Title  of  Presentation

Union  AvoidancePresented By:John T. Merrell

The Challenge We Are Facing

n The NLRB and the labor unions want to make it hard for nonunion companies to stay union-free

For example…

n Ambush Electionsn Purple Communicationsn NLRB expanding the boundaries of

PCA

Amended Representation Case Proceduresn Final rule published: December 15, 2014n Effective date: April 14, 2015 (120 days

after publication)n 3-2 majority (Miscimarra and Johnson

dissenting)

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UNION  OBTAINS  AUTHORIZATION  CARDS

UNION  PETITIONS  THE  NLRB;  NLRB  SCHEDULES  

ELECTION

MANAGEMENT  AND  THE  UNION  OPENLY  DISCUSS  UNIONIZATION  WITH  

EMPLOYEES

SECRET  BALLOT  ELECTION  IS  HELD

UNION  WINS  OR  LOSES

UNION ORGANIZINGPROCESS

This  formerly  occurred  over  a  38-­‐42  day  period

NLRB  CERTIFIES  THE  ELECTION

With The New Rules…n Most union representation elections will be held

10-21 days after a petition has been filedn The practical implication: employees get less time

to obtain information prior to voting, and employers are at risk of being caught off-guard

n Between the new rules and the Board’s decision to allow micro-units in Specialty Healthcare, the Board has made it drastically easier for unions to organize

R-case Hearing Date and Statement of Position Pleading

n Hearing typically set to open 8 days after service of Notice of Hearing (Regional Director (RD) to serve “as soon as practicable”) (8 or 9 days after petition filed)l Subject to arguments for postponement (e.g.,

complex issues, “special circumstances,” or “extraordinary circumstance”)

n Statement of Position due noon business day before hearing set to openl File with RD and serve all other parties

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Statement of Position: Content

n If employer contends proposed unit inappropriatel State precise basis for the contentionl State specifically other employees who must be added/excluded

to make bargaining unit appropriatel Identify any employees whose eligibility employer intends to

contestl All other issues employer intends to raise

n Issue preclusivel Subject to amendment for “good cause”l Any issue not identified in Statement of Position (except for

Board’s statutory jurisdiction) will be waived

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Statement of Position: Content

n File with Statement of Position, lists containing:l Full name, work locations, job classifications, and

shiftsl Employees in unit proposed by unionl Employees employer seeks to include/excludel Majority did not adopt proposal in NPRM that

this list include Excelsior list contact information

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Purpose of R-case Hearing

n Only issue—is there a “Question of Representation”l Proper petition filed, jurisdiction, and “AN” appropriate unitl If “yes,” RD should direct an election

n Generally not necessary to resolve pre-election:l Dispute concerning voter eligibility (unless it’s a large portion of the

proposed unit); orl Inclusion or exclusion of individual employeesl Raise by challenged ballot process and resolve post-election, if

“necessary”

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The Voter List

n Due under final rule 2 business days (not 7) after election details final

n In addition to full name and home address (current requirement), list must include:l Personal (not work) email (if available)l Personal home and cellular telephone number (do not have

to collect, but if have it, must include it)l Not work phone or email (but left open for union to request

in appropriate situation)

n “Minimum to be produced”

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The Election Daten Stipulated election—42 days after petition n Directed election—historically 25-30 days after

decision (eliminated by final rule)n Final rule does not adopt specific timeframe

l Set election “at earliest date practicable” n Union entitled to 10 days with voter list (can

waive)n Election date determined by RD discretionn Petition + 8 + 2 + 10 = 21 days

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What is a “micro-unit”?

n Specialty Healthcare – 2011 case that created a new standard:l If the petitioned-for unit is readily identifiable, it is

presumed appropriatel The employer bears the burden of showing an

“overwhelming community of interest” between the petitioned-for unit and any other employees the employer believes ought to vote

n Are there any potential micro-units in your facility?

Early Warning Signs of Union Organizing

Signs of Union Activity

n Union cards or literature found in facilityn Groups of employees act nervously or stop talking

when management appearsn Noticeable coolness or avoidance by employeesn Unusual friendliness to management personnel by

employees who were previously unfriendlyn Frequent huddles and secretive glancesn Employees taking long breaks or lingering after shift

Signs of Union Activity

n Employees arriving early, leaving late, or congregating in the parking lot

n Former employees or strangers appearing before/after shifts

n Employees leaving their work areas to talk to team members in other areas

n New friendships and social patterns emergingn Copying names of employees off schedules, etc. n Unusual employees questions about wages, fringe

benefits, and working conditions.

Signs of Union Activity

n Excessive absenteeism, injuries, turnover or work-related complaints

n Employees deliberately defying supervisorsn Pro-union graffitin Increase in employee phone calls and use of

photocopy and fax machines for personal businessn Discussions of other local organizing activity or

how the company feels about unions

What  Do  Employees  and  Supervisors  Value?

What Do Employees and Supervisors Value?

Union “Win” Rate

Issue Win  Rate

Wages 33%

Dignity 55%

Unfair  Treatment 67%

Working  Conditions 69%

Expanding the Boundaries of PCA

Protected Concerted Activity

n We continue to see the NLRB taking an expansive view of PCA, in interpreting policies and in evaluating employee conduct

Section 7 Rights

n Join a unionn Bargain collectivelyn Engage in concerted activityn Refrain from joining a union,

bargaining collectively, or engaging in concerted activity

Concerted Activity

Two or more employees engaging in activity or raising a work complaint concerning:

• Wages• Benefits• Hours• Discipline• Working conditions

Concerted Activity

Employees  also  have  the  right  to:

• Provide  mutual  aid  or  protection• Petition their employer• Stop work• Strike

Purple Communications

n Overruled the NLRB’s 2007 decision in Register Guard

n Under Purple Communications, if employees have access to Company email in the course of their work, they have the right to use that email for union organizing or to engage in protected, concerted activity during non-working time

Purple Communications

n This means:l If you have a policy that says email is for

business use only, it is too broadl If you have a policy that permits personal use

but prohibits solicitation, it is too broad

n Any concerns with monitoring?

Plaza Auto Center

n Employee was engaged in PCA when he called the owner of the company a “f_cking motherf_cker,” a “f_cking crook” and an “a__hole” during the course of a discussion about the company’s employment practices

Plaza Auto Center

n Board concluded that he did not lose the protection of the act because his conduct was not “menacing, physically aggressive, or belligerent”

Pier Sixty

n Profanity-laced Facebook tirade containing personal attacks against a supervisor followed by “Vote YES for the union!!!” considered PCA that did not lose the protection of the Act

Triple Play Sports Bar

n A “like” on Facebook is PCAn Therefore, it violates the Act to fire an

employee for liking a Facebook post expressing workplace concerns

n It also violates the Act to fire an employee for commenting “Such an a__hole” in response to a post about the owner’s failure to properly handle wage deductions

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