Category Archives: Union Relations

Missouri Has Become the 28th Right-to-Work State

Contributed by Beverly Alfon, February 10, 2017

On February 6, 2017, the newly elected GOP Governor Eric Greitens, signed into law a right-to-work (RTW) bill that passed the state’s Republican-controlled state legislature.

Nuts and Bolts of the Missouri RTW law

  • Effective date:  August 28, 2017
  • Who it applies to:  Both private and public sector employers (except those in the airline and railroad industries, as well as certain federal employers).
  • What it prohibits:
    • No employee can be required to become or remain a union member as a condition of employment.
    • No employee can be required to pay dues, fees or assessments of any kind to a union (or any equivalent of a dues payment to any charitable organization).
  • Penalties for violations:  Criminal sanctions – a violation is a class C misdemeanor, punishable by a fine of $750 and up to 15 days in jail. Civil sanctions – private parties may obtain injunctive relief, damages and an award of attorneys’ fees.
  • Effect on collective bargaining agreements:  For collective bargaining agreements (CBA’s) entered into before August 28, 2017, the law has no effect. However, the law will apply to any CBA renewal, extension, amendment or modification after August 28, 2017. This will likely jolt Missouri unions to seek contract extensions of existing CBA’s in order to delay the impact of the law.

Unions Continue to Battle

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Flag of Missouri

The Missouri AFL-CIO has submitted different versions of a proposed initiative petition to the secretary of state’s office that is aimed at reversing the RTW law. Basically, with enough signatures, it would present the opportunity for Missouri voters to decide in 2018 whether to adopt a constitutional amendment that would protect contracts that require employees to pay union representation fees.

Perspective

Seven of eight states that surround Missouri have existing right-to-work laws, including Kentucky, which passed a right-to-work law last month. The current tally of RTW states includes: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, Nevada, North Carolina,  North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, Wyoming. Just last week, the New Hampshire senate passed a RTW bill, which is awaiting passage by the state House.

On a federal level, two Republican Congressmen re-introduced the National Right to Work Act last week. The bill would amend the National Labor Relations Act and the Railway Labor Act to prohibit the use of union security clauses which require union membership and payment of dues and fees.

If there was any doubt, this flurry of activity confirms that the right-to-work movement is recharged.

This Rocky Road Is Not Chocolate: NLRB Wins Again On Micro-Units

Contributed by Beverly Alfon, May 2, 2016

On April 26, the 4th Circuit of the U.S. Court of Appeals joined other federal circuits that have upheld NLRB approval of “micro-units.” See, Nestle Dreyer’s Ice Cream Co. v. NLRB, No. 14-2222 (4th Cir. Apr. 26, 2016). This is another boost for unions because micro-units ease their path into industries and business that have been difficult for them to organize in the past.

How do micro-units help unions and hurt employers?  When a union files a petition with the NLRB to represent a group of employees, a larger unit is generally favorable for an employer because it is more difficult for the union to garner cohesive support and secure a win. Unions tend to favor smaller units because it is generally easier to gain majority support and win a representation election. Micro-units only further increase the union’s chances of success, leading to a “foot in the door” with the company and exposure to other employees. Meanwhile, more micro-units can cause instability, inconsistency and administrative mires for a company.

Union workersIn the good old days, when there was a dispute about the scope of a union’s petitioned-for unit, the NLRB would consider arguments regarding the “community-of-interest” between the employees. Depending on the interrelationship between the employees in the context of operations, an employer could push for a broader unit of employees. However, in Specialty Healthcare, 357 NLRB No. 83 (2011), the NLRB imposed a new standard requiring an employer who seeks to expand the petitioned-for unit to demonstrate that those employees excluded from the union’s petition have an “overwhelming community of interest” with those included in the union’s proposed unit. Arguably, this high standard gives unions carte blanche to define the unit in its favor.

Employers have continued to attack the new standard, but the NLRB has now prevailed in the 6th, 8th and 4th circuits. In Nestle Dreyer’s Ice Cream Co., an NLRB regional office approved a petitioned-for unit for 113 maintenance workers, while excluding 578 production workers. The union won the election, but the company refused to recognize the union or bargain with it. The regional director entered an order directing the company to bargain. The company appealed to the Board in Washington, D.C. (which affirmed the order) and further appealed to the 4th Circuit.  The company argued that the NLRB abused its discretion by imposing this new standard and contradicted 4th Circuit precedent by blindly deferring to a union’s proposed unit. Despite strong backing from national business associations, the appellate court unanimously rejected the company’s arguments, affirmed the Board’s approval of the unit and determined that the standard articulated in Specialty Healthcare was only a clarification of law – and therefore, not an abuse of discretion.

Bottom line: Union organization of micro-units remains in tact. Whether you have a union-free work force or only a portion of your workforce is organized – now is the time to consider (or revisit) management training regarding union organization, analyze your operations/management structure and consult with labor counsel regarding best practices in light of these developments.

Far-Reaching NLRB Decision Effectively Bans Strict “Company-Use-Only” Email Policies

Contributed by Suzanne Newcomb

Earlier this month the NLRB reversed establish precedent, ruling employers can no longer prohibit employees from using company email to engage in “protected concerted activity” or union organizing efforts during non-work time.

Section 7 of the National Labor Relations Act guarantees all employees, union and non-union employees alike, the right to organize and “engage in … concerted activities for … mutual aid or protection.” But recognizing employers’ property rights in company-managed email systems, the NLRB had long upheld employers’ right to ban non-work related communications on company email systems, including communications that would otherwise be afforded section 7 protection.

On December 11, 2014 the NLRB reversed course, stating, “we decide today that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”

Under the new standard set forth in the NLRB’s Purple Communications decision, both union and non-union employees have a legally-protected right to use their company-provided email accounts to gripe about working conditions, discuss pay issues and other terms and conditions of employment, and engage in union organizing efforts during non-working time.

The decision does not require any employer to provide its employees with email access. Nor does it demand employers tolerate non-work related email activity during working time. Moreover, an employer may monitor its company computer equipment and email systems so long as it does not do so in a discriminatory manner. Finally, the decision allows employers to establish uniform and consistently-enforced restrictions on email use so long as they are justified by legitimate business needs.

What should a prudent employer do now? Carefully review your current policies. Does your policy prohibit or severely limit use of company email for non-work purposes? If so it is likely too broad and in need of a revision. A policy that was perfectly legal at the time it was written may be unlawfully restrictive today. Under the new rule, any restrictions that apply to the use of company email during non-work time must be clearly articulated and sufficiently justified.

SmithAmundsen’s team of experienced Labor and Employment attorneys are available to review these and other policies and, when necessary, will assist your organization to revise those policies to ensure they are up to date and in line with new legal standards.

Micro-Units: Divided They May Rise Before the NLRB

Contributed by Beverly Alfon

The labor world is abuzz about “micro-units” as a result of two recent National Labor Relations Board decisions regarding Union petitions to represent such “micro-units” of employees:  Bergdorf Goodman, 361 NLRB No. 11 (July 28, 2014) and Macy’s, Inc., 361 NLRB No. 4 (July 22, 2014).

What is a micro-unit and why does it matter?

A “micro-unit” is a small and discrete subset of employees at a particular worksite, which a union seeks to represent.  It is the opposite of a “wall-to-wall unit” that would encompass the majority of an employer’s non-supervisory employees. 

The two recent micro-unit cases specifically relied upon the NLRB’s controversial decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011). The decision was affirmed by the federal Sixth Circuit in 2013, which effectively encourages unions to petition for micro-units.  That decision changed the established test for determining whether or not a Union’s petitioned-for unit is too discrete, by creating a high burden for an employer challenging the appropriateness of a unit to show that any excluded employees “share an overwhelming community of interest with the included employees.”  This matters because a union only needs the votes of 50% + 1 of the group that it seeks to represent (“petitioned-for unit”) in order to become the unit’s certified bargaining representative.  The more limited that a union defines the petitioned-for unit, the less number of employees belong to the unit and the easier it is for the Union to get the necessary votes to win an election. 

In Bergdorf Goodman, the board unanimously held that the petitioned-for unit of Salon Shoes department employees and Contemporary Shoes department employees (located on different floors) was not appropriate because they lacked a community of interest and “the boundaries of the petitioned-for unit do not resemble any administrative or operational lines drawn by the Employer.”  The board had specific trouble with the fact that the petitioned-for unit carved out Contemporary Shoes from the larger Contemporary Sportswear department and then grouped them with the Salon Shoes employees, suggesting that it would have approved an even more discrete bargaining unit. 

In Macy’s Inc., the board affirmed the appropriateness of a proposed unit that only included the store’s cosmetic and fragrance department salespersons. The board held that the store’s cosmetic and fragrance employees constituted an appropriate unit because they are a “readily identifiable group” and “share a community of interest.” The board dismissed the fact that the cosmetic and fragrance employees worked on different floors, the store’s cosmetic beauty advisors only sold a single vendor’s products in contrast to the fragrance beauty advisors who sold all vendors’ products, and the cosmetic beauty advisors wore distinct uniforms.

Bottom line:  The NLRB’s current position encourages unions to petition for micro-units.  If a union petitions for a micro-unit that is based upon the employer’s departmental structure, the NLRB will likely find the unit to be appropriate and reject any attempt to expand the unit to employees in different departments.  An employer must meet a heavy burden to overcome the presumption that the petitioned-for unit is appropriate.  Union petitions for micro-units will also become more problematic if the NLRB finalizes proposed changes to election procedures, including severe limitation on an employer’s ability to challenge the appropriateness of the petitioned-for unit before the election.

Be cognizant of potential union organizing of particular departments. Consider integrating departments and functions between employees.  Identify operational or administrative adjustments that may give you a fighting chance of proving an overwhelming community of interest if a union files a petition for a micro-unit of your employees.

The Misnomer Lives On: The Supreme Court Dismisses Mulhall Without Deciding the Issue

Contributed by Steven Jados

Back in October, we discussed Unite Here Local 355 v. Mulhall, a case pending at that time in the U.S. Supreme Court.  The issue in Mulhall was whether a union neutrality agreement could be a “thing of value” paid, lent, or delivered to a union in violation of Section 302 of the Labor-Management Relations Act (“LMRA”).

The misnomer is that neutrality agreements have little to do with neutrality.  Instead, they are a way for a particular union to virtually guarantee that it will acquire control over employees who may have no interest at all in being unionized.

In December, the Supreme Court dismissed Mulhall from the Court’s docket, essentially stating that Mulhall should not have been one of the very few cases the Court chooses to hear each year.  Why the Court did so is unclear.  The Court did not give the exact reason for its decision, but three Justices opposed the dismissal, and those three hinted that there may have been procedural defects in the underlying appellate decision.  Because the Supreme Court dismissed Mulhall instead of issuing an opinion, the underlying appellate decision remains intact in spite of any potential procedural defects.  What that means for employers going forward is that the Eleventh Circuit’s decision in Mulhall continues to hold that, under certain circumstances, union neutrality agreements can be things of value prohibited by the LMRA.

Even though the Eleventh Circuit’s decision remains intact, unions nation-wide are breathing a sigh of relief because the Supreme Court did not directly restrict their ability to use neutrality agreements to further their organizing campaigns.  For that reason, employers across the country must be prepared to face increased pressure from unions to accept neutrality agreements.

These agreements are not to be entered into lightly—regardless of what a union agent may say to the contrary.  If a company signs a neutrality agreement, the company may be giving up its ability to remain non-union.  These agreements are extremely valuable to unions because the agreements often lead quickly to a unionized workforce.

Further, in almost all circumstances, the language of the neutrality agreement will control how the agreement is interpreted.  As such, any oral “promises” a union might make to convince a business to sign a neutrality agreement are likely meaningless.  Employers must focus on the actual text of any proposed neutrality agreement.

Since neutrality agreements have the potential to place significant and long-lasting burdens on companies, employers should not enter into these agreements without first consulting with experienced labor counsel who can advise the employer on the likely legal and practical consequences.  The Supreme Court’s decision to dismiss Mulhall allows unions to continue to make neutrality agreements a significant weapon in the union organizing arsenal.  Employers must be prepared to respond with creative strategies to defend themselves.

Harris v. Quinn: Unions and Politicians Beware!

Contributed by Larry Smith

In 2003, then Governor, now inmate, Rod Blagojevich, issued an Executive Order declaring that 20,000 rehabilitation home health care aides paid through Medicaid were employees of the State of Illinois.  The workers, including plaintiff Pam Harris, were actually hired by individual Medicaid recipients and did not receive payment from the State of Illinois.  Prior to the Executive Order, Illinois law treated these healthcare workers as employees of the Medicaid patients.

As state employees, the workers could unionize. Service Employees International Union (SEIU) unionized the workers.  SEIU also designates that part of the union dues goes to “political causes.”  Pam Harris’ suit alleges that this support of “political causes” violates freedom of speech and due process.

On October 1, 2013, the U.S. Supreme Court agreed to rule on the case of Harris v. Quinn after the District Court dismissed the plaintiff’s Complaint and the Seventh Circuit affirmed the dismissal.

In the Seventh Circuit’s dismissal, it stated that: “as the personal assistants are employees of the state, at least in those respects relevant to collective bargaining, the union’s collection and use of fair share fees is permitted by the Supreme Court’s mandatory union fee jurisprudence.”

Unions, and the politicians they contribute to, are justifiably worried about the outcome in Harris, since the Supreme Court recently used the First Amendment to take a pro‑business stance in another public sector union case (Knox v. SEIU).

For those further interested, a similar case is pending in Minnesota (Parrish v. Dayton).  The Minnesota case involves an attempt to unionize childcare workers. 

Stay tuned for further developments.  It will be interesting to see if the U.S. Supreme Court continues to diminish the unions’ political clout.

Neutral? Not Exactly. The End of the Union Neutrality Agreements?

Contributed by Steven Jados

Last week, we briefly introduced Unite Here Local 355 v. Mulhall, a case in which the U.S. Supreme Court will determine whether a union neutrality agreement can be a “thing of value” paid, lent, or delivered to a union in violation of Section 302 of the Labor-Management Relations Act (“LMRA”).  The LMRA was enacted for purposes including the protection of employees’ freedom to choose whether or not they want a union.

With that purpose in mind, when the Court hears oral argument in November, several justices are likely to be troubled by how little the agreements have to do with neutrality.  Instead, the agreements often require the employer to actively assist the union.  In truth, neutrality agreements are a means for one particular union to fast-track its way to representative status for employees who may never have heard of the union, let alone shown any interest in having the union as their representative.  

The assistance sought in Mulhall included giving the union (that is, the particular union that proposed the agreement, but not any other union) the right to come onto the employer’s property during working hours to give pro-union speeches to an assembly of workers.  (Apparently the union has no problem with so-called “captive audience” speeches when the union is giving them.)    

Additionally, the neutrality agreement in Mulhall required the employer to recognize the union as the collective bargaining representative only upon a showing of authorization cards, sometimes referred to as “card check,” a procedure far less reliable than the secret ballot election typically used. 

The true benefit of the neutrality agreement to a union is that the agreement bypasses expensive, time-consuming processes that include actually convincing employees to choose the union, convincing them not to choose a competing union, overcoming employer opposition, and winning an election.  Those processes can cost a union hundreds of thousands of dollars just in legal fees.    

As such, there can be little question that a neutrality agreement is a thing of value as a matter of plain English.   Whether that is so as a matter of law remains to be seen.  

Predicting the outcome of Supreme Court cases is virtually impossible.  That said, organized labor has little reason to believe it has five friends on the Court, especially when a decision against the union can be framed as both pro-business and pro-employee.  (The union’s opponents, Mulhall and Hollywood Greyhound Track, Inc., are an employee and his employer, respectively.) 

Whatever the Court decides, it will likely have a significant impact on union organizing strategies in the coming years.