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BUCKLE UP! How the NLRB is Changing the Rules of the Road


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Buckle Up! The speed limit just jumped from 55 to 100 as 2014 has already seen a fully constituted and newly invigorated National Labor Relations Board (NLRB) issue a number of proposed changes …

Buckle Up! The speed limit just jumped from 55 to 100 as 2014 has already seen a fully constituted and newly invigorated National Labor Relations Board (NLRB) issue a number of proposed changes impacting unionized and non-unionized employers alike. Employers can expect the Board to push toward further employee protections and to reconsider earlier employer friendly decisions. Learn about the new NLRB election rules and procedures that unions will utilize to their advantage in organizing the 93% or private sector employees who are currently not represented by a union.

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  • 1. © 2014 Armstrong Teasdale LLP © 2014 Armstrong Teasdale LLP The National Labor Relations Board in 2014 It could be a very bumpy ride J.P. Hasman Presented by Follow us @AT_Live #ATCLE
  • 2. © 2014 Armstrong Teasdale LLP Road Map  Introduction  Current State of Affairs  The General Counsel Agenda  The New Election Rules  Recent Cases  Food for Thought Follow us @AT_Live #ATCLE
  • 3. © 2014 Armstrong Teasdale LLP Your Tour Guide for Today  Spent a year and a half in the Office of the Solicitor at NLRB Headquarters when John Higgins was the Solicitor  Field Attorney in Region 14 – St. Louis from 2001 to 2005  Former member of the UFCW  Former President of NLRBU – Local 14  Contributing Editor to the Developing Labor Law Follow us @AT_Live #ATCLE
  • 4. © 2014 Armstrong Teasdale LLP Current State of Affairs  2013 Unionization rates. • Public sector has a rate of 35.3% • Private Sector has a rate of 6.7% • Il – 16%; MO – 10%; KS – 8%  93% of unrepresented employees represents a tremendous opportunity for growth.  FY 2013 petitions filed – 1,986 RC and 472 RD petitions.  Unions won 64% of the RC elections that took place and 39% of the RD elections. Follow us @AT_Live #ATCLE
  • 5. © 2014 Armstrong Teasdale LLP Current State of Affairs (cont’d)  For FY 2013 the NLRB processed 21,394 unfair labor practice charges.  The Regional Offices issued 1,272 complaints.  Of the cases that were litigated the NLRB won 85%.  Regional Offices used investigative subpoenas in 740 cases. Follow us @AT_Live #ATCLE
  • 6. © 2014 Armstrong Teasdale LLP State of Affairs (cont’d) National Labor Relations Board  Fully constituted and Senate confirmed Board and General Counsel.  The Supreme Court might order the new Board to revisit decisions of the previous Recess Appointed Board.  While the Board rules on cases and can make new law, the General Counsel decides what cases to litigate and what new areas of the law to pursue and bring to the Board.  The GC has stated a number of priorities: Follow us @AT_Live #ATCLE
  • 7. © 2014 Armstrong Teasdale LLP NLRB General Counsel Agenda  Confirmed for a 4-year term that will last into 2017.  Formerly the general Counsel of the International Union of Operating Engineers.  Oversees all Regional Offices and directs whether to pursue changes to the law.  Issued a Memo on February 25, 2014 to all Regional Offices regarding what cases he wants submitted to Headquarters so he could provide direction. Follow us @AT_Live #ATCLE
  • 8. © 2014 Armstrong Teasdale LLP General Counsel Initiatives  Whether successor employers should have the right to set initial terms and conditions of employment without bargaining with the predecessor’s union.  Whether employees should have the right to use an employer’s e-mail system for purposes of engaging in Section 7 activity.  Whether employees at non-unionized companies have the right to have other employees with them during company investigatory interviews.  Whether companies must provide information about their finances to a union during or before negotiations. Follow us @AT_Live #ATCLE
  • 9. © 2014 Armstrong Teasdale LLP General Counsel Initiatives (cont’d)  At-will provisions in Handbooks.  Whether an employer must bargaining with a newly certified union over discreet discipline decisions.  Mandatory arbitration agreements with employees that prohibit class-actions. Follow us @AT_Live #ATCLE
  • 10. © 2014 Armstrong Teasdale LLP NLRB Agenda  New Election Procedures • First went into effect in April 2012. • Stayed pending legal action in the D.C. Circuit. • Board voluntarily dismissed its appeal on December 9, 2013. • Rules were re-issued and the NLRB held public hearings on the proposed rules. • Anticipate this Board to make the same decisions the previous Board made. Follow us @AT_Live #ATCLE
  • 11. © 2014 Armstrong Teasdale LLP New Election Rules Current Rules New Rules Initial hearing 7-14 days from filing of petition for election. Presume 7 days. More difficult to get a postponement. Most voter eligibility issues could be eliminated prior to the election at hearing. Only issues that relate to whether a QCR exists. Presume post-hearing briefs. Post-hearing briefs only upon request. Presume election 42-days after petition (if no hearing). Presume election 7-14 days after petition. Request for Review of decision allowed. Requests for Review only granted in extraordinary circumstances. Post election appeal a right. Post election appeal at Board discretion. Follow us @AT_Live #ATCLE
  • 12. © 2014 Armstrong Teasdale LLP Why is 42 Days Versus 10 Days Important Petition filed (1) (2) Letter to homes about petition (3) (4) Letter to home with election details (5) (6) (7) What is a union? (8) Posting 1 Constitution (9) (10) Posting 2 financials (11) (12) Posting 3– Oath of loyalty Speech #1; letter to homes #3 (13) (14) Dues (15) Posting 4 Dues calculation (16) (17) Posting 5 What could you buy? (18) (19) Posting 6 Dues vs. 401(k) Speech #2; Letter to homes #4 (20) (21) Collective Bargaining (22) Posting 7 CB defined (23) (24) Posting 8 Could lose in bargaining (25) (26) Posting 9 Union Security/Dues checkoff Speech #3; letter to homes #5 (27) (28) Strikes (29) Posting 10 What is a strike? (30) (31) Posting 11 History of union strikes (32) (33) Posting 12 – permanent replacements; Speech 4; letter to homes #6 (34) (35) We are a good (36) Posting 13 – reminder of good (37) 25th Hour Speech – (38) 25th Hour Speech (39) NO CAMPAIGN (40) ELECTION (41)
  • 13. © 2014 Armstrong Teasdale LLP Micro Units  A result of the NLRB decision in Specialty Healthcare. • So long as the petitioned for unit consists of a readily identifiable group of employees the Board will presume it is appropriate. • Why do we care? − Smaller units are easier to organize, easier to organize quietly and quicker to organize. − The standard coupled with the new election rules greatly reduces the ability for a pre-election hearing. − The result may be more uncertainty not less. Follow us @AT_Live #ATCLE
  • 14. © 2014 Armstrong Teasdale LLP Continued Focus on Non-Union Employers  Non-union employees still have the right to engage in protected concerted activity and the Board wants that group to know it. • Talk about their benefits, pay, bonuses, supervisors, bosses, etc. • Talk about those issues to the media, on social media, etc. • Talk about those issues using your company e-mail if you permit use of e-mail for the discussion of other topics. Follow us @AT_Live #ATCLE
  • 15. © 2014 Armstrong Teasdale LLP Cases we have already seen from the New Board  First Transit (April 2014): • Board found employer violated the law by having a rule in its handbook prohibiting discourteous or inappropriate behavior or attitude;  Hills and Dales General Hospital (April 2014): • We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other. • We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating. • We will represent Hills and Dales in the community in a positive and professional manner in every opportunity. Follow us @AT_Live #ATCLE
  • 16. © 2014 Armstrong Teasdale LLP Cases (cont’d)  Flex Flak (March 2014 5th Cir. Decision): • Employees deal with and have access to information that must stay within the Organization. Confidential Information includes, but is not limited to, information that is related to: our customers, suppliers, distributors; ... organization management and marketing processes, plans and ideas, processes and plans, our financial information, including costs, prices; current and future business plans, our computer and software systems and processes; personnel information and documents, and our logos, and art work. No employee is permitted to share this Confidential Information outside the organization, or to remove or make copies of any [employer] records, reports or documents in any form, without prior management approval. Disclosure of Confidential Information could lead to termination, as well as other possible legal action. Follow us @AT_Live #ATCLE
  • 17. © 2014 Armstrong Teasdale LLP Cases (cont’d)  Kroger (April 22nd 2014) • ONLINE COMMUNICATIONS POLICY − If you identify yourself as an associate of the Company and publish any work-related information online, you must use this disclaimer: The Postings on this site are my own and don’t necessarily represent the position, strategies or opinions of the Kroger Co. family of stores. – UNLAWFUL, despite earlier GC guidance that it was lawful − You must comply with copyright, fair use and financial disclosure laws, and you must not use without permission or compromise in any way the Company’s intellectual property assests (like copyright, trademarks, patents or trade secrets – including for example, Kroger or banner logos, or trade names of products, or non-public information about the Company’s business processes, customers or vendors. - UNLAWFUL Follow us @AT_Live #ATCLE
  • 18. © 2014 Armstrong Teasdale LLP Cases (cont’d)  Kroger Continued: − When on-line, do not engage in behavior that would be inappropriate at work and that will reflect a negative or inaccurate depiction of our Company. - UNLAWFUL − Do not comment on rumors or speculation to the Company’s business plans. - UNLAWFUL Follow us @AT_Live #ATCLE
  • 19. © 2014 Armstrong Teasdale LLP Cases (cont’d)  Northwestern Football players • Decision by the Regional Director that football players are really employees and not students. • Northwestern is requesting review with the Board.  UAW Organizing Attempt in Volkswagen in Chattanooga, TN • UAW lost the election but filed objections based on statements by politicians. • UAW withdrew objections on the eve of hearing. • Why? Follow us @AT_Live #ATCLE
  • 20. © 2014 Armstrong Teasdale LLP Food for Thought  Need to assume new election rules will go into effect.  Assume legal challenges will be filed but doubtful they will be successful.  Need to conduct critical self-assessment of policies and practices before union organizing begins. • Once you become aware of union organizing it is too late. Changing your policies and practices will be deemed unlawfully motivated if done in response to union organizing.  Need to analyze who is and who is not really a supervisor as defined by the NLRA – an issue that has been subject to litigation since the statute was writtenFollow us @AT_Live #ATCLE
  • 21. © 2014 Armstrong Teasdale LLP Food for Thought  Need to identify strategy for responding to Union organizing. • Who is the best spokesperson? • What is the best way of informing employees about your position regarding unionization? • Do you get that message to your employees and their families now instead of waiting?  Need to ensure all members of management are armed with the tools to lawfully discuss unionization with employees. Follow us @AT_Live #ATCLE
  • 22. © 2014 Armstrong Teasdale LLP Bonus Topic  Right to Work • What is it? • Why is it important ? − To Unions − To employees − To companies • Where does it stand in MO? Follow us @AT_Live #ATCLE
  • 23. © 2014 Armstrong Teasdale LLP
  • 24. © 2014 Armstrong Teasdale LLP Contact J.P. Hasman 314.621.5070 CLE Code: JH0412 Follow us @AT_Live #ATCLE