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Tag Archives: Union

NLRB Says Organizer Access to Public Spaces is Not on the Menu

By John Alan Doran Over thirty-five years ago, the NLRB held that an employer may not prohibit a union organizer’s access to an employer’s privately owned, but publicly accessible areas, such as an employer’s public restaurant or cafeteria, unless the…
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2019-06-18T14:30:59-06:00

Posted on June 18, 2019

By John Alan Doran

Over thirty-five years ago, the NLRB held that an employer may not prohibit a union organizer’s access to an employer’s privately owned, but publicly accessible areas, such as an employer’s public restaurant or cafeteria, unless the organizer engages in “disruptive” conduct.  A long line of subsequent Board decisions confirmed this rule.  However, last Friday, the Board unequivocally reversed a slew of its prior decisions on this issue in UPMC, 368 NLRB No. 2 (06-CA-102465, June 14, 2019).

UPMC is a hospital facility that provides a publicly accessible cafeteria.  Union organizers held a peaceful lunch meeting with some UPMC employees in the cafeteria.  When UPMC Security learned of this, they called the police and had the organizers removed.  The union filed unfair labor practice charges, and an Administrative Law Judge found in favor of the union. 

On appeal, the Board reversed the ALJ’s decision.  The Board reviewed a long line of federal circuit court decisions resoundingly criticizing the Board’s historical approach to organizer access to public spaces, and noted that the Board’s long-standing position directly contravened existing Supreme Court jurisprudence.  The Board concluded that organizer access to privately owned, public spaces is governed by the Supreme Court’s decision in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1965), which held that an employer may lawfully exclude union organizers from its property, except in the very rare instances where either the union has no other reasonable means to communicate with employees or where the employer discriminates against the union by allowing solicitation or distribution by others but not the union.  Applying Babcock & Wilcox to these facts, the NLRB held that the employer did not violate the Act by removing the organizers because they were engaged in distribution and solicitation and the employer had consistently excluded other patrons who engaged in such activities for non-union purposes.

While the UPMC decision noted that the ruling should not impact existing employer no-distribution/no-solicitation rules, it likely does impact the application of existing employer rules for employers that have publicly accessible areas on their private property.  Regardless, this landmark ruling should prompt all employers to revisit both the language and the enforcement of their no-distribution/no-solicitation rules to ensure that they are legal, robust, up to date, and consistently enforced.  Employers are also wise to note that they may not exclude union organizers from public areas merely because they are organizers—it is the conduct of soliciting or distributing that supports their exclusion, not their mere affiliation with a union. 

Posted in NLRB, Uncategorized, Union Issues | Tagged Public Space, Union, Union Organizing

Epic NLRB Benchslap

By John Doran An agreement between the UFCW and the Fred Meyer grocery store chain restricted the union’s ability to visit with store employees in public view.  But things went south when the UFCW declared war on Fred Meyer.  Some…
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2017-08-07T16:36:52-06:00

Posted on August 7, 2017

By John Doran

An agreement between the UFCW and the Fred Meyer grocery store chain restricted the union’s ability to visit with store employees in public view.  But things went south when the UFCW declared war on Fred Meyer.  Some eight union representatives showed up at a Fred Meyer store and began disrupting business and violating the parties’ agreement on union store visits.  The situation quickly escalated and three union representatives were arrested.  The NLRB found that Fred Meyer unlawfully changed its policy concerning union visits during this incident, and ordered the store to make whole the three union representatives who were arrested.  The D.C. Circuit flatly disagreed. Fred Meyer Stores, Inc. v. NLRB, No. 15-1135 (D.C. Cir. August 1, 2017).

The Court’s NLRB criticisms are astounding.  The court described the NRLB’s decision as “more disingenuous than dispositive; it evidences a complete failure to reasonably reflect upon the information contained in the record and grapple with contrary evidence—disregarding the need for reasoned decision making.”  The Court sharply criticized the Board for completely ignoring facts, and pointed to the Board’s “tone deafness” to key facts.  The Court concluded that “the Board’s actions in this matter are more consistent with the role of an advocate than an adjudicator.”  To that, we say: “hear hear!”

Posted in NLRB, Union Issues | Tagged NLRB, UFCW, Union

Persuader Rule Permanently Benchslapped

By John Alan Doran Today a federal judge entered a permanent injunction preventing the DOL from implementing its so-called “Persuader Rule”, which created substantial disincentives for the use of persuaders and attorneys during a union organizing campaign.  National Federation of…
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2016-11-16T14:39:00-07:00

Posted on November 16, 2016

By John Alan Doran

Today a federal judge entered a permanent injunction preventing the DOL from implementing its so-called “Persuader Rule”, which created substantial disincentives for the use of persuaders and attorneys during a union organizing campaign.  National Federation of Independent Business, e  al. v. Perez, No. 5:16-cv-00066-C (N.D. Tx. Nov. 16, 2016).  We previously wrote on this same case, when the same judge issued a preliminary injunction against the rule. (Enforcing Persuader Rule Enjoined)  In an extremely succinct opinion, the judge entered summary judgement against the DOL and converted the preliminary injunction into a permanent injunction.  What happens from here is anybody’s guess given our recent election results, but it’s a fairly safe bet that we have heard the last of this rule for the next four or so years at least.  Even were the DOL to appeal the decision before President Obama’s term ends, the new administration would have sufficient time to withdraw that appeal before it is ever heard.

 

Posted in DOL, Union Issues | Tagged DOL, persuader rule, Union, Union Organizing

NLRB Classifies TAs as Employees

By Bill Wright The NLRB chose not to interfere with collegiate football.  Northwestern University, Case 13-RC-121359 (August 17, 2015).  Collegiate teaching assistants, though, are another thing.  In Columbia University, Case 02-RC-143012 (August 23, 2016), the Board reversed another established precedent…
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2016-08-23T13:13:52-06:00

Posted on August 23, 2016

By Bill Wright

The NLRB chose not to interfere with collegiate football.  Northwestern University, Case 13-RC-121359 (August 17, 2015).  Collegiate teaching assistants, though, are another thing.  In Columbia University, Case 02-RC-143012 (August 23, 2016), the Board reversed another established precedent to assert that teaching assistants (“TAs”) are “statutory employees” and may choose to have union representation.  The Board majority’s reasoning, roughly, was that the NLRA covers any employee (except managers), unless there are good reasons to exclude them; and there is no empirical evidence to justify excluding TAs.  As the dissenting Board member pointed out, all those NLRB decisions we’ve been blogging about now apply in the college setting: TAs may use strong and abusive language about their supervisors in public media posts; college investigations (e.g. into sex harassment of students) might not be kept confidential; and colleges won’t be able to enforce vague civility rules like “collegiality.”  Many public universities already have state-authorized collective bargaining, but the liberal arts college experience might be forever altered.  Too bad we can’t gather empirical evidence from the future.

Posted in NLRB, Union Issues | Tagged NLRA, NLRB, Union, Union Issues

Which Petard?

By Bill Wright Title VII says a union may not refuse to refer a person for work on discriminatory grounds. In a recent case, the plaintiff alleged that, because of her sex, her union never referred her to a job…
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2014-11-18T14:22:25-07:00

Posted on November 18, 2014

By Bill Wright

Title VII says a union may not refuse to refer a person for work on discriminatory grounds. In a recent case, the plaintiff alleged that, because of her sex, her union never referred her to a job driving for movie production companies. The trial court dismissed the case, noting the plaintiff was “hoist by her own petard” by alleging she knew of the discriminatory conduct more than 300 days before filing. The 7th Circuit rejected the trial court’s reasoning—the plaintiff had alleged failure to refer her to available jobs within 300 days. On appeal, the union also argued that it never made a referral; the employers simply chose drivers from available resumes. But, according to the plaintiff, the union representative told her he did refer drivers for jobs when there were openings. The union might be the one hoist by an admission. The parties will have to ask questions and have depositions before the courts can tell whether the union violated the law. It just goes to show that, the right allegation will cause protracted litigation even without proof. Stuart v. Local 727, IBT, No. 14-1710 (7th Cir. Nov. 14, 2014).

Posted in Discrimination, Union Issues | Tagged Discrimination, Union

Micro Bargaining Units Headed to Retailers

By John Alan Doran The NLRB has affirmed the certification of a micro bargaining unit at a Macy’s retail store.  Macy’s Inc. and Local 1445, UFCW, 361 NLRB No. 4 (July 22, 2014)  The certified unit consists solely of roughly 40…
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2014-07-24T11:33:05-06:00

Posted on July 24, 2014

By John Alan Doran

The NLRB has affirmed the certification of a micro bargaining unit at a Macy’s retail store.  Macy’s Inc. and Local 1445, UFCW, 361 NLRB No. 4 (July 22, 2014)  The certified unit consists solely of roughly 40 cosmetics and fragrance counter workers. Micro bargaining units, as the term suggests, are groups of employees considerably smaller than the actual workforce, and typically smaller than the larger group of employees that would normally be considered appropriate as a bargaining unit. There are at least two major problems with micro bargaining units. First, as a general proposition, the smaller the proposed bargaining unit, the more likely the unit is to garner enough votes to bring in a union. Second, and far more concerning, micro bargaining units promise balkanization of the workforce because multiple micro units within the same work area could be represented by different unions with competing and mutually exclusive demands and agendas.

In this ruling, the Board has expanded the scope of its highly controversial Specialty Healthcare decision, which first recognized micro bargaining units. Specialty Healthcare and Rehab. Center of Mobile, Inc., 357 NLRB No. 174 (December 30, 2011). The decision is consistent with the Board’s continuing mission to make elections easier for unions and more one-sided, with utter disregard for the havoc that will ensue in the workplace.

Posted in NLRB | Tagged Micro Bargaining, NLRB, Union

NLRB Concocts New F’ing Profanity Excuse

By John Alan Doran In 2005, a Starbucks barista walked into his store with several co-workers while off duty. He was there to protest Starbucks’ policy concerning baristas wearing pro-union pins. A row ensued between the barista and an off-duty…
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2014-06-20T09:00:25-06:00

Posted on June 20, 2014

By John Alan Doran

In 2005, a Starbucks barista walked into his store with several co-workers while off duty. He was there to protest Starbucks’ policy concerning baristas wearing pro-union pins. A row ensued between the barista and an off-duty manager of a different Starbucks store who just happened to be enjoying a triple venti mocha loco latte triple espresso with two packs of sweet and low and a dash of cream at the time. The two exchanged heated words, including F-bombs, and the barista threatened the visiting manager before the matter was diffused.  Two weeks later, Starbucks fired the barista for using obscenities in front of customers.  Most unfortunately, the termination papers noted that the barista was not eligible for rehire because of his conduct, but added that the barista strongly supported the union.

The NRLB originally ruled that the barista was engaged in protected activity regardless of his multiple F-bombs and threats, and therefore the firing was unlawful.  A federal appeals court reversed the NLRB’s ruling because the NLRB’s standard failed to give any import to the barista’s boorish conduct.  When the case returned to the NLRB for reconsideration, the Board minted a brand new theory to find that the firing was unlawful.  Applying its long-time Wright Line rule, the Board found that the barista’s union support must have played some role in his firing, and the employer was supposedly unable to prove that it would have fired him even if he wasn’t a union supporter. Starbucks Corp., 360 NLRB No. 134 (June 16, 2014)

Tips for the day:  The next time you are inclined to note a fired employee’s pro-union leanings in a termination document, pause, treat yourself to a grande frappamochachino caffe misto with a shot of green tea and a dash of pumpkin spice, and forget about writing that termination document.  Also, if I’m ever behind you in line at a Starbucks, please just order a large black coffee and move along.  Thank you.

Posted in Human Resources/Employee Relations, NLRB | Tagged termination, Union

Can you hear the whistle blowing?

By Bill Wright The courts continue to explain the burdens applicable to certain whistleblower statutes enforced by the U.S. Department of Labor (“DOL”). The statutes that use the procedure adopted by the Sarbanes-Oxley Act require the complainant to prove by…
Read More

2013-03-08T20:45:37-07:00

Posted on March 8, 2013

By Bill Wright

The courts continue to explain the burdens applicable to certain whistleblower statutes enforced by the U.S. Department of Labor (“DOL”). The statutes that use the procedure adopted by the Sarbanes-Oxley Act require the complainant to prove by a preponderance of the evidence that protected activity was a contributing factor to an adverse action. Then, the employer has the burden to show by clear and convincing evidence that it would have made the same decision regardless of the protected activity. In this case, the Administrative Law Judge who heard the evidence believed that the complainant could carry his burden just by raising an inference of retaliation and then showing that the employer’s stated rationale for the decision was a pretext for retaliation. Not so. The complainant’s burden is to show his prima facie case by a preponderance of the evidence. Bechtel v. ARB & Competitive Technologies Inc., No. 11-4918-ag (2nd Cir. March 5, 2013).

The stiffer requirements for a prima facie case under these DOL whistleblower statutes balances (somewhat) the harsh remedies available at even the administrative stage in these claims, but we still see the headlamp of these enforcement actions bearing down on us.

Posted in Whistleblower | Tagged Administrative Law, adverse action, DOL, Retaliation, Sarbanes-Oxley, Union | Leave a reply | Leave a reply | Leave a reply | Leave a reply

Anti-Harassment Policy Covers Anti-Union Harassment

By Rose McCaffrey Employees who engage in pro-union campaigning are protected from retaliation by the National Labor Relations Act, but not when campaigning activity reaches the level of harassment or intimidation. But where is that dividng line? A recent case…
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2013-03-05T17:21:06-07:00

Posted on March 5, 2013

By Rose McCaffrey

Employees who engage in pro-union campaigning are protected from retaliation by the National Labor Relations Act, but not when campaigning activity reaches the level of harassment or intimidation. But where is that dividng line? A recent case gives an example. NLRB v. Arkema, Inc., No. 11-60877 (5th Cir. Feb. 28, 2013). In this case, a “chief operator” told a female co-worker that, if she did not support the union in a de-certification vote, relationships would change at the plant. “Fearing for her safety and job,” the woman complained. She said the chief operator had told her that male employees would not come to her aid in an emergency if she did not support the union. During the resulting investigation, the chief operator confirmed that he had said he wouldn’t help her “carry her load,” but maintained that he would still help her if she were in danger. He denied mentioning the woman’s sex when he spoke to her. The employer disciplined the chief operator under its anti-harassment policies and also sent out a notice to employees advising them that the union could not harass them for anti-union views.

For its part, the NLRB concluded that the employer had no basis to believe that the employee had violated company policy, because the employee “did nothing that could conceivably be considered to have created an offensive environment.” On the other hand, the court concluded the employee’s threat to the female co-worker was “eminently credible” because the chief operator’s conduct was designed to threaten or intimidate, rather than to persuade; the chief operator admitted that he intended to communicate to his co-worker that he would withdraw the help on which she depended to do her job; and the chief operator was in a position to actually enforce his threat because of his rank and position at the plant.

Harassment and intimidation are not protected concerted activities, but, despite this case, there’s still a large tract of gray between pro-union campaigning and harassment. Employers should always consult labor counsel before disciplining in the gray zone.

Posted in Harassment, NLRB, Union Issues | Tagged de-certification vote, Hrassment, NLRB, offensive work environment, Union | Leave a reply | Leave a reply | Leave a reply | Leave a reply

Court Hangs Up on Labor Dispute

By Tom Kennedy The Sixth Circuit recently held that the Telephone Consumer Protection Act (“TCPA”) does not apply to an automated “robo-call” campaign by the Service Employees International Union (“Union”). The Union, in the midst of a labor dispute with…
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2013-02-25T23:15:52-07:00

Posted on February 25, 2013

By Tom Kennedy

The Sixth Circuit recently held that the Telephone Consumer Protection Act (“TCPA”) does not apply to an automated “robo-call” campaign by the Service Employees International Union (“Union”). The Union, in the midst of a labor dispute with Ashland Hospital Corporation, tried to pressure Ashland by contacting private residents in their home with a prerecorded message offering to help them connect to the hospital to express concerns over the treatment of hospital employees. At the push of a button, the Union would connect the person to, e.g., the CEO’s direct line at the hospital. The CEO got 536 calls in 2 days, overwhelming its main telephone lines. Ashland responded by suing the Union under the TCPA. The court found no violation of the TCPA. The calls to the hospital were all live calls from real people; Ashland was not a recipient of any direct telephone robo-communication from the Union. Ashland Hosp. Corp. v. SEIU, District 1199 WV/KY/OH, No. 11-6006 (6th Cir. February 21, 2013).

Although the Union automated part of its corporate campaign and outsourced its calls to the surrounding residents, the employer has no TCPA claim, at least until the robots begin calling it directly.

Posted in Union Issues | Tagged Ashland, Robots, TCPA, telemarketing, Telephone Consumer Protection Act, Union | Leave a reply | Leave a reply | Leave a reply | Leave a reply
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