The National Labor Relations Board found that a union committed an unfair labor practice by repeatedly blocking ingress and egress to a hotel for periods of one to four minutes. The opinion provides details about the union’s picketing efforts as a part of an organizing campaign. The blockage occurred during at least ten separate occasions over the course of more than a month. The Board adopted the ALJ’s decision holding that the picketers’ actions of standing in front of vehicles for minutes at a time, many driven by hotel valets, attempting to enter and/or exit the hotel violated Section 8(b)(1)(A) of the National Labor Relations Act.

As the dissent notes, this decision is significant because there were no allegations of violence and because the blockage lasted such short periods of time. Regardless, the Board determined that the union’s repeated, intentional blockage of drivers, including employees, would reasonably tend to coerce or intimidate employees in the exercise of their Section 7 rights.

Although injunctive relief was not sought in this situation, the NLRB’s decision in Unite Here! Local 5 (Acqua-Aston Hospitality, LLC) provides management with support for prompt relief in similar circumstances. Contact Husch Blackwell’s Labor and Employment team with any questions or to discuss options for responding to union activity in your business.

As anticipated, the nationwide trend of enacting “right-to-work” (RTW) legislation has continued to grow – in the past few years alone, Indiana, Michigan, Wisconsin, West Virginia, and Kentucky have joined the growing list of RTW states. In these states, and the approximately twenty others that have adopted RTW legislation, employers are prohibited from requiring employees to join a union or pay union dues as a condition of employment. Although Missouri adopted RTW legislation in 2017, it is currently postponed and will be subject to a public vote in 2018.

Pundits have long claimed that over time, RTW laws tend to weaken a union’s bargaining power by slowing chipping away revenue and support from employees who do not wish to be represented and elect not to join the union. For example, Wisconsin – which was once among the strongest union states in the nation – has seen a drop in its private sector union membership from nearly 16% in 2009 to just 8.1% in 2016, which is below the national average hovering around 11%. Union membership has similarly dropped in most other RTW states over time.

Of course, RTW legislation does not prevent unionization of private sector workplaces. Employees still have the right of self-organization, the right to join, form, or assist labor organizations, and the right to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection.  Additionally, employees who are in the bargaining unit but do not pay union dues are still entitled to all the same benefits under the labor contract as their dues-paying counterparts. Despite these protections under federal law, adoption of RTW legislation at the state level has been and continues to be welcome news for employers nationwide.

 

On December 14, 2017, the National Labor Relations Board (the “NLRB” or the “Board”) overruled Obama-era precedent involving two highly controversial decisions governing employee handbooks and joint employment standards.

Earlier this year, President Trump appointed two Republicans to the five-member NLRB resulting in a 3-2 Republican majority for the first time in a decade.  As anticipated, the new “Trump Board” is beginning to dismantle a series of decisions that many believed to unfairly favor unions.

New Standard Governing Employee Handbooks

In a split 3-2 decision, the Board majority in  . overturned its 2004 Lutheran Heritage standard, which had been used in recent years to render countless employer policies and rules unlawful.  The former standard provided that a policy or rule is unlawful if employees could “reasonably construe” the language to bar them from exercising their rights under the NLRA, such as discussing terms and conditions of employment.  For the past several years, the Lutheran Heritage standard has been heavily criticized for failing to take into account legitimate business justifications associated with employer policies, rules and handbook provisions in addition to yielding unpredictable and sometimes contradictory results.  For example, the standard has deemed unlawful policies that require employees to “work harmoniously” or conduct themselves in a “positive and professional manner.”

Continue Reading NLRB Overturns Pro-Union Precedent Governing Employee Handbooks and Joint Employers

The NLRB today announced it is requesting Information from interested parties regarding whether or not the 2014 Election Rules should be retained in any fashion or at all.  No doubt this is a heads up that these rules are going to have a short life span with the Agency.  This will be a very public battle and further information regarding the Board’s actions will be made available as they develop.

It is not unusual on construction sites, where you have a variety of different employers present, that disputes erupt that impact the entire work site. Sometimes this can result in a number of different forms of employee protest and this decision by an Administrative Law Judge, which issued on December 8, 2017, provides a good framework for analyzing what is lawful versus unlawful conduct by an employer in responding to such activity.

Continue Reading NLRB – Project Manager at Work Site May Lawfully Monitor Misconduct

Peter Robb, the new General Counsel for the NLRB, issued GC Memo 18-02 on December 1, 2017 that puts the Regional Offices on notice that any “significant legal issues” are to be submitted to Advice. Significant legal issues are defined to “include cases over the last 8 years that overruled precedent and involved one or more dissents, cases involving issues that the Board has not decided, and any other cases that the Region believes will be of importance to General Counsel.”  The Memo goes on to further cite specific examples of Board Decisions that might support issuance of complaint “but where we also might want to provide the Board with an alternative analysis.”  Not surprisingly, these decisions go to a number of cases in which the Obama Board expanded their regulation regarding concerted activity, handbook rules, work stoppages, Weingarten rights, the joint employer standard, unilateral changes, and dues checkoff, among other matters.  No doubt that with this Memo the way in which the workplace will be regulated by the NLRB will be subject to a number of long awaited changes.

In SouthCoast Hospital Group, Inc. the NLRB originally found that the Hospital violated 8(a)(1) and (3) of the Act by maintaining and enforcing a hiring/transfer policy (HR 4.06) in which the Hospital gave preference to unrepresented employees over represented employees when filling positions at its non-union facilities.  The Hospital, in responding to these allegations at hearing, stated that it was simply trying to make the playing field level, as under the collective bargaining agreement, those employees who were under its coverage had a preference over non-union employees in filling such positions.  The Board supported the Administrative Law Judge’s finding that, under NLRB v. Great Dane Trailers, the Hospital failed to establish a legitimate and substantial business justification for the rule’s maintenance and enforcement.  Member Miscimarra dissented over the reasoning of the other panel members in this matter and, on appeal, the First Circuit endorsed Miscimarra’s position in finding that the Hospital’s reasoning was legitimate and not unlawful.  In particular, the First Circuit reminded the Board that “[I]t is neither our function nor the Board’s to second guess business decisions.  While the Board remains free to reject that proper business justification on the grounds that it is illogical, or that it is not reasonably adapted to the achievement of a legitimate end, it may not invalidate an employment policy that accomplishes a legitimate goal in a non-discriminatory manner merely because the Board might see other ways to do it.”  The Court then went on to state that, “SouthCoast adopted HR 4.06 in an effort to treat its union and non-union workers more evenhandedly when filling vacant positions.  HR 4.06 achieves this goal by treating non-union employees more like union members than they otherwise would be treated.  Because SouthCoast’s chosen method was reasonably adapted to achieve its stated goal, the Board lacked the power to reject HR 4.06 simply because it is not identical to the union hiring policy or because SouthCoast might have achieved its goals through alternative means that were more beneficial to its union employees.”

While the Board adopted the First Circuit’s decision as the law of the case, obviously it did so with great chagrin.  Hence, others adopting this policy in jurisdictions outside the scope of the First Circuit should take heed, as the Board may press this issue once again.

The U.S. Solicitor General changing positions, the NLRB issuing a follow-up letter to oral arguments and the grave observation that a ruling for employees would invalidate agreements covering 25 million employees all reflect the contentious nature of the consolidated cases before the Supreme Court challenging the ability of an employee and employer to agree to limit resolution of legal claims to individual arbitration.

Continue Reading The Enforceability of Arbitration Agreements Covering 25 Million Employees Wait on a Divided Supreme Court

Imagine: in a region where hiring and retaining competent employees is becoming increasingly difficult, a multi-national company announces it will build a plant and employ more than 10,000 workers over the next few years. The pressure to get and keep your best employee has just increased, and the ripple effect touches every aspect of this competitive employment situation. Seeking to maintain your competitive position at a time when employees are being wooed to leave, you may want to explore using noncompetition and nonsolicitation agreements, but are they enforceable? What happens when a well-qualified employee applies for an open position, but informs you that she signed a noncompetition, nondisclosure agreement with her current employer? How will that impact your hiring decision?

Continue Reading Is Your Workforce Secure?