March 26, 2014

Presented by:Dan Handman

Steve HirschfeldCarmen Plaza de Jennings

The Biggest Signs Union Activity is Afoot: What Should You Do About It?

Speakers

Dan Handman, Partner, Santa Monica

Steve Hirschfeld, Partner, San Francisco

Carmen Plaza de Jennings, Partner,San Francisco

Introduction

New Union Organizing Tactics

• Targeting low-level supervisors / leads / forepersons

• Corporate campaigns• Email and Internet communication• Class action lawsuits• Card check / neutrality agreements

What Causes Employees to Seek a Union

Conditions Causing Union Organizing• Uncompetitive pay and benefits• Unsafe working conditions• Perceived unfair treatment by managers

What Causes Employees to Seek a Union

The Biggest Cause of Union Organizing – Perceived Unfair Treatment by Managers• Look for packs of disgruntled employees• Need to understand cultural differences• Use your open door policies• Train your managers• 360-degree surveys

Unhappy Employees – The Golden Rule

DO YOUR EMPLOYEES FEEL COMFORTABLE TALKING TO THEIR MANAGERS?

• In a union campaign, you want your managers presenting your position. If

they are not liked by employees, you will be at a disadvantage.

What Causes Employees to Seek a Union

Are Your Pay and Benefits Under Market?• Salary survey• Prevailing wage rates from U.S. DOL• Healthcare: take a look at the minimum

levels of coverage under ObamaCare. Are you doing better?

• 401(k), pension

The NLRB’s New“Quickie Elections” Rule

The NLRB’s New “Quickie Elections” Rule

If enacted, the new election rules would:Compress election timelinesRequire a pre-evidentiary Statement of PositionRequire the pre-election hearing to be held 7 days from the

date of service of the Notice of Hearing and the Petition

Eliminate the right to file a post-hearing briefRequire that major election issues be resolved after the

electionRequire preliminary voters list to be provided to the UnionImplement Electronic Filings

Signs Union Activity Is Afoot

The 20th Century Signs

•Increased complaints from employees•Employees complaining about different topics•Finding employees in places they don’t belong•Disgruntled employees becoming popular•Employees avoiding speaking to managers, changing topics, speaking in private when a manager comes around

More 20th Century Signs

• Group complaints about wages, benefits, managers

• Talking about seniority, loyalty or other union-related topics

• Union buttons

The 21st Century SignsSocial Media: Complaints about the

company,managers, pay practices, benefits on

Facebook, Twitter

- Are you “friends” with any non-supervisors on Facebook.

- Are other supervisors “friends”- When, if ever, can you compel

employees to share social media posts

The 21st Century Signs (continued)Union E-Mails: This will be the next

domino to fall at the NLRB- Unions will send around unsolicited e-

mails to your employees - Can you block the e-mails?- Can you have a no solicitation policy

apply to e-mails?

A Brief Note onSurveillance and Interrogation

Surveillance of Employees is Prohibited•Following, monitoring employees•Interrogation•Why are you meeting offsite?•What are you talking about behind my

back?

The NLRB’s “Micro-Units” Rule

The NLRB’s “Micro-Units” Rule

The Specialty Healthcare Framework, 357 NLRB No. 83 (August 26, 2011)

• The NLRB will find a petitioned-for unit to be appropriate despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit.

The NLRB’s “Micro-Units” Rule

The NLRB’s Recent Use of “Micro Units”

•Neiman Marcus Group, Inc. d/b/a Bergdorf Goodman,02-RC-076954 (2012)

•Fraser Engineering Company,359 NLRB No. 80 (2013)

Lessons Learned• Create positive work environment• Consider employee surveys

• Strengthen management team through training

• Review solicitation / distribution, electronic communication and social media policies

• Employee participation groups / works councils

• At-will just cause• Binding internal grievance procedure

Conclusion and Wrap-UpDan Handman310.255.1820

dhandman@Hkemploymentlaw.com

Steve Hirschfeld415.835.9011

shirschfeld@HKemploymentlaw.com

Carmen Plaza de Jennings415.835.9012

cpdjennings@HKemploymentlaw.com