From the Front Lines of the American Workplace-- An Update on Recent Decisions and the New "Ambush" Election Rules From

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1 1 From the Front Lines of the American Workplace-- An Update on Recent Decisions and the New "Ambush" Election Rules From the National Labor Relations Board April 21, 2015 Michael S. Pepperman, Esq. Obermayer Rebmann Maxwell & Hippel LLP One Penn Center 1617 JFK Blvd., 19 th Floor Philadelphia, PA (215) Peter List Scott C. Heckman, Esq. Kulture, LLC & LaborUnionReport.com St. Luke s University Health Network P.O. Box Ostrum Street Pawleys Island, SC Bethlehem, PA (973) ` (484) peter@laborunionreport.com heckmasc@slhn.org

2 2 Unions Are BIG Business! Businesses need $$$ (dues, fees, fines, etc.) to stay in Business.

3 3 The National Labor Relations Board & Elections History of the NLRB/NLRA 30% showing of interest/petition/demand for recognition if majority obtained Stipulated election agreement or NLRB hearing (limited under new rules) Election within 42 days/campaign (under new rules days) Election day Objections Bargaining Unfair labor practice charges (ULP s) Micro-Units (Specialty Healthcare) New NLRB Election Rules for 2015

4 4 THE NLRB AND GENERAL COUNSEL

5 5 Richard F. Griffin, Jr. General Counsel (D) Richard F. Griffin, Jr. was sworn in as General Counsel of the National Labor Relations Board on November 4, 2013 for a four year term expiring in Mr. Griffin previously served as General Counsel for International Union of Operating Engineers (IUOE). He also served on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he held since Since 1983, he has held a number of leadership positions with IUOE from Assistant House Counsel to Associate General Counsel. From 1985 to 1994, Mr. Griffin served as a member of the board of trustees of the IUOE s central pension fund.

6 6 Mark Gaston Pearce Chairman of the Board (D) Mark Gaston Pearce was named Chairman of the National Labor Relations Board by President Obama on August 27, On August 23, 2013 he was sworn in for a second term that expires on August 27, Pearce was a founding partner of a Buffalo, New York law firm, where he practiced union and plaintiff side labor and employment law. Prior to his entry into private practice, Mr. Pearce was an attorney and District Trial Specialist in the Buffalo NY Regional office of the NLRB.

7 7 Board Member (D) Kent Y. Hirozawa Kent Y. Hirozawa was nominated by President Obama on July 16, 2013, and confirmed by the Senate on July 30, 2013, for a term that expires on August 27, He served as chief counsel to National Labor Relations Board Chairman Mark Gaston Pearce from April 2010 until he was sworn in as a Board member on August 5, Mr. Hirozawa began his career as a NLRB field attorney after clerking in the U.S. Court of Appeals for the Second Circuit. Prior to returning to the Board, he represented unions, workers and employee benefit funds for more than twenty years.

8 8 Lauren McFerran Board Member (D) Lauren McFerran was sworn in on December 17, 2014 for a five year term ending on December 16, Previous to her appointment to the NLRB, Ms. McFerran served as Chief Labor Counsel for the Senate Committee on Health, Education, Labor, and Pensions (HELP Committee) and had also served the Committee as Deputy Staff Director. She began on the HELP Committee as Senior Labor Counsel for Senator Ted Kennedy and Senator Tom Harkin in 2005 and served in that capacity until 2010.

9 9 Board Member (R) Harry I. Johnson, III Board Member Johnson was sworn in on August 12, 2013 for a term that expires on August 27, Harry I. Johnson, III was a partner with several management side law firms and was recognized by The Daily Journal as one of the Top Labor & Employment Attorneys in California.

10 10 Board Member (R) Philip A. Miscimarra Philip A. Miscimarra was sworn in as a Member of the National Labor Relations Board on August 7, 2013 for a term that expires on December 16, Mr. Miscimarra previously was a management side labor and employment law lawyer with several management side law firms.

11 NEW NLRB AMBUSH ELECTION RULES: HOW CAN UNIONS LOSE??? 11 Unions won approximately 70% of the NLRB Elections that were held in Elections typically held approximately days after a NLRB petition is filed. If there is a pre-election NLRB hearing, this time period can be longer. The New NLRB Election rules would mean elections held approximately days after a petition is filed!!! Union win rate could be 90% or higher! Employers will have very little time to react.

12 12 New NLRB Representation Case-Procedures Fact Sheet Be Ready For April 14, 2015!!! The National Labor Relations Board s (NLRB) Final Rule governing representation-case procedures is designed to remove alleged unnecessary barriers to the resolution of representation questions. According to the NLRB, the Final Rule will streamline Board procedures, increase transparency and uniformity across regions, eliminate or reduce unnecessary litigation, duplication and delay, and update the Board s rules on documents and communications in light of modern communications technology.

13 13 Background on Representation - Case Procedures Representation petitions are filed by employees, unions and employers seeking to have the NLRB conduct an election to determine if employees wish to be represented for purposes of collective bargaining with their employer. The Board will investigate these petitions to determine if an election should be conducted and will direct an election, if appropriate.

14 14 Background on Representation - Case Procedures In most instances, the parties agree on the voting unit and other issues. If the parties do not agree, the NLRB s regional office holds a pre-election hearing to determine whether an election should be conducted. The NLRB s regional office conducts the election and, if necessary, holds a post-election hearing to resolve challenges to voters eligibility and objections to the conduct of the election or conduct affecting the results of the election. Parties can seek Board review of regional determinations made before and after the election.

15 15 Modernizing Board Procedures Electronic Filing/Communications Parties may file documents, such as petitions, electronically, rather than by fax or mail. Parties and the NLRB s regional offices can transmit documents electronically, rather than using slower or more expensive forms of communications, such as mail or express delivery services.

16 16 Modernizing Board Procedures Election Voter List The employer must include available personal addresses and phone numbers of voters on the voter list in order to permit non-employer parties to communicate with prospective voters about the upcoming election. List to be provided within two (2) business days (reduced from seven (7) days). Currently, just names and addresses are provided.

17 Streamlining Board Procedure and Reducing Unnecessary Litigation Identifying Disputed Issues The nonpetitioning parties (typically, the Employer) will be required to respond to the petition and state their positions generally the day before the pre-election hearing opens. The petitioner will be required to respond to the issues raised by the non-petitioning parties at the opening of the hearing. Litigation inconsistent with the positions taken by the parties will generally not be allowed. 17

18 Streamlining Board Procedure and Reducing Unnecessary Litigation 18 Litigation of Eligibility and Inclusion Issues Generally, only issues necessary to determine whether an election should be conducted at all will be litigated in a pre-election hearing. A Regional Director may defer litigation of eligibility and inclusion issues affecting a small percentage of the appropriate voting unit to the post-election stage if those issues do not have to be resolved in order to determine if an election should be held. In many cases, those issues will not need to be litigated because they have no impact on the results of the election.

19 Streamlining Board Procedure and Reducing Unnecessary Litigation 19 Post Hearing Oral Argument and Briefs All parties will be provided with an opportunity for oral argument before the close of the hearing. Written briefs will be allowed only if the regional director determines they are necessary Good luck!!!

20 Streamlining Board Procedure and Reducing Unnecessary Litigation 20 Review of Regional Director Rulings The parties may seek review of all regional representation-case rulings through a single post-election request, if the election results have not made those rulings moot. The election will no longer be stayed after the regional director issues a decision and direction of election, in the absence of an order from the Board.

21 Streamlining Board Procedure and Reducing Unnecessary Litigation 21 Review Standard for Post-election Issues The Board will have the discretion to deny review of regional director post-election rulings, under the same standard that has governed Board review of regional director pre-election rulings for many years.

22 22 Standardizing Board Process Earlier and more detailed information to the parties When the petitioner files its petition, it will be required to simultaneously serve a copy of the petition, along with a more detailed description of representation case procedures and a Statement of Position form, on all parties identified in its petition in order to provide them with the earliest possible notice of the filing of the petition. NLRB regional offices will serve a Notice of Hearing and a Notice of Petition for Election (along with a copy of the petition, description of representation case procedures and the Statement of Position form) on all parties.

23 23 Standardizing Board Process Earlier and more detailed information to the parties The non-petitioning parties will be required to respond to the petition (generally the day before the hearing opens) by filing with the regional director and serving on the other parties a Statement of Position identifying the issues they have with the petition. As part of its Statement of Position, the employer will be required to provide all other parties with a list of prospective voters, their job classifications, shifts and work locations.

24 24 Standardizing Board Process Earlier and more complete information to employees - The employer is required to post a Notice of Petition for Election containing more detailed information on the filing of the petition and employee rights within two (2) business days of the region s service of the petition. The Notice of Election will provide prospective voters with more detailed information about the election and the voting process.

25 Increasing Transparency and Standardizing Board Process 25 Scheduling of Hearings Except in cases presenting unusually complex issues, preelection hearings will generally be set to open eight (8) days after a hearing notice is served on the parties. Post-election hearings will generally open fourteen (14) days after objections are filed.

26 RECENT NLRB DEVELOPMENTS 26

27 27 HARSHER NLRB REMEDIES FOR ULP S Requiring an ER to reimburse a union for Coll. Barg. costs because of bad faith bargaining. Requiring ER to mail and notice to EE s. Requiring management rep. to read Board decision and order aloud to employees in presence of NLRB Agent and Union BA.

28 28 HARSHER NLRB REMEDIES FOR ULP S Requiring NLRB Agent access to premises to inspect and confirm compliance. Requiring ER to pay NLRB s litigation fees and costs, as well as, the Union s fees and costs. Requiring ER to reimburse Union for legal fees (per diems) for bargaining.

29 29 WHAT TO LOOK FOR IN 2015 GOP control of both Houses of Congress What will they do to control the NLRB? Will Ambush Election Rules survive court challenges? How far will the Board push Specialty Healthcare (Micro-Units)? How far will the Board go in expanding its jurisdiction? College athletes? Graduate Assistants? Religious Universities?

30 30 WHAT TO LOOK FOR IN 2015 What will the impact be on the NLRB s reversal of long standing precedents? Purple Communications (ER s internet ok for organizing), Northwestern University (scholarship athletes are employees), Browning-Ferris (joint-employers) and McDonald s USA (franchisor and its franchisees are joint employers according to the NLRB GC)? Social media cases? Employee Handbooks?

31 Facebook Cases Keep On Coming!!! Pier Sixty, LLP (NLRB April 1, 2015) Employee discharged for posting on Facebook the following comment about his manager whose name was McSweeney: McSweeney is a NASTY MOTHER F@$#%* and a LOSER F*&# his mother and his entire family.vote YES for the UNION. Was the termination upheld or reversed by the NLRB???

32 THE NLRB S EXPANSION OF PROTECTED CONCERTED ACTIVIY Jimmy John s, 361 NLRB No. 27 (2014) 32

33 33 The Board held that the posting and distribution by employees of the poster was protected even if the publicat-large could conceive it as prejudicial to Jimmy John s. The Board rejected Jimmy John s argument that the poster was malicious and the employees who circulated it were disloyal. The Board based its rationale on three factors: 1. The poster was related to a labor dispute; 2. the poster conveyed a basically truthful account of the experiences of employees under a disputed practice or policy (sick days); and 3. the poster was calculated to enlist the assistance of the public in changing the disputed policy/practice.

34 A Word About Micro-Unions a/k/a Mini Bargaining Units In 2011 the NLRB issued its Specialty Healthcare decision which created a new standard for determining bargaining units. It is now possible for unions to organize small groups of employees into micro-unions even in non-healthcare facilities. Employers now have to show an overwhelming community of interest between groups of employees to rebut the unit selected by a Union very high standard! 34

35 35 A Word About Micro-Unions a/k/a Mini Bargaining Units Unions are now able to pick and choose small groups of employees to organize (e.g., LPN s as opposed to a traditional group of nursing home workers such as dietary, recreation, etc. or cashiers only as opposed to other supermarket employees such as meatcounter, stock employees, etc.). Much easier to organize small groups of employees Could create a domino effect at the workplace!!! Overruled years of precedent---encourages unions to engage in incremental organizing in the smallest units possible.

36 36 WHY EMPLOYEES JOIN UNIONS 1. Unfair and harsh treatment by immediate supervisor employees believed they could get even with management for real or imagined wrongs. 2. Little, if any, personal recognition employees believed they should at least get some recognition from their employer.

37 37 WHY EMPLOYEES JOIN UNIONS 3. Lack of fair discipline. 4. Fear of job security employees felt they would have greater safety and job security in numbers. Will the company close? 5. No confidence in management leadership. 6. Illusory open door complaint procedure.

38 38 WHY EMPLOYEES JOIN UNIONS 7. Failure of management to foster employee identification with the company belief that union membership would compensate for lack of workplace identity. 8. Favoritism. 9. Inadequate benefits. 10.Noncompetitive wages.

39 39 The Three Important Rules of Employee Relations Do unto others... Communication. Communication. Communication. If it feels good... DON T DO IT!

40 An ounce of prevention, in five easy steps 40 Copyright. Kulture, LLC All Rights Reserved.

41 41 What You Should Be Doing 1. Assessing your vulnerabilities 2. Engage your employees 3. Manage your mutants 4. Train your management team 5. Educating employees on unions & their tactics If you wait, it may be too late Copyright. Kulture, LLC All Rights Reserved.

42 42 1. How vulnerable are you? Measure your vulnerability Employee Satisfaction Surveys (UV Audits) Ask: What s the good, the bad & the ugly? Check the pulse of your relationship: How are WE doing? Copyright. Kulture, LLC All Rights Reserved.

43 43 2. Engage You're Employees Establish your culture early and often Ensure your living and demonstrating your culture Don t just preach it, live it Monthly Round Table Meetings One-on-one s The Mama Campaign What are you doing OUTSIDE the company Don t forget to toot your own horn! Don t forget the three most important words in managing Copyright. Kulture, LLC All Rights Reserved.

44 44 3. Manage your mutants Fair, Firm and Consistent Set the expectations clearly Manage up, or manage out Document, document, document Just cause discipline When in doubt, get em out If, in probation, they are giving you warnings, it is NOT going to get any better Copyright. Kulture, LLC All Rights Reserved.

45 45 4. Train your management team Employee Relations If you promote from within, give training as well Positive Employee Relations Practices Labor Relations Causal Factors What to watch for Do s & Don ts IF YOU THINK TRAINING IS HARD TRY LOSING. Copyright. Kulture, LLC All Rights Reserved.

46 46 5. Educate Employees on Union Tactics Only IF you are doing Steps 1 4 If you believe you re a target, inoculate your workforce New hire orientation Ongoing communications Continually monitor reaction Elicit (not solicit) feedback Copyright. Kulture, LLC All Rights Reserved.

47 QUESTIONS???? 47