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How to Protect Your Company from
Sneak Attacks by Unions
2016 In House Counsel Conference
Employer Jujitsu
State of the Unions
Statistics from United States Department of Labor Bureau of Labor Statistics
Percent of Union Members in Private Sector
State of the Unions
NJ/NY/PA US
Statistics from United States Department of Labor Bureau of Labor Statistics
Percent of Union Members in 2015
State of the Unions
State of the Unions
The New National Labor Relations Board
Election Rules
Election
New Election Process
Petition
(Electronic)
Day 1
Position Statement
Day 7 (Noon) Direction of Election
Day 10
Voter List
Day 12
Day 17
Pre-Election Hearing
Day 8
Election Rules
58% Faster
Nine Month Aftermath
1% Increase in Union Election Petitions
2% Decrease in Union Wins
Nationwide
Statistics from National Labor Relations Board
Election RulesNine Month Aftermath
35% Increase in Union Election Petitions
50% Increase in Union Wins
New Jersey, New York, and Pennsylvania
Statistics from National Labor Relations Board Election Reports
Statistics from Labor Research Partners
Micro UnitsSpecialty Healthcare, 357 NLRB No. 83 (2011)
Placed burden on non-petitioning party to show employees
that it seeks to add to voting unit share an overwhelming
community of interest
FedEx Freight, Inc. v. NLRB, Nos. 15-1999, -2494, -2732
(8th Cir. Mar. 7, 2016)
Enforced overwhelming community of interest standard
outside healthcare setting
Independent ContractorsFedEx Home Delivery, 361 NLRB No. 55 (2014)
Sisters Camelot, 363 NLRB No. 13 (2015)
Held that multi-factor common law agency test under which
no single factor is determinative applies when deciding
whether an individual is a statutory employee
Decided that door-to-door canvassers collecting donations
for non-profit organization are statutory employees
Pa. Interscholastic Athletic Assoc., No. 06-RC-152861
Board to decide whether lacrosse officials are statutory
employees
Joint EmployersBFI Newby Island Recovery, 362 NLRB No. 186 (2015)
Held that a company can be a statutory employer if it
merely possesses (even if it does not actually exercise)
sufficient control over essential employment conditions and
terms
McDonald’s USA LLC, Nos. 02-CA-093893, 04-CA-125567,
13-CA-106490, 20-CA-132103, 25-CA-114819, 31-CA-
127447
Ongoing litigation involving McDonald’s and 31 franchisees
Workplace Policies
Confidentiality Policies
Memorandum GC 15-04 (Mar. 18, 2015)
Unlawful
“Never publish or
disclose [the employer’s]
or another’s confidential
or other proprietary
information.”
Lawful
“Do not disclose
confidential financial
data, or other non-public
proprietary company
information.”
Workplace Policies
Confidentiality Policies
Banner Estrella Med. Ctr., 362 NLRB No. 137 (2015)
Held that asking employees to keep workplace
investigations confidential while investigations are ongoing
violated employees’ rights to engage in protected concerted
activities
Workplace Policies
Courtesy Policies
Memorandum GC 15-04 (Mar. 18, 2015)
Unlawful
“[B]e respectful to the
company, other
employees, customers,
partners, and
competitors.”
Lawful
“Employees will not be
discourteous or
disrespectful to a
customer or any member
of the public while in the
course and scope of
[company] business.”
Workplace Policies
Arbitration Clauses
D.R. Horton, Inc., 357 NLRB No. 184 (2012)
D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013)
Held that requiring employees to arbitrate claims on an
individual basis violated employees’ rights to engage in
protected concerted activities and was likely to chill them
from exercising such rights
Reversed the Board’s holding
Workplace Policies
Arbitration Clauses
Murphy Oil USA, Inc., 361 NLRB No. 72 (2014)
Murphy Oil USA, Inc. v. NLRB, 363 NLRB No. 105 (2015)
Again held that requiring employees to arbitrate claims on
an individual basis violated employees’ rights to engage in
protected concerted activities and was likely to chill them
from exercising such rights
Again reversed the Board’s holding, this time cautioning the
NLRB “to strike a more respectful balance between its
views and those of circuit courts” that review them
Workplace Policies
Arbitration Clauses
Samsung Elec. Am., Inc., 363 NLRB No. 105 (2015)
Reaffirmed its 2012 decision despite Fifth Circuit’s repeated
rejection of that decision and admonition
New Industries
Accomodation
- 42,000
Telecommunications
Construction
Manufacturing
Transportation and Warehouse
- 40,000
- 28,000
- 17,000
- 14,000
Education and Health Services
Educational Services
Wholesale and Retail Trade
Professional and Business Services
Healthcare and Social Assistance
139,000
117,000
102,000
39,000
22,000
Changes in Union Membership by Industry
New Industries
Education
Pacific Lutheran Univ., 361 NLRB No. 157 (2014)
Held that Board has jurisdiction over employees at
religious-affiliated colleges/universities unless they perform
a “specific role in creating or maintaining the school’s
religious educational environment”
Emphasized professors’ decision-making authority
concerning academic programs, enrollment management,
and school finances in deciding whether they are statutory
employees or supervisors
New Industries
Education
Northwestern Univ., 362 NLRB No. 167 (2015)
Columbia Univ., NLRB Case No. 02-RC-143012
Declined to exercise jurisdiction where union claimed
scholarship football players were statutory employees
because a ruling would not promote stability in labor
relations
Reconsidering whether graduate student assistants,
terminal master’s degree students, and undergraduate
students are statutory employees
New Persuader Rule
Takes Effect April 25, 2016
Covers Engagements Beginning July 1, 2016
Narrows “Advice” Exemption to Expand Reporting
Obligations
Covers “indirect persuasion,” such as providing
materials to employers for distribution, conducting
seminars for supervisors, and even developing or
implementing personnel policies or actions
On the Horizon
2016 Presidential Election
Card Check Legislation
WAGE Act
Who is Your Company?
Are Your Workers Organizing?
What You Should Do
What You Should Do
Educate the C-Suite
Assess Your Vulnerabilities
Develop Position on Unions
Develop Communications Plan
Identify Frontline Supervisors and Train Them
Develop Rapid Response Team
Brainstorm Units
Questions