BUCKLE UP! How the NLRB is Changing the Rules of the Road

© 2014 Armstrong Teasdale
LLP
LLP
The National Labor
Relations Board in 2014
It could be a very bumpy ride
J.P. Hasman
Presented by
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Road Map
 Introduction
 Current State of Affairs
 The General Counsel Agenda
 The New Election Rules
 Recent Cases
 Food for Thought
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Your Tour Guide for Today
 Spent a year and a half in the
Office of the Solicitor at NLRB
Headquarters when John Higgins
was the Solicitor
 Field Attorney in Region 14 – St.
Louis from 2001 to 2005
 Former member of the UFCW
 Former President of NLRBU –
Local 14
 Contributing Editor to the
Developing Labor Law
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Current State of Affairs
 2013 Unionization rates.
• Public sector has a rate of 35.3%
• Private Sector has a rate of 6.7%
• Il – 16%; MO – 10%; KS – 8%
 93% of unrepresented employees represents a
tremendous opportunity for growth.
 FY 2013 petitions filed – 1,986 RC and 472 RD
petitions.
 Unions won 64% of the RC elections that took place
and 39% of the RD elections.
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Current State of Affairs (cont’d)
 For FY 2013 the NLRB processed 21,394 unfair
labor practice charges.
 The Regional Offices issued 1,272 complaints.
 Of the cases that were litigated the NLRB won 85%.
 Regional Offices used investigative subpoenas in 740
cases.
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State of Affairs (cont’d)
National Labor Relations Board
 Fully constituted and Senate confirmed Board and
General Counsel.
 The Supreme Court might order the new Board to
revisit decisions of the previous Recess Appointed
Board.
 While the Board rules on cases and can make new
law, the General Counsel decides what cases to
litigate and what new areas of the law to pursue and
bring to the Board.
 The GC has stated a number of priorities:
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NLRB General Counsel
Agenda
 Confirmed for a 4-year term that will last into 2017.
 Formerly the general Counsel of the International
Union of Operating Engineers.
 Oversees all Regional Offices and directs whether to
pursue changes to the law.
 Issued a Memo on February 25, 2014 to all Regional
Offices regarding what cases he wants submitted to
Headquarters so he could provide direction.
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General Counsel Initiatives
 Whether successor employers should have the right to set
initial terms and conditions of employment without
bargaining with the predecessor’s union.
 Whether employees should have the right to use an
employer’s
e-mail system for purposes of engaging in Section 7
activity.
 Whether employees at non-unionized companies have the
right to have other employees with them during company
investigatory interviews.
 Whether companies must provide information about their
finances to a union during or before negotiations.
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General Counsel Initiatives (cont’d)
 At-will provisions in Handbooks.
 Whether an employer must bargaining with a newly
certified union over discreet discipline decisions.
 Mandatory arbitration agreements with employees
that prohibit class-actions.
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NLRB Agenda
 New Election Procedures
• First went into effect in April 2012.
• Stayed pending legal action in the D.C. Circuit.
• Board voluntarily dismissed its appeal on December 9,
2013.
• Rules were re-issued and the NLRB held public
hearings on the proposed rules.
• Anticipate this Board to make the same decisions the
previous Board made.
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New Election Rules
Current Rules New Rules
Initial hearing 7-14 days
from filing of petition for
election.
Presume 7 days. More
difficult to get a
postponement.
Most voter eligibility issues
could be eliminated prior to
the election at hearing.
Only issues that relate to
whether a QCR exists.
Presume post-hearing
briefs.
Post-hearing briefs only
upon request.
Presume election 42-days
after petition (if no hearing).
Presume election 7-14 days
after petition.
Request for Review of
decision allowed.
Requests for Review only
granted in extraordinary
circumstances.
Post election appeal a right. Post election appeal at
Board discretion.
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Why is 42 Days Versus 10 Days
Important
Petition filed (1) (2)
Letter to
homes
about
petition
(3) (4)
Letter to
home with
election
details
(5) (6)
(7)
What is a
union?
(8)
Posting 1
Constitution
(9) (10)
Posting 2
financials
(11) (12)
Posting 3– Oath of loyalty
Speech #1; letter to homes
#3
(13)
(14)
Dues
(15)
Posting 4
Dues calculation
(16) (17)
Posting 5
What could you
buy?
(18) (19)
Posting 6
Dues vs. 401(k)
Speech #2; Letter to
homes #4
(20)
(21)
Collective
Bargaining
(22)
Posting 7
CB defined
(23) (24)
Posting 8
Could lose in
bargaining
(25) (26)
Posting 9
Union Security/Dues
checkoff
Speech #3; letter to homes
#5
(27)
(28)
Strikes
(29)
Posting 10
What is a strike?
(30) (31)
Posting 11
History of union
strikes
(32) (33)
Posting 12 – permanent
replacements; Speech 4;
letter to homes #6
(34)
(35)
We are a
good
(36)
Posting 13 –
reminder of good
(37)
25th Hour
Speech –
(38)
25th Hour
Speech
(39)
NO
CAMPAIGN
(40)
ELECTION
(41)

LLP
Micro Units
 A result of the NLRB decision in
Specialty Healthcare.
• So long as the petitioned for
unit consists of a readily identifiable group of
employees the Board will presume it is appropriate.
• Why do we care?
− Smaller units are easier to organize, easier to organize
quietly and quicker to organize.
− The standard coupled with the new election rules greatly
reduces the ability for a pre-election hearing.
− The result may be more uncertainty not less.
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Continued Focus on Non-Union
Employers
 Non-union employees still have the right to engage in
protected concerted activity and the Board wants that
group to know it.
• Talk about their benefits, pay, bonuses, supervisors,
bosses, etc.
• Talk about those issues to the media, on social media,
etc.
• Talk about those issues using your company e-mail if
you permit use of e-mail for the discussion of other
topics.
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Cases we have already seen from the
New Board
 First Transit (April 2014):
• Board found employer violated the law by having a rule in
its handbook prohibiting discourteous or inappropriate
behavior or attitude;
 Hills and Dales General Hospital (April 2014):
• We will not make negative comments about our fellow
team members and we will take every opportunity to speak
well of each other.
• We will not engage in or listen to negativity or gossip. We
will recognize that listening without acting to stop it is the
same as participating.
• We will represent Hills and Dales in the community in a
positive and professional manner in every opportunity.
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Cases (cont’d)
 Flex Flak (March 2014 5th Cir. Decision):
• Employees deal with and have access to information that must
stay within the Organization. Confidential Information includes,
but is not limited to, information that is related to: our customers,
suppliers, distributors; ... organization management and
marketing processes, plans and ideas, processes and plans, our
financial information, including costs, prices; current and future
business plans, our computer and software systems and
processes; personnel information and documents, and our
logos, and art work. No employee is permitted to share this
Confidential Information outside the organization, or to remove or
make copies of any [employer] records, reports or documents in
any form, without prior management approval. Disclosure of
Confidential Information could lead to termination, as well as
other possible legal action.
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Cases (cont’d)
 Kroger (April 22nd 2014)
• ONLINE COMMUNICATIONS POLICY
− If you identify yourself as an associate of the Company and
publish any work-related information online, you must use this
disclaimer: The Postings on this site are my own and don’t
necessarily represent the position, strategies or opinions of the
Kroger Co. family of stores. – UNLAWFUL, despite earlier GC
guidance that it was lawful
− You must comply with copyright, fair use and financial disclosure
laws, and you must not use without permission or compromise
in any way the Company’s intellectual property assests (like
copyright, trademarks, patents or trade secrets – including for
example, Kroger or banner logos, or trade names of products, or
non-public information about the Company’s business
processes, customers or vendors. - UNLAWFUL
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Cases (cont’d)
 Kroger Continued:
− When on-line, do not engage in behavior that would be
inappropriate at work and that will reflect a negative or
inaccurate depiction of our Company. - UNLAWFUL
− Do not comment on rumors or speculation to the
Company’s business plans. - UNLAWFUL
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Cases (cont’d)
 Northwestern Football players
• Decision by the Regional Director that football players
are really employees and not students.
• Northwestern is requesting review with the Board.
 UAW Organizing Attempt in Volkswagen in
Chattanooga, TN
• UAW lost the election but filed objections based on
statements by politicians.
• UAW withdrew objections on the eve of hearing.
• Why?
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Food for Thought
 Need to assume new election rules will go into
effect.
 Assume legal challenges will be filed but doubtful they
will be successful.
 Need to conduct critical self-assessment of policies and
practices before union organizing begins.
• Once you become aware of union organizing it is too late.
Changing your policies and practices will be deemed
unlawfully motivated if done in response to union
organizing.
 Need to analyze who is and who is not really a supervisor
as defined by the NLRA – an issue that has been subject
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Food for Thought
 Need to identify strategy for responding to
Union organizing.
• Who is the best spokesperson?
• What is the best way of informing employees about
your position regarding unionization?
• Do you get that message to your employees and their
families now instead of waiting?
 Need to ensure all members of management are
armed with the tools to lawfully discuss unionization
with employees.
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Bonus Topic
 Right to Work
• What is it?
• Why is it important ?
− To Unions
− To employees
− To companies
• Where does it stand in MO?
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LLP
Contact
J.P. Hasman
jhasman@armstrongteasdale.com
314.621.5070
CLE Code: JH0412
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BUCKLE UP! How the NLRB is Changing the Rules of the Road

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