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