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UNION AVOIDANCE – WHAT IS
YOUR GAME PLAN?
September 22, 2011
Presented by:
Michael D. Carrouth, Partner Fisher & Phillips LLP
Human Resource Managers Annual Meeting
OVERVIEW
Rules for Union Activity Have Changed
Rules for Union Activity Will Likely
Continue to Change
Prepare Your Game Plan Now
Important Items to Consider
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PRESENT ORGANIZING PARADIGM
• Startup
• Research
• Targeting
• Initial Contact
• List Building
• Election/Recognition
• Demand Recognition
• File Petition for Election
• Actions
• Leverage Campaign
• First Contract
• Mobilize
• Leverage
• Bargaining
• Building A Majority
• Committee Building
• One-on-One Communications
• Election
42 Days
Union Advantages & Disadvantages with
Current System
Union Advantages
Timing of Activity
Timing of Petition
Very few Limits on Communications
Manipulation of Election Procedures
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Union Advantages & Disadvantages with
Current System
Union Disadvantages
Generating Employee Interest
Cannot get Employee Names & Addresses
Limits on Cherry Picking the best Unit
No Access to Employer Property
Extended Election Process hurts Unions’
chances of winning elections
Secret Ballot Vote
Limited Remedies for Violations of NLRA
(ULP’s)
Difficulties in Getting First Contract 5
EMPLOYEE FREE CHOICE ACT
Secret Ballot Vote
Limited Remedies for Violations of
NLRA (ULP’s)
Difficulties in Getting First Contract
EFCA is DEAD
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New National Labor Relations Board
Lafe Solomon
General Counsel
Wilma Liebman
Appointed Chair 2009
Democrat
(GONE)
Chair has history of promoting labor-friendly rulings
Becker is viewed as “radically” pro-labor
General Counsel has reputation for pro-labor rulings
Newly nominated NLRB members
Craig Becker
Democrat
Brian Hayes
Republican
(Thru 08/12)
Mark Pearce
Democrat
(Thru 08/13)
Nominated
Chairman
Terence Flynn
Republican
Nominee (Thru 08/15)
Recess Appointment Not Confirmed By Senate
(Serving to End of 2011)
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NLRB ASSISTANCE TO UNION
ORGANIZING
Generate Interest = NLRB Posting Rule
No Employee Names & Addresses = New
NLRB Remedies
Extended Election Process = Proposed New
Election Rules
No Access to Employer Property = New
NLRB Remedies
Limits on Cherry Picking the Best Unit =
Recent NLRB Decision
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GENERATING INTEREST IN
UNIONS
NLRB POSTING REQUIREMENT
NLRB Final Rule Implemented
Posting Requirement Effective 11-14-11
Very slanted explanation of “Employee
Rights”
Lawsuits have been filed to Challenge
Union objective has been accomplished
= Generating Interest
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What is your Game Plan?
No one size fits all Game Plan
Look at situation/employee relations
Everyone should train management team
Train on posting requirement
Train on how to lawfully answer questions
Current Union activity – Inoculate?
Future Union activity likely – Inoculate?
Low Risk of Union Activity
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GETTING NAMES &
ADDRESSES TO UNION
FASTER
EXPANDED ULP REMEDIES
12-20-10 NLRB General Counsel
expanded remedies for ULP’s occurring
during union activity
Specifically authorizes the NLRB to use
injunctive relief to force employers to
turn over names and addresses earlier
Union Objective has been accomplished
= Get Names & Addresses Earlier
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What is your Game Plan?
Ensure Policies are legal
Train Management Team
Confirm legal sufficiency of all
Communications
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LETTING UNIONS CHERRY
PICK THE BEST UNIT
MINI UNITS
Specialty Healthcare – Recent Decision
Present Rule: Community of interest
New rule?: All employees in the same
job unless Employer can show
“Overwhelming Community of Interest”
Certified Nursing Assistants
All poker dealers in casino, excluding
blackjack dealers
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MINI UNITS
Problems with new rule:
Fractured units
Bargaining is more costly
Bargaining is less likely to succeed
More strikes
Union Objective has been Accomplished =
Unions Can Cherry Pick Best Unit
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What is your Game Plan?
Analyze Your Workforce
Decide if “Mini Unit” is a Risk
Determine if “Strategic Adjustments”
are worth the effort
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GIVING UNIONS ACCESS
TO COMPANY PROPERTY
EXPANDED ULP REMEDIES
12-20-10 NLRB General Counsel
expanded remedies for ULP’s occurring
during union activity
Specifically authorizes the NLRB to use
injunctive relief to give unions access to
Employers’ Property
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UNION ACCESS
Bulletin Boards and Computer Networks:
Require employers to permit union access
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UNION ACCESS
Non-Work Areas: Grant union
representatives access to non-work areas
during non-work time
Break room
Parking lot
Arranged times
Potential for confrontations and ULP’s
Shows union clout
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UNION ACCESS
Equal Access: Require employers to provide
Unions equal access to respond to Company
communications regarding representation
Give copy of communications
Post union response
Give union representative equal time in
meetings
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UNION ACCESS
Union Speech: Require employers to
provide unions the right to deliver a speech
prior to election on Company property
Right before election
Hurts momentum
Pay employees to listen to the union
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NEW UNION ORGANIZING
STRATEGY
File numerous ULP’s
NLRB files lawsuit and requests 10(j)
injunction
Make companies spend money to defend in
court
Costs the union nothing
Intimidate Company into not communicating
with employees
Union Objective has been Accomplished =
Unions Can Get Access to Employer Property
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What is Your Game Plan?
Understand the legal requirements
Train managers and supervisors extensively
Beyond TIPS
Protected concerted activity
Solicitation/distribution
Why a Company does not want a union
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GIVE UNIONS SHORTER
ELECTION PERIODS
NLRB PROPOSED RULE
EXPEDITING ELECTIONS
NLRB Proposed Rule issued 6-21-2011
Comment Period Ended 8-22-2011
Reply Period Ended 9-6-2011
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NLRB PROPOSED RULE
EXPEDITING ELECTIONS
Fair Representation in Elections Act 2011
Senator DeMint
No Election in less than 40 days
Determine appropriate bargaining unit be determined prior to an election
Require the Board to provide at least 14 days’ notice of a pre-election hearing
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NLRB PROPOSED RULE
EXPEDITING ELECTIONS
No election until a hearing is conducted on “any and all material, factual issues regarding jurisdiction, statutory coverage, appropriate unit, unit inclusion or exclusion, or eligibility of individuals”
Require a Regional Director or the Board to resolve all issues, subject to appeal and review, prior to an election
Require the Board to rule on each pre-election issue and all issues related to the conduct or results of the election itself before the results can be certified.
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NLRB: QUICK ELECTIONS
Current Rule: 42-day elections
Proposed Rule: 10-21 day elections
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Union objective will be accomplished =
Easier to Win Union Vote
No time for Company:
To resolve issues
To ramp up communications with employees
To educate employees on unions
To activate managers and supervisors
To overcome Union intimidation
To show we care
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QUICK ELECTION: NO TIME TO
RESOLVE ISSUES
Solution: Resolve issues now
Resolve issues prior to Union activity
Keep the issues resolved
ISSUE IDENTIFICATION PLAN
Track all issues in writing
Resolve or defuse issues
Communicate to managers,
supervisors, and team members
“Quality program” for team members
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QUICK ELECTION: NO TIME
TO COMMUNICATE
Improve communications
Determine communication deficiencies
now
Develop communications plan in writing
Verbal
Written
Effective
Efficient
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QUICK ELECTION: NO TIME TO
EDUCATE EMPLOYEES
Solution: Preemptive talks
Build a foundation now
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QUICK ELECTION: NO TIME TO
SHOW WE CARE
Solution: Proactive Employee Relations
Plan
Manage in a way that shows we care
Accountability
Measure results
“Preventive maintenance” for employees
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QUICK ELECTION: NO TIME TO
CAMPAIGN
Prepare to campaign now
• Train managers and supervisors • Immediate response with trained team
• Stop card signing • Front-loaded campaign • 28-day campaign scenario • 14-day campaign plan
CONCLUSION
Challenges to remain non-union will be
greater
Companies that prepare will succeed
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