Category Archives: Unions/Collective Bargaining

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.

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.

Registration is Still Open!

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

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

Wisconsin Right to Work Legislation

NOTICE OF BREAKFAST MEETING

WHEN:         Wednesday, March 11, 2015

TIME:           8:30 a.m. to 9:45 a.m.

WHERE:       411 E. Wisconsin Avenue; 12th Floor Meeting Room

As a courtesy to our clients, Lindner & Marsack will be presenting a discussion of the new Wisconsin “right to work” legislation.

We will discuss when it takes effect, how it will work, what it means for unionized employers in Wisconsin and its impact on their employees.  This new legislation is expected to be in effect by early March so you will not want to miss this important presentation.

We will also briefly discuss the impact of the NLRB’s new quickie union election rules which take effect April 1, 2015.

There is no charge for this breakfast meeting.  Please register by sending an email to Mary Gemeinhardt at mgemeinhardt@lindner-marsack.com.

Parking is available in the attached parking garage.  The parking entrance to the 411 building is on N. Jefferson Street.  You may park in the visitor parking area or any other available unreserved space.  Please bring your ticket to the meeting for validation.

Wisconsin Very Likely to Become the Nation’s 25th Right to Work State

On February 23, 2015, Senate Bill 44 (bill) was introduced which, if passed by the legislature and signed by Governor Walker, would make Wisconsin a right to work state. Following a full-day Senate hearing on Tuesday, February 24, 2015, SB 44 was passed by the Senate Committee on Labor and Government Reform. An identical companion bill, Assembly Bill 61, was introduced the same day, which may further speed passage of the legislation by allowing the debate to proceed in both chambers. Here are some details on the bill:

  • This bill prohibits a person from requiring, as a condition of obtaining or continuing employment, an individual to refrain or resign from membership in a labor organization, to become or remain a member of a labor organization, to pay dues or other charges to a labor organization, or to pay any other person an amount that is in place of dues or charges required of members of a labor organization.
  • Any person who violates this prohibition is guilty of a Class A misdemeanor.

The bill must pass both the State Senate and Assembly before moving on to the Governor’s office. Once passed, the bill passed by the legislature will placed on the Governor’s desk. Upon signing, Governor Walker will identify the bill as 2015 Wisconsin Act 1, the first act signed in the new legislative term. 2015 Wisconsin Act 1 will be published in the Wisconsin State Journal the following day. The day following publication, Wisconsin’s right to work law will go into effect making Wisconsin the nation’s 25th right to work state.

There are several important points for unionized employers to consider regarding the bill and the timing of its passage including:

  • The right to work law will not impact current collective bargaining agreements and existing dues check-off provisions. It will first apply to collective bargaining agreements that have provisions inconsistent with the bill “upon the renewal, modification, or extension of the agreement occurring on or after the effective date of this subsection.”
  • By contrast, collective bargaining agreements that have not been ratified by the union membership on or after the date the bill goes into effect will be impacted. Accordingly, companies with open or expired collective bargaining agreements can expect pressure from their union partners to move quickly toward passage in order to preserve the unions’ existing right to collect union dues for the next contract term.
  • In addition, any mid-term contract modifications will also eliminate a union’s ability to collect union dues. Companies that have historically found their union willing to reopen the contract to address an issue requiring change, such as a change in insurance coverage, can expect resistance in attempting to re-open the agreement because doing so would negatively affect the union’s ability to collect union dues from their members.
  • It is important to note that the bill does not prohibit companies from deducting and collecting union dues from an employee’s earnings if the employee provides the company with a written, signed order authorizing such deduction. Further, the order signed by the employee must also provide that the employee may terminate the order by giving the employer 30 days’ written notice to the employer of his or her desire to terminate.
  • Employees who ultimately exercise their right to resign from the union and stop paying dues will still be covered by the collective bargaining agreement. Further, the union will still continue to owe them a duty of fair representation including the potential obligation to pursue a grievance on their behalf.

For continuous updates as the right to work legislation progresses, and updates on other legislation affecting the workplace and labor and employment-related topics, follow Daniel Finerty on Twitter: @DanielFinerty.

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.

THE OBAMA ADMINISTRATION DOUBLES UNIONS’ PLEASURE WITH LATEST PROPOSED RULES

By: Kristofor L. Hanson

The Department of Labor and the National Labor Relations Board have announced proposed rule changes that will significantly alter union-election procedures and reporting requirements for employers and their labor consultants. These changes, in large part, are designed to implement by administrative rule many of the measures of the failed Employee Free Choice Act, which could not be pushed through Congress. Implementation of these changes will greatly enhance union efforts to organize and will place far greater requirements on employers and their labor relations consultants.

Changes to NLRB election procedures

The Board’s proposed rule changes would substantially shorten the period between the filing of a petition for a union-representation election and the actual voting in the election. Presently, this period is a relatively short 38-40 days from petition to election, which bests the informal 42-day rule the Board has sought to meet. The proposed rules, while not mandating a time frame, seek to shorten that period and may reduce it to 10-20 days, as suggested Board member, Brian Hayes, who voted against the proposal. Since employers are often unaware of union organizing until the filing of the petition, the proposed rules would give employers far less time to get their message out. This is especially problematic for employers, since unions often conduct organizing operations for many months before filing the petition.

The proposed changes include many elements that negatively impact employers while easing organizing and election efforts for unions. Under the proposed rules:

  • Employers would be required to give petitioning unions and the NLRB information including employee phone numbers, email addresses, work locations, shifts, and job classifications. This is in addition to the current requirement that the employer provide the names and home addresses of its workers. These changes will provide unions with better access to employees while at work.
  • Pre-election hearings must be held within seven days of the filing of the petition and post-election hearings within fourteen days after the ballots are tallied.
  • Employers will waive issues they wish to address at hearing if they fail to identify those issues pre-hearing. The proposed rules require the parties to file “Statements of Position,” in which they identify the issues to be addressed at hearing. Failing to identify an issue would prevent an employer from raising it at hearing, presenting any evidence relating to it, cross-examining any witness on the issue, and presenting any argument on the issue.
  • Employers will no longer be entitled to hearings on who is entitled to vote in the election unless more than 20% of the voting unit is called into question by the employer. If 20% or lower, voters would be challenged only at the polling place and their eligibility could be litigated only after the vote.
  • Election petitions and notices, and voter lists could be sent electronically to speed up elections. NLRB regional offices could deliver notices and documents electronically rather than by mail and could directly notify employees by email when addresses are available. Currently, the NLRB and parties cannot file electronically or electronically send representation case documents, including election petitions.

Expansion of Reporting Requirements for Employers and Their Labor Relations Consultants

In another significant change, the Department of Labor announced proposed regulations that it will greatly expand cumbersome and invasive reporting requirements for employers and their labor relations consultants who act as “persuaders” during union organizing campaigns and other union activities. Presently, the rules require reporting of agreements with consultants and law firms, known as persuaders, hired to influence employees on issues of bargaining and organizing. The persuader classification, until now, has been limited to those that have direct contact with employees.

The proposed rules would expand the reporting requirements to include those consultants engaging in “persuader activity,” which would include anyone that engages in “actions, conduct, or communications on behalf of an employer that, in whole or in part, have the object directly or indirectly to persuade employees concerning their rights to organize or bargain collectively.” Only those who exclusively counsel employer representatives on what they may lawfully say to employees, ensure that their clients are in compliance with the law, or provide guidance on NLRB practice or precedent will be considered to have simply provided advice. Persuader activities that will trigger reporting requirements will include:

  • Training supervisors or employer representatives to conduct individual or group meetings designed to persuade employees.
  • Drafting, revising or providing a speech, written communications or other materials to an employer for presentation to employees.
  • Coordinating or directing the activities of supervisors.
  • Developing employer personnel policies or practices designed to persuade employees to reject union representation.
  • Planning individual or group meetings designed to persuade employees to vote no.

If adopted, the new regulations, would most likely force affected “consultants” to choose between providing services that fall under the newly defined “persuader activities” and limiting their assistance to mere advice as that term will be defined under the proposed rules. The intent of this rule and its corresponding onerous reporting requirements is clearly to limit the pool of available resources to an employer confronting a union organizing effort.

The NLRB and the Department of Labor are Accepting Comments on these Proposals

Both the NLRB and the Department of Labor are accepting comments on the proposed changes. Lindner & Marsack, S.C., is preparing a comment to these proposed rules to be filed with the respective agencies. If you would like assistance in submitting a comment, please contact our offices. You may also comment by going to www.regulations.gov which is the Federal eRulemaking Portal. We encourage you to comment on these proposed rules and also encourage you to contact your elected representative concerning them as well.