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!

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.

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.

By: Alan M. Levy

On May 26, 2011, by a 3-1 majority, the National Labor Relations Board members appointed by the current administration ruled that a union could place a 16-feet tall, 12-feet wide inflatable rat outside a hospital with a sign saying that a non-union subcontractor on the premises was a “rat employer.” They also allowed distribution of leaflets saying the contractor’s labor supplier was “undermin[ing] the wages and benefits established by our local labor agreement or otherwise violates workers’ rights.” The Board also held that a union organizer could stand next to a vehicle entrance, holding a leaflet with the same message in front of him like a picketer’s placard, directed at hospital visitors using its parking lot. Sheet Metal Workers Int. Assn., Local 15 (Brandon Medical Center), 356 NLRB No. 162 (5/26/11). The majority opinion said that picketing only becomes an unlawful secondary boycott when it involves “carrying of picket signs combined with persistent patrolling that create[s] a physical or at least a symbolic confrontation between the picketers and those entering the worksite.” In other words, a stationary symbol or a union agent who does not specifically and directly “confront” the neutral employer’s personnel or (here) patients and visitors is not a picket, so, even if their message is negative, their activities are not unfair labor practices under the statute limiting secondary boycott picketing.

The facts in this case suggest the elements which an employer must prove to counter this union weapon. The dispute was with the subcontractor and the general that hired it (the “primary” employers). The hospital was the neutral (secondary) employer. Section 8(b)(4)(ii)(B) of the Labor Management Relations Act prohibits picketing to coerce the neutral so that it will cease doing business with the targeted primary. The inflatable rat was placed on public property, at least 145 feet from each of the two vehicle entrances and 100 feet from the front door of the hospital which had allowed the non-union subcontractor on its premises. If the rat was moved from one entrance to another, rather than kept stationary, the picketing limits would have applied, particularly if this were done with an “element of confrontation” toward those neutral parties entering or leaving the hospital. Similarly, if the lone union agent holding a leaflet at the approaching drivers’ eye level had “patrolled” instead of remaining still, the picketing limits would have applied to him. The lack of any evidence that the union agents had “physically or verbally accosted hospital patrons” insulated them from finding an 8(b)(4)(ii)(B) violation. If such confrontation had been proven, the stationary positions may not have been exempted.

The Board also noted that unlawful coercion could warrant finding an unfair labor practice by the demonstrators whether or not they physically “patrolled.” It gave as examples of such coercion “trash bags hurled into a [neutral] secondary employer’s building lobby, bullhorn messages broadcasted at ‘extremely high volume’ at a secondary building’s tenants, and mass gatherings that included the shouting of derogatory names at striker replacements…” If there is evidence that the “location, size or features of the balloon … were likely to frighten those entering the hospital, disturb patients or their families, or otherwise interfere with the business of the hospital in a manner analogous to the conduct deemed coercive in these examples, a violation could be found.

In addition, it must be noted that the distribution of handbills, by itself, is not picketing and has some First Amendment protection as the exercise of free speech and freedom of the press. If the rat and the lone union agent were not “picketing,” the use of handbills was permissible “expressive activity.”

Finally, the majority addressed the dissent’s argument that this rat display was “tantamount to picketing” as a “signal” creating an “invisible picket line that should not be crossed.” The majority rejected this theory because it defined unlawful “signal picketing” as “directed [at] … employees of secondary employers, as opposed to the general public, and the signal is to cease work.” To prove an unfair labor practice by the union, there must be a showing that some neutral’s employees (here, the hospital staff or people making deliveries to or pick-ups from the hospital) had refused to cross this “invisible picket line” and perform their work. If such work stoppages were present, the “signal” argument could have been successful.

In summary, a neutral cannot be picketed with the objective of causing it to cease doing business with the target of the picketing union’s primary dispute. A stationary announcement of the dispute at a location where employees of both the primary and the neutral are working will not be treated as “picketing” limited by the secondary boycott rules. However, if the union “patrols,” utilizes coercive conduct, or confronts neutrals as part of their demonstration, or if the stationary figure signals employees of neutrals to refuse to work at the site, a violation may be found. The employer victimized by this union activity may overcome this new protection for union demonstrators if it can provide evidence of these deviations from “stationary” non-coercive statements.

This is a very complex and fluid area of the law, so great care must be taken in developing the employer’s case. Should you have any questions about particular events or conduct in this area or strategies to minimize such union activities, Lindner & Marsack, S.C. will be happy to discuss your rights and your options in these situations.

By: Jonathan T. Swain
Kristofor L. Hanson

In order to put something under union Christmas trees this year, the National Labor Relations Board (the “Board”) and its Acting General Counsel have taken the initial steps to require both union and non-union employers to post notices of employees’ rights under the National Labor Relations Act (“NLRA”), and to enhance remedies available to employees for unfair labor practices during union organizing campaigns.

Proposed New Rule Requires Employers to Notify Employees of Their Rights Under the NLRA

In an unprecedented exercise of its rule-making authority, the Board has proposed a new rule requiring all employers covered by the NLRA (union and non-union) to post a notice informing employees of their rights under the NLRA. The Board has indicated that its action is intended to increase employees’ knowledge of their rights under the NLRA, while at the same time encourage statutory compliance by employers and unions.

Although notice postings are required under such laws as Title VII of the Civil Rights Act, the Occupational Safety and Health Act, the Fair Labor Standards Act, and the Family and Medical Leave Act, among others, under those laws the posting requirement is statutorily mandated. The NLRA contains no such mandate. Knowing that Congress would be unlikely to amend the NLRA to require such a posting, the Obama-dominated Board has undertaken a regulatory end-around Congress in drafting this proposed rule.

Under the proposed rule, 29 CFR Part 104, which can be accessed here, employers will be required to post a notice in all places where notices are customarily posted containing a summary of employee rights established under the NLRA. The language of the notice must include a detailed description of employee rights, along with examples of conduct that violates the NLRA. The notice will mirror the notice of the Department of Labor’s final rule requiring federal contractors to post notices of employees’ NLRA rights.

The Board is accepting public comments on the proposed rule. Comments must be received by the Board within the next 60 days. We will be providing additional information in a follow-up alert concerning this commenting process.

Memorandum Announces Section 10(j) Remedies for Unfair Labor Practices During Organizing Campaigns

In addition to the newly proposed notice-posting rule, the Board’s Acting General Counsel, Lafe Solomon, has announced an initiative expanding the Board’s efforts to ensure employees access to effective remedies for employers’ unlawful conduct during union organizing campaigns. In Memorandum 11-01, available here, Solomon announced the Board’s effort to expand Section 10(j) injunctive relief to serious unfair labor practices during organizing campaigns, beyond the “hallmark” practices such as discriminatory discharges, and threats of job losses and plant closings.

Under the initiative, the Regional Offices are now directed to seek injunctive remedies against any unlawful employer conduct during organizing campaigns that may accompany discriminatory discharges, such as interrogation and surveillance, unlawful solicitation of grievances, an employer’s promise or grant of benefits, a sudden attentiveness to employees’ previously ignored needs, and any interference with employees’ ability to communicate between themselves and with a union. Proposed remedies for such practices include requiring employers to read notices aloud to employees in addition to posting them, allowing union access to plant bulletin boards, and requiring employers to disclose employee names and addresses to a union.

Employers should be aware of this new initiative and prepare themselves for the likelihood of increased scrutiny of their actions during union organizing campaigns.

If you have any questions about this material, please contact Jonathan Swain or Kristofor Hanson here at Lindner & Marsack, S.C.