P R E S E N T E D B Y:

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C H E R O F E @ J A C K S O N L E W I S . C O M ;

THE ROAD TO UNIONIZATION … THEN

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Organizing

Petition

Election

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Who can unionize?“Supervisory” status• Definition• implications

Objective: signatures

42 days

Demand?

THE ROAD TO UNIONIZATION … NOW

Now: “Ambush Elections”

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ElectionOrganizing

Petition

Demand?

Objective: signatures

Average 21- 25 days

Who can unionize?“Supervisory”

status• Definition• implications

Deferred until after election

LEGAL AND PRACTICAL RAMIFICATIONS

• “Quickie elections” predicted to help unions organize more employees.

• Fewer hearings creates uncertainty.– Ambiguity over inclusions in voting group.– Lack of definitive clarity about whether all of the individuals it

considers supervisors meet the definition of supervisor under the NLRA.

• As noted earlier, lawful, honest employer education of voters typically reduces union support once employees hear both sides. Cutting the “campaign” period reduces opportunity for employee education.

• A great deal of immediate work demanded of employers—distracts from employee education (and running the business).

• Release of additional items of employee personal information (personal email addresses, home and cellphone numbers) to facilitate personal, phone, and electronic campaigning by union.

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RECOMMENDATIONS

• Develop a strategic, company-wide labor relations plan.– Train managers/supervisors about their rights and

responsibilities.– Eliminate issues immediately. – Conduct a supervisory analysis.– Conduct a bargaining unit analysis. – Develop a representation case litigation plan. – Prepare a “break-the-glass kit.”– Identify and train a rapid response team.

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PURPLE COMMUNICATIONS: MANDATED EMPLOYEE USE OF EMPLOYER EMAIL SYSTEMS

• Purple Communications, Inc., 326 NLRB No. 126 (2014)

• Old Rule: Company e-mail system is fully the Company’s.• New Rule: Absent special circumstances to

justify total ban or limits on use, employees may use e-mail system in exercising right to discuss/join unions on non-work time.

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PURPLE COMMUNICATIONS: MANDATED EMPLOYEE USE OF EMPLOYER EMAIL

SYSTEMSEmployer also may:

• Monitor for legitimate reasons, such as:– Ensuring productivity.– Preventing harassment or other activities giving rise to

employer liability.

• Tell employees they have no expectation of privacy• Decision not applicable to:– Other types of communication systems (telephones).– Non-employees.– Employees not granted access to email system.– Working time communications.

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RECOMMENDATIONS

• Review and revise email policies to permit (or to not prohibit) personal use on non-work time.

• Reassess which employees genuinely need e-mail system access to perform job duties and consider whether to fully eliminate access where appropriate.

• Notify employees that the company reserves the right to monitor email use for legitimate reasons.

• Notify employees that they have no expectation of privacy in their use of the employer’s email system.

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“MADE-TO-THE-UNION’S-ORDER” BARGAINING UNITS:

SPECIALTY HEALTHCARE AND BEYOND

• Old standard for determining appropriate unit - “community of interest”.

• Specialty Healthcare’s new standard – as long as a union’s petitioned-for unit consists of a clearly identifiable group of employees who share a community of interest, the Board will presume the unit is appropriate.

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RECOMMENDATIONS

• Examine your organization to create (if operationally feasible) “clearly identifiable groups of employees” that you believe would maximize your organization’s chances to prevail in an NLRB election.

• These groups should consist of more than one job classification that share a community of interest.– Clearly identifiable groups of employees

• Based on job classifications, departments, func tions, work locations, skills, or similar factors.

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JOINT EMPLOYER:THE BASIC CONCEPT

• Traditionally defined by the NLRB (in different ways), for at least fifty years.

• Created by the NLRB to reach companies that are separate and legally distinct.

• The joint employer standard has remained relatively unchanged for the past 30 years.

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THE BOARD’S NEWJOINT EMPLOYER STANDARD

Control under the new standard can be established directly or indirectly, such as through an intermediary or through contractual provisions which preserve the right to control, whether or not that right is even or ever exercised.

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THE BOARD’S NEWJOINT EMPLOYER STANDARD CONT.

• A franchisor controlling the terms and conditions of a franchisees workers….is probably a joint employer.

• A distributor telling its dealers what hours they can work…is probably a joint employer.

• A company telling a staffing agency who it needs, when it needs them, and what speed the workers should be able to work…..is probably a joint employer.

• A passive shareholder or the client of a professional service that is only interested in results…..is probably not a joint employer.

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IMPLICATIONS OF THE BOARD’SNEW JOINT EMPLOYER STANDARD

• While not binding on other agencies, it will have a persuasive effect.– OSHA: New focus on franchisors and franchisees suggests it

may contemplate citations against fast food and other franchisors for violations. It has already indicated an intent to expand its joint employer standard.

– EEOC: Filed amicus brief in Browning-Ferris asking for a broader joint employer standard.

– Department of Labor (Wage and Hour): Push for expanded definition of employer by Admin. David Weil.

– Other agencies (e.g., OFCCP) could jump on board.

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RECOMMENDATIONS

• To try to avoid joint employer status, seek to limit direct, indirect and reserved potential to control by parent company. – Revise and delete provisions in contracts or

agreements that suggest or retain control over working conditions.

– Affirmatively disclaim in contracts or agreements control or influence over working conditions (hiring and firing, setting work hours, determining compensation and benefits, and exercising day-to-day supervision).

PROTECTED CONCERTED ACTIVITY: THE BIG CHILL

• Section 7 of the NLRA gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

• The Board has found that “the mere maintenance of a work rule” may violate the NLRA [Section 8(a)(1)] if the rule “has a chilling effect on employees’ Section 7 activity.”

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CONFIDENTIALITY:EXAMPLES OF UNLAWFUL RULES

• Do not discuss “customer or employee information” outside of work, including “phone numbers [and] addresses.”

• You must not disclose proprietary or confidential information about [the Employer, or] other associates (if the proprietary or confidential information relating to [the Employer’s] associates was obtained in violation of the law or lawful Company Policy).

• Sharing of [overheard conversations at the work site] with your co-workers, the public, or anyone outside of your immediate work group is strictly prohibited.

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CONFIDENTIALITY:EXAMPLES OF LAWFUL RULES

• No unauthorized disclosure of “business ‘secrets’ or other confidential information.”

• Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers.

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EMPLOYEE CONDUCT/BEHAVIOR:EXAMPLES OF UNLAWFUL RULES

• Do not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.

• No defamatory, libelous, slanderous or discriminatory comments about [the Company], its customers and/or competitors, its employees or management.

• Do not make statements that damage the company or the company’s reputation or that disrupt or damage the company’s business relationships.

• Policies barring “negative comments,” “gossip” and that required employees to act in a “positive and professional manner” found unlawful.

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EMPLOYEE CONDUCT/BEHAVIOR:EXAMPLES OF LAWFUL RULES

• No rudeness or unprofessional behavior toward a customer, or anyone in contact with the company.

• Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of company business.

• Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors.

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SOME RULES FREQUENTLY REVIEWED BY THE BOARD

• Rules of Conduct• Confidentiality• Harassment • Speaking to the Media.• At-Will Employment Policies • Recordings.• Harassment.• Chain of Command.• Social Media.

RECOMMENDATIONS

• Review your handbook for NLRA compliance, not simply employment law implications.

• Use clarifying examples to limit the scope of broad rule/policy wording.

• Do not use vague words in your rules/policies that the Board has found unlawful over and over again.

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RECOMMENDATIONS

• Consider including a statement in the policy that the policy does not limit employees from lawfully discussing the terms and conditions of their employment. It won’t save a facially invalid policy, but it may help in a close case.

• Pay particular attention to the types of rules that are frequently at issue before the NLRB, such as confidentiality rules, professionalism rules, anti-harassment rules, trademark rules, photography/recording rules, and media contact rules.

• Do not simply copy the language provided in the General Counsel’s Memorandum.– Much of the lawful language was found to be such because of

context.

QUESTIONS? THANK YOU!

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