NLRB Ambush Elections Have Arrived - Are You Ready Philadelphia
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NLRB Ambush Elections Have Arrived - Are You Ready Philadelphia
- 1. NLRB “Ambush” Elections Have Arrived: Are You Ready Philadelphia? Are April 13, 2014 1
- 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. The General Counsel’s Report on Employer Rules 3
- 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. 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. • 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. • 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. “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. “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. “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. Questions? 28
- 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
Notas del editor
- The stated target goal has been to hold elections within 42 days of the filing of an election petition. That is gone. Under the new rules, which are intended to speed up the process, the NLRB has been careful to say there is no goal (yet). They want to wait and see what experience tells them. The only statement is that it will be “the earliest date practicable.” Initially it may take a little longer because Regions are not ready to handle an influx of petitions under new rules. This may be particularly true of Region 4 – they only held their staff training last week and their public information session this morning. But make no mistake, the goal is to reduce the time. Win rate was at 80% for the 15 days in 2012 where employers voluntarily agreed to quick elections.
- Brief history As noted, in April 2012 there were 15 days of quick election petitions before the rule was vacated by the court because the Board did not have a proper quorum. But the unions did very well in those lections. Current cases against the rules in the District of Columbia and Texas. Neither court has acted on requests to stay the effect of the rules. This may be a signal that neither court sees a likelihood of success on the merits for those opposing the rules. This time around the arguments harder because the NLRB took the intervening 2 ½ years to fix the issues from the first litigation. And the NLRB went through a full rulemaking process. Also, although both the House and the Senate voted to utilize the Congressional Review Act to strike down the rules, the President vetoed the resolution on March 31.
- The NLRB has created multiple forms for different types of elections – RC RD RM The petition and Notice of Petition must be initially served by the union – not the Board. The rules provide that if the Petition is electronically filed with the Board, it must be emailed to the employer. But there is no clear statement as to who must receive the email. Notice of Hearing – served by Region. Usually same day as filing of Petition. Dennis Walsh stated that Region 4 will have staff calling the employer and getting contact information as soon as possible related to the Notice of Hearing. Distribution If the employer regularly communicates with employees by email, then in addition to posting the employer must distribute the Notice of Petition via email. If the employer utilizes intranet posting for regular communication with employees then it must distribute the Notice of Petition to employees that way too.
- Must normally be submitted by noon the day before the hearing. Under the old rules employers were only required to submit a written statement after a hearing when all of the evidence was in. Under special circumstances there can be a 2 day extension of time to submit the statement of position. Under extraordinary circumstances there can be a 4 day extension. In Region 4 they have already warned us that unavailability of your chosen lawyer will not usually be accepted as appropriate for delay. NLRB has completed a couple of example position statements on their website. One is for a manufacturing facility, the other is for a nursing home. There are 3 attachments which must be included A list of requested voters – with names, job classifications, shifts and work locations A list of included voters – those the employer wants added A list of excluded voters – those the employer knows Employer must serve the union with the statement of position and attachments Without list – (a) excluded from contesting the appropriateness of the proposed unit (b) Challenging eligibility of any individual based upon classification
- The general counsel’s memorandum on the modern election procedures released last week notes that the postponement of the hearing, does not postpone the position statement. There must be a separate request for that. If there is a stipulated election agreement, then neither the statement of position or the lists of employees included and excluded are due at this early date. No litigation of eligibility Is quality control clerk part of the unit or not Is the lead or foreman a supervisor or not There is no formal percentage in the rules, but the GC memo non-mandatory 20% threshold. If edibility issues raised in the petition do not affect 20% of the unit, then they will not be considered necessary to determine if an election is appropriate. Dennis Walsh – Region 4 will generally follow 20% Now there are unnecessary hearings – those where the margin of victory is greater than the number of challenged voters
- The old Excelsior Underwear case is now gone, the requirements have been established in the rules. The list is an expansion of the statement of position list of eligible voters – plus Home phone number Cell phone number Personal email - not work email “Available” is undefined. Employer may have a home phone number somewhere in its records but not in an electronic database. A supervisor may have a cell phone list so that she can call around to cover overtime, but not maintain the numbers electronically. It has be e suggested that if the numbers are not “used by” the employer then they would not be considered available. Dennis Walsh – available is anything the employer has. Even if it is just one manager’s records, those must be provided even if incomplete. Does not include company email or company provided cell phones – even if personal messages sent or calls made
- Old rule – file objections – then 5 days later file evidence. Now both must be filed at once. Basically, be ready to put on a full case within 7 days. If information is not included it will be excluded.
- The goal with this slide is to connect all the dots and show what the new procedure looks like. There are variables, but generally it should look like this. As shown, it is very easy to get an election in 22 days. The 6 week cooling off period of the old rules allowed for less emotional dialogue. Now the initial zeal of a petition may carry straight through the election day without thoughtful discussion. I want to draw your attention to the 16th day, that could be the day of the election if the union waives the 10 day period for having the eligibility list. This is a really short time to communicate the company message to employees. Especially if the company operates on unusual schedules.
- The reality is a really short time. What do you do when you don’t have 6 weeks to respond? Team. You may have a good general HR or labor group for normal business, but this is anything but normal. We strongly recommend you select and train your team. Supervisor training. What are the Do’s and Don’ts for a campaign. TIPS – FOE If supervisors are not familiar with this it will take time tot rain them and they may clam up because they are not used to it. Vulnerability analysis. It is important that employers not just analyze general vulnerability. Unions are using micro units so employers must know those issues. And prepare arguments related to appropriate units. Superviors – know the status of your foremen and leads now. Employee lists – prepare now. Even if you could do it later, that could be time spent winning hearts and minds, not on admin. Campaign communications planning. Lanugage for letters. Meetings and groups of attendees. Some company’s are planning whole 11 and 21 day campaigns. We recommended a minimum 72 hour pre paln. The first letter. The first meeting. Policies – as Nina covered. There will be no time to correct, and it will be too late. Understand the solicitation policy. Employers cannot implement a policy once organizing begins, it must be in place. And it is better if supervisors are already trained and know how to respond.
- The basics of positive employee relations. Dignity and Respect – the union will be promising that the employees will have a voice, that they will be treated with dignity and respect. Those statements from the union may have a lot less impact if they have heard it from the company first.
- Proactive activity will help manage time if a petition is filed unexpectedly. Company position – in orientation, statement in a handbook, somewhere set out why the company thinks union-free is important Not a natural conversation, must teach managers and supervisors and get them comfortable with the conversation Bragging points – not normal conversation. But it is the work that they do and they should be proud of it. Talking about it now is easy. Employees often do not know the value of what the Employer is investing in them. It is illegal to enhance it, but you can explain it. And it feeds into talking about what is at risk in collective bargaining. Know the unions. They will know you. Relationships in the community are important. An overall positive view of the company cannot hurt with a campaign.
- Will unions be filing a lot of petitions tomorrow (4/14)? It does seem that the number of petitions have slowed through March and April. We do think it is very likely that there will be a flurry of petitions filed tomorrow as unions seek to take advantage of shorter time frames and unprepared employers.