Category Archives: NLRB

Three Lindner & Marsack Attorneys to Present at the State Bar of Wisconsin Health, Labor & Employment Law Institute

Lindner & Marsack’s Tom Mackenzie, Laurie Petersen and Daniel Finerty will share expertise on a variety of employment law matters at the State Bar of Wisconsin’s 2016 Health, Labor, and Employment Law Institute, an event is designed to share comprehensive information to help attorneys stay current on new developments that impact health, labor and employment law practice.

The conference will be held at the Wilderness Hotel and Golf Resort in Wisconsin Dells on August 18-19 and the agenda includes:

  • Tom Mackenzie will co-present NLRB Update: The Changing Landscape of Labor with Jennifer Abruzzo, Deputy General Counsel to the National Labor Relations Board. The focus will be on ever-changing issues faced by today’s employers including topics critical to health care employers such as the use of cameras and videotaping in the workplace, “English only” policies, civility and confidentiality rules and other updates regarding recent changes to the election rules (Breakout Session 1: Thursday, August 18th at 10:05 a.m.).
  • Daniel Finerty will present Advanced Issues in Health Care Employee Background Checks to further review the applicable federal and state law regarding background checks and review recent examples of missteps in the hiring process and claims filed by applicants (Breakout Session 3: Thursday, August 18th at 1:25 p.m.).
  • How to Fire Someone the Right Way will be presented by Laurie Petersen along with Richard Rice of Fox & Fox, S.C. The session will explain that it is best to provide a legitimate, clearly-articulated business reason for termination in order to prevent costly litigation and obtain the best result (Breakout Session 3: Thursday, August 18th at 2:35 p.m.).
  • Lindner & Marsack will co-host a complimentary Thursday Evening Social Hour and Cocktail Reception for conference attendees (Thursday, August 18th at 4:50 p.m.).

The Conference also features an optional paid lunch with Tammy H. Scheidegger, Ph.D. According to Dr. Sheidegger, while “having it all” seems to go hand-in-hand with being “successful,” research on happiness, and the emerging science of neuro-counseling, is shifting the happiness paradigm and providing a clear roadmap for how “having enough” is actually the way to balance all aspects of one’s life.

Watch for live updates on Twitter at the #2016HLE conference from Daniel Finerty (@DanielFinerty). A full schedule and registration information is available at http://hle.wisbar.org/schedule.html.

Lindner & Marsack, S.C. has represented management exclusively in all facets of labor, employment, employee benefits and workplace injury defense law since 1908.  Call Tom, Laurie or Daniel at (414) 273-3910 regarding any of their #2016HLE topics, or visit http://www.lindner-marsack.com/ to learn more about the firm and how our experienced and innovative attorneys can help your business.

NLRB Expands Appropriate Bargaining Unit to Include Temporary Workers

In a 3-1 decision issued this week, the National Labor Relations Board (“Board”) reversed current precedent that prohibited the inclusion of temporary employees along with permanent, or “solely employed,” employees in a bargaining unit absent employer consent, as it returned to the previous standard under M.B. Sturgis, Inc., 331 NLRB 1298 (2000), where no such consent was required.

In its July 11, 2016 decision, Miller & Anderson, Inc. and Tradesmen International and Sheet Metal Workers International Association, Local Union No. 19, AFL-CIO, the Board expressly overruled the 2004 decision of Oakwood Care Center, 343 NLRB 659 (2004), which had held that the National Labor Relations Act (“NLRA”) did not authorize the Board to direct elections in units encompassing employees of more than one employer, i.e. a company’s employees and other employees placed at the company via a staffing agency.  The Oakwood Board further held that combining such employees would lead to significant conflicts among the various employers and among groups of employees.

With the Miller & Anderson decision, the Board reversed course again, holding that the terms “employer” and “employer unit,” as used within Section 9(b) of the NLRA, were sufficiently broad to encompass temporary employees performing work for another employer.  The Board also reasoned that the Sturgis standard better effectuated the purposes of the NLRA.

Going forward, the Board will apply the traditional “community of interest” factors when determining if a bargaining unit is appropriate.  The Board will determine whether the temporary employees and solely employed employees have the same or substantially similar interests as to wages, hours or other working conditions.

While the Board described its decision as a return to Sturgis, the landscape has changed since 2004, when Sturgis was last the standard.  Last year, the Board issued the highly contentious Browning-Ferris decision, which overruled two other long-standing joint-employer decisions.

Under Browning-Ferris, the Board greatly expanded the joint-employment standard by abandoning the requirement that an employer exercise “direct and immediate” control over an employee’s terms and conditions of employment and instead including relationships where an employer merely exercised “indirect” control or even where an employer has simply reserved the authority to exercise control.   Thus, between 2000 and 2004, when Sturgis was the standard, the law was much clearer as to when a joint-employer relationship existed.  Now those waters are far murkier, and employers will have to navigate them to make best judgments as to whether a joint-employer relationship exists and, if so, whether a group of temporary employees and solely employed employees have sufficient interests in common in order to create an appropriate bargaining unit.

Employers and other amici cautioned that a return to Sturgis would create confusion and hinder meaningful bargaining.  We will see whether those concerns bear out.

SAVE THE DATE FOR OUR ANNUAL COMPLIANCE/BEST PRACTICES SEMINAR!

Please mark your calendar for Lindner & Marsack, S.C.’s Annual Compliance/Best Practices Seminar!

WHEN:         April 14, 2016

8:00 a.m. – 12:00 p.m.

WHERE:       Sheraton Milwaukee Brookfield Hotel

375 South Moorland Road

Brookfield, WI

This FREE half-day event will address current topics in labor, employment, benefits & worker’s compensation law and provide employers across industries with practical and creative solutions for addressing their toughest workplace legal challenges.

SESSION TOPICS INCLUDE: 

  • Labor Law Update: Including Recent NLRB Decisions, Right to Work and Collective Bargaining Trends
  • 2016 Employment Law Update
  • FMLA Update – A Best Practices Review
  • The Use of Temporary Workers in 2016 – A Panel Discussion
  • Update on Proposed Wisconsin Worker Compensation Act Reform
  • Winning Strategies in Defending Worker Compensation Cases – How to Avoid Early Mistakes in Investigating Claims

Watch your inbox as well as our Facebook, LinkedIn and Twitter pages for more detailed information about session topics and a link to register for this free seminar.

NLRB EXPANDS JOINT EMPLOYER STANDARD, EXPOSING MORE EMPLOYERS TO UNIONIZATION

By: Kristofor L. Hanson and John E. Murray

The National Labor Relations Board (“Board”) has expanded its joint employer test providing easier access to unions seeking to represent staffing agency temporary workers. The Board’s decision in Browning-Ferris Industries of California, 362 NLRB No. 186 (Aug. 27, 2015), will likely have far-reaching implications for businesses who have relationships with workers provided by staffing agencies whom they did not previously consider as their own employee.

The Browning-Ferris decision arose after the Teamsters sought to represent various temporary workers at a BFI recycling facility. At this facility, BFI had 60 employees who performed work outside the facility. Most of these employees were represented by the Teamsters. Approximately 240 individuals worked inside the facility. Most of these workers were temporary employees supplied by Leadpoint, a staffing agency. The Teamsters conducted a campaign to represent these temporary workers as employees of BFI. BFI claimed these workers were not their employees.

The Underlying Facts

BFI and Leadpoint had an agreement which designated Leadpoint as the sole employer of the temporary workers it supplied to BFI. Leadpoint and BFI shared responsibility for the temporary workers in a manner which is fairly common among employers who use temps. Leadpoint was responsible for hiring and supplying qualified workers, but BFI set the qualification standards and required a pre-employment drug screen. Both BFI and Leadpoint provided some training to the temporary workers. Leadpoint had the responsibility to discipline, evaluate and discharge these workers. However, BFI could discontinue the placement of a worker, and could recommend or request discipline. Leadpoint was responsible for paying employees and setting wage rates, so long as those rates did not exceed the rate BFI paid full-time employees for similar tasks. BFI set shift schedules, staffing levels, productivity standards and controlled the pace of work. Leadpoint assigned workers to particular shifts and jobs. BFI supervisors conducted pre-shift meetings for all employees. However, Leadpoint had three on-site mangers and three leads who supervised these workers. It also had an HR manager on-site. Despite their agreement, BFI actually exercised fairly little control over the Leadpoint workers.

The Board’s Ruling

The Board determined BFI’s “right to control the work of [these] employees and their terms of employment” was more important than BFI’s actual exercise of that control. The Board stated that it does not “require that this right be exercised, or that it be exercised in any particular manner” in order for BFI to be considered a joint employer. In other words, BFI was a joint employer of these workers because of the control it could exercise over them.

The Board’s decision departed from more than 30 years of Board decisions and federal case law which had held that the actual control exercised was more significant in determining joint employer status. Now an employer who exercises “indirect control,” “reserves authority” to exercise control, or “co-determines” terms and conditions of employment may well be a joint employer under the National Labor Relations Act. 

The Impact of the Board’s Decision

This decision will likely have a far-reaching impact for any employer who engages a staffing agency for temporary workers.

Increased Organizing. Particularly where it already represents an employer’s full-time workforce, unions presumably will begin to target temporary workers for representation campaigns. It will be challenging for employers to recognize and respond to these campaigns. However, the impact of this decision probably will not be limited to efforts to organize temporary workers. It will potentially reach into other areas, such as:

Franchisor-Franchisee relationships. Franchisees and franchisors historically have not been joint employers of the franchisee’s employees. However, the NLRB’s General Counsel currently is trying to hold McDonald’s liable as a joint employer for the unfair labor practices of its franchisees. Based on the Browning-Ferris decision, the degree of control McDonald’s could directly or indirectly exercise over these workers may determine its joint employer status. The Board, or unions, also may assert pressure on franchisors in an effort to organize the employees of their franchisees.

Secondary boycotts. The new joint employer standard may expand the number of employers union workers can lawfully picket.

Multi-party bargaining. If the Teamsters represent BFI’s temporary workers, situations could arise in which BFI and Leadpoint both need to be involved in collective bargaining. In addition, many employers use temporary workers supplied by more than one staffing agency. Each staffing agency may require a seat at the bargaining table. This decision also could cause employers to limit the number of staffing agencies they use.

At the present time, the full scope of this decision is difficult to assess. There will likely be further litigation related to the Browning-Ferris decision. The ensuing litigation may lead the current Board, or a future Board, to modify its application. Lindner & Marsack will be preparing a more detailed memorandum on these and other issues as they are addressed by the Board and by federal courts. If you have any immediate concerns about how this decision could affect your business, feel free to call or email Kris Hanson, John Murray, Jon Swain, Tom Mackenzie, or any other Lindner & Marsack attorney.

NLRB STRIKES ANOTHER EMPLOYER CONFIDENTIALITY POLICY

By: Daniel Finerty

On August 27, 2015, the National Labor Relations Board (Board) invalidated an employer’s confidentiality policy that was in place to maintain the integrity of its internal investigations. The Board determined both the original and revised confidentiality policies used by the Boeing Company unlawfully restrained employee rights to discuss the terms and conditions of their work and to engage in protected concerted activities under the National Labor Relations Act. However, the Board’s decision has clarified the muddy waters surrounding the effective use of confidentiality policies during internal investigations into sexual harassment, workplace threats and other employee misconduct.

Boeing’s original policy identified its interest in protecting the confidentiality of an internal investigation. It explained that such investigations typically dealt with “sensitive information and may be conducted under authorization of the Boeing Law Department.” As a result, the policy directed employees “not to discuss this case with any Boeing employee other than company employees who are investigating this issue or your union representative, if applicable.” The Board ruled that this policy potentially restrained employee speech. The Board rejected Boeing’s justifications, that the protected witnesses, victims, or employees from retaliation, harassment and rumors.

The Board also rejected Boeing’s revised confidentiality policy. In the revised policy, Boeing recommended that employees refrain from discussing an investigation. This slight change did not cure the Board’s initial concerns. Even the revised policy reasonably tended to inhibit employees’ rights to engage in activity protected by the NLRA.

A blanket confidentiality policy is unlikely to survive Board scrutiny regardless of whether or not it carves out discussions with a union representative. The Board has reaffirmed its position that “[e]mployees have a Section 7 right to discuss employer investigations with their coworkers.” To comply with the Board’s recent decisions, while protecting employees involved in an investigation, employer’s may want to consider:

  • Eliminating blanket confidentiality policies applicable to all investigations.
  • If an employer has specific reason to believe that any of the following circumstances may exist or arise during an investigation, a basis for an employer’s concern may be justified where:
    • Witnesses need protection;
    • Evidence is in danger of being destroyed;
    • Testimony is in danger of being fabricated; or,
    • There is a need to prevent a cover up.
  • If the documented concern(s) justify a restraint on employees’ right to discuss this particular investigation, consider narrowly-tailored confidentiality rules which meet the relevant circumstances and protect the integrity of the investigation without unreasonably limiting employees’ protected rights under the NLRA.
  • Consideration should be given to whether the need for confidentiality applies to all witnesses or only a limited group. All affected employees should be given a copy of the narrowly-tailored confidentiality policy and should be asked to sign an acknowledgement of receipt.

Tailoring any confidentiality restrictions to specific concerns that arise during a particular investigation is currently the best way to withstand Board scrutiny of those restrictions.

If you have questions about confidentiality policies, please contact Daniel Finerty at 414-226-4807, or any other Lindner & Marsack attorney at 414-273-3910.

Registration is now open for our Annual Compliance/Best Practices Seminar!

Registration and a continental breakfast will be served beginning at 7:30 a.m.  Click here to register.

April 28, 2015

8:00 a.m. – 12:00 p.m.

Sheraton Milwaukee Brookfield Hotel

375 South Moorland Road Brookfield, Wisconsin

This FREE half-day event will address current topics in labor, employment, benefits and worker’s compensation law and provide employers across industries with practical and creative solutions for addressing their toughest workplace legal challenges.

SESSION TOPICS INCLUDE:

  • Annual Labor & Employment Update (Plenary)
  • Wellness Plans – Ensure ADA Compliance & Avoid EEOC Litigation
  • Steps To Avoid The Retaliation Claim Trap
  • Worker’s Compensation Update
  • The National Labor Relations Board And Its Impact On Non-Union Employers

Save the Date!

 Please mark your calendar for Lindner & Marsack, S.C.’s Annual Compliance/Best Practices Seminar 

When:  April 28, 2015

Time:  8:00 a.m. – 12:00 p.m.

Where:  Sheraton Milwaukee Brookfield Hotel – 375 South Moorland Road, Brookfield, Wisconsin

This FREE half-day event will address current topics in labor, employment, benefits & worker’s compensation law and provide employers across industries with practical and creative solutions for addressing their toughest workplace legal challenges.

 SESSION TOPICS INCLUDE:

  • Annual Labor & Employment Update (Plenary)
  • Wellness Plans – Ensure ADA Compliance & Avoid EEOC Litigation
  • Steps To Avoid The Retaliation Claim Trap
  • Worker’s Compensation Update
  • The National Labor Relations Board And Its Impact On Non-Union Employers

Watch your inbox as well as our Facebook, LinkedIn and Twitter pages for more detailed information about session topics and a link to register for this free seminar.

WHY NOEL CANNING MATTERS

By:  Thomas W. Mackenzie

Last Thursday’s decision by the U.S. Supreme Court invalidating three of President Barack Obama’s recess appointments to the National Labor Relations Board throws into question hundreds of Board decisions issued between the recess appointments made in January, 2012 and July, 2013 when the current five member Board was lawfully confirmed by the Senate. The impact of this decision is three fold.

First, the current composition of the NLRB, three Democrats and two Republicans, will now have to revisit and issue new decisions on hundreds of cases that were decided by the invalidated recess-appointed NLRB which existed for eighteen months. The term of Democrat Nancy Schiffer is due to expire on December 16. Her departure could set up a two to two split between the NLRB’s Republican and Democratic members and create a significant hurdle for the changes envisioned by the Obama administration’s commitment to organized labor. If the Republicans win control of the Senate in the upcoming November elections, they could vote against confirming a new Board member, making significant change unlikely for the balance of President Obama’s term unless that change occurs in the next six months.

Second, the Supreme Court’s decision will likely result in significant delay for employers with cases currently waiting for decision by the Board. The NLRB will have to prioritize its goals and objectives over the next six months. Lindner & Marsack is currently representing employers with cases pending decision before the NLRB. If those cases do not fit the profile which the Democratically controlled majority deem to be a priority, delay into 2015 and beyond is likely. Assuming the Republicans regain control of the Senate, such delay may not be unwelcomed.

Third, logic tells you that the three Democratic Board members, all of whom represented organized labor as practicing lawyers, will likely rubberstamp the decisions of the invalidated Board members. However, sometimes logic falls when confronted by human behavior. It is fair game to question whether the new NLRB can resist the opportunity to put its own fingerprints on some of the prominent decisions that were issued by the invalidated Board. These cases would include the Gannett Co., Inc. decision, which overturned 50 years of precedent and held that employers must continue to maintain dues checkoff provisions requiring the automatic deduction of union dues from employee paychecks even after a collective bargaining agreement has expired. Piedmont Gardens overturned a rule dating back to 1978 that protected the confidentiality of witness statements taken during an employer’s internal investigation into alleged employee wrongdoing. The invalidated NLRB ruled that a blanket exception from releasing these statements to the union upon request no longer existed and instead the employer was required to conduct a balancing test that precluded giving witnesses a guarantee of confidentiality. In Banner Health, the invalidated Board found that an employer violated the law by maintaining a policy prohibiting employees from discussing ongoing investigations into potential misconduct including sexual harassment allegations. This decision, which affects all employers whether unionized or not, again precludes employers from giving a commitment of confidentiality in its investigation. Finally, it is unlikely that the current Board will refrain from casting its own view on the social media cases decided by the invalidated Board. These include the Costco decision (company’s prohibition on disparaging the employer or its employees on social media was unlawful) and Hispanics United of Buffalo (terminations of five employees who responded on Facebook to a coworker’s criticism of their job performance were deemed to be unlawful).

The grand promises by the Obama administration to organized labor have not been fulfilled. “Card check,” whereby an employer could have been obligated to recognize a union as the authorized representative of its employees without a secret ballot election, is dead. Moreover, almost six years into the Obama presidency organized labor has yet to see changes designed to speed up the election process or to provide enhanced access to the company’s email system for union organizing purposes. Although it is not inconceivable that the current NLRB will attempt to fulfill some of these commitments, the Supreme Court’s decision has made that objective more difficult.

If you have questions about anything in this e-alert, feel free to call Tom Mackenzie or any other Lindner & Marsack attorney at 414-273-3910.

 

THE UAW FILES OBJECTIONS TO THE ELECTION OUTCOME AT VW CHATTANOOGA

By: Jonathan T. Swain

By now, most interested persons are aware that on February 14, 2014, the UAW suffered an unprecedented and largely unforeseen defeat at the hands of a majority of employees at the Volkswagen plant in Chattanooga, Tennessee. The NLRB supervised the secret ballot election which the union lost by a margin of 712 to 626.

What was so surprising about the outcome was that it was VW who had filed for the election and to a very fast turnaround of nine days from petition to vote. Further, VW had agreed to be absolutely neutral and granted the union unprecedented access to its workforce.

But, what was perhaps equally unprecedented, were the comments by local, state and even national politicians that ran the gamut from President Obama’s remarks in support of the union to predictions by state and local politicians of the loss of government financial support for the plant’s future. The coup de grace may have been the assurance by U.S. Senator Bob Corker (R-TN) that Volkswagen would place important new work at the plant if the union bid for representation was rejected, a claim that VW promptly denied.

Did these statements by non-company persons opposing the union influence the outcome of the election? Well, the union certainly thinks so. It has filed objections to the outcome of the election alleging that these comments, admittedly made by persons who were not agents of the employer, destroyed the so-called “laboratory conditions” for an election that the NLRB demands. Notably, several VW workers who opposed the union have moved to intervene in the objection proceedings.

Virtually everyone can agree on two things: One, this loss by the UAW in the opening battle of its current “Southern Strategy” represents a devastating blow to the union if it cannot be reversed; and, two, it has a steep legal hill to climb in achieving a re-vote.

So what can we say about what happened in Chattanooga and how can we analyze the union’s chances? The union seems to have been caught flatfooted by the ferocity of the opposition. The UAW clearly thought that VW’s neutrality, coupled with the union’s nearly unprecedented access to the workforce, would be enough to secure victory. But, town hall style meetings, commercials, websites, and literature warning of unionization all came together virtually overnight and the union seems to have been unprepared and unable to adequately respond. After all, what do you say to billboards near the plant that link the UAW to Detroit’s current economy?

But outside groups opposing the union, and their message of union avoidance, are protected by the First Amendment, and opinion for or against the union is just that, opinion.

Likewise, Senator Corker, as well as the state and local politicians who spoke out, did not check their First Amendment rights at the door when they took office. Don’t workers deserve to know what a given politician thinks about future government policymaking in the face of unionization? After all, in the past, haven’t local politicians eagerly supported unions?

Yet clearly what Senator Corker said, if spoken by the employer, would have been not only objectionable, but unlawful and likely would have resulted in a bargaining order. VW denied the senator’s statements; isn’t that enough?

In the end, what Senator Corker and the other politicians said was not unlawful. It was protected free speech and, for the most part, opinion. But the UAW will argue that Senator Corker’s comments that he had been “assured” by VW of new business if the union was defeated is precisely the type of conduct or interference that the principle of “laboratory conditions” is designed to protect against. How they overcome the fact of the employer’s denials demonstrates what a steep hill the union has to climb. But the vote was close and if 44 more people had voted for the union it would have won!

We also have a very new NLRB, all of whom were appointed by President Obama. They are currently trying to adjust the rules for future elections to more favor unions. I predict that what happened in Chattanooga will not sit well with a majority of the Board. The question is whether they see themselves as having the legal authority to act. Stay tuned!

THE NLRB PROPOSES NEW “AMBUSH” ELECTION PROCEDURES

By: Jonathan T. Swain

On February 5, 2014, the National Labor Relations Board (NLRB) announced its intention to reintroduce its proposed revised union election rules which are designed to substantially shorten the time from petition to election. These rules, originally proposed in June of 2011, were invalidated by the federal courts in the Spring of 2012.

Make no mistake about it. These rules, when adopted, will act to facilitate a union organizing drive and make it much more difficult for an employer to resist the union by limiting the employer’s opportunity to speak out against the union and about unionization.

As a result, employers that wish to remain non-union will have to act proactively. They will need to have lawful union avoidance policies and procedures in place well in advance of a possible unionization drive. Indeed, employees will need to be ready to act at the very first sign of a union drive.

Some of the proposed changes include:

  • Speeding up the election cycle timeframe from petition to voting to 10-21 days from the current 42 days.
  • Disputes over voter eligibility will generally be delayed until after the election.
  • Any pre-election hearing will be within 7 days of the petition.
  • Employers will be required to immediately furnish the union with a list of voters, including names, classifications, shifts, and work locations by the hearing date.
  • Once the election is set, a final version of this list will be due in 2 days. The final list will also include employee home addresses, personal email addresses, and phone numbers.
  • Procedures for expedited post-election review by the Regional Directors that include discretionary appeals to the full Board.

Employers and others are invited to comment on these rules and have until April 7, 2014 to do so. A public hearing will be held in Washington, D.C. on April 7, 2014. Reply comments are due by April 14, 2014.

If you have any questions about these rules and their implications, please contact your Lindner & Marsack attorney for further discussion. For information on the rules and the procedures for commenting, please see the following link: http://www.nlrb.gov/news-outreach/fact-sheets/amendments-nlrb-election-rules-and-regulations-fact-sheet.