Littler's Workplace Policy Institute™ “NLRB Ambush Election Rule:

The Practical Impact on Employers”

March 24, 2014

Presented by Maury Baskin, Michael J. Lotito, Ilyse W. Schuman

Littler’s Workplace Policy Institute™

www.littler.com/wpi

Presented by:

Michael Lotito, Shareholder Littler Mendelson, P.C. San Francisco Office MLotito@Littler.com Cell: 415.722.6280

Ilyse Schuman, Shareholder Littler Mendelson, P.C. Washington, D.C. Office ISchuman@Littler.com Cell: 202.412.6399

Maury Baskin, Shareholder Littler Mendelson, P.C. Washington, D.C. Office MBaskin@Littler.com Cell: 301.922.1308

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Today’s Agenda

How Did We Get Here? NLRB Ambush Election Rule DOL Update Putting the Pieces Together Littler’s Workplace Policy Institute™

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How Did We Get Here?

Congressional stalemate Midterm elections looming Administration is increasingly turning to

Federal agencies to advance agenda

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The New NLRB

“Recess” appointees replaced, though Supreme Court challenge is proceeding (Noel Canning case) Board now has 5 confirmed Members

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National Labor Relations Board

Mark Gaston Pearce (D) Kent Hirozawa (D) Nancy Schiffer (D) Harry Johnson, III (R) Philip Miscimarra (R)

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NLRB General Counsel

Former Recess Appointee Richard Griffin, Jr.

confirmed as General Counsel

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NLRB Proposed Election Rules

June 2011 NPRM – Original NPRM published June 22, 2011

– Public hearing July 18-19, 2011

– 65,958 comments were filed plus 438 pages of oral transcript positions articulated to NLRB

December 2011 Final Rule – Final rule published December 22, 2011

– Did not include all proposed changes

– Federal district court invalidated final rule in May 2012. Board appeal dismissed

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NLRB Proposed Election Rules

February 6, 2014: – NLRB re-issued June 2011 proposed rule as NPRM

on representation elections (otherwise known as the “quick election rule,” “ambush election rule” or “EFCA-lite”)

– Majority says “Re-issuance is the most efficient and effective rulemaking process to follow at this time.”

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NLRB Election Rule Process

Comments Due April 7, 2014 – Seeking comments on “new” issues

• Specialty Healthcare

• Blocking charges

• Excelsior list issues

• Electronic signatures

Public Meeting April 10 and 11

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NLRB Election Rule Process

Anticipate 3-4 months for final rule or wait until after mid-terms but before 12-31-14 when Nancy Schiffer’s term expires Lawsuits will seek to

enjoin and overturn

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Why Change Things?

What the NLRB majority says – “The Board is proposing a number of changes to

remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation”

What the NLRB minority says – “ The uniform thrust of the proposed changes is to

greatly reduce the time between a representation petition’s filing and the election.”

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Why Change Things?

2013 Statistics Union membership rate = 11.3 percent Total workers belonging to unions = 14.5 million Private-sector union membership rate = 6.7 percent Public-sector union membership rate = 35.3 percent Median number of days from petition to election =

38 days Percentage of elections held in 56 days = 94.3%

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Current Rules

TODAY 40th Day

Election Petition Filed Hearing or Stipulation Request for Review Possible

Excelsior List Due 7 days after stipulation or DDE. Election notice sent and posted no later than 3 days before election.

Election

• RD Sends to Employer

• Can have hearing • No delay to election

• Names and home address

• Count Ballots

• Commerce questionnaire

• Open question if employer needs to take position on unit placement issues

• Most denied

• Requests posting • Briefs filed approximately 7 days after hearing

• Might impact ballot counting - impounding

• Suggest hearing date 7-14 days

• DDE issued

• Goal: election 38-42 days from petition filing

Day 1 7-14 Days 14-28 Days Approx. 20 days After Petition

38-42 Days

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NPRM

Day 1 Day 8 Day 10 10-14 Days 15-20 Days

Election Petition Filed 7th Day “Hearing” Excelsior List Due 2 days after Stipulation or DDE

Election Notice Sent and posted at least 2 days before election

Election Post-Election Issues

• Immediately served on Employer • HO has discretion to have hearing if material issues

• Available emails addresses

• 7 days with supporting documentation

• RD sends mandatory poster • HO will not conduct hearing if unit placement involve less than 20% of unit

• Job classification • Hearing is discretionary

• RD sets hearing 7 days out • HO will not accept testimony on voter eligibility (not a QCR)

• Location of facility

• RD requires statement stipulating o Who is in? o Who is out? o Supervisors o Contract Bar o Anything else o If not included, forever waived o Election details – time, place,

manner o Names, work locations, shifts, job

classifications of all unit employees

o Payroll period eligibility

• No Request for Review possible

• Home address

• Available phone numbers

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Proposed Changes – Initial R Case Hearing

To start 7 days from filing of petition – Currently 7 to 14 days

Statement of Position on Issues – Employer must know its position and submit it in

writing prior to the start of the hearing

– Failure to raise an issue amounts to a waiver

Preliminary voter list – Names, work location, shift, job classification

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Proposed Changes – Post Hearing

Final voter eligibility list – Electronic submission 2 days after unit determination

made

– Includes email addresses and telephone numbers in addition to names and mailing addresses

Board review of post-election issues – Would become discretionary, leaving Regional

Directors with the final word on most issues

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What does this all mean?

Union decides who they want to represent – Union asserts the bargaining unit they want

– Employer has the burden to prove unit is not appropriate

Employers now have to demonstrate the existence of an “overwhelming community of interest” – Specialty Healthcare and Rehabilitation Center of Mobile,

357 NLRB No. 83 (August 26, 2011)

– Has redefined the scope of unit determinations and is not limited to the health care industry

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What does this all mean?

The rules breach employee privacy concerns – Requires substantial information about employees – Phone numbers (mobile, home, and work?) – Email addresses (home, work, personal?)

The rules create a virtual access by unions to the workplace – Access to employee work email addresses confer

access to employees at work while they are working – No limitations on the scope or extent of use

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Open Questions

1. What to do with blocking charges?

2. What to do with email addresses?

– Where stored?

– How disseminated?

– Home or business or both

– How do business email addresses relate to Register Guard?

– How are email addresses only used for upcoming election and not beyond?

• For example, can a union use them for organizing if they lose election?

• Can union sell them?

3. What are “available telephone numbers?”

– Cell

– Home

– Work 20

Open Questions

4. Privacy Issues regarding email and telephone numbers – e.g., what if phone number unlisted?

5. What do you do with questionable supervisors? – Train or not train

– Vote or not vote

– Attend/not attend union meetings

6. Specialty Healthcare – Units are contracting

– Harder to expand units

– Voter confusion if Employer alleges different unit

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More Bad News Coming From The NLRB

Union access to private property Union access to company email systems Finding unfair labor practices in employee

handbooks Restricting social media policies Tougher remedies and injunctions The new General Counsel memo

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To do list for Employers

Make your voice heard about the rule to the NLRB Clearly identify supervisors under Section 2 (11) Do bargaining unit analysis now – prepare your position

Establish a clear corporate reporting structure for location responsible personnel – time is critical

Select counsel now – no time under new rule Consider campaign in the box Establish rapid response team Conduct, measure and follow-up on location vulnerability

assessment Oppose Persuader Rule

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DOL Update

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Emboldened Department of Labor

Secretary Thomas Perez

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The Persuader Rule

Under the Labor-Management Reporting & Disclosure Act of 1959, employers and outside labor relations consultants must file disclosure reports regarding persuading employees

– Employer report – LM-10

– Labor consultant reports – LM-20 and LM-21

Potential proposed rule would effectively eliminate the “advice” exemption

Last DOL regulatory agenda scheduled publication of Final Rule in March 2014

Persuader Rule Delayed: New publication date will be announced in next regulatory agenda.

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The Persuader Rule

Many employers and their advisors will have to file reports on the internet – criminal penalties

Persuader activity if consultant’s activity on behalf of employer in whole or in part have the direct or indirect object to persuade employees concerning their rights to organize or bargain collectively

Traditional guidance received by employers in connection with union organizing efforts would no longer be considered advice

May go beyond union organizing to all protected concerted activities – even handbook advice and management training

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Labor Law Reform without Congress

Employee Free Choice Act (by rule-making)

Version 2.0

NLRB: Quick elections

DOL: Restrictions on advice

NLRB Specialty Healthcare

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Questions?

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THANK YOU

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Contact us anytime:

Michael J. Lotito, Co-Chair of WPI mlotito@littler.com

Ilyse W. Schuman, Co-Chair of WPI ischuman@littler.com

Maury Baskin, Shareholder mbaskin@littler.com

Littler’s Workplace Policy Institute™

www.littler.com/wpi