© 2012 vedder price p.c. ima breakfast briefing: the obama labor board and its impact on...

© 2012 Vedder Price P.C.

IMA BREAKFAST BRIEFING:The Obama Labor Board andIts Impact on Manufacturers

January 18, 2012

Mon Ami GabiOak Brook Center Mall

Oak Brook


Changing the Rules of the Game: How the NLRB Is HelpingOrganized Labor

James A. SpizzoMark L. Stolzenburg

Vedder Price P.C.


Today’s Topics: Recent NLRB moves to make union organizing easier The impact of social media Recent moves by the NLRB to help unions Q&A

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The Process Is Changing:Recent NLRB Moves toEmpower Unions

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Where Are We Now? The Employee Free Choice Act (EFCA) is dead Union membership in private industry is down to 6.9%,

lowest in over a century. But they win 70% of elections 60% increase in workers organized through NLRB

elections Unions are searching for new organizing avenues Unions are using new technologies (Facebook, Twitter,

blogs) NLRB makeup is now union-friendly

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NLRB Is Pushing Union Agenda by Changing the Rules The NLRB published a new rule on

December 22, 2011 regarding election procedures

These changes are designed to speed up the time between the time that a union files a petition and an election

The main change is to generally eliminate pre election hearings, a tool that many employers find useful when trying to gain more time for campaigns

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NLRB Is Pushing Union Agenda by Changing the Rules Any questions about eligibility will not be

resolved until after an election, increasing uncertainty for employers

The new election rules will go into effect on April 30, 2012, barring a court challenge

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The Practical Impact of theProposed Changes: Assume that most elections will occur less than 42 days after a

petition is filed. Assume that employers will lose about two weeks for time to campaign

First week is critical Uncertainty among employees as to who is eligible to vote You must be up and running Union avoidance programs are more crucial than ever

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Getting Ahead of the Changes: Consider creating rapid response teams now Importance of early warning system Employee opinion surveys and a matrix for identifying high-risk

sites Enhance existing employee relations tools and skill sets Improve orientation and employee materials and keep abreast of

changes in the law

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NLRB’s Notice Posting Rule Over the summer, the NLRB finalized a rule

requiring employers to post a notice informing employees of their right to unionize

Implementation has been delayed until April 30, 2012 to allow court challenges to be decided

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Policies and Practices to Improve Morale, the Likelihood of Remaining Union Free and Productivity


Management Commitment Care About Your Employees Trained, Effective Supervisors


Communication TWO-WAY SHARE INFORMATION Communicate

Expectations Department and Small

Group Meetings Written Vehicles—

Handbook, Newsletters, Bulletin Boards

Be Visible/Accessible Human Resources Communicate to

Employees Your Desire to Remain Union-Free

LISTEN


Disadvantages of Unions To Supervisors

Lost Flexibility More Adversarial

Relationship Less Teamwork/

Cooperation Time Spent in Grievance

Activity and Negotiations Possible Work Stoppages Less Freedom to Deal

Directly with Employees

To Employees Dues, Assessments and

Fines Less Ability to Deal Directly

with Management Possible Strikes Union Politics and Rules


Discipline Reasonable, Well-communicated Rules with Known Consequences Fair Consistent Private/Respectful Thorough Investigation


Recognition Meaningful Praise Awards Celebrations Team-building/Civic/Sports Activities


Competitive Pay and Benefits


Working Conditions Safety Predictable Hours Favoritism Poor Working Environment (break areas, restrooms,

housekeeping, equipment)


Complaint Procedure Communicated Accessible Practical


No-solicitation Policy Must pertain to solicitation broadly—not just union solicitation Must be consistently applied Can entirely ban nonemployee solicitation on Company property Can ban distribution of literature in work areas Can ban solicitation during working time of employee being

solicited and employee doing the soliciting


Supervisors The Classic type that could help give a union a Toehold:

“Boss” Insecure Inconsistent Dishonest Cursing “Playboy/Playgirl” Reactionary Invisible


Supervisors How to Prevent

Selection Training Competitive Pay/Benefits Fair Treatment Recognition Two-way Communication Part of Team

continued


Employees Whom Unions Exploit Inefficient, nonproductive employee Rebellious, antiestablishment employee Chronically dissatisfied employee Cause-oriented employee Overly qualified employee Independent, happy-go-lucky employee


Early Warning Checklist The nature of employee complaints changes, and frequency

increases Employees forming in groups that include individuals who do not

normally associate with each other Large number of policy inquiries, particularly on pay, benefits and

discipline Employees in work areas they do not normally visit Avoidance of supervision-employees clam up Argumentative questions being asked in departmental meetings


Early Warning Checklist Employees passing out cards or other materials Increased activity/interaction on breaks Employees coming in early/leaving late Exit interview information indicating that people are attempting to

escape an unpleasant environment News items placed on bulletin boards about union settlements in

local companies or other industries Cartoons or graffiti that direct humorous hostility toward the

organization, management or supervision

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Early Warning Checklist A significant change in the rate of turnover, either upward or

downward A number of people applying for jobs who do not have relevant

experience and appear to be willing to work for lower status and pay than that for which their record qualifies them

An unusual interest on the part of vendors and subcontractors in communicating with employees

Nonunion people begin meeting and talking with known union members

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Early Warning Checklist Any other factor that appears to be out of the ordinary and seems

to be separating management from the work source

continued


Primary Elements of Employer Campaign Identify the Issues Supervisory Training—TIPS NLRB Process

Appropriate Bargaining Unit Election Details Voter Eligibility List

Proactive Communication One-on-One Employee Meetings Written Communications


New NLRB Is Pushing Union Agenda Through New Initiatives Boeing

Well-publicized case and the reason for congressional inquiries into the NLRB

The NLRB issued a complaint against Boeing for its decision to locate assembly of a new model of airliner in South Carolina, instead of its existing facilities in the Pacific Northwest

Boeing made a number of public statements that the reason to locate the new work in South Carolina was past strikes by the employees in the Pacific Northwest

The case went to trial before an administrative law judge

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New NLRB Is Pushing Union Agenda Through New Initiatives Boeing, continued

Before the judge could issue a ruling, the parties settled the case, reaching a collective bargaining agreement for employees in the Pacific Northwest that included certain work guarantees

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New NLRB Is Pushing Union Agenda Through New Initiatives Protections for social media and company e mail

use Hispanics United of Buffalo, Inc., Case No. 3-CA-27872

(Sept. 6, 2011) Employer violated the NLRA by terminating employees

for making workplace complaints on Facebook Arizona Daily Star, Case No. 28-CA-23267 (Apr. 21,

2011) The NLRB’s Division of Advice determined that a

reporter’s tweets about local homicides did not relate to “mutual aid or protection,” and thus were not protected by the NLRA

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use, continued Knauz BMW, Case No. 13-CA-46452 (Sept. 28, 2011)

In an NLRB case heard here in Chicago, an administrative law judge determined that an employee’s Facebook postings about an incident at another dealership owned by the same employer were not protected by the NLRA

Other cases where the NLRB’s Division of Advice examined social media cases:

Rural Metro, 25-CA-31802 (June 29, 2011) – Comment on a US senator’s Facebook page were not

protected, where the employee did not discuss them with others

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use, continued JT’s Porch Saloon & Eatery, 13-CA-46689 (July 7, 2011)

– In another Chicago-area case, an employee’s Facebookconversation with his sister about the employer’s tippolicies and referred to his employer’s customers as“rednecks” were not protected because he did not discussthe postings with co-workers, and no co-workers responded to it

Martin House, 34-CA-12950 (July 19, 2011)– No protection under the NLRA for an employee of a residential facility for homeless

people with significant mental issues after posting several comments on Facebook about a client and her illness

Wal-Mart, 17-CA-25030 (July 19, 2011)– No protection under the NLRA for an employee’s Facebook postings about his

supervisor; the NLRB found they were individual gripes as opposed to protected, concerted activity

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Other NLRB Initiatives “Electronic” notice postings Enhanced monetary remedies in union activity

cases Tougher “nip in the bud” enforcement

Accelerated investigations Increase in 10j interim injunctions

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Other Recent Decisions Are Changing the Landscape Too

On August 30, the NLRB struck down Dana Corp. and ruled that employees can be held to voluntary card recognition by an employer without the right to a secret ballot election (Lamons Gasket Co.)

That same day, the NLRB held that employees lose any right to decertify a union for six months to one year after a company’s assets are sold—a key issue for those who acquire new operations (UGL-UNICCO Service Co.)

D.R. Horton, 12-CA-25764 (Jan. 3, 2012) Employers can’t implement arbitration policies prohibiting class action

arbitrations

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Where Are We Now? The NLRB went down to 2 members. Under a recent Supreme

Court decision, it needs at least 3 members to function The Senate will block any full-term appointments Craig Becker’s term expired on January 3, and Republicans

indicated they would block further recess appointees Regardless, President Obama made three new recess

appointments on January 3—two Democrats and one Republican It is questionable whether the president had the authority to make

the recess appointments As a result, the NLRB is in limbo—it is unclear whether any

decisions made with the three new recess appointees will be enforceable

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Questions?

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James A. Spizzo Mark L. Stolzenburg

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ShareholderT: +1 (312) 609 7705F: +1 (312) 609 5005

E: [email protected]

AssociateT: +1 (312) 609 7512F: +1 (312) 609 5005

E: [email protected]

© 2012 vedder price p.c. ima breakfast briefing: the obama labor board and its impact on...

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