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WEBINAR
SEMINAR
DM2/5396448.1
Don’t be Ambushed by New NLRB Election Rules
*No statements made in this seminar or in the PowerPoint or other materials should be construed as legal advice or as pertaining to specific factual situations.Further, participation in this seminar or any question and answer (during or after the seminar) does not establish an attorney-client relationship between Duane Morris LLP
(or the Duane Morris Institute) and any participant (or his or her employer).
presented byJonathan A. Segal, Esquire
Duane Morris Institute
I. LEGAL LANDSCAPE
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A. Background1. General decline of union support
a. 1950’s – 34%b. 2007 – 7.5%c. 2008 – 7.6%d. 2013 – 6.9%
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A. Background2. However, there is still considerable
union support:a. Northeast b. Big citiesc. Certain industriesd. Certain types of jobs
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B. NLRB1. NLRB Election Rules
a. Struck down because of lack of quorumb. Reissued now that there is quorum
(effective on April 14, 2015, unless enjoined)i. Shorter election periodii. Duty to provide more information to unioniii. Limitations on employer’s procedural
rights (which has substantive meaning)5
B. NLRB2. NLRB decisions
a. Approval of “micro-units” b. Narrower definition of “supervisor”c. Right of employees to use social media to
disparage employers
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C. Impact of New Election RulesELECTION RULE OLD NEW
Note of Service of Petition
Union files petition with the Board and then the Board serves Employer
Union serves Board and Employer simultaneously and electronically
Pre-Election Hearing 12 days from date of service of petition
8th days from date of service of petition
Employer’s Position Statement
No such requirement; employer was not locked into or did not waive any position before the hearing.
Due now on 7th day. Locks in employer’s position and waives issues employer did not raise.
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C. Impact of New Election RulesELECTION RULE OLD NEW
Pre-Election Hearing Issues Unit and eligibility issues ordinarily resolved before election
Deference given to regional director to determine what issues to address and what issues to defer
(i) Unit issues: discretion of Regional Director based on showing of proof by employer in position statement that those in petition have overwhelming community of interest with excluded employees employer argues should be included.
(ii) Individual eligibility issue may be deferred by the regional director until after the election in his or her discretion. Likely the issue will be deferred, unless it affects 20% of unit (risk entirely on the employer on whether to include individual in supervisory meetings)
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C. Impact of New Election RulesELECTION RULE OLD NEW
Timing of Excelsior List 7 days after direction of election
2 days after direction of election
Content of Excelsior List Names and addresses Above plus personal e-mail address plus home and cell phones (if employer has them)
Automatic Stay of Election
Elections ordinarily conducted between 25 and 30 days after direction of election (with 12 days for hearing gets you to up to 42 days)
Elections to held on “the earliest day practical” (25- to 30-day “stay” gone)
Post-Election Disputes All went to Board Board has discretion; Regional Director’s decisions may be final; Regional Directors appointed by NLRB with no congressional approval required
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D. Enhanced Remedies During Campaigns (announced by prior GC), for example:1. Union access to employees in the facility
2. Union right to address employees at a time close to election
3. Reinstatement of discharged employee through the election and until charge challenging discharge is litigated
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E. Union Process1. Currently, there are two ways for a
union to represent employeesa. Voluntary recognitionb. NLRB supervised election
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E. Union Process2. Voluntary recognition
a. Permissible only if good faith belief of majority representation
b. Make clear to your supervisors and managers no right to do so!
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E. Union Process3. Election Process
a. Union can petition NLRB for election ifi. 30% of eligible employees inii. Appropriate bargaining unitiii. Sign authorization cards
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E. Union Process3. Election Process (continued)
b. Appropriate bargaining uniti. Unit does not have to be the most
appropriate bargaining unitii. It must be only “an” appropriate
bargaining unitiii. Key: community of interest
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E. Union Process3. Election Process
b. Appropriate bargaining unit (continued)iv. Micro-units and Specialty Healthcare, such as
• Position• Department
v. Inability to challenge union’s choice of unit in the absence of “overwhelming evidence” that the proposed unit is inappropriate without additional employees.
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E. Union Process3. Election Process (continued)
c. Authorization cardsi. Does not mean only that employee wants
more information, etc.ii. Means employee wants to be a union
memberiii. Legally binding document
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E. Union Process3. Election Process (continued)
d. Practical considerationsi. Unions usually will not file petition unless
at least 50% of eligible voters have signed cards
ii. Reason: unions know some employees will sign cards, even though they don’t support the union
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F. Campaigns1. Length
a. Historically, 4 to 6 weeksb. Now, time between petition and election
will be much shorter, probably 2 to 3 weeks (but potentially, at least in theory, as few as 10 days)
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F. Campaigns2. Modes of communication by employer
and uniona. Oral discussionb. Written leaflets and memosc. Meetings (on and off site)d. Home visits (union only)e. E-mail and Internet campaignsf. Videos
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F. Campaigns3. Nature of campaign—usually
a. Adversarialb. Personal
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F. Campaigns4. Employees’ vote
a. Secret ballotb. Supervised by NLRB representativec. Union wins only if “50% plus 1” of those
who vote (not eligible voters) in fact vote for the union
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II. PREVENTION
A. Supervisory Training1. Determining who is statutory supervisor
a. Individual who has authority to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline other employees, or responsibility to direct them or to adjust their grievances or to recommend effectively such actions
b. It is not necessary that an employee perform all of them to be a supervisor; law requires only one supervisory function
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A. Supervisory Training1. Determining who is statutory supervisor
(continued)c. However, there must be truly independent
judgment in practice and not only on paper (cannot be too much control by management protocols)
d. Must be held accountable for performance of those supervised (evaluations, promotions, wage increases, etc.)
e. Moreover, even though law requires the exercise of only one supervisory function, as a practical matter, it is risky to rely upon only one
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A. Supervisory Training1. Determining who is statutory supervisor
(continued)f. Further, “regular and substantial” part of an
employee’s job must involve supervisory functions
g. Statutory supervisors can be hourly but being hourly may be “bad fact”
h. Definition has been interpreted by this Board more narrowly
i. Specific risk: lead employees/assistant supervisors/charge nurses
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A. Supervisory Training2. Ensure documentation consistent with
supervisory status, for example:a. Job descriptionsb. Participation in evaluations and disciplinec. Inclusion in training unrelated to union
issues with other supervisors
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A. Supervisory Training3. Explain potential risks
a. Having an electionb. Having a union
i. Employer’s perspective ii. Supervisor’s perspectiveiii. Employee’s perspective
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A. Supervisory Training4. Role of Statutory Supervisor
a. Cannot support unionb. Must support the employer’s preference
to remain union free, subject to limits imposed by law
c. Cannot engage in impermissible conduct
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A. Supervisory Training4. Role of Statutory Supervisor (continued)
d. Report direct and indirect warning signs to designated individual(s)i. Indirect warning signs may indicate
employee relations issues independent of union activity
ii. Want to resolve employee relations issues without regard to union activity
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A. Supervisory Training5. Conduct prohibited by law:
a. Surveillanceb. Promisesc. Interrogationsd. Threatse. Retaliatory action
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A. Supervisory Training6. Conduct prohibited by the employer:
accepting or looking ata. Signed authorization cardsb. Signed petitions
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A. Supervisory Training7. What are some of the direct signs?
a. Union cardsb. Union leafletsc. Union buttonsd. Union clothinge. Union songs
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A. Supervisory Training8. What may be some of the indirect
signs?a. Changes in group dynamicsb. Changes in numbers and types of
questionsc. Change in vocabularyd. Change in individual behaviorse. Change in group behaviors
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B. Rapid Response Team1. Function – receive and evaluate reports
from supervisors of possible warning signs of union activity
2. Composition of team – operationally diverse team to assess the risk and whether and how to respond to the riska. Don’t want to over-reactb. But don’t want to under-react either
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B. Rapid Response Team3. Communication Options
a. Memo on reality of authorization cards and risk and costs of unionization
b. Educational videos that can be purchased and/or customized
c. Current information on union contracts, changes in industry, financial condition of system, etc.
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B. Rapid Response Plan3. Communication Options (continued)
d. Compensation and benefits datae. Results of prior engagement surveysf. With regard to all of above, need to
consider bi-lingual communications
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C. Proactive Employee Education 1. Evaluating risks and rewards of when
and how to communicate proactively with workforce
2. If educate workforce proactivelya. Be careful of tone as well as contentb. Make sure you have legal review
i. Policy versus preferenceii. No agreement required
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C. Proactive Employee Education 3. Possibilities
a. Town Hall Meetingsb. Memosc. Orientation/On-Boarding
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D.Union “Inhibitors”1. Examples
a. Solicitation and Distribution Policy i. Non-employeesii. Employees – Purple Communications
b. Policy Limiting Employee Access Off Dutyi. Almost any exception problematic, such
as holidayii. Dual capacity issue
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D.Union “Inhibitors”2. Key points
a. Specific legal rules about permissible scope of prohibitions/restrictions
b. Even if lawfully worded, cannot be adopted in response to union activity
c. Further, must be applied consistently3. Micro units
a. Evaluate exposureb. Make decisions for business reasons only
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E. Employee Relations: Top 121. Appreciation 2. Recognition3. Consistency (lack of favoritism)4. Protection from unsafe conditions 5. Change management6. Regular and honest communication
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E. Employee Relations: Top 127. Inclusion in solving operational problems8. Help in solving individual problems 9. Performance management (due process)10.Protection from abusive conduct—
harassment, humiliation, bullying, etc.11.Wages—internal parity and external
competitiveness12.Benefits—parity and clarity
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Thank You!Follow me on Twitter @Jonathan__HR__Law
©2015 Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP. Duane Morris – Firm Offices | New York | London | Singapore | Philadelphia | Chicago | Washington, D.C. | San Francisco | Silicon Valley | San Diego | Shanghai | Boston | Houston | Los Angeles |
Hanoi | Ho Chi Minh City | Atlanta | Baltimore | Wilmington | Miami | Boca Raton | Pittsburgh | Newark | Las Vegas | Cherry Hill | Lake Tahoe | Myanmar | Oman | Duane Morris – Affiliate Offices | Mexico City | Sri Lanka |
Duane Morris LLP – A Delaware limited liability partnership