“Coming to a Workplace Near You: 5
Rules Every Non-Union (and Union)
Employer Must Know”
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Coming to a Workplace Near You:
5 Rules Every Non-Union (and Union)
Employer Must Know
September 20, 2011
John E. Krampf
Matthew A. Bahl
Verrill Dana, LLP
[email protected]
[email protected]
I’m Not Unionized. Why Should I Care?
•
The National Labor Relations Act (Act) applies
to most private employers (union and nonunion) that engage in interstate commerce.
•
The National Labor Relations Board is the
government agency tasked with enforcing the
Act.
•
Over the past year, the NLRB has expanded
union rights through a series of decisions and
administrative rules.
•
The Board’s actions have focused on helping
unions organize non-union employers.
•
Anyone, including unions, unionized
employees and non-unionized employees can
file an unfair labor practice charge with the
NLRB.
RULE 1: “NOTICE POSTING”
Rule Requirements
•
Employers subject to the NLRA must post a notice informing their
employees of their rights under the NLRA.
•
The notice itself informs employees about their right to improve wages
and working conditions, to form, join, and assist a union, to bargain
collectively with their employer, and to refrain from any of these
activities.
•
Employers should post the notice in places where they customarily post
other workplace notices.
•
If an employer posts notices about personnel rules or policies on
intranet or internet sites, they must either display an exact copy of the
notice or a link to the Board’s web page containing the notice.
Rule Requirements (cont.)
•
Federal contractors required to post the DOL’s notice of employee rights will
not be required to post the NLRB’s notice.
•
Employers will have the option of downloading, printing and posting an 11 x
16-inch poster or downloading two 8.5 x 11-inch panels that can be taped
together.
•
Employers will be allowed to post black and white reproductions of the notice
and will be permitted to use combination notices consolidating information
about various federal laws on a single document “as long as consolidation does
not alter the size, format, content or size and style or type of the Notice
provided by the Board.”
•
The Board’s regional offices will not conduct inspections to verify that
employers have posted the notice.
Rule Requirements (cont.)
• However, repeated failures to post the notice may be treated as
an unfair labor practice and result in a cease-and-desist order
from the Board.
• An employer’s inadvertent failure to post will be resolved by
bringing the rule’s attention to the employer.
• An employer’s knowing and willful failure to post may be used
as evidence of an unlawful motive in prosecuting other
violations of the Act.
• Employers must post the notice by November 14, 2011. The
notice will be available on the NLRB’s website
(www.nlrb.gov/forms) in early November.
Rule’s Purpose and Effect?
• Notify employees of their rights under
the NLRA.
• Encourage employees to seek out and
form unions.
RULE 2: “Quickie Election”
Background
• Typically, the election process takes between 40 and 45 days.
• Organized labor has long complained that the length of time
between filing an election petition and the actual vote unfairly
“erodes” employee support for unions.
• The Employee Free Choice Act (“EFCA”), in part, would have
allowed unions to skip the normal election process through card
recognition procedures.
• EFCA is a lame duck.
• This new rule, however, would give unions a quicker election
process.
Proposed Rule’s Features
•
Allow unions to file petitions and other documents electronically.
•
Standardize timeframes for pre-election hearings (seven days after service of
hearing notice) and post-election hearings (14 days after the tally of ballots).
•
Mandate employers provide a final voter list (also known as an Excelsior list)
with employee phone numbers and e-mail addresses in electronic from within
two (2) days of the direction of election.
•
Require the union and employer to identify pre-election issues (like voter
eligibility) and describe their supporting evidence within seven (7) days after an
election petition is filed.
•
Consolidate all election-related appeals to the Board in a single post-election
appeals process – thus eliminating pre-election requests for review of the
Regional Directors decisions, including voter eligibility determinations.
•
Make Board review of post-election decisions discretionary rather than
mandatory.
Proposed Rule’s Purpose and Effect?
• Streamline the election process.
• Elections will be held within 10 to 21 days.
• And the rules significantly limit an
employer’s right to communicate with its
workforce and to petition the government for
redress.
RULE 3: “Cherry-Pick”
Background
• Employees in the appropriate unit are eligible to vote
in NLRA elections.
• Under the NLRA, it is fundamental that the Board
need only find an appropriate unit, not the most
appropriate unit.
• In the past all groups of employees who shared a
“community of interest” were included, not excluded
from, the unit.
Specialty Healthcare Case
•
Board found that Certified Nursing Assistants (“CNA”) at a long-term
care facility was an appropriate unit.
•
The employer appealed contending a unit that included other
employees, including other healthcare workers, was the appropriate
unit.
•
The Board rejected the appeal and found that a unit consisting solely of
CNAs was appropriate.
•
In reaching this conclusion, the Board overruled a 1991 decision that
established a much broader definition of which employees in the
healthcare setting should be included in the bargaining unit.
•
In other words, the Board endorsed a most appropriate unit approach.
New Rule
• New rule now requires employers to
make an “overwhelming community of
interest” showing to include employees
in the bargaining unit.
• Although case was in the healthcare
context, there is no indication that its
application is limited to healthcare
employers.
Purpose and Effect?
• New rule for determining who should be in a bargaining
unit.
• Makes it easier for unions to select which employees to
organize. In effect, it allows unions to “cherry-pick”
employees who will vote in favor of unionization.
• Supports the “nose under the tent” organizing approach.
• In tandem with the “quickie election” rules, employer’s
face an up-hill battle in challenging a union’s petitionedfor bargaining unit.
Rule 4: “Social Media”
Background
• Over the last several months the NLRB has been focusing on
employees’ right to use social media to comment on and discuss
their working conditions.
• The NLRB has even prosecuted employers for discharging a
unionized employee who posted a “negative comment” about
her boss on Facebook and for disciplining a unionized employee
for posting critical remarks on Twitter.
• However, the Board declined to prosecute an employer for
disciplining an employee whose Facebook comments were
simply “individual gripes.”
CONFUSED?
• Recognizing the confusion, the Board
issued a memo in August 2011 that
summarized 14 key cases involving
social media, with the goal of providing
guidance on this hot-button issue.
Key to the Analysis: Protected
Concerted Activity
• Section 7 of the NLRA gives employees (both union
and non-union) the right to engage in protected
concerted activity.
• Protected concerted activity occurs when two or
more employees act together to address a collective
employee concern.
• However, a single employee acting on behalf of
others, or who is initiating group action, or who has
discussed the matter with co-workers, can also be
engaged in protected concerted activity.
You Make The Call: Protected or
Not?
• After work, during a heated fantasy football draft at a
local sports bar, Sam Supervisor tells Earl Employee
in front of co-workers that he made a horrible
decision by selecting Brett Favre. Employee Earl, on
his personal computer, posts to his Facebook account
that:
“I can’t believe my boss today. What a
creep. He really embarrassed me in front of
my colleagues. LOL.”
You Make The Call: Protected Or
Not?
• During a work meeting, Ringo and Bono, two
employees with singing aspirations, keep interrupting
their Supervisor with singing jokes. The Supervisor
tells them, “Hey, pipe down you two. This is
important.” Undeterred, Bono posts on his personal
blog (“R.O.C.K. In The USA”) that:
“I will be a star one day, I don’t care what my boss says. And
for that matter, Ringo and I are sick of our supervisor picking
on us. He doesn’t treat other people this way, I don’t know why
he singles me out.”
You Make The Call: Protected or
Not?
• During a workplace incident investigation, which is
standard policy, Sara Supervisor questions Emily
Employee about the incident. Emily asks if her
friend (Earl) can sit in with her because she is afraid
of Sara. Sara says, “No. Earl has to wait his turn.”
Shocked by this, Sara goes home and Tweets (on her
personal computer):
“Tough meeting at work today, wish Earl could’ve
been there to help – my supervisor can be a real jerk
sometimes. What do you think?”
Another Highlight From The Report
• Even if the social media post is laced with profanity and
sarcasm, the employee’s post might be protected.
• For example, in one case the NLRB found that an employee did
not lose the Act’s protection when she described her supervisor
as a “scumbag” and other derogatory terms on her Facebook
page.
• The NLRB noted that it has found “more egregious namecalling protected” and found significant that the employee’s
comments were motivated by her supervisor’s unlawful failure
to honor her request for union representation.
Purpose and Effect?
• Reconcile a law written in 1947 with
the modern digital age.
• Although the memo provides some
clarifications, employee social media
posts must be analyzed on a case-bycase basis.
Rule 5: “Bannering”
What is Bannering?
• Bannering involves placing large stationary signs or
objects near businesses that are not involved in a labor
dispute with the union (a.k.a. “secondary” employers).
• In two recent cases the Board has distinguished between
picketing and bannering, even though both look and feel
largely the same.
• The distinction is important because picketing at a
secondary employer’s worksite for an extended period of
time is unlawful (in most contexts). For example:
Carpenters Local 1827 Case
• Union had a dispute with several construction firms they
claimed failed to pay wages that met area standards.
• The Union “bannered” several neutral employers that did
business with the construction firm, including State Farm
Insurance.
• The Union displayed a banner that said “State Farm Insurance, a
Greedy Corporate Citizen,” but kept the banner on public
sidewalks at least 24 feet away from the entrance.
• The Board found that such conduct did not constitute
threatening, coercing or restraining a secondary employer in
violation of the Act.
Purpose and Effect?
• Expands a union’s right to involve
“neutral” employers in their labor
disputes.
• Force neutral employers to put pressure
on those employers involved in the
labor dispute.
What Can You Do Now To Prepare?
• With all these new rules, here are some
things you can do now to be prepared:
1)
Educate your workforce on the risks and downsides of
unionization.
2)
Educate your workforce on what signing a union
authorization card really means.
3)
Review, and if necessary, revise your social media policy
to account for protected concerted activity.
QUESTIONS?
Contact Information
John Krampf
Email: [email protected]
Phone: 207-253-4616
Cell: 978-473-2442
Matt Bahl
Email: [email protected]
Phone: 207-253-4462