Labor & Employment Law Seminar
Maintaining a
Union-Free Workplace
Issues & Strategies Under Current Law
and Update on Proposed Changes in
Union Organizing Rules
June 4, 2009
Goodwin Procter Conference Center
June 10, 2009
Westin Waltham
TABLE OF
CONTENTS
Introduction ........................................................................................................ Tab 1
Pending Legislation to Facilitate Union Organizing ................................................ Tab 2
New Executive Orders Favoring Organized Labor.................................................... Tab 3
Protected Activity Under the National Labor Relations Act...................................... Tab 4
Lawful Restrictions Employers May Make on Union
Organizing Activity .............................................................................................. Tab 5
Union Organizers as Applicants for Employment .................................................... Tab 6
Representation Elections Conducted by the
National Labor Relations Board ............................................................................ Tab 7
“Do’s & Don’ts” for Supervisors When Speaking with
Employees About Unions ...................................................................................... Tab 8
Sample Notice to Employees Concerning Union
Organizing Activity .............................................................................................. Tab 9
Power Point Presentation ..................................................................................... Tab 10
TABLE OF CONTENTS
The Omni Group – Firm Services and Biographical Information ............................... Tab 11
Goodwin Procter – Labor Practice Overview
and Attorney Biographical Summaries................................................................... Tab 12
The materials contained in this booklet are only a generalized discussion of areas of legal concern. Every employer’s
situation is in some way unique and the discussions contained in this notebook may not adequately deal with each employer’s
circumstance. As a result, these materials cannot and do not purport to provide an answer to apparently similar problems.
The materials should not be construed as legal advice or legal opinion, which can be rendered properly only when related to
specific facts. This publication may be deemed advertising within the meaning of SJC Rule 3:07, Massachusetts Rules of
Professional Conduct 7.3.
©2009 Goodwin Procter LLP All rights reserved.
INTRODUCTION
We are facing a profound economic crisis, the likes of which we
have not seen since the Great Depression. Countless working
families who were already living on the edge of financial disaster
have been hit hard. . . Now more than ever, workers need someone
on their side, fighting for them. Now more than ever, they need
unions. Unions were fundamental in building America’s middle
class, and they have a vital role to play today in restoring the
American dream for working families.
Senator Edward M. Kennedy during his
introduction of the Employee Free Choice Act to
the Senate in 2009
Although labor reform such as the Employee Free Choice Act (“EFCA”) has not yet been
enacted, union membership in the United States is already on the rise. In 2008, public and
private sector union membership grew to 12.4 percent, up from 12.1 percent in 2007. This is the
largest increase in union membership since 1983, the earliest year where comparable data is
available. Until 2007, union membership declined every year since 1983.
The numbers of representation cases filed, elections conducted, and elections won by unions are
also increasing. In 2007, 3,324 union representation cases were filed while 3,400 cases were
filed in 2008. Initial representation elections conducted also rose from 2,080 in 2007 to 2,085 in
2008. In 2008, unions won 67 percent of elections, while unions only won 59 percent in 2007.
If the EFCA or similar labor reform legislation is enacted, union membership will likely grow
even more rapidly than it did in 2008. The labor reform movement and the AFL-CIO have also
seized on the economic downturn to ramp up unionization and labor reform efforts. The AFLCIO materials cite dropping wages, disappearing pensions, and rising healthcare costs as support
for unionization and labor reform.
With pending labor reform legislation and the current economic downturn, if your organization
wishes to maintain a union-free work environment, it needs to promptly assess its vulnerability
to union organizing. Wages and benefits should be competitive in the relevant labor market.
Personnel policies and procedures should be fair and consistently enforced. Management
communication must be effective, and communication is unlikely to be effective if line
supervision is inadequate.
Employee attitude surveys and 360 reviews of supervision, management and human resources
personnel can provide information on where risks are the greatest and on the sources of those
risk factors. Line supervisors who are under pressure to meet demanding quality and
productivity requirements in today’s competitive economic climate may, without intending to do
so, compromise efforts to build positive employee relations. Or, in some instances line
supervisors are simply ill-suited to the responsibility of managing people. In such settings, small
grievances can fester and first level supervision may be alienated from senior leadership and fail
LIBB/1644370.1
to communicate to employees a positive sense of the company, or to report to management the
warning signs of union activity.
Establishing a regular program of focus group meetings and interviews with employee groups,
line managers and human resources personnel will help to enable an employer to identify
problematic issues and find solutions as to what is needed to reinforce a positive employee
relations climate. When management listens and responds to employee concerns, it enhances
motivational effectiveness and nurtures employee trust. And, trust in management is often the
critical factor enabling companies to maintain a union-free environment.
In addition, information about unions and the rules supervisors and managers need to know in
order to respond to a union organizing campaign should be integrated into management training
programs.
If these initiatives are coupled with a commitment to selecting, training and rewarding
supervisors and managers who provide effective positive leadership, a company will maximize
its practical defenses to the risks presented by the current pro-union political climate.
Conversely, to the extent that supervisors and managers are indifferent to employee concerns
about fairness and favoritism and lead principally through fear and intimidation, or not at all,
there would be fertile ground for the seed of union organizing to thrive with little or no advance
notice to combat it.
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LIBB/1644370.1
THE EMPLOYEE FREE CHOICE ACT AND ALTERNATIVE LEGISLATION
PENDING IN CONGRESS
On March 10, 2009, the Employee Free Choice Act (“EFCA”), Senate Bill, S. 560, was
introduced in both the Senate and the House of Representatives and referred to committee. As
discussed in more detail in the attached Labor & Employment Alert, dated December 17, 2008,
the EFCA would amend the National Labor Relations Act (“NLRA”) to eliminate the
requirement for secret ballot elections, impose mandatory arbitration of collective bargaining
disputes over initial contracts, and increase penalties for employers’ unfair labor practices.
Currently, the Senate Democrats do not have enough votes to overcome a Republican filibuster.
Alternative bills are also pending in both the House and the Senate. The following summarizes
various bills and proposals under consideration.
A. Senate Bill, S. 560
Senator Edward Kennedy of Massachusetts introduced the EFCA to the Senate on
March 10, 2009. In Senator Kennedy’s opening remarks, he stated that “[n]ow more than ever,
workers need someone on their side, fighting for them . . . they need unions.” The bill was
referred to the Senate Committee on Health, Education, Labor, and Pensions.
The EFCA is unlikely to reach the Senate floor for a vote. In order to overcome a
Republican filibuster this session, the Democrats need 60 votes. Currently, the Democrats have
57 Senators and two independent Senators caucusing with them. However, seven Democratic
Senators are wavering in their support. Additionally, the unsettled Minnesota senatorial race will
have an impact. Republican Senator Norm Coleman is against the EFCA, while Democrat Al
Franken supports the bill.
On March 24, 2009, then Republican Senator Arlen Specter of Pennsylvania publicly
opposed the EFCA. This surprised many since Senator Specter co-sponsored an almost identical
bill in 2003 and was the only Republican Senator to vote to end the Republican filibuster of the
EFCA in 2007. Senator Specter has stated that he is opposed to the elimination of the secret
ballot, since it is a “cornerstone of how contests are decided in a democratic society.” Senator
Specter also disfavors the mandatory arbitration provision. Senator Specter publicly opposed the
bill once again even after his switch the democratic party.
Specter did, however, offer suggested revisions to the NLRA including: (1) an expedited
timetable for elections and resolution of challenges; (2) the creation of additional unfair labor
practices including if an employer denies union organizers access to respond to employer captive
audience speeches; (3) enhanced penalties similar to the EFCA; (4) requiring bargaining within
21 days after union certification and mediation within 120 days after bargaining begins, but no
mandatory arbitration; (5) upon a finding that a party is not negotiating in good faith, allowing an
order establishing a bargaining schedule; and (6) providing that Administrative Law Judge and
Regional Director decisions become final if the Board does not review the decision within 180
days.
LIBB/1644447.1
Two additional senators have recently withdrawn support of the EFCA, making it very
unlikely the Democrats will achieve the 60 votes needed to overcome the Republican filibuster.
Senator Blanche Lincoln of Arkansas released a statement on April 6th publicly withdrawing her
support for the EFCA. Senator Lincoln said she would be open to a compromise proposal, but
would not support the bill as currently written. Senator Dianne Feinstein of California has also
“backed away” from the proposed legislation as written, citing the nation’s current economic
problems and hoping for common ground that would be agreeable to both business and labor.
B. House of Representatives Bill, H.R. 1409
Representative George Miller from California introduced the EFCA to the House of
Representatives on March 10, 2009. The House referred the bill to the House Committee on
Education and Labor.
The House of Representatives previously passed the EFCA, H.R. 800, in 2007 by a vote
of 241-185.
C. EFCA Alternatives
Many of the democratic senators who oppose the EFCA have indicated a willingness to
consider alternative bills. Alternative bills to amend the NLRA have been introduced in both the
House and the Senate.
1. Secret Ballot Protection Act, S. 478
Senator Jim DeMint of South Carolina introduced a pro-employer bill -- the Secret Ballot
Protection Act on February 25, 2009. The bill would make it an unfair labor practice for an
employer to recognize or bargain collectively with a union that has not been selected by a
majority of employees by a secret ballot election conducted by the National Labor Relations
Board. (Current law allows employers to voluntarily recognize unions on the basis of a card
check or other proof of the union’s majority representation status.) The bill would also make it
an unfair labor practice for a labor organization to cause or attempt to cause an employer to
bargain with or recognize a union that has not been selected by a secret ballot election.
Twenty Senators co-sponsored this bill. When first introduced, it was placed on the
Senate Legislative Calendar. The bill was read again the following day and placed on the Senate
Legislative Calendar under General Orders.
2. Secret Ballot Protection Act, H.R. 1176
Representative John Kline of Minnesota introduced the Secret Ballot Protection Act to
the House on February 25, 2009. The House bill is virtually identical to the Senate bill, S. 478.
It also requires secret ballot elections by making it an unfair labor practice for the employer to
bargain with a union not formed by a secret ballot election and for the union to cause or attempt
to cause an employer to bargain with or recognize a union not selected by a secret ballot election.
2
LIBB/1644447.1
The House bill had 111 co-sponsors. The House referred the bill to the House Committee
on Education and Labor.
3. Labor Relations First Contract Negotiations Act of 2009, H.R. 243
Representative Gene Green of Texas introduced the Labor Relations First Contract
Negotiations Act of 2009 on January 7, 2009. This bill would amend the NLRA to require
mediation after 60 days of unsuccessful bargaining. If after 30 days from selecting a mediator,
no agreement is reached, the parties must then submit to binding arbitration.
No other representatives co-sponsored this bill. The House referred the bill to the House
Committee on Education and Labor. On March 16, 2009, the bill was then referred to the House
Subcommittee on Health, Employment, Labor, and Pensions.
4. National Labor Relations Modernization Act, H.R. 1355
Representative Joe Sestak of Pennsylvania introduced the National Labor Relations
Modernization Act to the House on March 5, 2009. This alternative to the ECFA preserves the
secret ballot for union elections. However, similarly to the EFCA, this bill does require
employers to provide union representatives with equal access to the workplace to campaign and
increases civil penalties for employers who engage in worker intimidation. This bill also
mandates mediation and arbitration but with longer timeframes. This bill provides 120 days for
negotiations, 120 days for mediation, and then mandatory arbitration.
No representatives co-sponsored this bill. The House referred the bill to the House
Committee on Education and Labor.
D. Other Alternatives
1. Potential Compromises in Congress
Since the EFCA as currently written is unlikely to pass, Senators are working on a
compromise version of the bill. According to a May 7, 2009 Wall Street Journal article, the
compromise will likely not include the elimination of the secret ballot but instead replace this
provision with imposing shorter timeframes for union elections. These discussions include
imposing a 21-day deadline for an election to be held. The compromise bill will also likely seek
greater use of mediation but would restrict arbitrators from imposing contracts on the parties. On
May 14th, 2009, Senator Arlen Specter stated, “prospects are pretty good” for a compromise bill.
2. The Committee for a Level Playing Field
On March 22, 2009, Costco Wholesale Corp., Starbucks Coffee Corp., and Whole Foods
Market, Inc. announced their ad hoc “Committee for a Level Playing Field.” The committee’s
mission is to discuss and offer a “third way” to approach labor law reform. Their proposals
include preserving the right to a secret ballot for both certification and decertification campaigns,
guaranteeing a fixed time period for the secret ballot election, and allowing unions and
3
LIBB/1644447.1
management equal access to employees during non-working hours. They also propose increased
penalties for both employer and union unfair labor practices. They do not support mandatory
arbitration but do support stricter penalties and expedited enforcement for a party’s failure to
bargain in good faith and in a timely fashion.
4
LIBB/1644447.1
December 17, 2008
Labor & Employment Alert
An informational newsletter from Goodwin Procter’s Labor & Employment Practice
A New Congress and President May Prompt Significant
Pro-Labor Amendments to the National Labor Relations Act
The incoming United States Congress will consider enacting the Employee Free
Choice Act (“EFCA”), which, as last proposed, would dramatically change key
provisions of the National Labor Relations Act (“NLRA”) to the significant
detriment of employers. The EFCA would make it much easier for unions to obtain
bargaining representative certification, would expedite and reshape the collective
bargaining process for initial contracts and would impose stricter penalties upon
employers for willful or repeated unfair labor practices. The House of
Representatives voted in favor of enacting the EFCA in March 2007 by a vote of
241-185, but the bill ultimately died in the Senate after a Republican-led filibuster.
In 2009, however, the Democrats will hold a near-super majority in the Senate and
the President-elect has voiced support for this pro-union legislation, so there is a
reasonable possibility that the EFCA will be enacted in 2009.
The Proposed Modifications to the NLRA
The EFCA would significantly enhance organized labor’s ability to organize private
sector employees and fundamentally change the nature of collective bargaining for
an initial contract following a union’s certification as bargaining representative. The
enactment of the EFCA would affect employers in three key ways:
1. Elimination of Secret Ballot NLRB Elections to Determine Union
Representation
Currently, when a union demands recognition as collective bargaining
representative based on representation cards, employers may ignore the cards and
instead demand a government-supervised secret ballot election to determine
whether a majority of employees in an appropriate unit are in favor of union
representation. The election process allows employers and unions to present their
case against and in favor of unionization, so that employees can make an informed
decision as to whether representation by a union is in their best interests.
The EFCA would require the National Labor Relations Board (“NLRB”) to certify a
labor organization as bargaining representative whenever a majority of employees
in an appropriate bargaining unit (employees who have a reasonable “community of
interest,” including common terms and conditions of employment) sign
authorization cards designating that labor organization as their representative. If the
cards were found to be valid, the labor organization would be certified by the NLRB
without holding an election.
Under the EFCA, a union with an undercover organizing campaign might be able to
solicit enough employee signatures to obtain certification before an employer even
knew that a campaign was underway. In these instances, employers would be
deprived of the opportunity to present (and employees prevented from hearing)
information and arguments as to why unionization might not be in the employees’
best interest. Furthermore, since employees would no longer have access to the
security of a secret ballot protecting them from coercion, they would be vulnerable
to pressure from union organizers and/or co-workers to sign authorization cards
despite an ambivalence, or even an aversion, toward union representation.
2. First Contract Binding Arbitration in the Event of Impasse
The second significant change to the NLRA contemplated by the EFCA is that an
employer or union engaged in negotiations over an initial collective bargaining
contract would have the option to submit the dispute to binding arbitration in the
event that the parties were unable to reach agreement on a labor contract within a
fairly short time period. Currently, an employer has an obligation to bargain in good
faith (i.e., show a genuine desire to reach agreement) with a union. So long as it
satisfies that obligation, the employer need not make concessions or accept any
specific union proposals. Employers do not violate their obligation to bargain in
good faith simply by engaging in “hard bargaining.” Currently, a union’s only
realistic leverage is a strike, or threat of a strike. Under the EFCA, if the parties
were unable to reach an agreement within 90 days from the date bargaining
commenced, either side would be entitled to submit the dispute to mediation. If the
parties were still unable to reach an agreement within 30 days from the date
mediation was requested, the dispute would be referred to a panel of arbitrators
selected by the government. The arbitration panel would then decide the provisions
of the contract to govern the terms and conditions of employment for employees
represented by the union for the next two years. There is no provision for appeal of
an arbitrated contract that imposes economic terms that an employer may consider
unduly onerous or unfair.
3. Increased Penalties for Employers Violating the NLRA
The EFCA would impose significantly harsher penalties upon employers found to
be in violation of the NLRA. Employers who discharge an employee in violation of
the NLRA while union organizing activity or bargaining for an initial contract is
taking place would be liable for treble back pay damages under the new law. The
EFCA would also impose a civil penalty of up to $20,000 for each unfair labor
practice willfully or repeatedly committed by an employer during such times, in
addition to any make-whole remedy already available under the NLRA. The EFCA
would not impose similar penalties upon unions found to have committed unfair
labor practices.
Recommendations
If the EFCA is enacted, employers desiring to maintain union-free workplaces
should promptly consider strategies for combating the kind of stealth unionization
efforts that would be possible under the EFCA, including supervisor training,
Goodwin Procter LLP
Page 2
effective employee communication programs, and competitive compensation and
benefits.
1. Increased Vigilance and Supervisor Training
Employers should be on the lookout for any signs of an organizational campaign
and be prepared to respond on short notice by initiating a lawful and effective
campaign explaining the advantages of operating on a non-union basis. Supervisors
and managers should receive advance training about how to recognize the telltale
signs of a union organizing drive, and the ground rules under which employers may
lawfully advocate a union-free workplace.
2. Regularly Address Vulnerability to Unionization
Employers can take preemptive steps to avoid union organization by proactively
addressing compensation, working conditions, employer-employee communications
and conflict resolution procedures. Effectively communicating the generosity and
competitiveness of compensation programs will make employees less susceptible to
a labor organizer’s pitch that they have nothing to lose and much to gain from
unionization. In addition, many union organizing campaigns are a reaction to poor
communication and management by first-line supervisors. Taking steps to identify
and improve the employee relations skills of supervisors now can pay off in
avoiding unionization efforts later.
3. Policy Update
Employers’ rights to restrict solicitation and distribution of literature by internal and
external union organizers depend in part on the terms of employer policies and the
permissibility of restrictions in those policies. Employers should ensure that their
solicitation and distribution policies are up to date and that their other policies are
consistent with their other steps to address unionization.
4. Employee Education
Depending on the circumstances, it may be advisable for employers to educate
employees about the downside of unionization, regardless of whether an actual
organizational campaign has begun at the worksite. Employees should be made
aware that once they sign an authorization card, they may not have another
opportunity to weigh in on the issue of union representation.
Conclusion
If passed in its current form, the EFCA would greatly increase the vulnerability of
employers to successful union organizing. In the event of union organization, the
EFCA creates a significant risk that government appointed arbitrators will set terms
and conditions of employment – including wages and benefits – without the
employer’s agreement. Employers who believe that unionization of their workforce
would be detrimental to their business should consider taking lawful early
Goodwin Procter LLP
Page 3
preventative action through supervisory training, compensation program assessment
and effective communication measures.
For additional information relating to the issues raised in this Alert, please contact:
Wilfred J. Benoit, Jr.
Jennifer Merrigan Fay
Steven R. Feldstein
Robert M. Hale
Donald J. Munro
James W. Nagle
Joseph A. Piacquad
Heidi Goldstein Shepherd
Bradford J. Smith
Albert J. Solecki, Jr.
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
617.570.1155
617.570.1943
650.752.3220
617.570.1252
202.346.4137
617.570.1233
617.570.1937
617.570.8189
617.570.1256
212.813.8833
Full access to all articles on labor and employment law prepared by Goodwin Procter is available here.
Full access to all articles prepared by Goodwin Procter is available here.
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Page 4
March 18, 2009
Labor & Employment Alert
An informational newsletter from Goodwin Procter’s Labor & Employment Practice
New Executive Orders Favoring Organized Labor Will Affect
Many Employers That Provide Goods or Services to the Federal
Government
President Obama recently signed four executive orders, which strongly favor the
interests of organized labor and will affect many employers that enter into
contracts to provide goods or services to the federal government. By their terms,
the orders will not have any real impact until the Secretary of Labor issues
implementing regulations later this year. The orders will not affect the
obligations of federal contractors under existing contracts; the requirements will
be imposed pursuant to the terms of new contracts following the promulgation
of the Secretary’s regulations.
The new executive orders, which revoke several executive orders issued by
President Bush, are detailed below.
Notification of Employee Rights Under Federal Labor Laws
On January 30, 2009, President Obama signed Executive Order 13496.
Executive Order 13496 will require most contractors that enter into new
contracts with the federal government to post a notice of employee rights under
federal labor laws in conspicuous locations. Also, the Order revokes Executive
Order 13201, which required most contractors who entered into contracts with
the federal government to post “Beck Notices” informing employees of certain
rights, such as their right to not join a union.
Executive Order 13496 states that economy and efficiency in federal
government procurement is most easily achieved when employees are well
informed of their rights under federal labor laws, such as their right to organize
and engage in collective bargaining under the National Labor Relations Act (the
“NLRA”). Thus, under Executive Order 13496, contracting departments and
agencies within the federal government must include a provision in all
government contracts (except purchases under $100,000) requiring contractors
to post a notice of employee rights under the federal labor laws. Contractors will
be required to post the notice “in conspicuous places in and about [their] plants
and offices where employees covered by the National Labor Relations Act
engage in activities relating to the performance of the contract.” In addition,
contractors will be required to include the notice posting provision in
subcontracts related to the original contract so that the provision will be binding
upon subcontractors.
In the event that a contractor does not comply with Executive Order 13496, the
Secretary of Labor may direct contracting departments and agencies to terminate
the contract and to bar the contractor from future federal contracts until the
contractor has complied with and agrees to carry out the provisions of the Order
to the satisfaction of the Secretary of Labor. Also, in the event that a
subcontractor does not comply with the posting requirement, the contract
provision will require the contractor to take action against the subcontractor as
directed by the Secretary of Labor, including the imposition of sanctions.
The new provision will also require contractors to comply with the contents of
the notice. Failure to do so could result in termination of the contract and a
declaration that the contractor is ineligible for further contracts with the federal
government. Thus, contractors may be debarred not only for failure to post the
notice but also if they violate the employee rights described in the notice. Thus,
it appears that federal contractors that are found to have committed unfair labor
practices in violation of the NLRA may be barred from doing business with the
government.
Contracting departments and agencies are required to include the provision in
contracts that result from solicitations issued on or after the date when the
Secretary of Labor issues rules on the size, format and content of the notice that
contractors will be required to post. The Secretary of Labor is responsible for
issuing those rules no later than May 30, 2009.
Revocation of Beck Notice Requirement
Under Executive Order 13201, which became effective on April 18, 2001,
contracting departments and agencies within the federal government were
ordered to include a provision in most contracts requiring contractors to post a
notice of certain employee rights commonly known as a Beck Notice in a
conspicuous location. The Beck Notice informs employees that they cannot be
required to join a union as a condition of employment. The Beck Notice also
informs employees represented by a union who choose not to be full-fledged
union members that they are entitled to a refund for any portion of their union
dues used for union activities unrelated to the union’s role as a bargaining
representative, such as political contributions, lobbying and union building
funds.
Executive Order 13496 does not prohibit employers from posting Beck Notices
or require their removal. However, the provision requiring contractors to post
Beck Notices will no longer appear in government contracts.
Nondisplacement of Qualified Workers Under Service Contracts
On January 30, 2009, President Obama signed Executive Order 13495, which
affects a contractor’s ability to hire new employees when a contract to provide
Goodwin Procter LLP
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services to the federal government expires and a new contract for the same
services is awarded to a different contractor. Executive Order 13495 will
generally require the new contractor under those circumstances to offer
employment to the employees who worked under the expiring contract before
the new contractor can hire new employees to perform the contracted work. The
practical impact of this Executive Order is that non-union federal contractors
who are awarded new services contracts are more likely to be deemed
“successors” to the prior contractor’s bargaining relationship with a union
representing the prior contractor’s employees. Under the NLRA, if the
contractor is deemed a “successor,” it is not bound by the predecessor’s labor
contract, but it is obligated to negotiate with the union over a new collective
bargaining agreement.
Executive Order 13495 applies when a contract to provide services to the federal
government expires and the federal government awards a new contract in excess
of $100,000 for providing the same services at the same location to a different
contractor, subject to limited exceptions. 1 Under such circumstances, the new
contract must include a provision prohibiting the new contractor from hiring
new employees to perform the contract work until the contractor has offered
employment to “qualified” employees (other than “managerial” and
“supervisory” employees) who worked under the expiring contract and who
were terminated as a result of the prior contract’s expiration.
The required provision is not a guarantee of employment for the employees who
worked under the expiring contract. The new contractor is not required to offer
employment to any employee whom the new contractor reasonably believes
“failed to perform suitably on the job.” The new contractor also has the right to
use fewer employees to perform the new contract than the previous contractor
used. Additionally, the new contractor has the right to use its own employees
who have been employed for at least three months prior to commencement of
the new contract if those employees would otherwise face layoff or termination.
Thus, Executive Order 13495 does not require new contractors to offer
employment to all employees who worked under the expiring contract, even if
an employee is qualified. Rather, the Executive Order provides non-managerial
and non-supervisory employees who worked under the expiring contract with a
right of first refusal of employment before the new contractor can hire new
employees to replace them. However, employees of the prior contractor would
have a right to displace newly hired (during the three months before the
expiration of the prior contract) employees of the successor contactor.
In the event that a contractor does not comply with the required provision,
Executive Order 13495 authorizes the Secretary of Labor to bar the contractor
from eligibility for any contract with the federal government for up to three
years. In the event of noncompliance, the Secretary of Labor is also authorized
to order the hiring of employees who worked under the expiring contract and to
award them lost wages.
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Executive Order 13495 does not address many important details, such as
whether the new contractor must offer the same wages that employees earned
while working under the expiring contract. The Executive Order also does not
address how a new contractor should decide which employees should receive
offers when the new contractor makes offers to some but not all of the
employees who worked under the expiring contract. The Executive Order also
does not provide definitions of many terms such as “qualified,” “managerial”
and “supervisory.” The Secretary of Labor is responsible for issuing
regulations, which may provide many of those details, no later than July 29,
2009.
The contractual provision required under Executive Order 13495 will not appear
in contracts until the Secretary of Labor issues the regulations. Thus, the hiring
practices of contractors that provide services to the federal government are not
immediately affected by the Executive Order. However, the new provision will
appear in applicable contracts within a few months.
Economy in Government Contracting
Under Executive Order 13494, which President Obama signed on January 30,
2009, contracting departments and agencies within the federal government will
no longer reimburse contractors for any costs incurred by the contractor for
activities undertaken to persuade employees not to organize or to engage in
collective bargaining. The Executive Order also prohibits reimbursement in the
less likely scenario where a contractor incurs costs engaging in activities to
persuade employees to obtain union representation.
The Executive Order provides the following examples of activities that are not
reimbursable when they are undertaken to persuade employees concerning
whether or not to organize and bargain collectively: i) preparation and
distribution of materials; ii) hiring or consulting legal counsel or consultants; iii)
holding meetings (including paying the salaries of the attendees); and iv)
planning or conducting activities by managers, supervisors, or union
representatives during work hours.
The Executive Order adds that costs incurred in maintaining satisfactory
relations between the contractor and its employees, including the costs of labor
management committees and the costs of employee publications, remain
allowable for reimbursement.
Executive Order 13494 will apply to all contracts with the federal government
that result from solicitations issued on or after the effective date of regulations to
be issued by the Federal Acquisition Regulatory Council. The Federal
Acquisition Regulatory Council is required to issue those regulations no later
than June 29, 2009.
Goodwin Procter LLP
Page 4
Use of Project Labor Agreements for Federal Construction Projects
On February 6, 2009, President Obama signed Executive Order 13502, which
authorizes federal agencies to require contractors and subcontractors to enter
into project labor agreements (a type of collective bargaining agreement) on
federal construction projects with a cost of $25 million or more. The Executive
Order revokes Executive Order 13202, which prohibited federal agencies from
requiring contractors in construction projects to adhere to project labor
agreements.
Project Labor Agreements
Because construction firms typically hire temporary workforces for construction
projects, the temporary employees face difficulties in organizing and entering
into collective bargaining with their employer. To address those difficulties, the
NLRA allows unions to enter into collective bargaining with construction firms
before the employers have hired the workforce for a construction project. The
resulting collective bargaining agreement provides the terms and conditions of
employment for workers who have yet to be hired. This type of pre-hire
collective bargaining agreement is known as a project labor agreement.
Under Executive Order 13502, federal agencies are “encouraged” to require the
use of project labor agreements on “large-scale construction projects,” which are
defined as construction projects where the total cost to the federal government is
$25 million or more. The Executive Order also allows federal agencies to
require the use of project labor agreements on construction projects that are not
large scale. Under the Executive Order, project labor agreements must bind all
contractors and subcontractors assigned to the construction project. Thus, nonunion contractors or subcontractors that wish to work on a federal construction
project may be required to be a party to a collective bargaining agreement with
one or more unions.
Goodwin Procter LLP
Page 5
1
For example, Executive Order 13495 does not apply to contracts awarded pursuant to the
Javits-Wagner-O’Day Act, which requires the federal government to offer contracts for certain
services to nonprofit organizations that employ workers who are blind or have other types of
severe disabilities, or pursuant to the Randolph-Sheppard Act, which provides blind persons
with opportunities to operate vending machines in federal buildings.
For additional information relating to the issues raised in this Alert, please contact:
Wilfred J. Benoit, Jr.
Jennifer Merrigan Fay
Steven R. Feldstein
Robert M. Hale
Donald J. Munro
James W. Nagle
Joseph A. Piacquad
Heidi Goldstein Shepherd
Bradford J. Smith
Albert J. Solecki, Jr.
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
617.570.1155
617.570.1943
650.752.3220
617.570.1252
202.346.4137
617.570.1233
617.570.1937
617.570.8189
617.570.1256
212.813.8833
Full access to all articles on labor and employment law prepared by Goodwin Procter is available here.
Full access to all articles prepared by Goodwin Procter is available here.
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transaction or matter. © 2009 Goodwin Procter LLP. All rights reserved.
Page 6
PROTECTED CONCERTED ACTIVITY
Section 7 of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 157,
guarantees the employees of private sector employers engaging in interstate commerce
the right to engage in organizational and other concerted activities. Employees may not
be terminated, disciplined, or otherwise discriminated against for engaging in protected
activity.
The rights granted by Section 7 may be enforced against employers through unfair
labor practice proceedings under Section 8 of the NLRA. Among the employer unfair
labor practices defined by the NLRA are interference, restraint, or coercion of
employees’ exercise of their rights under Section 7. Unfair labor practice proceedings are
administered and enforced by the National Labor Relations Board (“NLRB”), an
independent federal agency created by the NLRA, with appeal rights available to the
United States Courts of Appeals.
A.
The NLRA Does Not Protect Supervisors
Section 2(11) of the NLRA excludes supervisors from the definition of
employees, and therefore employees who fit the definition of “supervisors” are not
protected under the NLRA. Supervisory status can be determined by (1) looking at an
employee’s authority to exercise one of 12 specifically listed functions (such as hiring,
firing and assigning duties), (2) determining whether that authority requires the exercise
of independent judgment and discretion, and (3) determining whether that authority is
held and exercised in the interest of the employer. Oakwood Healthcare, Inc., 348
N.L.R.B. 686 (2006) (clarifying meaning of “assign,” “independent judgment” and
“responsibly to direct” and finds certain nurses to be supervisors); Rockspring
Development Inc., 353 N.L.R.B. 105 (2009) (no supervisory status found where
employer did not provide evidence that employee was accountable for his actions in
directing others, even though he assigned duties and used independent judgment); PPG
Aerospace Industries.353 N.L.R.B. 23 (2008) (where putative supervisor served as
conduit relaying assignments from management to employees no independent judgment
was found and therefore no supervisory status allocated). In addition, supervisory status
is only permitted to those individuals who spend regular and substantial portions of their
work-time performing supervisory functions, as opposed to sporadic instances.
B.
Section 7 Has Broad Application
Section 7 not only protects employee activities in support of unions, but also
applies to activities engaged in for “other mutual aid or protection,” such as attempts to
improve terms and conditions of employment and support for workers employed
elsewhere. Odyssey Capital Group, 337 N.L.R.B. 1110 (2000) (employees engaged in
concerted activity when they refused to perform work based upon belief work presented
safety hazard); Monroe Manufacturing Inc., 155 LRRM 1068 (1997) (employer violated
NLRA by suspending employees who left work site because it was excessively cold);
P.B. & S. Chemical Company, Inc., 152 N.L.R.B. 1169 (1996) (employer violated NLRA
LIBA/1994031.1
by discharging two truck drivers who refused to cross picket line to make delivery at
facility of employer’s customer).
“The concerted activities need not take place in a union setting and it is not
necessary that a collective bargaining agreement be in effect.” Koch Supplies, Inc. v.
NLRB, 646 F.2d 1257 (8th Cir. 1981). For example, non-unionized employees have the
right to engage in a strike or other concerted activity to protest their working conditions.
NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962) (employer’s termination of nonunionized employees who left work without permission claiming it was too cold was
unlawful). Lewittes Furniture Enters, 244 N.L.R. 810 (1979) (employer unlawfully
discharged employees who sat in break room and refused to work as a protest for higher
wages).
Further, employers may be deemed to violate the NLRA if they maintain work
rules that could reasonably be construed to interfere with an employee’s Section 7 rights.
Lutheran Heritage Village-Livonia, 343 N.L.R.B. No.75 (2004). This is true even if the
employer had legitimate business reasons for the work rule and it was not enforced in the
context of union or other concerted activity. Northeastern Land Services, Ltd. v. NLRB,
560 F.3d 36 (1st Cir. 2009) (employer violated NLRA when it discharged employee for
violating confidentiality rule prohibiting disclosure of employment terms even though
legitimate business reason for such a rule existed and no concerted activity occurred);
Cintas Corp. v. N.L.R.B., 482 F.3d 463 (D.C. Cir. 2007) (confidentiality policy violated
NLRA where employees could reasonably interpret language to restrict them from
discussing wages or other matters with others).
C.
Employee Activity Must Be Concerted To Be Protected
An employee who protests alone or complains about purely personal matters is
not entitled to protection under the NLRA. Meyers Industries, 281 N.L.R.B. 882 (1986),
aff’d, 835 F.2d 1481 (D.C. Cir. 1987). However, protected conduct need not necessarily
involve two or more employees. Employee activity may be “concerted” if one employee
acts on behalf of other employees, such as bringing group complaints to the attention of
management. Air Contract Transp., 340 N.L.R.B. 688 (2003) (questions raised by
individual at staff luncheon regarding relationship between employer’s evaluation system
and pay raises considered concerted activity); Tromber, Inc., 335 N.L.R.B. 478 (2001)
(employee’s walkout because of supervisor’s conduct was protected concerted activity),
enforced, 338 F.3d 747 (7th Cir. 2003); Silchia v. MCI Telecommunications,
942 F. Supp. 1369 (D. Col. 1996) (employee engaged in concerted activity when he
spoke – on behalf of group of employees – with human resources manager about their
difficulties with new supervisor).
Moreover, concerted activity may exist where an employee’s actions are an
outgrowth of efforts initiated by a group of employees, even if the specific action is taken
without consulting other employees. Media Gen. Operations, Inc., 351 N.L.R.B. No. 96
(2007) (concerted activity found where employee went made negative comment to
supervisors about employer’s chief negotiator, even though he was unaccompanied by
co-workers and not authorized to make comment, because he was part of a group that had
LIBA/1994031.1
protested the executive’s letters about the union and the comment was part of “a logical
outgrowth” of a prior collective and concerted activity in which he was engaged); Mike
Yurosek & Son, 306 N.L.R.B. 1037 (1992), enforced, 53 F.3d 261 (9th Cir. 1995)
(concerted activity found where four employees independently refused their supervisor’s
request to work overtime since the “concerns expressed by the individual are a logical
outgrowth of the concerns expressed by the group”).
D.
Not All Concerted Activity Is Protected
Section 7 does not protect activity that is violent or unlawful. NLRB v. Fansteel
Metallurgical Corp., 306 U.S. 240 (1939) (sit-down strike in which employees used force
and violence to illegally seize employer’s building was not protected activity); Southern
Steamship Co. v. NLRB, 316 U.S. 31 (1942) (employees’ strike was unprotected activity
because it violated maritime law).
Conduct which is sufficiently disloyal, insubordinate or disruptive may not be
protected. Caterpillar, Inc., 321 N.L.R.B. 163 (1996) (“[C]ommunications occurring
during the course of otherwise protected activity remain likewise protected unless found
to be so violent or of such serious character as to render the employee unfit for further
service.”). The determination by the NLRB and courts of whether activity is sufficiently
egregious to lose NLRA protection is based on the facts of each case, but typically
involves a balancing of the legitimacy of the employer’s business interests versus the
validity of the employee’s methods and strength of the Section 7 interests. NLRB v.
Electrical Workers (MEW) Local 1229 (Jefferson Standard Broadcasting), 346 U.S. 464
(1953) (employees lawfully discharged for distributing handbills severely criticizing the
quality of the employer’s programming); Asheville School, Inc., 347 N.L.R.B. No. 84
(2006) (where employee, whose job provided confidential access to payroll information,
published wage information of other employees no protected activity was found); Earle
Indus., 315 N.L.R.B. 310 (1994), enforcement denied, 75 F.3d 400 (8th Cir. 1996)
(NLRB found unlawful the termination of an employee who led a non-employee union
organizer – Jesse Jackson – on to the employer’s property since the employee’s actions
were restrained and the employer had a history of unfair labor practices; the Eight Circuit
denied enforcement since the employee violated a work rule). But see Tampa Tribune,
351 N.L.R.B. 96 (2007) (employee’s dismissal was unlawful because although he used
profane and derogatory language, it was not sufficient to cause him to lose NLRA
protection); Valley Hospital Medical Center, Inc., 351 N.L.R.B. No. 88 (2007) (nurse’s
statements during press conference and in website articles criticizing hospital’s staffing
ratio and how it affects patient care were not found to be disloyal or intended to injure
employer’s business, rather it was seen as a method to pressure employer to provide
sufficient staffing); Martin Marietta Corp., 293 N.L.R.B. 719 (1989) (employee’s posting
of notice accusing employer of poisoning its employees was protected because the notice
was not so disruptive as to threaten plant discipline, it was not knowingly false because
pesticides could have caused employee illness, and employee’s right to protect workers’
safety outweighed risk of malicious intent).
LIBA/1994031.1
SOLICITATION AND DISTRIBUTION – LAWFUL RESTRICTIONS
EMPLOYERS MAY MAKE ON UNION ORGANIZING ACTIVITY
Union organizing efforts often begin with solicitation for union support and/or
distribution of pro-union literature by union organizers or by employees. Whether such
concerted activity is protected under the NLRA depends on a balancing between the NLRA
rights of employees to organize and the rights of employers to impose legitimate workplace rules
and to protect their property interests. The limits that an employer may impose on such activities
depend primarily on (1) whether the organizers are employees or non-employees, (2) the type of
conduct in which the organizers are engaged, (3) the time and location of the conduct, (4) the
employer’s property rights at that location, (5) whether the employer has a facially valid policy
which prohibits such conduct and (6) whether the policy is implemented in a non-discriminatory
way.
A.
Employees
1.
Solicitation
Although Section 7 provides employees with the right to solicit union support, employers
may implement policies to prohibit solicitations during the “working time” of either the
employee doing the soliciting or the employee who is the target of the solicitation.
“Non-working time” is an employee’s free time at work, such as breaks, lunches and the times
before and after work when an employee is legitimately on the employer’s premises. Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 803 n.10 (1945) (“working time is for work . . . but
[non-working time] . . . is an employee’s time to use as he wishes without unreasonable restraint,
although the employee is on company property”); Beverly Enters, d/b/a Provincial House Total
Living Center, 287 N.L.R.B. 158 (1987) (rule that forbade solicitation during “work time” was
lawful); NLRB v. Chicago Metallic Corp., 794 F.2d 527, 533 (rules prohibiting solicitation
during “company time” or “working hours” are overly broad and presumptively invalid). An
employer loses the protection of a facially valid rule if it is applied discriminatorily to ban union
solicitation, but to allow other types of solicitation of a similar character. Our Way,
268 N.L.R.B. 394 (1983) (unfair labor practice where facially valid rule prohibiting solicitation
during “work time” applied selectively).
In some circumstances, the nature of a business will justify a rule banning solicitations –
even during non-working times -- in certain areas of the workplace. For example, the interests of
retail stores and health care facilities in limiting disruption to customers and patients may justify
such broader limitations. Goldblatt Bros., 77 N.L.R.B. 1262 (1958) (retail department stores
may prohibit employee solicitation on the selling floor even during non-working time);
Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978) (health care facilities may ban employee
solicitation in “immediate patient care areas,” such as operating rooms, patients’ rooms, and
patients’ lounges and in other locations as long as the employer can show the limitations are
necessary to avoid disruption of patient care).
2.
Distribution
The NLRB and courts recognize a distinction between “solicitation” -- oral request for
support -- and “distribution” -- handing out written literature. Stoddard-Quirk Mfg. Co.,
LIBB/1642115.2
138 N.L.R.B. 615, 619 n.6 (1962) (NLRB treats the attempt to obtain a signed union
authorization card as a solicitation and not a distribution of literature). Employers may prohibit
distributions of literature from employee to employee -- even during non-working times – in
working areas because distribution of written material tends to be more disruptive to productivity
and order than oral solicitation. Formosa Plastics Corp., 320 N.L.R.B. 631, 632 (1996)
(employer may have “a rule forbidding employees to distribute union literature in working areas,
but a rule banning distribution during nonworking time in nonworking areas of the plant is
presumptively invalid.”). Employers may also adopt a policy prohibiting nonwork-related
postings of literature and other materials on company bulletin boards as long as the policy is not
applied in a nondiscriminatory way. Eaton Technologies, 322 NLRB 848, 853 (1997) (no
statutory right of an employee or union to use an employer’s bulletin board).
3.
E-Mail System
An employer may lawfully bar employees’ nonwork-related use of its e-mail system
provided the employer does not do so in a manner that discriminates against Section 7 activity.
Guard Publishing Co. d/b/a/ The Register-Guard, 351 NLRB No. 70 (2007). In Register-Guard,
an employer maintained a communications systems policy prohibiting the use of the company’s
communications systems, including e-mail, for any non-job related solicitations. In deciding
whether such a prohibition was lawful, the NLRB considered whether an e-mail system was
properly viewed as employer equipment, and therefore lawfully subject to significant restrictions
on its use by employees, see Eaton Technologies, supra (no statutory right of an employee or
union to use an employer’s bulletin board); Union Carbide Corp., 714 F.2d 657, 663 (6th Cir.
1983) (no statutory right of an employee to use an employer’s telephones for personal use), or
whether the unique nature of e-mail communications in the workplace made it similar enough to
traditional face-to-face solicitation that a prohibition of non-work related solicitations via e-mail
is presumptively unlawful absent special circumstances. A three member majority held that an
e-mail system constituted employer equipment, similar to a bulletin board or a telephone system,
and therefore an employer could lawfully prohibit nonwork-related use of its e-mail system so
long as it did so in a nondiscriminatory fashion. Id.
The two dissenting members in Register-Guard criticized the majority for failing to
appreciate the extent to which modern day employees routinely rely on e-mail for
communication at work. The minority also emphasized that e-mail has revolutionized business
and personal communications by allowing for thousands of multiple, simultaneous, interactive
exchanges, making it entirely incomparable to a bulletin board or telephone. Where an employer
has given employees access to e-mail in the workplace for their regular use, as was the case in
Register-Guard, the dissent stated that it would find the banning of all nonwork-related
solicitations to be presumptively unlawful absent special circumstances.
The rule announced by the majority permitting the ban of all nonwork-related solicitation
via e-mail is currently good law, but this issue is likely to be revisited in the near future by a
more labor-friendly NLRB than the one that decided Register-Guard. Once President Obama
fills the three currently vacant seats on the Board, the NLRB will consist of three members of the
Democratic party and two members of the Republican party. Thus, should the Board revisit this
issue in the next four years, there is a reasonable likelihood that it will adopt the minority
position in Register-Guard and find that policies prohibiting all nonwork-related solicitations via
2
LIBB/1642115.2
e-mail violate the NLRA absent special circumstances. Employers should closely monitor any
future decisions issued by the NLRB on this topic to ensure that their communications policies
remain lawful.
4.
Insignia
Employees may have the right to wear anti-employer or pro-union clothing, buttons or
insignia where such insignia relates to Section 7 rights. Republic Aviation, supra; Pay’n Save
Corp. v. NLRB, 641 F.2d 697 (9th Cir. 1981) (“Vote Yes [to Union]” buttons protected);
Borman’s Inc. v. NLRB, 676 F.2d 1138 (6th Cir. 1982) (“I’m tired of bustin’ my ass” not
protected). Where insignia concerns unionization or other protected activities, employers may
prohibit such displays only in “special circumstances,” such as where employees have significant
contact with the public, where the slogans denigrate the employer’s business or where the
slogans are vulgar. Meijer Inc. v. NLRB, 130 F.3d 1209 (6th Cir. 1997) (general merchandise
retailer unlawfully prohibited employees from wearing union pins in customer areas because
retailer failed to show pins negatively affected public image or ability to maintain production,
safety, or discipline); NLRB v. Mead, 73 F.3d 74 (6th Cir. 1996) (employer’s stated concerns
with effect of insignia on public relations not sufficient where no evidence that employees would
frequently come into contact with public); Leiser Construction, LLC, 349 N.L.R.B. No. 41
(2007) (employer did not commit unfair labor practice by prohibiting employee from wearing
sticker of someone urinating on a rat designated “non-union” because such insignia was
“unquestionably vulgar and obscene”).
5.
Regulation of Employee Communications Must Be Nondiscriminatory
While an employer is not required to allow its employees to engage in nonwork-related
communications via its e-mail systems, bulletin boards, or other employer-owned equipment, if
the employer chooses to permit such nonwork-related communications, it must do so on a
nondiscriminatory basis. In Register-Guard, the NLRB held that unlawful discrimination
consists of disparate treatment of activities or communications of a similar character because of
their union or other Section 7-protected status. Register-Guard, 351 NLRB No. 70 (2007).
Thus, an employer may permissibly draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature and solicitations of a
commercial nature, between personal invitations and invitations to join an organization, and
between business-related use and nonbusiness-related use. Id. This relatively new rule is
significantly more permissive than the Board’s previous interpretation of “discrimination,”
which prohibited an employer from barring union solicitation while simultaneously allowing any
nonunion solicitations at all unless those nonunion solicitations were either business related or
constituted “a small number of isolated beneficent acts.”
In Register-Guard, the employer had historically allowed employees to send personal email messages concerning social gatherings, jokes, baby announcements, and offers for sports
tickets or other personal items. However, when an employee used the employer’s e-mail system
to make a number of union-related communications, the employer responded by disciplining her.
In determining whether the employer committed an unfair labor practice, the NLRB considered
the types of communications the employer had permitted historically to see whether it was
drawing distinctions on a Section 7 basis. The NLRB held that the employer did not commit an
3
LIBB/1642115.2
unfair labor practice by disciplining the employee for e-mails that encouraged union support
because the employer never permitted employees to solicit support for organizations, with the
exception of the United Way. Id. However, the NLRB held that the employer did commit an
unfair labor practice when it disciplined the employee for circulating a factual e-mail regarding a
prior union rally because the employer had permitted non-work related communications of a
factual, non-solicitous nature in the past. Id.
In light of Register-Guard, employers should be clear in their policies as to which types
of employee communications via employer-owned equipment are permitted and which types are
prohibited. The employer should be careful to draft a policy that it will realistically be able to
enforce. When an employer arbitrarily enforces its solicitation and communication systems
policies and then disciplines an employee for making a union-related solicitation, it becomes
more difficult for the employer to claim that it was not discriminating against the employee on a
Section 7 basis. As mentioned in Section I.A.3 above, Register-Guard is likely to be revisited by
a more labor-friendly NLRB under the Obama Administration. Therefore, employers should be
sure to monitor new NLRB decisions on this topic in case the NLRB decides to re-adopt its
previous, more expansive definition of “discrimination.”
B.
Off-Duty Employees
An employer may deny off-duty employees access to the interior of its facility for
purposes of solicitation, as long as the employer has a clearly disseminated no-access rule and
applies it in a non-discriminatory way. Tri-County Medical Center, 222 N.L.R.B. 1089 (1976).
However, a rule that denies off-duty employees entry to parking lots, gates, and other outside
nonworking areas will be invalid unless justified by specific business reasons. Id.; Teksid
Aluminum Foundry, 311 N.L.R.B. 711 (1993).
C.
Employer Property Rights and Nonemployee Solicitation and Distribution
1.
The Rule
In general, an employer may lawfully prohibit nonemployee solicitation and distribution
on its property. Lechmere, Inc. v. NLRB, 112 S. Ct. 841 (1992) (employer permitted to bar nonemployee organizers from shopping plaza open to the public based on strictly enforced policy
barring all solicitation on company property); Carpenters Metropolitan District Council v. NLRB
(Leslie Homes, Inc.), 68 F.3d 71 (3d Cir. 1995) (employer permitted to deny access to
nonemployee organizers who were engaged in area standards hand billing); Home Depot, U.S.A.
Inc., 317 N.L.R.B. 732 (1995) (no NLRA violation where employer barred from its retail store
and later had arrested a nonemployee union representative who was attempting to solicit
employees).
In Lechmere, the Supreme Court rejected the NLRB’s approach of balancing the degree
of impairment to an employer’s property interest if access is allowed versus the degree of
impairment to the union’s right to engage in protected activity if access is denied. Rather, the
Court held that if the property is private, access to it may lawfully be denied except in a very
narrow set of circumstances when it is “infeasible to otherwise communicate [with employees]” - such as in the case of a “logging” or “mining” camp or “mountain resort hotels.” Id.; NLRB v.
Babcock & Wilcox Co., 351 U.S. 105 (1956). Contact through mailings, telephone calls, signs
4
LIBB/1642115.2
and advertising will normally create feasible means for communicating with employees.
Babcock & Wilcox Co., supra.
The Lechmere doctrine does not prohibit nonemployee activity (such as picketing) on
public property adjacent to an employer’s private property. Indeed, on remand, the NLRB found
that Lechmere engaged in an unfair labor practice when it sought to remove union organizers
from public property adjacent to its parking lot. Lechmere, Inc., 308 N.L.R.B. No. 157 (1995).
Nor may an employer prohibit activity on private property on which a union organizer has a state
law right of access. Bristol Farms, 311 N.L.R.B. 437 (1993) (unlawful for employer to prohibit
activity in shopping center where state law provides for free speech on such property).
2.
Denial of Access Must be Nondiscriminatory
The Lechmere rule applies only to nondiscriminatory prohibitions on nonemployee
solicitations and distributions. Therefore, an employer may be obligated to grant nonemployee
union organizers access to its property if the employer grants other nonemployees access for
solicitation purposes. As stated in Section II.A.5. above, unlawful discrimination consists of
disparate treatment of activities or communications of a similar character because of their union
or other Section 7-protected status. For example, an employer does not act in a discriminatory
manner if it permits solicitations by non-employees that relate to the employer’s business while
prohibiting solicitations by unions. Lucile Salter Packard Hosp. v. NLRB, 97 F.3d 583 (D.C.
Cir. 1996) (lawful to deny union solicitations while permitting solicitations by nonemployee
representatives of medical textbook publishers and by the entity that provided certain employee
retirement benefits to hospital employees; however, hospital unlawfully discriminated against
union organizers by denying them access while permitting a credit union and an insurance
company to solicit).
D.
Considerations for the Creation and Implementation of a Valid
Solicitation/Distribution Policy
Nearly every employer should establish and follow a solicitation/distribution policy.
Such a policy, if implemented in a nondiscriminatory way, is an important means of preserving
employer rights in the face of organizing activity. Consider the following guidelines:
•
If you wait for union organizing activity to begin, you may be too late to implement
an enforceable policy. The NLRB and courts examine the timing of the
implementation of the policy in analyzing whether the employer has acted with union
animus. Cannondale Corp., 310 NLRB 845 (1993) (employer committed unfair labor
practice where it issued a new policy shortly after union began organizing campaign).
•
Tailor the policy so that it is consistent with the legal parameters and is not overly
broad. For example, for most employers, a policy which prohibits solicitation during
all “company time” will be presumptively unlawful, while a policy that prohibits
solicitation during “working time” would not be unlawful.
•
Set forth the policy in clear and unambiguous terms. For example, a policy that
prohibits “any unauthorized selling, soliciting, canvassing, or distribution of literature
5
LIBB/1642115.2
except where permitted by law” is presumptively invalid. Westinghouse Elec. Corp.,
240 N.L.R.B. 905, aff’d, 612 F.2d 1072 (8th Cir. 1979).
•
Apply the policy in a nondiscriminatory manner. Many employers establish a facially
valid policy, but lose its protections by not following it. Once established, the policy
should be followed and applied uniformly.
Sample Policy
As discussed above, circumstances unique to various employers and work situations will
dictate the language and parameters of any given policy concerning solicitation and distribution.
The following is an example of a generic policy for illustration purposes. Employers should not
rely on this example absent further legal consultation.
Solicitation and Distribution
Nonemployees
Solicitation or distribution of literature by nonemployees is strictly limited to
solicitation or distributions of literature on behalf of a charitable organization or
solicitation or distributions of literature directly related to the business of [Company’s
Name] (the “Company”). All other solicitations or distributions of literature by nonemployees are strictly prohibited. Under no circumstances is solicitation or the
distribution of literature permitted in working or non-public areas on the Company’s
premises. All solicitations or distributions of literature must be approved in advance by
[designated person with authority to make such approvals]. Under no circumstances will
the Company approve solicitations or distributions of literature inconsistent with this
policy.
Employees
Employees are not permitted to solicit other employees for any purpose not
related to their assigned work on [Company’s] premises during their own working time
or during the working time of the employees being solicited.
Employees may not distribute literature or other materials for any purpose not
directly related to their assigned work during their own working time or during the
working time of the employees to whom distribution is made. Employees are not
permitted to distribute literature or other materials at any time in working areas of
[Company].
Employees may not sell any item or post literature or other materials on
[Company] property [without prior [Company] approval]. Materials for distribution to
employees may not be stored on [Company’s] premises.
6
LIBB/1642115.2
Portion of Communication Systems Policy Relating to Solicitation
[Company’s] communication systems and the equipment used to operate the
communication system are owned and provided by [Company] to assist in conducting the
business of [Company]. Any use of [Company’s] communications system, including
[Company’s] e-mail system, for non-work related solicitation is strictly prohibited. [State
exceptions?]
7
LIBB/1642115.2
REPRESENTATION ELECTIONS CONDUCTED BY THE
NATIONAL LABOR RELATIONS BOARD
A.
Representation Petition
If a union obtains signed union authorization cards from at least 30% of the employees within the
group of employees (bargaining unit) that it seeks to represent, the union can submit a
representation petition to the National Labor Relations Board (“NLRB” or “Board”) seeking an
election to establish its right to represent the employees in that unit. The NLRB is responsible
for examining the representation petition to verify that the 30% threshold is met and that the
signatures appear authentic. If the union meets the 30% threshold, the NLRB then notifies the
employer of the representation petition. The Board does not provide the employer with the
signed authorization cards or the percentage of employees who submitted cards. Through
discussions with the union and the employer and a representation hearing, if necessary, the
NLRB investigates the appropriateness of the bargaining unit.
B.
Appropriate Bargaining Unit
1.
Community of Interest Among Employees
The NLRB will process a union’s representation petition seeking recognition of its right to
represent a bargaining unit and allow a representation election to proceed only if the group of
employees the union seeks to represent is an appropriate unit for collective bargaining. The
potential bargaining unit does not have to be the most appropriate unit. Rather, the unit only
must be “appropriate.” See Morand Bros., Beverage Co., 91 NLRB 409 (1950). In determining
appropriateness of a potential bargaining unit, the NLRB’s primary consideration is to ensure
that the employees who comprise the proposed unit have a “community of interest” – a term that
the NLRB uses to describe employees with a substantial mutual interest in wages, hours, and
other terms and conditions of employment. See NLRB, 1950 Annual Report 39 (1951).
Bargaining units that include employees who do not share a community of interest are not
appropriate because the employees are likely to have widely different collective bargaining
objectives and expectations that would complicate, frustrate, or delay the collective bargaining
process.
While there is no precise definition of a community of interest, the NLRB considers a variety of
factors in making this determination. Among the most important factors are:
•
The employer’s organizational structure. The NLRB gives considerable weight in its
appropriateness analysis to the employer’s organizational structure. Common
supervision, assignment to the same department, functional integration of job duties,
frequent interaction, and similarity of working conditions are all suggestive that the
employees share a community of interest. See, e.g., Publix Super Markets, Inc., 343
NLRB 1023 (2004); Allegheny Gen. Hosp., 239 NLRB 872 (1978).
•
The extent of union organization. The NLRB may consider the extent of the union’s
proposed bargaining unit (i.e., whether the bargaining unit is organization-wide or more
LIBB/1642116.2
narrow) in its appropriateness determination. See NLRB v. Metropolitan Life Ins. Co.,
380 U.S. 438, 442 (1965). The purpose of this factor is to prevent unions or employers
from manipulating the boundaries of the bargaining unit to arrive at a bargaining unit
wherein the union or employer is most likely to prevail in an election. For example, the
NLRB may look unfavorably on a bargaining unit that consists only of a subset of prounion employees within a department and excludes a group of anti-union employees
within that department, especially if the excluded group shares a community of interest
with the bargaining unit. See Garden State Hosiery Co., 74 NLRB 318 (1947). A narrow
bargaining unit that excludes employees with similar skills or duties would result in the
application of different terms and conditions to similarly situated employees and would
therefore likely lead to the labor strife that the NLRA is designed to prevent. See id.
While the NLRB may consider the extent of union organization in its appropriateness
determination, the NLRA explicitly prohibits the NLRB from making an appropriateness
determination based entirely on the extent of union organization. 29 U.S.C. § 159(c)(5).
Rather, the NLRB must articulate at least one other basis in support of its determination.
See Metropolitan Life Ins. Co., 380 U.S. at 442-43.
•
Single location versus multiple locations. Single plant or single store bargaining units are
presumptively appropriate. See, e.g., New Britain Trans. Co., 330 NLRB 397 (1999).
The presumed appropriateness is rebuttable, but the burden is on the party opposing the
appropriateness of the single-location bargaining unit to present sufficient evidence that
the single location bargaining unit is inappropriate. That burden can be satisfied by
showing that the single location does not have a separate identity because it is
functionally integrated into another location. See Novato Disposal Services, Inc., 328
NLRB 820 (1999). To determine whether the single location has a separate identity, the
NLRB considers factors such as the extent of the single location’s autonomy, the
uniqueness of the working conditions and the work performed at the single location; and
the distance between the single location and other company locations. See id.
2.
Exclusions from the Bargaining Unit
Certain categories of workers are not entitled to protection under the NLRA, including the right
to be part of a bargaining unit. Those categories of workers include:
•
Supervisors. The NLRA excludes supervisors from the definition of employees who are
entitled to NLRA protection. Under the NLRA, a worker is a supervisor if: 1) he or she
holds the authority to engage in any one of twelve supervisory functions (authority to
hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, discipline, or
responsibly to direct other employees, or to adjust their grievances, or effectively to
recommend such action); 2) the exercise of such authority requires the exercise of
independent judgment and discretion as opposed to being merely routine or clerical; and
3) the authority is held in the interest of the employer. NLRB v. Kentucky River
Community Care, 532 U.S. 506 (2001); 29 U.S.C. § 152(11). The application of this
three-part test does not always yield a clear result. Thus, for borderline cases, the NLRB
has developed a number of secondary factors suggestive of a worker’s supervisor status,
including: 1) whether the worker is perceived as a supervisor (NLRB v. Chicago
2
LIBB/1642116.2
Metallic Corp., 794 F.2d 527 (9th Cir. 1986)); 2) regular attendance at management
meetings (Maine Yankee Atomic Power Co. v. NLRB, 624 F.2d 347 (1st Cir. 1980)); and
3) high compensation relative to other workers (Id.).
In 2007, legislation was introduced in the U.S. House of Representatives that would
significantly modify the definition of a supervisor under the NLRA. The ReEmpowerment of Skilled and Professional Employees and Construction Trades Workers
(“RESPECT”) Act would remove “assign” and “responsibly to direct” from the list of
functions that would satisfy the first prong of the supervisory test. The RESPECT Act
would also require a worker to spend the majority of his or her work time on one or more
of the supervisory functions for the worker to be considered a supervisor. The RESPECT
Act has yet to be introduced in the current Congress, but it may be re-introduced as
President Obama has indicated his support.
•
Managerial Employees. Managerial employees are excluded from coverage under the
NLRA. See NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 288
(1974). For purposes of the NLRA, “managerial employees” are employees who
formulate and effectuate employer policies by expressing the employer’s policy decisions
and making them operative. See id. at 277. An employee is managerial if the employee
takes or recommends discretionary action that controls or implements the employer’s
policies. See NLRB v. Yeshiva University, 444 U.S. 672, 683 (1980). A primary reason
for this exclusion is to avoid the inherent conflicts of interest that otherwise would occur
between the duties of managerial employees as representatives of the employer and their
duties to their co-workers as part of a collective bargaining unit. See Bell Aerospace, 416
U.S. at 281.
•
Confidential Employees. The NLRB has ruled that “confidential employees” are not
entitled to NLRA protection. Confidential employees are workers who 1) share a
confidential relationship with managers who formulate, determine, and effectuate
management policy in the field of labor relations; and 2) assist and act in a confidential
capacity to such managers. See Waste Management de Puerto Rico, 339 NLRB 262
(2003). An example of a confidential employee is the secretary of a management official
responsible for formulating an employer’s proposed labor contract. See Firestone
Synthetic Latex Co., 201 NLRB 347 (1973).
•
Guards. The NLRA prohibits the NLRB from deciding that a potential bargaining unit is
appropriate if the unit includes both (1) individuals employed as guards responsible for
the protection of the employer’s property or the safety of persons on the employer’s
premises; and (2) non-guard employees. See 29 U.S.C. § 159(b)(3). The NLRA does
not, however, prohibit an employer from waiving that provision and recognizing a
bargaining unit that includes guards and non-guards. See NLRB v. White Superior Div.,
White Motor Corp., 404 F.2d 1100, 1103 (6th Cir. 1968). Nor does the NLRA prohibit
bargaining units consisting entirely of guards.
3
LIBB/1642116.2
•
Temporary Employees and Students. The NLRB has ruled that temporary employees are
not eligible to be part of bargaining units because they do not have a continuing interest
in bargaining unit affairs. The NLRB has applied two different tests, the reasonable
expectation test and the date certain test, in determining whether a worker is a temporary
employee. Under the reasonable expectation test, a worker is a temporary employee if he
or she does not have a reasonable expectation of indefinite employment, even if the
employer has not identified a termination date. See NLRB v. S.R.D.C., Inc., 45 F.3d 328,
331 (9th Cir. 1995). Under the date certain test, a worker is a temporary employee only if
the employer has identified a termination date. See id. While it is uncertain whether the
NLRB would apply the reasonable expectation test or the date certain test in a particular
situation, courts have generally expressed a preference for the date certain test because it
avoids a subjective examination of a worker’s expectations. See, e.g., NLRB v. New
England Lithographic Co., 589 F.2d 29, 33 (1st Cir. 1978).
Student workers are generally not employees eligible to be part of bargaining units unless
1) their relationship with their employer (i.e., the educational institution) is primarily
economic as opposed to academic; and 2) they are not temporary employees. The NLRB
has found that a student worker’s relationship with an educational institution is primarily
academic when 1) admission to the institution is a prerequisite for the position; 2) the
work is an integral part of the student’s academic training; and 3) compensation is
intended as tuition assistance rather than a true reflection of the value of the work. See
Brown University, 342 NLRB 483 (2004). Under these factors, teaching or research
assistants are generally not eligible to be part of bargaining units. See id. However, if
the student worker’s employment is merely incidental to his or her academic training, he
or she generally would be eligible to be included in the bargaining unit. See University
of West L.A., 321 NLRB 61 (1996) (students working in university’s law library are
eligible to be part of librarian bargaining unit where employment is incidental to their
education). In April 2008, a bill was introduced in both houses of Congress under which
any student at a private college or university who performs work “for remuneration at the
direction of the institution” would be eligible to be part of a bargaining unit. Since thenSenator Obama was one of the co-sponsors, it is possible that the bill will be reintroduced.
•
Casual Employees. Casual employees are part-time workers who work intermittent or
irregular schedules, such as seasonal or on-call workers. While part-time employees who
work regular schedules are generally eligible to be part of a bargaining unit, casual
employees are often ineligible because they do not share a community of interest with
regular employees. However, a casual employee may be eligible if the employee has a
continuing interest. The Board has adopted a test under which it presumes that a casual
employee shares a community of interest if the employee has worked an average of at
least 4 hours per week during the most recent calendar quarter. See Desert Hosp. v.
NLRB, 91 F.3d 187, 191 (D.C. Cir. 1996). However, that presumption can be overcome
where special circumstances suggest that there is no community of interest. See id.
Likewise, a casual employee who does not meet the 4-hour test may nonetheless be
eligible to be part of a bargaining unit where special circumstances indicate a community
of interest. BB & L, Inc. v. NLRB, 52 F.3d 366, 370 (D.C. Cir. 1995). For example,
4
LIBB/1642116.2
casual employees who do not meet the 4-hour test because they were on pregnancy leave
during the applicable quarter, newly hired casual employees, or casual employees who
work in industries with irregular employment patterns may be eligible to be part of a
bargaining unit. See id. at 371-72.
C.
NLRB Election Procedures
After the NLRB has made its decision on which employees are appropriate for inclusion in the
bargaining unit, the NLRB must confirm that the union has submitted proof that the petition is
supported by 30% or more of the employees in that unit. Once the NLRB has made that
verification, it generally processes the petition and schedules a conference with the employer and
the union to discuss the representation election procedures.
The NLRB Regional Director encourages the union and the employer to reach an agreement on
the election procedures, such as the final scope of the proposed bargaining unit as well as the
date and location of the election. However, the union and the employer are not required to reach
a stipulated election agreement. For example, the employer may not agree to an election on the
basis that the union is not a bona fide labor organization or may dispute the scope of the
proposed bargaining unit. If the union and the employer cannot reach agreement, the NLRB
conducts a hearing to resolve any disputes. Briefs are filed by both sides. The Regional Director
then issues a decision and, assuming that an election will be held, a notice of the election terms.
Board rules provide that the election should not be scheduled prior to the 25th day after the
direction of election, nor later than the 30th day thereafter.
The NLRB then requires the employer to submit the names and addresses of all employees in the
bargaining unit. That list is submitted to the union, so that it can communicate with the entire
eligible voter base. The employer can campaign against the union prior to the election, although
the NLRA restricts what the employer can say from the time that the representation petition is
filed until the time that the election is held. The rules which govern an employer’s campaign
tactics are complicated. See “Do’s & Don’ts for Managers and Supervisors, at Tab 8.
Management should develop appropriate campaign tactics with assistance from counsel and
experienced labor consultants. In short, the NLRB’s function is “to provide a laboratory in
which an experiment may be conducted, under conditions as nearly ideal as possible, to
determine the uninhibited desires of the employees.” General Shoe Corp., 77 NLRB 124 (1948).
If the NLRB believes that “laboratory conditions” were not established, and the losing party was
prejudiced by the unacceptable conduct of the winning party, then the Board will order a second
election. See id.
The election is usually held at the employer’s place of business – often in a lunch room or break
area. At the time of the election, the NLRB uses the list provided by the employer to check off
employees who have voted. Both the employer and the union are allowed to appoint nonsupervisory representatives to observe the voting and are allowed to challenge the eligibility of
an individual to vote. If an individual is challenged, his or her vote is sealed, and the dispute is
resolved by the NLRB only if the vote could affect the result of the election. The election is held
by secret ballot under the supervision of the NLRB. An NLRB agent sets up the private voting
booths and is responsible for preventing conversation or electioneering near the polling place.
5
LIBB/1642116.2
Voters mark a ballot either in favor of or against union representation and then deposit their
completed ballot into a ballot box. The NLRB agent is responsible for counting the ballots at the
polling place as soon as the voting is completed. Both the employer and the union can monitor
the count and can challenge ballots. The union wins the right to represent the bargaining unit if a
majority of the voters who actually voted, as opposed to a majority of the eligible voters, vote in
favor of union representation. If the union wins, the NLRB certifies the union as the exclusive
bargaining representative for the bargaining unit, and the employer is required under the NLRA
to bargain with the bargaining unit.
The employer or the union can file objections to the manner in which the election was conducted
or to alleged improper conduct that may have affected the election results, within seven days of
the election. If the NLRB finds that the objection is meritorious, it may order another election.
If the employer has committed significant unfair labor practices and the union had authorization
cards signed by the majority of employees in the unit, the NLRB may not only set aside the
election result but also issue an order requiring the employer to bargain with the union—without
holding a second election.
6
LIBB/1642116.2
DO’S AND DON’Ts FOR MANAGERS AND SUPERVISORS
Under the
Labor Management Relations Act, 1947, as Amended
THE LAW
“The expressing of any views, argument or opinion, or the dissemination thereof, whether
in written, printed, graphic or visual form, shall not constitute or be evidence of a violation of the
provisions of this Act, if such expression contains no threat of reprisal, or force, or promise of
benefit.”
WHAT YOU, AS THE SUPERVISOR, CAN DO
1.
Tell employees that they are free to join or not to join any organization, so far as their
status with The Company is concerned although the Company hopes they will choose not to
support the union.
2.
Tell employees that the law protects their right to refrain from engaging in union
activities, and that they are not obligated to talk to union organizers.
3.
Tell employees that the law protects them against threats, restraint or coercion by the
union or its agents and officers, and if they are pressured, threatened or otherwise coerced, they
should report it to their supervisors.
4.
Keep outside organizers off the Company’s property.
5.
Insist that any solicitation of membership in or discussion of union affairs be conducted
outside of working time (but not breaks or lunch periods).
6.
Inform employees that signing authorization cards can possibly lead to a union without
an election. Tell them that if they wish to sign a card that authorizes an election, but does not
authorize establishment of the union without an election; they may write on the card “for election
purposes only.”
7.
Inform employees that signing an authorization card can lead to the payment of monthly
union dues, initiation fees, possible fines and assessments.
8.
Inform employees that signing an authorization card does not mean that they must vote
for a union.
1
LIBB/1641902.1
WHAT YOU, AS THE SUPERVISOR, CAN DO
9.
Inform employees that no union can obtain more than the Company is willing or able to
give. It is still the employer who has to meet the payroll and be competitive to keep the work
and retain the jobs.
10.
Tell employees that it is the employer that provides the jobs, not the union and the union
cannot prevent layoffs if they become necessary.
11.
Inform employees that without a union they can still deal directly with the Company,
rather than have the union or some outsider interfere as a middleman or third party.
12.
Point out to employees that there is nothing the union can get for them that they could not
get on their own.
13.
Remind employees of the exceptionally good benefits they have already been given
without the imposition of dues and initiation fees, without long strikes or walkouts, or the
interference of outsiders. Outline the benefits, i.e., wages, no strikes, job opportunities,
longevity, working conditions.
14.
Remind employees that the greatest job security is the security of knowing there will not
be any strikes, walkouts, or other work stoppages.
15.
Inform employees that with a union a strike is possible if a contract is not reached and
while they do not receive any pay, they may have to walk a picket line.
16.
Inform employees about the union’s strike history, showing them when and where they
took place, how long they lasted, how many employees were affected and how much was lost in
wages.
17.
Tell employees that the law allows you to hire another person to replace any person who
strikes for economic reasons.
18.
Inform employees if they take home $700 per week and strike for 4 weeks for a 3% raise,
it will take them more than 2-1/2 years to get back what they lost; and if they strike for 10 weeks
for a 3% raise, it will take them more than 6 years to get back what they lost.
19.
Point out that the union, in its contracts with other employers, requires employees to join
the union or lose their jobs.
20.
Point out that the union in its contracts with other employers often tries to require the
employer to deduct the monthly dues from their employees’ pay checks, so that the union is
guaranteed payment.
2
LIBB/1641902.1
WHAT YOU, AS THE SUPERVISOR, CAN DO
21.
Inform employees about the cost of belonging to a union in terms of money (dues,
initiation fees and assessments) and time.
22.
Inform employees that part of their union dues and initiation fees may go to the
international union which often may control and dominate the local union’s affairs with the
members having little to say about it.
23.
Compare the wages and benefits of non-unionized concerns with unionized concerns,
where union wages are lower and benefits less desirable.
24.
Inform employees about any prior experience you have had with unions.
25.
Inform employees what you think about unions, union policies and union leaders.
26.
Distribute information about unions, including union organizers’ salaries, corruption in
unions, strikes, violence. etc.
27.
Inform employees that many unions seek superseniority preference for stewards who
most often are employees who lead their campaign, thus discriminating against other employees.
28.
Inform employees of any untrue or misleading statements made by the organizer. You
may give employees the correct facts.
29.
Reply to any union attacks on the Company and its policies.
30.
Tell the employees that the election is secret and union organizers will never know how
each employee votes.
31.
Urge all employees to vote. Tell them every vote counts since a majority of those voting
wins the election.
32.
Administer discipline, layoffs, grievances, etc., without regard to the union membership
or non-membership of the employee involved.
33.
Treat both union and non-union employees alike in making assignments of preferred
work, overtime, etc.
34.
Enforce the Company’s rules impartially regardless of the employee’s membership or
activity in a union.
3
LIBB/1641902.1
IT IS IMPORTANT TO REMEMBER THAT YOU SHOULD CONTINUE TO RUN
YOUR DEPARTMENT AS YOU NORMALLY DO, IMPARTIALLY AND IN
ACCORDANCE WITH CUSTOMARY ACTION IRRESPECTIVE OF THE EMPLOYEE’S
MEMBERSHIP OR ACTIVITY IN A UNION. THIS MAY BE HARDER TO DO IF SOME
EMPLOYEES BECOME ARGUMENTATIVE OR DIFFICULT, BUT YOU SHOULD BE
CAREFUL NOT TO BE PROVOKED TO DO OR SAY ANYTHING THAT COULD SOUND
DISCRIMINATORY.
PLEASE REPORT ALL MATTERS OF INTEREST RELATIVE TO THE UNION
CAMPAIGN TO A DESIGNATED MEMBER OF MANAGEMENT!
WHAT THE SUPERVISOR CANNOT DO
1.
Layoff or discharge any employee for union activity.
2.
Tell employees or say anything that might suggest to them that the Company will fire or
punish them if they engage in union activity.
3.
Promise or grant employees wage increases or special concessions in order to keep the
union out.
4.
Attend any union meetings, park across the street from the union hall to see which
employees enter the hall, or engage in any undercover activity which would indicate that the
employees are being kept under surveillance to determine who is and who is not participating in
the union program.
5.
Ask employees about confidential union matters, meetings, signing cards, membership,
etc. (Some employees may, on their own accord, walk up and tell of such matters. It is not an
unfair labor practice to listen, but you must not ask questions to obtain additional information.)
6.
Ask employees how they intend to vote.
7.
Ask employees what they think about the union or a union representative.
8.
Bar employee union representatives from soliciting employee memberships during
non-working time.
9.
Threaten employees with economic reprisal for participating in union activities. For
example, threaten to sell the business, subcontract operations or reduce employee benefits.
4
LIBB/1641902.1
WHAT THE SUPERVISOR CANNOT DO
10.
Announce that you will not deal with the union as the representative of the Company’s
employees.
11.
Ask an applicant, during a hiring interview, about his affiliation with a labor
organization.
12.
Purposely team up non-union employees and keep them apart from those you think may
support the union.
13.
Transfer workers on the basis of union affiliations or activity.
14.
Make distinctions between union and non-union employees when assigning overtime
work or desirable work.
15.
Take actions that adversely affect an employee’s job or any pay rate because of union
activity.
16.
Become involved in arguments that may lead to a physical encounter with an employee
over the union question.
17.
Promise employees a reward or a future benefit if they decide “no union.”
18.
Threaten your workers or coerce them in an attempt to influence their vote.
19.
Threaten a union member through a third party.
20.
Tell employees overtime work (and premium pay) will be discontinued if the union
succeeds in its organizing effort.
21.
Say unionization will force the Company to lay off employees.
22.
Promise employees promotions, raises or other benefits if they oppose the union or
refrain from joining it.
23.
Forbid employees from wearing union campaign buttons unless it interferes with
employer operations or service.
24.
Say unionization will take away vacations or other benefits and privileges presently
enjoyed.
5
LIBB/1641902.1
WHAT THE SUPERVISOR CANNOT DO
25.
Start a petition or circular against the union or encourage or take part in its circulation if
started by employees.
26.
Urge employees to try to induce others to oppose the union or keep out of it.
27.
Conduct a straw vote to find out how employees feel about the union.
28.
Interview individual employees or small groups of employees in your office or any
private non-working area to influence their votes.
29.
Make a campaign speech to assembled groups of employees on employer time within the
twenty-four hour period before the election.
30.
Incite racial or religious prejudice by appealing to employees on such grounds.
6
LIBB/1641902.1
The following is a generic notice to employees, for illustration purposes. Employers
should not rely on this example absent legal consultation.
NOTICE TO EMPLOYEES
We understand that [Name of Union] recently began an effort to organize here at [Name
of Company]. Some of you may have been approached by fellow employees or paid union
organizers. You may hear some extravagant promises about what the union can do for you. I
would like to take this opportunity to advise you of your rights and of [Company’s] position
with respect to the union’s activities here.
Management believes a union is unnecessary and inappropriate here at [Company]. We
have worked hard together to build an atmosphere of mutual respect between employees and
management, dealing directly with each other to solve our problems. We have competitive
wages and benefits for our industry. Despite anything anyone tells you, unions cannot obtain for
employees anything that your Company is unwilling to give.
You may be asked to sign a union card. Before you do, think it over carefully. Don’t let
anyone pressure you to sign a card. Here are some things you will want to know about these
cards:
1.
These cards may lock you into union membership.
2.
Union membership means dues, initiation fees, assessments, and the possibility of
fines.
3.
You do not have to sign a card and no one can make you sign a card.
4.
If you do not want the union here, do not sign a card for anyone.
5.
You may be told that signing a card obligates you in no way, but this is not true;
read the card carefully. Do not take the chance of signing the card out of
LIBB/1641900.1
curiosity. Most union cards are an application for union membership and
authorize the union to represent the employee signing the card.
6.
If you have already signed a card, you are entitled to change your mind and insist
that the card be returned to you.
Don’t be misled by extravagant promises made by paid union organizers. No union can
guarantee you more than [Company] is willing to give you.
We have regularly made improvements without any outside intervention. We have no
dues, no fines, no fees, no assessments; no one loses work because of strikes; no one is asked to
risk his job by engaging in a strike. Let’s keep it that way.
Sincerely yours,
2
LIBB/1641900.1
MAINTAINING A UNIONFREE WORKPLACE
Issues & Strategies Under Current Law and
Update on Proposed Changes in Union
Organizing Rules
Goodwin Procter LLP
Labor & Employment Law Practice
Wilfred J. Benoit, Jr.
Bradford J. Smith
William J. Bray, The Omni Group, Inc.
©2009. Goodwin Procter LLP
The Employee Free Choice Act Would Radically
Diminish the Rights of Employers and Enhance
Union Organizing
•
Unions could acquire representation rights through authorization cards;
•
This would deprive employers and employees of the right to have the question
of union representation decided in a secret ballot election;
•
Mandatory mediation after 90 days of bargaining;
•
Mandatory, binding interest arbitration if mediation fails;
•
Treble back pay awards;
•
Fines for employer unfair labor practices; and
•
No fines for union unfair labor practices.
Legislative Alternatives to the EFCA Under
Consideration
• Senator Arlen Specter is opposed to the elimination of the secret ballot, since it is
a “cornerstone of how contests are decided in a democratic society.” Senator
Specter also disfavors the mandatory arbitration provision. He has suggested
the following revisions to the NLRA:
1.
An expedited timetable for elections and resolution of challenges – e.g. a
21-day deadline for an election to be held;
2.
Requiring employers to allow union organizers access to the employer’s
premises to respond to employer captive audience speeches;
3.
Enhanced penalties similar to the EFCA;
4.
Requiring bargaining within 21 days after union certification and mediation
within 120 days after bargaining begins, but no mandatory arbitration; and
5.
Upon a finding that a party is not negotiating in good faith, allowing an
order establishing a bargaining schedule.
•
Representative Joe Sestak of Pennsylvania introduced the National Labor
Relations Modernization Act to the House on March 5, 2009. This
proposal would:
1.
Preserve the secret ballot for union elections;
2.
Require employers to provide union representatives with
access to the workplace to campaign;
3.
Increase civil penalties for employers who engage in
worker intimidation; and
4.
Mandate mediation and arbitration but with longer
timeframes than the EFCA -- 120 days for negotiations,
120 days for mediation, and then mandatory arbitration.
•
On March 22, 2009, Costco Wholesale Corp., Starbucks Coffee Corp., and
Whole Foods Market, Inc. announced their ad hoc “Committee for a Level
Playing Field.” The committee’s mission is to discuss and offer a “third way” to
approach labor law reform. Proposals include:
1.
Preserving the right to a secret ballot election;
2.
Setting a fixed time period for the secret ballot election;
3.
Allowing unions and management equal access to employees during
non-working hours;
4.
Increased penalties for both employer and union unfair labor practices;
and
5.
Does not support mandatory arbitration.
Current National Labor Relations Board
Election Process
1.
NLRB will hold secret ballot election if union files a petition with at least 30%
support in “appropriate unit” of employees;
2.
What is an “appropriate unit? “Community of interest” analysis;
3.
Eligible employees;
4.
Representation hearing;
5.
Consent elections;
6.
Timing of elections;
7.
Excelsior list;
8.
Election Campaign;
9.
Employer free speech: “The expressing of any views, argument or opinion, or
the dissemination thereof, whether in written, printed, graphic or visual form,
shall not constitute or be evidence of a violation of the provisions of this Act, if
such expression contains no threat of reprisal, or force, or promise of benefit;”
10.
But, NO THREATS, INTIMIDATION, PROMISES/GRANTS OF BENEFITS or
SURVEILLANCE;
11.
“Laboratory conditions;”
12.
Secret ballot process;
13.
Objections to conduct of election; and
14.
Appeal rights.
Legitimate Restrictions that Employers May
Impose on Union Organizing Activity
1.
Employers may establish rules prohibiting non-employees from soliciting and
distributing literature on Company property. Failure to enforce this policy
strictly could create a right for professional union organizers to solicit and
distribute union literature on the Company’s premises;
2.
Employees may be prohibited from soliciting on behalf of a union on working
time, and from distributing union literature in working areas, provided that this
rule is strictly enforced with respect to all solicitation and distribution;
3.
Rules must be established before union organizing activity starts;
4.
Under current law, employers may prohibit nonwork-related postings of
literature and other materials on company bulletin boards, and solicitation or
distribution of such materials through the employer’s e-mail systems, as long
as they do so in a manner that does not discriminate against pro-union
postings;
Discrimination analysis: apples to
apples – Register Guard decision
5.
For example, it is permissible to adopt a policy that prohibits employees from
using a company bulletin board or e-mail system “to solicit or proselytize for
commercial ventures, religious or political causes, outside organizations, or
other non-job related solicitations,” with an exception for charitable solicitations
and personal matters such as baby announcements, party invitations, sporting
ticket sales, and requests for personal services;
6.
The law in this area could change drastically once the current vacancies on
the National Labor Relations Board are filled;
7.
E.g. possibility that employees would have right to solicit on behalf of a union
using company’s e-mail system; and
8.
Discrimination analysis could revert to law before Register Guard.
Union Picketing And Employer
Property Rights
1.
Organizational picketing -- Unions may picket to pressure an employer to
recognize them as the employees’ bargaining representative, provided they file
an NLRB election petition within 30 days;
2.
Informational picketing -- Unions may picket for an unlimited period of time to
protest an employer’s failure to conform to “area standards” of compensation
and working conditions, provided that the object of the picketing is not
organizational; and
3.
In most cases, unions do not have a right to picket on a company’s property.
“Do’s and Don’ts” – What An Employer Can
Do/Can’t Do, In Opposing Union Organizing
Effort
Do’s A.
State Your Opinion
1.
Tell employees that they can achieve on their own whatever a
union can get for them;
2.
Let employees know that they are free not to join a union, and the
Company hopes they will choose not to support a union;
3.
Remind employees that they already receive competitive wages
and benefits, and are not presently required to pay union dues or
fees; and
4.
Point out that with a union, they will not be able to deal directly with
management, and rather will only deal with a union outsider.
Do’s B.
Educate Employees:
1.
Tell employees that they are not obligated to talk to union
organizers;
2.
Inform employees that signing authorization cards could lead to a
union without an election; and could lead to the payment of monthly
union dues and fees;
3.
Remind employees that a union cannot obtain more than the
Company is willing to give;
4.
Tell employees that a union cannot prevent a layoff, if it becomes
necessary; and
5.
Educate employees about a union’s strike history and the costs to
employees that result.
Do’s C.
Enforce Company Rules
1.
Keep union organizers off Company property; and
2.
Insist that discussions of union affairs be conducted outside of
Company time.
Don’ts - TIPS
•
THREATS
•
INTIMIDATION
•
PROMISES OR GRANTS OF BENEFITS
•
SURVEILLANCE
EMPLOYER ACTION PLANS: STEPS
EMPLOYERS SHOULD TAKE TO REDUCE THEIR
EXPOSURE TO UNION ORGANIZING.
The Employee Free Choice Act
Employer Action Plan
Employer Action Plan
1.
Identify and educate management and supervisory team;
-
On your side
Confident
Ready day one
2.
Conduct bargaining unit analysis;
3.
Conduct vulnerability assessment for each potential
bargaining unit;
4.
Maintain competitive wage and benefit programs;
5.
Communicate employer position on unions and advantages
of union free workplace;
Employer Action Plan
6.
Develop employee education programs regarding significance of union
authorization cards under EFCA;
7.
Develop early warning system for card signing;
8.
Prepare campaign research packages;
9.
Develop campaign core messages and materials; and
10.
Provide periodic union awareness updates for managers and supervisors.
TEN LESSONS
With labor reform legislation fairly imminent, if a company wishes to
maintain a union-free work environment, it needs to promptly assess its
vulnerability to union organizing.
1.
Wages and benefits should be competitive in the relevant labor
market;
2.
Personnel policies and procedures should be fair and
consistently enforced;
3.
Management communication must be effective;
4.
Employee attitude surveys and 360 reviews of supervisors,
managers and HR personnel can provide information on where
risks are the greatest and on the sources of those risks;
5.
Line supervisors under pressure to meet demanding and competitive standards,
may have compromised efforts to build positive employee relations;
6.
Small grievances can fester;
7.
Establish a regular focus group program with employees, supervisors and human
resources personnel to identify problems and find solutions to reinforce a positive
employee relations climate;
8.
When management listens and responds to employee concerns, it motivates
employees and nurtures trust. Trust in management is often the critical factor
enabling companies to maintain a union-free environment;
9.
Educate supervisors and managers on the rules of responding to a union
organizing campaign; and
10.
Effective positive leadership maximizes an employer’s practical defenses to the
risks presented by the current pro-union political climate.
MAINTAINING A UNIONFREE WORKPLACE
Issues & Strategies Under Current Law and
Update on Proposed Changes in Union
Organizing Rules
Goodwin Procter LLP
Labor & Employment Law Practice
Wilfred J. Benoit, Jr.
Bradford J. Smith
William J. Bray, The Omni Group, Inc.
©2009. Goodwin Procter LLP
Goodwin Procter’s Labor & Employment Practice involves representation of management in all areas of labor and
employment law. Our attorneys counsel local, regional and national companies across a broad spectrum of industries,
including high technology, manufacturing, pharmaceuticals, transportation, printing, public utilities, banking, financial
services, retailing, health care, and construction.
We provide practical advice to employers with respect to all aspects of the employment relationship, ranging from hiring
and disciplinary practices, compensation practices, workplace violence, privacy concerns, issues arising under the Family
and Medical Leave Act, loyalty issues, and protection of employer good will and proprietary information via restrictions on
post-employment competition. We combine in-depth legal knowledge with focused, practical experience to help managers
make real-world judgments while minimizing potential exposure.
Our attorneys have extensive employment litigation experience involving all significant employment law issues, including
reasonable accommodation of disabilities; sexual harassment; discrimination claims arising out of reductions in force;
individual disparate treatment claims; wrongful discharge/public policy claims; employment contract and employee benefits
claims; wage and hour disputes; and enforcement of noncompetition obligations. Our experience includes defending class
and collective actions as well as cases brought by individual plaintiffs.
Our practice includes representation of management before the National Labor Relations Board in union organizing and
unfair labor practice cases. We represent employers in collective bargaining negotiations with unions and in labor
arbitration proceedings. We also assist clients in maintaining or reinstating a union-free atmosphere.
We have extensive experience in Department of Labor investigations and litigation under the Fair Labor Standards Act, the
Occupational Safety and Health Act, and Executive Order 11246. We help clients develop affirmative action programs and
represent them during DOL audits of those programs.
We are committed to providing aggressive and cost-effective representation. Our attorneys make early assessments of
potential liability, work closely with management to weigh the principles at stake in each case against the cost of defending
them, and carefully consider the feasibility of alternative dispute resolution. In litigating cases, we emphasize thoughtful
preparation of legal and factual defenses, with an eye toward summary judgment.
WILFRED J. BENOIT, JR.
Partner
617.570.1155
[email protected]
Areas of Practice
Bill Benoit, a partner in the firm’s Labor & Employment Practice, has represented
management in all types of labor and employee relations disputes since 1975. He has
extensive employment litigation and alternative dispute resolution experience. Mr. Benoit has
successfully defended companies across a broad spectrum of industries in suits involving a
wide variety of wrongful discharge and employment discrimination issues, including
whistleblowing, disparate treatment, sexual and racial harassment, equal pay, reasonable
accommodation of disabilities, and age discrimination claims arising out of reductions in
force. He has considerable experience in non-competition litigation.
Mr. Benoit has substantial experience in handling traditional labor law matters involving
collective bargaining, arbitration, unfair labor practice cases before the National Labor
Relations Board and court injunctions to restrain unlawful picketing activity. He counsels
employers on a daily basis regarding issues such as policy development, disciplinary action,
workplace privacy, obligations under the Family & Medical Leave Act, workplace safety,
affirmative action obligations, and wage/hour questions.
Professional Activities
Mr. Benoit is a member of the Labor & Employment Law Sections of the Massachusetts and
American Bar Associations. He has been selected for inclusion in Chambers USA: America’s
Leading Lawyers for Business and The Best Lawyers in America.
Publications/Presentations
Mr. Benoit’s published articles include “Enforcement of Non-Competition Agreements:
Developments in Massachusetts” – co-authored with Jennifer Merrigan Fay – which appeared
in the Autumn 2004 edition of Employee Relations Law Journal.
Mr. Benoit also wrote “New Law Requires Employers to Give Disciplined Employees
Summaries of Third-Party Investigative Reports Regarding Workplace Misconduct” – coauthored with Christopher Kaczmarek – which appeared in the November 2004 edition of
Metropolitan Corporate Counsel, and “Retaliation Claims” – co-authored with James Nagle
– which appeared in the Winter 2003 edition of Employee Relations Law Journal.
Mr. Benoit has presented several employee relations training programs to clients’ managers,
executives and human resources professionals.
Bar and Court Admissions
Mr. Benoit is admitted to practice in Massachusetts, and before the United States District
Court of Massachusetts, the U.S. District Court of Vermont, the U.S. Court of Appeals for the
First Circuit, and the U.S. Court of Appeals for the Second Circuit.
Education
J.D., University of Michigan Law School, 1973 (cum laude; Associate Editor, Michigan Law
Review)
B.A., University of Notre Dame, 1970 (cum laude)
BRADFORD J. SMITH
Partner
617.570.1256
[email protected]
Areas of Practice
Brad Smith, a partner in the firm’s Labor & Employment Practice, primarily represents
management and institutional clients. His practice includes employment discrimination
proceedings before state and federal courts and agencies, wrongful discharge litigation,
proceedings before the National Labor Relations Board, labor arbitrations and actions arising
under the Occupational Safety and Health Act.
He counsels clients on employment-related issues such as employee discipline and
termination, development of affirmative action programs and personnel policies, compliance
with wage-hour regulations, development and enforcement of employee noncompetition and
confidentiality agreements, and compliance with miscellaneous state and federal employment
laws and regulations.
Mr. Smith represents a variety of local, regional, and national clients in several industries,
including high technology, utilities, manufacturing, financial services and retail.
Professional Activities
Mr. Smith is a member of the Boston and Massachusetts Bar Associations and serves on the
Occupational Safety and Health Committee of the American Bar Association. He has been
selected for inclusion in Chambers USA: America’s Leading Lawyers for Business.
Bar and Court Admissions
Mr. Smith is admitted to the bars of Massachusetts, the U.S. District Court for the District of
Massachusetts and the First Circuit Court of Appeals.
Education
J.D., Boston University, 1987 (cum laude)
B.A., University of Pennsylvania, 1980
JENNIFER MERRIGAN FAY
Partner
617.570.1943
[email protected]
Areas of Practice
Jennifer Fay, a partner in the firm’s Labor & Employment Practice, works on a variety of
labor and employment issues, including discrimination claims before administrative agencies,
federal and state employment matters, employment contracts, separation agreements,
arbitration proceedings, development and review of human resources policies and counseling
on employment related issues, including non compete matters, leaves of absence, OSHA
compliance and wage and hour matters.
Work for Clients
Ms. Fay has an extensive background in the employment law field. She has been involved in
a wide variety of employment related issues as a counselor, litigator and as a trainer. Ms. Fay
has worked with large publicly traded organizations as well as small businesses and across
industry lines. Her experience includes conducting detailed internal investigations, handling
complex employment litigation, assisting companies with the development and
implementation of personnel policies, contract negotiations and providing legal advice on day
to day human resources matters.
Over the years, Ms. Fay has developed special expertise in the areas of sexual and other types
of discriminatory harassment, reductions-in-force, restrictive covenants, employment
contracts and workplace violence.
Professional Activities
Ms. Fay is a graduate of the Massachusetts Commission Against Discrimination’s Train the
Trainer Certification Program and is on the MCAD’s list of recommended trainers. She is a
member of the Boston, Massachusetts and American Bar Associations.
Publications/Presentations
Ms. Fay’s most recent article is “Enforcement of Non-Competition Agreements:
Developments in Massachusetts” – co-authored with Wilfred Benoit – which appeared in the
Autumn 2004 edition of Employee Relations Law Journal.
Ms. Fay has presented numerous client seminars and has taught continuing legal education
courses for attorneys on employment law topics. She served as Editor-in-Chief of the Suffolk
University Law Review.
Bar and Court Admissions
Ms. Fay is admitted to practice in Massachusetts.
Education
J.D., Suffolk University Law School, 1993 (magna cum laude)
B.A., Boston College, 1989 (cum laude)
Ms. Fay was the recipient of the Law Faculty’s Outstanding Student Award at Suffolk
University Law School.
STEVEN R. FELDSTEIN
Partner
650.752.3220
[email protected]
Areas of Practice
Steve Feldstein is a partner in the firm’s Litigation Department and a member of the Labor &
Employment Practice. He focuses his practice on labor and employment law. Mr. Feldstein
joined Goodwin Procter in 2008.
Work for Clients
Mr. Feldstein has represented and counseled companies in diverse areas of labor and
employment law. His practice includes advising management in key employee relations, trade
secrets protection, avoiding and litigating wrongful termination and employment
discrimination claims, employee handbooks and policies, workforce reductions, NLRB
proceedings, union avoidance, arbitration and collective bargaining, OSHA compliance and
wage and hour disputes. Mr. Feldstein also counsels companies on the employment-related
ramifications of corporate mergers and acquisitions.
Publications/Presentations
Mr. Feldstein has lectured on labor and employment law at Stanford University, St. Mary’s
College, College of Marin and various seminars for attorneys, human resources professionals
and others. He is the co-author of the chapters “Settlement,” in Wrongful Employment
Termination Practice (CEB, 1987), and “Handling the Wrongful Discharge Action,” in
Personal Injury Handbook (James Publishing, 1991).
Professional Experience
Prior to joining Goodwin Procter, Mr. Feldstein was a partner in the Silicon Valley office of
Heller Ehrman, where he was co-chair of its labor and employment practice nationwide.
Bar and Court Admissions
Mr. Feldstein is admitted to practice in California.
Education
J.D., University of California, Berkeley, Boalt Hall School of Law, 1973
B.A., Occidental College, 1970 (departmental honors)
ROBERT M. HALE
Partner
617.570.1252
[email protected]
Areas of Practice
Rob Hale, a partner in the firm’s Labor & Employment Practice, represents employers across
a broad spectrum of employment matters.
Work for Clients
Mr. Hale’s practice involves representation of clients in employment litigation, including
noncompetition, discrimination, wrongful discharge, FLSA and ERISA litigation. He has
obtained successful results for employers at all stages of litigation, including in preliminary
injunction proceedings, at summary judgment, at trial and on appeal. Mr. Hale is experienced
in successfully representing employers before administrative agencies and in labor
arbitrations. His practice also includes counseling in numerous areas of labor and
employment law, including disability discrimination, sexual harassment and other
discrimination matters; noncompetition agreement and other restrictive covenants;
downsizing; employment agreements; wage and hour compliance; collective bargaining; and
personnel policy development and administration. In addition, Mr. Hale is experienced in
providing training for managers, supervisors and human resources professionals.
Professional Activities
Mr. Hale serves on the Federal Labor Standards Legislation Committee of the American Bar
Association. He is a former chair of the ABA’s subcommittee on the Family and Medical
Leave Act, the ABA’s subcommittee on the WARN Act and the Boston Bar Association’s
Employee Benefits/ERISA Committee.
In 2007, Mr. Hale was elected to be a Fellow of the College of Labor and Employment
Lawyers. He was recognized by Super Lawyers magazine as a New England Super Lawyer,
and was selected for inclusion in Chambers USA: America’s Leading Lawyers for Business
and The Best Lawyers in America.
Publications/Presentations
Mr. Hale has spoken at a number of seminars, including those presented by the American,
Boston and Massachusetts Bar Associations and various professional and trade groups.
Mr. Hale is co-editor-in-chief of the comprehensive and leading treatise entitled The Family
and Medical Leave Act, and a chapter editor of The Fair Labor Standards Act – both
published jointly by the American Bar Association and the Bureau of National Affairs. In
addition, Mr. Hale is the author of Union Affiliation: Examination of the Governing NLRA
Standards, 1983 Det. C.L. Rev. 709.
Professional Experience
Prior to joining Goodwin Procter, Mr. Hale clerked for Justice Armstrong of the
Massachusetts Appeals Court.
Bar and Court Admissions
Mr. Hale is admitted to practice in Massachusetts and the District of Columbia, and before
the U.S. District Court of Massachusetts.
Education
J.D., Boston University, 1983 (magna cum laude)
B.S., Cornell University, 1980
DONALD J. MUNRO
Partner
202.346.4137
[email protected]
Areas of Practice
Don Munro is a litigator with experience in administrative law, antitrust, fair housing, labor
and employment, and complex commercial matters. Mr. Munro has particular expertise in
matters arising under the Railway Labor Act, including collective bargaining disputes, union
representation issues and strikes by unionized employees. He also has experience in public
international law and serves as the vice-chair of the American Bar Association’s International
Criminal Law Committee.
Publications/Presentations
Mr. Munro is a frequent lecturer at conferences concerning the Railway Labor Act. His
publications include “The Continuing Evolution of Affirmative Action Under Title VII: New
Directions After the Civil Rights Act of 1991,” 81 Virginia Law Review 565 (1995), and
“Simple Justice: Judicial Philosophy in the Kingdom of Bhutan,” The Green Bag (Winter
2003). In law school, Mr. Munro served as Articles Editor for the Virginia Law Review.
Mr. Munro also teaches employment law as an adjunct professor at The George Washington
University School of Law.
Professional Experience
Mr. Munro was a partner at Shea & Gardner prior to its combination with Goodwin Procter in
2004. After law school, Mr. Munro clerked for the Honorable J. Harvie Wilkinson III of the
U.S. Court of Appeals for the Fourth Circuit.
Bar and Court Admissions
Mr. Munro is admitted to the bar in Maryland and the District of Columbia, as well as to the
bar of the U.S. Supreme Court and a number of federal district and circuit courts.
Education
J.D., University of Virginia, 1994 (Order of the Coif)
B.A., International Relations, Johns Hopkins University, 1990 (Phi Beta Kappa)
JAMES W. NAGLE
Partner
617.570.1233
[email protected]
Areas of Practice
Jim Nagle, a partner in and chair of the firm’s Labor & Employment Practice, focuses his
practice on defending corporations against employee claims. Mr. Nagle practices in both state
and federal courts, as well as before a variety of administrative agencies. He is experienced in
litigating complex age, sex, race and disability discrimination claims, including class actions
and jury cases, as well as in defending whistle-blower, civil rights, employee privacy and
drug-testing cases. He also has substantial experience negotiating and litigating issues related
to the termination of highly compensated senior executives. Mr. Nagle also has substantial
appellate experience dealing with complex and novel employment law claims.
Work for Clients
Mr. Nagle represents a broad spectrum of regional and national clients in diverse fields,
including high technology, financial services, manufacturing, retail and higher education. He
regularly counsels clients on strategies for avoiding employment litigation and maintaining
positive, direct relations with employees. Mr. Nagle also has experience advising clients with
affirmative action, collective bargaining, labor arbitration, OSHA and wage and hour issues.
His recent engagements include:
•
Defending an age discrimination collective action brought by more than 100 plaintiffs
arising out of a reduction-in-force and alleging disparate impact and a pattern or practice
of discrimination.
•
Prevailing before the First Circuit in a case of first impression that limited the extraterritorial application of the whistle-blowing protections of the Sarbanes-Oxley Act.
•
Guiding the independent Board members of a publicly-traded company in responding to
sexual harassment allegations directed against the Company’s Chief Executive Officer.
•
Achieving a substantial favorable jury verdict on behalf of a departing CEO and his new
employer charged with misappropriating confidential information from his prior
employer.
Professional Activities
Mr. Nagle served as the management chair of the Labor and Employment Law Section of the
Boston Bar Association from 1992-1994. He serves on the Individual Rights and
Responsibilities Committee of the American Bar Association’s Labor and Employment Law
Section. Mr. Nagle has been selected for inclusion in Chambers USA: America’s Leading
Lawyers for Business and The Best Lawyers in America.
Publications/Presentations
Mr. Nagle served as an Editor of the Georgetown Law Journal at Georgetown University
Law Center. He is a contributing editor to the fourth edition of the American Bar
Association’s Covenants Not to Compete: A State-by-State Survey.
Bar and Court Admissions
Mr. Nagle is admitted to practice in Massachusetts, and before the U.S. District Court of
Massachusetts and the U.S. Court of Appeals for the First Circuit.
Education
J.D., Georgetown University Law Center, 1980 (magna cum laude)
M.P.A., American University, 1976
B.A., Georgetown University, 1974 (magna cum laude, Phi Beta Kappa)
JOSEPH A. PIACQUAD
Partner
617.570.1937
[email protected]
Areas of Practice
Joe Piacquad, a partner in the firm’s Labor & Employment Practice, concentrates on
representing and counseling corporations and individuals in connection with employment and
labor relations issues arising in corporate transaction. Mr. Piacquad also negotiates and
advises employers and executives regarding employment contracts, severance arrangements
and restrictive covenant agreements. He represents and advises employers and individuals in
connection with work-based visas and immigration matters. Mr. Piacquad also represents
employers in labor relations, employee benefits and employment matters.
Work for Clients
Mr. Piacquad’s practice includes counseling and representing individuals and employers in
connection with labor and employment matters that arise in transactions, structuring
employment relationships, including employment contracts, severance and separation
agreements, and restrictive covenant agreements. He provides employment-based visa and
immigration representation and advice to individuals and employers. Mr. Piacquad also
represents and counsels a variety of employers in connection with employment discrimination
and wrongful termination claims, issues under the National Labor Relations Act, employee
benefits issues under the Employee Retirement Income Security Act, compensation issues
arising under the Fair Labor Standards Act, development of personnel policies and
procedures, and other employment-related issues. He assists and advises clients in structuring
operations and transactions to permit maximum employment and labor law flexibility.
Mr. Piacquad has experience before federal and state courts and administrative agencies,
including the United States Citizenship and Immigration Services, National Labor Relations
Board, the Equal Employment Opportunity Commission, the Department of Labor, the
Massachusetts Commission Against Discrimination and the Ohio Civil Rights Commission.
Professional Activities
Mr. Piacquad is a member of the Boston, Ohio, Massachusetts and American Bar
Associations.
Publications/Presentations
Mr. Piacquad is a contributing editor to the fourth edition of the American Bar Association’s
Covenants Not to Compete: A State-by-State Survey.
Bar and Court Admissions
Mr. Piacquad is admitted to practice in the State of Ohio and the Commonwealth of
Massachusetts.
Education
J.D., Harvard Law School, 1990 (cum laude)
B.A., Colgate University, 1984 (magna cum laude)
HEIDI GOLDSTEIN SHEPHERD
Partner
617.570.8189
[email protected]
Areas of Practice
Heidi Goldstein Shepherd, a partner in the firm’s Labor & Employment Practice, has
extensive experience representing the firm’s management and institutional clients in all
aspects of the employment relationship. Ms. Shepherd has successfully represented clients in
a variety of labor and employment litigation matters, including the defense of sexual
harassment, discrimination, employee whistleblower and breach of employment contract
actions arising under federal and state laws. She also counsels clients on a number of
employment-related issues that arise in their day-to-day business activities including
employee discipline and termination, compliance with the various federal and state statutes
and regulations governing the employment relationship and the preparation of employment
contracts and employee non-compete agreements.
Professional Activities
Ms. Shepherd is a member of the Boston and Massachusetts Bar Associations. She was
elected to the Order of the Coif while attending Boston College Law School.
Publications/Presentations
Ms. Shepherd recently chaired a seminar focusing on the defense of employee whistleblower
actions for the Massachusetts Bar Association. While attending law school, she was the
Executive Editor of the Boston College Law Review.
Bar and Court Admissions
Ms. Shepherd is admitted to practice in Massachusetts, and before the U.S. District Court of
Massachusetts, U.S. Supreme Court and the U.S. Court of Appeals for the First and Sixth
Circuits.
Education
J.D., Boston College Law School, 1994 (magna cum laude)
B.A., Georgetown University, 1989 (cum laude)
ALBERT J. SOLECKI, JR.
Partner
212.813.8833
[email protected]
Areas of Practice
Al Solecki is the chair of Goodwin Procter LLP’s New York office, a member of the firm’s
Executive and Allocations Committees and a partner in the firm’s Labor & Employment
Practice. He counsels businesses on how to avoid legal claims by employees and represents
employers when they are the target of employment-related litigation or administrative
proceedings.
Work for Clients
Mr. Solecki represents employers in all phases of labor and employment-related litigation.
He appears regularly before federal and state courts and arbitration tribunals throughout the
United States and has successfully defended employers in the consulting, construction,
entertainment, financial services, manufacturing, oil and gas, pharmaceutical, publishing,
sports, transportation and technology industries. Mr. Solecki also has extensive experience
representing employers and senior-level executives as lead trial counsel in restrictive
covenant litigations involving allegations of employee raiding, theft of trade secrets and
breach of non-competition and non-solicitation agreements.
Mr. Solecki also counsels and advises employers on compliance with the ever increasingly
complex web of federal, state, and local labor and employment laws and regulations. This
counseling and advice ranges from drafting and reviewing general employment policies,
employment agreements and employee handbooks to assisting with specific employee
terminations and other employment-related decisions; from designing and implementing
management seminars and training on new laws, regulations and court decisions to giving
advice on difficult personnel actions such as plant closings, mass layoffs and the reduction or
elimination of employee benefit programs.
Mr. Solecki has extensive experience in counseling employers on how to minimize legal
exposure in the context of a reduction in force and has developed employee exit incentive
programs for dozens of employers who have implemented reductions in force. Moreover, he
regularly advises purchasers, sellers, and lenders on labor and employment law aspects of
business mergers, acquisitions and restructurings.
Professional Activities
Mr. Solecki was selected for inclusion in the 2006, 2007 and 2008 editions of New York
Super Lawyers. He is a graduate of the National Institute of Trial Advocacy’s Trial Training
Program and is an active member of the American Bar Association. Mr. Solecki is a member
of the ABA’s Section of Labor and Employment Law as well as its Section of Litigation, and
he serves on the ABA’s Trial Practice Committee, its Committee on Employment and Labor
Relations Law, and its Committee on Pretrial Practice and Discovery. In addition, he is a
member of the New York Management Attorneys’ Conference (an honorary society of
management-side labor and employment law attorneys who have practiced exclusively in the
labor and employment law field for more than ten years and who have distinguished
themselves in this field).
Publications/Presentations
Mr. Solecki has authored more than 20 published articles and book chapters on labor and
employment law topics and regularly lectures on such topics. In addition, he is frequently
quoted concerning labor and employment law trends in the general and legal media, including
The New York Times, The Boston Globe, Investor’s Business Daily, Inc. Magazine, Human
Resource Executive, The Employment Law Strategist, The New York Law Journal, The
Boston Herald, Business Insurance and GC New York.
Professional Experience
Prior to joining Goodwin Procter, Mr. Solecki was a member of the Labor and Employment
Law Department at O’Melveny & Myers LLP.
Bar and Court Admissions
Mr. Solecki is admitted to practice in New York.
Education
J.D., Villanova University School of Law, 1990
B.S., Georgetown University, 1985
While attending law school, Mr. Solecki was Managing Editor of the Villanova
Environmental Law Journal, a member of the Villanova Moot Court Board and the recipient
of the Bureau of National Affairs Award for Scholastic Performance.