Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

Court Determines that Employer’s “Out of the Ordinary” Communication was Lawful

Posted in Management, Union Organizing

A federal appellate court recently reigned-in the NLRB’s attempt to limit an employer’s response to union activity.  The case, Intertape Polymer Corp., previously covered on this blog, arose in the context of a union organizing drive.  As discussed in our prior post, the NLRB decided that the employer engaged in unlawful employee surveillance, confiscation of union literature, and interrogation. Based on the surveillance and confiscation allegations, the NLRB ordered a new election.

The most important issue presented to the court, and the most problematic holding to come out of the NLRB’s decision in the case, was whether the employer engaged in unlawful surveillance. Regular readers of this blog will recall that the employer distributed leaflets at its main gate. On some occasions, union supporters showed up to distribute leaflets at the main gate as well, in view of the supervisors distributing the company’s leaflets.

The NLRB held that the employer’s leafleting was “out of the ordinary” compared to its previous methods of communicating with employees, and because it placed union leafleting under surveillance, was unlawful. The court rejected this reasoning, holding that the employer had a right to express its viewpoint through leafleting. Significantly, the employer did not take any coercive actions (e.g., photographing or recording the employees, attempting to pressure employees not to take the union leaflets, or recording which employees took the union’s leaflets). Moreover, the employer’s purported surveillance was brief and simultaneous with pro-union efforts. Continue Reading

Electronic Signatures for Union Authorization Cards Get a Green Light

Posted in Elections, Union Organizing

The last several years have seen significant decisions benefiting unions announced around Labor Day.  This year was no different.  There was the more easily satisfied joint employer test and a decision allowing dues checkoff provisions in a union contract to survive the expiration of that contract.  (More on that development coming soon!)

Add to these a new guidance memorandum (pdf) from the NLRB’s General Counsel (GC).  In the “quickie” or “ambush” election rulemaking, the NLRB directed the GC to issue guidance on whether electronic signatures should be accepted for the showing of interest required of a union.  This showing of interest is the threshold demonstration of support a union needs in order to get a secret ballot election.

The GC, in a memorandum released to the public earlier this month, has concluded that electronic signatures will be accepted.  An electronic signature must provide a Regional Director with “prima facie evidence (1) that an employee has electronically signed a document purporting to state the employee’s views regarding union representation and (2) that the petitioner has accurately transmitted that document to the region.”  In such cases, the electronic signatures are presumed to be valid. Continue Reading

It’s All About Control: NLRB Expands Key Joint Employer Rule

Posted in NLRB, Union Organizing

The NLRB dealt a blow to employers yesterday, releasing its long-awaited decision in Browning-Ferris Industries. In a 3-2 decision (pdf), the NLRB rolled back nearly thirty years of case law to “restate” its joint employer standard.  The result:  a far more expansive test that is centered firmly on the question of control — even indirect or potential control — over a work force.

At issue in the case was a Browning-Ferris Industries (“BFI”) waste recycling plant. BFI hired a staffing agency—Leadpoint Business Services—to provide some of the workers for the facility. The dispute arose when the Teamsters attempted to unionize the plant, arguing that BFI was the joint employer of Leadpoint’s workers. The NLRB sided with the union.

In doing so, the NLRB announced that it will find two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law and they share or codetermine the essential terms and conditions of employment, which include, but are not limited to, wages, hiring, firing, discipline, scheduling, or assigning work.

This test was first announced about 30 years ago. The NLRB majority claimed, however, that this standard has been impermissibly and inexplicably narrowed over the years to exclusively focus on an employer’s actual exercise of control instead of the contractual right of an employer to control essential terms and conditions of employment. Therefore, while claiming to simply “restate” and “reaffirm” the existing test, the NLRB overruled the decisions it claimed had improperly narrowed the test.

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Contentious Negotiations Ahead for Detroit 3 and UAW

Posted in Benefits, Negotiations, Unions

Within the next two weeks, the GM, Ford, and Fiat-Chrysler will begin the serious negotiations for new collective bargaining agreements.  The ceremonial opening of these negotiations occurred last month.  The current agreements expire on September 14, and all sides face serious issues.

During the 2011 negotiations, two of the three companies were being bailed out by the U.S. taxpayers.  As part of the 2011 bailout and the bankruptcies, the UAW was forced to give up its right to strike.  The UAW now has its strike rights back, and the three companies are profitable.

Two significant issues will likely dominate the negotiations:

  • Wages: As part of the 2011 bailout, the UAW agreed to a two-tiered wage system.  New hires are paid about $10 less than the existing UAW members.  The new hires are paid around $17 per hour, and the top-tier receives about $28 per hour.  The UAW wants pay back for agreeing to this lower wage tier when the companies were down.  What will happen to the two-tier wage system?  Will the upper tier get a raise?
  • Health Insurance: Under the Affordable Care Act (ACA or ObamaCare), health insurance plans with rich benefits and high costs will be taxed in 2018.  The so-called “Cadillac Tax” under the ACA is not a tax on luxury cars, but is a 40% excise tax on “luxury” health insurance plans.  Generally, the tax is 40% of the cost of a health insurance plan in excess of $10,200 for single coverage or $27,500 for family coverage.  The IRS is currently determining how to compute the tax.  All employers would like to avoid this Cadillac Tax.  Whether the Detroit 3 and UAW can fashion a way to avoid, or at least minimize, the tax remains to be seen.

The UAW just received several pieces of stinging news.  Mitsubishi will close its UAW plant in Normal, Illinois.  It was originally a joint venture with Chrysler.  With the closure, 1,200 UAW members will be laid off.  Also, Ford announced that it is expanding its manufacturing operations in Mexico.

The UAW wants to deliver some good news to its membership, and the Detroit 3 wants to stay profitable.  It should be an interesting set of negotiations.

Northwestern Football Players Lose Effort to Unionize: NLRB Declines to Exercise Jurisdiction

Posted in NLRB, Union Organizing

Earlier today, the long-running saga of whether NCAA Division I football players are employees under the NLRA came to an end — at least temporarily.  The NLRB unanimously declined to exercise jurisdiction over Northwestern University’s scholarship football players and dismissed the union election petition.

In January 2014, Northwestern University’s scholarship football players filed a petition with the NLRB seeking representation for the purpose of collective bargaining.  They argued that they were employees.  In March 2014, an NLRB regional director in Chicago agreed and ordered that an election be held, sending shockwaves through the NCAA football world.  Northwestern requested that the NLRB review the potentially massive decision, and the NLRB has been considering the matter for more than a year.

The NLRB’s decision did not address the central question of whether Northwestern’s players — or any other group of NCAA athletes, for that matter — are employees.  Instead, it decided that asserting jurisdiction over the issue would not effectuate the policy of the NLRA, which is to promote stability in labor relations.   The NLRB cited the high degree of control the NCAA exercises over how the scholarship athletes practice and play.  It also noted that the vast majority of NCAA — and Big Ten — member institutions are public universities over which the NLRB cannot assert jurisdiction.

While this is a win for Northwestern and — by extension — the NCAA, it may not have settled the issue over the longer term.  Arguments about whether NCAA Division I student-athletes are employees, and therefore entitled to compensation, continue to swirl.  With the NLRB not only sidestepping that question, but also limiting its decision to the Northwestern petition, labor professionals may not have heard the last of this issue.  For example, the NLRB explicitly noted that it was not addressing what it might do with a petition for all scholarship football players (or at least those at all private universities) in the NCAA Division I Football Bowl Subdivision.

NLRB 2, Employers 0: The Election Rule Wins Again

Posted in Elections, Rulemaking, Union Organizing

Another federal court, this one in Washington, D.C., has come down on the side of the NLRB’s new election rule.  Deciding a case the U.S. Chamber of Commerce and several other employer organizations filed, and to which one employer was added, the court found that the NLRB did not act “arbitrarily or capriciously” in issuing the election rule.

As readers of this blog know, the NLRB’s rule – sometimes referred to as the “ambush election” rule – has been in effect since April 14, 2015.  It makes numerous modifications to the election procedures the NLRB has followed for decades.  The intent of those changes is to speed up the process between filing an election petition and holding a secret ballot election.  Initial data suggests that the NLRB has succeeded in that goal.

The decision is lengthy (pdf).  Those with a particular interest may want to read all 72 pages.  In summary, however, the Chamber and the other plaintiffs alleged that the election rule violated the NLRA, as well as the First and Fifth Amendments to the U.S. Constitution.  They also argued that it was arbitrary and capricious under a federal law governing the review of administrative agencies actions.

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Requesting Police Enforcement of Trespass Law is a “Petition” to the Government

Posted in Courts, Unions

The First Amendment to the United States Constitution protects the right of the people “to petition the Government for a redress of grievances.”  Courts have concluded that when a person petitions the Government in good faith, the First Amendment prohibits any sanction for that conduct.  Applied in the labor law context, therefore, employer conduct that would other­wise be illegal may be protected by the First Amendment, and thus legal, when it is part of a direct petition to the Government.

In a case involving a Las Vegas hotel, a federal court of appeals recently applied these concepts.  As a result of what was then an ongoing battle between the hotel and two different labor unions, the labor unions decided to hold a large demonstration on one lane of the road in front of the hotel, and on a temporary walkway adjacent to the road.  As over a thousand demonstrators marched on the walkway, the hotel asked police officers to issue criminal citations to the demonstrators and to block them from the walkway.  The hotel maintained, based upon a property quirk arising from the construction of the hotel, that the walkway on which the demonstrators were marching was private property.

Examining the constitutional question of whether the request to police officers present on the scene was a “petition” to the Government, the Court held that it was.  “Requesting police enforcement of state trespass law is an attempt to persuade the local government to take particular action with respect to a law.”  Accordingly, even if the request to the police officers was illegal under the NLRA, it would be protected by the First Amendment. Continue Reading

Court Disagrees with NLRB Ruling on Dress of Customer-Facing Employees

Posted in Employee Discipline, NLRB, Union Insignia

More than four years ago, the NLRB gave priority to an employee’s right to wear clothing with messages critical of their employer over an employer’s interest in its reputation with T-Shirtcustomers.  In a case involving AT&T employees, the NLRB ruled that an employer violated the law when it prevented its service technicians, when visiting customer homes, from wearing a t-shirt critical of the company.  My blog post on the original decision describes the t-shirt.

On Friday last week, the federal court of appeals in Washington, D.C. overruled the NLRB’s decision.  Noting that “[c]ommon sense sometimes matters in resolving legal disputes,” the Court found that the prohibition on wearing the t-shirt was lawful.  Accordingly, the employer was within its rights to suspend 183 employees for one day when they failed to comply with the employer’s instruction to remove the t-shirt. Continue Reading

Surely a Tugboat Captain is a Supervisor Under the NLRA, Right? Not Necessarily!

Posted in NLRB, Supervisors, Union Organizing

A tugboat captain is responsible for the safe operation of the vessel, its crew, and its cargo.  The captain has deckhands available to help with that operation, and can tell those Tugboatemployees what to do and when to do it.  Surely, therefore, it would seem that a captain should stand a pretty good chance of qualifying as a “supervisor” under the NLRA.

A recent NLRB decision, however, is a reminder that supervisory status can’t simply be assumed.  It must be proven.  And that can be difficult.

In the context of a union election petition, the NLRB needed to decide whether tugboat captains were “supervisors” under the NLRA.  If so, then the captains could be excluded from the bargaining unit.  To be a supervisor, however, the employee must exercise, or effectively recommend the exercise of, at least one of 12 different powers, and do so using “independent judgment” in the “interest of the employer.”

The recent case involved the authority to “assign” work and “responsibly to direct” other employees in the performance of work.  The NLRB majority held that the employer failed to prove that their tugboat captains had these powers.  As in all cases involving supervisory status, there is a substantial amount of detail.  Those interested in the detail can read the full decision (pdf). Continue Reading

Termination for Dishonesty During Internal Investigation Lawful, Says NLRB

Posted in Employee Discipline, NLRB

In a positive development for employers, the NLRB held last week that the termination of an employee for lying during an internal investigation into complaints of harassing/discriminatory conduct was lawful.  Significantly, the decision occurred in a case that had been vacated as a result of Noel Canning.

First, a quick review of the facts.  The employee at issue was a union supporter.  During the campaign, the employee scribbled messages on union literature that were “vulgar, insensitive, and, in isolation, arguably threatening….”  The employer, in a “good faith response” to a complaint from several female employees, conducted an investigation to determine whether the employee violated its sexual harassment policy.  During the ensuing investigation, the employee lied twice.  More details, including what the employee wrote, can be found in our post on the earlier decision.

The NLRB previously held that the termination was unlawful.  That decision was subsequently among the hundreds that were vacated as a result of Noel Canning.  While the vast majority of these cases ended up coming out exactly the same way, the NLRB actually (and thankfully, for employers) reversed course in this case.

The NLRB side-stepped the question of whether the employee’s vulgar scribbling constituted protected conduct, assuming for the sake of argument that it was protected.  Instead, the NLRB focused only the termination.  It concluded that the termination was lawful because:

  • the employer had a legitimate business interest in investigating the conduct, namely the enforcement of its anti-harassment policy and compliance with anti-discrimination laws;
  • the employer conducted its investigation in a manner that was consistent with its purpose, truthfully explaining the purpose of the interview and tailoring its questions to avoid inquiry into protected conduct;
  • there was no credible evidence that the investigation took place in the context of hostility towards union activity; and
  • the employee had no reasonable basis on which to believe that the employer was trying to pry into his union activity, and thus he was not privileged to lie (as the NLRB had previously held).

The NLRB also examined the employer’s reason for termination.  The employer admitted that one reason for the termination was what the employee wrote.  Thus, the NLRB analyzed whether the employer would have fired the employee solely for the dishonesty.  The NLRB concluded that the employer would have done so as the employer was able to present evidence that it did so in a prior situation that did not involve union organizing.

The NLRB’s change of course is certainly welcome news for employers.  Given the NLRB’s reasoning, however, a two key points bear mention:

  • Discipline consistently.  The employer won because it could demonstrate that other employees were fired for dishonesty alone.  If the employer had not been consistent on this issue, it could have undermined its position in the case.
  • Investigate carefully.  A crucial fact in this case was the complaints from other employees about the scribbling, and the employer’s ensuing investigation, which itself was carefully crafted to focus only on the complained of conduct.  Had the employer overreacted to the complaints, for example, by launching a “dragnet” style investigation, the outcome would likely have been different.