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November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
November 10 2011 Roundtable Meeting
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November 10 2011 Roundtable Meeting

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  • 1. hJohn F. Bowen November 10, 2011
  • 2. ROUNDTABLE AGENDA • Introductions • Recent NLRB Decisions: – What’s so special about August 26, 2011? – Tipping the Balance of Power in Favor of Unions • NLRB Requires Private Employers to Post NLRA Rights• NLRB Acting General Counsel’s Memo Regarding Social Media Policies• NLRB’s Proposed Rules Promote Organizing By Ambush − Action Plan To Counter “Ambush Organizing”
  • 3. “GAME CHANGERS” Several recent actions are absolute “game changers” • NLRB – Represent enormous “power grabs” by the NLRB significantly tip the balance of power to unions in organizing and collective bargaining – Fundamentally change the approach to labor relations − Rulemaking – Expanding the right to organize by “streamlining” the process and requiring the NLRA rights poster − Decision-making is (1) promoting the proliferation of multiple bargaining units at a single employer; (2) interfering with the employer’s fundamental right to make entrepreneurial decisions; and (3) undermining employer property rights.• Honorable Mention: • DOL rules regarding “persuader activity” will ultimately change how employers deal with labor union activity.
  • 4. RECENT NLRB DECISIONS PROMOTING THE PROLIFERATION OF BARGAINING UNITS AT A SINGLE EMPLOYERSpecialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (August 26,2011). Certified nursing assistants at a nursing home may comprise an appropriatebargaining unit without including other non-professional employees at the facility. • Allows for a “single classification” bargaining unit at a single site • Would require that an employer provide “overwhelming” community of interest with other classifications to expand the bargaining unit • Paves the road for multiple bargaining units at a single-siteBoard is moving towards the elimination of the “single-site” presumption • Making it easier for unions to organize multi-site bargaining unitsUndermining the “bargaining unit configuration” strategy to both effectiveunion avoidance and efficient collective bargaining JOHN F. BOWEN, LTD
  • 5. RECENT NLRB DECISIONSSYSTEMATICALLY STRIPPING AWAY THE RIGHTS OF EMPLOYEES TO DECERTIFY UNIONS JOHN F. BOWEN, LTD
  • 6. RECENT NLRB DECISIONSNLRB INTERFERENCE WITH AN EMPLOYER’S RIGHT TO MAKE FUNDAMENTAL ENTREPRENEURIAL DECISIONS NLRB V. BOEING JOHN F. BOWEN, LTD
  • 7. Critical Impact of the Boeing Saga• April 20, 2011 – NLRB issued Complaint against Boeing claiming 8(a)(1) and 8(a)(3) violations based on its decision to locate a new manufacturing plant in North Carolina• Boeing experienced seven IAM strikes since 1934 at Seattle and Portland plants (56 day strike in 2008 cost Boeing $1.8 billion in lost revenue)• In June 2009, Boeing informed the IAM it was considering new sites for a new assembly line• Between August 27 and October 21, 2009 Boeing bargained with the IAM over the location of the new assembly line• When no agreement was reached, on October 28, 2009 Boeing announced it would build the assembly line at its existing SC facility• Complaint against Boeing claims the Company discriminatorily decided to locate the new line at a non-union facility in retaliation for and in order to chill protected activity – specifically, the union’s right to strike in Seattle and Portland
  • 8. Critical Impact of the Boeing Saga• If the General Counsel’s theory of the case is adopted as law, it would threaten the rights of employers to make entrepreneurial decisions based on the labor relations environment at competing locations: – Subjects the employer to ULP litigation any time work is placed at a non-union facility – Compliance with the duty to bargain over work relocations will not be enough to avoid liability under the NLRA – Consideration of strike history or work stoppages may be deemed to ant-union animus in any future decision making – Preference for right to work to states may be considered anti-union animus• Rationale for Boeing complaint also jeopardizes strike contingency planning: – Can the employer continue to operate by moving work or hiring replacement workers?
  • 9. RECENT NLRB DECISIONS UNDERMINE EMPLOYER PROPERTY RIGHTS • New York, New York, LLC., 356 NLRB No. 9 (March 25, 2011) Employer violated the Section 8(a)(1) of Act by prohibiting off-duty employees of a subcontractor restaurant inside the casino from distributing handbills on the hotel and casino’s property. LABOR RIGHTS TRUMP EMPLOYER PROPERTY RIGHTS• Roundy’s Inc., 356 NLRB No. 27 (November 12, 2010) Board considering increasing the ability of non-employee union organizers to access an employer’s property even if they are calling for boycotts or other harm to the employer.• Eliason & Knuth of Arizona, Inc., 355 NLRB No. 159 (August 27, 2010) Large banners are less like picketing (more regulated) and more like handbilling (less regulated) which is protected. JOHN F. BOWEN, LTD
  • 10. NEW NLRB POWERS • Parexel International, 356 NLRB No. 82 (January 2011) Board: Firing of an employee who complained about wage discrepancies was a “pre-emptive strike” against potential concerted activity. Not based on anything that the employer did, but on what the Board perceived to be the employer’s intent! JOHN F. BOWEN, LTD
  • 11. NEW “ORGANIZING RIGHTS” POSTER
  • 12. NLRB RULEMAKING AUTHORITY NEW “ORGANIZING RIGHTS” POSTER• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.• Form, join or assist a union.• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.• Discuss your terms and conditions of employment or union organizing with your co-workers or a union.• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.• Strike and picket, depending on the purpose or means of the strike or the picketing.• Choose not to do any of these activities, including joining or remaining a member of a union.
  • 13. NLRB RULEMAKING AUTHORITY NEW “ORGANIZING RIGHTS” POSTER• ALL PRIVATE EMPLOYERS AT ALL EMPLOYMENT LOCATIONS (WHETHER UNIONIZED OR NON- UNIONIZED) MUST POST• EFFECTIVE DATE IS NOW JANUARY 31, 2012• LEGAL CHALLENGES TO POSTING REQUIREMENT – REQUIRING THIS TYPE OF NON-REMEDIAL NOTICE IS BEYOND THE SCOPE OF THE BOARD’S STATUTORILY MANDATED AUTHORITY
  • 14. NLRB SOCIAL MEDIA INITIATIVESANALYSIS OF THE ACTING GENERAL COUNSEL’S REPORT CONCERNING SOCIAL MEDIA CASES (OM 11-74)
  • 15. • Cases generally fall into two categories: • Challenging discipline based on employee conduct at social media sites • Challenging an employer’s social media policy as overbroad and unlawfully restricts employees rights under Section 7 of the NLRA• When is employee social media conduct protected? • Employee is engaged in protected concerted activity if: • Employee acts with the authority of other employees • Employee seeks to initiate, induce, or prepare for group action • Employee brings “truly group complaints” to management’s attention • Employee discussions must be a logical outgrowth of group action or collective goals • Activity is not protected when the employee acts alone or on his/her own behalf• Disparaging comments about an employer and/or supervisors is generally protected unless: • Unrelated to a dispute over working conditions • Focus only on the employer’s products or business policies • Are reckless or maliciously untrue • Appeal to prejudices • Constitute insulting or obscene attacks
  • 16. • Although cases are very fact specific – some general guidelines emerge • Conduct on social media sites that expressly engage co-workers or seeks to promote group action regarding terms and conditions will be protected • If the activity implicitly or explicitly promotes group action or solicits co-worker comments it will likely be protected • If it actually generates co-worker comments or a discussion it will be protected • If the activity is neither directed to co-workers nor engages co- workers or does not address issues of mutual concern, it will likely be unprotected • Disparaging comments likely protected even if they contain rude or vulgar language • Discriminatory comments or those promoting unlawful action are not protected.
  • 17. • Lawful Scope of a Social Media Policy • An employer violates Section 8(a)(1) if it maintains a policy that “reasonably tends to chill” employees in the exercise of Section 7 rights. • If a policy does not expressly limit Section 7 rights, it would “reasonably tends to chill” if: • Employees would reasonably construe the language to prohibit protected activity • Policy was promulgated in response to union activity • Policy was applied and enforced to restrict the exercise of protected activity
  • 18. • Examples of Unlawful Policies • Prohibition against posting pictures that depict the company considered unlawfully broad – may prevent picket signs or t-shirts with company logo • Prohibition against communication that compromised privacy, embarrassed or defamed the employer, or damaged its goodwill considered unlawfully broad because it did not define “privacy” or expressly exempt Section 7 activity • Prohibition of disclosure of “inappropriate or sensitive information” about employer considered unlawful without definition or guidance as to what is prohibited • Prohibition against using company name, address, and information about employees unlawfully interfered with the ability to find and communicate with co-workers • Prohibition against revealing personal information about co-workers considered unlawfully broad – could chill discussion of wages and other terms and conditions • Prohibition against “disrespectful conduct” or “rude or discourteous behavior” was unlawfully overbroad without disclaimer regarding Section 7 rights
  • 19. NLRB IN THE NEWS NLRB PROPOSES NEW RULES TO “STREAMLINE” UNION ORGANIZING• Election petitions filed electronically• Pre-election hearings scheduled seven days after notice• Significantly shorten campaign period – Could be as short as 5-10 days after filing the petition!• Post-election hearings will be scheduled 14 days after the votes are tallied• Revised guidelines on bargaining unit composition JOHN F. BOWEN, LTD
  • 20. BLUEPRINT FOR EMPLOYERS THREE PRONG APPROACH TO UNION AVOIDANCE PREVENT  Actions to keep employees from considering union organizing  Actions to reduce vulnerability to union organizing PREPARE  Actions to protect the workplace from union organizing tactics RESPOND  Actions to prepare for “quickie campaigns” JOHN F. BOWEN, LTD
  • 21. BLUEPRINT FOR EMPLOYERS THREE PRONG APPROACH TO UNION AVOIDANCE PREVENT  Actions to keep employees from considering union organizing  Actions to reduce vulnerability to union organizing PREPARE  Actions to protect the workplace from union organizing tactics RESPOND  Actions to prepare for “quickie campaigns” JOHN F. BOWEN, LTD
  • 22. PREVENT POSITIVE EMPLOYEE RELATIONS  Communication strategies  Respond to employee issues and concerns  Focus on “employee engagement” PROACTIVE POLICIES, PROCEDURES & PRACTICES  Develop foundation for positive employee relations  Prevent potential unfair labor practices PROTECT THE WORKPLACE  Lawful restrictions regarding solicitation, distribution, and access  Reduce vulnerability to aggressive “pressure tactics” JOHN F. BOWEN, LTD
  • 23. prepare COMMUNICATION STRATEGY  Highlight Company strengths  Lay foundation to respond to union organizing SUPERVISOR TRAINING  Recognizing the early warning signs of union organizing  Union avoidance tactics  Develop effective front-line communicators  Prevent potential unfair labor practices STRATEGIC PLANNING  Vulnerability analysis based on union activity and strategies  Implement anti-salting system  Review bargaining-unit configurations • Supervisors and management – key communicators • Expand or retract potential bargaining units JOHN F. BOWEN, LTD
  • 24. respond CAMPAIGN-IN-A-CAN  Design pre-fab campaign calendar  Prepare draft speech outlines  Written communications and posters designed for your company  Pre-planning for potential NLRB hearing issues  Logistics planning RAPID RESPONSE TEAM  Identify and train key communicators  Up to date research and analysis of union activity in the industry and in the geographic proximity REAL-TIME RESPONSE  Update pre-fab campaign calendar for a real-time campaign calendar  Respond to issues and union communications JOHN F. BOWEN, LTD
  • 25. QUESTIONS?
  • 26. John F. Bowenjfbowen@johnfbowen.com

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