Littler's Workplace Policy Institute NLRB Ambush Election Rule: The Practical Impact on Employers March 24, 2014 Presented by Maury Baskin, Michael J. Lotito, Ilyse W. Schuman Littler s Workplace Policy Institute www.littler.com/wpi
Presented by: Michael Lotito, Shareholder Littler Mendelson, P.C. San Francisco Office MLotito@Littler.com Cell: 415.722.6280 Ilyse Schuman, Shareholder Littler Mendelson, P.C. Washington, D.C. Office ISchuman@Littler.com Cell: 202.412.6399 Maury Baskin, Shareholder Littler Mendelson, P.C. Washington, D.C. Office MBaskin@Littler.com Cell: 301.922.1308 2
Today s Agenda How Did We Get Here? NLRB Ambush Election Rule DOL Update Putting the Pieces Together Littler s Workplace Policy Institute 3
How Did We Get Here? Congressional stalemate Midterm elections looming Administration is increasingly turning to Federal agencies to advance agenda 4
The New NLRB Recess appointees replaced, though Supreme Court challenge is proceeding (Noel Canning case) Board now has 5 confirmed Members 5
National Labor Relations Board Mark Gaston Pearce (D) Kent Hirozawa (D) Nancy Schiffer (D) Harry Johnson, III (R) Philip Miscimarra (R) 6
NLRB General Counsel Former Recess Appointee Richard Griffin, Jr. confirmed as General Counsel 7
NLRB Proposed Election Rules June 2011 NPRM Original NPRM published June 22, 2011 Public hearing July 18-19, 2011 65,958 comments were filed plus 438 pages of oral transcript positions articulated to NLRB December 2011 Final Rule Final rule published December 22, 2011 Did not include all proposed changes Federal district court invalidated final rule in May 2012. Board appeal dismissed 8
NLRB Proposed Election Rules February 6, 2014: NLRB re-issued June 2011 proposed rule as NPRM on representation elections (otherwise known as the quick election rule, ambush election rule or EFCAlite ) Majority says Re-issuance is the most efficient and effective rulemaking process to follow at this time. 9
NLRB Election Rule Process Comments Due April 7, 2014 Seeking comments on new issues Specialty Healthcare Blocking charges Excelsior list issues Electronic signatures Public Meeting April 10 and 11 10
NLRB Election Rule Process Anticipate 3-4 months for final rule or wait until after mid-terms but before 12-31-14 when Nancy Schiffer s term expires Lawsuits will seek to enjoin and overturn 11
Why Change Things? What the NLRB majority says The Board is proposing a number of changes to remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation What the NLRB minority says The uniform thrust of the proposed changes is to greatly reduce the time between a representation petition s filing and the election. 12
Why Change Things? 2013 Statistics Union membership rate = 11.3 percent Total workers belonging to unions = 14.5 million Private-sector union membership rate = 6.7 percent Public-sector union membership rate = 35.3 percent Median number of days from petition to election = 38 days Percentage of elections held in 56 days = 94.3% 13
Current Rules Day 1 7-14 Days 14-28 Days Approx. 20 days After Petition Election Petition Filed Hearing or Stipulation Request for Review Possible Excelsior List Due 7 days after stipulation or DDE. Election notice sent and posted no later than 3 days before election. 38-42 Days Election RD Sends to Employer Can have hearing No delay to election Names and home address Count Ballots Commerce TODAY questionnaire Open question if employer Most denied 40th Day needs to take position on unit placement issues Requests posting Suggest hearing date 7-14 days Briefs filed approximately 7 days after hearing DDE issued Might impact ballot counting - impounding Goal: election 38-42 days from petition filing 14
NPRM Day 1 Day 8 Day 10 10-14 Days 15-20 Days Election Petition Filed 7th Day Hearing Excelsior List Due 2 days after Stipulation or DDE Election Notice Sent and posted at least 2 days before election Election Post-Election Issues Immediately served on Employer RD sends mandatory poster RD sets hearing 7 days out RD requires statement stipulating o Who is in? o Who is out? o Supervisors o Contract Bar o Anything else o If not included, forever waived o Election details time, place, manner o Names, work locations, shifts, job classifications of all unit employees o Payroll period eligibility HO has discretion to have hearing if material issues HO will not conduct hearing if unit placement involve less than 20% of unit HO will not accept testimony on voter eligibility (not a QCR) No Request for Review possible Available emails addresses Job classification Location of facility Home address Available phone numbers 7 days with supporting documentation Hearing is discretionary 15
Proposed Changes Initial R Case Hearing To start 7 days from filing of petition Currently 7 to 14 days Statement of Position on Issues Employer must know its position and submit it in writing prior to the start of the hearing Failure to raise an issue amounts to a waiver Preliminary voter list Names, work location, shift, job classification 16
Proposed Changes Post Hearing Final voter eligibility list Electronic submission 2 days after unit determination made Includes email addresses and telephone numbers in addition to names and mailing addresses Board review of post-election issues Would become discretionary, leaving Regional Directors with the final word on most issues 17
What does this all mean? Union decides who they want to represent Union asserts the bargaining unit they want Employer has the burden to prove unit is not appropriate Employers now have to demonstrate the existence of an overwhelming community of interest Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (August 26, 2011) Has redefined the scope of unit determinations and is not limited to the health care industry 18
What does this all mean? The rules breach employee privacy concerns Requires substantial information about employees Phone numbers (mobile, home, and work?) Email addresses (home, work, personal?) The rules create a virtual access by unions to the workplace Access to employee work email addresses confer access to employees at work while they are working No limitations on the scope or extent of use 19
Open Questions 1. What to do with blocking charges? 2. What to do with email addresses? Where stored? How disseminated? Home or business or both How do business email addresses relate to Register Guard? How are email addresses only used for upcoming election and not beyond? For example, can a union use them for organizing if they lose election? Can union sell them? 3. What are available telephone numbers? Cell Home Work 20
Open Questions 4. Privacy Issues regarding email and telephone numbers e.g., what if phone number unlisted? 5. What do you do with questionable supervisors? Train or not train Vote or not vote Attend/not attend union meetings 6. Specialty Healthcare Units are contracting Harder to expand units Voter confusion if Employer alleges different unit 21
More Bad News Coming From The NLRB Union access to private property Union access to company email systems Finding unfair labor practices in employee handbooks Restricting social media policies Tougher remedies and injunctions The new General Counsel memo 22
To do list for Employers Make your voice heard about the rule to the NLRB Clearly identify supervisors under Section 2 (11) Do bargaining unit analysis now prepare your position Establish a clear corporate reporting structure for location responsible personnel time is critical Select counsel now no time under new rule Consider campaign in the box Establish rapid response team Conduct, measure and follow-up on location vulnerability assessment Oppose Persuader Rule 23
DOL Update 24
Emboldened Department of Labor Secretary Thomas Perez 25
The Persuader Rule Under the Labor-Management Reporting & Disclosure Act of 1959, employers and outside labor relations consultants must file disclosure reports regarding persuading employees Employer report LM-10 Labor consultant reports LM-20 and LM-21 Potential proposed rule would effectively eliminate the advice exemption Last DOL regulatory agenda scheduled publication of Final Rule in March 2014 Persuader Rule Delayed: New publication date will be announced in next regulatory agenda. 26
The Persuader Rule Many employers and their advisors will have to file reports on the internet criminal penalties Persuader activity if consultant s activity on behalf of employer in whole or in part have the direct or indirect object to persuade employees concerning their rights to organize or bargain collectively Traditional guidance received by employers in connection with union organizing efforts would no longer be considered advice May go beyond union organizing to all protected concerted activities even handbook advice and management training 27
Labor Law Reform without Congress NLRB: Quick elections DOL: Restrictions on advice NLRB Specialty Healthcare Employee Free Choice Act (by rule-making) Version 2.0 28
Questions? 29
THANK YOU Contact us anytime: Michael J. Lotito, Co-Chair of WPI mlotito@littler.com Ilyse W. Schuman, Co-Chair of WPI ischuman@littler.com Maury Baskin, Shareholder mbaskin@littler.com Littler s Workplace Policy Institute www.littler.com/wpi 30