Maintaining a Union-Free Workplace Issues & Strategies Under Current Law and Update on Proposed Changes in Union Organizing Rules

Labor & Employment Law Seminar

June 4, 2009 Goodwin Procter Conference Center

June 10, 2009 Westin Waltham TABLE OF CONTENTS

Introduction ...... Tab 1

Pending Legislation to Facilitate Union Organizing ...... Tab 2

New Executive Orders Favoring Organized Labor...... Tab 3

Protected Activity Under the National Labor Relations Act...... Tab 4

Lawful Restrictions Employers May Make on Union Organizing Activity ...... Tab 5

Union Organizers as Applicants for Employment ...... Tab 6

Representation Elections Conducted by the National Labor Relations Board ...... Tab 7

“Do’s & Don’ts” for Supervisors When Speaking with Employees About Unions...... Tab 8

Sample Notice to Employees Concerning Union Organizing Activity ...... Tab 9

Power Point Presentation...... Tab 10 TABLE OF CONTENTS

The Omni Group – Firm Services and Biographical Information ...... Tab 11

Goodwin Procter – Labor Practice Overview and Attorney Biographical Summaries...... Tab 12

The materials contained in this booklet are only a generalized discussion of areas of legal concern. Every employer’s situation is in some way unique and the discussions contained in this notebook may not adequately deal with each employer’s circumstance. As a result, these materials cannot and do not purport to provide an answer to apparently similar problems. The materials should not be construed as legal advice or legal opinion, which can be rendered properly only when related to specific facts. This publication may be deemed advertising within the meaning of SJC Rule 3:07, Massachusetts Rules of Professional Conduct 7.3.

INTRODUCTION

We are facing a profound economic crisis, the likes of which we have not seen since the Great Depression. Countless working families who were already living on the edge of financial disaster have been hit hard. . . Now more than ever, workers need someone on their side, fighting for them. Now more than ever, they need unions. Unions were fundamental in building America’s middle class, and they have a vital role to play today in restoring the American dream for working families.

Senator Edward M. Kennedy during his introduction of the Employee Free Choice Act to the Senate in 2009

Although labor reform such as the Employee Free Choice Act (“EFCA”) has not yet been enacted, union membership in the United States is already on the rise. In 2008, public and private sector union membership grew to 12.4 percent, up from 12.1 percent in 2007. This is the largest increase in union membership since 1983, the earliest year where comparable data is available. Until 2007, union membership declined every year since 1983.

The numbers of representation cases filed, elections conducted, and elections won by unions are also increasing. In 2007, 3,324 union representation cases were filed while 3,400 cases were filed in 2008. Initial representation elections conducted also rose from 2,080 in 2007 to 2,085 in 2008. In 2008, unions won 67 percent of elections, while unions only won 59 percent in 2007.

If the EFCA or similar labor reform legislation is enacted, union membership will likely grow even more rapidly than it did in 2008. The labor reform movement and the AFL-CIO have also seized on the economic downturn to ramp up unionization and labor reform efforts. The AFL- CIO materials cite dropping wages, disappearing pensions, and rising healthcare costs as support for unionization and labor reform.

With pending labor reform legislation and the current economic downturn, if your organization wishes to maintain a union-free work environment, it needs to promptly assess its vulnerability to union organizing. Wages and benefits should be competitive in the relevant labor market. Personnel policies and procedures should be fair and consistently enforced. Management communication must be effective, and communication is unlikely to be effective if line supervision is inadequate.

Employee attitude surveys and 360 reviews of supervision, management and human resources personnel can provide information on where risks are the greatest and on the sources of those risk factors. Line supervisors who are under pressure to meet demanding quality and productivity requirements in today’s competitive economic climate may, without intending to do so, compromise efforts to build positive employee relations. Or, in some instances line supervisors are simply ill-suited to the responsibility of managing people. In such settings, small grievances can fester and first level supervision may be alienated from senior leadership and fail

LIBB/1644370.1 to communicate to employees a positive sense of the company, or to report to management the warning signs of union activity.

Establishing a regular program of focus group meetings and interviews with employee groups, line managers and human resources personnel will help to enable an employer to identify problematic issues and find solutions as to what is needed to reinforce a positive employee relations climate. When management listens and responds to employee concerns, it enhances motivational effectiveness and nurtures employee trust. And, trust in management is often the critical factor enabling companies to maintain a union-free environment.

In addition, information about unions and the rules supervisors and managers need to know in order to respond to a union organizing campaign should be integrated into management training programs.

If these initiatives are coupled with a commitment to selecting, training and rewarding supervisors and managers who provide effective positive leadership, a company will maximize its practical defenses to the risks presented by the current pro-union political climate. Conversely, to the extent that supervisors and managers are indifferent to employee concerns about fairness and favoritism and lead principally through fear and intimidation, or not at all, there would be fertile ground for the seed of union organizing to thrive with little or no advance notice to combat it.

2 LIBB/1644370.1 THE EMPLOYEE FREE CHOICE ACT AND ALTERNATIVE LEGISLATION PENDING IN CONGRESS

On March 10, 2009, the Employee Free Choice Act (“EFCA”), Senate Bill, S. 560, was introduced in both the Senate and the House of Representatives and referred to committee. As discussed in more detail in the attached Labor & Employment Alert, dated December 17, 2008, the EFCA would amend the National Labor Relations Act (“NLRA”) to eliminate the requirement for secret ballot elections, impose mandatory arbitration of collective bargaining disputes over initial contracts, and increase penalties for employers’ unfair labor practices. Currently, the Senate Democrats do not have enough votes to overcome a Republican filibuster. Alternative bills are also pending in both the House and the Senate. The following summarizes various bills and proposals under consideration.

A. Senate Bill, S. 560

Senator Edward Kennedy of Massachusetts introduced the EFCA to the Senate on March 10, 2009. In Senator Kennedy’s opening remarks, he stated that “[n]ow more than ever, workers need someone on their side, fighting for them . . . they need unions.” The bill was referred to the Senate Committee on Health, Education, Labor, and Pensions.

The EFCA is unlikely to reach the Senate floor for a vote. In order to overcome a Republican filibuster this session, the Democrats need 60 votes. Currently, the Democrats have 57 Senators and two independent Senators caucusing with them. However, seven Democratic Senators are wavering in their support. Additionally, the unsettled Minnesota senatorial race will have an impact. Republican Senator Norm Coleman is against the EFCA, while Democrat Al Franken supports the bill.

On March 24, 2009, then Republican Senator Arlen Specter of Pennsylvania publicly opposed the EFCA. This surprised many since Senator Specter co-sponsored an almost identical bill in 2003 and was the only Republican Senator to vote to end the Republican filibuster of the EFCA in 2007. Senator Specter has stated that he is opposed to the elimination of the secret ballot, since it is a “cornerstone of how contests are decided in a democratic society.” Senator Specter also disfavors the mandatory arbitration provision. Senator Specter publicly opposed the bill once again even after his switch the democratic party.

Specter did, however, offer suggested revisions to the NLRA including: (1) an expedited timetable for elections and resolution of challenges; (2) the creation of additional unfair labor practices including if an employer denies union organizers access to respond to employer captive audience speeches; (3) enhanced penalties similar to the EFCA; (4) requiring bargaining within 21 days after union certification and mediation within 120 days after bargaining begins, but no mandatory arbitration; (5) upon a finding that a party is not negotiating in good faith, allowing an order establishing a bargaining schedule; and (6) providing that Administrative Law Judge and Regional Director decisions become final if the Board does not review the decision within 180 days.

LIBB/1644447.1 Two additional senators have recently withdrawn support of the EFCA, making it very unlikely the Democrats will achieve the 60 votes needed to overcome the Republican filibuster. Senator Blanche Lincoln of Arkansas released a statement on April 6th publicly withdrawing her support for the EFCA. Senator Lincoln said she would be open to a compromise proposal, but would not support the bill as currently written. Senator Dianne Feinstein of California has also “backed away” from the proposed legislation as written, citing the nation’s current economic problems and hoping for common ground that would be agreeable to both business and labor.

B. House of Representatives Bill, H.R. 1409

Representative George Miller from California introduced the EFCA to the House of Representatives on March 10, 2009. The House referred the bill to the House Committee on Education and Labor.

The House of Representatives previously passed the EFCA, H.R. 800, in 2007 by a vote of 241-185.

C. EFCA Alternatives

Many of the democratic senators who oppose the EFCA have indicated a willingness to consider alternative bills. Alternative bills to amend the NLRA have been introduced in both the House and the Senate.

1. Secret Ballot Protection Act, S. 478

Senator Jim DeMint of South Carolina introduced a pro-employer bill -- the Secret Ballot Protection Act on February 25, 2009. The bill would make it an unfair labor practice for an employer to recognize or bargain collectively with a union that has not been selected by a majority of employees by a secret ballot election conducted by the National Labor Relations Board. (Current law allows employers to voluntarily recognize unions on the basis of a card check or other proof of the union’s majority representation status.) The bill would also make it an unfair labor practice for a labor organization to cause or attempt to cause an employer to bargain with or recognize a union that has not been selected by a secret ballot election.

Twenty Senators co-sponsored this bill. When first introduced, it was placed on the Senate Legislative Calendar. The bill was read again the following day and placed on the Senate Legislative Calendar under General Orders.

2. Secret Ballot Protection Act, H.R. 1176

Representative John Kline of Minnesota introduced the Secret Ballot Protection Act to the House on February 25, 2009. The House bill is virtually identical to the Senate bill, S. 478. It also requires secret ballot elections by making it an unfair labor practice for the employer to bargain with a union not formed by a secret ballot election and for the union to cause or attempt to cause an employer to bargain with or recognize a union not selected by a secret ballot election.

2 LIBB/1644447.1 The House bill had 111 co-sponsors. The House referred the bill to the House Committee on Education and Labor.

3. Labor Relations First Contract Negotiations Act of 2009, H.R. 243

Representative Gene Green of Texas introduced the Labor Relations First Contract Negotiations Act of 2009 on January 7, 2009. This bill would amend the NLRA to require mediation after 60 days of unsuccessful bargaining. If after 30 days from selecting a mediator, no agreement is reached, the parties must then submit to binding arbitration.

No other representatives co-sponsored this bill. The House referred the bill to the House Committee on Education and Labor. On March 16, 2009, the bill was then referred to the House Subcommittee on Health, Employment, Labor, and Pensions.

4. National Labor Relations Modernization Act, H.R. 1355

Representative Joe Sestak of Pennsylvania introduced the National Labor Relations Modernization Act to the House on March 5, 2009. This alternative to the ECFA preserves the secret ballot for union elections. However, similarly to the EFCA, this bill does require employers to provide union representatives with equal access to the workplace to campaign and increases civil penalties for employers who engage in worker intimidation. This bill also mandates mediation and arbitration but with longer timeframes. This bill provides 120 days for negotiations, 120 days for mediation, and then mandatory arbitration.

No representatives co-sponsored this bill. The House referred the bill to the House Committee on Education and Labor.

D. Other Alternatives

1. Potential Compromises in Congress

Since the EFCA as currently written is unlikely to pass, Senators are working on a compromise version of the bill. According to a May 7, 2009 Wall Street Journal article, the compromise will likely not include the elimination of the secret ballot but instead replace this provision with imposing shorter timeframes for union elections. These discussions include imposing a 21-day deadline for an election to be held. The compromise bill will also likely seek greater use of mediation but would restrict arbitrators from imposing contracts on the parties. On May 14th, 2009, Senator Arlen Specter stated, “prospects are pretty good” for a compromise bill.

2. The Committee for a Level Playing Field

On March 22, 2009, Costco Wholesale Corp., Starbucks Coffee Corp., and Whole Foods Market, Inc. announced their ad hoc “Committee for a Level Playing Field.” The committee’s mission is to discuss and offer a “third way” to approach labor law reform. Their proposals include preserving the right to a secret ballot for both certification and decertification campaigns, guaranteeing a fixed time period for the secret ballot election, and allowing unions and

3 LIBB/1644447.1 management equal access to employees during non-working hours. They also propose increased penalties for both employer and union unfair labor practices. They do not support mandatory arbitration but do support stricter penalties and expedited enforcement for a party’s failure to bargain in good faith and in a timely fashion.

4 LIBB/1644447.1

December 17, 2008

Labor & Employment Alert An informational newsletter from Goodwin Procter’s Labor & Employment Practice A New Congress and President May Prompt Significant Pro-Labor Amendments to the National Labor Relations Act

The incoming United States Congress will consider enacting the Employee Free Choice Act (“EFCA”), which, as last proposed, would dramatically change key provisions of the National Labor Relations Act (“NLRA”) to the significant detriment of employers. The EFCA would make it much easier for unions to obtain bargaining representative certification, would expedite and reshape the collective bargaining process for initial contracts and would impose stricter penalties upon employers for willful or repeated unfair labor practices. The House of Representatives voted in favor of enacting the EFCA in March 2007 by a vote of 241-185, but the bill ultimately died in the Senate after a Republican-led filibuster. In 2009, however, the Democrats will hold a near-super majority in the Senate and the President-elect has voiced support for this pro-union legislation, so there is a reasonable possibility that the EFCA will be enacted in 2009.

The Proposed Modifications to the NLRA

The EFCA would significantly enhance organized labor’s ability to organize private sector employees and fundamentally change the nature of collective bargaining for an initial contract following a union’s certification as bargaining representative. The enactment of the EFCA would affect employers in three key ways:

1. Elimination of Secret Ballot NLRB Elections to Determine Union Representation

Currently, when a union demands recognition as collective bargaining representative based on representation cards, employers may ignore the cards and instead demand a government-supervised secret ballot election to determine whether a majority of employees in an appropriate unit are in favor of union representation. The election process allows employers and unions to present their case against and in favor of unionization, so that employees can make an informed decision as to whether representation by a union is in their best interests.

The EFCA would require the National Labor Relations Board (“NLRB”) to certify a labor organization as bargaining representative whenever a majority of employees in an appropriate bargaining unit (employees who have a reasonable “community of interest,” including common terms and conditions of employment) sign authorization cards designating that labor organization as their representative. If the cards were found to be valid, the labor organization would be certified by the NLRB without holding an election.

Under the EFCA, a union with an undercover organizing campaign might be able to solicit enough employee signatures to obtain certification before an employer even knew that a campaign was underway. In these instances, employers would be deprived of the opportunity to present (and employees prevented from hearing) information and arguments as to why unionization might not be in the employees’ best interest. Furthermore, since employees would no longer have access to the security of a secret ballot protecting them from coercion, they would be vulnerable to pressure from union organizers and/or co-workers to sign authorization cards despite an ambivalence, or even an aversion, toward union representation.

2. First Contract Binding Arbitration in the Event of Impasse

The second significant change to the NLRA contemplated by the EFCA is that an employer or union engaged in negotiations over an initial collective bargaining contract would have the option to submit the dispute to binding arbitration in the event that the parties were unable to reach agreement on a labor contract within a fairly short time period. Currently, an employer has an obligation to bargain in good faith (i.e., show a genuine desire to reach agreement) with a union. So long as it satisfies that obligation, the employer need not make concessions or accept any specific union proposals. Employers do not violate their obligation to bargain in good faith simply by engaging in “hard bargaining.” Currently, a union’s only realistic leverage is a strike, or threat of a strike. Under the EFCA, if the parties were unable to reach an agreement within 90 days from the date bargaining commenced, either side would be entitled to submit the dispute to mediation. If the parties were still unable to reach an agreement within 30 days from the date mediation was requested, the dispute would be referred to a panel of arbitrators selected by the government. The arbitration panel would then decide the provisions of the contract to govern the terms and conditions of employment for employees represented by the union for the next two years. There is no provision for appeal of an arbitrated contract that imposes economic terms that an employer may consider unduly onerous or unfair.

3. Increased Penalties for Employers Violating the NLRA

The EFCA would impose significantly harsher penalties upon employers found to be in violation of the NLRA. Employers who discharge an employee in violation of the NLRA while union organizing activity or bargaining for an initial contract is taking place would be liable for treble back pay damages under the new law. The EFCA would also impose a civil penalty of up to $20,000 for each unfair labor practice willfully or repeatedly committed by an employer during such times, in addition to any make-whole remedy already available under the NLRA. The EFCA would not impose similar penalties upon unions found to have committed unfair labor practices.

Recommendations

If the EFCA is enacted, employers desiring to maintain union-free workplaces should promptly consider strategies for combating the kind of stealth unionization efforts that would be possible under the EFCA, including supervisor training,

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effective employee communication programs, and competitive compensation and benefits.

1. Increased Vigilance and Supervisor Training

Employers should be on the lookout for any signs of an organizational campaign and be prepared to respond on short notice by initiating a lawful and effective campaign explaining the advantages of operating on a non-union basis. Supervisors and managers should receive advance training about how to recognize the telltale signs of a union organizing drive, and the ground rules under which employers may lawfully advocate a union-free workplace.

2. Regularly Address Vulnerability to Unionization

Employers can take preemptive steps to avoid union organization by proactively addressing compensation, working conditions, employer-employee communications and conflict resolution procedures. Effectively communicating the generosity and competitiveness of compensation programs will make employees less susceptible to a labor organizer’s pitch that they have nothing to lose and much to gain from unionization. In addition, many union organizing campaigns are a reaction to poor communication and management by first-line supervisors. Taking steps to identify and improve the employee relations skills of supervisors now can pay off in avoiding unionization efforts later.

3. Policy Update

Employers’ rights to restrict solicitation and distribution of literature by internal and external union organizers depend in part on the terms of employer policies and the permissibility of restrictions in those policies. Employers should ensure that their solicitation and distribution policies are up to date and that their other policies are consistent with their other steps to address unionization.

4. Employee Education

Depending on the circumstances, it may be advisable for employers to educate employees about the downside of unionization, regardless of whether an actual organizational campaign has begun at the worksite. Employees should be made aware that once they sign an authorization card, they may not have another opportunity to weigh in on the issue of union representation.

Conclusion

If passed in its current form, the EFCA would greatly increase the vulnerability of employers to successful union organizing. In the event of union organization, the EFCA creates a significant risk that government appointed arbitrators will set terms and conditions of employment – including wages and benefits – without the employer’s agreement. Employers who believe that unionization of their workforce would be detrimental to their business should consider taking lawful early

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preventative action through supervisory training, compensation program assessment and effective communication measures.

For additional information relating to the issues raised in this Alert, please contact:

Wilfred J. Benoit, Jr. [email protected] 617.570.1155 Jennifer Merrigan Fay [email protected] 617.570.1943 Steven R. Feldstein [email protected] 650.752.3220 Robert M. Hale [email protected] 617.570.1252 Donald J. Munro [email protected] 202.346.4137 James W. Nagle [email protected] 617.570.1233 Joseph A. Piacquad [email protected] 617.570.1937 Heidi Goldstein Shepherd [email protected] 617.570.8189 Bradford J. Smith [email protected] 617.570.1256 Albert J. Solecki, Jr. [email protected] 212.813.8833

Full access to all articles on labor and employment law prepared by Goodwin Procter is available here.

Full access to all articles prepared by Goodwin Procter is available here.

This publication, which may be considered advertising under the ethical rules of Boston Hong Kong certain jurisdictions, is provided with the understanding that it does not constitute the London rendering of legal advice or other professional advice by Goodwin Procter LLP or its Los Angeles attorneys. Additionally, the foregoing discussion does not constitute tax advice. Any New York discussion of tax matters contained in this publication is not intended or written to be San Diego used, and cannot be used, for the purpose of avoiding penalties under the Internal San Francisco Silicon Valley Revenue Code or promoting, marketing or recommending to another party any Washington, D.C. transaction or matter. © 2008 Goodwin Procter LLP. All rights reserved.

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March 18, 2009

Labor & Employment Alert An informational newsletter from Goodwin Procter’s Labor & Employment Practice New Executive Orders Favoring Organized Labor Will Affect Many Employers That Provide Goods or Services to the Federal Government

President Obama recently signed four executive orders, which strongly favor the interests of organized labor and will affect many employers that enter into contracts to provide goods or services to the federal government. By their terms, the orders will not have any real impact until the Secretary of Labor issues implementing regulations later this year. The orders will not affect the obligations of federal contractors under existing contracts; the requirements will be imposed pursuant to the terms of new contracts following the promulgation of the Secretary’s regulations.

The new executive orders, which revoke several executive orders issued by President Bush, are detailed below.

Notification of Employee Rights Under Federal Labor Laws

On January 30, 2009, President Obama signed Executive Order 13496. Executive Order 13496 will require most contractors that enter into new contracts with the federal government to post a notice of employee rights under federal labor laws in conspicuous locations. Also, the Order revokes Executive Order 13201, which required most contractors who entered into contracts with the federal government to post “Beck Notices” informing employees of certain rights, such as their right to not join a union.

Executive Order 13496 states that economy and efficiency in federal government procurement is most easily achieved when employees are well informed of their rights under federal labor laws, such as their right to organize and engage in collective bargaining under the National Labor Relations Act (the “NLRA”). Thus, under Executive Order 13496, contracting departments and agencies within the federal government must include a provision in all government contracts (except purchases under $100,000) requiring contractors to post a notice of employee rights under the federal labor laws. Contractors will be required to post the notice “in conspicuous places in and about [their] plants and offices where employees covered by the National Labor Relations Act engage in activities relating to the performance of the contract.” In addition, contractors will be required to include the notice posting provision in subcontracts related to the original contract so that the provision will be binding upon subcontractors.

In the event that a contractor does not comply with Executive Order 13496, the Secretary of Labor may direct contracting departments and agencies to terminate the contract and to bar the contractor from future federal contracts until the contractor has complied with and agrees to carry out the provisions of the Order to the satisfaction of the Secretary of Labor. Also, in the event that a subcontractor does not comply with the posting requirement, the contract provision will require the contractor to take action against the subcontractor as directed by the Secretary of Labor, including the imposition of sanctions.

The new provision will also require contractors to comply with the contents of the notice. Failure to do so could result in termination of the contract and a declaration that the contractor is ineligible for further contracts with the federal government. Thus, contractors may be debarred not only for failure to post the notice but also if they violate the employee rights described in the notice. Thus, it appears that federal contractors that are found to have committed unfair labor practices in violation of the NLRA may be barred from doing business with the government.

Contracting departments and agencies are required to include the provision in contracts that result from solicitations issued on or after the date when the Secretary of Labor issues rules on the size, format and content of the notice that contractors will be required to post. The Secretary of Labor is responsible for issuing those rules no later than May 30, 2009.

Revocation of Beck Notice Requirement

Under Executive Order 13201, which became effective on April 18, 2001, contracting departments and agencies within the federal government were ordered to include a provision in most contracts requiring contractors to post a notice of certain employee rights commonly known as a Beck Notice in a conspicuous location. The Beck Notice informs employees that they cannot be required to join a union as a condition of employment. The Beck Notice also informs employees represented by a union who choose not to be full-fledged union members that they are entitled to a refund for any portion of their union dues used for union activities unrelated to the union’s role as a bargaining representative, such as political contributions, lobbying and union building funds.

Executive Order 13496 does not prohibit employers from posting Beck Notices or require their removal. However, the provision requiring contractors to post Beck Notices will no longer appear in government contracts.

Nondisplacement of Qualified Workers Under Service Contracts

On January 30, 2009, President Obama signed Executive Order 13495, which affects a contractor’s ability to hire new employees when a contract to provide

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services to the federal government expires and a new contract for the same services is awarded to a different contractor. Executive Order 13495 will generally require the new contractor under those circumstances to offer employment to the employees who worked under the expiring contract before the new contractor can hire new employees to perform the contracted work. The practical impact of this Executive Order is that non-union federal contractors who are awarded new services contracts are more likely to be deemed “successors” to the prior contractor’s bargaining relationship with a union representing the prior contractor’s employees. Under the NLRA, if the contractor is deemed a “successor,” it is not bound by the predecessor’s labor contract, but it is obligated to negotiate with the union over a new collective bargaining agreement.

Executive Order 13495 applies when a contract to provide services to the federal government expires and the federal government awards a new contract in excess of $100,000 for providing the same services at the same location to a different contractor, subject to limited exceptions.1 Under such circumstances, the new contract must include a provision prohibiting the new contractor from hiring new employees to perform the contract work until the contractor has offered employment to “qualified” employees (other than “managerial” and “supervisory” employees) who worked under the expiring contract and who were terminated as a result of the prior contract’s expiration.

The required provision is not a guarantee of employment for the employees who worked under the expiring contract. The new contractor is not required to offer employment to any employee whom the new contractor reasonably believes “failed to perform suitably on the job.” The new contractor also has the right to use fewer employees to perform the new contract than the previous contractor used. Additionally, the new contractor has the right to use its own employees who have been employed for at least three months prior to commencement of the new contract if those employees would otherwise face layoff or termination. Thus, Executive Order 13495 does not require new contractors to offer employment to all employees who worked under the expiring contract, even if an employee is qualified. Rather, the Executive Order provides non-managerial and non-supervisory employees who worked under the expiring contract with a right of first refusal of employment before the new contractor can hire new employees to replace them. However, employees of the prior contractor would have a right to displace newly hired (during the three months before the expiration of the prior contract) employees of the successor contactor.

In the event that a contractor does not comply with the required provision, Executive Order 13495 authorizes the Secretary of Labor to bar the contractor from eligibility for any contract with the federal government for up to three years. In the event of noncompliance, the Secretary of Labor is also authorized to order the hiring of employees who worked under the expiring contract and to award them lost wages.

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Executive Order 13495 does not address many important details, such as whether the new contractor must offer the same wages that employees earned while working under the expiring contract. The Executive Order also does not address how a new contractor should decide which employees should receive offers when the new contractor makes offers to some but not all of the employees who worked under the expiring contract. The Executive Order also does not provide definitions of many terms such as “qualified,” “managerial” and “supervisory.” The Secretary of Labor is responsible for issuing regulations, which may provide many of those details, no later than July 29, 2009.

The contractual provision required under Executive Order 13495 will not appear in contracts until the Secretary of Labor issues the regulations. Thus, the hiring practices of contractors that provide services to the federal government are not immediately affected by the Executive Order. However, the new provision will appear in applicable contracts within a few months.

Economy in Government Contracting

Under Executive Order 13494, which President Obama signed on January 30, 2009, contracting departments and agencies within the federal government will no longer reimburse contractors for any costs incurred by the contractor for activities undertaken to persuade employees not to organize or to engage in collective bargaining. The Executive Order also prohibits reimbursement in the less likely scenario where a contractor incurs costs engaging in activities to persuade employees to obtain union representation.

The Executive Order provides the following examples of activities that are not reimbursable when they are undertaken to persuade employees concerning whether or not to organize and bargain collectively: i) preparation and distribution of materials; ii) hiring or consulting legal counsel or consultants; iii) holding meetings (including paying the salaries of the attendees); and iv) planning or conducting activities by managers, supervisors, or union representatives during work hours.

The Executive Order adds that costs incurred in maintaining satisfactory relations between the contractor and its employees, including the costs of labor management committees and the costs of employee publications, remain allowable for reimbursement.

Executive Order 13494 will apply to all contracts with the federal government that result from solicitations issued on or after the effective date of regulations to be issued by the Federal Acquisition Regulatory Council. The Federal Acquisition Regulatory Council is required to issue those regulations no later than June 29, 2009.

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Use of Project Labor Agreements for Federal Construction Projects

On February 6, 2009, President Obama signed Executive Order 13502, which authorizes federal agencies to require contractors and subcontractors to enter into project labor agreements (a type of collective bargaining agreement) on federal construction projects with a cost of $25 million or more. The Executive Order revokes Executive Order 13202, which prohibited federal agencies from requiring contractors in construction projects to adhere to project labor agreements.

Project Labor Agreements

Because construction firms typically hire temporary workforces for construction projects, the temporary employees face difficulties in organizing and entering into collective bargaining with their employer. To address those difficulties, the NLRA allows unions to enter into collective bargaining with construction firms before the employers have hired the workforce for a construction project. The resulting collective bargaining agreement provides the terms and conditions of employment for workers who have yet to be hired. This type of pre-hire collective bargaining agreement is known as a project labor agreement.

Under Executive Order 13502, federal agencies are “encouraged” to require the use of project labor agreements on “large-scale construction projects,” which are defined as construction projects where the total cost to the federal government is $25 million or more. The Executive Order also allows federal agencies to require the use of project labor agreements on construction projects that are not large scale. Under the Executive Order, project labor agreements must bind all contractors and subcontractors assigned to the construction project. Thus, non- union contractors or subcontractors that wish to work on a federal construction project may be required to be a party to a collective bargaining agreement with one or more unions.

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1 For example, Executive Order 13495 does not apply to contracts awarded pursuant to the Javits-Wagner-O’Day Act, which requires the federal government to offer contracts for certain services to nonprofit organizations that employ workers who are blind or have other types of severe disabilities, or pursuant to the Randolph-Sheppard Act, which provides blind persons with opportunities to operate vending machines in federal buildings.

For additional information relating to the issues raised in this Alert, please contact:

Full access to all articles on labor and employment law prepared by Goodwin Procter is available here.

Full access to all articles prepared by Goodwin Procter is available here.

Boston Hong Kong This publication, which may be considered advertising under the ethical rules of London certain jurisdictions, is provided with the understanding that it does not constitute the Los Angeles New York rendering of legal advice or other professional advice by Goodwin Procter LLP or its San Diego attorneys. Additionally, the foregoing discussion does not constitute tax advice. Any San Francisco discussion of tax matters contained in this publication is not intended or written to be Silicon Valley used, and cannot be used, for the purpose of avoiding penalties under the Internal Washington, D.C. Revenue Code or promoting, marketing or recommending to another party any Goodwin Procter LLP transaction or matter. © 2009 Goodwin Procter LLP. All rights reserved. Page 6 PROTECTED CONCERTED ACTIVITY

Section 7 of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 157, guarantees the employees of private sector employers engaging in interstate commerce the right to engage in organizational and other concerted activities. Employees may not be terminated, disciplined, or otherwise discriminated against for engaging in protected activity.

The rights granted by Section 7 may be enforced against employers through unfair labor practice proceedings under Section 8 of the NLRA. Among the employer unfair labor practices defined by the NLRA are interference, restraint, or coercion of employees’ exercise of their rights under Section 7. Unfair labor practice proceedings are administered and enforced by the National Labor Relations Board (“NLRB”), an independent federal agency created by the NLRA, with appeal rights available to the United States Courts of Appeals.

A. The NLRA Does Not Protect Supervisors

Section 2(11) of the NLRA excludes supervisors from the definition of employees, and therefore employees who fit the definition of “supervisors” are not protected under the NLRA. Supervisory status can be determined by (1) looking at an employee’s authority to exercise one of 12 specifically listed functions (such as hiring, firing and assigning duties), (2) determining whether that authority requires the exercise of independent judgment and discretion, and (3) determining whether that authority is held and exercised in the interest of the employer. Oakwood Healthcare, Inc., 348 N.L.R.B. 686 (2006) (clarifying meaning of “assign,” “independent judgment” and “responsibly to direct” and finds certain nurses to be supervisors); Rockspring Development Inc., 353 N.L.R.B. 105 (2009) (no supervisory status found where employer did not provide evidence that employee was accountable for his actions in directing others, even though he assigned duties and used independent judgment); PPG Aerospace Industries.353 N.L.R.B. 23 (2008) (where putative supervisor served as conduit relaying assignments from management to employees no independent judgment was found and therefore no supervisory status allocated). In addition, supervisory status is only permitted to those individuals who spend regular and substantial portions of their work-time performing supervisory functions, as opposed to sporadic instances.

B. Section 7 Has Broad Application

Section 7 not only protects employee activities in support of unions, but also applies to activities engaged in for “other mutual aid or protection,” such as attempts to improve terms and conditions of employment and support for workers employed elsewhere. Odyssey Capital Group, 337 N.L.R.B. 1110 (2000) (employees engaged in concerted activity when they refused to perform work based upon belief work presented safety hazard); Monroe Manufacturing Inc., 155 LRRM 1068 (1997) (employer violated NLRA by suspending employees who left work site because it was excessively cold); P.B. & S. Chemical Company, Inc., 152 N.L.R.B. 1169 (1996) (employer violated NLRA

LIBA/1994031.1 by discharging two truck drivers who refused to cross picket line to make delivery at facility of employer’s customer).

“The concerted activities need not take place in a union setting and it is not necessary that a collective bargaining agreement be in effect.” Koch Supplies, Inc. v. NLRB, 646 F.2d 1257 (8th Cir. 1981). For example, non-unionized employees have the right to engage in a strike or other concerted activity to protest their working conditions. NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962) (employer’s termination of non- unionized employees who left work without permission claiming it was too cold was unlawful). Lewittes Furniture Enters, 244 N.L.R. 810 (1979) (employer unlawfully discharged employees who sat in break room and refused to work as a protest for higher wages).

Further, employers may be deemed to violate the NLRA if they maintain work rules that could reasonably be construed to interfere with an employee’s Section 7 rights. Lutheran Heritage Village-Livonia, 343 N.L.R.B. No.75 (2004). This is true even if the employer had legitimate business reasons for the work rule and it was not enforced in the context of union or other concerted activity. Northeastern Land Services, Ltd. v. NLRB, 560 F.3d 36 (1st Cir. 2009) (employer violated NLRA when it discharged employee for violating confidentiality rule prohibiting disclosure of employment terms even though legitimate business reason for such a rule existed and no concerted activity occurred); Cintas Corp. v. N.L.R.B., 482 F.3d 463 (D.C. Cir. 2007) (confidentiality policy violated NLRA where employees could reasonably interpret language to restrict them from discussing wages or other matters with others).

C. Employee Activity Must Be Concerted To Be Protected

An employee who protests alone or complains about purely personal matters is not entitled to protection under the NLRA. Meyers Industries, 281 N.L.R.B. 882 (1986), aff’d, 835 F.2d 1481 (D.C. Cir. 1987). However, protected conduct need not necessarily involve two or more employees. Employee activity may be “concerted” if one employee acts on behalf of other employees, such as bringing group complaints to the attention of management. Air Contract Transp., 340 N.L.R.B. 688 (2003) (questions raised by individual at staff luncheon regarding relationship between employer’s evaluation system and pay raises considered concerted activity); Tromber, Inc., 335 N.L.R.B. 478 (2001) (employee’s walkout because of supervisor’s conduct was protected concerted activity), enforced, 338 F.3d 747 (7th Cir. 2003); Silchia v. MCI Telecommunications, 942 F. Supp. 1369 (D. Col. 1996) (employee engaged in concerted activity when he spoke – on behalf of group of employees – with human resources manager about their difficulties with new supervisor).

Moreover, concerted activity may exist where an employee’s actions are an outgrowth of efforts initiated by a group of employees, even if the specific action is taken without consulting other employees. Media Gen. Operations, Inc., 351 N.L.R.B. No. 96 (2007) (concerted activity found where employee went made negative comment to supervisors about employer’s chief negotiator, even though he was unaccompanied by co-workers and not authorized to make comment, because he was part of a group that had

LIBA/1994031.1 protested the executive’s letters about the union and the comment was part of “a logical outgrowth” of a prior collective and concerted activity in which he was engaged); Mike Yurosek & Son, 306 N.L.R.B. 1037 (1992), enforced, 53 F.3d 261 (9th Cir. 1995) (concerted activity found where four employees independently refused their supervisor’s request to work overtime since the “concerns expressed by the individual are a logical outgrowth of the concerns expressed by the group”).

D. Not All Concerted Activity Is Protected

Section 7 does not protect activity that is violent or unlawful. NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939) (sit-down strike in which employees used force and violence to illegally seize employer’s building was not protected activity); Southern Steamship Co. v. NLRB, 316 U.S. 31 (1942) (employees’ strike was unprotected activity because it violated maritime law).

Conduct which is sufficiently disloyal, insubordinate or disruptive may not be protected. Caterpillar, Inc., 321 N.L.R.B. 163 (1996) (“[C]ommunications occurring during the course of otherwise protected activity remain likewise protected unless found to be so violent or of such serious character as to render the employee unfit for further service.”). The determination by the NLRB and courts of whether activity is sufficiently egregious to lose NLRA protection is based on the facts of each case, but typically involves a balancing of the legitimacy of the employer’s business interests versus the validity of the employee’s methods and strength of the Section 7 interests. NLRB v. Electrical Workers (MEW) Local 1229 (Jefferson Standard Broadcasting), 346 U.S. 464 (1953) (employees lawfully discharged for distributing handbills severely criticizing the quality of the employer’s programming); Asheville School, Inc., 347 N.L.R.B. No. 84 (2006) (where employee, whose job provided confidential access to payroll information, published wage information of other employees no protected activity was found); Earle Indus., 315 N.L.R.B. 310 (1994), enforcement denied, 75 F.3d 400 (8th Cir. 1996) (NLRB found unlawful the termination of an employee who led a non-employee union organizer – Jesse Jackson – on to the employer’s property since the employee’s actions were restrained and the employer had a history of unfair labor practices; the Eight Circuit denied enforcement since the employee violated a work rule). But see Tampa Tribune, 351 N.L.R.B. 96 (2007) (employee’s dismissal was unlawful because although he used profane and derogatory language, it was not sufficient to cause him to lose NLRA protection); Valley Hospital Medical Center, Inc., 351 N.L.R.B. No. 88 (2007) (nurse’s statements during press conference and in website articles criticizing hospital’s staffing ratio and how it affects patient care were not found to be disloyal or intended to injure employer’s business, rather it was seen as a method to pressure employer to provide sufficient staffing); Martin Marietta Corp., 293 N.L.R.B. 719 (1989) (employee’s posting of notice accusing employer of poisoning its employees was protected because the notice was not so disruptive as to threaten plant discipline, it was not knowingly false because pesticides could have caused employee illness, and employee’s right to protect workers’ safety outweighed risk of malicious intent).

LIBA/1994031.1 SOLICITATION AND DISTRIBUTION – LAWFUL RESTRICTIONS EMPLOYERS MAY MAKE ON UNION ORGANIZING ACTIVITY

Union organizing efforts often begin with solicitation for union support and/or distribution of pro-union literature by union organizers or by employees. Whether such concerted activity is protected under the NLRA depends on a balancing between the NLRA rights of employees to organize and the rights of employers to impose legitimate workplace rules and to protect their property interests. The limits that an employer may impose on such activities depend primarily on (1) whether the organizers are employees or non-employees, (2) the type of conduct in which the organizers are engaged, (3) the time and location of the conduct, (4) the employer’s property rights at that location, (5) whether the employer has a facially valid policy which prohibits such conduct and (6) whether the policy is implemented in a non-discriminatory way.

A. Employees 1. Solicitation

Although Section 7 provides employees with the right to solicit union support, employers may implement policies to prohibit solicitations during the “working time” of either the employee doing the soliciting or the employee who is the target of the solicitation. “Non-working time” is an employee’s free time at work, such as breaks, lunches and the times before and after work when an employee is legitimately on the employer’s premises. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 n.10 (1945) (“working time is for work . . . but [non-working time] . . . is an employee’s time to use as he wishes without unreasonable restraint, although the employee is on company property”); Beverly Enters, d/b/a Provincial House Total Living Center, 287 N.L.R.B. 158 (1987) (rule that forbade solicitation during “work time” was lawful); NLRB v. Chicago Metallic Corp., 794 F.2d 527, 533 (rules prohibiting solicitation during “company time” or “working hours” are overly broad and presumptively invalid). An employer loses the protection of a facially valid rule if it is applied discriminatorily to ban union solicitation, but to allow other types of solicitation of a similar character. Our Way, 268 N.L.R.B. 394 (1983) (unfair labor practice where facially valid rule prohibiting solicitation during “work time” applied selectively).

In some circumstances, the nature of a business will justify a rule banning solicitations – even during non-working times -- in certain areas of the workplace. For example, the interests of retail stores and health care facilities in limiting disruption to customers and patients may justify such broader limitations. Goldblatt Bros., 77 N.L.R.B. 1262 (1958) (retail department stores may prohibit employee solicitation on the selling floor even during non-working time); Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978) (health care facilities may ban employee solicitation in “immediate patient care areas,” such as operating rooms, patients’ rooms, and patients’ lounges and in other locations as long as the employer can show the limitations are necessary to avoid disruption of patient care).

2. Distribution

The NLRB and courts recognize a distinction between “solicitation” -- oral request for support -- and “distribution” -- handing out written literature. Stoddard-Quirk Mfg. Co.,

LIBB/1642115.2 138 N.L.R.B. 615, 619 n.6 (1962) (NLRB treats the attempt to obtain a signed union authorization card as a solicitation and not a distribution of literature). Employers may prohibit distributions of literature from employee to employee -- even during non-working times – in working areas because distribution of written material tends to be more disruptive to productivity and order than oral solicitation. Formosa Plastics Corp., 320 N.L.R.B. 631, 632 (1996) (employer may have “a rule forbidding employees to distribute union literature in working areas, but a rule banning distribution during nonworking time in nonworking areas of the plant is presumptively invalid.”). Employers may also adopt a policy prohibiting nonwork-related postings of literature and other materials on company bulletin boards as long as the policy is not applied in a nondiscriminatory way. Eaton Technologies, 322 NLRB 848, 853 (1997) (no statutory right of an employee or union to use an employer’s bulletin board).

3. E-Mail System

An employer may lawfully bar employees’ nonwork-related use of its e-mail system provided the employer does not do so in a manner that discriminates against Section 7 activity. Guard Publishing Co. d/b/a/ The Register-Guard, 351 NLRB No. 70 (2007). In Register-Guard, an employer maintained a communications systems policy prohibiting the use of the company’s communications systems, including e-mail, for any non-job related solicitations. In deciding whether such a prohibition was lawful, the NLRB considered whether an e-mail system was properly viewed as employer equipment, and therefore lawfully subject to significant restrictions on its use by employees, see Eaton Technologies, supra (no statutory right of an employee or union to use an employer’s bulletin board); Union Carbide Corp., 714 F.2d 657, 663 (6th Cir. 1983) (no statutory right of an employee to use an employer’s telephones for personal use), or whether the unique nature of e-mail communications in the workplace made it similar enough to traditional face-to-face solicitation that a prohibition of non-work related solicitations via e-mail is presumptively unlawful absent special circumstances. A three member majority held that an e-mail system constituted employer equipment, similar to a bulletin board or a telephone system, and therefore an employer could lawfully prohibit nonwork-related use of its e-mail system so long as it did so in a nondiscriminatory fashion. Id.

The two dissenting members in Register-Guard criticized the majority for failing to appreciate the extent to which modern day employees routinely rely on e-mail for communication at work. The minority also emphasized that e-mail has revolutionized business and personal communications by allowing for thousands of multiple, simultaneous, interactive exchanges, making it entirely incomparable to a bulletin board or telephone. Where an employer has given employees access to e-mail in the workplace for their regular use, as was the case in Register-Guard, the dissent stated that it would find the banning of all nonwork-related solicitations to be presumptively unlawful absent special circumstances.

The rule announced by the majority permitting the ban of all nonwork-related solicitation via e-mail is currently good law, but this issue is likely to be revisited in the near future by a more labor-friendly NLRB than the one that decided Register-Guard. Once President Obama fills the three currently vacant seats on the Board, the NLRB will consist of three members of the Democratic party and two members of the Republican party. Thus, should the Board revisit this issue in the next four years, there is a reasonable likelihood that it will adopt the minority position in Register-Guard and find that policies prohibiting all nonwork-related solicitations via

2 LIBB/1642115.2 e-mail violate the NLRA absent special circumstances. Employers should closely monitor any future decisions issued by the NLRB on this topic to ensure that their communications policies remain lawful.

4. Insignia

Employees may have the right to wear anti-employer or pro-union clothing, buttons or insignia where such insignia relates to Section 7 rights. Republic Aviation, supra; Pay’n Save Corp. v. NLRB, 641 F.2d 697 (9th Cir. 1981) (“Vote Yes [to Union]” buttons protected); Borman’s Inc. v. NLRB, 676 F.2d 1138 (6th Cir. 1982) (“I’m tired of bustin’ my ass” not protected). Where insignia concerns unionization or other protected activities, employers may prohibit such displays only in “special circumstances,” such as where employees have significant contact with the public, where the slogans denigrate the employer’s business or where the slogans are vulgar. Meijer Inc. v. NLRB, 130 F.3d 1209 (6th Cir. 1997) (general merchandise retailer unlawfully prohibited employees from wearing union pins in customer areas because retailer failed to show pins negatively affected public image or ability to maintain production, safety, or discipline); NLRB v. Mead, 73 F.3d 74 (6th Cir. 1996) (employer’s stated concerns with effect of insignia on public relations not sufficient where no evidence that employees would frequently come into contact with public); Leiser Construction, LLC, 349 N.L.R.B. No. 41 (2007) (employer did not commit unfair labor practice by prohibiting employee from wearing sticker of someone urinating on a rat designated “non-union” because such insignia was “unquestionably vulgar and obscene”).

5. Regulation of Employee Communications Must Be Nondiscriminatory

While an employer is not required to allow its employees to engage in nonwork-related communications via its e-mail systems, bulletin boards, or other employer-owned equipment, if the employer chooses to permit such nonwork-related communications, it must do so on a nondiscriminatory basis. In Register-Guard, the NLRB held that unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status. Register-Guard, 351 NLRB No. 70 (2007). Thus, an employer may permissibly draw a line between charitable solicitations and non- charitable solicitations, between solicitations of a personal nature and solicitations of a commercial nature, between personal invitations and invitations to join an organization, and between business-related use and nonbusiness-related use. Id. This relatively new rule is significantly more permissive than the Board’s previous interpretation of “discrimination,” which prohibited an employer from barring union solicitation while simultaneously allowing any nonunion solicitations at all unless those nonunion solicitations were either business related or constituted “a small number of isolated beneficent acts.”

In Register-Guard, the employer had historically allowed employees to send personal e- mail messages concerning social gatherings, jokes, baby announcements, and offers for sports tickets or other personal items. However, when an employee used the employer’s e-mail system to make a number of union-related communications, the employer responded by disciplining her. In determining whether the employer committed an unfair labor practice, the NLRB considered the types of communications the employer had permitted historically to see whether it was drawing distinctions on a Section 7 basis. The NLRB held that the employer did not commit an

3 LIBB/1642115.2 unfair labor practice by disciplining the employee for e-mails that encouraged union support because the employer never permitted employees to solicit support for organizations, with the exception of the United Way. Id. However, the NLRB held that the employer did commit an unfair labor practice when it disciplined the employee for circulating a factual e-mail regarding a prior union rally because the employer had permitted non-work related communications of a factual, non-solicitous nature in the past. Id.

In light of Register-Guard, employers should be clear in their policies as to which types of employee communications via employer-owned equipment are permitted and which types are prohibited. The employer should be careful to draft a policy that it will realistically be able to enforce. When an employer arbitrarily enforces its solicitation and communication systems policies and then disciplines an employee for making a union-related solicitation, it becomes more difficult for the employer to claim that it was not discriminating against the employee on a Section 7 basis. As mentioned in Section I.A.3 above, Register-Guard is likely to be revisited by a more labor-friendly NLRB under the Obama Administration. Therefore, employers should be sure to monitor new NLRB decisions on this topic in case the NLRB decides to re-adopt its previous, more expansive definition of “discrimination.”

B. Off-Duty Employees

An employer may deny off-duty employees access to the interior of its facility for purposes of solicitation, as long as the employer has a clearly disseminated no-access rule and applies it in a non-discriminatory way. Tri-County Medical Center, 222 N.L.R.B. 1089 (1976). However, a rule that denies off-duty employees entry to parking lots, gates, and other outside nonworking areas will be invalid unless justified by specific business reasons. Id.; Teksid Aluminum Foundry, 311 N.L.R.B. 711 (1993).

C. Employer Property Rights and Nonemployee Solicitation and Distribution 1. The Rule

In general, an employer may lawfully prohibit nonemployee solicitation and distribution on its property. Lechmere, Inc. v. NLRB, 112 S. Ct. 841 (1992) (employer permitted to bar nonemployee organizers from shopping plaza open to the public based on strictly enforced policy barring all solicitation on company property); Carpenters Metropolitan District Council v. NLRB (Leslie Homes, Inc.), 68 F.3d 71 (3d Cir. 1995) (employer permitted to deny access to nonemployee organizers who were engaged in area standards hand billing); Home Depot, U.S.A. Inc., 317 N.L.R.B. 732 (1995) (no NLRA violation where employer barred from its retail store and later had arrested a nonemployee union representative who was attempting to solicit employees).

In Lechmere, the Supreme Court rejected the NLRB’s approach of balancing the degree of impairment to an employer’s property interest if access is allowed versus the degree of impairment to the union’s right to engage in protected activity if access is denied. Rather, the Court held that if the property is private, access to it may lawfully be denied except in a very narrow set of circumstances when it is “infeasible to otherwise communicate [with employees]” - - such as in the case of a “logging” or “mining” camp or “mountain resort hotels.” Id.; NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). Contact through mailings, telephone calls, signs

4 LIBB/1642115.2 and advertising will normally create feasible means for communicating with employees. Babcock & Wilcox Co., supra.

The Lechmere doctrine does not prohibit nonemployee activity (such as picketing) on public property adjacent to an employer’s private property. Indeed, on remand, the NLRB found that Lechmere engaged in an unfair labor practice when it sought to remove union organizers from public property adjacent to its parking lot. Lechmere, Inc., 308 N.L.R.B. No. 157 (1995). Nor may an employer prohibit activity on private property on which a union organizer has a state law right of access. Bristol Farms, 311 N.L.R.B. 437 (1993) (unlawful for employer to prohibit activity in shopping center where state law provides for free speech on such property).

2. Denial of Access Must be Nondiscriminatory

The Lechmere rule applies only to nondiscriminatory prohibitions on nonemployee solicitations and distributions. Therefore, an employer may be obligated to grant nonemployee union organizers access to its property if the employer grants other nonemployees access for solicitation purposes. As stated in Section II.A.5. above, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status. For example, an employer does not act in a discriminatory manner if it permits solicitations by non-employees that relate to the employer’s business while prohibiting solicitations by unions. Lucile Salter Packard Hosp. v. NLRB, 97 F.3d 583 (D.C. Cir. 1996) (lawful to deny union solicitations while permitting solicitations by nonemployee representatives of medical textbook publishers and by the entity that provided certain employee retirement benefits to hospital employees; however, hospital unlawfully discriminated against union organizers by denying them access while permitting a credit union and an insurance company to solicit).

D. Considerations for the Creation and Implementation of a Valid Solicitation/Distribution Policy

Nearly every employer should establish and follow a solicitation/distribution policy. Such a policy, if implemented in a nondiscriminatory way, is an important means of preserving employer rights in the face of organizing activity. Consider the following guidelines:

• If you wait for union organizing activity to begin, you may be too late to implement an enforceable policy. The NLRB and courts examine the timing of the implementation of the policy in analyzing whether the employer has acted with union animus. Cannondale Corp., 310 NLRB 845 (1993) (employer committed unfair labor practice where it issued a new policy shortly after union began organizing campaign).

• Tailor the policy so that it is consistent with the legal parameters and is not overly broad. For example, for most employers, a policy which prohibits solicitation during all “company time” will be presumptively unlawful, while a policy that prohibits solicitation during “working time” would not be unlawful.

• Set forth the policy in clear and unambiguous terms. For example, a policy that prohibits “any unauthorized selling, soliciting, canvassing, or distribution of literature

5 LIBB/1642115.2 except where permitted by law” is presumptively invalid. Westinghouse Elec. Corp., 240 N.L.R.B. 905, aff’d, 612 F.2d 1072 (8th Cir. 1979).

• Apply the policy in a nondiscriminatory manner. Many employers establish a facially valid policy, but lose its protections by not following it. Once established, the policy should be followed and applied uniformly.

Sample Policy

As discussed above, circumstances unique to various employers and work situations will dictate the language and parameters of any given policy concerning solicitation and distribution. The following is an example of a generic policy for illustration purposes. Employers should not rely on this example absent further legal consultation.

Solicitation and Distribution

Nonemployees

Solicitation or distribution of literature by nonemployees is strictly limited to solicitation or distributions of literature on behalf of a charitable organization or solicitation or distributions of literature directly related to the business of [Company’s Name] (the “Company”). All other solicitations or distributions of literature by nonemployees are strictly prohibited. Under no circumstances is solicitation or the distribution of literature permitted in working or non-public areas on the Company’s premises. All solicitations or distributions of literature must be approved in advance by [designated person with authority to make such approvals]. Under no circumstances will the Company approve solicitations or distributions of literature inconsistent with this policy.

Employees

Employees are not permitted to solicit other employees for any purpose not related to their assigned work on [Company’s] premises during their own working time or during the working time of the employees being solicited.

Employees may not distribute literature or other materials for any purpose not directly related to their assigned work during their own working time or during the working time of the employees to whom distribution is made. Employees are not permitted to distribute literature or other materials at any time in working areas of [Company].

Employees may not sell any item or post literature or other materials on [Company] property [without prior [Company] approval]. Materials for distribution to employees may not be stored on [Company’s] premises.

6 LIBB/1642115.2 Portion of Communication Systems Policy Relating to Solicitation

[Company’s] communication systems and the equipment used to operate the communication system are owned and provided by [Company] to assist in conducting the business of [Company]. Any use of [Company’s] communications system, including [Company’s] e-mail system, for non-work related solicitation is strictly prohibited. [State exceptions?]

7 LIBB/1642115.2

REPRESENTATION ELECTIONS CONDUCTED BY THE NATIONAL LABOR RELATIONS BOARD

A. Representation Petition

If a union obtains signed union authorization cards from at least 30% of the employees within the group of employees (bargaining unit) that it seeks to represent, the union can submit a representation petition to the National Labor Relations Board (“NLRB” or “Board”) seeking an election to establish its right to represent the employees in that unit. The NLRB is responsible for examining the representation petition to verify that the 30% threshold is met and that the signatures appear authentic. If the union meets the 30% threshold, the NLRB then notifies the employer of the representation petition. The Board does not provide the employer with the signed authorization cards or the percentage of employees who submitted cards. Through discussions with the union and the employer and a representation hearing, if necessary, the NLRB investigates the appropriateness of the bargaining unit.

B. Appropriate Bargaining Unit

1. Community of Interest Among Employees

The NLRB will process a union’s representation petition seeking recognition of its right to represent a bargaining unit and allow a representation election to proceed only if the group of employees the union seeks to represent is an appropriate unit for collective bargaining. The potential bargaining unit does not have to be the most appropriate unit. Rather, the unit only must be “appropriate.” See Morand Bros., Beverage Co., 91 NLRB 409 (1950). In determining appropriateness of a potential bargaining unit, the NLRB’s primary consideration is to ensure that the employees who comprise the proposed unit have a “community of interest” – a term that the NLRB uses to describe employees with a substantial mutual interest in wages, hours, and other terms and conditions of employment. See NLRB, 1950 Annual Report 39 (1951). Bargaining units that include employees who do not share a community of interest are not appropriate because the employees are likely to have widely different collective bargaining objectives and expectations that would complicate, frustrate, or delay the collective bargaining process.

While there is no precise definition of a community of interest, the NLRB considers a variety of factors in making this determination. Among the most important factors are:

• The employer’s organizational structure. The NLRB gives considerable weight in its appropriateness analysis to the employer’s organizational structure. Common supervision, assignment to the same department, functional integration of job duties, frequent interaction, and similarity of working conditions are all suggestive that the employees share a community of interest. See, e.g., Publix Super Markets, Inc., 343 NLRB 1023 (2004); Allegheny Gen. Hosp., 239 NLRB 872 (1978).

• The extent of union organization. The NLRB may consider the extent of the union’s proposed bargaining unit (i.e., whether the bargaining unit is organization-wide or more

LIBB/1642116.2 narrow) in its appropriateness determination. See NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 442 (1965). The purpose of this factor is to prevent unions or employers from manipulating the boundaries of the bargaining unit to arrive at a bargaining unit wherein the union or employer is most likely to prevail in an election. For example, the NLRB may look unfavorably on a bargaining unit that consists only of a subset of pro- union employees within a department and excludes a group of anti-union employees within that department, especially if the excluded group shares a community of interest with the bargaining unit. See Garden State Hosiery Co., 74 NLRB 318 (1947). A narrow bargaining unit that excludes employees with similar skills or duties would result in the application of different terms and conditions to similarly situated employees and would therefore likely lead to the labor strife that the NLRA is designed to prevent. See id. While the NLRB may consider the extent of union organization in its appropriateness determination, the NLRA explicitly prohibits the NLRB from making an appropriateness determination based entirely on the extent of union organization. 29 U.S.C. § 159(c)(5). Rather, the NLRB must articulate at least one other basis in support of its determination. See Metropolitan Life Ins. Co., 380 U.S. at 442-43.

• Single location versus multiple locations. Single plant or single store bargaining units are presumptively appropriate. See, e.g., New Britain Trans. Co., 330 NLRB 397 (1999). The presumed appropriateness is rebuttable, but the burden is on the party opposing the appropriateness of the single-location bargaining unit to present sufficient evidence that the single location bargaining unit is inappropriate. That burden can be satisfied by showing that the single location does not have a separate identity because it is functionally integrated into another location. See Novato Disposal Services, Inc., 328 NLRB 820 (1999). To determine whether the single location has a separate identity, the NLRB considers factors such as the extent of the single location’s autonomy, the uniqueness of the working conditions and the work performed at the single location; and the distance between the single location and other company locations. See id.

2. Exclusions from the Bargaining Unit

Certain categories of workers are not entitled to protection under the NLRA, including the right to be part of a bargaining unit. Those categories of workers include:

• Supervisors. The NLRA excludes supervisors from the definition of employees who are entitled to NLRA protection. Under the NLRA, a worker is a supervisor if: 1) he or she holds the authority to engage in any one of twelve supervisory functions (authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, discipline, or responsibly to direct other employees, or to adjust their grievances, or effectively to recommend such action); 2) the exercise of such authority requires the exercise of independent judgment and discretion as opposed to being merely routine or clerical; and 3) the authority is held in the interest of the employer. NLRB v. Kentucky River Community Care, 532 U.S. 506 (2001); 29 U.S.C. § 152(11). The application of this three-part test does not always yield a clear result. Thus, for borderline cases, the NLRB has developed a number of secondary factors suggestive of a worker’s supervisor status, including: 1) whether the worker is perceived as a supervisor (NLRB v. Chicago

2 LIBB/1642116.2 Metallic Corp., 794 F.2d 527 (9th Cir. 1986)); 2) regular attendance at management meetings (Maine Yankee Atomic Power Co. v. NLRB, 624 F.2d 347 (1st Cir. 1980)); and 3) high compensation relative to other workers (Id.).

In 2007, legislation was introduced in the U.S. House of Representatives that would significantly modify the definition of a supervisor under the NLRA. The Re- Empowerment of Skilled and Professional Employees and Construction Trades Workers (“RESPECT”) Act would remove “assign” and “responsibly to direct” from the list of functions that would satisfy the first prong of the supervisory test. The RESPECT Act would also require a worker to spend the majority of his or her work time on one or more of the supervisory functions for the worker to be considered a supervisor. The RESPECT Act has yet to be introduced in the current Congress, but it may be re-introduced as President Obama has indicated his support.

• Managerial Employees. Managerial employees are excluded from coverage under the NLRA. See NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 288 (1974). For purposes of the NLRA, “managerial employees” are employees who formulate and effectuate employer policies by expressing the employer’s policy decisions and making them operative. See id. at 277. An employee is managerial if the employee takes or recommends discretionary action that controls or implements the employer’s policies. See NLRB v. Yeshiva University, 444 U.S. 672, 683 (1980). A primary reason for this exclusion is to avoid the inherent conflicts of interest that otherwise would occur between the duties of managerial employees as representatives of the employer and their duties to their co-workers as part of a collective bargaining unit. See Bell Aerospace, 416 U.S. at 281.

• Confidential Employees. The NLRB has ruled that “confidential employees” are not entitled to NLRA protection. Confidential employees are workers who 1) share a confidential relationship with managers who formulate, determine, and effectuate management policy in the field of labor relations; and 2) assist and act in a confidential capacity to such managers. See Waste Management de Puerto Rico, 339 NLRB 262 (2003). An example of a confidential employee is the secretary of a management official responsible for formulating an employer’s proposed labor contract. See Firestone Synthetic Latex Co., 201 NLRB 347 (1973).

• Guards. The NLRA prohibits the NLRB from deciding that a potential bargaining unit is appropriate if the unit includes both (1) individuals employed as guards responsible for the protection of the employer’s property or the safety of persons on the employer’s premises; and (2) non-guard employees. See 29 U.S.C. § 159(b)(3). The NLRA does not, however, prohibit an employer from waiving that provision and recognizing a bargaining unit that includes guards and non-guards. See NLRB v. White Superior Div., White Motor Corp., 404 F.2d 1100, 1103 (6th Cir. 1968). Nor does the NLRA prohibit bargaining units consisting entirely of guards.

3 LIBB/1642116.2 • Temporary Employees and Students. The NLRB has ruled that temporary employees are not eligible to be part of bargaining units because they do not have a continuing interest in bargaining unit affairs. The NLRB has applied two different tests, the reasonable expectation test and the date certain test, in determining whether a worker is a temporary employee. Under the reasonable expectation test, a worker is a temporary employee if he or she does not have a reasonable expectation of indefinite employment, even if the employer has not identified a termination date. See NLRB v. S.R.D.C., Inc., 45 F.3d 328, 331 (9th Cir. 1995). Under the date certain test, a worker is a temporary employee only if the employer has identified a termination date. See id. While it is uncertain whether the NLRB would apply the reasonable expectation test or the date certain test in a particular situation, courts have generally expressed a preference for the date certain test because it avoids a subjective examination of a worker’s expectations. See, e.g., NLRB v. New England Lithographic Co., 589 F.2d 29, 33 (1st Cir. 1978).

Student workers are generally not employees eligible to be part of bargaining units unless 1) their relationship with their employer (i.e., the educational institution) is primarily economic as opposed to academic; and 2) they are not temporary employees. The NLRB has found that a student worker’s relationship with an educational institution is primarily academic when 1) admission to the institution is a prerequisite for the position; 2) the work is an integral part of the student’s academic training; and 3) compensation is intended as tuition assistance rather than a true reflection of the value of the work. See Brown University, 342 NLRB 483 (2004). Under these factors, teaching or research assistants are generally not eligible to be part of bargaining units. See id. However, if the student worker’s employment is merely incidental to his or her academic training, he or she generally would be eligible to be included in the bargaining unit. See University of West L.A., 321 NLRB 61 (1996) (students working in university’s law library are eligible to be part of librarian bargaining unit where employment is incidental to their education). In April 2008, a bill was introduced in both houses of Congress under which any student at a private college or university who performs work “for remuneration at the direction of the institution” would be eligible to be part of a bargaining unit. Since then- Senator Obama was one of the co-sponsors, it is possible that the bill will be re- introduced.

• Casual Employees. Casual employees are part-time workers who work intermittent or irregular schedules, such as seasonal or on-call workers. While part-time employees who work regular schedules are generally eligible to be part of a bargaining unit, casual employees are often ineligible because they do not share a community of interest with regular employees. However, a casual employee may be eligible if the employee has a continuing interest. The Board has adopted a test under which it presumes that a casual employee shares a community of interest if the employee has worked an average of at least 4 hours per week during the most recent calendar quarter. See Desert Hosp. v. NLRB, 91 F.3d 187, 191 (D.C. Cir. 1996). However, that presumption can be overcome where special circumstances suggest that there is no community of interest. See id. Likewise, a casual employee who does not meet the 4-hour test may nonetheless be eligible to be part of a bargaining unit where special circumstances indicate a community of interest. BB & L, Inc. v. NLRB, 52 F.3d 366, 370 (D.C. Cir. 1995). For example,

4 LIBB/1642116.2 casual employees who do not meet the 4-hour test because they were on pregnancy leave during the applicable quarter, newly hired casual employees, or casual employees who work in industries with irregular employment patterns may be eligible to be part of a bargaining unit. See id. at 371-72.

C. NLRB Election Procedures

After the NLRB has made its decision on which employees are appropriate for inclusion in the bargaining unit, the NLRB must confirm that the union has submitted proof that the petition is supported by 30% or more of the employees in that unit. Once the NLRB has made that verification, it generally processes the petition and schedules a conference with the employer and the union to discuss the representation election procedures.

The NLRB Regional Director encourages the union and the employer to reach an agreement on the election procedures, such as the final scope of the proposed bargaining unit as well as the date and location of the election. However, the union and the employer are not required to reach a stipulated election agreement. For example, the employer may not agree to an election on the basis that the union is not a bona fide labor organization or may dispute the scope of the proposed bargaining unit. If the union and the employer cannot reach agreement, the NLRB conducts a hearing to resolve any disputes. Briefs are filed by both sides. The Regional Director then issues a decision and, assuming that an election will be held, a notice of the election terms. Board rules provide that the election should not be scheduled prior to the 25th day after the direction of election, nor later than the 30th day thereafter.

The NLRB then requires the employer to submit the names and addresses of all employees in the bargaining unit. That list is submitted to the union, so that it can communicate with the entire eligible voter base. The employer can campaign against the union prior to the election, although the NLRA restricts what the employer can say from the time that the representation petition is filed until the time that the election is held. The rules which govern an employer’s campaign tactics are complicated. See “Do’s & Don’ts for Managers and Supervisors, at Tab 8. Management should develop appropriate campaign tactics with assistance from counsel and experienced labor consultants. In short, the NLRB’s function is “to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees.” General Shoe Corp., 77 NLRB 124 (1948). If the NLRB believes that “laboratory conditions” were not established, and the losing party was prejudiced by the unacceptable conduct of the winning party, then the Board will order a second election. See id.

The election is usually held at the employer’s place of business – often in a lunch room or break area. At the time of the election, the NLRB uses the list provided by the employer to check off employees who have voted. Both the employer and the union are allowed to appoint non- supervisory representatives to observe the voting and are allowed to challenge the eligibility of an individual to vote. If an individual is challenged, his or her vote is sealed, and the dispute is resolved by the NLRB only if the vote could affect the result of the election. The election is held by secret ballot under the supervision of the NLRB. An NLRB agent sets up the private voting booths and is responsible for preventing conversation or electioneering near the polling place.

5 LIBB/1642116.2 Voters mark a ballot either in favor of or against union representation and then deposit their completed ballot into a ballot box. The NLRB agent is responsible for counting the ballots at the polling place as soon as the voting is completed. Both the employer and the union can monitor the count and can challenge ballots. The union wins the right to represent the bargaining unit if a majority of the voters who actually voted, as opposed to a majority of the eligible voters, vote in favor of union representation. If the union wins, the NLRB certifies the union as the exclusive bargaining representative for the bargaining unit, and the employer is required under the NLRA to bargain with the bargaining unit.

The employer or the union can file objections to the manner in which the election was conducted or to alleged improper conduct that may have affected the election results, within seven days of the election. If the NLRB finds that the objection is meritorious, it may order another election. If the employer has committed significant unfair labor practices and the union had authorization cards signed by the majority of employees in the unit, the NLRB may not only set aside the election result but also issue an order requiring the employer to bargain with the union—without holding a second election.

6 LIBB/1642116.2

DO’S AND DON’Ts FOR MANAGERS AND SUPERVISORS

Under the Labor Management Relations Act, 1947, as Amended

THE LAW

“The expressing of any views, argument or opinion, or the dissemination thereof, whether in written, printed, graphic or visual form, shall not constitute or be evidence of a violation of the provisions of this Act, if such expression contains no threat of reprisal, or force, or promise of benefit.”

WHAT YOU, AS THE SUPERVISOR, CAN DO

1. Tell employees that they are free to join or not to join any organization, so far as their status with The Company is concerned although the Company hopes they will choose not to support the union.

2. Tell employees that the law protects their right to refrain from engaging in union activities, and that they are not obligated to talk to union organizers.

3. Tell employees that the law protects them against threats, restraint or coercion by the union or its agents and officers, and if they are pressured, threatened or otherwise coerced, they should report it to their supervisors.

4. Keep outside organizers off the Company’s property.

5. Insist that any solicitation of membership in or discussion of union affairs be conducted outside of working time (but not breaks or lunch periods).

6. Inform employees that signing authorization cards can possibly lead to a union without an election. Tell them that if they wish to sign a card that authorizes an election, but does not authorize establishment of the union without an election; they may write on the card “for election purposes only.”

7. Inform employees that signing an authorization card can lead to the payment of monthly union dues, initiation fees, possible fines and assessments.

8. Inform employees that signing an authorization card does not mean that they must vote for a union.

1 LIBB/1641902.1 WHAT YOU, AS THE SUPERVISOR, CAN DO

9. Inform employees that no union can obtain more than the Company is willing or able to give. It is still the employer who has to meet the payroll and be competitive to keep the work and retain the jobs.

10. Tell employees that it is the employer that provides the jobs, not the union and the union cannot prevent layoffs if they become necessary.

11. Inform employees that without a union they can still deal directly with the Company, rather than have the union or some outsider interfere as a middleman or third party.

12. Point out to employees that there is nothing the union can get for them that they could not get on their own.

13. Remind employees of the exceptionally good benefits they have already been given without the imposition of dues and initiation fees, without long strikes or walkouts, or the interference of outsiders. Outline the benefits, i.e., wages, no strikes, job opportunities, longevity, working conditions.

14. Remind employees that the greatest job security is the security of knowing there will not be any strikes, walkouts, or other work stoppages.

15. Inform employees that with a union a strike is possible if a contract is not reached and while they do not receive any pay, they may have to walk a picket line.

16. Inform employees about the union’s strike history, showing them when and where they took place, how long they lasted, how many employees were affected and how much was lost in wages.

17. Tell employees that the law allows you to hire another person to replace any person who strikes for economic reasons.

18. Inform employees if they take home $700 per week and strike for 4 weeks for a 3% raise, it will take them more than 2-1/2 years to get back what they lost; and if they strike for 10 weeks for a 3% raise, it will take them more than 6 years to get back what they lost.

19. Point out that the union, in its contracts with other employers, requires employees to join the union or lose their jobs.

20. Point out that the union in its contracts with other employers often tries to require the employer to deduct the monthly dues from their employees’ pay checks, so that the union is guaranteed payment.

2 LIBB/1641902.1 WHAT YOU, AS THE SUPERVISOR, CAN DO

21. Inform employees about the cost of belonging to a union in terms of money (dues, initiation fees and assessments) and time.

22. Inform employees that part of their union dues and initiation fees may go to the international union which often may control and dominate the local union’s affairs with the members having little to say about it.

23. Compare the wages and benefits of non-unionized concerns with unionized concerns, where union wages are lower and benefits less desirable.

24. Inform employees about any prior experience you have had with unions.

25. Inform employees what you think about unions, union policies and union leaders.

26. Distribute information about unions, including union organizers’ salaries, corruption in unions, strikes, violence. etc.

27. Inform employees that many unions seek superseniority preference for stewards who most often are employees who lead their campaign, thus discriminating against other employees.

28. Inform employees of any untrue or misleading statements made by the organizer. You may give employees the correct facts.

29. Reply to any union attacks on the Company and its policies.

30. Tell the employees that the election is secret and union organizers will never know how each employee votes.

31. Urge all employees to vote. Tell them every vote counts since a majority of those voting wins the election.

32. Administer discipline, layoffs, grievances, etc., without regard to the union membership or non-membership of the employee involved.

33. Treat both union and non-union employees alike in making assignments of preferred work, overtime, etc.

34. Enforce the Company’s rules impartially regardless of the employee’s membership or activity in a union.

3 LIBB/1641902.1

IT IS IMPORTANT TO REMEMBER THAT YOU SHOULD CONTINUE TO RUN YOUR DEPARTMENT AS YOU NORMALLY DO, IMPARTIALLY AND IN ACCORDANCE WITH CUSTOMARY ACTION IRRESPECTIVE OF THE EMPLOYEE’S MEMBERSHIP OR ACTIVITY IN A UNION. THIS MAY BE HARDER TO DO IF SOME EMPLOYEES BECOME ARGUMENTATIVE OR DIFFICULT, BUT YOU SHOULD BE CAREFUL NOT TO BE PROVOKED TO DO OR SAY ANYTHING THAT COULD SOUND DISCRIMINATORY.

PLEASE REPORT ALL MATTERS OF INTEREST RELATIVE TO THE UNION CAMPAIGN TO A DESIGNATED MEMBER OF MANAGEMENT!

WHAT THE SUPERVISOR CANNOT DO

1. Layoff or discharge any employee for union activity.

2. Tell employees or say anything that might suggest to them that the Company will fire or punish them if they engage in union activity.

3. Promise or grant employees wage increases or special concessions in order to keep the union out.

4. Attend any union meetings, park across the street from the union hall to see which employees enter the hall, or engage in any undercover activity which would indicate that the employees are being kept under surveillance to determine who is and who is not participating in the union program.

5. Ask employees about confidential union matters, meetings, signing cards, membership, etc. (Some employees may, on their own accord, walk up and tell of such matters. It is not an unfair labor practice to listen, but you must not ask questions to obtain additional information.)

6. Ask employees how they intend to vote.

7. Ask employees what they think about the union or a union representative.

8. Bar employee union representatives from soliciting employee memberships during non-working time.

9. Threaten employees with economic reprisal for participating in union activities. For example, threaten to sell the business, subcontract operations or reduce employee benefits.

4 LIBB/1641902.1 WHAT THE SUPERVISOR CANNOT DO

10. Announce that you will not deal with the union as the representative of the Company’s employees.

11. Ask an applicant, during a hiring interview, about his affiliation with a labor organization.

12. Purposely team up non-union employees and keep them apart from those you think may support the union.

13. Transfer workers on the basis of union affiliations or activity.

14. Make distinctions between union and non-union employees when assigning overtime work or desirable work.

15. Take actions that adversely affect an employee’s job or any pay rate because of union activity.

16. Become involved in arguments that may lead to a physical encounter with an employee over the union question.

17. Promise employees a reward or a future benefit if they decide “no union.”

18. Threaten your workers or coerce them in an attempt to influence their vote.

19. Threaten a union member through a third party.

20. Tell employees overtime work (and premium pay) will be discontinued if the union succeeds in its organizing effort.

21. Say unionization will force the Company to lay off employees.

22. Promise employees promotions, raises or other benefits if they oppose the union or refrain from joining it.

23. Forbid employees from wearing union campaign buttons unless it interferes with employer operations or service.

24. Say unionization will take away vacations or other benefits and privileges presently enjoyed.

5 LIBB/1641902.1 WHAT THE SUPERVISOR CANNOT DO

25. Start a petition or circular against the union or encourage or take part in its circulation if started by employees.

26. Urge employees to try to induce others to oppose the union or keep out of it.

27. Conduct a straw vote to find out how employees feel about the union.

28. Interview individual employees or small groups of employees in your office or any private non-working area to influence their votes.

29. Make a campaign speech to assembled groups of employees on employer time within the twenty-four hour period before the election.

30. Incite racial or religious prejudice by appealing to employees on such grounds.

6 LIBB/1641902.1 The following is a generic notice to employees, for illustration purposes. Employers

should not rely on this example absent legal consultation.

NOTICE TO EMPLOYEES

We understand that [Name of Union] recently began an effort to organize here at [Name

of Company]. Some of you may have been approached by fellow employees or paid union organizers. You may hear some extravagant promises about what the union can do for you. I

would like to take this opportunity to advise you of your rights and of [Company’s] position

with respect to the union’s activities here.

Management believes a union is unnecessary and inappropriate here at [Company]. We have worked hard together to build an atmosphere of mutual respect between employees and management, dealing directly with each other to solve our problems. We have competitive wages and benefits for our industry. Despite anything anyone tells you, unions cannot obtain for employees anything that your Company is unwilling to give.

You may be asked to sign a union card. Before you do, think it over carefully. Don’t let anyone pressure you to sign a card. Here are some things you will want to know about these cards:

1. These cards may lock you into union membership.

2. Union membership means dues, initiation fees, assessments, and the possibility of

fines.

3. You do not have to sign a card and no one can make you sign a card.

4. If you do not want the union here, do not sign a card for anyone.

5. You may be told that signing a card obligates you in no way, but this is not true;

read the card carefully. Do not take the chance of signing the card out of

LIBB/1641900.1 curiosity. Most union cards are an application for union membership and

authorize the union to represent the employee signing the card.

6. If you have already signed a card, you are entitled to change your mind and insist

that the card be returned to you.

Don’t be misled by extravagant promises made by paid union organizers. No union can guarantee you more than [Company] is willing to give you.

We have regularly made improvements without any outside intervention. We have no dues, no fines, no fees, no assessments; no one loses work because of strikes; no one is asked to risk his job by engaging in a strike. Let’s keep it that way.

Sincerely yours,

2 LIBB/1641900.1 MAINTAINING A UNION- FREE WORKPLACE

Issues & Strategies Under Current Law and Update on Proposed Changes in Union Organizing Rules

Goodwin Procter LLP Labor & Employment Law Practice

Wilfred J. Benoit, Jr. Bradford J. Smith William J. Bray, The Omni Group, Inc.

• Unions could acquire representation rights through authorization cards;

• This would deprive employers and employees of the right to have the question of union representation decided in a secret ballot election;

• Mandatory mediation after 90 days of bargaining;

• Mandatory, binding interest arbitration if mediation fails;

• Treble back pay awards;

• Fines for employer unfair labor practices; and

• No fines for union unfair labor practices. Legislative Alternatives to the EFCA Under Consideration

• Senator Arlen Specter is opposed to the elimination of the secret ballot, since it is a “cornerstone of how contests are decided in a democratic society.” Senator Specter also disfavors the mandatory arbitration provision. He has suggested the following revisions to the NLRA:

1. An expedited timetable for elections and resolution of challenges – e.g. a 21-day deadline for an election to be held;

2. Requiring employers to allow union organizers access to the employer’s premises to respond to employer captive audience speeches;

3. Enhanced penalties similar to the EFCA;

4. Requiring bargaining within 21 days after union certification and mediation within 120 days after bargaining begins, but no mandatory arbitration; and

5. Upon a finding that a party is not negotiating in good faith, allowing an order establishing a bargaining schedule. • Representative Joe Sestak of Pennsylvania introduced the National Labor Relations Modernization Act to the House on March 5, 2009. This proposal would:

1. Preserve the secret ballot for union elections;

2. Require employers to provide union representatives with access to the workplace to campaign;

3. Increase civil penalties for employers who engage in worker intimidation; and

4. Mandate mediation and arbitration but with longer timeframes than the EFCA -- 120 days for negotiations, 120 days for mediation, and then mandatory arbitration. • On March 22, 2009, Costco Wholesale Corp., Starbucks Coffee Corp., and Whole Foods Market, Inc. announced their ad hoc “Committee for a Level Playing Field.” The committee’s mission is to discuss and offer a “third way” to approach labor law reform. Proposals include:

1. Preserving the right to a secret ballot election;

2. Setting a fixed time period for the secret ballot election;

3. Allowing unions and management equal access to employees during non-working hours;

4. Increased penalties for both employer and union unfair labor practices; and

5. Does not support mandatory arbitration. Current National Labor Relations Board Election Process

1. NLRB will hold secret ballot election if union files a petition with at least 30% support in “appropriate unit” of employees;

2. What is an “appropriate unit? “Community of interest” analysis;

3. Eligible employees;

4. Representation hearing;

5. Consent elections;

6. Timing of elections; 7. Excelsior list;

8. Election Campaign;

9. Employer free speech: “The expressing of any views, argument or opinion, or the dissemination thereof, whether in written, printed, graphic or visual form, shall not constitute or be evidence of a violation of the provisions of this Act, if such expression contains no threat of reprisal, or force, or promise of benefit;”

10. But, NO THREATS, INTIMIDATION, PROMISES/GRANTS OF BENEFITS or SURVEILLANCE;

11. “Laboratory conditions;”

12. Secret ballot process;

13. Objections to conduct of election; and

14. Appeal rights. Legitimate Restrictions that Employers May Impose on Union Organizing Activity

1. Employers may establish rules prohibiting non-employees from soliciting and distributing literature on Company property. Failure to enforce this policy strictly could create a right for professional union organizers to solicit and distribute union literature on the Company’s premises;

2. Employees may be prohibited from soliciting on behalf of a union on working time, and from distributing union literature in working areas, provided that this rule is strictly enforced with respect to all solicitation and distribution;

3. Rules must be established before union organizing activity starts;

4. Under current law, employers may prohibit nonwork-related postings of literature and other materials on company bulletin boards, and solicitation or distribution of such materials through the employer’s e-mail systems, as long as they do so in a manner that does not discriminate against pro-union postings; Discrimination analysis: apples to apples – Register Guard decision

5. For example, it is permissible to adopt a policy that prohibits employees from using a company bulletin board or e-mail system “to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job related solicitations,” with an exception for charitable solicitations and personal matters such as baby announcements, party invitations, sporting ticket sales, and requests for personal services;

6. The law in this area could change drastically once the current vacancies on the National Labor Relations Board are filled;

7. E.g. possibility that employees would have right to solicit on behalf of a union using company’s e-mail system; and

8. Discrimination analysis could revert to law before Register Guard. Union Picketing And Employer Property Rights

1. Organizational picketing -- Unions may picket to pressure an employer to recognize them as the employees’ bargaining representative, provided they file an NLRB election petition within 30 days;

2. Informational picketing -- Unions may picket for an unlimited period of time to protest an employer’s failure to conform to “area standards” of compensation and working conditions, provided that the object of the picketing is not organizational; and

3. In most cases, unions do not have a right to picket on a company’s property. “Do’s and Don’ts” – What An Employer Can Do/Can’t Do, In Opposing Union Organizing Effort Do’s - A. State Your Opinion

1. Tell employees that they can achieve on their own whatever a union can get for them;

2. Let employees know that they are free not to join a union, and the Company hopes they will choose not to support a union;

3. Remind employees that they already receive competitive wages and benefits, and are not presently required to pay union dues or fees; and

4. Point out that with a union, they will not be able to deal directly with management, and rather will only deal with a union outsider. Do’s -

B. Educate Employees:

1. Tell employees that they are not obligated to talk to union organizers;

2. Inform employees that signing authorization cards could lead to a union without an election; and could lead to the payment of monthly union dues and fees;

3. Remind employees that a union cannot obtain more than the Company is willing to give;

4. Tell employees that a union cannot prevent a layoff, if it becomes necessary; and

5. Educate employees about a union’s strike history and the costs to employees that result. Do’s -

C. Enforce Company Rules

1. Keep union organizers off Company property; and

2. Insist that discussions of union affairs be conducted outside of Company time. Don’ts - TIPS

• THREATS

• INTIMIDATION

• PROMISES OR GRANTS OF BENEFITS

• SURVEILLANCE EMPLOYER ACTION PLANS: STEPS EMPLOYERS SHOULD TAKE TO REDUCE THEIR EXPOSURE TO UNION ORGANIZING.

The Employee Free Choice Act

Employer Action Plan Employer Action Plan

1. Identify and educate management and supervisory team;

- On your side - Confident - Ready day one

2. Conduct bargaining unit analysis;

3. Conduct vulnerability assessment for each potential bargaining unit;

4. Maintain competitive wage and benefit programs;

5. Communicate employer position on unions and advantages of union free workplace; Employer Action Plan

6. Develop employee education programs regarding significance of union authorization cards under EFCA;

7. Develop early warning system for card signing;

8. Prepare campaign research packages;

9. Develop campaign core messages and materials; and

10. Provide periodic union awareness updates for managers and supervisors. TEN LESSONS With labor reform legislation fairly imminent, if a company wishes to maintain a union-free work environment, it needs to promptly assess its vulnerability to union organizing.

1. Wages and benefits should be competitive in the relevant labor market;

2. Personnel policies and procedures should be fair and consistently enforced;

3. Management communication must be effective;

4. Employee attitude surveys and 360 reviews of supervisors, managers and HR personnel can provide information on where risks are the greatest and on the sources of those risks; 5. Line supervisors under pressure to meet demanding and competitive standards, may have compromised efforts to build positive employee relations;

6. Small grievances can fester;

7. Establish a regular focus group program with employees, supervisors and human resources personnel to identify problems and find solutions to reinforce a positive employee relations climate;

8. When management listens and responds to employee concerns, it motivates employees and nurtures trust. Trust in management is often the critical factor enabling companies to maintain a union-free environment;

9. Educate supervisors and managers on the rules of responding to a union organizing campaign; and

10. Effective positive leadership maximizes an employer’s practical defenses to the risks presented by the current pro-union political climate. MAINTAINING A UNION- FREE WORKPLACE

Issues & Strategies Under Current Law and Update on Proposed Changes in Union Organizing Rules

Goodwin Procter LLP Labor & Employment Law Practice

Wilfred J. Benoit, Jr. Bradford J. Smith William J. Bray, The Omni Group, Inc.

Goodwin Procter’s Labor & Employment Practice involves representation of management in all areas of labor and employment law. Our attorneys counsel local, regional and national companies across a broad spectrum of industries, including high technology, manufacturing, pharmaceuticals, transportation, printing, public utilities, banking, financial services, retailing, health care, and construction.

We provide practical advice to employers with respect to all aspects of the employment relationship, ranging from hiring and disciplinary practices, compensation practices, workplace violence, privacy concerns, issues arising under the Family and Medical Leave Act, loyalty issues, and protection of employer good will and proprietary information via restrictions on post-employment competition. We combine in-depth legal knowledge with focused, practical experience to help managers make real-world judgments while minimizing potential exposure.

Our attorneys have extensive employment litigation experience involving all significant employment law issues, including reasonable accommodation of disabilities; sexual harassment; discrimination claims arising out of reductions in force; individual disparate treatment claims; wrongful discharge/public policy claims; employment contract and employee benefits claims; wage and hour disputes; and enforcement of noncompetition obligations. Our experience includes defending class and collective actions as well as cases brought by individual plaintiffs.

Our practice includes representation of management before the National Labor Relations Board in union organizing and unfair labor practice cases. We represent employers in collective bargaining negotiations with unions and in labor arbitration proceedings. We also assist clients in maintaining or reinstating a union-free atmosphere.

We have extensive experience in Department of Labor investigations and litigation under the Fair Labor Standards Act, the Occupational Safety and Health Act, and Executive Order 11246. We help clients develop affirmative action programs and represent them during DOL audits of those programs.

We are committed to providing aggressive and cost-effective representation. Our attorneys make early assessments of potential liability, work closely with management to weigh the principles at stake in each case against the cost of defending them, and carefully consider the feasibility of alternative dispute resolution. In litigating cases, we emphasize thoughtful preparation of legal and factual defenses, with an eye toward summary judgment.

WILFRED J. BENOIT, JR. Partner 617.570.1155

[email protected]

Areas of Practice Bill Benoit, a partner in the firm’s Labor & Employment Practice, has represented management in all types of labor and employee relations disputes since 1975. He has extensive employment litigation and alternative dispute resolution experience. Mr. Benoit has successfully defended companies across a broad spectrum of industries in suits involving a wide variety of wrongful discharge and employment discrimination issues, including whistleblowing, disparate treatment, sexual and racial harassment, equal pay, reasonable accommodation of disabilities, and age discrimination claims arising out of reductions in force. He has considerable experience in non-competition litigation.

Mr. Benoit has substantial experience in handling traditional labor law matters involving collective bargaining, arbitration, unfair labor practice cases before the National Labor Relations Board and court injunctions to restrain unlawful picketing activity. He counsels employers on a daily basis regarding issues such as policy development, disciplinary action, workplace privacy, obligations under the Family & Medical Leave Act, workplace safety, affirmative action obligations, and wage/hour questions.

Professional Activities Mr. Benoit is a member of the Labor & Employment Law Sections of the Massachusetts and American Bar Associations. He has been selected for inclusion in Chambers USA: America’s Leading Lawyers for Business and The Best Lawyers in America.

Publications/Presentations Mr. Benoit’s published articles include “Enforcement of Non-Competition Agreements: Developments in Massachusetts” – co-authored with Jennifer Merrigan Fay – which appeared in the Autumn 2004 edition of Employee Relations Law Journal.

Mr. Benoit also wrote “New Law Requires Employers to Give Disciplined Employees Summaries of Third-Party Investigative Reports Regarding Workplace Misconduct” – co- authored with Christopher Kaczmarek – which appeared in the November 2004 edition of Metropolitan Corporate Counsel, and “Retaliation Claims” – co-authored with James Nagle – which appeared in the Winter 2003 edition of Employee Relations Law Journal.

Mr. Benoit has presented several employee relations training programs to clients’ managers, executives and human resources professionals.

Bar and Court Admissions Mr. Benoit is admitted to practice in Massachusetts, and before the United States District Court of Massachusetts, the U.S. District Court of Vermont, the U.S. Court of Appeals for the First Circuit, and the U.S. Court of Appeals for the Second Circuit.

Education J.D., University of Michigan Law School, 1973 (cum laude; Associate Editor, Michigan Law Review) B.A., University of Notre Dame, 1970 (cum laude)

BRADFORD J. SMITH Partner 617.570.1256

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Areas of Practice Brad Smith, a partner in the firm’s Labor & Employment Practice, primarily represents management and institutional clients. His practice includes employment discrimination proceedings before state and federal courts and agencies, wrongful discharge litigation, proceedings before the National Labor Relations Board, labor arbitrations and actions arising under the Occupational Safety and Health Act.

He counsels clients on employment-related issues such as employee discipline and termination, development of affirmative action programs and personnel policies, compliance with wage-hour regulations, development and enforcement of employee noncompetition and confidentiality agreements, and compliance with miscellaneous state and federal employment laws and regulations.

Mr. Smith represents a variety of local, regional, and national clients in several industries, including high technology, utilities, manufacturing, financial services and retail.

Professional Activities Mr. Smith is a member of the Boston and Massachusetts Bar Associations and serves on the Occupational Safety and Health Committee of the American Bar Association. He has been selected for inclusion in Chambers USA: America’s Leading Lawyers for Business.

Bar and Court Admissions Mr. Smith is admitted to the bars of Massachusetts, the U.S. District Court for the District of Massachusetts and the First Circuit Court of Appeals.

Education J.D., Boston University, 1987 (cum laude) B.A., University of Pennsylvania, 1980

JENNIFER MERRIGAN FAY Partner 617.570.1943

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Areas of Practice Jennifer Fay, a partner in the firm’s Labor & Employment Practice, works on a variety of labor and employment issues, including discrimination claims before administrative agencies, federal and state employment matters, employment contracts, separation agreements, arbitration proceedings, development and review of human resources policies and counseling on employment related issues, including non compete matters, leaves of absence, OSHA compliance and wage and hour matters.

Work for Clients Ms. Fay has an extensive background in the employment law field. She has been involved in a wide variety of employment related issues as a counselor, litigator and as a trainer. Ms. Fay has worked with large publicly traded organizations as well as small businesses and across industry lines. Her experience includes conducting detailed internal investigations, handling complex employment litigation, assisting companies with the development and implementation of personnel policies, contract negotiations and providing legal advice on day to day human resources matters.

Over the years, Ms. Fay has developed special expertise in the areas of sexual and other types of discriminatory harassment, reductions-in-force, restrictive covenants, employment contracts and workplace violence.

Professional Activities Ms. Fay is a graduate of the Massachusetts Commission Against Discrimination’s Train the Trainer Certification Program and is on the MCAD’s list of recommended trainers. She is a member of the Boston, Massachusetts and American Bar Associations.

Publications/Presentations Ms. Fay’s most recent article is “Enforcement of Non-Competition Agreements: Developments in Massachusetts” – co-authored with Wilfred Benoit – which appeared in the Autumn 2004 edition of Employee Relations Law Journal. Ms. Fay has presented numerous client seminars and has taught continuing legal education courses for attorneys on employment law topics. She served as Editor-in-Chief of the Suffolk University Law Review.

Bar and Court Admissions Ms. Fay is admitted to practice in Massachusetts.

Education J.D., Suffolk University Law School, 1993 (magna cum laude) B.A., Boston College, 1989 (cum laude)

Ms. Fay was the recipient of the Law Faculty’s Outstanding Student Award at Suffolk University Law School.

STEVEN R. FELDSTEIN Partner 650.752.3220

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Areas of Practice Steve Feldstein is a partner in the firm’s Litigation Department and a member of the Labor & Employment Practice. He focuses his practice on labor and employment law. Mr. Feldstein joined Goodwin Procter in 2008.

Work for Clients Mr. Feldstein has represented and counseled companies in diverse areas of labor and employment law. His practice includes advising management in key employee relations, trade secrets protection, avoiding and litigating wrongful termination and employment discrimination claims, employee handbooks and policies, workforce reductions, NLRB proceedings, union avoidance, arbitration and collective bargaining, OSHA compliance and wage and hour disputes. Mr. Feldstein also counsels companies on the employment-related ramifications of corporate mergers and acquisitions.

Publications/Presentations Mr. Feldstein has lectured on labor and employment law at Stanford University, St. Mary’s College, College of Marin and various seminars for attorneys, human resources professionals and others. He is the co-author of the chapters “Settlement,” in Wrongful Employment Termination Practice (CEB, 1987), and “Handling the Wrongful Discharge Action,” in Personal Injury Handbook (James Publishing, 1991).

Professional Experience Prior to joining Goodwin Procter, Mr. Feldstein was a partner in the Silicon Valley office of Heller Ehrman, where he was co-chair of its labor and employment practice nationwide.

Bar and Court Admissions Mr. Feldstein is admitted to practice in California.

Education J.D., University of California, Berkeley, Boalt Hall School of Law, 1973 B.A., Occidental College, 1970 (departmental honors)

ROBERT M. HALE Partner 617.570.1252

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Areas of Practice Rob Hale, a partner in the firm’s Labor & Employment Practice, represents employers across a broad spectrum of employment matters.

Work for Clients Mr. Hale’s practice involves representation of clients in employment litigation, including noncompetition, discrimination, wrongful discharge, FLSA and ERISA litigation. He has obtained successful results for employers at all stages of litigation, including in preliminary injunction proceedings, at summary judgment, at trial and on appeal. Mr. Hale is experienced in successfully representing employers before administrative agencies and in labor arbitrations. His practice also includes counseling in numerous areas of labor and employment law, including disability discrimination, sexual harassment and other discrimination matters; noncompetition agreement and other restrictive covenants; downsizing; employment agreements; wage and hour compliance; collective bargaining; and personnel policy development and administration. In addition, Mr. Hale is experienced in providing training for managers, supervisors and human resources professionals.

Professional Activities Mr. Hale serves on the Federal Labor Standards Legislation Committee of the American Bar Association. He is a former chair of the ABA’s subcommittee on the Family and Medical Leave Act, the ABA’s subcommittee on the WARN Act and the Boston Bar Association’s Employee Benefits/ERISA Committee.

In 2007, Mr. Hale was elected to be a Fellow of the College of Labor and Employment Lawyers. He was recognized by Super Lawyers magazine as a New England Super Lawyer, and was selected for inclusion in Chambers USA: America’s Leading Lawyers for Business and The Best Lawyers in America.

Publications/Presentations Mr. Hale has spoken at a number of seminars, including those presented by the American, Boston and Massachusetts Bar Associations and various professional and trade groups.

Mr. Hale is co-editor-in-chief of the comprehensive and leading treatise entitled The Family and Medical Leave Act, and a chapter editor of The Fair Labor Standards Act – both published jointly by the American Bar Association and the Bureau of National Affairs. In addition, Mr. Hale is the author of Union Affiliation: Examination of the Governing NLRA Standards, 1983 Det. C.L. Rev. 709.

Professional Experience Prior to joining Goodwin Procter, Mr. Hale clerked for Justice Armstrong of the Massachusetts Appeals Court.

Bar and Court Admissions Mr. Hale is admitted to practice in Massachusetts and the District of Columbia, and before the U.S. District Court of Massachusetts.

Education J.D., Boston University, 1983 (magna cum laude) B.S., Cornell University, 1980

DONALD J. MUNRO Partner 202.346.4137

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Areas of Practice Don Munro is a litigator with experience in administrative law, antitrust, fair housing, labor and employment, and complex commercial matters. Mr. Munro has particular expertise in matters arising under the Railway Labor Act, including collective bargaining disputes, union representation issues and strikes by unionized employees. He also has experience in public international law and serves as the vice-chair of the American Bar Association’s International Criminal Law Committee.

Publications/Presentations Mr. Munro is a frequent lecturer at conferences concerning the Railway Labor Act. His publications include “The Continuing Evolution of Affirmative Action Under Title VII: New Directions After the Civil Rights Act of 1991,” 81 Virginia Law Review 565 (1995), and “Simple Justice: Judicial Philosophy in the Kingdom of Bhutan,” The Green Bag (Winter 2003). In law school, Mr. Munro served as Articles Editor for the Virginia Law Review.

Mr. Munro also teaches employment law as an adjunct professor at The George Washington University School of Law.

Professional Experience Mr. Munro was a partner at Shea & Gardner prior to its combination with Goodwin Procter in 2004. After law school, Mr. Munro clerked for the Honorable J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit.

Bar and Court Admissions

Mr. Munro is admitted to the bar in Maryland and the District of Columbia, as well as to the bar of the U.S. Supreme Court and a number of federal district and circuit courts.

Education J.D., University of Virginia, 1994 (Order of the Coif) B.A., International Relations, Johns Hopkins University, 1990 (Phi Beta Kappa)

JAMES W. NAGLE Partner 617.570.1233

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Areas of Practice Jim Nagle, a partner in and chair of the firm’s Labor & Employment Practice, focuses his practice on defending corporations against employee claims. Mr. Nagle practices in both state and federal courts, as well as before a variety of administrative agencies. He is experienced in litigating complex age, sex, race and disability discrimination claims, including class actions and jury cases, as well as in defending whistle-blower, civil rights, employee privacy and drug-testing cases. He also has substantial experience negotiating and litigating issues related to the termination of highly compensated senior executives. Mr. Nagle also has substantial appellate experience dealing with complex and novel employment law claims.

Work for Clients Mr. Nagle represents a broad spectrum of regional and national clients in diverse fields, including high technology, financial services, manufacturing, retail and higher education. He regularly counsels clients on strategies for avoiding employment litigation and maintaining positive, direct relations with employees. Mr. Nagle also has experience advising clients with affirmative action, collective bargaining, labor arbitration, OSHA and wage and hour issues. His recent engagements include:

• Defending an age discrimination collective action brought by more than 100 plaintiffs arising out of a reduction-in-force and alleging disparate impact and a pattern or practice of discrimination. • Prevailing before the First Circuit in a case of first impression that limited the extra- territorial application of the whistle-blowing protections of the Sarbanes-Oxley Act. • Guiding the independent Board members of a publicly-traded company in responding to sexual harassment allegations directed against the Company’s Chief Executive Officer. • Achieving a substantial favorable jury verdict on behalf of a departing CEO and his new employer charged with misappropriating confidential information from his prior employer.

Professional Activities Mr. Nagle served as the management chair of the Labor and Employment Law Section of the Boston Bar Association from 1992-1994. He serves on the Individual Rights and

Responsibilities Committee of the American Bar Association’s Labor and Employment Law Section. Mr. Nagle has been selected for inclusion in Chambers USA: America’s Leading Lawyers for Business and The Best Lawyers in America.

Publications/Presentations Mr. Nagle served as an Editor of the Georgetown Law Journal at Georgetown University Law Center. He is a contributing editor to the fourth edition of the American Bar Association’s Covenants Not to Compete: A State-by-State Survey.

Bar and Court Admissions Mr. Nagle is admitted to practice in Massachusetts, and before the U.S. District Court of Massachusetts and the U.S. Court of Appeals for the First Circuit.

Education J.D., Georgetown University Law Center, 1980 (magna cum laude) M.P.A., American University, 1976 B.A., Georgetown University, 1974 (magna cum laude, Phi Beta Kappa)

JOSEPH A. PIACQUAD Partner 617.570.1937

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Areas of Practice Joe Piacquad, a partner in the firm’s Labor & Employment Practice, concentrates on representing and counseling corporations and individuals in connection with employment and labor relations issues arising in corporate transaction. Mr. Piacquad also negotiates and advises employers and executives regarding employment contracts, severance arrangements and restrictive covenant agreements. He represents and advises employers and individuals in connection with work-based visas and immigration matters. Mr. Piacquad also represents employers in labor relations, employee benefits and employment matters.

Work for Clients Mr. Piacquad’s practice includes counseling and representing individuals and employers in connection with labor and employment matters that arise in transactions, structuring employment relationships, including employment contracts, severance and separation agreements, and restrictive covenant agreements. He provides employment-based visa and immigration representation and advice to individuals and employers. Mr. Piacquad also represents and counsels a variety of employers in connection with employment discrimination and wrongful termination claims, issues under the National Labor Relations Act, employee benefits issues under the Employee Retirement Income Security Act, compensation issues arising under the Fair Labor Standards Act, development of personnel policies and procedures, and other employment-related issues. He assists and advises clients in structuring operations and transactions to permit maximum employment and labor law flexibility.

Mr. Piacquad has experience before federal and state courts and administrative agencies, including the United States Citizenship and Immigration Services, National Labor Relations Board, the Equal Employment Opportunity Commission, the Department of Labor, the Massachusetts Commission Against Discrimination and the Ohio Civil Rights Commission.

Professional Activities Mr. Piacquad is a member of the Boston, Ohio, Massachusetts and American Bar Associations.

Publications/Presentations Mr. Piacquad is a contributing editor to the fourth edition of the American Bar Association’s Covenants Not to Compete: A State-by-State Survey.

Bar and Court Admissions Mr. Piacquad is admitted to practice in the State of Ohio and the Commonwealth of Massachusetts.

Education J.D., Harvard Law School, 1990 (cum laude) B.A., Colgate University, 1984 (magna cum laude)

HEIDI GOLDSTEIN SHEPHERD Partner 617.570.8189

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Areas of Practice Heidi Goldstein Shepherd, a partner in the firm’s Labor & Employment Practice, has extensive experience representing the firm’s management and institutional clients in all aspects of the employment relationship. Ms. Shepherd has successfully represented clients in a variety of labor and employment litigation matters, including the defense of sexual harassment, discrimination, employee whistleblower and breach of employment contract actions arising under federal and state laws. She also counsels clients on a number of employment-related issues that arise in their day-to-day business activities including employee discipline and termination, compliance with the various federal and state statutes and regulations governing the employment relationship and the preparation of employment contracts and employee non-compete agreements.

Professional Activities Ms. Shepherd is a member of the Boston and Massachusetts Bar Associations. She was elected to the Order of the Coif while attending Boston College Law School.

Publications/Presentations Ms. Shepherd recently chaired a seminar focusing on the defense of employee whistleblower actions for the Massachusetts Bar Association. While attending law school, she was the Executive Editor of the Boston College Law Review.

Bar and Court Admissions Ms. Shepherd is admitted to practice in Massachusetts, and before the U.S. District Court of Massachusetts, U.S. Supreme Court and the U.S. Court of Appeals for the First and Sixth Circuits.

Education J.D., Boston College Law School, 1994 (magna cum laude) B.A., Georgetown University, 1989 (cum laude)

ALBERT J. SOLECKI, JR. Partner 212.813.8833

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Areas of Practice Al Solecki is the chair of Goodwin Procter LLP’s New York office, a member of the firm’s Executive and Allocations Committees and a partner in the firm’s Labor & Employment Practice. He counsels businesses on how to avoid legal claims by employees and represents employers when they are the target of employment-related litigation or administrative proceedings.

Work for Clients Mr. Solecki represents employers in all phases of labor and employment-related litigation. He appears regularly before federal and state courts and arbitration tribunals throughout the United States and has successfully defended employers in the consulting, construction, entertainment, financial services, manufacturing, oil and gas, pharmaceutical, publishing, sports, transportation and technology industries. Mr. Solecki also has extensive experience representing employers and senior-level executives as lead trial counsel in restrictive covenant litigations involving allegations of employee raiding, theft of trade secrets and breach of non-competition and non-solicitation agreements.

Mr. Solecki also counsels and advises employers on compliance with the ever increasingly complex web of federal, state, and local labor and employment laws and regulations. This counseling and advice ranges from drafting and reviewing general employment policies, employment agreements and employee handbooks to assisting with specific employee terminations and other employment-related decisions; from designing and implementing management seminars and training on new laws, regulations and court decisions to giving advice on difficult personnel actions such as plant closings, mass layoffs and the reduction or elimination of employee benefit programs.

Mr. Solecki has extensive experience in counseling employers on how to minimize legal exposure in the context of a reduction in force and has developed employee exit incentive programs for dozens of employers who have implemented reductions in force. Moreover, he regularly advises purchasers, sellers, and lenders on labor and employment law aspects of business mergers, acquisitions and restructurings.

Professional Activities Mr. Solecki was selected for inclusion in the 2006, 2007 and 2008 editions of New York Super Lawyers. He is a graduate of the National Institute of Trial Advocacy’s Trial Training Program and is an active member of the American Bar Association. Mr. Solecki is a member of the ABA’s Section of Labor and Employment Law as well as its Section of Litigation, and he serves on the ABA’s Trial Practice Committee, its Committee on Employment and Labor Relations Law, and its Committee on Pretrial Practice and Discovery. In addition, he is a member of the New York Management Attorneys’ Conference (an honorary society of management-side labor and employment law attorneys who have practiced exclusively in the labor and employment law field for more than ten years and who have distinguished themselves in this field).

Publications/Presentations Mr. Solecki has authored more than 20 published articles and book chapters on labor and employment law topics and regularly lectures on such topics. In addition, he is frequently quoted concerning labor and employment law trends in the general and legal media, including The New York Times, The Boston Globe, Investor’s Business Daily, Inc. Magazine, Human Resource Executive, The Employment Law Strategist, The New York Law Journal, The Boston Herald, Business Insurance and GC New York.

Professional Experience Prior to joining Goodwin Procter, Mr. Solecki was a member of the Labor and Employment Law Department at O’Melveny & Myers LLP.

Bar and Court Admissions Mr. Solecki is admitted to practice in New York.

Education J.D., Villanova University School of Law, 1990 B.S., Georgetown University, 1985

While attending law school, Mr. Solecki was Managing Editor of the Villanova Environmental Law Journal, a member of the Villanova Moot Court Board and the recipient of the Bureau of National Affairs Award for Scholastic Performance.