Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.
NLRB “Ambush” Elections
Have Arrived:
Are You Ready Philadelphia?
Are
April 13, 2014
1
Ben Huggett
Shareholder
Littler Mendelson, P.C.
Philadelphia Office
TBHuggett@littler.com
(267) 402-3035
Presented by:
Nin...
The General Counsel’s
Report on Employer Rules
3
• GC Richard Griffin issued the Report in a stated effort to
provide guidance on valid employer rules under the NLRA.
– Th...
Background: Board’s Scrutiny of
Workplace Rules & Policies
• An employer violates Section 8(a)(1) of the NLRA
by maintaini...
• The NLRB will find a rule unlawful if employees would
reasonably construe the language to prohibit protected
activity.
–...
• When the Board finds an overly broad work rule in effect,
the traditional remedies can be far-reaching and include:
– Re...
Handbook Provisions
Confidential Information
Disclosure of “work matters” or any information about
the employer that is “n...
Handbook Provisions
False Statements
The employer’s rule prohibited making “false, vicious,
profane or malicious statement...
Handbook Provisions
Disparagement of the Employer
You agree that you will not (nor will you cause or
cooperate with others...
Handbook Provisions
Inappropriate and Offensive Conduct
Rule prohibited “insulting, embarrassing, hurtful or
abusive comme...
Handbook Provisions
Conflicts of Interest
“Employees may not engage in any action that is not in the
best interest” of the...
Handbook Provisions
Off-Duty Access
“Team members must leave the premises after hours. You
should only be on company prope...
Handbook Provisions
Prohibition on Use of Logos and Trademarks
“Do not use any Company logos, trademarks, graphics
or adve...
Handbook Provisions
Recording in the Workplace
Rule prohibited “taking unauthorized pictures or video
on company property....
What Do We Do Now?
Review our ASAP and use it as a checklist to flag potential
land mines in your rules and policies.
Revi...
Background to the New Rule
• Current Rules:
– Median number of days from petition to election = 38 days
– Most elections s...
20152011 2012 2014
DECEMBER:
Final rule published
MAY
Federal District Court
invalidated first rule
FEBRUARY
NLRB re-issue...
Key Changes:
Petition and Notice of Petition
• Petition likely emailed not faxed
• New Notice of Petition for Election pos...
Key Changes: Statement of Position
• New Statement of Position
– Due one business day before hearing (hearing generally se...
Key Changes:
Hearing and Post-Hearing
• Accelerated pre-election hearing (eight days after
Notice)
– No litigation of elig...
Key Changes: Voter (Excelsior) List
• Employers must provide voter list within two
business days of regional director’s
ap...
Key Changes:
Post-Election Objections
• The Final Rule provides for an expedited
process for filing Objections to conduct
...
Possible Election Timeline Using New Rules
SUNDAY MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY SATURDAY
1 2 3 4 5 6
 Petition...
“Ambush” Elections:
Preparing for the New Reality
• Select and Develop a Rapid Response Team
• Ensure Effective Supervisor...
“Ambush” Elections:
Preparing for the New Reality
• Conduct Vulnerability Assessments
– Ensure Employees are Treated Fairl...
“Ambush” Elections:
Preparing for the New Reality
• Ensure Employees Know Your Position
on Unions
• Ensure Supervisors and...
Questions?
28
“Ambush” Elections
Have Arrived:
Are You Ready
Philadelphia?
April 10, 2015
Ben Huggett
Shareholder, Littler Mendelson, P....
Upcoming SlideShare
Loading in …5
×

NLRB Ambush Elections Have Arrived - Are You Ready Philadelphia

461 views

Published on

  • Be the first to comment

  • Be the first to like this

NLRB Ambush Elections Have Arrived - Are You Ready Philadelphia

  1. 1. NLRB “Ambush” Elections Have Arrived: Are You Ready Philadelphia? Are April 13, 2014 1
  2. 2. Ben Huggett Shareholder Littler Mendelson, P.C. Philadelphia Office TBHuggett@littler.com (267) 402-3035 Presented by: Nina K. Markey Shareholder Littler Mendelson, P.C. Philadelphia Office nmarkey@littler.com 2
  3. 3. The General Counsel’s Report on Employer Rules 3
  4. 4. • GC Richard Griffin issued the Report in a stated effort to provide guidance on valid employer rules under the NLRA. – The report acknowledges the difficulty of applying the Board’s test concerning workplace rules. – Even “well-intentioned rules” may inhibit employees from engaging in protected activities, and therefore may be considered unlawful. – The Report provides illustrations of rules the GC considers lawful, or unlawful. – It is a guide for management, and also for charging parties. Report on Employer Rules 4
  5. 5. Background: Board’s Scrutiny of Workplace Rules & Policies • An employer violates Section 8(a)(1) of the NLRA by maintaining rules or policies that interfere with, restrain or coerce employees in the exercise of rights guaranteed by Section 7 of the NLRB, even if the employer did not adopt them in response to union activity or protected concerted activities, and even if the employer has not enforced them, through disciplinary action or otherwise, in a manner that results in actual interference with employee rights. Lafayette Park Hotel, 326 NLRB 824 (1998) 5
  6. 6. • The NLRB will find a rule unlawful if employees would reasonably construe the language to prohibit protected activity. – Penalizes rules not based on how they are applied or actually interpreted, but how the Board believes a reasonable employee would view them. – As the agency charged with enforcing employee rights to engage in zealous organizing and workplace advocacy, the Board’s views frequently are surprising and seem idiosyncratic. – Since 2012 the Board has construed rules against the employer, and now expects rules to be drafted to prevent misunderstandings. – This Board will continue to push the envelope in employer rules cases by invalidating provisions that do not preclude an interpretation that would be unlawful. NLRB’s Rules For Workplace Rules 6
  7. 7. • When the Board finds an overly broad work rule in effect, the traditional remedies can be far-reaching and include: – Requiring the employer to remove or replace the rule and notify employees this has been done; – Requiring the employer to post and distribute Notices to Employees previously covered by the rule, acknowledging wrongdoing; – Overturning an otherwise valid discharge decision that was based on the overly broad rule; and – Vacating a representation election that occurred while the rule was in effect, and ordering the election to be re-run Impact of Invalid Rules 7
  8. 8. Handbook Provisions Confidential Information Disclosure of “work matters” or any information about the employer that is “not public” is prohibited. Unlawful. Confidentiality rules that implicitly or explicitly encompass employee information, personnel information, or employment terms, generally are unlawful. The foregoing rule could be construed to prohibit workplace conditions or other protected subjects from being discussed. 8
  9. 9. Handbook Provisions False Statements The employer’s rule prohibited making “false, vicious, profane or malicious statements” about the employer or coworkers. Unlawful. Punishing employees for making merely false statements, as opposed to maliciously false statements, is overbroad. 9
  10. 10. Handbook Provisions Disparagement of the Employer You agree that you will not (nor will you cause or cooperate with others to) publicly criticize, ridicule, disparage or defame the Company or its products, services, policies, directors, officers, shareholders, or employees, with or through any written or oral statement or image.... Unlawful. Within certain limits employees are allowed to criticize their employer and employees sometimes do so in appealing to the public or fellow employees to gain their support. 10
  11. 11. Handbook Provisions Inappropriate and Offensive Conduct Rule prohibited “insulting, embarrassing, hurtful or abusive comments about other employees.” Unlawful. Debates about unionization are often contentious and controversial, and the rule could be viewed as limiting employees’ ability to honestly discuss such subjects. 11
  12. 12. Handbook Provisions Conflicts of Interest “Employees may not engage in any action that is not in the best interest” of the employer. Unlawful. The rule failed to state that it would not be applied to the exercise of employee rights. 12
  13. 13. Handbook Provisions Off-Duty Access “Team members must leave the premises after hours. You should only be on company property during your scheduled work hours or for other authorized company business.” Unlawful. A no-access rule for off-duty employees is valid only if it limits access solely with respect to the interior of the premises and other working areas, it is clearly disseminated to all employees, and it applies to off-duty employees seeking access for any purpose and not just employees engaging in union activity. In addition, a rule denying off-duty employees access to parking lots, gates and other outside nonworking areas is invalid unless sufficiently justified by business reasons. 13
  14. 14. Handbook Provisions Prohibition on Use of Logos and Trademarks “Do not use any Company logos, trademarks, graphics or advertising materials” in social media postings. Unlawful. Workplace rules must not prohibit employees’ fair protected use of the employer’s intellectual property, such as using the employer’s name and logo on picket signs, leaflets and other protest materials. 14
  15. 15. Handbook Provisions Recording in the Workplace Rule prohibited “taking unauthorized pictures or video on company property.” Unlawful. Restricting recordings could prevent employees from engaging in concerted activities, such as posting a photo of employees carrying a picket sign, documenting a health or safety concern, or discussing or making complaints about statements made by the employer or fellow employees. 15
  16. 16. What Do We Do Now? Review our ASAP and use it as a checklist to flag potential land mines in your rules and policies. Review any potentially ambiguous rules with knowledgeable legal counsel. Almost all allegedly overbroad rules can be clarified to meet workplace requirements – spend time drafting corrections or replacing old rules to account for the NLRA perspective. Let us know if you have any questions. 16
  17. 17. Background to the New Rule • Current Rules: – Median number of days from petition to election = 38 days – Most elections scheduled by NLRB within 6 weeks • New rules: – Elections likely to be held within 2-3 weeks • Union win rate continues to climb: – 2012: 63.2% – 2013: 64.7% – 2014: 68.0% 17
  18. 18. 20152011 2012 2014 DECEMBER: Final rule published MAY Federal District Court invalidated first rule FEBRUARY NLRB re-issued NPRM APRIL 14 Effective Date 2013 Ambush Elections: A Brief History APRIL Public hearing and comments given DECEMBER Final rule published JUNE: NLRB initially released Notice of Proposed Rulemaking (NPRM) re: new election rules APRIL Rule first went into effect 18
  19. 19. Key Changes: Petition and Notice of Petition • Petition likely emailed not faxed • New Notice of Petition for Election posted two business days from service by Region – If not posted, can be grounds to set aside election – Email distribution and electronic posting may be required • Practical Impact – Check emails! Unsuspecting employers could receive email service of Petition, not read email timely and/or simply not post Notice of Petition timely 19
  20. 20. Key Changes: Statement of Position • New Statement of Position – Due one business day before hearing (hearing generally set eight days after service of Petition and Notice of Hearing) – Must identify all issues for hearing or waived – Must include list of prospective included voters (as well as voters to exclude) along with job classifications, shifts, and work locations • Practical Impact – Issues for hearing must be analyzed immediately and readied for hearing and disclosed to NLRB – Union has list of employee names and work info within about a week of filing Petition 20
  21. 21. Key Changes: Hearing and Post-Hearing • Accelerated pre-election hearing (eight days after Notice) – No litigation of eligibility issues that are unnecessary to determine if election is appropriate – Generally, oral argument and no post-hearing brief – No automatic stay of election to consider request for review • Practical Impact – Few issues will be litigated pre-petition, creating problems with some voters potentially feeling disenfranchised and/or fractured units – Supervisory status potentially left unresolved, creating significant problems for employers 21
  22. 22. Key Changes: Voter (Excelsior) List • Employers must provide voter list within two business days of regional director’s approval/direction of election (reduced from seven days) • In addition to names and home addresses, list must disclose available home and cell phone numbers, personal email addresses, as well as employees’ work locations, shifts, and job classifications • Practical Impact – Union organizers can quickly and easily connect with employees – Employers must have these comprehensive lists accurately maintained and ready to go 22
  23. 23. Key Changes: Post-Election Objections • The Final Rule provides for an expedited process for filing Objections to conduct affecting an election: – Objections and supporting evidence must be filed within seven days of election – Hearing scheduled within 21 days of election • Practical Impact – Post-petition, employers must be able to immediately assess whether Objections should be filed and assemble the company’s best evidence before the week is out 23
  24. 24. Possible Election Timeline Using New Rules SUNDAY MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY SATURDAY 1 2 3 4 5 6  Petition filed  Notice of Hearing issued  Notice of Petition posted 7 8 9 10 11 12 13  Statement of Position filed  Pre-election Hearing held  Decision and Direction of Election issued  Notice of Election posted (If 10-day period for voting list waived)  Voting List filed 14 15 16 17 18 19 20  Election (If 10 day period for voting list waived)  Notice of Election posted (If 10-day period for voting list not waived) 21 22 23 24 25 26 27  Election (If 10-day period for voting list not waived) 28 29 30 31 24
  25. 25. “Ambush” Elections: Preparing for the New Reality • Select and Develop a Rapid Response Team • Ensure Effective Supervisory Training • Analyze Potential Micro Units and Other Unit Issues • Determine Statutory Supervisors • Update and Assemble Employee Data for Lists • Assess Methods of Communication for Campaign and Communication Logistics • Review Lawfulness of Company Policies • Understand Potential Solicitation and Distribution of Literature Issues 25
  26. 26. “Ambush” Elections: Preparing for the New Reality • Conduct Vulnerability Assessments – Ensure Employees are Treated Fairly and there is No Favoritism – Ensure Employees are Treated with Dignity and Respect – Ensure Robust Employee Appreciation Programs – Assess Supervisor / Manager Performance – Ensure Effective Two-Way Communication and Opportunities for Employee Involvement – Ensure Consistent Application of Rules and Policies 26
  27. 27. “Ambush” Elections: Preparing for the New Reality • Ensure Employees Know Your Position on Unions • Ensure Supervisors and Managers are Comfortable Stating the Company’s Position on Unions • Keep a List of Accomplishments – Your Positive Track Record • Ensure Employees Understand Value of Wage and Benefits Package • Do Your Homework on Unions Likely to Target You • Forge Relationships within Community and Industry 27
  28. 28. Questions? 28
  29. 29. “Ambush” Elections Have Arrived: Are You Ready Philadelphia? April 10, 2015 Ben Huggett Shareholder, Littler Mendelson, P.C. TBHuggett@littler.com Nina K. Markey Shareholder, Littler Mendelson, P.C. nmarkey@littler.com 29

×