©2015 Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP. Duane Morris – Firm Offices | New York | London | Singapore | Philadelphia | Chicago | Washington, D.C. | San Francisco | Silicon Valley | San Diego | Shanghai | Boston | Houston | Los Angeles | Hanoi | Ho Chi Minh City | Atlanta | Baltimore | Wilmington | Miami | Boca Raton | Pittsburgh | Newark | Las Vegas | Cherry Hill | Lake Tahoe | Myanmar | Oman | Duane Morris – Affiliate Offices | Mexico City | Sri Lanka | Duane Morris LLP – A Delaware limited liability partnership WEBINAR SEMINAR DM2/ Don’t be Ambushed by New NLRB Election Rules *No statements made in this seminar or in the PowerPoint or other materials should be construed as legal advice or as pertaining to specific factual situations. Further, participation in this seminar or any question and answer (during or after the seminar) does not establish an attorney-client relationship between Duane Morris LLP (or the Duane Morris Institute) and any participant (or his or her employer). presented by Jonathan A. Segal, Esquire Duane Morris Institute

I.LEGAL LANDSCAPE 1

A.Background 1.General decline of union support a.1950’s – 34% b.2007– 7.5% c.2008 – 7.6% d.2013– 6.9% 2

A.Background 2.However, there is still considerable union support: a.Northeast b.Big cities c.Certain industries d.Certain types of jobs 3

B.NLRB 1.NLRB Election Rules a.Struck down because of lack of quorum b.Reissued now that there is quorum (effective on April 14, 2015, unless enjoined) i.Shorter election period ii.Duty to provide more information to union iii.Limitations on employer’s procedural rights (which has substantive meaning) 4

B.NLRB 2.NLRB decisions a.Approval of “micro-units” b.Narrower definition of “supervisor” c.Right of employees to use social media to disparage employers 5

C.Impact of New Election Rules ELECTION RULEOLDNEW Note of Service of PetitionUnion files petition with the Board and then the Board serves Employer Union serves Board and Employer simultaneously and electronically Pre-Election Hearing12 days from date of service of petition 8th days from date of service of petition Employer’s Position Statement No such requirement; employer was not locked into or did not waive any position before the hearing. Due now on 7th day. Locks in employer’s position and waives issues employer did not raise. 6

C.Impact of New Election Rules ELECTION RULEOLDNEW Pre-Election Hearing IssuesUnit and eligibility issues ordinarily resolved before election Deference given to regional director to determine what issues to address and what issues to defer (i) Unit issues: discretion of Regional Director based on showing of proof by employer in position statement that those in petition have overwhelming community of interest with excluded employees employer argues should be included. (ii) Individual eligibility issue may be deferred by the regional director until after the election in his or her discretion. Likely the issue will be deferred, unless it affects 20% of unit (risk entirely on the employer on whether to include individual in supervisory meetings) 7

C.Impact of New Election Rules ELECTION RULEOLDNEW Timing of Excelsior List7 days after direction of election2 days after direction of election Content of Excelsior ListNames and addressesAbove plus personal address plus home and cell phones (if employer has them) Automatic Stay of ElectionElections ordinarily conducted between 25 and 30 days after direction of election (with 12 days for hearing gets you to up to 42 days) Elections to held on “the earliest day practical” (25- to 30-day “stay” gone) Post-Election DisputesAll went to BoardBoard has discretion; Regional Director’s decisions may be final; Regional Directors appointed by NLRB with no congressional approval required 8

D.Enhanced Remedies During Campaigns (announced by prior GC), for example: 1.Union access to employees in the facility 2.Union right to address employees at a time close to election 3.Reinstatement of discharged employee through the election and until charge challenging discharge is litigated 9

E.Union Process 1.Currently, there are two ways for a union to represent employees a.Voluntary recognition b.NLRB supervised election 10

E.Union Process 2.Voluntary recognition a.Permissible only if good faith belief of majority representation b.Make clear to your supervisors and managers no right to do so! 11

E.Union Process 3.Election Process a.Union can petition NLRB for election if i.30% of eligible employees in ii.Appropriate bargaining unit iii.Sign authorization cards 12

E.Union Process 3.Election Process (continued) b.Appropriate bargaining unit i.Unit does not have to be the most appropriate bargaining unit ii.It must be only “an” appropriate bargaining unit iii.Key: community of interest 13

E.Union Process 3.Election Process b.Appropriate bargaining unit (continued) iv.Micro-units and Specialty Healthcare, such as Position Department v.Inability to challenge union’s choice of unit in the absence of “overwhelming evidence” that the proposed unit is inappropriate without additional employees. 14

E.Union Process 3.Election Process (continued) c.Authorization cards i.Does not mean only that employee wants more information, etc. ii.Means employee wants to be a union member iii.Legally binding document 15

E.Union Process 3.Election Process (continued) d.Practical considerations i.Unions usually will not file petition unless at least 50% of eligible voters have signed cards ii.Reason: unions know some employees will sign cards, even though they don’t support the union 16

F.Campaigns 1.Length a.Historically, 4 to 6 weeks b.Now, time between petition and election will be much shorter, probably 2 to 3 weeks (but potentially, at least in theory, as few as 10 days) 17

F.Campaigns 2.Modes of communication by employer and union a.Oral discussion b.Written leaflets and memos c.Meetings (on and off site) d.Home visits (union only) e. and Internet campaigns f.Videos 18

F.Campaigns 3.Nature of campaign—usually a.Adversarial b.Personal 19

F.Campaigns 4.Employees’ vote a.Secret ballot b.Supervised by NLRB representative c.Union wins only if “50% plus 1” of those who vote (not eligible voters) in fact vote for the union 20

II.PREVENTION

A.Supervisory Training 1.Determining who is statutory supervisor a.Individual who has authority to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline other employees, or responsibility to direct them or to adjust their grievances or to recommend effectively such actions b.It is not necessary that an employee perform all of them to be a supervisor; law requires only one supervisory function 22

A.Supervisory Training 1.Determining who is statutory supervisor (continued) c.However, there must be truly independent judgment in practice and not only on paper (cannot be too much control by management protocols) d.Must be held accountable for performance of those supervised (evaluations, promotions, wage increases, etc.) e.Moreover, even though law requires the exercise of only one supervisory function, as a practical matter, it is risky to rely upon only one 23

A.Supervisory Training 1.Determining who is statutory supervisor (continued) f.Further, “regular and substantial” part of an employee’s job must involve supervisory functions g.Statutory supervisors can be hourly but being hourly may be “bad fact” h.Definition has been interpreted by this Board more narrowly i.Specific risk: lead employees/assistant supervisors/charge nurses 24

A.Supervisory Training 2.Ensure documentation consistent with supervisory status, for example: a.Job descriptions b.Participation in evaluations and discipline c.Inclusion in training unrelated to union issues with other supervisors 25

A.Supervisory Training 3.Explain potential risks a.Having an election b.Having a union i.Employer’s perspective ii.Supervisor’s perspective iii.Employee’s perspective 26

A.Supervisory Training 4.Role of Statutory Supervisor a.Cannot support union b.Must support the employer’s preference to remain union free, subject to limits imposed by law c.Cannot engage in impermissible conduct 27

A.Supervisory Training 4.Role of Statutory Supervisor (continued) d.Report direct and indirect warning signs to designated individual(s) i.Indirect warning signs may indicate employee relations issues independent of union activity ii.Want to resolve employee relations issues without regard to union activity 28

A.Supervisory Training 5.Conduct prohibited by law: a.Surveillance b.Promises c.Interrogations d.Threats e.Retaliatory action 29

A.Supervisory Training 6.Conduct prohibited by the employer: accepting or looking at a.Signed authorization cards b.Signed petitions 30

A.Supervisory Training 7.What are some of the direct signs? a.Union cards b.Union leaflets c.Union buttons d.Union clothing e.Union songs 31

A.Supervisory Training 8.What may be some of the indirect signs? a.Changes in group dynamics b.Changes in numbers and types of questions c.Change in vocabulary d.Change in individual behaviors e.Change in group behaviors 32

B.Rapid Response Team 1.Function – receive and evaluate reports from supervisors of possible warning signs of union activity 2.Composition of team – operationally diverse team to assess the risk and whether and how to respond to the risk a.Don’t want to over-react b.But don’t want to under-react either 33

B.Rapid Response Team 3.Communication Options a.Memo on reality of authorization cards and risk and costs of unionization b.Educational videos that can be purchased and/or customized c.Current information on union contracts, changes in industry, financial condition of system, etc. 34

B.Rapid Response Plan 3.Communication Options (continued) d.Compensation and benefits data e.Results of prior engagement surveys f.With regard to all of above, need to consider bi- lingual communications 35

C.Proactive Employee Education 1.Evaluating risks and rewards of when and how to communicate proactively with workforce 2.If educate workforce proactively a.Be careful of tone as well as content b.Make sure you have legal review i.Policy versus preference ii.No agreement required 36

C.Proactive Employee Education 3.Possibilities a.Town Hall Meetings b.Memos c.Orientation/On-Boarding 37

D.Union “Inhibitors” 1.Examples a.Solicitation and Distribution Policy i.Non-employees ii.Employees – Purple Communications b.Policy Limiting Employee Access Off Duty i.Almost any exception problematic, such as holiday ii.Dual capacity issue 38

D.Union “Inhibitors” 2.Key points a.Specific legal rules about permissible scope of prohibitions/restrictions b.Even if lawfully worded, cannot be adopted in response to union activity c.Further, must be applied consistently 3.Micro units a.Evaluate exposure b.Make decisions for business reasons only 39

E.Employee Relations: Top 12 1.Appreciation 2.Recognition 3.Consistency (lack of favoritism) 4.Protection from unsafe conditions 5.Change management 6.Regular and honest communication 40

E.Employee Relations: Top 12 7.Inclusion in solving operational problems 8.Help in solving individual problems 9.Performance management (due process) 10.Protection from abusive conduct— harassment, humiliation, bullying, etc. 11.Wages—internal parity and external competitiveness 12.Benefits—parity and clarity 41

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