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By: Jeffrey L. Hirsch HIRSCH ROBERTS WEINSTEIN LLP

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Strategic Update on Organized Labor and the NLRB. By: Jeffrey L. Hirsch HIRSCH ROBERTS WEINSTEIN LLP. Agenda. “Politics” and Implications of the Current and Recent NLRB Appointees Review of Private Sector Labor Law Basics Key NLRA Definitions and NLRB Procedures - PowerPoint PPT Presentation

Text of By: Jeffrey L. Hirsch HIRSCH ROBERTS WEINSTEIN LLP

The Employee Free Choice Act

By:Jeffrey L. HirschHIRSCH ROBERTS WEINSTEIN LLP

Strategic Update on Organized Labor and the NLRB AgendaPolitics and Implications of the Current and Recent NLRB AppointeesReview of Private Sector Labor Law Basics Key NLRA Definitions and NLRB ProceduresNew NLRB Posting Requirement Effect November, 14, 2011Proposed NLRB Regulations To Shorten Election TimelinesImportant Recent NLRB Decisions and Potential ImplicationsTrends in the Higher Education WorkforceAdjunct Faculty Issues and ChallengesStatus of Research Assistants, Teaching Assistants and Graduate Assistants and Predictions

The 2011 NLRB The Obama Board President Appoints Members for Five Year TermsHistorically, the Pendulum Swings Between Democrat and Republican BoardsDissenters Become the Majority

Wilma B. LiebmanMember of the Bush BoardPreviously Counsel to Bricklayers Union and Teamsters UnionOften dissenting on Bush BoardAppointed Chairman January 20, 2009Term Expired August 27, 2011Had Previously Invited Unions to challenge precedent e.g. the Brown University decision from 2004

Craig BeckerFormer Associate General Counsel for SEIU and AFL-CIO Staff CounselAppointed to Recess Appointment by President on April 5, 2010 Term Expires December 31, 2011Re-nominated for Term Ending in 2014Currently Opposed By 47 Republican SenatorsUnlikely to be Re-appointed

Mark G. PearceFormer Partner in a Buffalo, N.Y. law firm Representing UnionsPreviously Worked as NLRB Staffer in Region 3 (Buffalo, N.Y.)Appointed April 7, 2010Current Term Expires August 27, 2013Appointed Chairman to Replace Liebman in August, 2011

Brian HayesStarted career with NLRB25 years of private practice as a management lawyer Served as Republican Labor Policy Director for U.S. Senate Committee on Health, Education, Labor and PensionsAppointed on June 22, 2010Current term ends on December 16, 2012Opposes New Posting Rule and Proposed Election Changes

Any educated guesses?

20%

30%

10%

ANSWER: Private sector: 6.9%Public Sector: 36.2%Private Colleges and Universities?

The Current Percentage of U. S. Employees Belonging to Labor Organizations

[United States Department of Labor, Bureau of Labor Statistics USDOL 11-0063 January 21, 2011]

The Current Percentage of U. S. Employees Belonging to Labor OrganizationsIn early 2011, neither the Bureau of Labor Statistics of the U.S. Department Of Labor nor the U.S. Department Of Education, National Center for Education Statistics could provide an accurate percentage of a unionized faculty in private colleges and universities

9Review of the Current NLRB Representation ProcessAuthorization Cards -- shelf life of one yearRepresentation Petition (Form NLRB 502)Representation Hearing orStipulated Election Agreement Average Time is now 38 daysAn Appropriate bargaining UnitEligible Voters [4 hours per week]The Campaign Period Winning the Hearts & Minds of Eligible VotersLaboratory Conditions In Re General Shoe Corp., 77 NLRB 124, 127 (1948)Secret Ballot Election Conducted By NLRB Officials on Employers Premises or

The NLRB Representation ProcessA Mail Ballot By the NLRBWho Wins?Winner is Determined By?Bargaining in Good Faith Mandatory Subjects of Bargaining -- Wages, Hours and other Terms and Conditions of EmploymentRemember Talk of the Employee Free Choice Act in 2007, 2008 and 2009?

Winner is determined by: A Simple Majority of The Ballots Actually CastA Tie Vote is a Victory for the EmployerA No Vote Rejecting A Labor Organization Results in a 12 Month Bar No labor organization Can File A Petition For Those EmployeesA Yes Vote Accepting A Labor Organization Results in a Certification of Representative By the NLRB and a Demand to Bargain from the Labor Organization

Review of Some Key NLRA DefinitionsEmployer 29 U.S.C. 152 (2)

The term "employer" includes any person acting as an agent of an employer, directly or indirectly

Employee 29 U.S.C. 152 (3)The term "employee" shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act [45 U.S.C. 151 et seq.], as amended from time to time, or by any other person who is not an employer as herein defined.

Labor Organization 29 U.S.C. 152(5)The term "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

Supervisor 29 U.S.C. 152 (11)The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

Concerted Activity 29 U.S.C. 157Employees shall have the right to self-organization, to 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 of 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 158(a)(3) of this title.

Current NLRB ActivityHistorically, NLRB Rulemaking Power Has Been Rarely UsedSeen As Another Example of an Activist BoardRecent Push For Mail Ballots By NLRB Regional OfficesExample: Cooper Union -- NLRB Election For Adjunct Faculty Conducted By Mail Ballot on May 26,2009 -- [ Results: 112 to 23 in favor of representation]

Requiring Employers To Post a Notice Advising Employees of their rights under the NLRA, including the right to organize and bargain collectively

Update on Key National Labor Relations Board (NLRB) IssuesNew Posting Requirements Effective November 14, 2011Proposed Regulations To Expedite NLRB Representation ElectionsPublished in Federal Register June 22, 2011All Comments Due by August 22, 2011According to NLRB 30,000 Comments Were ReceivedAnother 20,000 reply Comments ReceivedHighly Controversial RegulationsProposed To Amend 29 C.F.R., Part 101, 102

Update on Key National Labor Relations Board (NLRB) IssuesCurrent Long-standing procedures result in a median 38 calendar days between filing of the petition and the secret ballot electionUnder proposed regulations the time period could be reduced to 10-14 calendar days

19Current SystemA company may voluntarily allow its workers to unionizeOtherwise, unions must go through certain steps to become the certified bargaining representativeUnion must first gather authorization cards from employeesSigning cards expresses workers desire to have a unionized workplaceUnion must gather cards from 30% of workers in a given bargaining unitOnce 30% of workers sign authorization cards, NLRB schedules a supervised union election in which all workers vote whether to unionizeSecret-ballot electionBoth sides have time to campaign for or against the union

Update on Key National Labor Relations Board (NLRB) IssuesProposed regulations would delay adjudication of pre-election disputes until after the electionProposed regulations would be some of the most significant changes in labor relations in 75 years

Update on Key National Labor Relations Board (NLRB) IssuesUnder proposed regulations employers would be required to provide employee names, home addresses and e-mail information to union officials two days after the NLRB authorizes the election [current law requires the list of home addresses within 7 days of NLRB approval]

Update on Key National Labor Relations Board (NLRB) IssuesEmployers would also be required to submit a detailed statement of position summarizing the employers legal position within 7 days Highly Partisan Debate Obama NLRB appointees Liebman, Becker and Pearce strongly support the proposed regulationsMember Hayes is Strongly OpposedChairman Liebmans term expired August 27, 2011Member Pearce was appointed Chairman

Update on Key National Labor Relations Board (NLRB) IssuesAs expected, organized labor is zealously supporting and the business community is strongly opposedPredictions?Republican Senators Have Threatened To Block or Stall Any New NLRB NomineesRemember: 2010 U.S. Supreme Court decision in New Process Steel v. NLRB (invalidating all NLRB decisions issued by NLRB panels of two Members)

23EFCA has been considered in the last 3 sessions of CongressHouse of RepresentativesIntroduced by Rep. George Miller (D-Calif.) in 108th and 109th Congresses but it never received floor voteRe-introduced in the 110th Congress on 2/5/2007Collected 233 co-sponsorsAll MA repsAll CT repsVP Cheney told

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