3. 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”
4. “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.
5. RECENT NLRB DECISIONS
PROMOTING THE PROLIFERATION OF BARGAINING UNITS
AT A SINGLE EMPLOYER
Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (August 26,
2011). Certified nursing assistants at a nursing home may comprise an appropriate
bargaining 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-site
Board is moving towards the elimination of the “single-site” presumption
• Making it easier for unions to organize multi-site bargaining units
Undermining the “bargaining unit configuration” strategy to both effective
union avoidance and efficient collective bargaining
JOHN F. BOWEN, LTD
7. RECENT NLRB DECISIONS
NLRB INTERFERENCE WITH AN EMPLOYER’S RIGHT TO
MAKE FUNDAMENTAL ENTREPRENEURIAL DECISIONS
NLRB V. BOEING
JOHN F. BOWEN, LTD
8. 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
9. 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?
10. 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
11. 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
13. 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.
14. 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
15. NLRB SOCIAL MEDIA INITIATIVES
ANALYSIS OF THE ACTING GENERAL COUNSEL’S REPORT
CONCERNING SOCIAL MEDIA CASES (OM 11-74)
16. • 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
17. • 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.
18. • 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
19. • 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
20. 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
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. 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
23. 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
24. 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
25. 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
