nlrb ambush elections have arrived - are you ready philadelphia
TRANSCRIPT
NLRB “Ambush” Elections
Have Arrived:
Are You Ready Philadelphia?
Are
April 13, 20141
Ben HuggettShareholder
Littler Mendelson, P.C.
Philadelphia Office
(267) 402-3035
Presented by:
Nina K. MarkeyShareholder
Littler Mendelson, P.C.
Philadelphia Office
2
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.
– 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
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
• 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
• 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
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
Handbook ProvisionsFalse 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
Handbook ProvisionsDisparagement 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
Handbook ProvisionsInappropriate 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
Handbook ProvisionsConflicts 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
Handbook ProvisionsOff-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
Handbook ProvisionsProhibition 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
Handbook ProvisionsRecording 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
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
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
20152011 2012 2014
DECEMBER:Final rule published
MAYFederal District Court invalidated first rule
FEBRUARYNLRB re-issued NPRM
APRIL 14Effective Date
2013
Ambush Elections:
A Brief History
APRILPublic hearing and comments given
DECEMBERFinal rule published
JUNE:NLRB initially released Notice of Proposed Rulemaking (NPRM) re: new election rules
APRILRule first went into effect
18
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
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
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
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
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
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
“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
“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
“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
Industry27
Questions?
28
“Ambush” Elections
Have Arrived:
Are You Ready
Philadelphia?
April 10, 2015Ben HuggettShareholder, Littler Mendelson, P.C.
Nina K. MarkeyShareholder, Littler Mendelson, P.C.
29