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

Last September, in a decision just in time for Labor Day, this blog introduced readers to the NLRA's restrictions on secondary boycotts.  In that case, the NLRB issued a union-friendly ruling holding that the display of large, stationary banners was not picketing.

Last week, the NLRB continued its development of the law in this area with its decision in Sheet Metal Workers International Association, Local 15 (Brandon Regional Medical Center), 356 N.L.R.B. No. 162 (May 26, 2011).  Once again, organized labor should be happy with the result.

The most recent case addresses the display of a large, inflatable rat.  The balloon measured 16 feet tall and 12 feet wide and had attached to its abdomen a sign with the primary employer's name on it.  The union placed the balloon on public property within 100 feet of a hospital's entrance to protest the hospital's use of a construction company that the union claimed was not meeting area standards for wages and benefits. Several union members stood next to the rat and passed out leaflets.  One leafletter stopped handing out his leaflets, however, and instead stood stationary near a vehicle entrance with his arms outstretched, displaying the leaflets.  When asked by hospital security what the union members were doing, a union organizer responded that they were "picketing."

In a 3-1 decision, the NLRB held that the display of the balloon and the stationary display of the leaflet was actually not picketing, and was therefore lawful.  The NLRB majority reasoned that the rat balloon and leaflet displays didn't block ingress and egress to the hospital or rely upon violence to intimidate the hospital.  The NLRB rejected the argument that the rat balloon was picketing because there was no element of "confrontation" -- the balloon was stationary and located sufficiently far away from the building and vehicular entrances.  Finally, the facts did not show that there was any non-picketing conduct that was nonetheless coercive, like shouting, mass gatherings, and the like.

Member Hayes again assumed the voice of the lone dissenter.  He argued that the message from the display of a "gigantic" rat was "unmistakably confrontational and coercive."  He also noted that the display was a signal to third parties that "there is, in essence, an invisible picket line that should not be crossed."  Finally, he noted that the essence of picketing, up until the NLRB's decision last September, was the posting of an individual at an entrance.  Moreover, he reasoned, holding out a leaflet was the functional equivalent of wearing a placard, which is something the NLRB has historically considered to be picketing.

For the labor professional working with employers, the NLRB's decision is yet more bad news.  Like its September 2010 ruling, the NLRB has again expanded the universe of permissible forms of pressure that unions can bring to bear on neutral employers.  Even the posting of an individual at a vehicle entrance displaying a leaflet is apparently permitted in at least some circumstances.  With the expanding scope of lawful union tactics in this area, the need for planning surrounding those activities will likewise continue to increase. 

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The NLRB, this time through its regional office in Buffalo, New York, has issued another complaint (pdf) against an employer in a case involving Facebook postings.  The employer alleged to have violated the NLRA is Hispanics United of Buffalo, Inc., a non-profit organization. 

According to the NLRB, employee "A" posted allegations of employee "B" to employee A's Facebook page.  The comments from employee B alleged that the employer did not do enough to help its clients.  Employee A's post then generated additional posts from other employees, who defended their job performance and complained instead about workload and staffing issues.  Hispanics United, upon learning of the posts, discharged employee A and the other employees (five employees in all) who responded to that post.  The employer appears to have reasoned that employee A's comments, and those of the other employees, constituted "harassment" of employee B.

As with the complaint previously issued by the Hartford regional office (covered last November on this blog), it is important to note that the complaint against Hispanics United is only an assertion that the employer violated the NLRA.  It doesn't constitute a finding by the NLRB that the alleged conduct occurred or that it was unlawful.  Nonetheless, it is a reminder for the labor professional of some important points: 

• Protected, concerted activity.  As this blog previously noted, "concerted activity" can be alleged to occur in a number of different contexts.  In the Hartford case, the concerted activity was complaining about one's immediate supervisor.  In this case, the concerted activity was the discussion of working conditions, specifically those dealing with workload.  Employers need to be vigilant in watching for disciplinary actions that could implicate protected, concerted activity.
• "Harassment" is not necessarily a defense.  Many employers maintain policies that are designed to prevent harassment in the workplace.  The Hispanics United complaint demonstrates that sometimes such a policy may not be a permissible basis on which to discipline an employee.  
• New media; old law.  Protection of concerted activity by employees is a bedrock principle of the NLRA.  The Buffalo complaint reinforces the observation this blog made when the Hartford complaint was announced:  lest there be any doubt, the regional offices will apply these "old" laws to new forms of employee communication just as aggressively as they did in the days of the water cooler conversation. 

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By Nelson Cary and Lauren Frame

Relying on decade-old precedent, the Ohio State Employment Relations Board (“SERB” or “Board”) issued a decision on April 28 that is very much a reflection of current economic times. In a 2-1 decision, SERB held that because the City of Toledo faced “exigent circumstances,” the City did not commit an unfair labor practice when it made changes to an existing bargaining agreement without negotiating with the union. SERB v. City of Toledo, SERB 2011-001 (4-28-2011) (pdf).

The City of Toledo modified its existing agreement with the Toledo Police Command Officers’ Association (“Union”) by unilaterally increasing Union members’ healthcare premiums and rescinding the City’s 10% payment into the Union’s pension fund. The City argued that the existence of exigent circumstances necessitated the changes and, therefore, the City’s unilateral implementation without bargaining or reaching agreement with the Union did not constitute an unfair labor practice. 

Generally, decisions involving mandatory subjects of bargaining (e.g., wages, hours, and terms and conditions of employment), must be bargained before implementation, except where “emergency situations,” render prior bargaining impossible. In re Toledo City School Dist. Bd. of Ed., SERB 2001-005 (9-20-2001) (“Toledo Schools”). “[E]xigent circumstances that were unforeseen at the time of negotiations” constitute “emergency situations” within the meaning of Toledo Schools. Id. at 3-29. Thus, the question for the Board was whether the City needed to act immediately due to exigent circumstances, unforeseen at the time of negotiations.

Following an assessment of the City’s dire economic situation and noting the “predicament” the City faced, including a 24% funding deficit unforeseen at the time negotiations began and a budget that must be balanced, the Board concluded that this “certainly fits the description of exigent circumstances.” City of Toledo, SERB 2011 at 11. Accordingly, SERB concluded that the City did not commit an unfair labor practice.

To those labor professions who have followed the discussion related to Ohio Senate Bill 5, the law that reforms Ohio’s public employee collective bargaining rules, SERB’s decision, which hinges on the determination of “exigent circumstances,” may sound familiar. Indeed, Senate Bill 5 contains provisions which effectively permit an employer in a state of “fiscal emergency,” as determined by the auditor of the state, to terminate, negotiate, or modify an existing collective bargaining agreement, including modification of the agreement to suspend established salary or benefit increases, or both. Perhaps SERB v. City of Toledo is an indication that even without Senate Bill 5, public employers in dire economic situations may find some relief from stringent collective bargaining agreements via the SERB’s interpretation of “exigent circumstances," assuming that the case is not overturned on appeal or reversed by a future Board with different members.

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Fresh off his controversial decision to challenge Boeing for deciding to locate a new manufacturing facility in South Carolina instead of utilizing its existing unionized workforce in Washington, the NLRB's Acting General Counsel Lafe Solomon has announced a federal lawsuit against Arizona.  At issue is an amendment to the state's constitution that Arizona voters approved only last November.  The complaint asks the court to issue a declaration that the Arizona law is unconstitutional.

The complaint (pdf) filed in the United States District Court for the District of Arizona alleges that the state law "guarantees" a secret ballot vote in a union election.  The NLRA, however, does not require a secret ballot vote in order for an employer to recognize a union.  For example, an employer may chose to voluntarily recognize a union if the union can demonstrate support from a majority of employees.  Therefore, reasons the AGC's complaint, the state law conflicts with federal law and it is preempted by the supremacy clause of the U.S. Constitution. 

South Dakota is apparently the AGC's next target.  Two other states that passed similar laws, South Carolina (as noted above, where Boeing located its new airplane manufacturing operation) and Utah, are mentioned in the press release as well.  The AGC has "reserved the right" to sue them, but the press release announces no specific plans to do so anytime soon.

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In New York New York Hotel & Casino, 356 N.L.R.B. No. 119 (2011), the Board expanded the right to handbill on private property.  The party accused of wrongdoing in this case was a casino.  Completely within the casino's property, a different employer, pursuant to a subcontract with the casino, operated a restaurant.  The restaurant's employees were attempting to organize a union. 

To get their message out, off-duty employees of the restaurant distributed handbills within the casino.  Because the distribution was taking place on its private property, and the employees engaged in the distribution were not the casino's employees, the casino asked the handbillers to stop.  When they declined to do so, the casino contacted police and charged the employees with trespassing.

The NLRB held that the casino's action was unlawful.  The NLRB, balancing the property rights of the owner against the NLRA-protected rights of the employees, announced a new test.  A property owner may prohibit off-duty employees of a subcontractor from engaging in handbilling to customers only where (1) it can demonstrate that the activity of the subcontractor’s employees “significantly interferes” with the owner’s use of the property; or (2) there is another legitimate business reason to justify the exclusion. In this case, the casino could not demonstrate that these criteria were present.  Accordingly, their actions were unlawful.

NLRB Member Hayes dissented from this decision.  He believed that restaurant employees should be required to show that they had no other reasonable way to communicate with their fellow employees or the customers of the restaurant.  Only then should the organizational rights of the employees trump the private property rights of the owner.  Member Hayes' test is drawn from the well-established property access rule applicable to non-employees, like union organizers.

For the labor professional, the NLRB's decision has significant implications.  No longer can an employer assume that all non-employees may categorically be excluded from private property.  Rather, if the non-employees sought to be excluded have some connection with the property, they may have rights under the NLRA.  Employers and property owners in industries where subcontracting is present, such as the hospitality and retail industries, should be particularly mindful of the new rule the NLRB announced in this case.

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