As appearing in the Human Resources of Central Ohio (HRACO) monthly newsletter
Are You Coming to the HRACO Labor Relations SIG to Learn About These Important Changes From the National Labor Relations Board?
Thank you for such great feedback and enthusiasm for HRACO’s first Special Interest Group dedicated exclusively for traditional labor matters. A time, date, and location have been set! The first meeting will be held on Tuesday, February 19th at Trustaff from 8:30 – 9:30. The address for Trustaff is: 470 Olde Worthington Rd., Suite 200, Columbus, OH 43082. Thank you to HRACO’s President Nicole Smith for hosting this first meeting.
Now onto some of the topics up for discussion at the HRACO Labor SIGs.
How the Pro-Union NLRB Impacts Every Company
The Board is made up of five Members who are usually appointed by the President and confirmed by the Senate. The political affiliation of the Board is supposed to include two Republicans, two Democrats, plus one person from the President’s party. Under President Bush, there were usually three Republicans and two Democrats. Under President Obama, there are currently just three Democrats (zero Republicans) including a former union attorney who had long represented the Teamsters, SEIU and the CWA and the former General Counsel of the International Union of Operating Engineers – although he was recently named as a defendant in a RICO lawsuit for allegedly firing an employee who blew the whistle on the union’s embezzlement scheme. Together these individuals have and will continue to create union-friendly laws such as:
- Micro Bargaining Units Unions can now organize employees by job titles instead of the traditional “community of interest” standard. Employers face the likelihood of several small bargaining units that are easier to organize and several union contracts that are more difficult to administer. For example, just the ladies’ shoe department of a major department store was recently permitted to unionize paving the way for the men’s department, perfume counter, children’s section, housewares, men’s suits, and handbag departments (17 different departments for 382 employees) to all be represented by different unions.
- Persuader Rules This rule, which is anticipated to take effect in April 2013, seeks to force companies to disclose to the federal government where and from whom they receive labor relations advice and how much they paid for that advice, whether spending $20 at a luncheon listening to a speaker or several thousand dollars defending a union organizing drive. Labor lawyers, like me, believe this rule violates the attorney-client privilege.
- Social Media Tweets, Facebook posts, and the like can be considered “protected concerted activity,” and employers are not allowed to discipline or discharge employees for engaging in such conduct. Protected concerted activity is when an employee acts on behalf of a group of employees regarding a term or condition of employment. For example, a tweet like: “I hate my job. My boss plays favorites, and I don’t make enough #&@^$ money to put up with him” is probably protected concerted activity, and that employee – regardless whether she is in a union – cannot be disciplined or discharged despite possibly breaking several employment-related policies. Further, the Board’s strict rules of acceptable social media policies results in the vast majority of policies violating the Act. Seeking legal advice before implementing a social media policy is prudent.
- Arbitration Agreements The NLRB prohibits all employees from signing arbitration agreements that prevent them from joining other workers in class-action arbitration proceedings or lawsuits.
- End of Confidential Workplace Investigations The hallmark of a workplace investigation is that the information provided remains confidential until all the facts are uncovered and a decision is made. While human resources cannot promise anonymity in investigations, most policies ensure as much confidentiality as possible. These policies are now unlawful according to the NLRB. Subject to certain limitations, employers cannot require confidentiality during ongoing workplace investigations. Specifically, discussing an investigation with co-workers is considered “collective activity” under the Act and trumps workplace policies of confidentiality during investigations.
- Open Door Policies The following policy from a handbook violated the NLRA: “Voice your complaints directly to your immediate supervisor or to human resources through our ‘open door’ policy. . . Complaining to your fellow employees will not resolve problems” because it allegedly prohibited employees from speaking to co-workers about terms and conditions of employment.
- At-Will Disclosures A handbook clause that states an employee’s at-will status can be changed only by a corporate executive may lead an employee to believe that being represented by a union or having a collective bargaining agreement would be futile because neither of those could alter the at-will status. As such, the Board has forced non-union companies to change the at-will language in their handbooks.
- Moonlighting Policy A moonlighting clause banning employees from outside employment without prior written consent from the employer may now violate the NLRA if it has an unlawful motive or was implemented with anti-union animus, i.e. to prohibit union organizers from obtaining employment at non-union companies.
- Limiting Off-Duty Employees’ Access to Company Property Limiting off-duty access to the workplace except with management approval or when employees are engaging in employer-related business is unlawful because the limitation could prevent employees from engaging in Section 7 rights, such as union organizing, without management’s approval.
- Work During Working Hours A company rule requiring employees to only perform work during working hours violates the Act because such rule could confuse employees into believing that they cannot engage in union solicitation during breaks and lunches. According to the NLRB, “working hours” now means time when you are at work, not time spent actually working.
How the NLRB’s Pro-Union Agenda Impacts Unionized Employers, Specifically
The Board’s pro-union agenda does not just focus on non-union employers. Companies that deal with labor unions on a daily basis must also be cognizant of several major changes in the law, some of which are:
- Discipline Employers must now bargain with a union over discretionary discipline during negotiations for a first collective bargaining agreement.
- Dues Deduction In overturning a 50-year law, employers must now continue automatic dues deduction after the expiration of a union contract.
- Beck Objectors The Board believes that lobbying expenses are germane to the union’s duties as bargaining agent and thus chargeable back to Beck objectors.
- Witness Statements In overturning a law from 1978, witness statements from employees to employers are no longer exempt from disclosure to unions absent assurance of confidentiality to employees, nor do they qualify as privileged under the attorney work-product doctrine unless “specifically created in anticipation of foreseeable litigation.”
- Backpay In most cases where backpay is awarded as a remedy, the losing employer not only has to pay the backpay (and interest), it must also pay the employee’s taxes associated with the backpay, i.e. social security and income taxes.
NLRB’s Pro-Union Agenda’s Forecast for the Future
While much of what the Board will do in 2013 is obviously not yet determined, below are some educated estimates of future changes.
- Shorter Election Cycles Currently, the time between when a union files a petition to represent employees and the representation election averages around 45 days. Statistically, the shorter the time period, the likelier employees will vote in favor of union representation. The Board has opined that this period should be “as short as possible” and “quickie elections” with time periods as short as 5-7 days is likely. Employers should actively engage in union-avoidance and pro-employee relations now, as waiting to campaign against unionization until after a representation petition is filed is too late.
- Hang the Poster Employers will be required to hang a poster throughout the workplace that specifically informs workers of their right to organize a union and how to learn more about the process of organizing a union.
- Unions Granted Equal Access Currently, an employer’s property is its private property and unions, for the most part, are not allowed to trespass. Unions will likely receive greater (if not equal) access to an employer’s property to engage in union organizing activity.
- Email for Union Organizing Currently, an employer can place restrictions on how its employees utilize company-furnished email accounts and electronic devices. This will probably change. For example, organizers will be permitted to solicit employees to attend the next organizing meeting, and pro-union employees will be allowed to openly campaign in favor of unionization through company provided technology.
- Card Check Richard Tumka, head of the AFL-CIO who claims he talks to the White House every day and visits a few times each week, promised that if Obama won a second term as President, that card check will be a reality. The only thing standing in way of card check is a Republican controlled Senate. If Democrats regain control of the Senate in 2014, card check will be a reality.
- Temporary Workers Currently temporary workers do not pay union dues and do not work under the confines of a union contract. It is anticipated that temporary workers – who are not employed by the unionized employer – will have the right to organize and belong to a union alongside the employer’s regular, full time employees.
What Should HRACO Members Do
HRACO members should continually educate themselves about the onslaught of grave labor law changes from the NLRB. Employers must train supervisors on compliance matters as well as union-avoidance strategies to diminish the Board’s governance of your company as much as possible. Since the above was written for informational purposes and not legal advice, companies are encouraged to seek legal counsel to ensure they are complying with the law as even the smallest form of non-compliance can result in significant detriment to your company. Attendance at HRACO Labor SIGs – held on the third Tuesday of every month from 8:30 to 9:30 – will provide education and guidance on many of these issues.
Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.