Presenting a live 90 ‐ minute webinar with interactive Q&A NLRB: Key Labor Law Developments for Union and Non ‐ Union Employers Complying with New Decisions and Rules Impacting Social Media, Decertification, Election Procedures and More WEDNES DAY, JANUARY 18, 2012 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Today s faculty features: Douglas Darch, Partner, Baker & McKenzie , Chicago . Hendricks, Jr., Partner, Ford & Harrison , Chicago James F The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Presenters Jim Hendricks Jim Hendricks Ford & Harrison Chicago, Illinois 312 960 6118 312-960-6118 jhendricks@fordharrison.com Douglas Darch Baker & McKenzie Chicago Illinois Chicago, Illinois 312-861-8933 douglas.darch@bakermckenzie.com 5
Agenda – Welcome & Introduction – Use of Social Media by Employees as a Protected Activity U d Under National Labor Relations Act N ti l L b R l ti A t – Decision in KNAUZ BMW – Mini – Micro – Minority Bargaining Units Mini Micro Minority Bargaining Units – Biggest Changes in NLRB decisions – Proposed Election Timelines and Decertification – Proposed Election Timelines and Decertification Procedures – Questions & Answers (we hope!) 6
7 SOCIAL MEDIA: WHAT IS IT? • Blog (web log) Blog (web log) k • Facebook • MySpace • LinkedIn • Twitter b F
NATIONAL LABOR RELATIONS BOARD (NLRB) WHO ARE THEY? ( ) O Established by the NLRB in 1935 to protect employees’ rights under § 7: rights under § 7: RIGHTS OF EMPLOYEES § 7. [ § 157.] Employees shall have the right to self-organization, to form join or assist labor organizations to bargain collectively to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , and shall also have the right to refrain from any or all such activities except to the have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title]. 8
• Applies to both union and non union • Applies to both union and non-union employees. • Therefore, a non-union Employer may Th f i E l be met with unfair labor practice charges by the NLRB knowing nothing h b th NLRB k i thi about what this is! 9
10 CONCERTED ACTIVITY?” WHAT IS “PROTECTED, CONCERTED ACTIVITY?
Facebook: The new water cooler! “PROTECTED” • To be protected the posts must be • To be protected, the posts must be about employees’ terms and conditions of employment. of employment. • Most common: wages/benefits treatment by supervisors treatment by supervisors work assignments discipline of employees 11
“CONCERTED” Social media communication must normally involve 2 or more employees NOT “griping” or solely for the benefit of one individual COULD be a posting by 1 individual COULD be a posting by 1 individual – may be may be posting a group complaint if previously discussed with other employees The Board has found calling supervisors “liar and a bitch,” “an egotistical f_ _k” and a “f_ _king son of a bitch” protected! a bitch protected! 12
RECENTLY REPORTED CASES HISPANICS UNITED OF BUFFALO (03-CA-027827) Complaints by employee about other employee job performance; others criticized her for her complaints she performance; others criticized her for her complaints she posted. Employer terminated those critical of the employee posts as p y p y p “bullying” and “harassment.” ALJ: Criticism was “protected, concerted activity.” Employees don’t lose protection of the Act by engaging in Employees don t lose protection of the Act by engaging in misconduct during the course of their protected activity (made during non-work hours on personal computers). 13
KNAUZ BMW CASE (13-CA-46452) B Background: k d Ultimate Driving Event-posting Land Rover Accident-posting Land Rover Accident-posting Termination NLRB Press Release • Facebook postings Hot dogs – protected Accident – not protected A id t t t t d Board filed “exceptions” to ALJ decision. 14
What’s Next? • Will “place of discussion” affect NLRB analysis? analysis? • Does it matter if employees post while at work v. non-work time? t k k ti ? • Does it matter if using company v. private computer? • Scrutinizing work rules. g 15
Mini – Micro – Minority Bargaining Units The Appropriate Bargaining Unit The Appropriate Bargaining Unit Requirement Imposed by Section 9(b) “[t]he Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the p y g rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit plant unit or subdivision thereof ” craft unit, plant unit, or subdivision thereof. 16
Presumptively Appropriate Units – The Act – Employer unit – Craft unit Craft unit – Plant unit – Subdivision thereof – By Decision – Single terminal unit (truck drivers) – System-wide unit (public utilities) System wide unit (public utilities) – Service & Maintenance unit (Nursing homes) – Skilled maintenance unit (Nursing homes) 17
Community of Interest Factors Focus: How Employer has chosen to structure its workplace. Purpose: P B Bargaining will occur within boundaries that i i ill ithi b d i th t make sense in the employer’s particular workplace. p 18
Community of Interest Factors (cont.) – Separate departments – Distinct skills and training – Distinct job functions (duties) – Perform distinct work (amount and type of job overlap between classifications) between classifications) – Functionally integrated with other employees – Frequent contact with other employees – Frequent contact with other employees – Interchange with other employees – Distinction terms and conditions of employment Distinction terms and conditions of employment 19
Community of Interest Factors (cont.) – Separately supervised – Similarity of wages – Similarity of benefits – Similarity of working conditions 20
Micro – Mini – Minority Units Specialty Healthcare (2011) Step 1 – Is petitioned-for proposed unit “readily identifiable as a group whose similarity of function and skills h i il it f f ti d kill create a community of interest”? (A cohesive unit relatively free of conflict of ( y interest) Step 2 – Is the petitioned-for unit clearly inappropriate? “O “Overwhelming community of interest” defined as h l i it f i t t” d fi d traditional community of interest factors overlap almost completely. (Burden of proof on employer.) 21
Changes in Presumption Re: Majority Support Support – Voluntary Recognition – Union presumed to have majority support for 6 to 12 months ( Lee Lumber test) t f 6 t 12 th ( L L b t t) Lamons Gasket Company , 357 NLRB No. 72 – Successor Employer – If successor assumes CBA terms Successor Employer If successor assumes CBA terms then bargains – 6 months. If successor sets initial terms before bargaining – 6 to 12 months ( Lee Lumber test) th ( L L b t t) UGL – UNICCO Service Co. 357 NLRB No. 76 22
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