Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

New Rule on Election Procedures will Speed Up Union Elections

Posted in NLRB, Union Organizing

The NLRB has, after much anticipation, issued its “ambush election” or “quickie election” final rule.  A summary of the major provision in the rules can be found here.   The rulemaking, which followed a long and tortured procedural path, is a major overhaul of the procedures used to conduct secret Ballot Boxballot, union elections. These elections are an important path to union representation, and they will now occur more quickly after the election petition is filed. The result is not only harmful to employer interests, but to those of employees as well.

In commenting on the changes, the NLRB majority state that they “will streamline Board procedures, increase transparency and uniformity across regions, eliminate or reduce unnecessary litigation, duplication and delay, and update the Board’s rules on documents and communications in light of modern communications technology.”

Two NLRB members, Miscimarra (R) and Johnson (R), however, dissented from the final rule.  Their lengthy dissent begins with an introduction that captures many of the issues that the rules will likely raise, especially for employers.  The dissenting members believe that, among other things, the rule:

  1. Has the “primary purpose and effect” to conduct union elections as quickly as possible;
  2. Impermissibly conducts elections now, and hearings later, an approach twice rejected by Congress;
  3. Requires employees to “vote now, understand later,” by shortening the time for employees to understand relevant issues;
  4. Curtails the right of employers, unions and employees to engage in protected speech;
  5. Fails to demonstrate that there is a need for the rule given that substantially more than 90% of all elections currently occur within 56 days of election petition filing; and
  6. Improperly diminishes the NLRB’s role in the election process.

For the labor professional, the substantial changes from current practice found in the rule will have a decided impact on how employers prepare for and lawfully respond to union organizing activity. For example, the rule requires employers to provide significantly more information to a union and to do so earlier in the process than was ever the case before. Moreover, handling the question of who gets to vote in the election, and thus who will be represented by the union, is one that should get attention even before union organizing activity begins. These are just two of the parts of the rule that employers would be well-advised to consider addressing proactively.

Employers Must Allow Employees to Use Employer Owned and Operated Email Systems for Union Organizing

Posted in NLRB, Union Organizing

Since 2007, as a result of the NLRB’s Register Guard decision, an employer could lawfully limit the use of its email system by employees for certain non-business related activities, assuming that it applied the rule non-discriminatorily.  On December 10, 2014, in a 3-2 decision, the NLRB reversed the old rule established in Register Guard and established a new rule.  Now, employees must be permitted to use employer email for statutorily protected communications during nonworking time if they have access to employer computer systems for work.

EmailThe decision arose out of the NLRB’s review of the employer’s electronic communications policy.  The policy prohibited employees from using its email system to send uninvited emails of a personal nature and engage in activities on behalf of outside organizations with no work-related affiliation.  The employer assigned each of its employees an individual email account on its email system.  The employees used those accounts every day to perform their job duties. 

Because the policy was lawful under Register Guard, the NLRB found that the old rule in that case was “clearly incorrect.”  The NLRB relied upon three major points:

  • The old rule placed too much importance on employers’ property rights and too little importance on employees’ right to communicate about the terms and conditions of their employment.
  • The old rule failed to take into account the importance of email as a vital means of communication in today’s society.
  • Email systems are different from other types of workplace equipment, such as bulletin boards and copy machines that have limited space and capacity.  The NLRB has long permitted employers to prohibit non-business use of copiers and employer bulletin boards, again assuming that those rules are not applied in a discriminatory fashion.

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UAW Gains Recognition at Volkswagen

Posted in Union Organizing

It’s certainly unconventional for the U.S. labor movement, but the UAW scored a victory at VW in Chattanooga. VW has agreed to meet with the UAW bi-weekly to discuss work issues, after an accounting firm certified that the UAW represented over 45% of the workers in Chattanooga.

The UAW, however, is not the exclusive representative of the VW workers. The UAW is the first of what could be several organizations to be certified by VW to meet with management.

The UAW’s certification follows VW’s policy that its management will meet with any organization that is independently certified to represent at least 15% of a group of the Chattanooga workers. How often a group meets with management and what level of management attends the meeting are determined by the percentage of the group’s representation of workers. A group that represents between 15% and 30% can meet with the human resources department monthly. A group that represents between 30% and 45% of the workers can meet with the human resources department monthly and with a member of the Volkswagen Chattanooga Executive Committee quarterly. A group, such as the UAW, that represents over 45% can meet with human resources bi-weekly and the Volkswagen Chattanooga Executive Committee monthly.

VW’s unique policy of “Community Organization Engagement” was instituted several weeks ago and followed the UAW’s secret-ballot election defeat in February to be the exclusive bargaining agent.

Readers of this blog will remember that there were several groups of VW workers opposed the UAW during the NLRB election campaign. Whether those anti-UAW groups become certified under VW’s policy will be interesting to see.

The UAW could petition the NLRB for another secret ballot election to be the exclusive representative in April.

Senate Confirms New NLRB Member

Posted in NLRB

Earlier this week, the U.S. Senate confirmed Lauren McGarity McFerran (D) to take the place of Member Schiffer (D), whose term expires next week.  As readers of this blog will recall, the move came after President Obama withdrew the controversial nomination of Sharon Block (D), who became caught up in the unconstitutional appointment issue the Supreme Court resolved in Noel Canning.

While Ms. Block’s nomination generated controversy, it is not as if the nomination of Ms. McFerran generated a tidal wave of bipartisan support.  The vote broke down strictly along party lines, with Ohio’s senators splitting according to their party.  Senator Brown (D) voted to confirm Ms. McFerran and Senator Portman (R) voted against.

With the vote, the NLRB will remain at its full complement of members going into 2015 and the new, Republican controlled Senate.  The next vacancy on the NLRB will occur in August 2015 when Member Johnson’s (R) term expires.

Some Guidance on Independent Contractors

Posted in Independent Contractors

I recently wrote about how the NLRB has made it easier to establish employee status and correspondingly more difficult to establish independent contractor status.  In a recent publication, two of my partners outline some pros and cons of using independent contractors.  While they focus  specifically on the oil and gas industry, their observations are readily applicable to many industries.  It is important that these decision are made with full consideration of potential problems and the ever-looming and potentially significant risks of misclassification.  In addition to the many problems my partners talk about, like fines and citations by various government agencies and litigation from private plaintiffs, it is also important to remember that employees can form or join unions, but independent contractors can’t. 

When is Talk About Unions Lawfully Prohibited by a No-Solicitation Policy?

Posted in NLRB, Union Organizing

Many employers maintain a policy prohibiting solicitation and distribution.  Under long-standing law, these policies, if correctly drafted, can prohibit employees from engaging in certain types of union activity at certain times of the day.  A recent decision from the NLRB, however, makes it clear that these policies have their limits, and raises the question of whether this long-standing law will be modified in future cases.

The case, Conagra Foods, Inc., 361 N.L.R.B. No. 113 (Nov. 21, 2014), involved a union organizing drive at a plant in Troy, Ohio.  An active and open union supporter asked two other employees in a restroom if they would sign authorization cards.  Those employees indicated that they would.  A few days later, the union supporter placed union authorization cards in a locker, as they had previously discussed doing.  As the union supporter walked past the two employees on the production floor, she told them that the authorization cards were in the locker.  She did not ask either employee to sign the authorization card or even show them one.  Instead, she “merely informed” her coworkers that she had done what she told them she would do:  leave the authorization cards in a locker.  The interaction lasted no more than a few seconds. 

The employer gave a verbal warning to the union supporter for violating its no-solicitation policy.  The General Counsel did not allege that the employer’s policy itself was unlawful.  Instead, the NLRB examined the application of that policy to the union supporter.  The NLRB held that the employer could not lawfully apply its policy to the union supporter’s conduct “because her conduct did not constitute solicitation.”  The exchange on the production floor, which would have been the only exchange prohibited by the employer’s no-solicitation policy, merely informed the employees of where to find the authorization cards they had already agreed to sign.  There was no request that the employees sign those cards.  Moreover, the impact on production was minimal because the interaction only lasted a few seconds, one of the employees was waiting for a production line to start, and the other employee, who was cleaning, only stopped cleaning for a few seconds. Continue Reading

Remedies for Unfair Labor Practices: The NLRB’s Equivalent of a “Red Card”

Posted in NLRB

In soccer, as you MLS and Premier League fans know, a red card is issued for particularly egregious fouls.  If you have ever wondered how the NLRB responds to egregious instances of employer misconduct, wonder no longer.  In a recent case, the NLRB issued an equivalent of a “red card” to an employer who, according to the NLRB, engaged in a “10 year history of [NLRA] violations” before both the NLRB and federal courts.

The violations involved refusals to bargain, unilateral changes in working conditions, and disciplinary actions (including terminations) because of union activities.  I decided not to catalogue the violations the NLRB found here, as it would unduly lengthen this post.  A link to the case is here (pdf), and the curious reader can peruse the case at their leisure.

The interesting part of the case is the nature of the remedies that the NLRB ordered or considered.  A laundry list of them follows, along with references to the page number in the case where they are discussed for those interested in reading more:

  • Reimbursing the union and the government for the costs of litigating the unfair labor practice case, including the initial investigation of it all the way through the litigation before the NLRB (p. 3); Continue Reading

President Obama Withdraws Nomination of Sharon Block

Posted in NLRB

In an interesting move Wednesday, President Obama notified the U.S. Senate that he was withdrawing the nomination of Sharon Block to the NLRB.  In her place, the President nominated Lauren McGarity McFerran.

Ms. Block’s nomination cleared the Senate’s Health, Education, Labor and Pensions (HELP) Committee on an essentially party-line vote earlier this year.  The nomination of Ms. Block generated controversy as she was one of the individuals whose nomination the U.S. Supreme Court ruled unconstitutional in the Noel Canning case.

Ms. McFerran’s current post is as Deputy Staff Director to the HELP Committee.  Prior to that, Ms. McFerran held a different staff position with the HELP Committee.  She also practiced law for about three years at a Washington, D.C. firm known for its representation of unions and employees.

Unless the Senate acts quickly on the nomination, the President’s action means that the new Senate could take up the nomination.  If so, the hearings that will be conducted by the incoming Republican majority may provide an opportunity to raise concerns the employer community has about NLRB decisions over the last few years.  Even if she is not quickly confirmed, however, no “shutdown” of the NLRB is imminent.  Four other members, confirmed by the Senate, continue to serve their terms on the NLRB.

Not Every Facebook Exchange is Protected: NLRB Rules for Employer

Posted in NLRB

When employees take to Facebook with profanity-laced exchanges about their employer and job duties, odds are they will get fired.  When the same employees go to the NLRB for protection under the NLRA, they cannot count on a receptive audience all the time.  This much is demonstrated in an NLRB decision released last week.

In Richmond District Neighborhood Center, 361 N.L.R.B. No. 74 (Oct. 28, 2014), two activity leaders working at the Beacon Teen Center, an after-school program at a San Francisco High School, engaged in a profanity-laced Facebook exchange about work, detailing their intentions to refuse to obtain permission before organizing youth activities, disregard specific school-district rules, undermine leadership, and neglect their job duties.  The employees made numerous comments that they would organize “field trips all the time to wherever the fuck we want,” “teach the kids how to graffiti up the walls,” “take advantage” of their new supervisor, and “fuck it up,” referring to the Teen Center. 

After another employee sent screenshots of the conversation to management, the Center rescinded the employee’s rehire offers, explaining that the posted comments gave the Center great concern about the employees’ apparent intentions to disobey management directives and refuse to work with management, potentially endangering the Center’s youth participants.  The employees filed a charge alleging their statements on Facebook were protected under the NLRA.

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NLRB Will Not Take “No” For An Answer on Class and Collective Action Waivers

Posted in NLRB

A fine line exists between persistence and stubbornness.  Only time (and the United States Supreme Court) will tell how the NLRB’s latest controversial decision will be categorized.  In a 3-2 ruling, the Board in Murphy Oil USA, Inc., 361 N.L.R.B. No. 72 (Oct. 28, 2014) (pdf) strongly reaffirmed its position that employers may not utilize individual arbitration agreements that prevent employees from joining employment-related class or collective actions.

The NLRB first articulated this position in its D.R. Horton decision in January 2012.  Specifically, the Board held that participation in class or collective actions is protected concerted activity under the NLRA, and that D.R. Horton’s arbitration agreement impermissibly prohibited employees from engaging in this form of concerted activity.  The NLRB further argued that the right to participate in class or collective actions did not conflict with the pro-arbitration Federal Arbitration Act, which requires that arbitration agreements be enforced according to their terms. 

The Fifth Circuit Court of Appeals subsequently rejected the NLRB’s reasoning on multiple occasions and refused to enforce the D.R. Horton decision.  Numerous other courts, including the Second and Eighth Circuits, and the California Supreme Court, have also rejected the NLRB’s position.   

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