Union Organizing Campaigns

One of the featured stories in Employment Law This Week is the DOL’s publication of its controversial final rule around labor relations consultants.

The so-called “Persuader Rule” requires employers to disclose when they hire a consultant to help fight attempts at unionization. But the rule, as written, is potentially much broader and could require employers to disclose information about a wide range of consultants and others who they rely on for training and communication.

View the episode below or read more about the new rule in an earlier blog post.

The US Department of Labor has finally issued its long awaited Final Rule radically reinterpreting the “Advice Exemption” to the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA.”).  The Final Rule eviscerates any meaningful use of the Advice Exemption, which would be swallowed up by the new expansive definition of persuader activity which could include discussion regarding strategy, reviews of employer drafts and myriad other ways labor attorneys currently aid their clients including essentially any meaningful advice or counsel provided by labor counsel. The move comes just over two years to the day from the DOL’s 2014 postponement of its issuance of the Final Rule.

The Advice Exemption

For over 50 years this Advice Exemption has been properly, effectively and simply administered by distinguishing direct communications with employees from an attorney’s counsel to an employer-client.  The existing regulations have provided a clear line of demarcation; as long an employer’s lawyer or consultant did not communicate directly with employees and as long as the employer remained free to accept or reject any draft materials prepared by them (speeches, letters, written communications, etc.), they were covered by the Advice Exemption and not subject to disclosure or reporting by the employer or the counselor.

The Final Rule will, for the first time, require employers and their outside law firms to file frequent reports concerning their relationships more frequently than under current law. Employers and their consultants must now file reports only when consultants have communicated directly with workers. But under the new rule, they will have to file reports even if the consultants are giving certain guidance to the employer without speaking or otherwise directly communicating with employees.

Although the most visible impact of the Final Rule is likely to be in connection with union organizing efforts and employer attempts to counter union promises and messages, the Final Rule is potentially much broader and may ultimately be deemed by the DOL to require employers to disclose information about a much wider range of consultants and others who they rely upon for training, communication and other activities.

Why Has the DOL Issued This Final Rule?

While the DOL claims the rule is necessary to provide workers with information it believes they need, many others believe the real goal is to assist unions in organizing.

According to Secretary of Labor Thomas Perez, “The final rule  .  . .  is designed to ensure workers have the information they need to make informed decisions about exercising critical workplace rights such as whether to form a union or join a union.”

The rule, first proposed by the Labor Department in 2011, will require employers and third-party lawyers and other labor consultants to disclose their relationships more frequently than under current law. Employers and their consultants must now file reports only when consultants have communicated directly with workers. But under the new rule, they will have to file reports even if the consultants are giving certain guidance to the employer without contacting employees directly.

What Comes Next

The new Final Rule, which was first proposed by the Obama Administration in June 2011, has been the subject for the past five years of intense criticism of everyone from Senators, to both employer and employee rights groups, to the American Bar Association raising serious ethical, economic and practical concerns. One consistent objection was the fact that the altered Advice Exemption contained first in the Proposed Rule and now in the Final Rule seriously interferes with and compromises the attorney-client relationship and mandates the release and disclosure of information long understood to be protected by the attorney-client, work product and other legal privileges.

It is almost certain that there will be immediate challenges in the Courts to the Final Rule as going far beyond what Congress had in mind when it passed the LMRDA almost 60 years ago, and as unwarranted and impermissible intrusion on the attorney-client relationship.

The top story on Employment Law This Week – Epstein Becker Green’s new video program – explores the push towards unionization of West Coast on-demand drivers.

Drivers for personal transportation company WeDriveU, who drive Facebook employees to and from work, have voted to unionize with the Teamsters. This brings the total to more than 450 shuttle drivers in Silicon Valley who have joined the union in the past twelve months. And last week, Seattle became the first city to give on-demand drivers the right to unionize over pay and working conditions. Hundreds of drivers in the city pushed for this legislation, which could kickstart the unionization effort for these kinds of jobs across the country.

Adam Abrahms – co-founder of this blog – goes into more detail on this trend toward unionization.

See below to view the episode and see our blog post “Teamsters and Technology II – Labor’s ‘Silicon Valley Rising’ Campaign.”

As we have been reporting, the Writers Guild of America East has been actively pursuing writers in the new media arena.   On Friday August 7th, the Guild announced that Vice had agreed to recognize the Guild as the bargaining representative of its editorial staff without an election. It is reported that there are approximately 80 employees in the unit.

While VICE’s management’ statement this past Friday concerning the Guild’s campaign and demand for recognition left some room for doubt as to whether VICE would recognize the union without an election,  they announced today that they would grant recognition without a vote.

These developments reinforce the fact that unions like the Guild are actively organizing in the tech and new media fields where they are finding a receptive audience. It is clear that as expected, the NLRB’s adoption of more union friendly rules for representation elections has expanded union organizing and employee interest in a number of industries and presented employers with new challenges in responding to petitions filed under the new expedited election rules.

Kate B. RhodesLast month, in two separate cases, the National Labor Relations Board (“NLRB” or the “Board”) and an NLRB Administrative Law Judge (“ALJ”) found against employers in cases involving the right of employees to wear union insignia at work. While the Board has long held that wearing union t-shirts, stickers and the like is a form of concerted protected activity protected by Section 7 of the National Labor Relations Act (“Act” or “NLRA”), it has historically recognized the right of employers to limit this when necessary to maintain an appropriate atmosphere, these decisions evidence a significant limitation on employers rights in these cases. However, as we have been reporting, Board and its General Counsel have been reexamining numerous precedents and finding that policies and practices deemed lawful interfere with employees’ rights under the Act.

In the first case, Pacific Bell Telephone Company, Nevada Telephone Company d/b/a AT&T, 362 NLRB No. 105 (2015), the Board found that the employer could not lawfully prohibit employees from wearing union buttons and stickers that contained what it argued was  vulgar language, including “WTF, Where’s The Fairness,” “FTW Fight To Win,” and “CUT the CRAP!  Not My Healthcare.”  These slogans were worn by employees who regularly interacted with customers.  The employer argued that because these buttons and stickers contained vulgar language and were offensive, they could not be worn in customer contact areas. The Board disagreed.  The Board wrote:

We agree with the judge that the content of the “WTF,” “FTW,” and “Cut the Crap!” buttons and stickers was not so vulgar and offensive as to cause employees wearing them to lose the protection of the [National Labor Relations Act].  In particular, we emphasize that the “WTF” and “FTW” buttons and stickers provided a nonprofane, nonoffensive interpretation on their face.

The Board also noted that the “possible suggestion of profanity, or ‘double entendre,’” of the slogans was not sufficient to render them unprotected.

Similarly, in Wal-Mart Stores, Inc., Case No. 13-CA-114222 (June 9, 2015), an NLRB ALJ found that the following dress code policy, which prohibited a broad range of logos and messages, not only those referring to union insignia, was unlawful:

Walmart logos of any size are permitted.  Other small, non-distracting logos or graphics on shirts, pants, skirts, hats, jackets or coats are also permitted.

The employer later added a qualifier about the size of logos, defining “small” as “no larger than the size of your associate name badge.”  The ALJ found that this policy was overly broad and vague, and that the rule was not sufficiently “narrowly tailored” to justify the maintenance of the rule.  First, the ALJ noted that the policy does not define the term “non-distracting,” which could lead to confusion on the part of associates.  Second, the ALJ stated that the employer’s limitation on logos, which included union insignias, was not justified by any of the special circumstances (i.e. employee safety, damage to machinery or products, exacerbation of employees dissension, or unreasonable interference with the public image of the employer) that Board precedent has held can lawfully justify such a prohibition.  The ALJ stated:

Walmart did not present any evidence of a significant or widespread problem with associates wearing union insignia or other logos that actually made it difficult or impossible for others to see their Walmart nametags. . .Nor did Walmart present evidence of a significant or widespread problem with customers being distracted by logos worn by associates.

The ALJ wrote, in conclusion, that the employer’s rule ran “afoul” of prior cases that “upheld that right of employees to wear union insignia of a variety of types and sizes, including insignia much larger than Walmart’s nametags.”

Both of these cases further evidence with Board’s efforts to be relevant to union and non-union employers alike, which is often done through cases challenging the legality of a work rule, regardless of whether it has ever been enforced.  Employers should continue to be careful when drafting and enforcing policies, specifically those regarding employee dress codes.

Steven M. Swirsky

The National Labor Relations Board (NLRB or Board) invited interested parties to submit amicus briefs in Miller & Anderson, Inc. in connection with the Board’s reexamination of critical issues affecting the ability of unions to organize employees employed by temporary and staffing agencies (“temporary employees”) in the same bargaining units as employees of an employer that supplements its direct workforce with temporary employees.

Elections Involving Joint-Employers

Under the existing law, the Board will only conduct an election and certify a unit that includes employees of joint employers if both of the joint employers agree to such an arrangement.  The Board’s grant of the petitioning union’s request for review of a regional director’s dismissal of petition for an election because one of the joint employers did not agree, appears to telegraph the Board’s intention to abandon that requirement.

Easing the Test for Finding a Joint-Employer Relationship

The NLRB has previously suggested when it invited amicus briefs in imminently in Browning-Ferris that it is about to adopt a new test, based on what it calls “economic realities,” for deciding whether a business is a joint employer with another entity such as a temporary agency or employee leasing service, of the personnel that the agency supplies to work for its client.

More Elections and Unions Representing Temps

If it does so, and then decides in Miller & Associates to create an easier pathway for temporary employees, part-time employees and other contingent workers” to obtain union representation, and be included in bargaining units alongside “regular employees” employed by the principal employer, could radically change the landscape and lead to organizing and bargaining over terms and conditions for temporaries and other contingent workers.  The bargaining obligation would apply not only to the staffing agency that writes a temporary worker’s paycheck, but also to the temporary agency’s client for whom the temporary worker does work.

Under the Board’s 2014 decision in Oakwood Care Center a bargaining unit composed of both “solely employed employees” and jointly-employed employees would only be found to be an appropriate unit for bargaining and the Board would only direct an election in a unit of jointly and solely employed employees if both of the employers (i.e. the principal employer and the temporary or staffing agency supplying personnel to work with the principal employer’s employees) consented to such an arrangement.  Not surprisingly, few, if any, employers agreed to this.

Why Is the Board Doing This Now?

What the Board has indicated in its July 6, 2015 Notice and Invitation to File Briefs is that it is, at a minimum, looking at abandoning the requirement of consent of both employers and returning to the legal standards that preceded Oakwood, which standard was adopted by the Board in 2000, during the Clinton Administration in M.B. Sturgis which had permitted the Board to direct an election in a unit included both solely employed and jointly employed employees without the need for the consent of the two employers.

The fact that the Board has now, after three years, granted the union’s 2012 request for review of a Regional Director’s decision in Miller & Anderson stating that the union’s appeal of the dismissal of its election petition  “raises substantial issues warranting review with respect to the applicability of Oakwood Care Center,” strongly suggests that the Board intends to eliminate the requirement that when a union seeks an election in a unit including  employees the Board finds to be employed by joint-employers, that both employers must consent for an election to take place.

What To Expect

Given the expectation that the Board will shortly announce a much relaxed standard for finding employers to be joint-employers, this is not surprising.  However, what it also likely presages is a continuation of the union campaigns, such as those in the realm of franchisor-franchisee relationships in fast food and elsewhere and the Board’s movement towards more findings of joint employer status.

In the footsteps of last month’s union election at Gawker, an electronic news site, it has now been reported that all 26 of the writers and editors of San Francisco-based at Salon, another on line news organization, have served the publication with a letter announcing that each of them has designated the News Guild, which until April of this year was known as the Newspaper Guild,  as their collective bargaining representative.

Lowell Peterson the union’s Executive Director commented that the unionization campaigns at Salon and Gawker and a part of the Guild’s broader efforts to represent electronic and new media employees.  The union’s letter to Salon request for recognition explained the employee’s reasons for seeking union representation.  He wrote that while the writers and editors are “pleased to be working for Salon.com,” their goals are the traditional ones – a desire to improve wages, benefits and other working conditions and a desire for a “voice on the job.” He continued that “I don’t think it’s just one specific issue,” but that “they do understand the value of having a collective voice and they do have concerns.”

Indeed, at the time of the Gawker election in June, Guild President Bernie Lunzer, in an extensive interview with the Washington Post referred to the Gawker vote as a “harbinger” of things to come.  Ironically, several months earlier, the Washington Post had published a lengthy article entitled Why Internet Journalists Don’t Organize  that opined on what were seen then as the many reasons that employees in electronic media and related areas were not interested in union representation and could not be successfully organized.  Ironically that article, which focused on the efforts of a staunch union advocate who had been hired at Politico.com and was then trying to organize his co-workers from within, quite possibly as a “salt” who took the job with that goal in mind, made clear that this industry had been targeted and that the Guild was working to adapt its message and strategies to appeal to a new generation of workers who have positive attitudes towards unions and their messages.

While Salon’s leadership has not yet publicly indicated whether they will agree to recognize the Guild based on its petition signed by its workforce, will seek an election, either a private election such as Gawker and the Guild agreed upon or one conducted by the National Labor Relations Board, these developments are further reminder that unions are not “dead” and that in fact many are becoming much more adapt at focusing their messages and techniques to appeal to a new generation of workers and the methods of communicating and organizing sub rosa and out of the view of employers.

Coupled with the labor movement’s interest and efforts to pursue employees in high technology and related fields employers would be well served to assess their organizations and their vulnerability to these new age organizing efforts.

Last week we reported on the June 3rd vote by Gawker media’s employees for union representation and speculated what it meant in the broader context of union organizing among Millennials.

Today, Rachel L. Swarns of the New York Times provided some insight based on interviews and reporting with Gawker workers.

The article notes a recent study by the Pew Research Center finding that those in the 18-29 age group view unions more favorably than those in other age groups, with almost twice as many having a favorable view of unions than those who don’t.

Swarns also points out the issues that organizers from the Writers Guild concentrated on during the organizing drive: severance, set minimum salaries for every job, annual meetings with supervisors to discuss performance, salaries and promotions, and contractual restrictions on the company’s ability to make changes to medical coverage without the union’s agreement.

As the article concludes, while both sides may have treated the union drive in a less adversarial manner than is typical, negotiations for a contract will be the hard part.  That comes next.

On June 3, 2015 editorial employees at Gawker Media (“Gawker”) voted to be represented by the Writers Guild of America, East (“the Union”).  In this Newspaper%20and%20keyboard%2025536850_jpgclosely watched organizing drive, employees of a leading “new media” outlet, chose an old line print journalism union to bargain with their employer, becoming one of the first (if not the first) digital media outlets to unionize.  This follows on the heels of increased union organizing and pressure in the technology field and organized labor’s Silicon Valley Rising campaign. Interestingly, the election was not conducted by the NLRB but through VoteNet, which Gawker’s own reporting described as “an independent online voting system.”

Gawker officially remained neutral during the campaign, and permitted its editorial staff to publish internal discussions regarding unionization on the company’s consumer facing website. Hamilton Nolan, the writer who spearheaded the organizing drive published an article titled Why We’ve Decided to Organize in which he argued “every workplace could use a union.” After the date of the election was announced, Gawker created a page for employees to discuss the upcoming election. Of the 118 writers eligible to vote, 75 voted in favor of representation and 27 voted against.

The public online discussion among the employees preceding the vote offers interesting insights into union organizing activity in the new media industry. It appears that the primary arguments by those supporting representation was not to push for an immediate improvements in salary and benefits. Rather, union supporters argued that representation would help them preserve and maintain their existing compensation in the event of future downturns. Others expressed the view that pay practices would become more transparent with a union. Opponents argued that the status quo was satisfactory and that bringing an old line union like the Writers Guild into the company would hurt the company’s culture. Opponents also complained of a hurried election process where their concerns were marginalized or shouted down.

In an interview on CNBC’s Squawk Alley following the vote, Gawker Founder and CEO, Nick Denton said that the writers “…have made it clear both to the management and to the union that they like the way they work and none of that is going to change,” echoing his prior sentiments that he was “pleased Gawker is leading the movement in the online media world toward collaboration and inclusion.” Only time will tell as to how the introduction of the Union will impact the Gawker workplace both on a short and long term basis.

Key takeaways for employers:

  • The technology, media and telecommunications industry remains an important target for organized labor.  Indeed, while perhaps counterintuitive, the new crowd of hip, highly educated innovators and creative-types may prove to be fertile ground for more traditional organizing efforts
  • Even highly skilled and well compensated workers can be vulnerable to union organizing. Employers’ efforts to maintain non-union status should be carefully tailored to address employee concerns and unique circumstances on a case by case basis.
  • Employer educational efforts remain a critical tool for helping to educate employees about the downsides of representation.

A couple weeks ago we provided anecdotal reports from several NLRB Regional Directors that after one month the new Ambush Election Rules union elections were being held in considerably less time, with the Regional Directors claiming elections were being scheduled between 25-30 days.  Last week, according to BNA’s Daily Labor Report and Law360, the NLRB released national results of the first month showing that the impact was worse than anticipated.

More Union Petitions Under Ambush Elections Rule

Between April 14 (the day the rules when into effect) and May 14, 280 representation cases were filed.  This was a 17% increase in filings over the same period in 2014 and a 32% increase from the last month under the old rules.  While some of the increase is likely attributable to unions strategically waiting for the new rules to go into effect, employers can certainly expect increased union activities and more petitions.

Election Period Cut by Over 40% – Just 23 Days

Even more troubling than the increase in petitions is the dramatic decrease in time to respond to the petitions.  According to the NLRB’s first month results the median time between the filing of a petition and an election date has been cut down to only 23 days.  This is over 40% less time than the prior median of 38 days and provides employers just over three weeks to respond to the petition and mount a campaign.  Of course one third of this median time would be spent preparing for a hearing and collecting/providing the information now required by the Board.

The additional information, requirements, and restrictions of the new rules may be a reason that almost all of the petitions have resulted in stipulated election agreements where employers agree to forgo a hearing and stipulate to the election issues, including date.  In fact, the NLRB reported that of the 280 petitions only 4 went to a hearing.  That means in an astonishing 98.5% of all petitions the employer forwent their rights to a hearing and agreed to election issues with the union.  This is a considerably higher percentage than the typical 80% or so of petitions that historically have resulted in stipulated election agreements and suggests that employers are either apprehensive about hearings under the new rules and/or being threatened with even shorter election times if they proceed to a hearing.

In the 4 cases where a petition went to a hearing two of the cases resulted in a directed election in 23 days from petition filing, with one election directed in 26 days and the other 30 days.  These election dates are far sooner than the median length of 59 days under the old rules.

It should not be over looked that 23 days is a median time frame and, as noted, where cases went to a hearing, 23 days was the earliest date ordered.  This means that of the 276 petitions which resulted in stipulated election agreements many had elections in less than 23 days.

Again, the official results after the first month seem even worse than expected for employers, as the increasing number of them that are the target of union organizing will have very little time to prepare.

Management Missives

As we have advised, we recommend employers concerned about union organizing prepare now:

  • Examine your workforce for potential vulnerability to union organizing, including wage and hour violations or uncompetitive wages or benefits.
  • Review and update workplace policies that become relevant during union organizing, such as solicitation/distribution, electronic communications, and social media policies.
  • Assess your workforce for potential bargaining unit issues, such as identifying supervisors and which employees share a “community of interest.”
  • Train your managers and supervisors to recognize the early warning signs of union organizing and on how to respond lawfully to union campaigns.
  • Contact legal counsel with any questions or for any assistance to ensure that you are prepared to respond to an organizing campaign.