1. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Advancing HR Strategies to Build Organizational Success © 2012, Washington Employers. All rights reserved David Bowman, Staff Counsel Washington Employers September 13, 2012 Current Trends: the NLRB, PERC, and Unions

2. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Agenda I.NLRB Update II.Recent PERC Cases of Interest III.Strategies for Avoiding Unionization

3. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved I. NLRB Update Social Media: New Oasis for Employee Protected Concerted Activity Micro-Bargaining Units – Not Nearly as Tasty as Micro Brew Still Lurking: The Employee Free Choice Act Not So Fast: A Blow to “Quickie” Election Regulations Rise and Fall of New Posting Requirements Card-Check Rules Eased Challenge to President’s NLRB Recess Appointments

4. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Social Media: A New Oasis Two fronts of NLRB attack: (1)Employer Policies (2)Discipline of Employees

5. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Social Media (cont’d) Policies: The NLRB has rejected employee handbooks and policy manuals that attempt to prohibit employees from: making “disparaging” remarks about the company through social media; identifying themselves, without permission, as employees of the company on social media; using social media to engage in communications that could harm the reputation of the company; posting “anything that employees would not want their manager or supervisor to see or that would put their job in jeopardy”; disclosing, without approval, confidential information about the company on social media, and posting on social media discriminatory, defamatory or harassing web entries about employees, the work environment or work issues.

6. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Social Media (cont’d) Among the limited policy language specifically upheld by the NLRB are the following prohibitions: Prohibiting the use of social media to post comments about supervisors or co-workers that were “vulgar, obscene, threatening, intimidating, harassing or a violation of the employer’s workplace rules against discrimination or harassment,” Requiring employees to confine their posts to matters unrelated to the company, unless such posts were necessary to ensure compliance with securities regulations or other laws, Prohibiting employees from disclosing proprietary information like launch dates, pending reorganizations, personal health information, and promotional content, and Requiring employees to post disclaimers that the views expressed in their posts were their own. Restricting employee contacts with the media, but only to the extent necessary to ensure a consistent, controlled company message.

7. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Social Media (cont’d) Discipline/Discharge of Employees: The following has been held to be “protected activity” under the National Labor Relations Act: Nonprofit social services employees’ Facebook postings about staffing and allegations of poor job performance previously expressed by one of their coworkers were “textbook examples” of protected concerted activity even though discussion occurred on Facebook platform and not on employer systems Luxury car sales employee’s Facebook postings that were critical of food and amenities provided to employees during employer-sponsored sales event, were part of protected concerted conduct related to complaints about commissions Employees’ Facebook postings discussing sports bar’s tax withholding practices, even if accompanied by comments about one of the owners being “such an a**hole,” were protected concerted activity

8. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Social Media (cont’d) The following has been held not to be “protected activity” under the National Labor Relations Act: Reporter’s inappropriate and offensive tweets unrelated to terms and conditions of employment, and not seeking to involve other employees in issues related to employment Bartender’s Facebook message about employer’s tipping policy, in response to message from a non-employee Emergency response dispatcher’s post on her senator’s ‘wall’ criticizing employer Homeless facility employee’s Facebook comments to her personal friends (not fellow employees) about mentally disabled clients Retail store employee’s profane Facebook postings about her manager Preschool teacher’s off-duty obscene and racist rants on social media web page

9. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved “Micro” Bargaining Units A hugely divisive decision: Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011). – United Steelworkers sought to organize only certified nursing assistants at a health care facility, instead of a broader group of workers. – NLRB voted 3-1 to permit a union to determine the composition of the bargaining unit it is seeking to organize within an employer's workforce. It's the union's call to decide whether the unit will consist of all or a smaller group of workers who share a "community of interest."

10. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved “Micro” Bargaining Units (cont’d) Aftermath of Specialty Healthcare: “gift of all time for unions” not without limits -- “overwhelming community of interest” standard can overcome Examples: – violin players → orchestra – Northrop Grumman Shipbuilding Inc.

11. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Still Lurking: Employee Free Choice Act Union supporters view the NLRA as inadequate protection for workers. Their solution: Employee Free Choice Act. – A union that could obtain signed authorization cards from a majority of workers in a bargaining unit would be certified as the bargaining agent without lengthy campaigns and secret- ballot elections – and without the employer’s consent. Current law: recognition of a union through signed cards requires a willing employer; otherwise, election required. – The bill has languished in Congress. Little prospect of passage due to current congressional makeup.

12. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Not So Fast: A Blow to “Quickie” Election Regulations April 30: “Quickie" election regulations became effective, cutting average time period from petition until election to estimated 20 days, about ½ of the 38-day median for 2010 and 2011. – Less time for employers to make their case of resistance. May 15: Invalidated by U.S. District Court for District of Columbia, because NLRB “acted without a quorum” – Only 2 voted, both in favor. Although only 2 “yes” votes were required, third member needed to participate, even if just to say “no” or abstain. May 15: NLRB suspended implementation of regulations. ***Bottom line: Dead, but for how long?***

13. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Rise and (Temporary) Fall of New Posting Requirements Summer 2011: NLRB issues mandate requiring employers to display 11x17 labor rights poster explaining worker's right to form, join or assist a union, or engage in protected concerted activity. "Unprecedented attempt by the board to assert power and authority it does not possess." – Jay Timmons, president and chief executive officer of the National Association of Manufacturers in Washington, D.C. April 17, 2012: The U.S. Circuit Court of Appeals for the District of Columbia temporarily blocked the NLRB from implementing the mandate. Estimated 6 million businesses, many union-free, spared from having to allocate space for the notice on their bulletin boards.

14. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Card-Check Rules Eased Under prior law, decertification petitions could begin as soon as 45 days after employer voluntarily recognized union following receipt of signed authorization cards from majority of bargaining unit workers. Union advocates argued that having to fight a challenge so soon was unfair. Allowed “buyers’ remorse,” and prevented “settling in.” Aug. 26, 2011: NLRB rules, in 3-1 vote, that decertification petitions not permitted for “reasonable period of time after recognition,” i.e., six months to one year following recognition.

15. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved President’s NLRB Recess Appointments Legal challenge to legitimacy of President Obama's Jan. 4 recess appointments of board members is pending. – The Constitution gives presidents the power to make appointments when the Senate is in recess. – Challengers argue that the President’s Jan. 4 appointment of three members to the National Labor Relations Board, without Senate confirmation, was outside the President’s authority under the Constitution, because Senate was not “in recess”. – If challenge is successful, the Board will be deemed to have lacked quorum to transact business or enforce regulations for this entire year. More to come!

16. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved II. Recent Decisions from PERC – 2012 City of Tacoma, Decision 11097-A (PECB, Aug. 24, 2012). Employer unlawfully refused to bargain when it unilaterally declared that employees who participated in an annual charity basketball game would no longer be able to do so while on duty and be compensated for it. Adverse union: Tacoma Police Union Local No. 6.

17. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Recent Decisions from PERC (cont’d) Central Washington University, Decision 10967-A (PECB, August 4, 2012). CWU altered the status quo and interfered with employee rights in violation of RCW 41.56.140(1) when it decided and announced in May 2010, in the middle of representation election, that it would reduce work hours of certain employees in the petitioned-for unit. Silver lining: Employees were not entitled to back pay, because there was no actual change in employee work hours during the pendency of the representation petition. Adverse union: Public School Employees of Washington.

18. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Recent Decisions from PERC (cont’d) City of Kirkland, Decision 10883-A (PECB, April 13, 2012). Upheld: City’s decision to go out of the dispatch business and lay off dispatchers. Union contended that the City breached the collective bargaining agreement by contracting out bargaining unit work. Commission held that the employer’s decision was an entrepreneurial decision to stop providing dispatch services, and that the layoff of bargaining unit employees was a result of the decision to close its operations and not a result of contracting out bargaining unit work. Adverse union: Kirkland Police Officers’ Guild.

19. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Recent Decisions from PERC (cont’d) University of Washington, Decision 11075-A (PSRA, March 14, 2012). University unlawfully removed work from bargaining unit following its decision to consolidate call center operations. Although university was not obligated to bargain the decision to consolidate its call center operations, university was obligated to bargain the decision to transfer work out of the bargaining unit and effects of the decision to transfer that work out of the bargaining unit. Adverse union: Washington Federation of State Employees.

20. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved III.Strategies for Avoiding Unionization Why employees seek union help How employers can prevent organizing effort Refresher: National Labor Relations Act Important “TIPS” for unionization avoidance

21. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Why Employees Seek Union Help Poor Communication Poor Supervision Unfair Wages Change – New ownership – New management – New pay plan, e.g., going to/from incentive based pay – Recent layoffs – Rumors of upcoming change, e.g., facility closure – Reduction or elimination of benefits.

22. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Preventing an Organizing Effort Develop Fair and Consistent Employment Policies Have Effective Communications and a Problem-Solving (Grievance) Procedure Treat Employees with Dignity Train Supervisors Combat Rumors

23. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved National Labor Relations Act (Quick Refresher) Section 7—Employees shall have the right to self-organization, 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 of such activities…. Section 8(a)—EMPLOYER UNFAIR LABOR PRACTICES. (a) It shall be an unfair labor practice for an employer— Section 8(a)(1)—INTERFERENCE, RESTRAINT, COERCION. (1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7. Section 8(a)(3)—DISCRIMINATION. (3) To discriminate in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.

24. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved TIPS for Unionization Avoidance Supervisors, and their employers, can avoid many problems is they understand these TIPS: It is unlawful for a supervisor to engage in Threats, Interrogation, unlawful Promises and Surveillance. Do not threaten Do not interrogate Do not make promises Do not engage in surveillance

25. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Threats Words or actions that: discourage employees from supporting a union interfere with an employee’s free choice. Examples: threats that the facility will close down because of the union, that employees will lose their benefits, or that employees who support the union will be fired or demoted.

26. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Interrogation Management (i.e., any executive, manager, or supervisor) cannot ask employees about: – their union activities or interests – their approval or disapproval of a union – who else among the employees supports or disapproves of the union – who attends union meetings – any other question aimed at determining an individual’s or group’s union sentiments. Management can, however, listen to unsolicited employee concerns about their union.

27. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Promises Any promises that are made to have the effect of diffusing union support would violate the Act. Promises of benefit to undermine support for a union? Illegal. Promises to improve wages, benefits or working conditions if the employees remove the union? Illegal. Promises to “keep things as they are” if the employees remove the union? Probably OK, but dangerously close to the line.

28. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Surveillance It is unlawful for anyone in management to observe or spy on employees who may be engaging in union activities. This includes: listening in on employee conversations regarding union activities (meetings, picketing, etc.) observing who attends union activities photographing or videotaping who attends union activities electronic (email) monitoring or in any other way trying to determine whom the union activists may be Management may, however, listen to an employee who volunteers any of the above information without prompting. Management may also follow ordinary security protocol not directed at union activity.

29. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Employer Action Required! 1.Evaluate current state of employee relations 2.Take steps to: a.Improve policies b.Train supervisors c.Combat rumors 3.Questions? Consult with HR and Legal Professionals.

30. Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Advancing HR Strategies to Build Organizational Success © 2009, Washington Employers. All rights reserved Advancing HR Strategies to Build Organizational Success © 2011, Washington Employers. All rights reserved Thank you!