Tag Archives: Unions

Decision Reminds Employers to Think Before Speaking to Employees About Union Issues

Contributed by Suzanne Newcomb

On September 4, a Federal Appeals Court upheld a National Labor Relations Board (NLRB) decision finding management comments to employees during the early stages of a union organizing campaign unlawful. Section 8(a)(1) of the National Labor Relations Act makes it unlawful “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Section 7 rights include “the right to self-organization, to form, join, or assist labor organizations.” The NLRB and the Courts interpret this language broadly.

people shaking handsBack in 2011 rumors about a possible unionizing campaign prompted an in house attorney and regional HR director to meet with employees, one of whom secretly taped the meeting. Comments made during that meeting were found to unlawfully: (1) threaten by suggesting unionizing was futile; (2) imply a promise of pay increases if the employees did not vote for a union; (3) threaten that unionization would result in demotion for some employees; and (4) threaten blacklisting of union supporters.

The following comments by management officials during the meeting were found to unlawfully imply that unionizing was futile and would not produce the benefits sought:

  • Be “very careful” when listening to the union’s “sales pitch.”
  • “In many cases, when you enter these negotiations, if you ever get there, employees tend to lose things.”
  • Negotiations are “a wide open game of uncertainty” in which “nothing is guaranteed” even if the union wins the election.
  • Answering “it’s possible” when asked if unionizing would cause wages to decrease adding, “we start from scratch…we don’t start with what you guys are making today.  Everything goes to zero.”
  • Employees at a unionized location have gone nearly three years without a bargaining session or contract. The bargaining process is “never automatic” and employees might never see the benefits they seek.

The finding of an unlawful implied promise to raise wages arose when, in response to an employee’s specific request, management agreed to review the current pay structure to ensure it was fair and competitive adding, “we want a chance to address … [your concerns] before you pay somebody else to address them.”

Management’s answer to questions about the apprentice and journeyman system was found to be an unlawful threat to demote certain employees if the workforce unionized. Finally, reference to union membership as a “scarlet letter,” and suggestions that other employers might be less inclined to hire job applicants who had worked in a union shop, were deemed unlawful threats to blacklist employees for union activity.

As the Court stated, “the underlying message…is that an employer…needs to take care in the rhetoric it uses when discussing union issues with its workers.” Employers must be very careful when discussing union related matters with their employees. Special and careful considerations must be paid to developing labor law. Detailed scripts, approved through seasoned labor counsel, should be in place to ensure appropriate language is being communicated.

For Every Employer Action, There Is a NLRB Reaction: Board Expands Scope of Protected Concerted Activity Again

Contributed by Beverly Alfon

In a recent decision, Central States Southeast and Southwest Areas, Health & Welfare and Pension Funds, 362 NLRB No. 155 (Aug. 4, 2015), the National Labor Relations Board (NLRB) held that an employee’s posting of a written warning at his cubicle was protected, concerted activity. The employee, Frederick Allen Moss, received the written warning from his supervisor for refusing to stop using his electronic tablet during a work meeting. In response, Moss laminated a copy of it and posted it next to his computer so that it was visible to anyone who entered his cubicle or stood at the entrance of his cubicle.

During a grievance meeting between management and Moss’ union, the supervisor complained that Moss was being disrespectful and insubordinate. The director of Moss’ department (the supervisor’s boss) told Moss that if he did not remove the posting, he would suspend Moss for three days. Moss took down the posting after the union advised him to do so. However, the director’s threat landed the employer before the NLRB.

The administrative law judge who heard the case found the employer’s threat to be an “overreaction” – but not any violation of the National Labor Relations Act. He found no evidence that Moss sought the support of other employees in the grievance process or that his posting advanced his cause in the grievance process. He found no evidence that Moss was seeking the support of other employees because they wanted to be able to use their electronic devices freely while at work or to protest unfair discipline in general. He found no common cause to bring Moss’ conduct under the protection of protected, concerted activity. Nonetheless, the Board in Washington D.C. reversed the ALJ and found violations of the Act.

9637576_sThe Board reasoned that the posting was protected because it was related to other means of communicating with other employees about discipline. Without reasoning, however, the Board dismissed the uncontested fact that Moss and the employees continued to openly discuss the written warning before and after the posting. The Board rejected the employer’s argument that it had a legitimate business justification to “remov[e] open displays of insubordination because such displays are disruptive and undermine management’s authority,” concluding that the employer had no factual basis for deeming the posting to be insubordinate.

Notably, the Board also found that the direction for Moss to remove the posting amounted to an unlawful work “rule” because it was communicated in the presence union stewards who could reasonably interpret that direction as a rule against any discussion of discipline through the physical posting of the discipline.

Bottom line:  Whether or not you have a unionized workforce, this decision serves as a reminder that when an employee responds to discipline – comparative choices for any employer reaction should be carefully evaluated in light of the real potential for substantial and expensive litigation before the NLRB. Also, if you have not done so already, train your managers and supervisors regarding the NLRB’s increased scrutiny of employer work rules.

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.

What a Joke! NLRB Certifies Union Despite Election-Related Threats

Contributed by Noah A. Frank

On April 29, 2014, a three-member panel of the NLRB certified a union as an exclusive bargaining representative despite election-related threats being made by pro-union employees.  The case is ManorCare of Kingston, PA, LLC & Laborers Int’l Union of N. Amer. Local 1310, NLRB No. 04-RC-109516 (Apr. 29, 2014).  Specifically, at least two pro-union employees threatened that they would “start punching people in the face,” damage people’s cars, and otherwise physically harm coworkers who voted against the union.  These threats were then repeated to other employees.

Despite the Hearing Officer finding that the threats were made in a joking manner, he nonetheless recommended that the election be set aside because the threats were repeated to other employees who were not able to tell whether the threats were serious.  Because the Hearing Officer determined that the repeated threats likely influenced employees in the way they cast their votes, he determined that the election, won by the union by a count of 34-32, should be set aside and a new election, free of such threats, conducted.

The union appealed the Hearing Officer’s direction of a new election to the NLRB.  The NLRB agreed with the union and concluded that because the threats were made by employees who were not agents of the union, and were made in a joking manner, the threats could not be cause to overturn the election—even though the threats were repeated to other employees on the day of the election who may not have known they were made jokingly.

The NLRB held that merely repeating the joking and casual manner threats did not transform the original threats into objectionable conduct such that the election would be set aside.  In dissent, member Johnson indicated that he would set the election aside in the circumstances because if only one vote was affected by the repeated threats, the outcome of the election would have been different.  Member Johnson would find the statements objectionable based on their impact, regardless of the original intent of the speakers.

Joking is all fun and games, until someone gets hurt . . .

This decision reinforces the pro-union tilt of the current NLRB. There was no dispute that the statements were made and repeated.  If just one employee was afraid of having his or her “face punched in” and car damaged and voted for the union as a result, then there could be no free election possible.  The NLRB improperly substituted its judgment for that of the hearing officer – who had the ability to determine how pervasively disseminated the statements were and the impact on the employees who heard the repeated threats.

During election campaigns, employers should carefully note any reports or complaints of threatening conduct and language, including “jokes.” Promptly investigate the facts and carefully document the “effect” of such threats on the employees voluntarily voicing concerns about them.   Because the NLRB is unlikely to overturn an election even affected by threats from pro-union employees (as from now on it can be anticipated that such threats, when made by pro-union employees, will be characterized as jokes) employers will need to quickly and effectively deal with such situations to diffuse the effect of such threats on employees eligible to vote.

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.