Presenting a live 90‐minute webinar with interactive Q&A

NLRB: Key Labor Law Developments for Union and Non‐Union EmployersComplying with New Decisions and Rules Impacting Social Media, Decertification, Election Procedures and More

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, JANUARY 18, 2012

Today s faculty features:

Douglas Darch, Partner, Baker & McKenzie, Chicago

James F. Hendricks, Jr., Partner, Ford & Harrison, Chicago

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PresentersJim HendricksJim HendricksFord & HarrisonChicago, Illinois312 960 6118312-960-6118jhendricks@fordharrison.com

Douglas DarchBaker & McKenzieChicago IllinoisChicago, Illinois312-861-8933douglas.darch@bakermckenzie.com

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Agenda

– Welcome & Introduction – Use of Social Media by Employees as a Protected Activity

U d N ti l L b R l ti A tUnder National Labor Relations Act– Decision in KNAUZ BMW

Mini Micro Minority Bargaining Units– Mini – Micro – Minority Bargaining Units– Biggest Changes in NLRB decisions– Proposed Election Timelines and Decertification– Proposed Election Timelines and Decertification

Procedures– Questions & Answers (we hope!)

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SOCIAL MEDIA: WHAT IS IT?

• TwitterF b k• Facebook

• LinkedIn• MySpace• Blog (web log)Blog (web log)

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NATIONAL LABOR RELATIONS BOARD (NLRB) WHO ARE THEY?( ) O

Established by the NLRB in 1935 to protect employees’ rights under § 7: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 collectivelyto 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 thehave 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].

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• Applies to both union and non union• Applies to both union and non-union employees.Th f i E l• Therefore, a non-union Employer may be met with unfair labor practice h b th NLRB k i thicharges by the NLRB knowing nothing

about what this is!

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WHAT IS “PROTECTED, CONCERTED ACTIVITY?”CONCERTED ACTIVITY?

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Facebook: The new water cooler!“PROTECTED”• To be protected the posts must be• To be protected, the posts must be

about employees’ terms and conditions of employment.of employment.

• Most common: wages/benefitstreatment by supervisorstreatment by supervisorswork assignmentsdiscipline of employees

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“CONCERTED”Social media communication must normallyinvolve 2 or more employeesNOT “griping” or solely for the benefit of one individualCOULD be a posting by 1 individual may beCOULD be a posting by 1 individual – may be posting a group complaint if previously discussed with other employeesThe Board has found calling supervisors “liar and a bitch,” “an egotistical f_ _k” and a “f_ _king son of a bitch” protected!

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a bitch protected!

RECENTLY REPORTED CASESHISPANICS UNITED OF BUFFALO (03-CA-027827)Complaints by employee about other employee job performance; others criticized her for her complaints sheperformance; others criticized her for her complaints she posted.Employer terminated those critical of the employee posts as p y p y p“bullying” and “harassment.”ALJ: Criticism was “protected, concerted activity.” Employees don’t lose protection of the Act by engaging inEmployees 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).

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KNAUZ BMW CASE (13-CA-46452)B k dBackground:

Ultimate Driving Event-posting Land Rover Accident-posting Land Rover Accident-posting Termination NLRB Press Release

• Facebook postings Hot dogs – protected

A id t t t t d Accident – not protected

Board filed “exceptions” to ALJ decision.

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What’s Next?

• Will “place of discussion” affect NLRB analysis?analysis?

• Does it matter if employees post while t k k ti ?at work v. non-work time?

• Does it matter if using company v. private computer?

• Scrutinizing work rules.

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g

Mini – Micro – Minority Bargaining UnitsThe Appropriate Bargaining UnitThe 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 p y grights 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 ”craft unit, plant unit, or subdivision thereof.

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Presumptively Appropriate Units

– The Act– Employer unit

Craft unit– Craft unit– Plant unit– Subdivision thereof

– By Decision– Single terminal unit (truck drivers)

System wide unit (public utilities)– System-wide unit (public utilities)– Service & Maintenance unit (Nursing homes)– Skilled maintenance unit (Nursing homes)

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Community of Interest Factors

Focus: How Employer has chosen to structure its workplace.

P B i i ill ithi b d i th tPurpose: Bargaining will occur within boundaries that make sense in the employer’s particular workplace.p

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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)between classifications)– Functionally integrated with other employees– Frequent contact with other employees– Frequent contact with other employees– Interchange with other employees– Distinction terms and conditions of employment

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Distinction terms and conditions of employment

Community of Interest Factors (cont.)

– Separately supervised– Similarity of wages– Similarity of benefits– Similarity of working conditions

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Micro – Mini – Minority Units

Specialty Healthcare (2011)Step 1 – Is petitioned-for proposed unit “readily identifiable

h i il it f f ti d killas a group whose similarity of function and skills create a community of interest”?(A cohesive unit relatively free of conflict of ( yinterest)

Step 2 – Is the petitioned-for unit clearly inappropriate? “O h l i it f i t t” d fi d“Overwhelming community of interest” defined as traditional community of interest factors overlap almost completely. (Burden of proof on employer.)

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Changes in Presumption Re: Majority SupportSupport

– Voluntary Recognition – Union presumed to have majority t f 6 t 12 th (L L b t t)support for 6 to 12 months (Lee Lumber test)

Lamons Gasket Company, 357 NLRB No. 72– Successor Employer – If successor assumes CBA termsSuccessor Employer If successor assumes CBA terms

then bargains – 6 months. If successor sets initial terms before bargaining – 6 to 12

th (L L b t t)months (Lee Lumber test)UGL – UNICCO Service Co. 357 NLRB No. 76

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Access to Premises

Contractor’s off-duty employees have access to host employer’s premises to same extent as host employer’s employeesemployees.New York, New York, LLC, 356 NLRB No. 119Nova Southeastern University 357 NLRB No 74Nova Southeastern University, 357 NLRB No. 74

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Hostile Work Environment Receives Protected StatusProtected Status

– Telling employees to refrain from taunting, making verbal h i l th t i i f t ti lor physical threats, engaging in confrontational

conduct: Held - unlawfulTenneco Automotive, 357 NLRB No. 84

– Posting memo reminding employees of admittedly lawful anti-harassment policy during organizing

i H ld l f lcampaign: Held - unlawful Boulder City Hospital, 355 NLRB No. 203

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Hostile Work Environment (cont.)

– Discharge of all members of employee delegation which physically restrained a manager during aconfrontation: Held unlawfulconfrontation: Held - unlawfulLaGuardia 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 dischargedcould not be discharged.

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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”: Heldsupervisor had better bring his boxing gloves : Held -unlawfulKiewit Power Constructors Co., 355 NLRB No. 150

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Good News for Employers

– Filing of union-financed lawsuit during union electionA. If filed during critical period constitutes objectionable

conductconductB. If filed outside critical period not objectionable

Stericycle, Inc., 357 NLRB No. 61Stericycle, 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,

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,

Message for Employers

1. Plan Ahead– Structure Workplace to avoid micro units– Train managers and supervisors

2. Develop and Implement PoliciesEg Policy to (i) periodically remind employees of existingEg. Policy to (i) periodically remind employees of existing policies, or (ii) remind employees after complaints made.

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NLRB REQUIRES PRIVATE EMPLOYERS TO POST “EMPLOYEE RIGHTS” POSTER

The NLRB, by rulemaking, has now required private sector employers, covered by the NLRA, y yboth unionized and non-unionized, to put an “Employee Rights” notice advising employees of their rights under the National Laborof their rights under the National Labor Relations Act (NLRA).

At the request of a federal judge, this posting q j g , p grequirement has been postponed until April 30, 2010.

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Lawsuit Filed to Stop Implementation of Amended Rulep

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 theviolates the Administrative Procedures Act and the Regulatory Flexibility Act. See Chamber of Commerce v. National labor Relations Board (D. D C December 20 2011)

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D.C. December 20, 2011).

WHAT IS REQUIRED?The Board’s rule requires employers covered by the NLRB to post this notice “in conspicuous places where [it] is readil seen b emplo ees incl ding all places[it] is readily seen by employees, including all places where notices to employees concerning personnel rules or policies are customarily posted.” The notice

i t d t l t l h trequirement 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

titi h th B d h b f d t tentities over whom the Board has been found not to have jurisdiction or over which the Board has chosen not to assert jurisdiction.

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WHAT IS REQUIRED?U d h fi l l ll i l bj h NLRB’• 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 atIn 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 thoseemployer 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

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language.

CONSEQUENCES?The NLRB has stated that an employer’s failure to post the required notice will constitute anto 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 k i f il t l ith th i tknowing failure to comply with the requirement to post as evidence of an unlawful motive in any unfair labor practice case

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unfair labor practice case.

NLRB PUBLISHES AMBUSH ELECTION RULEELECTION RULE

The National Labor Relations Board (NLRB) has published its final rule amending its electionhas published its final rule amending its election procedures, which will ultimately result in a shorter time period between the filing of an

l i i i d h d f h l ielection petition and the date of the election. These new “ambush election rules” will give Big Labor what it wants – quicker elections thatLabor what it wants quicker elections that deny employers a meaningful opportunity to educate employees on the risks and di d t f i t ti

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disadvantages of union representation.

NLRB PUBLISHES AMBUSH ELECTION RULEELECTION 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

ti f t ti C tl i h th li ibilitquestion of representation. Consequently, issues such as the eligibility 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

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not subject to the hearing officer’s discretion.

Current Election Process - Stipulation

• 92% of cases result in stipulation of unit and election date

• Average time from petition to election where the parties ti l t i 38 dstipulate is 38 days

• Unions won 68.5% of elections in 2009; similar in 20102009; similar in 2010

• Many employers first receive notice upon receiving the petition

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p g p

Current Election Process – No Stipulation• Non-adversarial proceeding• Hearing can allow for extended delay in

election processAll f i ifi t t f ti t• Allows for significant amount of time to campaign and inform employees

• Review from the NLRB available midstreammidstream

• Allows for litigation of supervisory status and unit determination issues before the election

• Ballots may be impounded for years before NLRB makes decision

Proposed Election Process - Stipulation

• Shortens period of time to decide whether to stipulate from 14 days to 7to 7

• Excelsior list due 2 days after stipulation rather than 7p

• Unions is entitled to 10 days to use Excelsior list, but could waive a portion to speed up electiona portion to speed up election

• Bottom line – elections in half the time or less

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Proposed Election Process – No Stipulation• Adversarial hearing• New requirements: preliminary voter list

and statement of positionRi ht t liti t i i d if t• Right to litigate issues waived if not raised in statement of position

• Hearing process drastically differentLiti ti f li ibilit i l th• Litigation of eligibility issues less than 20% of unit deferred until after election

• No ability to obtain review from NLRB• Hearing officer has ultimate decision• Hearing officer has ultimate decision-

making authority• Briefing at discretion of hearing officer• Bottom line – entirely different process

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• Bottom line – entirely different process

NLRB PUBLISHES AMBUSH ELECTION RULEELECTION 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

h t b lid t d ith t f i fany such request can be consolidated 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 th i d iotherwise 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 y q yfollowing 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’

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election cases and provides that Board review of regional directors resolution of such disputes is discretionary.

Staying Union-Free Under the Proposed Rulesp

• Awareness: More focus on the “pulse” of the workplace – be aware of common grievances and correct (not after becoming a are ofand correct (not after becoming aware of union activity)

• Training: Train supervisors in advance ofTraining: Train supervisors in advance of what to look for – early identification allows for additional campaign timePl i C t ti l d t• Planning: Create an action plan and act quickly when union activity is occurring – you may only have two weeks to campaign!

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