By: Steven R. Blackburn

Wal-Mart Stores has filed an interesting and unusual lawsuit in Los Angeles Superior Court seeking injunctive relief to stop various activities conducted by the United Food and Commercial Workers Union and its subsidiary “OUR Wal-Mart” (Organization United for Respect at Wal-Mart) in connection with their long-running efforts to organize the giant retailer’s employees.  The complaint alleges that on numerous occasions in 2012 and 2013 demonstrators acting on behalf of the UFCW entered various Wal-Mart stores in California and disrupted store operations.  These actions included “flash mobs,” use of bullhorns inside stores, setting free balloons, and leaving perishable goods in carts without paying for them.  Wal-Mart had repeatedly notified the UFCW that these actions constituted unlawful trespass on its properties but the demonstrations persisted.  For example, on August 15, 2012, a group of OUR Wal-Mart activists allegedly entered a store in Baldwin Hills posing as shoppers.  Suddenly, one member of the group took out a bullhorn and began reading from a script.  At one point, the group began singing the Aretha Franklin song “Respect.”  The incident lasted about 20 minutes.  Some of these demonstrations occurred during the same period that employees at several Wal-Mart stores engaged in unprecedented one-day work stoppages in a show of support for UFCW’s organizing efforts.  As recently as April 24, 2013, UFCW staged a coordinated group trespass in numerous Wal-Mart stores throughout California.

Consistent with the experience of many retailers in California in dealing with labor union disruptions, Wal-Mart has had little success in its attempts to get local law enforcement to address these tactics.  The demonstrators often disperse before police arrive, or the police have refused to intervene on the grounds that the trespass was “labor activity.” 

Wal-Mart’s lawsuit seeks a permanent injunction barring UFCW activists from entering any of its 250 stores in California “for any purpose other than for shopping for and/or purchasing merchandise.”  The unusual angle of the claim is that it also seeks declaratory relief establishing that California’s controversial and much-litigated Moscone Act does not apply to labor-related demonstrations inside of Wal-Mart’s stores.

The Moscone Act, Cal. C.C.P. 527.3, was enacted in the seventies when the pro-labor California Legislature waded into a long-running litigation over the rights of labor unions to conduct organizing activities on private property in retail settings.  The Act, read together with Labor Code Section 1138.1, broadly limits the jurisdiction of the Superior Courts to provide injunctive relief to address disruptive activity related to labor disputes and union organizing.  For all practical purposes, these provisions as they have been interpreted by the California courts have made it all but impossible for retail employers to prevent disruptive trespassing on privately owned sidewalks, parking lots, court yards and the like by labor groups unless serious violence or property damage has occurred.

Wal-Mart’s case against UFCW will probably be given an edge by a recent decision of the California Supreme Court.  In late December 2012, a divided California Supreme Court in Ralphs Grocery v. UFCW (PDF) rejected several lower court rulings holding that the Moscone Act was unconstitutional because it favors “speech” by labor unions and allows unions a greater right to trespass on private property than other third parties.  Also rejecting contrary federal authority, the California High Court held that the Moscone Act was not unconstitutional.  But in a less-noted aspect of the Ralphs case, the Court sharply limited the long-standing Pruneyard doctrine, which stands for the proposition that certain privately owned property in shopping centers can qualify as a “public forum,” where picketing or hand billing that would otherwise be trespassing must be permitted.  The Court held in Ralphs that the privately owned sidewalk in front of the store at issue was not a public forum.  The Court limited application of the Pruneyard doctrine to places in retail settings where members of the public are invited to congregate for performances, socializing, and similar activities.  In her separate opinion Chief Justice Cantil-Sakauye specifically voiced the opinion that picketing or demonstrating inside a retail store is not protected.  The Ralphs decision has been appealed to the U.S. Supreme Court.

Repeatedly using italics to emphasize its point, the Wal-Mart lawsuit seeks an injunction to prevent labor-related activity only inside of its stores.  The rationale of the holding of Ralphs on the public forum issue would seem to support the Company’s position.  That is, if a privately-owned sidewalk outside of a store is not akin to public forum where free speech must be prevented, it would seem even more clear that the inside of a store should be protected from disruption.  And of course, when you file a lawsuit seeking resolution of a novel legal issue, it’s always great to know in advance that the Chief Justice of the Supreme Court agrees with your position. 

This lawsuit will be closely watched and will undoubtedly result in appeals no matter what the outcome.  In the meantime, retail employers should continue to be vigilant and consistent in protecting their property from intrusion by any sort of protesters, picketers or handbillers, whether they are affiliated with a labor union or not.  It is critical that every retail employer protect property that it owns with carefully drafted “time, place and manner” rules governing public access and that those rules be uniformly enforced.  If the property is leased, the employer should ensure in advance of any controversy over access by picketers or handbillers that the landlord is ready and able to limit the access to the full degree the law allows.

By: Evan Rosen and Adam C. Abrahms

Yesterday, in a 2-1 decision, the Third Circuit Court of Appeals became the second appellate court to issue a ruling that President Obama’s recess appointments to the National Labor Relations Board (the “Board”) were constitutionally invalid because they did not occur during an “intersession recess” of the United States Senate.  The case comes a few months after the D.C Circuit’s ruling in Noel Canning, which similarly held that the recess appointments were invalid.  The Third Circuit and D.C. Circuit decisions, taken together, call into question the validity of a considerable number of decisions and rules that the Board has issued over the past few years.

The case before the Third Circuit arose from a petition by the Service Employees International Union (“SEIU”) for certification as the bargaining representative of a unit of licensed practical nurses (“LPN”) employed by New Vista Nursing & Rehabilitation.  New Vista challenged the Union’s certification on the grounds that the LPN’s were supervisors and not eligible to organize under the National Labor Relations Act.   The Regional Director and the Board rejected New Vista’s argument, held the LPN’s were not supervisors and ordered an election to be held.  The Union received a majority of votes, but New Vista refused to bargain with the Union in order to challenge the Board’s conclusion.  As a result, the Union filed an unfair labor practice and a motion for summary judgment, which the Board granted.  The Board’s order granting summary judgment was issued by a three member panel that included Member Craig Becker, who was appointed by President Obama via the Recess Appointments clause of Article II of the U.S. Constitution.

New Vista argued that the Board’s three member panel was improperly constituted and without power to issue the order because of Member Becker’s appointment to the Board while the Senate was not actually in “recess.”  The U.S. Constitution grants the President power to fill vacancies without Senate confirmation during “the Recess of the Senate.”  The Third Circuit considered three possible definitions of the term “the Recess of the Senate:” (1) intersession breaks; (2) intersession and intrasession breaks that last at least ten days; and (3) any time in which the Senate is not open for business and is unavailable to provide its advice and consent.  In its decision, the Third Circuit concluded that the first definition was the correct interpretation, holding that “the Recess of the Senate” only refers to an intersession break.  For that reason it concluded that Craig Becker’s appointment was invalid because it occurred in March 2010 during an intrasession break.  Accordingly, the Third Circuit overturned the Board’s ruling against New Vista because the Board’s order had not been issues by a properly constituted, valid three-person panel.

This decision is significant because it casts further doubt on all of the decisions and rules that the Board has issued over the past three years.  As we have previously discussed, the Board under President Obama has been among the most activist in the agency’s history.  It has issued decisions and rules – many of which pertain to non-unionized companies – that touch on many aspects of the workplace, including for example, social media policies, confidentiality agreements, at-will employment, internal investigations, class action waivers, ambush election rules and notice posting requirements. But, in light of the Noel Canning decision and yesterday’s decision by the Third Circuit, employers have a strong argument that these decisions and rules were issued by an invalid Board and are thus without any legal effect.  Yesterday’s decision bolsters this argument because, unlike the Noel Canning decision, the Third Circuit’s focused on Member Becker, who was appointed in 2010 and is no longer on the Board.  This means that the breadth of Board decisions and rules that are invalid extends back to Becker’s appointment, which occurred in March 2010 when Chairperson Wilma Liebman’s term expired.

Last month the Board petitioned for certiorari seeking review of the Noel Canning decision by the Supreme Court.  The Supreme Court will have the final say on the issue, but in the meantime, President Obama’s recess appointments to the Board are also being challenged in cases brought before the Second, Fourth, Fifth, Seventh, Ninth and Eleventh Circuits.    This blog will provide an update when decisions in those circuits are issued.

Management Missives

  • In defending any unfair labor practice charge that relies on any of the NLRB Decisions after March 2010, Employers should contest any assertion that they are valid authority under with the investigation Region can rely and should cite to both Noel Canning and New Vista Nursing decisions.
  • Employers who have received any adverse ruling from the Board since March 2010 now have additional grounds to have the ruling vacated and should consider filing such an appeal in the D.C. Circuit or Third Circuit.

 

By Adam C. Abrahms and Steven M. Swirsky

In another major defeat for President Obama’s appointees to the National Labor Relations Board (NLRB or Board), the US Court of Appeals for the DC Circuit found that the Board lacked the authority to issue a 2011 rule which would have required all employers covered by the National Labor Relations Act (the “Act”), including those whose employees are not unionized,  to post a workplace notice to employees. The putative Notice, called a “Notification of Employee Rights Under the National Labor Relations Act,” is intended to ostensibly inform employees of their rights to join and be represented by unions and to engage in other activity protected by the Act. The rule would also have made it an unfair labor practice for an employer to fail to post the required notice and such failure also could be considered proof of anti-union animus in other Board proceedings.

Although proposed in 2011 and scheduled to become effective on April 30, 2012, the requirement has yet been put into effect. As we discussed previously, last year, the US District Court for the District of Columbia had held that the Board lacked the authority to make it an unfair labor practice for an employer to fail to post the notice, holding that this exceeded the Board’s authority under the Act. Just prior to the rule going into effect, the DC Court of Appeals issued an emergency injunction in support of the District Court’s opinion and the NLRB opted to not enforce the rule pending the appeal.

Perhaps what is most noteworthy about the Court’s recent opinion, authored by Senior Circuit Judge Randolph, is the Court’s reliance on employers’ free speech rights which are protected by Section 8(c) of the Act. That section of the Act ensures employers  the right  to communicate their views concerning unions to their employees. The Court noted that while Section 8(c) “precludes the Board from finding non coercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board’s rule does both.” That is because under the rule an employer’s failure to post the required notice would constitute an unfair labor practice and the Board’s rule would have allowed the Board to “consider an employer’s ‘knowing and willful’ noncompliance to be ‘evidence of anti union animus in cases in which unlawful motive [is] an element of an unfair labor practice.”

The Court focused on the question of the right of employers to “free speech,” under both Section 8(c) of the Act and under the First Amendment to the Constitution, noting that the rule would have required employers to disseminate information and that “the right to disseminate another’s speech necessarily includes the right to decide not to disseminate it,” relying on analysis from prior Supreme Court and appellate court decisions which it referred to as “compelled speech” cases.

Interestingly, the Court’s conclusion that the Board’s rule violates Section 8(c) because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus, suggests the Board might be able to find an alternate route to a notice posting requirement if it did not seek to create such a remedy for an employer’s failure to post the notice.  However, the Court refused to leave the portion of the Board’s rule requiring the Notice posting in effect even without the enforcement and remedial provisions, because they were an inherent part  of the Board’s purpose in adopting the rule.  For now the beleaguered Board will need to decide whether it wishes to appeal this decision to the Supreme Court, attempt to craft  a new rule with the currently constituted Board that this same Court of Appeals has ruled was unconstitutionally appointed in its Noel Canning decision or postpone any action until a new Board is confirmed by the Senate.

In the past week media reports abound regarding a controversial allegedly “anti-union” statement made by a high level executive associated with the iconic snack cake Twinkies.  As widely reported late last year, the original Twinkie maker, Hostess Brands, Inc.,  was forced to close, liquidate and lay off its entire unionized workforce, publicly blaming the recalcitrance of its unions for the company’s downfall.  However, these statements did not cause this most recent controversy.  Rather, it was comments from an executive connected with Hostess Brands LLC, the newly formed company which acquired many of the assets of the bankrupt predecessor, including the rights to make Twinkies, which spurred public attention.

As the snack cake savior prepares to reopen plants and hire a new workforce, interest has swirled as to when and how the new company would operate.  Specifically, in an April 24th Wall Street Journal article the executive opined of the new Twinkie maker that “We do not expect to be involved in the union going forward.”

This comment sparked controversy causing Hostess Brands LLC to walk back or clarify the statements and leading to some to opine that executives should not comment on labor matters.  In fact, the headline of a May 2nd Law360 article asserted that “Silence Can Be Golden.”  This is not the first labor or union related comment by a high level executive of a company to generate controversy and it was met with predictable attention.  The question is it advisable or practical to attempt to silence executives on labor matters?

Each situation will be different and certainly there will be times where public comment is not advisable, however, there are other times where the opinion or position of the company, announced from the highest levels, can advance an employer’s labor goals or even support corporate or marketing efforts.  For example, allowing employees, investors, customers and/or suppliers know what a company intends or is prepared for can be reassuring and yield positive results.  Informing employees of the realities or risks associated with union may even be considered the ethical or honest thing to do.  When crafted and used properly such comments can be a powerful weapon, both in communicating to employees and the market.  In recognition of this, and acknowledging that unions are rarely silent, self-imposed unilateral disarmament is not always the best option.

To be clear, compliance with the National Labor Relations Act is full of pitfalls, especially under the current aggressively pro-union Board, and comments can result in legal and PR issues.  That said, employers and their executives should start by understanding they too have rights and that Section 8(c) of the Act protects the privilege of every employer to engage in free speech.  Specifically, Section 8(c) guarantees employers to right to communicate establishing:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.

This allows employers and executives to, among other things, lawfully communicate in the following ways:

  • Assert facts such as “the employees did not get paid during the strike and ended up losing their jobs after listening to union leaders.
  • Express opinions, any thing from “I think the unions resulted in the closure of our predecessor’s plants and lay off their employees” to “I think the unions sucked the filling out of the Twinkies and left nothing for the employee’s future.
  • Share their experiences, for example, “We sat through the discussions with the union during the bankruptcy and let them know we would be forced to lay off employees without concessions but the union refused to agree to a reasonable compromise and the employees all lost their jobs.”

Moreover, the law permits employers to have an affirmative position and policy disfavoring union involvement in their business or asserting a tough line bargaining philosophy.  For example, it is lawful for any employer, or executive, to assert in policy or comment:

  • The Company’s position is that while people should be free to join or not join a union, we believe we are the kind of company where employees will decide they do not need a union to speak for them.  We are committed to informing our employees of the reasons we are opposed to third party interference and taking all appropriate actions to lawfully maintain our union free status.

Given the law, certainly establishing a policy to gag executives on labor issues is an a option, but a more realistic and effective approach is to involve and (sparingly) utilize the top executives in labor relations.  In doing so executives should be guided by established corporate policy, educated and prepared on not only what and when to communicate but the process to make sure communications are both legally and strategically appropriate.

 Management Missives

  • Executives and management alike should feel empowered by labor relations communications, not stifled. This is possible with proper legal oversight and preparation.
  • The cornerstone of any labor relations communications strategy should be a written and established policy detailing the corporate position on labor issues.  Such policies can be phrases as Labor Relations, Third Party Interference, Union Free Status or another similar policy which best encapsulates the corporate position.  In developing the policy is it important both to make sure that it is in compliance with the NLRA and also that it has the approval of the highest levels of executive leadership.  Their buy in can be of paramount importance when and if the policy comes in to play.
  • Executives should not only approve of the policy before it is adopted but time should be invested in making sure they understand the policy and how it can be used by them as a guide and tool to advance the company’s objectives.
  • Executives should be educated, beyond the policy, on the do’s and don’ts related to labor related communications.  Obviously, time constraints will typically not permit a full training but quick instruction during a board or management meeting and refresher emails or notices when labor issues are heating up not only guard against potential liability but provide executives needed tools.
  • As any labor related communication has the potential to lead to an unfair labor practice charge, executives should be advised to work with labor counsel, as well as labor relations and public relations, prior to communicating.  This includes any type of communication, whether it be about an intent to operate non-union, responses to union organizing, issues involved in union negotiations, strike related comments or merely general comment of unions.
  • Remember, no two situations are identical.  Employers and their executives need to think strategically about using their Executive Privilege to communicate lawfully about labor matters.

Epstein Becker Green is pleased to announce a webinar series for health care employers focusing on new and more aggressive tactics and strategies being employed by health care industry unions.

This three-part webinar series will provide an in-depth analysis and offer tools to assist employers who currently have union represented workforces as well as those who are or may be facing organizing efforts.

Part I – January 29, 2013        Aggressive Union Organizing Strategies:  When Organizing Trumps Patient Care

Part II – February 28, 2013    Aggressive Union Negotiating Tactics

Part III – March 28, 2013       Aggressive Contract Management Tactics by Unions

Click here to register for Part I: When Union Organizing Trumps Patient Care – Aggressive Union Tactics

 WHEN: January 29, 2013

      12:00 pm – 1:00 pm EST/ 9:00 am – 10:00 am PST

For additional Information, please contact  Elizabeth Gannon at 202/861-1850 or egannon@ebglaw.com.

 

In a year marked by backlash against organized labor in traditional union strong holds such as Wisconsin, Ohio and Michigan, the Bureau of Labor Statistics has reported that union membership reached historic lows in 2012 as the result of that backlash along with other factors dwindled union ranks.

Organized labor lost 398,000 members in 2012 as the percentage of private sector union membership fell to an all time low of 6.6%. When both public and private sector employees are included the rate of union membership is almost doubled to 11.3% though that rate still represents a significant drop from the 11.8% represented in 2011. The rate of public sector union membership (35.9%) remained more than five times the rate of private sector union membership (6.6%), largely attributable to the lack of employee choice under many public sector organizing schemes and the influence unions have in electing their employers.

Although the number of employees represented by unions fell dramatically, certain sectors and areas were seemingly unaffected. Specifically, the percentage of healthcare employees actually increased from 9.3% to 9.6% as the total number of healthcare employees represented by unions rose by roughly 25,000 to 321,000. Similarly, the percentage of utility industry employees represented by unions increased and continues to lead all industries at 26.9%.

Geographically, California gained nearly 135,000 more union members and the rate of unionization increased from 18.2% to 18.4%. Though the raw numbers are less impressive, similar percentage increases were seen in the District of Columbia (9.9% to 10.3% ), Massachusetts (15.4% to 16.2%) and Texas (6.3 to 6.8). States that have traditionally been strong in union organizing – Illinois and New York, experienced a decrease.  Illinois dropped from 17.2% to 15.5% and New York dropped from 26.1% to 24.9%.

Although the causes of the overall drop in membership are myriad and include legislative change in several states as well as union organizers and resources diverted to electoral and other political causes, the effects are predictable… Organized labor must and will respond with aggressive efforts to increase their membership as a means of survival. The efforts will be both varied and targeted. 2013 will most certainly see concerted efforts to make it easier to organize through new NLRB regulations or rulings, increased use of corporate campaigns as well as traditional organizing drives focusing on the growing number of non-union service sector employees in the hospitality and healthcare industries. Likewise, in states like California with union friendly governors and legislatures, unions will inevitably continue to wield influence to aid their organizing efforts.

Management Missives

  • Although unions are down, they are far from out. Union free employers must be especially vigilant as organizing activities ramp up in 2013.
  • Although losing members in other industries, unions have had success in the healthcare and hospitality industries. The unions in these industries, especially the SIEU, CNA/NNU and UNITE-HERE, have already begun their aggressive organizing efforts, so employers in these industries should ensure they have a union avoidance program updated and in place as soon as possible.  Click here to learn  more about union organizing activities in the healthcare industry.
  • California employers should also examine whether their union avoidance program is adequate as the Golden State continues to be the goose that keeps on giving to the unions.

On January 3, 2013, the California Nurses Association/National Nurses United (CNA/NNU) and the National Union of Healthcare Workers (NUHW), two of the healthcare industry’s most aggressive unions, announced a new alliance designed to organize employees in non-union hospitals, impose their agenda on already unionized hospitals and target the members of rival union Service Employees International Union (SEIU).

CNA/NNU is the largest union exclusively representing registered nurses (RNs). The CNA has had considerable success in California organizing over 85,000 RNs and using its political clout to force through the first in the nation patient staffing ratios in 2004. The success emboldened CNA to expand nationally and create NNU, now representing an additional 100,000 RNs. CNA/NNU is known for extreme tactics, public pressure and strikes taken under the guise of patient care but with the actual goal of achieving typical labor objectives such as pay increases or union rights. In fact, CNA/NNU has called strikes at over 100 facilities in the last two years.

NUHW is a relatively new union, formed in 2009 by ousted leaders from the SEIU after the SEIU’s national leadership imposed control over the California local union covering healthcare workers. Since the schism, the NUHW leadership has embarked on an impressive campaign to poach SEIU members and otherwise organize healthcare workers. The NUHW already represents over 10,000 employees and has a pending NLRB petition to represent an additional 43,000 members currently represented by SEIU. NUHW is also known for aggressive tactics and is equally not shy about using strikes and other economic weapons to achieve its goals.

The announcement put an exclamation point on the official end of a four year truce between CNA/NNU and SEIU, under which the  two healthcare union giants had agreed to “bury the hatchet.” The formal truce, which was reached after the two unions publically attacked each other and sought to organize each other’s members in 2009, officially ended by its terms on December 31, 2012. The January 3rd announced alliance, which directly attacked SEIU and its leaders, makes it clear the hatchet has been dug up.

The alliance will provide both the CNA/NNU and NUHW additional resources to pursue their agendas. Since 2009 CNA/NNU has provided NUHW $2 million in loans or grants help the new union and the alliance will continue the financial support with NUHW’s access to CNA/NNU resources and CNA/NNU receiving per capita payments from NUHW members, the NUHW will remain technically an independent union. Additionally, the organizers, business representatives, lobbyists and other resources of each union can be utilized to support each other, not to mention the use of the membership to support picketing, strikes or other protest activity. The result is likely to be more hospital and healthcare organizing, more protests and more strikes in 2013

Management Missives

  • Non-union hospitals and other healthcare employers should evaluate their union avoidance strategies, appropriately train management and otherwise be prepared to respond it targeted;
  • Hospitals and other healthcare employers with relationships with either CNA/NNU and/or NUHW should anticipate an even more aggressive 2013, including potential organizing by the alliance of unrepresented areas of the employers’ operations, and develop appropriate contingent strategies;
  • Hospitals and other healthcare employers with SEIU contracts expiring in 2013 should be prepared for their facilities to become battlegrounds as CNA/NNU and NUHW look to capitalize on the alliance; and
  • The SEIU affiliated unions in healthcare are not likely to be passive and roll-over for the CNA/NNU and NUHW.   Expect the SEIU unions to develop and pursue aggressive counterstrategies to protect and expand their turf in this nasty street fight.

I wrote the October 2012 edition of Take 5: Views You Can Use, a newsletter published by the Labor and Employment practice of Epstein Becker Green. 

In it, I outline five actions that non-union employers should take to retain their union-free status in 2013:

  1. Assess your company’s vulnerability.
  2. Ensure that company policies are compliant and pro-company.
  3. Analyze and arrange your company’s workforce to avoid micro-units.
  4. Be prepared to respond at the earliest signs of union organizing.
  5. Watch for NLRB developments directed at non-union employers.

The following is an excerpt:

With the election around the corner, the nation’s attention turns to politics. However, regardless of who emerges victorious on November 6, one result can be predicted now: 2013 will see an uptick in union activity and union organizing drives. Although labor’s participation and spending in this year’s elections will reach record highs, employers should expect that after the election, unions will refocus their energy on non-union employers.

With private-sector union membership at record low levels and public-sector unions losing influence and members, the labor movement will be forced to recommit to organizing new private-sector members in 2013. While the tactics and tools available to unions may differ under a second Obama term than under a first Romney term, either way, unions will be targeting non-union employers rich with potential members to refill their ranks and coffers.

Read the full version on EBGlaw.com.

It seems with each passing month the National Labor Relations Board or its Acting General Counsel opens yet another new front on its assault on non-union employers.  A trend has emerged which puts labor law in conflict with standard employment practices.  From hire, to control of the workplace and employer property, to the manner post-termination disputes are handled, the NLRB is directing employers to ignore conventional wisdom, and often times other legal mandates, to alter the way they deal with their employees.

Much attention has been given to the NLRB’s more direct pro-union organizing efforts like efforts requiring all employers to post an NLRB Rights Poster  and efforts to dramatically alter the timeframe and process for union elections through the new Ambush Election rules.

With both of those frontal efforts now struck down by various courts and on appeal, the NLRB is continuing its efforts in other ways.  While some are more benign like the NLRB’s stated “educational” efforts, including its new informational website targeting non-union employers, several decisions this year exposed another much more concerning trend – one which targets the common sense employment practices of many employers.  Specifically, in a string of decisions the NLRB has staked out positions which are at odds with conventional wisdom and guidance on a broad range of issues which literally cover the entire life cycle of non-union employment.

From hire, the Acting General Counsel has prosecuted the use of standard At-Will Policies, asserting after decades of unencumbered use that their mere maintenance may violate the National Labor Relations Act.   While we have written in detail previously about this, it clearly conflicts with the common sense approach many employers have relied on, and many employment counsel have advised on, as a most basic tenant and practice of a non-union employer.

During employment, the NLRB has targeted employers’ control of their workplace both on their physical property and beyond.  We have written previously about the recent though steady erosion of employers’ property rights and ability to control Off-Duty Access by employees.  The Acting General Counsel also has aggressively pursued employer Social Media Polices, going so far as to issue numerous memoranda and even a model policy, but still leaves more questions than answers on the line for employers seeking to protect their interests against cyber-slander and other inappropriate online activity.

In what could be the most troubling development, the NLRB is taking positions which could create a dilemma for employers who both want to conduct a proper harassment investigation to comply with the Civil Rights Act (and similar state harassment laws).  As previously discussed, the NLRB recently found that asking an employee to keep a harassment investigation confidential violated the Act.

In one of the more brazen decisions, the NLRB has taken odds with numerous state and federal courts and, seemingly, the US Supreme Court by deciding in D.R. Horton, Inc. that the Act prohibits employers from seeking arbitration agreements which include class action waivers.  This decision, which arguably conflicts with the pro-arbitration decision by the US Supreme Court in AT&T Mobility v. Concepcion, is likely destined to be decided by the Court, until then employers must make the decision of which authority to follow.

Each of these NLRB positions forces employers into a Sophie’s Choice on whether to adhere to the NLRB’s new and aggressive view of the National Labor Relations Act or to continue to follow tried and true practices and, more important, the directives of the EEOC, state law and even the US Supreme Court.

The question now is what is next and how can non-union employers prepare?

Management Missive

  • Management should review its At-Will policies to see if they could be made less vulnerable to unfair labor practice charges.
  • Management should review its Social Media, Off-Duty Access and Harassment/Discrimination Investigation policies, weighing the various risks and benefits of each.
  • Management should review its arbitration agreements to determine the best practice after weighing the risks and benefits of class waivers.
  • Management should stay vigilant as the NLRB’s efforts continue.

Over the past year the NLRB has issued a series of decisions which, taken together, mark a dramatic shift in the property rights of employers and expand the right of employees seeking to use their employer’s property to organize.

Two decades ago, in Lechmere, Inc. v. NLRB, the U.S. Supreme Court ruled that employers had a right to limit or deny non-employee union organizers access to their property provided the denial was nondiscriminatory and consistent with state law.  For almost four decades, following its decision in Tri-County Medical Center, Inc., the NLRB has maintained that an employer could prohibit their own employees off-duty access to the working areas of its property, again provided it did so non-discriminatorily.   In a series of decisions the Board has significantly limited these employer rights.

First in New York New York LLC dba New York Hotel & Casino, the Board granted a right to the employees of a contractor/restaurant to access and use the property of the landowner/casino to try to organize the contractor’s employees.  In so doing the Board removed the ability of employers who have on-site contractors to exercise their state property rights and limit off-duty access of the contractors’ employees.

More recently, in Saint John’s Health Center and Sodexo America LLC, the Board has essentially rendered meaningless the provisions of Tri-County Medical Center enabling employers to prohibit off-duty access of employees to working areas.  In both cases the employers had policies prohibiting off-duty access with the exception of attending employer “sponsored events” or for employer-related business.  The Board ruled that because those employers allowed employees to come on to the employers’ premises to attend events as determined by management they did not fall within the Tri-County rule.  However, as the dissent pointed out in both cases, the Board’s new position in essence means that an employer cannot allow an off-duty employee to come on its property to attend a retirement party, pick up a check or fill out employment related paperwork (i.e. vacation or leave request) without also allowing the employee off-duty access to engage in union organizing.

Management Missive

  • Management should review its policies and practice on providing off-duty employees access, ensuring that any exceptions are both narrowly tailored and specific.
  • Like all such policies, Management should make sure that any rules it wishes to have are promulgated prior to any evidence of union activity, recognizing that once organizing activity begins they likely will not be able to adopt any new rules.
  • Management must ensure that any off-duty access rules are clearly articulated and uniformly enforced.
  • Management should seek counsel’s advice prior to disciplining any employees for violating \an off-duty access rule.