess your position on unionization What is our labor relations philosophy and policy? What is senior management s awareness of risks? What is their commitment level? What resources is the organization prepared to dedicate to: Sustained employee engagement Development and execution of game plan for responding to organizing effort Who is responsible for executing organization s plan? Pace of election will make sustained pondering challenging 22

23 Recommendations (cont d) Candidly assess your organization s strengths and risks How effectively do you measure employee satisfaction? How effectively do you address risks that are identified? How effective is your management team in sustained engagement? How effective do you track external pressures? Organizing activity in peer/geographically-proximate companies Market terms and conditions of employment How effective and sustained are your training efforts? Positive employee relations and engagement Recognizing signs of organizing 23

24 Recommendations (cont d) Develop a plan for moving forward Risk assessment: baseline and going forward Action items for addressing identified risks Evaluate existing training and hiring programs Consider role of counsel to establish, maintain privilege where appropriate 24

25 Other Notable Developments

26 Purple Communications, Inc. Employees have presumptive right to use employer s for protected communication (including union organizing) during nonworking time So, two options to eliminate employees new right : Don t give access to , at all; or Rebut presumption by establishing undefined special circumstances Total ban: unlikely, the rare case Controls over systems: must be uniform, consistently enforced, necessary to maintain production and discipline 26

27 Micro-Units Specialty Healthcare, 357 NLRB No. 83 (2011) A union s petitioned-for bargaining unit should be upheld To overcome, employer must show another group shares an overwhelming community of interests with the proposed bargaining unit Macy s Inc., 361 NLRB No. 4 (July 22, 2014) Proposed unit was appropriate Board rejected arguments based on common employment terms and proximity Neiman Marcus Grp., 361 NLRB No. 11 (July 28, 2014) Board rejected proposed unit Proposed unit did not follow existing administrative or operational lines 27

28 Recommendations usage Evaluate your current solicitation/distribution policy to ensure compliance Evaluate your current monitoring efforts Micro-units Assess where your organization might be vulnerable to such efforts Consider appropriate steps to mitigate possible risks 28

29 Questions?

30 Thank You. Derek Barella Partner Chicago +1 (312) Bill Miossi Partner Washington, D.C. +1 (202) Joseph Torres Partner Chicago +1 (312)