The Obama Labor Board and Its Impact

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IMA BREAKFAST BRIEFING:
The Obama Labor Board and
Its Impact on Manufacturers
January 18, 2012
Mon Ami Gabi
Oak Brook Center Mall
Oak Brook
© 2012 Vedder Price P.C.
Changing the Rules of the Game:
How the NLRB Is Helping
Organized Labor
James A. Spizzo
Mark L. Stolzenburg
Vedder Price P.C.
© 2012 Vedder Price P.C.
Today’s Topics:
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Recent NLRB moves to make union organizing easier
The impact of social media
Recent moves by the NLRB to help unions
Q&A
© 2012 Vedder Price P.C.
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The Process Is Changing:
Recent NLRB Moves to
Empower Unions
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Where Are We Now?
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The Employee Free Choice Act (EFCA) is dead
Union membership in private industry is down to 6.9%,
lowest in over a century. But they win 70% of elections
60% increase in workers organized through NLRB
elections
Unions are searching for new organizing avenues
Unions are using new technologies (Facebook, Twitter,
blogs)
NLRB makeup is now union-friendly
© 2012 Vedder Price P.C.
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NLRB Is Pushing Union Agenda by
Changing the Rules
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The NLRB published a new rule on
December 22, 2011 regarding election
procedures
These changes are designed to speed up the
time between the time that a union files a
petition and an election
The main change is to generally eliminate preelection hearings, a tool that many employers
find useful when trying to gain more time for
campaigns
© 2012 Vedder Price P.C.
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NLRB Is Pushing Union Agenda by
Changing the Rules
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Any questions about eligibility will not be
resolved until after an election, increasing
uncertainty for employers
The new election rules will go into effect on
April 30, 2012, barring a court challenge
© 2012 Vedder Price P.C.
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continued
The Practical Impact of the
Proposed Changes:
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Assume that most elections will occur less than 42 days after a
petition is filed. Assume that employers will lose about two weeks
for time to campaign
First week is critical
Uncertainty among employees as to who is eligible to vote
You must be up and running
Union avoidance programs are more crucial than ever
© 2012 Vedder Price P.C.
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Getting Ahead of the Changes:
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Consider creating rapid response teams now
Importance of early warning system
Employee opinion surveys and a matrix for identifying high-risk
sites
Enhance existing employee relations tools and skill sets
Improve orientation and employee materials and keep abreast of
changes in the law
© 2012 Vedder Price P.C.
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NLRB’s Notice Posting Rule
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Over the summer, the NLRB finalized a rule
requiring employers to post a notice
informing employees of their right to
unionize
Implementation has been delayed until
April 30, 2012 to allow court challenges to be
decided
© 2012 Vedder Price P.C.
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© 2012 Vedder Price P.C.
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Policies and Practices to Improve
Morale, the Likelihood of Remaining
UnionFree and Productivity
© 2012 Vedder Price P.C.
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Management Commitment
Care About Your Employees
Trained, Effective Supervisors
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Communication
TWO-WAY
 SHARE INFORMATION
 Communicate
Expectations
 Department and Small
Group Meetings
 Written Vehicles—
Handbook, Newsletters,
Bulletin Boards
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© 2012 Vedder Price P.C.
Be Visible/Accessible
 Human Resources
 Communicate to
Employees Your Desire to
Remain Union-Free
 LISTEN
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Disadvantages of Unions
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To Supervisors
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Lost Flexibility
More Adversarial
Relationship
Less Teamwork/
Cooperation
Time Spent in Grievance
Activity and Negotiations
Possible Work Stoppages
Less Freedom to Deal
Directly with Employees
© 2012 Vedder Price P.C.
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To Employees
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Dues, Assessments and
Fines
Less Ability to Deal Directly
with Management
Possible Strikes
Union Politics and Rules
Discipline
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Reasonable, Well-communicated Rules with Known Consequences
Fair
Consistent
Private/Respectful
Thorough Investigation
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Recognition
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Meaningful Praise
Awards
Celebrations
Team-building/Civic/Sports Activities
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Competitive Pay and Benefits
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Working Conditions
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Safety
Predictable Hours
Favoritism
Poor Working Environment (break areas, restrooms,
housekeeping, equipment)
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Complaint Procedure
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Communicated
Accessible
Practical
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No-solicitation Policy
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Must pertain to solicitation broadly—not just union solicitation
Must be consistently applied
Can entirely ban nonemployee solicitation on Company property
Can ban distribution of literature in work areas
Can ban solicitation during working time of employee being
solicited and employee doing the soliciting
© 2012 Vedder Price P.C.
Supervisors
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The Classic type that could help give a union a Toehold:
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“Boss”
Insecure
Inconsistent
Dishonest
Cursing
“Playboy/Playgirl”
Reactionary
Invisible
© 2012 Vedder Price P.C.
continued
Supervisors
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How to Prevent
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Selection
Training
Competitive Pay/Benefits
Fair Treatment
Recognition
Two-way Communication
Part of Team
© 2012 Vedder Price P.C.
Employees Whom Unions Exploit
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Inefficient, nonproductive employee
Rebellious, antiestablishment employee
Chronically dissatisfied employee
Cause-oriented employee
Overly qualified employee
Independent, happy-go-lucky employee
© 2012 Vedder Price P.C.
Early Warning Checklist
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The nature of employee complaints changes, and frequency
increases
Employees forming in groups that include individuals who do not
normally associate with each other
Large number of policy inquiries, particularly on pay, benefits and
discipline
Employees in work areas they do not normally visit
Avoidance of supervision-employees clam up
Argumentative questions being asked in departmental meetings
© 2012 Vedder Price P.C.
continued
Early Warning Checklist
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Employees passing out cards or other materials
Increased activity/interaction on breaks
Employees coming in early/leaving late
Exit interview information indicating that people are attempting to
escape an unpleasant environment
News items placed on bulletin boards about union settlements in
local companies or other industries
Cartoons or graffiti that direct humorous hostility toward the
organization, management or supervision
© 2012 Vedder Price P.C.
continued
Early Warning Checklist
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A significant change in the rate of turnover, either upward or
downward
A number of people applying for jobs who do not have relevant
experience and appear to be willing to work for lower status and
pay than that for which their record qualifies them
An unusual interest on the part of vendors and subcontractors in
communicating with employees
Nonunion people begin meeting and talking with known union
members
© 2012 Vedder Price P.C.
continued
Early Warning Checklist
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Any other factor that appears to be out of the ordinary and seems
to be separating management from the work source
© 2012 Vedder Price P.C.
Primary Elements of Employer
Campaign
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Identify the Issues
Supervisory Training—TIPS
NLRB Process
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Appropriate Bargaining Unit
Election Details
Voter Eligibility List
Proactive Communication
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One-on-One
Employee Meetings
Written Communications
© 2012 Vedder Price P.C.
New NLRB Is Pushing Union Agenda
Through New Initiatives
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Boeing
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Well-publicized case and the reason for
congressional inquiries into the NLRB
The NLRB issued a complaint against Boeing for its
decision to locate assembly of a new model of
airliner in South Carolina, instead of its existing
facilities in the Pacific Northwest
Boeing made a number of public statements that
the reason to locate the new work in South Carolina
was past strikes by the employees in the Pacific
Northwest
The case went to trial before an administrative law
judge
© 2012 Vedder Price P.C.
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continued
New NLRB Is Pushing Union Agenda
Through New Initiatives
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Boeing, continued
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Before the judge could issue a ruling, the parties
settled the case, reaching a collective bargaining
agreement for employees in the Pacific Northwest
that included certain work guarantees
© 2012 Vedder Price P.C.
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continued
New NLRB Is Pushing Union Agenda
Through New Initiatives
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Protections for social media and company email
use
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Hispanics United of Buffalo, Inc., Case No. 3-CA-27872
(Sept. 6, 2011)
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Employer violated the NLRA by terminating employees
for making workplace complaints on Facebook
Arizona Daily Star, Case No. 28-CA-23267 (Apr. 21,
2011)
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The NLRB’s Division of Advice determined that a
reporter’s tweets about local homicides did not relate
to “mutual aid or protection,” and thus were not
protected by the NLRA
© 2012 Vedder Price P.C.
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continued
New NLRB Is Pushing Union Agenda
Through New Initiatives
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Protections for social media and company email
use, continued
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Knauz BMW, Case No. 13-CA-46452 (Sept. 28, 2011)
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In an NLRB case heard here in Chicago, an
administrative law judge determined that an
employee’s Facebook postings about an incident at
another dealership owned by the same employer were
not protected by the NLRA
Other cases where the NLRB’s Division of Advice
examined social media cases:
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Rural Metro, 25-CA-31802 (June 29, 2011)
– Comment on a US senator’s Facebook page were not
protected, where the employee did not discuss them
with others
© 2012 Vedder Price P.C.
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continued
New NLRB Is Pushing Union Agenda
Through New Initiatives
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Protections for social media and company email
use, continued
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JT’s Porch Saloon & Eatery, 13-CA-46689 (July 7, 2011)
– In another Chicago-area case, an employee’s Facebook
conversation with his sister about the employer’s tip
policies and referred to his employer’s customers as
“rednecks” were not protected because he did not discuss
the postings with co-workers, and no co-workers responded to it
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Martin House, 34-CA-12950 (July 19, 2011)
– No protection under the NLRA for an employee of a residential facility for homeless
people with significant mental issues after posting several comments on Facebook
about a client and her illness
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Wal-Mart, 17-CA-25030 (July 19, 2011)
– No protection under the NLRA for an employee’s Facebook postings about his
supervisor; the NLRB found they were individual gripes as opposed to protected,
concerted activity
© 2012 Vedder Price P.C.
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Other NLRB Initiatives
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“Electronic” notice postings
Enhanced monetary remedies in union activity
cases
Tougher “nip in the bud” enforcement
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Accelerated investigations
Increase in 10j interim injunctions
© 2012 Vedder Price P.C.
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Other Recent Decisions Are Changing
the Landscape Too
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On August 30, the NLRB struck down Dana Corp. and ruled that
employees can be held to voluntary card recognition by an
employer without the right to a secret ballot election (Lamons
Gasket Co.)
That same day, the NLRB held that employees lose any right to
decertify a union for six months to one year after a company’s
assets are sold—a key issue for those who acquire new operations
(UGL-UNICCO Service Co.)
D.R. Horton, 12-CA-25764 (Jan. 3, 2012)
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Employers can’t implement arbitration policies prohibiting class action
arbitrations
© 2012 Vedder Price P.C.
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Where Are We Now?
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The NLRB went down to 2 members. Under a recent Supreme
Court decision, it needs at least 3 members to function
The Senate will block any full-term appointments
Craig Becker’s term expired on January 3, and Republicans
indicated they would block further recess appointees
Regardless, President Obama made three new recess
appointments on January 3—two Democrats and one Republican
It is questionable whether the president had the authority to make
the recess appointments
As a result, the NLRB is in limbo—it is unclear whether any
decisions made with the three new recess appointees will be
enforceable
© 2012 Vedder Price P.C.
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Questions?
© 2012 Vedder Price P.C.
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James A. Spizzo
Mark L. Stolzenburg
Shareholder
T: +1 (312) 609 7705
F: +1 (312) 609 5005
E: [email protected]
Associate
T: +1 (312) 609 7512
F: +1 (312) 609 5005
E: [email protected]
© 2012 Vedder Price P.C.
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