Post on 25-Dec-2015
Labor Law Update: GIRN – October 15, 2014
Stefan Jan Marculewicz, Esq.Littler Mendelson, P.C.Washington, DC Office202.423.2415smarculewicz@littler.com
Agenda
The Environment The NLRB Actual and anticipated
changes in the law Innovative and Creative
Approaches
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Environment – Unionization In Decline
Union membership down by 1.9 million since 2000
Union share of electorate down 30% since 2000
Currently 6.7% of private sector
Unions continue to wield significant political power
Seeking creative solutions to solve the problem
The Board Personnel– Board Appointments
Mark Gaston Pearce (D)(2018)
Nancy J. Schiffer (D)(2014)
Kent Y. Hirozawa (D)(2016)
Philip A. Miscimarra (R)(2017)
Harry I. Johnson, III (R)(2015)
Sharon Block (to arrive shortly)
The NLRB
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The role of the NLRB General Counsel– Direct policy
– Prosecutorial Discretion
Richard F. Griffin, Jr– Background
– Objectives
The Current General Counsel
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The General Counsel’s Agenda
Arbitration Agreements– Continued prosecution of the claimed right to pursue
class/collective claims
Worker access to property– Off duty access
Enhance strikers rights– Intermittent strike doctrine at risk
Protected concerted activities– Outreach, policy review and critique
Joint Employment Social media 6
NLRB Changes in the law
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How the NLRB can change the law
Must have a valid quorum– Noel Canning
– Current state of affairs at the NLRB
Case/Controversy– Where the bulk of the work is done
Rulemaking– Recent defeats
• Poster
• Election rules
– Current efforts 8
Rulemaking – Expedited elections
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On February 6, 2014, the NLRB published a Notice of Proposed Rulemaking in the Federal Register, again proposing essentially the same changes to election rules.– The new rules are likely to be finalized after the election
but before the end of the year
Elections are currently 42 days. Time would reduce to 20-30– Eliminate means to make challenges
– Provide information (email and phone numbers) they currently do not have the right to obtain
Micro Units
Specialty Healthcare and subsequent cases– Any grouping of employees
made by employer can be an appropriate bargaining unit
– Result: Allow unions to gerrymander the bargaining unit around the extent of organizing
– Macy’s and Bergdorf-Goodman cases
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Joint Employment
Change the current test of actual control over certain specific criteria
Joint Employer – Browning Ferris
“[U]nder the totality of the circumstances, including the way the separate entities have structured their commercial relationship, the putative joint employer wields sufficient influence over the working conditions of the other entity’s employees such that meaningful bargaining could not occur in its absence. “ - NLRB General Counsel (amicus filing with NLRB)
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Joint Employment (cont.)
Application– Franchising; Temporary, leased or contingent
employment; and
– Commercial relationships structured so one party is in a position to influence the labor relations policies of the other.
McDonald’s announcement Supply Chain Implications– Commercial relationships
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Access to Property
Non-Employee Access– Roundy’s Inc – Case pending. Board to reconsider scope of
non-employee access to employer property
Employee Access– Sodexo – Established very high standard for employer to
bar off-duty employees from entering premises
Email– Purple Communications – Fears of NLRB overreach not
realized. Employer continues for now to retain control over email communications
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Policy Review – The StandardLutheran Heritage
If policy explicitly restricts Section 7 activities, then it is unlawful
If not explicitly restrictive, then ask if:
1. employees would reasonably construe language to prohibit Section 7 activity;
2. rule was promulgated in response to union activity; or
3. rule has been applied to restrict exercise of Section 7 rights.
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Examples of policies found illegal
Courtesy, respect or proper behavior– “No one should be disrespectful or use profanity or any other
language which injures the image or reputation of the Dealership” - Unlawful. Knauz BMW
– Policy that “[a]llows for discipline of employees for their on-line statements that damage the company, defame any individual or damage any person’s reputation.” – Unlawful. Costco
Confidentiality of investigations– Blanket prohibition unlawful. Confidentiality requirement
permissible in certain cases. Banner Health System15
More examples
Media relations policies– Rule prohibiting employees from agreeing “not to give any information to
the news media ... without prior authorization from the general manager and to direct such inquiries to his attention” Unlawful – Remington Lodging
At will policies– "I further agree that the at-will employment relations cannot be
amended, modified, or altered in any way” – Unlawful. American Red Cross
Social media policies– Policies that create the reasonable impression that employees cannot
exercise their Section 7 rights while using social media.
– “Likes” are protected 16
What to Expect in the Next 2 Years
A more active and aggressive NLRB– Willingness to change established principles of law
– Strengthening employee and Section 7 rights and derivative union rights
– Weakening employer property rights
– Encouraging organizing
– Enhancing remedies
Enlistment of other government agencies– OSHA, DOL, DOJ, State Department (OECD NCP)
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Innovative and creative approaches by organized labor
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Innovative and Creative Approaches
Worker Centers or U.F.O.’s “Issue Only” or social movement campaigns Minority representation Deploy strategies familiar in EU countries– Hire European trade unionists
– Works Councils in the United States
Hijack Multi-Stakeholder Initiatives
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Worker Centers/UFO’s
Very active movement in the U.S. today– Street theater and social media
Offer publicly palatable “workers rights” case more acceptable to the public than a traditional labor union – Create the appearance of a grass roots movement/strikes
– Financed, managed and promoted by established labor unions
Convert the campaign from one over representation to one about a social movement
Examples: Fight for $15, Retail Action Project, Rising up in Retail, OUR Walmart, Warehouse Workers for Justice, etc.
Include international angle and GUF’s20
Issue Only/Social Movement
Minimum/Living Wage campaigns– Fight for 15, etc.
– Predictable and sufficient hours
– Easy translation to public forum
– Create policy case for local legislative action
Takes the union and its institutional interests out of the discussion
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Minority Representation
Largely a tactic of the UAW (also UE at facility in North Carolina)– Establish a “local” union at facility union wishes to organize
– Union represents only is members
– Objective is to change working conditions on behalf of members only
Blue Eagle at Work– Staged theory of representation. Members only
representation precedes exclusive representation
Inconsistent with historical interpretation of law– However, Specialty Healthcare has changed that 22
Deploy Tactics Familiar in EU Countries
Staffing– Hire European trade unionists to “engage”
company in manner similar to that in European countries
Engage unions from home country– Expectations to be reasonable and consultative
– Divide U.S. leadership from leadership in Europe
Works councils– Try to establish works council in the United States23
Multi-Stakeholder Initiatives
Establish leadership position in multi-stakeholder organization and pursue agenda– Put forth IFA-style policy through motions, etc.
– An alternative to an IFA, only one that utilizes an established organization to host the labor principles, and an established dispute-resolution mechanism to enforce them separate from national law
Example of FSC/PEFC– Efforts of U.S. union International Association of
Machinists and BWI global union federation. 24
THANK YOU
Stefan Jan Marculewicz, Esq.Littler Mendelson, P.C.Washington, DC Office202.423.2415smarculewicz@littler.com