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Copyright: ratoca / 123RF Stock Photo
Copyright: ratoca / 123RF Stock Photo

We’ve been expressing concern about the National Labor Relations Board’s efforts to implement “quickie election” rules for over a year. Well, the rules are now in place and they’re part of a double-whammy for employers. First, the NLRB reversed course to decide that unions can require employers to turn over employees’ e-mail addresses. Now, under the new rules, an election can be held as soon as 14 to 21 days after a petition is filed, drastically reducing the time the employer has to educate its workforce about whether the benefits or organizing outweigh the detriments.

Marv Weinberg and Chip Zuver explain the new rules in more detail here. Is there anything employers should do now other than wring their hands and lament their situation? Absolutely. They should:

  • Expect more organizing activity since elections will be easier for unions to win. So they need to realistically evaluate their susceptibility to an organizing campaign and work to identify and eliminate weaknesses. If they wait until a petition is filed to justify unpopular policies, it may be too late.
  • Reconsider whether collecting personal email addresses and cell phone numbers for employees is advisable.
  • Review their nonsolicitation and access policies to see if they’re still enforceable under the new rules.
  • Consider implementing “open door” policies to encourage employees to bring issues and concerns directly to management. Start telling and showing them that they don’t need a union for them to have their voices heard.

 

The Los Angeles City Council voted last week to raise the minimum wage for Los Angeles area hotels to $15.37 per hour.  The minimum wage will increase for hotels with 300 or more rooms in July 2015, and for hotels with 150 or more rooms in July 2016.  

Of note, this minimum wage increase was championed by organized labor.  Indeed, the victory is publicized on union websites.  So, why would unions want a higher minimum wage at non-union properties?  One reason is that hotels with a current collective bargaining agreement in place are exempted from the required wage increase.  Therefore, one goal as stated by many pundits is to pressure more hotels to unionize so they have the option to pay less than the required minimum wage.

But why would a hotel worker at a union hotel take less money?  Why wouldn’t they just move to another hotel that pays $15.37?  The stated theory seems to be that it would be hard for union hotels to justify paying less than the required minimum wage when their contracts come up for negotiation.  So, over time, the new minimum wage may become the new floor, and organized labor can take credit for making that happen.

Indeed, news articles report that the ultimate goal is more about expanding the ranks of union members than improving wages for workers.  Apparently there are about 60 Los Angeles area hotels that will be impacted.  If those hotels feel they can get some concessions from unions and avoid paying the minimum wage (perhaps in exchange for better benefit plans or other negotiated employment terms), or if the wage differential between union and nonunion hotels goes away, then there will be less resistance to efforts to unionize.  At least that seems to be what the unions are hoping for.

Will the wage increase mean less workers hired as businesses suggest?  Some argue that up to 20% of workers will be laid off.  Or can the hotels absorb the wage increases and still make a profit? Will the unions come out ahead as they hope? Will more Los Angeles hotels be unionized a few years from now?  It will be interesting to see how this all plays out.

If you have unionized workers, you know that a union gets to request information that may be relevant to it its functions. This includes information potentially relevant in deciding to grieve a matter or to assisting with bargaining. Employers must respond to these requests in a timely fashion, even if they think the request is irrelevant or overly burdensome. At times, unions harass employers with burdensome and unnecessary requests to try to achieve some other end. This week, the Board took it one step further and empowered union stewards to make these requests independently.

In a September 17, 2014 decision (Dover Energy, Inc., Blackmer Division and Thomas Kaanta), the Board concluded that an employer violated the National Labor Relations Act by verbally warning a union steward to stop making frivolous requests (in this case, asking for information without the union’s knowledge that was unconnected with collective bargaining or any possible grievance). The warning said that further discipline up to and including discharge could result if the steward continued to make frivolous and unauthorized information requests. An administrative law judge concluded that the employer did not violate the Act because: (1) the steward’s actions were not authorized by the union and (2) evidence was lacking that the steward requested information on behalf of other employees or discussed with other employees the concerns underlying the requests. 

The Board reversed the judge, ignoring the unprotected nature of the request, finding that future requests for information could be protected and consequently the steward “would reasonably conclude from the language of the warning that even protected requests could trigger the warning’s threat of discipline.” The Board ignored the warning’s clear direction that the steward refrain from unauthorized and frivolous requests and concluding that the employee would not be intelligent enough to discern the difference between a protected and unprotected request.

This decision serves to emphasize that employers should consult experienced labor counsel in deciding how to treat information requests (even if they appear unauthorized or frivolous) and in taking disciplinary action against union stewards. Thanks to experienced labor counsel Chip Zuver for helping to prepare this post.

Copyright: tintin75 / 123RF Stock Photo
Copyright: tintin75 / 123RF Stock Photo

           In the quest to expand liability for real and imagined violations of employment laws, and to find more and deeper pockets, the latest target for plaintiffs’ lawyers and unions is the “joint employer.” The joint employment concept is a decades-old doctrine that applies where two companies are so intertwined and jointly involved with the employment policies and the supervision of employees that both companies can be liable violating employment laws such as wage and hour, wrongful discharge, or discrimination. The application of “joint employment” can also vastly increase the pool of employees in class actions and for union organizing.

            The newly constituted and highly politicized NLRB is currently reviewing its standards for finding “joint employers” in a case involving Browing Ferris Industries of California and a staffing agency. Employers fear that the Board will take a radical turn toward making joint employment much easier to establish.

            On July 29, 2014, the NLRB’s general counsel ominously ruled that unfair labor practice charges can proceed against McDonald’s franchisees and the franchisor, McDonald’s Corp. as a joint employer. The Board is thus backing the SEIU, and the employee advocacy group Fast Food Forward, in an attempt to organize and raise wages for fast food restaurants around the country. The union hopes to get neutrality agreements from parent companies that will make it easier to organize one franchise store after another.

           A spokesman for the International Franchise Association said, “Ruling that franchises are joint employers will be a devastating blow to…the franchise model.” This development could affect fast food restaurants, hotels, and convenience stores and other retailers in California. The NLRB’s aggressive stance is sure to be litigated in the courts, but look for other agencies and plaintiffs’ lawyers to be pressing the issue of “joint employment.”

When the Supreme Court decided National Labor Relations Board v. Noel Canning on June 26, 2014, it invalidated the cases that the NLRB decided between January 4, 2012 and August 3, 2013. Here are some of the key cases affected by this opinion:

  1. Costco Wholesale Co. – Here the Board held unlawful an employer’s handbook policy prohibiting employees from electronically posting statements that damage the company, defame any individual, or damage any person’s reputation.
  2. Fresenius – The Board decided that the employer violated the Act when it terminated employee for writing vulgar, offensive, and threatening statements on materials; left the materials in employee break rooms; and then lied about writing the statements.
  3. Hispanics United of Buffalo – The Board found that the employer violated the Act by firing five employees for making bullying and harassing Facebook comments in response to a co-worker’s criticism of their job performance.
  4. D.R. Horton – The Board held that the employer violated the Act by maintaining a mandatory arbitration policy that required all disputes be arbitrated on an individual basis, thereby precluding class or collective treatment of the arbitration.
  5. Alan Ritchey, Inc. – The Board concluded that an employer must bargain with a union before imposing discretionary discipline on an employee during the period after the union has become the bargaining representative but before the parties have agreed to a first contract.
  6. Banner Health – Here the Board found that the employer violated the Act by maintaining a policy that asked employees subject to an internal union investigation to refrain from discussing the matter during an ongoing investigation.
  7. Piedmont Gardens – The Board overruled longstanding precedent exempting witness statements gathered during an employer’s internal investigation from disclosure to a union.
  8. WKYC-TV – The Board overruled a fifty-year precedent and concluded that an employer is obligated to continue deducting union dues after expiration of a collective bargaining agreement that includes a dues check-off clause.
  9. Micro-union decisions – The Board has announced that it will approve a bargaining unit proposed by a union if the group is readily identifiable as a unit and shares a community of interests. This new standard would permit a union to organize a single department even if a majority of the employees at that location voted against a union.

Many of these cases reflect the Board’s continuing efforts to stretch its reach to non-union workplaces. While the decisions are invalid for now, the current Board will likely readopt them. So the safest practice may be to follow them for the time being. One notable exception is D.R. Horton, which has been rejected by federal and state courts (including the recent Iskanian decision in California). Even a reconstituted Board will have difficulty resuscitating that one.

Thanks to Chip Zuver for helping to pull this post together.

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I spend a lot of time on this blog railing against heavy-handed government enforcement and laws intended to benefit employees that actually drive jobs away. So I want to go on record as a supporter of the 1842 Mines Act. Among other things, this law prohibited boys and girls under age 10 from working in iron and coal mines in England. Call me a bleeding heart, but I think that was a good idea.

There, I said it and am prepared to accept the consequences.

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What’s missing from the rash of news reports and blog posts about the NLRB’s ruling allowing scholarship football players at Northwestern to vote on whether to join a union is an explanation of why the athletes want a union.

When we train employers on how to stay non-union, we focus on two things: fair compensation and appreciation of work done. Apparently, the NCAA rules allow for neither, and that is the problem.

I was surprised to read that the players don’t necessarily want to be paid as employees. What they want is to be guaranteed a spot at the school with paid tuition until they graduate, or perhaps some incentives by the schools to get them to complete their educations. Apparently they are also hungry and the rules limit how much food the schools can provide. They want medical coverage for sports related injuries, especially those that might last way after their school years end.

They also have safety concerns, including better procedures to reduce head injuries. They want to stay at school if they are injured or their sports-career is not successful. And finally, they would also like to be able to pursue commercial sponsorships much like Olympic athletes do, to cash in on their “15-minutes” of fame and defray some of the costs associated with sports. For example, college athletes do not have time to get part-time jobs and many sports have NCAA rules that actually prevent them from doing so.

What these athletes want is pretty darn reasonable, and right now they don’t have a seat at the table to get the issues addressed in any significant way. They feel used and abused, and that is always a problem.

Is a union the answer to these real issues? Most of the pundits say no. And the slippery slope of finding student athletes to be employees is a steep one. But should the NCAA rules be revised to address some of these issues? You bet. That is a point everyone seems to agree on.

February is going to be a busy month for presentations on new legal developments and you have plenty of opportunities to hear me speak.

If you work in the hospitality industry, you can see me speak for the LAHHRA (Los Angeles Hotel Human Resources Association) on February 21st.  I will be covering new legal developments impacting hotels and an overview of “What to Expect When Your Employee is Expecting.”  If you work in the restaurant industry, you can check out a new group, the LARHRA (Los Angeles Restaurant Human Resources Association); I am speaking on the same subjects (as applied to restaurants) at their meeting on February 19th.  Both of these groups are by invitation only, but if you email me I am happy to connect you with the event organizers.

And finally, if you are an attorney, please come to the LACBA Employment Law Symposium on February 26th, and see me speak on a panel entitled “Labor Pains: Expanding Developments in Pregnancy, Lactation and Related Disability Accommodation Issues.”  You will hear a very awesome hypothetical, with every twist and turn you can imagine.  Then see how the facts are interpreted by me (on behalf of employers) versus a plaintiff’s lawyer (on behalf of employees).  I am looking forward to a few sparks!

Lots of opportunities to come hear me speak, to learn about new legal issues that may impact your business in an entertaining way, and to do a little networking.  I hope to see you!

 

Here’s another post from guest blogger Chip Zuver.

The NLRB is again trying to trample employer free speech in order to aid union organizing. They’re attempting to justify changing well-established rules and procedures by making the absurd assertion that the current time frame for conducting elections are resolving challenges is too slow and that this hurts employees and employers.  Nothing could be further from the truth.  According to the Board’s own annual reports, the current process results in elections being conducted well within the NLRB’s own guidelines.

The fact is that the unions do not want a level playing field. Unions spend months covertly organizing employees; informing employers of their presence at the facility only when the union either demands recognition or an election. Unions organize employees by essentially misrepresenting what they can do for the employees. They never explain that unions cannot dictate salary and benefit levels, ensure that employees have work, or guarantee the employees have a job.  Nor do they tell employees that if the union calls a strike it can require the employees walk off the job or be disciplined, that the employee will be required to pay monthly dues to the union, or that by organizing the employees lose their ability to deal with employer on an individual basis to resolve issues.

Telling employees these things would not aid in the organizing effort. Hence, employers are left to explain these issues to employees. Under the existing election procedure, the employer had about a month to reach out to its employees and to explain the potential downside to organizing. This is an adequate amount of time. Still, unions win more than half the elections conducted.  Such a success rate seems reasonable, but it is not enough for the unions or for the labor-friendly majority on the NLRB.

Thus, the NLRB seeks to implement a rule that could  result in elections being conducted in less than twenty days.  This severely handicaps employers in educating their workers about the downsides to organizing. Unions hope that, with this quicker procedure, employees will only hear the upside so that they vote in favor of the unions, rather than making an informed decision and potentially choosing not to have union representation.

The NLRB proposed and implemented this rule in 2011 only to have a federal judge strike it down because a three-member panel of the NLRB did not vote on the matter. Now that the NLRB has five members—three of whom favor the rule—the rule will surely be implemented.  The question remains whether the federal courts will strike the law on substantive grounds. Given this uncertainty, non-unionized employers should consult with experienced labor counsel to determine if they’re at risk of being organized and whether it makes sense to take certain pro-active steps to reduce that likelihood. Because once the union demands an election, there may not be time.

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The National Labor Relations Board has dropped its appeal of a district court judge’s decision to void the Board’s quickie election rule. For those of you unfamiliar with the rule, it would have drastically shortened the time between when a union requests an election and when the election is held. It also would have reduced an employer’s opportunity to challenge the election and effectively prevented employers from educating their employees about the negative effects of unions. The judge voided the rule because a majority of a properly constituted Board had not voted on the matter. 

Although the Board has dropped its appeal, it would be premature for employers to celebrate. Most likely, the Board is going to reissue the rule now that it has a fully constituted Board with five members, three of whom are staunchly pro-union. The Board most likely believes that this will be the fastest approach to aid unions in their efforts to organize non-union workforces. Expect to see Board action on this front in the near future and perhaps an even more overreaching set of election rules. Stay tuned.

abstract man on the secret voting

Hearty thanks to Chip Zuver for writing this post.