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: 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. 3 The Process Is Changing: Recent NLRB Moves to Empower Unions © 2012 Vedder Price P.C. 4 Where Are We Now? 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. 5 NLRB Is Pushing Union Agenda by Changing the Rules 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. 6 NLRB Is Pushing Union Agenda by Changing the Rules 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. 7 continued The Practical Impact of the Proposed Changes: 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. 8 Getting Ahead of the Changes: 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. 9 NLRB’s Notice Posting Rule 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. 10 © 2012 Vedder Price P.C. 11 Policies and Practices to Improve Morale, the Likelihood of Remaining UnionFree and Productivity © 2012 Vedder Price P.C. Management Commitment Care About Your Employees Trained, Effective Supervisors © 2012 Vedder Price P.C. Communication TWO-WAY SHARE INFORMATION Communicate Expectations Department and Small Group Meetings Written Vehicles— Handbook, Newsletters, Bulletin Boards © 2012 Vedder Price P.C. Be Visible/Accessible Human Resources Communicate to Employees Your Desire to Remain Union-Free LISTEN Disadvantages of Unions To Supervisors 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. To Employees Dues, Assessments and Fines Less Ability to Deal Directly with Management Possible Strikes Union Politics and Rules Discipline Reasonable, Well-communicated Rules with Known Consequences Fair Consistent Private/Respectful Thorough Investigation © 2012 Vedder Price P.C. Recognition Meaningful Praise Awards Celebrations Team-building/Civic/Sports Activities © 2012 Vedder Price P.C. Competitive Pay and Benefits © 2012 Vedder Price P.C. Working Conditions Safety Predictable Hours Favoritism Poor Working Environment (break areas, restrooms, housekeeping, equipment) © 2012 Vedder Price P.C. Complaint Procedure Communicated Accessible Practical © 2012 Vedder Price P.C. No-solicitation Policy 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 The Classic type that could help give a union a Toehold: “Boss” Insecure Inconsistent Dishonest Cursing “Playboy/Playgirl” Reactionary Invisible © 2012 Vedder Price P.C. continued Supervisors How to Prevent Selection Training Competitive Pay/Benefits Fair Treatment Recognition Two-way Communication Part of Team © 2012 Vedder Price P.C. Employees Whom Unions Exploit 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 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 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 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 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 Identify the Issues Supervisory Training—TIPS NLRB Process Appropriate Bargaining Unit Election Details Voter Eligibility List Proactive Communication One-on-One Employee Meetings Written Communications © 2012 Vedder Price P.C. New NLRB Is Pushing Union Agenda Through New Initiatives Boeing 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. 31 continued New NLRB Is Pushing Union Agenda Through New Initiatives Boeing, continued 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. 32 continued New NLRB Is Pushing Union Agenda Through New Initiatives Protections for social media and company email use Hispanics United of Buffalo, Inc., Case No. 3-CA-27872 (Sept. 6, 2011) Employer violated the NLRA by terminating employees for making workplace complaints on Facebook Arizona Daily Star, Case No. 28-CA-23267 (Apr. 21, 2011) 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. 33 continued New NLRB Is Pushing Union Agenda Through New Initiatives Protections for social media and company email use, continued Knauz BMW, Case No. 13-CA-46452 (Sept. 28, 2011) 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: 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. 34 continued New NLRB Is Pushing Union Agenda Through New Initiatives Protections for social media and company email use, continued 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 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 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. 35 Other NLRB Initiatives “Electronic” notice postings Enhanced monetary remedies in union activity cases Tougher “nip in the bud” enforcement Accelerated investigations Increase in 10j interim injunctions © 2012 Vedder Price P.C. 36 Other Recent Decisions Are Changing the Landscape Too 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) Employers can’t implement arbitration policies prohibiting class action arbitrations © 2012 Vedder Price P.C. 37 Where Are We Now? 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. 38 Questions? © 2012 Vedder Price P.C. 39 James A. Spizzo Mark L. Stolzenburg Shareholder T: +1 (312) 609 7705 F: +1 (312) 609 5005 E: jspizzo@vedderprice.com Associate T: +1 (312) 609 7512 F: +1 (312) 609 5005 E: mstolzenburg@vedderprice.com © 2012 Vedder Price P.C. 40