Labor Law & NLRB

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On March 23, 2016, the Department of Labor released the long-pending revisions to the “persuader rule,” drastically expanding employers’ disclosure requirements regarding their use of union avoidance consultants, including attorneys as well as HR consultants and media specialists. Our firm, on behalf of Worklaw, an international management-side network of labor and employment firms, will be filing suit to block implementation of the rule.

Under the “persuader rule” in the Labor-Management Reporting Disclosure Act of 1959 (LMRDA), employers are required to file reports and disclose expenditures to the DOL each time they engage a consultant to persuade employees regarding employees’ rights to organize. However, the LMRDA provides an “advice exception,” which had been interpreted for over 50 years to exclude an employer’s discussions with its labor relations consultants – including legal counsel – regarding opposition to a union organizing campaign, as long as the consultants had no direct contact with employees.

Under the new rule, however, the scope of an employer’s reporting obligations under the LMRDA has been substantially expanded, and will include a broad range of activities beyond “direct contact” provided by labor relations consultants – including attorneys. The intent of this one-sided rule is to discourage employers from retaining such consultants, and thereby promote unionization.
Continue Reading DOL Issues Persuader Rule

As a follow up to my last post on political discussions in the workplace, I thought it might be helpful to employers to discuss other, material aspects of politics in the workplace – such as campaign posters, flyers, buttons, and clothing.

Given that, as we now know, you can ban (most) political speech in the workplace, most of you will not be surprised that you can ban (most) political paraphernalia in the workplace. There are caveats, of course.donkey-and-elephant

First, you may have a solicitation and distribution policy that would prohibit posters (soliciting political support) in employees’ workspaces, or the distribution of political flyers in working areas. Similarly, your dress code policy may instruct employees that they may not wear clothing with slogans or words (political or otherwise).Continue Reading Political Paraphernalia in the Workplace

As a management-side labor firm, we are constantly in opposition to unions. So we particularly enjoy the irony when a union – as an employer – is found to have violated the National Labor Relations Act. (Yes, unions do violate the NLRA!) On December 1, 2015, in Amalgamated Transit Union, Local 689 and Tamar C. Simmons, the National Labor Relations Board ruled the Union violated the NLRA by disciplining and threatening to fire one of the Union’s administrative assistants.my way highway

The employee was a member of Office and Professional Employees (“OPELU”) Local Union 2, a union which routinely represents workers within the ATU. (Yes, the union itself is unionized!) Her job duties consisted of answering phones, processing grievances, handling incoming mail, and ensuring that a bulletin board was current. OPELU filed a grievance on the employee’s behalf after the president of the Union transferred some of her administrative tasks to non-bargaining unit employees.

The grievance was eventually dropped, but that did not stop the Union President from interrogating the employee about the timing of her break time. He also got “very angry” at the employee for talking about her breaks with another employee and told her to stop doing so. He issued her a warning letter about her attitude and tone, and also counseled her about keeping the bulletin board updated. Of particular significance, he suggested that if the employee was unhappy at work, she should quit.Continue Reading Union Violates Employee’s Labor Rights

As you may know, the National Labor Relations Board substantially revised the rules governing the union elections process, by which employees choose whether or not they wish to be represented by a union. The controversial revisions greatly sped up the process, with the effect that employer had less time to educate their employees about the impact of unionization before an election is held – which means more unionization (hence the controversy!).

These revised “quickie election” rules took effect in April 2015. Because the rules themselves were not troubling enough for employers, we now have to contend with the Board’s expansive interpretation of those rules. Here’s an example of what I mean.

As part of the election process, the employer must provide a voter list to the union, containing the names and contact information for all employees eligible to vote in the election. Before the revisions, this list consisted of the names and addresses of eligible voters. This information is readily available from a company’s human resources department, through its database or records. The revised rule, however, requires that the list must now include “available” personal e-mail addresses, and home and cell phone numbers.Voting List

What does this mean? Well, in the Danbury Hospital of the Western Connecticut Health Network case, the employer generated a list from its HR database. The list contained the addresses and emails for all the eligible voters, and phone number for 94% of them.
Continue Reading NLRB Imposes Expansive (and Onerous) Requirements For Preparation of Voter List

In a long-awaited and split decision, Browning-Ferris Industries of California, Inc., the National Labor Relations Board addressed whether BFI should be deemed a joint employer with the staffing agency whose employees performed various work functions for BFI and, in so doing, the Board revised its 30+-year standard for determining joint employer status. According to the three-member Democratic majority, the new standard in intended “to better effectuate the purposes of the Act in the current economic landscape.” This decision clearly alters the landscape for staffing agencies and host companies utilizing the services of staffing agencies. The two-member Republican minority castigates the new standard as a test that “confuses the definition of a joint employer and will predictably produce broad-based instability in bargaining relationships.”

The Staffing Arrangement Between BFI and Leadpoint

BFI owns and operates a recycling facility. It employs its own employees to operate forklifts and loaders on the outside portion of its facility, where the material to be recycled is delivered, moved around, and staged for processing. These 60 employees are represented by the Teamsters Union and subject to a collective bargaining agreement. Inside the recycling facility are conveyor belts on which the material to be recycled is placed for sorting and screening. A temporary staffing agency, Leadpoint, provides 240 workers to perform the sorting and screening services, as well as housekeeping services for BFI. Leadpoint also provides on-site supervision and lead workers who create the workers’ schedules and oversee the work.

The staffing arrangement between BFI and Leadpoint is typical of the type of arrangement that many companies have with the staffing agencies that they use. Under the staffing agreement, Leadpoint is responsible for the recruiting and hiring of workers, although it must ensure that the workers have the appropriate qualifications to perform BFI’s work. Leadpoint also conducts drug testing, piece-of-the-job testing, and background checks. Leadpoint is responsible for all discipline, evaluation and termination of the workers, but BFI has the authority to order the removal of any worker. Leadpoint sets the wages for its workers, although the agreement specifies that the wages cannot exceed those paid to BFI workers performing similar tasks (of which there was one worker, making $5.00 more per hour). All benefits, including holidays, PTO, and insurance are provided by Leadpoint.Continue Reading NLRB Issues New Joint Employer Standard

Recently, The Century Foundation, a group that pursues “non-partisan research and policy analysis” released a report on virtual labor organizing. The report assesses how a mobile application (“app”) or website could provide a platform that would help workers organize for labor campaigns.

According to the report, approximately 96 percent of workers use Internet, e-mail, or…

In 1947, Shawe Rosenthal’s founder, Earle K. Shawe, filed the first unfair labor practice charge against a union under the Taft-Hartley Act. Now, in another major labor law first, S&R represented a Baltimore-based distribution company in the first NLRB election conducted by the Board in its Region 5 (generally covering the mid-Atlantic area) under its…

Absent an injunction issuing in one of the pending cases challenging the National Labor Relations Board’s Final Rule substantially revising its representation case procedures, the rules become effective April 14, 2015. The practical effect is that representation elections will be held in a shorter period of time, which reduces the ability of employers to educate…