Employers Can No Longer Hire Permanent Replacement Workers During Strikes

The National Labor Relations Board just severely restricted the law that gives employers the right to permanently replace economic strikers. In its American Baptist Homes decision the Board ruled that it is unlawful for an employer to hire permanent striker replacements where any part of the intent of that decision is to harm the union. Ummm, the only purpose of either a strike or hiring replacement workers is to harm the other side. That’s why they are called economic weapons.

This decision essentially guts the 1938 Supreme Court decision in Makay Radio approving the use of permanent replacement workers as one of the economic weapons available to an employer after a union makes the decision to try to shut down a company by striking. Until American Baptist Homes is overturned, the hiring of permanent replacement workers will become a never-ending legal battle that will wind its way through courts for years.

In his dissent, Member Miscimarra stated that the point is to make strikes so painful for both sides that the incentive is to settle and avoid the battle in the first place. The Supreme Court understood this perfectly when it allowed permanent replacement more than 75 years ago. The American Baptist Homes decision essentially removes that weapon from employers and is likely to lead to more strikes and thus fewer union shops.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

NLRB GC Removes Employers’ Ability to Withdraw Recognition from a Union that Loses Majority Status

An employer is only allowed to bargain with a union that has proven it represents a majority of employees in an appropriate bargaining unit. Otherwise the company violates the law by recognizing a non-majority union. This rule on majority status is tricky. If a company thinks a union has lost its majority status it is between a rock and a hard place. If it bargains with a non-majority union it is committing an unfair labor practice. On the other hand if it refuses to bargain with a union that does represent a majority it is also committing an unfair labor practice.

Historically employers in this situation had to options. They could file an RM petition (essentially a decertification petition filed by management). Or they could withdraw recognition by informing the union that the employer will not longer follow the collective bargaining agreement or negotiate with the union due to the doubt about its majority status.

The NLRB General Counsel released a memo in May that essentially takes away withdrawal of recognition as an option. It states that an employer is not allowed to withdraw recognition unless there was a prior RD or RM election. After a union loses an RD or RM election the union no longer represents anyone, so withdrawal of recognition becomes moot. If adopted by the NLRB this will overturn the 2001 Levitz decision which followed the historic rule that companies could withdraw recognition without an election

Withdrawal of recognition should remain an option. Regardless if a union has lost an RD or RM election, the employer is still committing an unfair labor practice if it recognizes and bargains with a minority union. That is part of National Labor Relations Act. There has to be some process that allows a company to protect itself when it is in this no-man’s land between a bargaining obligation and an actual RD or RM result.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

NLRB Requires Employers to Look in a Chrystal Ball when Negotiating Management Rights Clauses

A company announced its intent to make changes to existing policies, specifically, its work rules, absenteeism policy, and progressive discipline policy, which were maintained outside of the collective bargaining agreement. Upon learning of this, the union asked to meet and requested information regarding the proposed changes. The company agreed to the meeting, but made clear its position that there was no obligation to bargain over the proposed changes since the management-rights language reserved the right to adopt and enforce rules and regulations and policies and procedures, and to establish standards of performance for employees. The company also denied that it had an obligation to provide the requested information given there was no duty to bargain.

Nonetheless, the parties met and discussed the proposed changes. The employer made some revisions requested by the union and then implemented the modified policies. The NLRB ruled that the employer did not have the right to make these changes outside of bargaining because it did not specifically reserve the right to make such changes in the management rights clause of the collective bargaining agreement.

In his dissent, Member Miscimarra said the “management rights language demonstrates that the parties had already bargained and agreed that the employer had the right to make those changes unilaterally.” To hold otherwise would require employers to determine every potential management rights-related change they may want to make during the future life of the collective bargaining agreement and negotiate those changes into the agreement or risk losing the ability to make the changes without bargaining over them.

This case indicates that the Board will now require a degree of specificity not previously required in order to find a waiver in the language of a management-rights clause. Employers should consider negotiating management-rights provisions with as much specificity as possible as to the rights being retained or engage in bargaining with the union before making any changes in terms and conditions of employment.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

NLRB [Again] Overturned Decision that Pro-Union Buttons Violated Work Rules

In Boch Honda the employer maintained a handbook policy that prohibited customer-facing employees from wearing, among other things “message” pins. NLRB ALJ determined that the employer’s interests in workplace safety and preventing damage to vehicles met the special circumstances standard and justified the ban.

As it’s prone to do, the NLRB reversed the ALJ and determined that the employer had failed to meet the special circumstances exception because the ban on pins was overbroad because it applied to employees, e.g. administrative and finance employees, who had no contact with vehicles.

Unfortunately, on appeal, the court agreed with the NLRB. The court was not persuaded that a “small and unobtrusive” union pin worn by a non-uniformed employees would interfere with the general professional image the car dealer was trying to create. The court also agreed with the NLRB that the ban was overbroad. Although acknowledging that a pin could fall into an engine or scratch a vehicle, the court found the ban was not narrowly trailer to prevent those kinds of events from happening.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

NLRB Overturned Decision that Pro-Union Buttons Violated Work Rules

The Daily Grill, a “traditional American grill” restaurant in Los Angeles, prohibited its employees from wearing union buttons while interacting with customers. Although employees had been allowed to wear buttons such as “trainer” and “anniversary” pins, the restaurant threatened to discipline or sent home early several employees who, during a union organizing drive, wore one inch in diameter UNITE HERE union buttons at work.

Employees are allowed to wear union pins or buttons at work absent “special circumstances.” Special circumstances where the display of union buttons may jeopardize employee safety, damage machinery or products, exacerbate employee dissention, or unreasonably interfere with a public image that the employer has established, as part of its business plan, through appearance rules for its employees.

The ALJ held that the Company’s ban was lawful because it fostered the Daily Grill’s public image as a traditional American grill restaurant and that a consistent, customer-driven experience and atmosphere was at the core of the employer’s business model, and the uniform and professional appearance of its servers was part of that model.

On appeal the uber pro-union NLRB disagreed and explained that when it is faced with an employer’s claim that its public image justifies a ban on union buttons, it considers the button’s physical appearance and message to determine if it interferes with the employer’s desired public image. The NLRB found that the employer “presented no evidence on how the Union’s small, inconspicuous, and non-inflammatory buttons would unreasonably interfere with a server’s ability to provide reliable service or interfere with the [restaurant’s] public image.”

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

A Significant Takeaway from the NLRB’s Temp Worker Union Ruling

The key issue that could arise out of the Miller & Anderson ruling isn’t necessarily its effect on collective bargaining or union organizing efforts, but rather on how any eventual collective bargaining agreements are used.

What’s to stop a union from using a CBA as evidence that employers are joint employers? According to one article I read, “The [ruling] created, with a gun to [employers’] head, a piece of evidence that can be used in other contexts to prove joint employment, like wage and hour cases, Occupational Safety and Health Administration complaints and workers’ comp claims.”

The simple truth is that avoiding unionization is not a primary reason that employers enter into business relationships with suppliers and staffing agencies. Even though Miller & Anderson is a return to the NLRB’s Sturgis standard, The reality is that the board is likely to apply the ‘community of interest’ test more frequently than it did under Sturgis because the board also recently expanded the concept of joint employment in Browning Ferris.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Keeping Up with the Changing Landscape of Joint Employer

NLRB Tightens its Joint Employer Standard

In 1984 the NLRB issued a decision known as TLI, Inc. that set the standard of when it would find two or more companies to be joint employers. There, joint-employment would only be found when both entities actually exercised direct or immediate control over the employment of the same workers. For example, a warehouse employer would be deemed a joint-employer of a staffing agency’s workers only if it actually controlled decisions like “hiring, firing, discipline, supervision, and direction” of the staffing company’s workers in a direct or immediate manner.

Browning Ferris and its staffing company contained a customary disclaimer and also vested the staffing agency with nearly all firing, firing, and control over its supplied workers. Despite that language, the NLRB found that Browning Ferris and the staffing agency were joint employers over the supplied employees.

The NLRB found that the contract in Browning Ferris (2015) allowed the employer to reserve control over certain terms and conditions of the supplied workers’ employment, such as a reserved right to reject a temporary hire and set the hours of the workforce as a whole. Though minimal, this was enough for the NLRB to find the companies to be joint-employers. Thus, the NLRB’s new standard is that reserved control of terms and conditions of employment can be sufficient for finding joint-employment – as opposed to the prior test which required actual control.

DOL Issues Administrative Interpretation on Joint Employment

On the heels of the NLRB’s revised joint-employer standard, the DOL’s Wage and Hour Division issued a new “Administrator’s Interpretation No. 2016-1”) on January 20, 2016 that revised its test for joint-employer status under the federal employment laws within its control, most notably the Fair Labor Standards Act (FLSA). Following the NLRB’s lead, the DOL made it easier for joint-employment relationships to be found.

The Interpretation announced that the DOL will use an “economic realities test” that does not focus solely on the control that a possible joint-employer has over an employee but rather centers on whether an employee is “economically dependent” on the potential joint-employer. A number of factors are considered by the DOL under this new test, including the amount of control the employer has over the working conditions and the work performed by the employees; the duration of the relationship between the company and employees at issue; the nature of the work being performed and its importance to the company; the location where the work is being performed, i.e. whether it is on the company’s premises; and others.

Of course the finding of joint-employment by the DOL imposes significant risks on companies. For example, assume employees from a staffing agency work at company ABC 20 hours per week, at Company XYZ 20 hours per week, and at the staffing agency itself 10 hours per week. Individually, none of the hours result in overtime compensation to the worker. But if ABC, XYZ, and the staffing agency are joint employers, they may all be liable for overtime payment to the employee despite the worker working at most 20 hours per week for a specific company.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.