The Second Offensive

1. The Second Offensive Workforce Freedom Initiative u.s. chamber of commerce Labor and Employment Policy in 2014

2. Employer Victories 2008-2013 • Card Check: Would have eliminated secret ballots in union elections, required arbitration of first contracts, increased employer penalties. Died in Congress. • Ambush Elections: Would have greatly reduced the time frame for union elections. Leave employers no time to respond, prevent workers from getting balanced information. Overturned in court. • Poster Rule: Would have required employers to post one-sided notice of union rights in their workplaces. Overturned in court. • Cyber Card Check: Would have established electronic voting in union elections —undermining privacy of a worker’s vote. Blocked by appropriations rider. • Noel Canning Case: Challenged validity of NLRB appointments. Kept anti-employer agenda on hold; will ultimately void many harmful decision. • Department of Labor: Numerous rules abandoned or delayed.

3. Union Membership

4. The Second Offensive • National Labor Relations Board: • NLRB is a small agency in Washington, DC. Five Board members. All are now Senate confirmed. General Counsel also Senate confirmed. Primed to begin deciding cases and issuing regulations. • Department of Labor: • Previous Secretary largely ineffective. New Secretary Tom Perez is a smart, hands-on manager. More than 60 items on the Department’s regulatory agenda. • New Union Organizing Strategies: • Increasing use of “worker centers,” members-only unions, undermine franchise and contractor relationships.

5. The Second Offensive Objectives Remain the Same: • Lower the bar for union organizing. • Make it more difficult for employers to resist.

6. New NLRB Policies • Ambush Elections: • In 2011, NRLB issued final rule on “ambush” elections. Struck down in court. The Board has now issued a new rule. • Rule designed to speed up time frame for union certification elections from an average of 38 days to as few as 10. How? • Eliminate requirement for minimum 25-day period before an election can be scheduled. • Restrict employers’ ability to file pre-and post-election appeals. Deal with issues of voter eligibility and campaign misconduct after a vote has taken place. • Requires employer to give unions workers’ home phone numbers and e-mail addresses. • Will make it harder for employers to respond to a campaign and limit employees’ ability to get balanced information about unions.

7. New NLRB Policies • Concerted Activity Enforcement: • Applies to union and non-union employers alike. • Section 7 of the NLRA allows workers to engage in protected concerted activity. Can discuss wages, benefits, working conditions. Employers cannot discipline them for doing so or establish policies that prohibit such activity. • NLRB had found many common-sense policies to be illegal for interfering with concerted activity. • Encouraging employees to be courteous to each other and to customers. • Keeping workplace investigations confidential. • Prohibiting disclosure of confidential information about co-workers. • Regulating terms for returning to the workplace when off-duty.

8. New NLRB Policies • Concerted Activity Enforcement: • NLRB has extended enforcement to cyberspace — posts on Face Book, Twitter, and other sites. • Many employer policies regulating employees’ use of social media have been found illegal. • Prohibiting use of company trademarks. • Prohibiting disclosure of confidential information about the company. • Requesting that social media posts be courteous. • Requesting that employees not defame the company. • NLRB sees concerted activity enforcement as a key part of its mandate. Allows it to regulate nearly all employers in the United States.

9. New NLRB Policies • Micro Unions: • 2010 NLRB issues a decision in Specialty Healthcare case. Overturns long-standing precedent on the makeup of bargaining units. • Decision allows unions to gerrymander the bargaining units they wish to organize. Employers effectively barred from suggesting more appropriate units. • Unions can concentrate on small pockets of support to gain a foothold at a workplace. Eliminates the need to win a majority amongst a larger group of employees. • NLRB General Counsel will issue updated “guidance” on application of Specialty Healthcare in 2014.

10. New NLRB Policies • Increased Union Access: • Unions desire expanded access to non-unionized employees in the workplace. • NLRB is preparing to set new precedent that allows unions access to employer e-mail systems – requested amicus briefs in Purple Communications. • New policy would restrict employers’ ability to regulate their workplaces. • NLRB Employers would face a choice of two impractical solutions • Completely bar all non-business use of e-mail system by employees, or • Allow unfettered access for all purposes.

11. Department of Labor • Persuader Regulations • Will limit “advice” exemption under existing law. • Require detailed financial reporting on activities intended to “persuade” workers about collective bargaining. Impacts union and non-union employers alike. • Many common employment practices could trigger reporting obligations under the proposed rule. • No attorney-client privilege. • CEO may be liable for failure to file reports. • Intended to deter employers from contesting organizing campaigns. • Other Issues • OSHA “walk around” letter. • Crackdown on use of independent contractors.

12. Alternative Union Strategies • Worker Centers • Members-Only Unions • Franchise/Contractor Ties

13. Worker Centers • Unions protests, picketing limited by federal law. Unions also must file financial disclosures with DOL and owe workers a duty of fair representation. • To avoid these requirements of federal law, unions have created “worker centers.” Tax-exempt groups that advocate on behalf of employees. Don’t call themselves unions. • Worker Centers launch protests on behalf of unions, call for higher wages, paid leave, changes in working conditions. • Black Friday protests, fast food strikes in New York and other cities, “codes of conduct” for the food service industry. Intermittent strikes. • Ultimate goal: use worker centers as a wedge for unionization.

14. Members-Only Unions • When a union wins an election, it gains the right to exclusive representation of employees. Drawback is unions have to convince a majority to support them. • To get around this, unions have begun advocating for members-only unions. • Any small group of workers could get together and form a union. Employers would have to recognize these unions. No election would be needed. • Would lead to multiple unions within a workplace; disparate unions scattered across multi-state employers. • NLRB may attempt to authorize members-only union through a case decision or rulemaking.

15. New Litigation Strategies • Joint Employer Liability • Worker Centers trying hold employers jointly responsible for actions of contractors and franchisees. Particularly with wage and hour issues. • NLRB has signaled its intent to adopt new, liberal standard to find “joint employer” status by requesting briefs for Browning-Ferris Industries. • Intermittent Strikes • Sporadic, disruptive, ‘hit-and-run’ strikes where workers walk out for a short time and then return to work, often involving a single shift. • Repeated series of short-term strikes are illegal, but there is no clear-line rule or definition. • Favorite tool for Worker Centers. • NLRB may be using charges against Walmart to grant protection to intermittent strikes. Would make it very difficult to manage attendance at a workplace.

16. What We Can Do • Get educated on the issues – www.WorkforceFreedom.com & www.USChamber.com • Urge Congress to Support Good Legislation and to Fight Overregulation - Contact Officials by phone or webpage (www.senate.gov & www.house.gov) • Secret Ballot Protection Act– H.R. 2346 – Union elections must be by secret ballot, not card check. • Representation Fairness Restoration Act– H.R. 2347 – Reverses Specialty Healthcare (micro-unions) and gives employers equal weight when  determining appropriate bargaining units. • Workforce Democracy and Fairness Act – H.R. 4320; S.2178 – Mandates at least 35 days notice before holding an election. Workers can make fully informed decisions.  Bargaining unit and voter eligibility issues must be decided before certifying a union. • Employee Privacy Protection Act – H.R. 4321 – Protects employee privacy.  Workers choose how the union may contact them and what personal information is disclosed. • National Right To Work Act – H.R. 946; S. 204 – Eliminates laws that require employees to join a union as a condition of employment. • Submit letters to Congress and op-eds to your local newspaper editor • Stay Involved with your State and Local Chamber and the U.S. Chamber

17. Workforce Freedom Initiative u.s. chamber of commerce