Robert C. BrooksMatthew A. BahlVerrill Dana, LLP

rbrooks@verrilldana.commbahl@verrilldana.com

Coming to a Workplace Near You:

5 Rules Every Non-Union (and Union) Employer Must Know

October 14, 2011

Overview

1. How are health care unions different?

2. Why should you care about these new rules?

3. Five (5) New Rules

4. Tips to address these new rules

How Are Health Care Unions Different?

Organizing SuccessesHealth Care Unions

• 40% of all representation elections in 2010 occurred in the service sector, including health care.

• Health care unions won 72% of their elections in 2010.

• Approximately 14% of the health care workforce is unionized.

• Unlike other industries, health care unions continue to grow and add new members.

“Other” Unions

• “Other” unions won approximately 56% of their elections.

• However, between 1986 and 2006 other unions lost 2 members for every one gained.

• So, “other” unions need 300,000 new members a year to replace those members they lose.

• Only 6.9% of workers in the private sector are unionized.

Organizing Strategy

• Health care is a growth industry. With more than 13 million non-union health care workers in America, unions stand to gain millions of dollars a year in additional dues.

• Difficult to move health care jobs overseas.

• Health care unions gain strength through numbers. Many of the largest health care unions have consolidated and formed “super” unions.

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I’m Not Unionized. Why Should I Care?• The National Labor Relations Act (Act) applies

to most private employers (union and non-union) that engage in interstate commerce.

• The National Labor Relations Board is the government agency tasked with enforcing the Act.

• Over the past year, the NLRB has expanded union rights through a series of decisions and administrative rules.

• The Board’s actions have focused on helping unions organize non-union employers.

• Anyone, including unions, unionized employees and non-unionized employees can file an unfair labor practice charge with the NLRB.

RULE 1: “NOTICE POSTING”

Rule Requirements

• Employers subject to the NLRA must post a notice informing their employees of their rights under the NLRA.

• The notice itself informs employees about their right to improve wages and working conditions, to form, join, and assist a union, to bargain collectively with their employer, and to refrain from any of these activities.

• Employers should post the notice in places where they customarily post other workplace notices.

• If an employer posts notices about personnel rules or policies on intranet or internet sites, they must either display an exact copy of the notice or a link to the Board’s web page containing the notice.

Rule Requirements (cont.)• Federal contractors required to post the DOL’s notice of employee rights will

not be required to post the NLRB’s notice.

• Employers will have the option of downloading, printing and posting an 11 x 16-inch poster or downloading two 8.5 x 11-inch panels that can be taped together.

• Employers will be allowed to post black and white reproductions of the notice and will be permitted to use combination notices consolidating information about various federal laws on a single document “as long as consolidation does not alter the size, format, content or size and style or type of the Notice provided by the Board.”

• The Board’s regional offices will not conduct inspections to verify that employers have posted the notice.

Rule Requirements (cont.)

• However, repeated failures to post the notice may be treated as an unfair labor practice and result in a cease-and-desist order from the Board.

• An employer’s inadvertent failure to post will be resolved by bringing the rule’s attention to the employer.

• An employer’s knowing and willful failure to post may be used as evidence of an unlawful motive in prosecuting other violations of the Act.

Recent Developments

• On October 5, 2011, the NLRB changed its posting deadline from November 14, 2011, to

January 31, 2012

• The stated reason was to “allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.”

• Three lawsuits pending that, in part, challenge the NLRB’s authority to create rules like the notice posting rule.

Rule’s Purpose and Effect?

• Notify employees of their rights under the NLRA.

• Encourage employees to seek out and form unions.

RULE 2: “Quickie Election”

Background• Typically, the election process takes between 40 and 45 days.

• Organized labor has long complained that the length of time between filing an election petition and the actual vote unfairly “erodes” employee support for unions.

• The Employee Free Choice Act (“EFCA”), in part, would have allowed unions to skip the normal election process through card recognition procedures.

• EFCA is a lame duck.

• This new rule, however, would give unions a quicker election process.

Proposed Rule’s Features• Allow unions to file petitions and other documents electronically.

• Standardize timeframes for pre-election hearings (seven days after service of hearing notice) and post-election hearings (14 days after the tally of ballots).

• Mandate employers provide a final voter list (also known as an Excelsior list) with employee phone numbers and e-mail addresses in electronic from within two (2) days of the direction of election.

• Require the union and employer to identify pre-election issues (like voter eligibility) and describe their supporting evidence within seven (7) days after an election petition is filed.

• Consolidate all election-related appeals to the Board in a single post-election appeals process – thus eliminating pre-election requests for review of the Regional Directors decisions, including voter eligibility determinations.

• Make Board review of post-election decisions discretionary rather than mandatory.

Proposed Rule’s Purpose and Effect?

• Streamline the election process.

• Elections will be held within 10 to 21 days.

• And the rules significantly limit an employer’s right to communicate with its workforce and to petition the government for redress.

RULE 3: “Cherry-Pick”

Background

• Employees in the appropriate unit are eligible to vote in NLRA elections.

• Under the NLRA, it is fundamental that the Board need only find an appropriate unit, not the most appropriate unit.

• In the past all groups of employees who shared a “community of interest” were included, not excluded from, the unit.

Specialty Healthcare Case

• Board found that Certified Nursing Assistants (“CNA”) at a long-term care facility was an appropriate unit.

• The employer appealed contending a unit that included other employees, including other healthcare workers, was the appropriate unit.

• The Board rejected the appeal and found that a unit consisting solely of CNAs was appropriate.

• In reaching this conclusion, the Board overruled a 1991 decision that established a much broader definition of which employees in the healthcare setting should be included in the bargaining unit.

• In other words, the Board endorsed a most appropriate unit approach.

New Rule

• New rule now requires employers to make an “overwhelming community of interest” showing to include employees in the bargaining unit.

• Although case was in the healthcare context, there is no indication that its application is limited to healthcare employers.

Purpose and Effect?

• New rule for determining who should be in a bargaining unit.

• Makes it easier for unions to select which employees to organize. In effect, it allows unions to “cherry-pick” employees who will vote in favor of unionization.

• Supports the “nose under the tent” organizing approach.

• In tandem with the “quickie election” rules, employer’s face an up-hill battle in challenging a union’s petitioned-for bargaining unit.

The Charge Nurse “Unit”The Challenge

• As a practical matter, an employer must have the support of its “frontline” supervisors to win a union campaign.

• The NLRA applies a 12-factor test to determine whether charge nurses are “supervisors” under the law.

• Although the NLRB considers all 12 factors, the case law shows that disciplining or recommending discipline is the most important factor.

The Solution

• Job duties can change.

• Audit charge nurses responsibilities and duties.

• Update charge nurse job descriptions.

• Treat charge nurses like supervisors.

• Communicate to staff that charge nurses are supervisors.

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Rule 4: “Social Media”

Background• Over the last several months the NLRB has been focusing on

employees’ right to use social media to comment on and discuss their working conditions.

• The NLRB has even prosecuted employers for discharging a unionized employee who posted a “negative comment” about her boss on Facebook and for disciplining a unionized employee for posting critical remarks on Twitter.

• However, the Board declined to prosecute an employer for disciplining an employee whose Facebook comments were simply “individual gripes.”

CONFUSED?

• Recognizing the confusion, the Board issued a memo in August 2011 that summarized 14 key cases involving social media, with the goal of providing guidance on this hot-button issue.

Key to the Analysis: Protected Concerted Activity

• Section 7 of the NLRA gives employees (both union and non-union) the right to engage in protected concerted activity.

• Protected concerted activity occurs when two or more employees act together to address a collective employee concern.

• However, a single employee acting on behalf of others, or who is initiating group action, or who has discussed the matter with co-workers, can also be engaged in protected concerted activity.

You Make The Call: Protected or Not?

• After work, during a heated fantasy football draft at a local sports bar, Sam Supervisor tells Earl Employee in front of co-workers that he made a horrible decision by selecting Brett Favre. Employee Earl, on his personal computer, posts to his Facebook account that:

“I can’t believe my boss today. What a creep. He really embarrassed me in front of my colleagues. LOL.”

You Make The Call: Protected or Not?

• During a workplace incident investigation, which is standard policy, Sara Supervisor questions Emily Employee about the incident. Emily asks if her friend (Earl) can sit in with her because she is afraid of Sara. Sara says, “No. Earl has to wait his turn.” Shocked by this, Sara goes home and Tweets (on her personal computer):

“Tough meeting at work today, wish Earl could’ve been there to help – my supervisor can be a real jerk sometimes. What do you think?”

Another Highlight From The Report

• Even if the social media post is laced with profanity and sarcasm, the employee’s post might be protected.

• For example, in one case the NLRB found that an employee did not lose the Act’s protection when she described her supervisor as a “scumbag” and other derogatory terms on her Facebook page.

• The NLRB noted that it has found “more egregious name-calling protected” and found significant that the employee’s comments were motivated by her supervisor’s unlawful failure

to honor her request for union representation.

Purpose and Effect?

• Reconcile a law written in 1947 with the modern digital age.

• Although the memo provides some clarifications, employee social media posts must be analyzed on a case-by-case basis.

Rule 5: “Bannering”

What is Bannering?

• Bannering involves placing large stationary signs or objects near businesses that are not involved in a labor dispute with the union (a.k.a. “secondary” employers).

• In two recent cases the Board has distinguished between picketing and bannering, even though both look and feel largely the same.

• The distinction is important because picketing at a secondary employer’s worksite for an extended period of time is unlawful (in most contexts). For example:

Carpenters Local 1827 Case

• Union had a dispute with several construction firms they claimed failed to pay wages that met area standards.

• The Union “bannered” several neutral employers that did business with the construction firm, including State Farm Insurance.

• The Union displayed a banner that said “State Farm Insurance, a Greedy Corporate Citizen,” but kept the banner on public sidewalks at least 24 feet away from the entrance.

• The Board found that such conduct did not constitute threatening, coercing or restraining a secondary employer in violation of the Act.

Purpose and Effect?

• Expands a union’s right to involve “neutral” employers in their labor disputes.

• Force neutral employers to put pressure on those employers involved in the labor dispute.

What Can You Do Now To Prepare?

• With all these new rules, here are some things you can do now to be prepared:

1) Educate your workforce on the risks and downsides of unionization.

2) Assess the risk of being organized.

3) Educate your workforce on what signing a union authorization card really means.

4) Review, and if necessary, revise your social media policy to account for protected concerted activity.

5) Take steps to establish charge nurses as statutory supervisors.

QUESTIONS?