Vorys on Labor : Labor Relations Lawyer & Attorney: Vorys, Sater, Seymour and Pease Law Firm: National Labor Relations

Recently, the NLRB issued a notice inviting interested parties to file briefs on whether an employer violates the NLRA by denying union access to its property to distribute handbills while permitting other individuals, groups, or organizations to use its property for various fundraising or solicitation activities.

The question arose from an unfair labor practice case involving Roundy’s, Inc, a grocery store operator, and the Milwaukee Building and Construction Trades Council. In 2005, the Council engaged in handbilling in front of 26 Roundy’s stores, asserting that Roundy’s was building and remodeling stores with nonunion contractors that did not pay prevailing wages and benefits. Roundy’s took measures to remove the Council members, including calling the police.

The Council then filed an unfair labor practice charge against Roundy’s, accusing the company of violating Section 8(a)(1) of the NLRA, which prohibits employers from interfering with, restraining, or coercing employees in the exercise of rights under federal labor law. The NLRB found that, in 23 stores, Roundy’s did not have a sufficient property interest to exclude the Council’s handbillers. Consequently, it found a violation of the NLRA with respect to these stores.

In two of the three remaining stores, the NLRB found that a sufficient property interest had been established. However, the evidence revealed that, at these stores, Roundy’s had permitted various organizations and individuals to solicit and distribute literature, including the Salvation Army, Boy Scouts, Girl Scouts, political candidates, and others. 

To further address whether Roundy’s unlawfully excluded the Council’s handbillers at these two stores, the NLRB issued a decision and an invitation for interested parties to file briefs on one or more of the following three issues:

1.      In cases alleging unlawful employer discrimination in nonemployee access, should the Board continue to apply the standard articulated by the NLRB majority in Sandusky Mall Co.?

2.      If not, what standard should the NLRB adopt to define discrimination in this context?

3.      What bearing, if any, does Register Guard, 351 N.L.R.B. 1110 (2007), enf. denied in part, 571 F.3d 53 (D.C. Cir. 2009), have on the NLRB’s standard of finding unlawful discrimination in nonemployee access cases?

Labor professionals should take note of this decision for at least several reasons:

1.      The NLRB’s ruling could have a major effect on the extent to which an employer can limit union solicitation and distribution on property they own or control. The NLRB has long held that an employer cannot “discriminate” against union-oriented solicitation or distribution. But there has been considerable disagreement over what the term “discriminate” means in this context. A broad interpretation will mean that an employer that permits Girl Scout cookie sales but prohibits union solicitations has violated the NLRA.

2.      By referencing Register Guard, the NLRB may be setting the stage for overruling the portion of that decision that gave a narrow interpretation to the concept of discrimination. On the other hand, all four NLRB members, including the Republican appointee, joined in the decision to further explore the appropriate meaning of the term. 

3.      The Register Guard case involved employee solicitation. Roundy’s prohibited solicitation by non-employees. The second question, with its reference to “this context,” suggests that the NLRB would consider applying a different standard of “discrimination” to nonemployee solicitation and distribution. What this standard may be, and how it may affect employer interests, will be important for labor professionals to monitor.

4.      Before taking action against nonemployees, make sure that the employer has the property right to do so. If the employer doesn’t have a sufficient property interest, the NLRB’s decision is an important reminder that the "discrimination" question isn't even reached.

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In a press conference yesterday afternoon, Governor-Elect John Kasich discussed Ohio's public sector bargaining process.  The comments suggest that change may be on the horizon when it comes to binding interest arbitration for certain public employees.

Ohio law presently limits the right of certain employees to strike.  These employees typically hold safety sensitive positions, like police officers and fire fighters.  To settle disputed bargaining issues in these units, the law establishes a procedure that requires an arbitrator to hear disputed issues, and then pick the union's proposal or the public employer's proposal.  This process is referred to as interest arbitration or conciliation.

At the press conference, the following exchange took place, according to video on The Columbus Dispatch's website:

Q:  Now that you have Republicans in the House and a big Republican majority in the Senate, do you have any plans to try to scale back the power of labor unions?

A:  . . . I'm not going to get into trying to pick on anybody right now.  In terms of what I am concerned about is I'm concerned about the impact of binding arbitration on our cities.  You have a situation where an outside person comes in, they mandate settlement on a community, the community has no say, and then that arbiter leaves.  That's a flawed system.  We intend to take a look at that because that binding arbitration is really hurting cities. . . .  This is a very big problem and that's one thing that we are going to look at in terms of labor. . . .

With only two days having passed since the election, it is obviously too early to predict what the newly elected governor or his team may have in mind.  If existing law were to change, however, and depending on how the law changed, the implications for public employers could be substantial and multi-faceted.  It is certainly an issue that labor professionals in the public sector will want to monitor closely over the coming months.

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Employee use of social media causes labor professionals problems with increasing frequency.  Facebook pages, Twitter feeds, and similar outlets seem to provide a never ending stream of possible employee relations scenarios.  In an effort to deal with these issues, many businesses have adopted policies governing employee use of these internet resources.  In addition to addressing the employee relations issues, employer's see these policies as a way to protect their reputation and/or brand.

As employers grapple with these issues, however, courts and agencies do as well.  The NLRB is no different.  A good example was made public last night from the NLRB regional office in Hartford, Connecticut.  The regional offices are responsible for prosecuting alleged violations of the NLRA.  The Hartford office announced that it has issued an unfair labor practice (ULP) complaint (pdf) -- an allegation that the employer violated the NLRA -- against an employer who disciplined an employee for comments on her Facebook page.

The complaint alleges that a supervisor asked an employee to meet to discuss what the employee thought could lead to discipline against her.  The employee requested union representation, which was denied.  Later that same day, the employee posted critical comments about her supervisor on the employee's Facebook page.

The complaint further alleges that the employer fired the employee for her comments on the Facebook page.  The employer's blogging and internet posting policy prohibited employees from making disparaging comments about the employer and supervisors.  The employer's policies also prohibited "rude or discourteous" treatment of a coworker.

It is important to note that the Hartford office's complaint is merely that:  an assertion that the employer's conduct was unlawful.  It doesn't constitute a finding by the NLRB that the alleged conduct occurred or that it was unlawful.  Nonetheless, the complaint serves as an important reminder of at least three points:

• Protected, concerted activity.  The complaint asserts that the employee's comment on the Facebook page was "concerted activity"  under the NLRA.  Employers are not permitted to discipline employees for engaging in protected, concerted activity.  This case reminds all employers that this activity can be alleged to occur in a number of different contexts.
• What your policies say matter.  The complaint attacks not only the employer's discipline, but also the policy itself.  Employer policies can be phrased in a fashion that is overly broad under the NLRA, thus violating federal law.
• New media; old law.  Protection of concerted activity by employees is a bedrock principle of the NLRA.  In the event there was any doubt, this complaint suggests that the regional offices will apply those laws to new forms of employee communication just as aggressively as they have in the days of the water cooler conversation. 

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Earlier this week, we identified three things the labor professional may want to look for in the mid-term elections.  The election is over and most, but not all, of the results are in.  Of the three things identified on our earlier post, we can report results on two of them.

First, the state constitutional amendments designed to protect the secret ballot in a union election proposed in four states all passed by substantial margins.  In Utah, the vote was 60% to 40% in favor.  Arizona's Proposition 113 passed by a similar margin.  In South Carolina, Amendment 2 passed by a whopping 86% to 14% margin.  Finally, in South Dakota, Constitutional Amendment L passed by a 79% to 21% margin.  Clearly, voters in those states prefer the secret ballot, even when it comes to union representation elections.

Second, in the two U.S. Senate races identified, the results of the race in Colorado are very close.  Democratic incumbent Michael Bennet leads his Republican challenger Ken Buck by about 7,000 votes, with some ballots still to be counted.  In West Virginia, Democratic candidate Joe Manchin beat his Republican challenger with 53% of the vote.  Both distanced themselves from EFCA during the election.

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With card check recognition all but dead, the UAW is trying to take matters into its own hands in re-writing rules for union elections. A couple of months ago, UAW President Bob King stated the following during an auto industry speech about the “Free Choice Act” and his notions for principles for fair union elections:

While the UAW strongly supports the Employee Free Choice Act, we will not passively sit and wait for its passage. In our strongest historical traditions we will take direct action now in every way we can to protect all workers in exercising their First Amendment Rights.

The UAW does believe in the principle of the fair secret ballot election in which workers can decide freely whether or not to join the union.

Therefore, we are crafting a set of guidelines called the UAW Principles for Fair Union Elections. These principles are being adopted from guidelines developed by the Labor/Management Institute for Employee Choice.

* * *

We will soon be unveiling these principles, and we will present them to the executives within the industry who are not currently unionized. We will ask them to sign on to these principles. If a company agrees to adopt the UAW Principles, and then abides by these principles, we will respect the decision of their workers whether they vote to join the union or not.

We have now seen the UAW’s Principles appearing in several UAW campaigns. The UAW’s Principles are as follows:

UAW Rules for Fair Campaign

In the spirit and traditions of American Democracy, the workers and the management of XYZ Company agree to respect the right of each worker to make a decision to vote in an atmosphere free from fear and intimidation. Toward that end, both parties agree to the following:

1.         Because the primary purpose of XYZ is to produce the best quality product, both the union and company pledge to remember that the primary purpose of this company is to produce the best quality product possible. 

2.         The election campaign will be free from fear, intimidation, harassment, discrimination, surveillance, interrogation and any other activity which interferes with free exercise of election rights.

3.         To further protect the company and its need for productivity, there will be no campaigning that interferes with work. No one will be taken off his or her job or away from his or her duties to discuss the campaign, either pro or con. 

4.         All meetings about the election – either individual or group – will be strictly voluntary. If the employer chooses to hold meetings on company time union supporters shall be granted a meeting of equal length to present the union’s position. Equal time, equal representation to match the employer’s presenters and/or guests.

5.         The union supporters shall be granted equal posting rights. This means that if the employer can post any material in opposition to employees having a voice, then the union supporters may post material of equal size and length.

6.         In the event an anti-union consultant is hired or continues to be retained by the company, the name of the consultant will be made public, and a full and public accounting will be made of all money paid or committed to the consultant (as provided by the U.S. Department of Labor). 

7.         None of the supervisors will be punished or discriminated against by refusing to campaign against the workers wanting to form their local union.

To our knowledge (but not to our surprise), no employer has agreed to these principles.   

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