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© 2018 Miller Johnson. All rights reserved. 1
David M. Buday
Keith E. Eastland
The materials and information have been prepared for informational purposes only. This is not legal advice, nor intended to create or constitute a lawyer-client relationship. Before acting on the basis of any information or material, readers who have specific questions or problems should consult their lawyer.
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© 2018 Miller Johnson. All rights reserved. 2
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Lauren McFerran (D)12/16/14 - present
Kent Hirozawa (D)8/05/13 – 8/27/16
Mark Pearce (D)4/07/10 – 8/27/18
Phillip Miscimarra (R)8/07/13 – 12/16/17
© 2018 Miller Johnson. All rights reserved. 3
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Quickie Elections Fresh & Easy Markets (expansion of concerted
activity) Reasonable work rules and policies held unlawful
under Lutheran Heritage Micro-units Not your email; Purple Communications Joint Employer Rule Overall expansion into non-unionized employer
realm
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© 2018 Miller Johnson. All rights reserved. 4
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The first step was reforming the make-up of the Board
Typically, the Board will have a 3-2 majority from the President’s political party
This required… reform
Lauren McFerran (D)12/16/14 - present
Kent Hirozawa (D)8/05/13 – 8/27/16
Mark Pearce (D)4/07/10 – 8/27/18
Phillip Miscimarra (R)8/07/13 – 12/16/17
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Lauren McFerran (D)12/16/14 - present
William Emanuel (R)9/26/17 – present
John Ring (R)4/26/18 – present
Marvin Kaplan (R)8/10/17 - present
© 2018 Miller Johnson. All rights reserved. 5
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Education
B.S. from Cornell University & J.D. from Washington University in St. Louis
Prior Work History
Served as Chief Counsel to the Chairman of the Occupational Safety and Health Review Commission
Served as counsel for the House of Representatives’ Oversight Government Reform Committee
Management side private practice in Kansas City
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Education
Received his B.A. from Marquette University and his J.D. from Georgetown University
Work History
Management side private practice with a number of large firms
© 2018 Miller Johnson. All rights reserved. 6
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Education
Received both his J.D. and B.A. from Catholic University of America
Work History
Prior to his appointment, he was a partner with the law firm Morgan Lewis
Management side private practice
During his time in private practice, he worked extensively in the labor field, negotiating and administering collective bargaining agreements
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Education
Received his Juris Doctor, cum laude, from the University of Maryland School of Law, and a B.A. from Georgetown University
Work History
Was a director at Downs Rachlin Martin PLLC, a law firm based in New England and chaired the firm’s Labor and Employment practice from 2000 to 2009
Served on the American Bar Association’s Practice and Procedures Committee for the NLRB
© 2018 Miller Johnson. All rights reserved. 7
Appointment is particularly meaningful due to the role that the General Counsel plays in setting the Board’s litigation positions
General Counsel Appointed by the President to a 4-year term
Independent from the Board
Responsible for investigation / prosecution of unfair labor practice cases and for supervision of the NLRB field offices in the processing of cases
What this means Driving force for potential changes in the law
The GC’s decisions and course of action will shape what issues the Board addresses over the next few years, and the stance the NLRB will take on those issues
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Hint: This will be a significant departurefrom the previous General Counsel.
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Mark Gaston Pearce’s second term recently expired on August 27, 2018
Departure was widely expected upon Trump’s election due to Pearce’s notoriously pro-labor approach and decisions
Surprisingly, President Trump nominated him for another term, and he is currently awaiting Senate confirmation
Return of Pearce?
© 2018 Miller Johnson. All rights reserved. 8
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The Lutheran Heritage Standard for evaluating employer handbook policies If a rule explicitly restricts protected activities, it’s
unlawful
Even if it doesn’t, it is still unlawful if:
The rule was promulgated in response to protected activity
The rule has been applied to restrict protected activity or
Employees would “reasonably construe” the language to prohibit protected activity
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© 2018 Miller Johnson. All rights reserved. 9
The Lutheran Heritage Standard for evaluating employer handbook policies The controversial cases involve this last prong, i.e.,
what kinds of employer handbook policies would an employee “reasonably construe” to prohibit protected activity, thus chilling Section 7 activity.
What kind of language did the Board determine that employees might so reasonably construe?
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The Lutheran Heritage Standard for evaluating employer handbook policies
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© 2018 Miller Johnson. All rights reserved. 10
In Boeing Company (12/14/17), the NLRB gave voice to every frustrated employer’s issue with the agency’s position on rules and policies:
“Over the past decade, the Board has invalidated a large number of common-sense rules and requirements that most people would reasonably expect every employer to maintain. We do not believe that when Congress adopted the NLRA in 1935, it envisioned that an employer would violate federal law whenever employees were advised to ‘work harmoniously’ or conduct themselves in a ‘positive and professional manner’.”
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The Board proceeded to overrule Lutheran Heritage’s “reasonably construe” standard
“Mere maintenance” of facially neutral employment policies, work rules, and handbook provisions will no longer turn on a single inquiry
Instead, the Board will take into account two things1. The nature and extent of the potential impact on
NLRA rights
2. The employer’s “legitimate justifications” associated with the rule
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© 2018 Miller Johnson. All rights reserved. 11
A memo from Peter Robb, General Counsel (6/6/18) explains further:
Category 1: Rules that are generally lawful to maintain Civility Rules: “Behavior that is rude, condescending or
otherwise socially unacceptable” is prohibited.
No-Photography / Recording Rules, Rules Against Insubordination or Non-cooperation, Disruptive Behavior Rules, Rules Protecting Confidential Information, Rules Against Defamation / Misrepresentation, Rules Against Use of Employer Intellectual Property, Rules Banning Disloyalty or Nepotism
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Peter Robb, Memo (6/6/18) cont.
Category 2: Rules warranting individualized scrutiny Look to see if the rule interferes with rights guaranteed by
the NLRA, and if so, whether any adverse impact on those rights is outweighed by legitimate justifications
Category 3: Rules that are unlawful to maintain Confidentiality Rules specifically regarding wages, benefits,
or working conditions, and Rules against joining outside organizations or voting on matters concerning employer
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© 2018 Miller Johnson. All rights reserved. 12
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Remember how we told you not to try and “NLRB-proof” your handbook? Good thing you listened!!!
If you didn’t listen, it’s time to revert back to your old handbook.
MJ’s 2015presentation
While the Boeing decision is an important return to common sense handbook rules, it does not excuse discriminatory application of facially neutral language Don’t think the Boeing decision will
excuse the trampling of otherwise protected concerted activity If you apply facially-neutral language only
to stifle protected concerted activity, that application still violates the Act
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© 2018 Miller Johnson. All rights reserved. 13
What is a Microunit?A microunit was simply a small grouping of
employees within a larger workplace. By using these small units, Unions could gain a foothold in a location where the majority of employees would not otherwise approve a union.
What happened? The Board overruled the 2011 case of Specialty
Healthcare & Rehabilitation Center of Mobile in a 3-2 decision
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What is the new standard? The Board reinstated the traditional community-of-
interest standard for determining an appropriate bargaining unit in union representation cases (PCC Structurals, Inc.)
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© 2018 Miller Johnson. All rights reserved. 14
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As mentioned above, the GC of the NLRB has an pivotal role in determining the stance of the NLRB on important labor issues.
Mr. Robb released a memo in March providing some insight into areas we could likely see changes in the near future Standard for Protected Concerted Activity
Purple Communications
Profanity / threats and when they lose protection
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© 2018 Miller Johnson. All rights reserved. 15
Obama Rule – Fresh & Easy Neighborhood Markets The Board found that an employee was engaged in
PCA for the purpose of mutual and protection when she individually solicited three coworkers to sign a piece of paper onto which she had copied amessage displayed on a whiteboard in the employee break room. The purpose was to have coworkers attest to the contents of a message in connection with the individual’s complaint about the message’s sexually offensive nature.
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Essentially, this led to the conclusion that an individualized complaint could receive protection as concerted activity “The solicited employees have an interest in helping the
aggrieved individual—even if the individual alone has an immediate stake in the outcome—because ‘next time it could be one of them that is the victim.’ ‘An injury to one is an injury to all’ is one of the oldest maxims in the American labor lexicon.” (Fresh & Easy Neighborhood Markets)
Problematic to apply – blurred lines between individual issue and concerted activity
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© 2018 Miller Johnson. All rights reserved. 16
Potential solution: Return to pre-Obama Board Standard? Goodyear Tire and Rubber (1984): An employee who
complained about his subjective belief as to equipment safety did not engage in concerted activity
Meyers Industries (II) (1986): An employee’s complaints about safety concerns in the employer vehicle the employee personally used was not concerted activity
Adelphi Inst. (1988): An employee who asked another employee whether she had ever been suspended was not engaged in concerted activity
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Section 7 of the National Labor Relations Act (NLRA) requires employers, except in very limited circumstances, to open their corporate e-mail systems to union organizing by employees and to group discussions among employees about the terms and conditions of employment during non-work time
Significantly, because Section 7 applies to all employers, not just unionized ones, the Board's decision affected almost every U.S. employer that provides a corporate e-mail system
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© 2018 Miller Johnson. All rights reserved. 17
GC Robb identified Purple Communications as an area of focus, with many suspecting it will be overturned
In August of 2017, the NLRB issued a notice, inviting the filing of briefs on whether the Board should uphold, modify or overrule Purple Communications. The GC’s office recently filed a brief arguing for the rule to be overturned for several reasons.
The decision (Purple Communications) impermissibly created a right for employees to use employer owned / financed communications systems, even where the employees have other options for communication
Purple Communications places an undue burden on employers’ business operations and has the practical effect of reducing productivity and disrupting business operations
The GC’s office also argued that the decision requires employers to provide and pay for employee communications in violation of their First Amendment Rights
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Practical impact of change Return to the old Register Guard Standard, thereby
restoring control of corporate email by allowing an employer to restrict the purpose for which it is used
Note: The GC’s brief did mention that exceptions should be made on a case-by-case basis where the Board determines that the employees are unable to communicate in any way other than through the employer’s email system, but this would likely be a rare situation
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© 2018 Miller Johnson. All rights reserved. 18
Under Pier 60, all kinds of vulgar and outlandish social media posts gained protection. Examples of protected posts Bob is such a NASTY MOTHER F**KER don't know how to
talk to people!!!!!! F**k his mother and his entire f**king family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!! (Pier Sixty LLC, 362 N.L.R.B. No. 59 (March 31, 2015))
“As I look at my pay stub…One worse than the other. I would just like to thank all the F*#KTARDS out there that voted ‘NO’…The chance they gave them was to screw us more and not get back the things we lost…Eat $hit ‘NO’ Voters…” (Novelis Corporation, 364 NLRB No. 101 (2016))
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Dissent from Pier 60: “In concluding Perez’ offensive online rant, which was fraught
with insulting and obscene vulgarities directed toward his manager and his manager’s mother and family, my colleagues recast an outrageous, individualized griping episode as protected activity. I cannot join in concluding that such blatantly uncivil and opprobrious behavior is within the Act’s protection.
Future Change? We expect any change to be more in line with the dissent,
where an employee can’t post outlandish things on social media, and hide behind the guise of NLRA protection
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© 2018 Miller Johnson. All rights reserved. 19
This is not an identified GC priority, but seems like it is ripe for change Old Rule: The NLRB would not schedule an election fewer than 25
days after the direction of election to allow the NLRB to rule on a request for review of the decision. At minimum, this gave employers at least 25 days (and often 42 days) to educate employees of the drawbacks of unionization.
New Rule (Quickie Elections): Changes in the process of filing a representation
petition, allowed for elections to be held within 13 days of the filing of said petitions
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Impact of Quickie Elections: In the three years preceding the Rules
Unions won 68% of elections in 2014
Unions won 63% of elections in 2013
Unions won 65% of elections in 2012
In the years following the Rules
Unions won 69% of elections in 2015
Unions won 72% of elections in 2016
Unions won 71% of elections in 2017
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© 2018 Miller Johnson. All rights reserved. 20
Impact of Quickie Elections In the three years preceding the Quickie Election
Rules, the NLRB conducted
1202 elections in 2012
1238 elections in 2013
1260 elections in 2014
Despite the new more favorable rules, the NLRB only slightly increased the number it conducted
1490 elections in 2015
1299 elections in 2016
1193 elections in 2017; fewer than they conducted prior to implementation of the Quickie Election Rules
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Overall, it appears that the Quickie Election Rule is helping unions to win more often, which was expected when the rule took effect
Given this impact, we expect that the pro-employer administration may took a look at repealing this rule in the coming years
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© 2018 Miller Johnson. All rights reserved. 21
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December 2012: Michigan became the 24th state to adopt “right-to-work” legislation Right-to-work laws prohibit or nullify “union
security” provisions in contracts
Prevents payment of union dues from being a condition of employment in private or public sector
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2017 Update:“It’s Over”
© 2018 Miller Johnson. All rights reserved. 22
Nearly five years of data allows us to begin to assess the impact in Michigan
Total Rate of Union Membership:Down 2.15% between 2013 and 2016
Average and Median “Real” Wage Change:Up 2.65% and 2.77% between 2013 and 2016
Unemployment Rate:Down 4.75% between 2013 and 2016
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Source: Current Population Survey data from BLS
Regardless of effect on economy, result is that at least some percent of any unionized workforce has stopped paying dues
This has created a substantial revenue crunch for unions
44Source: SEIU Healthcare MI LM-2 Filings
$0
$5,000,000
$10,000,000
$15,000,000
$20,000,000
$25,000,000
0
10000
20000
30000
40000
50000
60000
2011 2012 2013 2014 2015 2016
SIEU Membership and Revenue
Membership Receipts
© 2018 Miller Johnson. All rights reserved. 23
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MNA scores big victory for Munson Nurses Last September, the MNA won a significant labor
victory to represent more than 1,000 RNs at Traverse City’s Munson Medical Center. The final vote was 489-439 in favor of unionizing.
Signs of support:According to the MNA, over 2,500 supportive yard
and business signs have been distributed, and they are visible throughout Traverse City.
Radio advertisement: https://www.munsonnurses.org/?utm_source=all+media+contacts&utm_campaign=d42e
7c2c26-EMAIL_CAMPAIGN_2018_08_22_02_58&utm_medium=email&utm_term=0_242 dd8770e-d42e7c2c26-95406609
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© 2018 Miller Johnson. All rights reserved. 24
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© 2018 Miller Johnson. All rights reserved. 25
Union files unfair labor practice charges against U of M Failure to bargain in good faith
Making changes in work shifts without negotiating
Refusing to bargain over certain conditions of employment
Discriminating against union members who are supporting their right to collective bargaining.
Three day strike authorized by U of M nurses on September 17
University of Michigan Professional Nurses Council represents 5,700 nurses at U-M hospitals and other facilities. In a recent vote on whether or not to authorize a strike, 4,000 nurses cast their ballot, with 94% voting in favor of a strike.
No date was set for the strike, but the Union said the strike would go forward if the university did not respond to claims of unfair labor practices
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© 2018 Miller Johnson. All rights reserved. 26
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Tentative Agreement Reached Early on September 29, 2018, the Michigan Nurses
Association and the University of Michigan announced they had reached a tentative agreement on a three-year contract to end the ongoing labor dispute. The proposed contract language has not been made available to
the public to date.
A ratification vote remains to be scheduled, but should took place within a few weeks. Notably, the bargaining team for the MNA is recommending
ratification of the agreement at this time.
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© 2018 Miller Johnson. All rights reserved. 27
The IssuesMulti-employer bargaining and the Section 8(f) /
9(a) issue
Union leverage; the potential triggering of pension withdrawal issues
Employer responses: injunction action; unfair labor practice charges; and lockout
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© 2018 Miller Johnson. All rights reserved. 28
Governor Snyder’s Intervention Ends DisputeMITA and the Operating Engineers have agreed to
work without a contract through the current construction season
The agreement also includes the following:
The priority work will be for projects that can be completed prior to significant winter weather arriving
Other projects will continue for as long as possible, including work to prepare them for safe winter travel if they cannot be completed
Contractors and OE324 will use professional mediation through the winter to help them with negotiations for a new contract
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© 2018 Miller Johnson. All rights reserved. 29
The Decision, June 27, 2018 In Janus, the Supreme Court held that a public employer violates
the First Amendment when it withholds agency fees (sometimes referred to as “union dues”) from an employee for the purposes of disbursing such fees to the employee’s union if the employee does not affirmatively consent to pay such fees. The Janusdecision is revolutionary because it directly contradicts and overrules a 1977 Supreme Court decision called Abood v. Detroit Board of Education, which reached the opposite conclusion to the same question when issued 41 years ago.
Employers in the private sector will see no direct impact from the Janus decision. But because many unions are likely to see reductions in revenue as a result of this decision, Janus may decrease the overall strength of organized labor nationwide
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Impact of JanusMakes employer liable under Section 1983 if dues
are extracted contrary to consent of the employee
Essentially establishes “national” right-to-work for all public sector employers
Involves public sector employees only, BUT weakens unions (less money) with substantial public sector representation (SEIU, burse’s unions, UAW, AFSCME)
Redefines the role of the First Amendment for corporations and businesses – “weaponized first amendment”
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© 2018 Miller Johnson. All rights reserved. 30
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45 Ottawa Ave SWSuite 1100Grand Rapids, MI 49503
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616.831.1749
269.226.2952
Keith E. Eastland David M. Buday