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Today’s Labor Updates:

NLRB Subpoenas: When Defective Service Is Still Effective Service

UNION HOME VISITS (FACT VS. FICTION)

NLRB Regional Director orders second election for voter list non-compliance

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NLRB Subpoenas: When Defective Service Is Still Effective Service

By Brennan W. Bolt on November 16, 2015 Posted in Federal Court Litigation, NLRB, Subpoenas

A recent decision by the Ninth Circuit Court of Appeals in NLRB v. Fresh and Easy Neighborhood Market, Inc., Case No. 12-55828 (Nov. 13, 2015), emphasizes the importance of exhausting administrative remedies before the NLRB when challenging subpoenas, even when the subpoena was not properly served. In Fresh and Easy, an unfair labor practice case, the union served a subpoena on the employer but did not serve a copy on the employer’s attorney as required by the NLRB’s Rules and Regulations. The employer, however, did email a copy of the subpoena to its attorney, but the attorney overlooked the email and never filed a petition to revoke. Although the employer did raise an issue with the union’s subpoena at the hearing, the administrative law judge declined to entertain the employer’s arguments in the absence of a petition to revoke. When the employer refused to comply with the improperly served subpoena, the NLRB and the union filed an action in federal court to enforce the subpoena.

While the Ninth Circuit agreed that the subpoena was not properly served, it agreed with the district court’s order requiring compliance with the subpoena:

Although the Union was obliged to serve the subpoena on Fresh & Easy’s counsel of record, we agree with the Board’s conclusion that “failure to serve counsel does not constitute grounds for revoking a subpoena, absent a showing of prejudice.” … In its proceedings before the ALJ and before the Board on appeal, Fresh & Easy “failed to establish or even allege that it suffered any prejudice from the [union’s] failure to serve the subpoena on the [employer’s] counsel.” … Without prejudice, the defective service did not invalidate the subpoena ab initio, and Fresh & Easy was required to bring any challenge to the subpoena through a petition to revoke….

In explaining its ruling, the Ninth Circuit stated that it could not “create a rule that would allow a lawyer with actual notice of a subpoena to take no action, in hope that the charging party will not seek enforcement, and make objections only if enforcement proceedings ensue.”

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UNION HOME VISITS (FACT VS. FICTION)

Written by Keith Peraino

Nov 16, 2015

“While organizing in the Rocky Mountains for the Amalgamated Clothing and Textile Workers Union, Richard Bensinger developed a technique called “The Blitz,” a fast paced, pre- petition organizing strategy that gives the union the jump on the company. It calls for “front loading the organizing campaign by using volunteer organizers on a large scale to supplement regularly assigned staff. The “Blitz” compresses the time for home visits and committee building, so you are well on your way before the company can mount an effective opposition.”

This technique of home visits has been a long standing tradition of all labor unions. Besides the usual trying to talk to employees while entering or exiting the work place, all unions utilize the home visit as that special visit to the employees. The technique described above refers to building a volunteer organizing committee quickly and training them in order to prepare for the anti-union campaign propaganda that comes with the petition.

Home visits are done at 3 critical points of the campaign. The initial home visit as described above is done to build that volunteer organizing committee. Once the committee of leaders is built, the committee is trained in internal organizing techniques and to begin setting up the one to one meetings with their coworkers. At this point the campaign is always kept underground, referred to as the stealth campaign.

The second phase of home visits are performed WITH not only a union organizer but also with one of the workers. Most of the time, these home visits are pre planned and set up by the internal committee. Sometimes these are the home visits that can be utilized to get cards signed. Most of management thinks that the union knocks on doors and “…no one would ever let a stranger into their home.” However, because the organizer is accompanied by another worker, and usually it is pre planned, the home visit is well received.

The third round of home visits is after the petition is filed and the union gets the excelsior list. The third round again is done with employees and is done on the employees that were not touched prior to card signing (if any left) and on every employee who signed a card to solidify the vote.

There are 6 items in the agenda for all home visits that an organizer follows:

  • INTRODUCTION: Communicate and LISTEN (something the union has already embarked on brainwashing employees that management never listens to them). Let employees talk and give their opinions. Employees love to talk.
  • ASK QUESTIONS AND AGAIN LISTEN: Learn what are the issues at work. What are the emotional issues and “hot button” items.
  • OFFER THE UNION SOLUTION: This is where the union captures the go to person illusion. As the union states so well in their own words, “the important part is to try to act like an educator, not a salesperson.”
  • GATHER INFORMATION: As the employee provides information and starts viewing the union as the “vindicator,” the employee must acknowledge they are part of the solution of the problem and the “ownership” of the campaign is critical at this point. “It is this employee that has to wear the union button proudly.”
  • INOCULATION: Make sure to prepare the employee for what the employer will say.
  • COMMITMENT: Card signed, possibly join a committee, solidify the vote.

Again, while everyone thinks that actions on the unions part are not well planned, they are not only well planned, the actions are calculated so that there is minimal risk. Remember, unions are doing home visits prior to the petition as they are signing up possibly up to 70 percent or more of your workforce and no one is mentioning it to management. Do you think that a letter to them after a petition is filed to warn them of the home visit seems “frightening”? The only fright is that that most companies do not think it will happen to them and they pass on the opportunity to train their staff.

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NLRB Regional Director orders second election for voter list non-compliance

Benjamin I. Han and Kurt A. Powell

USA November 12 2015

In Danbury Hospital (Case 01-RC-153086), after an initial election victory for the employer, an NLRB Regional Director ordered a second election as a result of the employer’s non-compliance with the new ambush election rules. In doing so, the NLRB again demonstrates why employers should be vigilant and proactive in preparing for an election long before the arrival of a union petition.

Under the new rules, employers must, within two business days after the approval of an election agreement or the issuance of a Direction of Election, submit a voter list of employees’ “available” personal email addresses and personal cell phone numbers. These requirements differ from the old election rules in that previously, the employer was only required to provide a voter list of the employees’ full names and home addresses within seven calendar days after the approval of an election agreement or the issuance of a Direction of Election.

The Regional Director in Danbury Hospital determined that although the employer submitted a voter list which included a phone number for approximately 94% of all voters and all personal email addresses in the HR system, the employer did not “exercise reasonable diligence in compiling voter contact information.” The employer’s error, according to the Regional Director, arose from its failure to search within data sources outside of its HR database, which included departmental databases, messaging system databases, unit phone lists, and candidate tracking system databases. The Regional Director determined that the search requirement is a “strict rule,” dismissing the employer’s argument that the absence of complete contact information did not prejudice or adversely impact the union. The Regional Director also rejected the employer’s argument that there was little evidence in the record that supported the amount and type of contact information missing from the voter list, asserting that it was the employer’s non-compliance with the search requirement that lead to such lack of evidence.

The NLRB’s determination in the Danbury Hospital case reaffirms why employers should prepare for a union election well in advance of a union petition. Considering that sources of employee contact information may span across several databases, employers should consider identifying such databases and preparing a process to cull necessary information, given the constricted timeframe to submit the voter list. Foregoing such preparation exposes employers to unnecessary risks, only one of which includes the overturning of a favorable election result.

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