Tag Archives: National Labor Relations Act

The Status of Right-to-Work Laws in Select States

Contributed by Suzannah Overholt, June 25, 2019

Illinois recently enacted a Collective Bargaining Freedom Act which bars local governments from establishing “right-to-work” (“RTW”) laws or zones. This most recent piece of legislation serves as a timely reminder of the differing responses by states to the right-to-work movement. 

Section 14(b) of the National Labor Relations Act (NLRA) gives states the discretion to pass laws limiting the ability of unions to collect dues from non-members, commonly referred to as RTW laws. Critics claim that such laws lower wages and benefits. Supporters argue that RTW laws and zones promote free choice by allowing workers to choose whether to financially support unions or not. 

Gavel on white background

Over the past several years states have passed more regulations addressing this issue, resulting in varying regulations from state to state.  In 2012, Indiana became the 23d state to enact a right-to-work law that stated a person could not require an individual to (1) become or remain a member of a union; (2) pay dues, fees or assessments or other charges to a union; or (3) pay a charity or third party an amount equal to or a pro rata amount of dues, fees, assessments or other charges for a union. Indiana Code 22-6-6-8. The law, codified at Indiana Code 22-6-6, et seq., applies to public and private sector employees and creates a mechanism for filing complaints with the Indiana attorney general, department of labor, or prosecuting attorney of the county in which the individual making the complaint is employed. A knowing violation is a Class A misdemeanor, and an individual who allegedly sustains an injury due to a violation may file a civil action. Indiana’s law has been upheld by both the Indiana Supreme Court  and the Seventh Circuit Court of Appeals.

In 2015, Wisconsin followed in Indiana’s footsteps, passing a law barring mandatory union membership and prohibiting unions or employers from requiring non-members to pay dues.  Wisconsin’s law was also challenged and upheld in both state and federal court.  (The aspect of the law changing the period in which an employee’s authorization for dues deductions is deemed irrevocable was found to be pre-empted by federal law.) The law, codified at Wisconsin Code 111.04, et seq., makes a violation an unfair labor practice.  

As we explained in our prior post, in 2018, the United States Supreme Court weighed in on the issue in Janus v. AFSCME. In that case, the Court overturned a prior Illinois law that required public sector, non-union employees to pay union dues.

llinois’ most recent law, signed in April, prohibits local right-to-work ordinances and imposes penalties for violations.  The law was passed in response to an ordinance passed by the town of Lincolnshire in 2015. Whether local governments may adopt such ordinances is not clear. The Seventh Circuit Court of Appeals struck down the Village of Lincolnshire’s RTW ordinance that prohibited any requirement that private sector workers join a union or compensate a union in order to keep their job in a unionized workforce or that employees be recommended, approved, referred or cleared for employment by or through a union. The Lincolnshire ordinance was headed to the Supreme Court for review, but the Court has now declined to hear the case.  

Like Illinois, Missouri has taken action against right-to-work measures.  In 2017, Missouri’s legislature passed a bill that would have allowed private sector workers to opt out of paying union dues.  However, a coalition of labor groups petitioned to put the measure to a vote, and it was defeated in a voter referendum the next year.   We will continue to monitor this evolving area of the law and provide any necessary updates.

Dust off Those Handbooks: NLRB Restores Sanity to Employment Policies

Contributed by JT Charron, December 27, 2017

Thirteen years ago the National Labor Relations Board issued its decision in Lutheran Heritage Village-Livonia, 343 NLRB 646, which held that facially neutral work rules violated the National Labor Relations Act if employees would “reasonably construe” the rule to restrict the employees’ rights to engage in protected concerted activity under Section 7 of the Act. Following that decision, the Board used the “reasonably construe” standard to invalidate even the most well intentioned work rules. See e.g., T-Mobile USA Inc., April 29, 2016 (finding that employer’s policy requiring employees to maintain a positive work environment violated the NLRA).

On December 14, in The Boeing Company, 365 NLRB 154, the Board overturned Lutheran Heritage and articulated a new test for evaluating the validity of facially neutral work rules. In place of the unworkable “reasonably construe” standard, the Board introduced a balancing test for analyzing facially neutral work rules. Under the new standard, the Board will “evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.” (emphasis in original).

Workplace investigation

Examining Documents

Utilizing this standard, the Board reversed the administrative law judge’s decision that Boeing’s no-camera rule violated the NLRA. Instead, it found that the employer’s legitimate business reasons for the policy — protecting proprietary information and national security interests — outweighed any potential Section 7 violation. The Board also articulated three broad categories of work rules that would result from the new balancing test:

  • “Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.”
  • “Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.”
  • “Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.”

Boeing is a big win for employers and represents a clear change in the Board’s attitude towards work rules. While only time — and additional Board decisions — will tell, the new standard should provide “far greater clarity and certainty” to employers in drafting workplace policies. Additionally, employers may want to consider taking a second look at policies previously removed and/or revised in the wake of Lutheran Heritage and its progeny. Finally, as we head into 2018, employers should evaluate all workplace policies in light of the Board’s new balancing test and be prepared with strong justifications for any policies that have the potential to infringe on an employee’s rights under the Act.

You CAN Ask Your Employees To Be Happy! Federal Appeals Court Reins In National Labor Relations Board (NLRB)

Contributed by Beverly Alfon, August 17­, 2017

Labor LawMuch has been written and discussed about the National Labor Relations Board’s (NLRB) attack on handbook policies over the past several years. The NLRB has found what many consider to be run-of-the-mill, standard policies that have, for many years, raised no issues or controversy, to be violative of the National Labor Relations Act (NLRA).

Last year, the NLRB struck down various policies in a handbook issued by T-Mobile, including one that encouraged employees to be professional and maintain a “positive work environment” in T-Mobile USA, Inc. v. NLRB, No. 16-60284 (5th Cir. 2017). In its decision, the Board reasoned: “[w]e find that employees would reasonably construe the rule to restrict potentially controversial or contentious communications and discussions, including those protected by Section 7 of the [NLRA], out of fear that the [employer] would deem them to be inconsistent with a ‘positive work environment.’” T-Mobile appealed the NLRB’s decision to the U.S. Court of Appeals for the Fifth Circuit.

Specifically, T-Mobile challenged the Board’s determination that the following provisions from its employee handbook violated the NLRA because they discouraged unionizing or other concerted activity protected by the Act. Provision (1) encouraged employees to “maintain a positive work environment”; (2) prohibited “[a]rguing or fighting,” “failing to treat others with respect,” and “failing to demonstrate appropriate teamwork”; (3) prohibited all photography and audio or video recording in the workplace; and (4) prohibited access to electronic information by non-approved individuals.

On July 25, the Fifth Circuit held that the Board erred in finding that a reasonable employee would construe policies (1), (2), and (4) to prohibit protected activity. The Court reasoned:

In this case, where the record does not suggest that the rules have been applied in the context of union or collective activity, the ‘reasonable employee’ is a T-Mobile employee aware of his legal rights but who also interprets work rules as they apply to the everydayness of his job. The reasonable employee does not view every employer policy through the prism of the NLRA. Indeed, ‘[the Board] must not presume improper interference with employee rights.’

The Court did agree with the Board’s finding that a reasonable employee would construe policy (3) to prohibit protected activity. It reasoned that unlike the other policies such as the “workplace conduct” policy and “commitment –to-integrity” policy, the recording policy blanketedly forbids certain forms of clearly protected activity. For instance, it would prohibit an off-duty employee from taking a picture of a wage schedule. Notably, last month, the U.S. Court of Appeals for the Second Circuit upheld a similar NLRB decision on workplace recordings.

Bottom line: This federal appeals court decision in T-Mobile USA Inc. v. NLRB gives employers and their counsel additional basis for defending legitimate personnel policies in the face of numerous NLRB decisions issued over the past several years that have been viewed as an attempt to diminish management’s right to set basic employee standards in the workplace. However, it seems that blanket policies prohibiting workplace recordings continue to require careful wording and business justification.

Blunted by the Board: NLRB Weakens Employer’s Right to Permanently Replace Strikers

Contributed by Beverly Alfon, June 30, 2016

11058927 - protesters crowd landscape background illustrationFor more than 75 years, employers have had broad access to a powerful weapon to counterbalance a union’s ability to engage in an economic strike: the right to permanently replace those economic strikers. On May 31, however, the National Labor Relations Board (NLRB) replaced that powerful weapon with a water gun. In a 2-1 decision, the NLRB held that despite the economic nature of a strike, an employer violated the National Labor Relations Act (NLRA) by permanently replacing strikers because the employer was motivated by “a purpose prohibited by the Act.” American Baptist Homes of the West, 364 NLRB No. 13 (May 31, 2016). This ruling effectively overruled long-standing NLRB case law which stood for the principle that employer motive to permanently replace strikers is irrelevant in the context of an economic strike.

In this case, the union and employer were engaged in contract negotiations for 4 months before the union issued a notice of intermittent strike (5 days). Picket signs confirmed that the union was striking over economics:  health care and pension. After day one of the strike, the employer exercised its right to permanently replace a majority of the economic strikers. In finding that the employer violated the Act, the NLRB focused on the following facts:

  • The individual who made the decision to hire the permanent replacements admitted that she was motivated by her desire to avoid another strike at the facility. She “assumed that because these people [temporary workers who the Company extended the permanent job offers to] were willing to work during this strike, they’d be willing to work during the next strike.”
  • When the union’s attorney asked the employer’s attorney for an explanation for the permanent replacements, he replied that the employer “wanted to teach the strikers and the Union a lesson.”

If this Board decision is upheld by the Courts, it will likely result in a marked shift of power at the bargaining table that will empower unions to use the leverage of a strike (including intermittent strikes) with less risk to its members, while weakening the employer’s ability to use the leverage of permanent replacements. As described by the dissenting NLRB member, this decision is “a substantial rearrangement of the competing interests balanced by Congress when it chose to protect various economic weapons, including the hiring of permanent replacements.”

Bottom line:  Since March 2016, NLRB charges involving allegations of unlawful motive in the permanent replacement of economic strikers have been subject to heightened scrutiny. NLRB regional offices are required to send these cases up to the NLRB’s Division of Advice in Washington, D.C. for “centralized consideration.” Accordingly, any employer who may consider permanent replacement of economic strikers should consult with counsel to ensure there are legitimate business reasons to defend the decision to permanently replace strikers.

Yep, That Non-Union Employee’s Attitude Is Likely Protected

Contributed by Beverly Alfon

Sure, you’ve heard that non-union employees are protected by the National Labor Relations Act (NLRA), too. But do you realize just how quickly the protections of the Act can come into play?  If your front line managers are not properly trained, an employee’s attitude could quite literally turn a situation into a federal case.

14815491_sA federal appeals court recently affirmed the decision of the NLRB against an employer in a case where a non-union employee engaged in conduct that most employers would consider as straight up insubordination, Staffing Network Holdings, LLC v. NLRB, 2016 BL 62551, 7th Cir. No. 15-1534, 3/2/16. This case involved a staffing agency that provided its own employees, including an onsite supervisor, to stock its products. The supervisor had only been working for the company a few months, when a new employee told him that he would not work faster for $8.25 an hour. The supervisor directed the employee to go home because of his attitude and inability to keep up with work. This angered other employees, including Griselda Barrera, who briefly stopped working to tell the supervisor that sending the employee home was unfair. The supervisor told them to get back to work or he could also send them home for their attitude. Barrera refused to go back to work.

The supervisor angrily and repeatedly asked Barrera if everything was fine and told her again he could send her home if she had an issue. Barrera asked the supervisor if he was threatening her. Barrera countered by stating that she could send a letter to the IL Department of Human Rights. The supervisor told her to go home. Barrera refused to leave, insisting that she did nothing wrong. Then the supervisor’s assistant told Barrera to go home and not return to work.

Barrera filed an unfair labor practice charge with the regional NLRB office. The regional director issued a complaint against the employer alleging that it violated the Act by threatening to discharge employees for engaging in protected, concerted activity and by discharging Barrera. The administrative law judge (ALJ) rejected the employer’s assertions of insubordination and awarded back pay and reinstatement to Barrera. The Board affirmed the ALJ findings. The federal appeals court also upheld the decision, noting that “a brief on-the-job work stoppage is a form of economic pressure entitled to protection under the Act.”

Bottom line: Train your front line managers so that they are prepared and react correctly in these situations. A manager’s own behavior (e.g., threatening discharge for the employee’s bad attitude) can provoke an employee into protected activity, even if it appears to be insubordination. This does not mean that “anything goes” for an employee who is protesting a work term or condition, but an employee’s disrespect, rudeness or defiance toward a supervisor in that context will likely be protected under the NLRA.

 

 

California Passes Tough Equal Pay Law: Prepare Now for the January 1, 2016 Effective Date

Contributed by Jonathon Hoag

California Governor Jerry Brown has signed into law an amendment to California’s gender pay equality law to make it one of the toughest equal pay laws in the nation. The new law takes effect January 1, 2016, giving California employers just a couple of months to prepare.

California and federal law currently prohibit employers from basing pay on an individual’s gender. The California legislature determined that a gender gap of 16 cents on the dollar still exists notwithstanding current laws. Accordingly, the new law includes strict standards with the aim of closing the gender pay gap in California.

gender equalityExisting law requires equal pay for equal work performed in the same establishment. The new law changes this standard by requiring equal pay for those performing “substantially similar” work regardless of job title. In addition, pay comparisons are not limited to the same establishment, allowing comparisons with employees working at different locations (bona fide differences based on regional cost of living differences are acceptable, but this is going to be subject to challenge).

If a pay differential between substantially similar positions is shown, the employer has the burden to establish that the pay differential is based on one or more of the following permissible factors: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality of production; or (4) a bona fide factor other than sex, such as education, training or experience. While these exceptions remain the same as existing law, employers will be required to show that each factor was relied upon reasonably and that the factors account for the entire wage differential.

The new law includes an additional private right of action for employees who claim they have been discharged, discriminated, or retaliated against for exercising their rights under the statute. The law also gives employees the right to disclose, inquire, and discuss wages, which reflect current enforcement practices under the National Labor Relations Act.

California’s new equal pay law is expected to increase employment-based claims and litigation. Employers should take the following steps to prepare and limit exposure to such claims:

  • Review substantially similar jobs to detect any pay differences.
  • Identify the factors that justify any pay differences and organize documentation that shows the factors are reasonably applied and account for the entire differential.
  • Ensure recordkeeping policies/practices for wage-related information provide for at least a 3-year retention period.
  • Train supervisors on the new requirements, including the employees’ right to discuss wages.
  • Conduct periodic audits to maintain compliance.

Hospital’s Second Bite at the Apple Violated Unionized Employees’ Rights for Open Positions Between Facilities

Contributed by Heather Bailey

Last week, the National Labor Relations Board (“NLRB”) – although divided – affirmed that Southcoast Hospitals Group violated unionized workers’ rights under Section 8(a)(3) and (1) of the National Labor Relations Act when the hospital created an open position hiring and transfer policy that gave unrepresented workers preference over unionized employees at the non-unionized hospitals.

Southcoast, located in Massachusetts, was comprised of 3 hospitals and 20 ancillary locations. The unionized employees made up 215 of the 550 employees who worked at one of the three hospitals, Tobey. The employees, unionized or not, were allowed to cross-pollinate between the three hospitals for open positions.  Since 1996, the parties’ collective bargaining agreement gave unionized employees the leg up when it came to hiring and transferring to open positions at Tobey and were to be given the “most senior qualified” preference for these positions. Somewhere around 1997-98, the hospital tried to negotiate and change this language to the “best qualified” which would have put the unrepresented employees at the same advantage as the unionized workers. This, of course, was rejected by the Union.

In 1999, the hospital decided to unilaterally change its written human resources policy to the following:

  • Upon application, regular status employees who are beyond the introductionary [sic] period will be given first consideration for job postings providing the regular status employee’s qualifications substantially equal the qualifications of external candidates. Employees in a union will be considered internal candidates if the collective bargaining contract provides reciprocal opportunity to employees who are not members of the union for open positions at the unionized site. Temporary and per diem status employees will be considered prior to external applicants . . . . Employees in a union whose collective-bargaining contract does not provide reciprocal opportunity to employees who are not members of the union will be considered external candidates.

The hospital defended its actions by stating 1) it was trying to head off unrepresented employee complaints of being shut out of represented employee positions (yet, the hospital did not bring one complaining employee or applicant forward) and 2) it was trying to “level the playing field” for the unrepresented employees at the other two hospitals to that of the unionized employees at Tobey. However, the underlying judge noted that the union employees only comprised of 215 of the 550 positions. Thus, the unionized employees were discriminated against and hindered in job advancement for being in the union because the unrepresented employees now had a much higher disproportionate amount of open positions that they were getting preferential treatment for over the unionized employees.

Ultimately, the NLRB agreed that neither of the reasons gave the hospital a “legitimate and substantial business justification” to thwart the unionized employees’ Section 7 NLRA rights that would outweigh the impact this HR policy had against unionized employees who had collectively bargained for rights at their hospital. Among other edicts of back pay and tax consequences and the requirement to reconsider passed over unionized employees for the positions at the non-unionized hospitals, the hospital was ordered to rescind its HR policy and notify all of the employees of same.

Practice Tips: NLRB scrutiny of employer policies is at an all-time high. Any employment policy or practice that makes a distinction between employees based on union member status must be scrutinized for any potential (or actual) adverse effect on the union members and potential (or actual) advantage provided to the non-union employees. If the change is going to give the unionized employees less rights, less opportunities, etc., it is better to be creative and think of a different approach (or get the union’s blessing before making the change). Whenever going against a collective bargaining agreement, it is best to run the change by your labor counsel first.