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.
Employers subject to a collective bargaining agreement (CBA) must proceed cautiously in determining how to handle dues checkoff and employee communications following implementation of any right-to-work laws. A recent decision by an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) declares that contractual dues checkoff provisions are not union security devices and thus may be enforceable despite a right-to-work law. Metalcraft of Mayville, Inc. v. District Lodge No. 10, 18-CA-178322 (2017) (Muhl, ALJ). The ALJ in Metalcraft interpreted Wisconsin’s right-to-work statute such that an employer could not unilaterally refuse to enforce dues checkoff, despite the existence of a state right-to-work law prohibiting such deductions. Instead, the ALJ found that the NLRA pre-empted state law, so dues checkoff remains a mandatory subject of bargaining, governed by federal law, regardless of the existence of a state right-to-work law prohibiting fees being deducted. And so the employer acted unlawfully in unilaterally discontinuing such deductions in violation of §8(a)5 of the NLRA.
Further, the Metalcraft decision also serves as an important reminder to employers to exercise caution in corresponding with employees about right-to-work laws. The ALJ held that a series of notices to employees containing employer-drafted questions and answers about the new right-to-work law violated §§8(a)(1) and (5) of the NLRA by undermining employees’ confidence in the union and directly dealing with employees. In that case, the employer presented no evidence it was responding to actual questions or requests for revocation of dues checkoff from employees; it phrased several questions in a manner disparaging the union; and it requested new authorizations for dues checkoff directly from employees.
The ALJ’s findings are consistent with other recent cases which have addressed the issue. In United Auto., Aerospace & Agric. Implement Workers of Am. Local 3047 v. Hardin Cty., Kentucky, the Sixth Circuit held that a county could not prohibit dues checkoff or hiring hall agreements because they were preempted by the NLRA, regardless of the existence of a valid right-to-work law. 842 F.3d 407, 410 (6th Cir. 2016). Similarly, an appeal is pending before the Seventh Circuit of a District Court decision which held, among other things, that dues checkoff does not amount to compulsory unionism and the NLRA preempts any regulation that imposes more stringent requirements than federal law. Int’l Union of Operating Engineers, Local 399, AFL–CIO v. Vill. of Lincolnshire, Illinois, No. 16 C 2395, 2017 WL 75742, at *11 (N.D. Ill. Jan. 7, 2017).
Employers with questions about how to handle dues checkoff or employee communications in preparation for implementation of right-to-work laws can contact a member of Husch Blackwell’s Labor and Employment team. For more information about right-to-work, see Husch Blackwell’s blog post: Right-to-Work in Missouri – What Does It All Mean?
This month the NLRB adopted the Administrative Law Judges’ decision in Amalgamated Transit Union, Local Union No. 1433, AFL-CIO in which the Judge found no violations when, on the Union’s Facebook page, a variety of different comments regarding the crossing of a picket line during a labor dispute were posted by union members. In particular, the complaint allegation stated that such behavior violated the Act as the social networking site (1) threatened employees of less favorable representation because the employees refused to participate in the strike; (2) threatened employees with physical harm because employees refused to participate in the strike. At no time did the Union disavow any of the comments in issue and that was the key basis for the General Counsel going forward with the complaint. The Judge found fault with this theory and denied any findings of wrong doing by the Union. The Board upheld the ALJ’s determinations.
On its face, the findings and conclusions in this case by the Judge and the Board are contrary to law going back for several years, see NLRB v. Georgetown Dress Corporation, 537 F.2d 1239 (4th Cir. 1976); as well as more recent findings by the NLRB in the context of social media as the Board repeatedly finds social media policies that are ambiguous in any way have a “chilling impact” on Section 7 rights. So how can openly threatening postings on a union Facebook page, which are not disavowed by the union, be lawful? It will be interesting to see if this result carries over into the realm of union organizing where it could easily be a situation in reverse where employees are making comments supportive of an employer, that may cross the line in terms of coercive behavior. If the employer does not disavow, is it still attributable to the employer? I would bet that this Board would say yes.
Recently, the NLRB has issued a number of decisions addressing social media in the workplace as it pertains to employers. Last month, however, an NLRB judge rendered a decision addressing a Union’s potential liability and responsibilities for social media activities on its own Facebook page. Interestingly, the judge addressed the posts and comments of the Union’s members, rather than the Union itself. As a result, questions remain regarding whether this analysis applies only to a union, or whether it will apply similarly to an employer and the acts of its employees.
In Amalgamated Transit Union, Local Union No. 1433, AFL-CIO, Case 28-CB-78377, JD(ATL)-33-12 (ALJ Op. Nov. 28, 2012), the Union, which represents a bargaining unit comprised of bus operators, was charged with violating the National Labor Relations Act (“NLRA”) for the threatening statements made by the Union’s members on the Union’s Facebook page. The government alleged the Union had a duty to disavow any threatening statements, and because it failed to do so, its failure amounted to a restraint on the employees’ Section 7 right not to engage in union activities, in this case, a strike.
Regarding the threats, individual Union members threatened employees with less favorable union representation and violence if they refused to participate in the labor strike. For instance, on the first day of the strike, a Union member posted:
- “THINKING of crossing the line. THINK AGAIN!”
- “THINK about the future. When WE return, YOU will be gone. It is a fact that in union strikes across the nation that within six months after the strike ends that 90% of the workers that crossed the line are no longer employed there.”
- “THINK that the union will protect you. They may have to represent you, but will they give it 100%.”
In response to this post, one employee commented that he suffered from an eye condition and could not afford to lose his insurance because of the strike. In response, a Union member commented that if the employee crossed the picket line he would “lose his eyesight” from two black eyes. On the second day of the strike, the Union’s Vice President discussed holding a picket line at the hotel where the company’s replacement employees were staying. In response, one member commented, “[c]an we bring the Molotov cocktails this time?”
The government alleged that the Union had a duty to disavow these threats and relied on case law for the proposition that a Union is responsible for the acts of its members on a picket line when it fails to take corrective action. Thus, the government argued, because the website is an extension of the picket line, the Union was responsible for disavowing the threats made on its Facebook page. Failure to do so constituted a violation of the NLRA.
The judge rejected this argument and found marked differences between an actual picket line and a website. For instance, whereas a picket line communicates a public message from a Union, a Facebook page is private. Additionally, the judge found that hundreds of thousands of websites contain discussions that do not express the opinions of the host. Moreover, the judge found that requiring the union to disavow the posts amounted to compelled speech and implicates the Union’s First Amendment free speech concerns regarding the right to refrain from speaking. For these reasons, the judge found the Union had no duty to disavow the threatening posts and therefore had not violated the NLRA.
While this decision is good news for labor unions, it is unclear whether the NLRB will hold an employer to the same standards with respect to a company’s Facebook page. Notably, the allegations against the Union did not involve any officers or agents of the union, but rather, its individual members. Accordingly, until the NLRB decides this issue in the context of an employer’s social media page, employers must be diligent in monitoring not only the “official” posts on their social media websites, but also the contents of posts made by employees or other third parties.