Husch Blackwell recently issued a legal alert regarding the decision by the U.S. Supreme Court to strike down federal gambling prohibition. The decision was handed down in a 6-3 opinion on May 14, 2018. A little over a week later, our Rudy Telscher talks with Katie Strang of The Athletic to discuss the impact the decision by SCOTUS will have on the MLB, the players’ union and labor relations as a whole.

Rudy is a Partner in Husch Blackwell’s St. Louis office and has experience as lead counsel in CDM Fantasy Sports v. Major League Baseball, in which his team made new law in turning back Major League Baseball’s attempts to monopolize the $1.5 billion per year fantasy sports industry in proceedings from the district court through Supreme Court.

The Athletic article answers the question, “How much baseball betting will we actually see?”

 

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.

 

Businessmen Talking In Conference RoomOn March 23, the Department of Labor released the final version of its controversial and expansive rule that changes the disclosure requirements for labor relations consultants who aid employers with their union avoidance measures.

What Does That Mean to Employers?

Previously, a consulting firm was required to disclose activity to the DOL only when it engaged in direct contact with workers regarding labor organizing campaigns.  Now, under the Department’s new “persuader” rule, the hiring of an attorney or consultant to thwart organizing attempts must be reported whenever the third-party consultant engages in persuader activities that go beyond the plain meaning of advice, regardless of whether there is direct contact with employees.  This rule encompasses typical work conducted by outside consultants.  It includes, for example, planning employee meetings, training supervisors or employer representatives to conduct meetings, drafting or providing speeches, and other common persuader activities.

Legal Challenges Underway

At least two lawsuits have already been filed against the DOL in federal court challenging the new rule.  The National Association of Manufacturers (NAM), along with several business groups, filed suit in the Eastern District of Arkansas.  Similarly, a coalition of law firms has filed suit in the District of Minnesota.  The challengers have asserted a number of arguments, including claims that the rule: violates the First Amendment; is overbroad; exceeds the DOL’s authority; and, importantly, infringes attorney-client confidentiality protections.

What’s Next?

Only time will tell whether any of these legal attacks will prove successful in dismantling the new “persuader” rule.  For now, the rule remains in place, and employers must follow it.  However, employers should remember that agreements where a consultant merely agrees to provide “advice” are still exempt from the reporting requirement.  For example, mere recommendations regarding a company’s decision or course of conduct need not be reported.

Check back in for updates as this litigation develops, and do not hesitate to contact our firm with any specific questions on how this new rule may affect your company’s practices.

With the recent change in events whereby, state by state, legislation is being passed to implement right to work laws, labor unions are responding by promoting, through the NLRB, a “fair share policy” requiring non-member bargaining unit employees pay a grievance processing fee. Indeed, the NLRB has issued a Notice and Invitation To File Briefs on a current case pending before it on this very issue. Such a Notice and Invitation obviously is a foreshadowing of a potential change in the law in allowing such a fair share policy. This case and the Invitation by the Board to file amici briefs on the issue has escaped notice for the most part, but it is something that could have far reaching effects in terms of right to work legislation. Unions live and die through dues membership and with the increasing number of states enacting right to work legislation that dues money is being reduced. Hence this is obviously a ploy on the part of labor to capture some additional sources of revenue that they have lost as a result of such legislation. Hopefully the Board will maintain the status quo, but I think the Invitation To File Briefs on this issue is, once again, a foreshadowing of a change, not a maintenance of the status quo.

The Supreme Court this week heard oral arguments regarding the Mulhall case which was not your run-of-the-mill issue in the area of labor disputes.  In fact, the focus was just the opposite of a dispute: agreements whereby unions and employers agreed to terms under which a union would be able to organize an employer’s employees.  They are known in the trade as “neutrality agreements.”  While some of these agreements have been found unlawful by both the NLRB and the courts, for the most part, so long as the parties follow the guidelines now long established for such agreements, they have historically been found lawful.

The twist to this proceeding is the allegation that such neutrality agreements violated Section 302 of the Labor Management Relations Act.  This is frankly a little known and little utilized provision of labor law which forbids employers to pay, lend or deliver any money or other thing of value to a labor organization.  In other words, it is an anti-bribery statute.

Frankly these agreements are quite common when you have a chain of operations in which the union already represents a number of the employer’s employees and, rather than face a corporate campaign, the employer agrees to certain ground rules to control the organizing environment.  In the case at hand, the employer allowed the union access to its employees and agreed to rules allowing employees to vote by using a card-check procedure, rather than by the secret ballot method normally utilized by the NLRB.  The key distinction in this agreement, however, was that the union also agreed to spend $100,000 to support a referendum that was favorable to the employer.  Accordingly, while most of the provisions set forth in the neutrality agreement were pretty boilerplate, the $100,000 support portion of the agreement was obviously something beyond the normal situation.

The Washington Post Mulhall has commented on the oral arguments, as well as others others.  Some believe that ancillary legal issues, such as standing, may get in the way of the Court actually issuing an opinion of any substance, but it would seem unlikely that the Court would have taken the matter up if they simply were going to rule on an issue of standing, which will have very little value in terms of clearing the path for future agreements of this nature.  In the interim, it will be wise to have any neutrality agreement be subject to review by appropriate labor counsel to insure Section 302 is not brought to bear, as it is not only a violation of that statute, but it also has criminal implications.