Tag: Unions

An In-Depth Analysis of the NLRB’s Decision to Permit Employees to Use Employer Email Systems for Union Organizing and Other Non-Work Purposes

Sheppard Mullin Law Firm

The rights of employees under Section 7 of the National Labor Relations Act have been given quite the digital treatment over the last few years.  In its newest decision issued on December 11, 2014, the National Labor Relations Board ruled that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”  The full decision can be found here.

In Purple Communications, Inc. and Communications Workers of America, AFL–CIO. Cases 21–CA–0951 51, 21–RC–091531, and 21–RC–091584, the Board overturned its previous decision in Register Guard, 351 NLRB 1110 (2007), which held that employees do not have a right to use their employers’ email systems for Section 7 purposes.  But, as seen in recent years, the Board has embraced the digital age and has concluded that employee Section 7 rights include everything from social media to, in this case, company email.

Like most companies, Purple Communications, Inc., has an “Internet, Intranet, Voicemail and Electronic Communication Policy” in its employee handbook.  Among other things, this policy prohibits employees from using the “computer, internet, voicemail and email systems, and other Company equipment” to engage in “activities on behalf of organizations or persons with no professional or business affiliation with [the] Company” or “sending uninvited email of a personal nature.”  The Communications Workers of America filed an unfair labor charge regarding this policy, and the Administrative Law Judge found the policy lawful under Register Guard, dismissing the allegations.  This new decision by the NLRB then followed.

In overturning Register Guard, the Board stated that email has “effectively become a natural gathering place pervasively used for employee-to-employee conversations” and the fact that this “gathering place” is virtual does not undermine the role that email plays in Section 7 protected workplace discussions.  In fact, the Board concluded that “email’s effectiveness as a mechanism for quickly sharing information and views increases its importance to employee communication,” especially in the seven years since Register Guardwas issued.  Interestingly, the Board relied on empirical evidence regarding the rise in “teleworking” and email usage for all work functions, at the physical workplace and remotely, to demonstrate that email has become a significant platform for employee communication.  Accordingly, it was held that email’s use for Section 7 activity must be protected under the NLRA.  The Board will no longer “perpetuate” an “outmoded assessment of workplace realities.”

The Board attempted to preemptively address employers’ concerns about the ruling, by stating that this decision is a “limited one,” in that it addresses only email and not any other types of electronic communication systems.  Moreover, businesses are not prevented from monitoring their computers and email systems for legitimate management purposes.  Finally, the Board stated that an employer may justify a ban on non-work use of its email system if it can point to “special circumstances” that necessitate the ban, including system overload, the nature of the business, and excessive costs.  Regardless, the Board’s dissenting members apparently are not convinced, arguing that this decision will lead to significant problems down the road.

Interestingly, the Board fails to directly address the decision’s effect on other types of policies that could be affected, such as non-solicitation and non‑distribution policies.  The Board distanced itself from the issue, stating that “we do not find it appropriate to treat email communication as either solicitation or distribution per se.”  The dissent took issue with this stance and predicts that this decision will make it very difficult to determine what communications violate lawful restrictions against solicitation in the future.

Although the Board did not outright declare Purple Communication’s electronic communications policy unlawful, employers should be wary of overly broad or restrictive electronic communications policies.  As with the onslaught of social media decisions and subsequent policy revisions, employers should take a hard look at their electronic communications policies in light of this decision and consider whether their policies put them at risk in this evolving digital age.

ARTICLE BY

Kevin M. Cloutier
Mikela T. Sutrina
OF
Sheppard, Mullin, Richter & Hampton LLP

Michigan Bill Would Bar Student-Athlete Unionization

Jackson Lewis Law firm

With a National Labor Relations Board decision on whether football players at Northwestern may proceed with their unionization efforts looming, Michigan is considering a bill that would prevent student-athletes from similarly attempting to unionize.

The bill, sponsored by Rep. Al Pscholka, would prevent student-athletes at Michigan’s public universities from exercising collective bargaining rights based on their participation in a university sports team. It states, “a student participating in intercollegiate athletics on behalf of a public university in [Michigan]…is not a public employee entitled to representation or collective bargaining rights….”

Michigan has seven public universities competing at the Division I level. The bill would bar student-athletes at these universities from engaging in unionization efforts similar to the ones undertaken by the football players at Northwestern.

While none of the seven universities has faced a union organizing campaign from any of its student-athletes, prompting one opponent of the bill, Rep. Andy Shor, to describe the bill as a solution to a nonexistent problem.

“I don’t understand the tremendous rush on this,” Shor said. “We’re taking an action that addresses something that’s happening in Evanston, Illinois.”

However, if the Board finds in favor of the football players at Northwestern, universities across the country likely will face similar unionization efforts from other student-athletes. Michigan’s may be an attempt to get out in front of such efforts.

According to Ramogi Huma, the president of the organization spearheading the unionization campaign at Northwestern, the College Athletes Players Association, Michigan’s bill is “backhanded confirmation that student-athletes are state employees by including them in a list of workers who can’t bargain effectively.” However, the bill does not categorize student-athletes as employees and, indeed, it states that “individuals whose position does not have sufficient indicia of an employer-employee relationship” are also prevented under the bill from engaging in collective bargaining.

Huma also warned that if the bill passes, it would have a negative impact on the ability of Michigan’s public universities to recruit student-athletes because prospective student-athletes interested in being part of a union could elect instead to go to either private universities in Michigan or universities in states with no restrictions on their unionization efforts.

Thus far, none of the seven Division I public universities in Michigan have commented publicly on the bill. However, the bill likely is being closely followed by them as well as public universities in other states and major athletic conferences, such as the Big Ten, home to Northwestern, Michigan, Michigan State, and Ohio State.

ARTICLE BY

Michael B. Ackerstein
OF
Jackson Lewis P.C.

Not Just Your (Company) Email System Anymore! re: NLRB Purple Communications Ruling

Godfrey Kahn Law Firm

On December 10, 2014, the National Labor Relations Board (Board) ruled in Purple Communications, Inc., 361 N.L.R.B. No. 126, thatemployees have a right, protected by the National Labor Relations Act (Act), to use an employer’s email system during non-working time for communications protected by the Act(e.g., to discuss union issues or other protected concerted activities protected by Section 7 of the Act). The Board has thus overruled prior precedent, as set out in Register Guard, 351 N.L.R.B. 1110 (2007), that the Act did not give employees the right to use their employer’s email systems for Section 7 purposes.

A copy of the December 10, 2014 Board decision can be found here. The following passage sums up the scope of the Board’s ruling:

First, [this ruling] applies only to employees who have already been granted access to the employer’s email system in the course of their work and does not require employers to provide such access. Second, an employer may justify a total ban on nonwork use of email, including Section 7 use on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or dEmail Selection on Computeriscipline. Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline. Finally, we do not address email access by nonemployees, nor do we address any other type of electronic communications systems, as neither issue is raised in this case.

The Board’s decision may be appealed by the employer, but even if it is not appealed, the email issue will likely continue to be litigated before the Board. For now, employers should review their electronic communications policies to ensure compliance with the Board’s new standards or to, at a minimum, understand their risk.

ARTICLE BY

Rufino Gaytán
OF
Godfrey & Kahn S.C.

NLRB Finds Facebook Posts Go Too Far for the Act's Protection

Neal Gerber

As we reported previously, social media issues are troublesome for employers who must navigate unsettled or even conflicting federal and state laws and decisions.  A recent ruling from the National Labor Relations Board (NLRB) demonstrates that employers can still protect their business against inappropriate online activity by employees.  Specifically, the NLRB ruled that an Employer acted lawfully in rescinding two employees’ rehire offers, finding that the Facebook conversations between the two were so egregious as to lose protection under the National Labor Relations Act and render the two individuals unfit for further service with the Employer.

The Employer operates a Teen Center that provides afterschool activities to students.  During a period between school sessions, just before the employees would have been rehired for the coming school year, the two individuals engaged in a series of Facebook conversations during which they repeatedly talked, in profane terms, about what they intended to do when they returned to work. The messages contained numerous indications that the two would refuse to follow the rules and policies of the Employer, would refuse to work with management or get required permissions, would engage in various acts to undermine the school’s leadership, and they detailed specific acts of intended insubordination.

The NLRB agreed that the exchange of messages (which certainly discussed their displeasure over working conditions) was “protected concerted activity” under the Act. Normally, such protected activity cannot be the basis of any adverse employment action. However, the Board determined that the conduct constituted “pervasive advocacy of insubordination which, on an objective basis, was so egregious as to lose the Act’s protection.”

In finding the conduct unprotected, the Board relied on the fact that the individuals repeatedly described a wide variety of planned insubordinations in specific detail. According to the Board, these acts were beyond brief comments that might be explained away as a joke or hyperbole divorced from any likelihood of implementation. Rather, the Board concluded that the magnitude and detail of insubordinate conduct advocated in the posts reasonably gave the Employer concern that the two individuals would act on their plans, a risk that a reasonable employer would refuse to take by returning the individuals to the workforce. The Board concluded that the Employer was not required to wait for the employees to follow through on the misconduct they advocated.

This decision gives employers some relief that there are limits to what employees can say on social media, even if the subject of their conversations or postings is “protected” and “concerted”. However, before an employer can take adverse employment action against an employee who engages in such activity, the employer must be able to demonstrate that, on an objective basis, the activity is egregious and pervasive and is of such magnitude and of such detail that it is reasonably likely to be acted upon rather than being mere hyperbole.

[Richmond District Neighborhood Center, 361 NLRB No. 74 — October 28, 2014]

ARTICLE BY

Howard L. Bernstein
OF
Neal, Gerber & Eisenberg LLP

Are Union-Free Strikes Protected? The NLRB (National Labor Relations Board) Thinks So.

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In June 2013, we issued a client alert discussing the efforts of unions and the National Labor Relations Board (NLRB) to target the primarily union-free big box retailer and fast food industries. After describing how Target had come under scrutiny from the NLRB, the client alert detailed how the United Food & Commercial Workers Union (UFCW) and the UFCW-backed group “OUR Walmart” had been coordinating strikes and filing charges with the NLRB against Walmart. The client alert then foreshadowed: “[g]iven the Board’s recent penchant for union activism, do not be surprised if it takes a close look at Walmart’s policies and practices in the coming months.”

As predicted, the Board filed a consolidated complaint against Walmart on January 14, 2014 alleging the union-free retailer violated workers’ rights in response to coordinated strikes across 13 states. The complaint alleges dozens of Walmart supervisors and one corporate executive threatened, disciplined, surveilled, and/or terminated more than 60 workers in response to the union-free strikes.

The complaint is significant for two reasons: (1) the Board is taking the position that union-free workers have a protectable right to strike; and (2) the Board is testing its position against the nation’s largest employer. The Board views the union-free strikes as a form of protected concerted activity, and its press release states that the National Labor Relations Act (NLRA) guarantees employees the right to “act together to try to improve their wages and working conditions with or without a union.” The complaint alleges Walmart violated the NLRA by maintaining a policy that treats absences for participation in strikes as unexcused. The complaint also details alleged retaliatory disciplinary actions taken by Walmart supervisors at particular store locations, though many of the listed locations involved only a single worker being absent.

From an employer perspective, the Board’s position raises many questions. For example, how is a supervisor to know whether a non-union worker is participating in a “strike” or just absent? Can a single worker go on strike, or is there a minimum number of strikers for the activity to be “concerted”? Can strikers be permanently replaced? Are “intermittent” strikes prohibited? It is easy to see why union-free strikes create tough questions for union-free employers.

The Board’s actions against Walmart are worth watching as they come amidst a larger backdrop of worker protests and political debates over minimum wage and working conditions that are likely to remain in the spotlight for the foreseeable future. How courts ultimately grapple with the Board’s position and the resulting questions could have far-reaching effects on the labor market in 2014 and beyond.

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Michael Best & Friedrich LLP

Federal Court Prohibits Union From Striking To Prevent Sale Of Business To Non-Union Employer

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Last week a New York federal district court granted a preliminary injunction against the Teamsters union after it threatened to go on strike against Will Poultry, Inc. if the company proceeded to sell its business to a non-union purchaser who had no plans of assuming the parties’ collective bargaining agreement (CBA).The parties’ CBA did not have a “successor clause” or any other language obligating a purchaser to assume or otherwise recognize the Teamsters union upon a sale. When the Teamsters demanded that Will Poultry modify the CBA to include a “successor clause” in advance of the sale or face a strike, the company filed for an injunction in federal court.

teamsters union litigation

While the CBA did not contain an express “no strike clause,” it did have a grievance/arbitration provision, and the court held that constituted an “implied” no strike clause. Accordingly, the court issued an order prohibiting the union from striking in violation of the implied no strike clause, which almost certainly would have killed the pending sale.

While the New York federal court correctly found an implied no strike clause in this case, this case should serve as a reminder that you should always review your CBA in advance of successor contract negotiations to make sure any language issues (like the lack of a no strike clause) can be addressed.

The Teamsters have filed for an appeal of the decision, but a copy of the district court’s order can be found here.

Article by:

David J. Pryzbylski

Of:

Barnes & Thornburg LLP

Michigan Right to Work – What’s the Effect: A Data Point

barnes

How Michigan’s Right to Work law would ultimately impact union dues payer rolls has been a topic of some debate. Now we have a data point, but it may not tell the whole story.

Michigan’s Right to Work law became effective March 28, 2013. The law gives employees the right to choose to join and/or financially support a union. In other words, it allows employees to retain the representational benefits of their union representation without paying dues. If an employee elects not to pay dues, the employee’s union still must represent the employee with respect to grievances and arbitration. Unions refer to this as “freeloading.”

There has been much speculation about what impact the passage of Michigan’s law would have on the number of dues paying members. Today, an article in the Detroit News reported that, according to the Michigan Education Association, Michigan’s 150,000 member teachers union, only 1 percent of its members have elected to exercise their rights under the Right to Work law and stop paying dues.

Michigan

This, however, likely only tells part of the story because the law does not impact union security provisions in contracts that have not yet expired and some contracts were “rush-renewed” to ensure that they would not be impacted by Right to Work for several more years.

In addition, the Right to Work law did not impact union “check off” provisions which are often tied to a card that is signed by a union member and authorizes the employer to deduct dues from the member’s paycheck and send them to the union. Such cards can serve as an impediment to a member desiring to stop paying dues because they can be irrevocable for a period of time, even if the employee revokes his or her union membership. These agreements, which can be irrevocable for up to a year under federal law, are a hurdle that trip up many employees trying to end dues payments immediately. However, while certain restrictions on dues check off authorizations have been approved under federal law, it is unclear whether the Michigan Employment Relations Commission (MERC) will find such restrictions lawful or violative of Michigan’s Right to Work law.

The point is, MEA’s 1 percent report is only one data point; it will take a lot longer to tell the impact on the number of dues paying members in the MEA and other unions.

See all our previous Right to Work coverage here.

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Michigan Supreme Court Won’t Give Advisory Opinion on Right-to-Work

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Saying simply that “we are not persuaded that granting the request would be an appropriate exercise of the court’s discretion,” the Michigan Supreme Court on Friday denied Gov. Rick Snyder’s request that the high court render an advisory opinion about the constitutionality of Michigan’s new right-to-work law.

Relying upon the provision in the state’s constitution’s that allows the governor to request the “opinion of the supreme court on important questions of law upon solemn occasions as to the constitutionality of legislation after it has been enacted into law but before its effective date,” the Governor had asked the Court for a ruling largely because the state’s public workers’ collective agreements are set to expire at the end of 2013. In a brief filed in support of the request for an advisory opinion, Michigan Solicitor General John Bursch said that an advisory opinion would prevent an “impasse at the negotiating table.”

Notwithstanding the Court’s decision, six lawsuits continue challenging the Act. Two of them are brought by unions or labor coalitions. Michigan State AFL-CIO v. Callaghan has been brought in federal court and challenges the constitutionality of the Act as to private sector workers. UAW v. Green, currently pending in the Michigan Court of Appeals, challenges the constitutionality as it applies to public sector workers. Here’s a helpful link to a chart describing the pending litigation.

SG Bursch also said in his filing with the Supreme Court that barring Supreme Court action, the state would consider filing a motion seeking an expedited ruling in the Green case.

The Detroit Free Press coverage on the court’s decision can be found here.

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Under Pressure: Unions Espouse New Organizing Models and Take Action

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Back in March, AFL-CIO President Richard Trumka summarized his view of the state of union representation in America: “To be blunt, our basic system of workplace representation is failing to meet the needs of America’s workers by every critical measure.” Last week in a Washington Post Op-Ed, this view was echoed by columnist and long-time advocate of big labor’s policies Harold Meyerson. Meyerson identified an “existential problem” facing unions, which are continuing to see membership numbers decline.

It is not difficult to understand the concern. Membership decline means one thing for unions: less dues. Measures that weakened public sector unions in Wisconsin and passage of right to work legislation in traditional union Midwest strongholds of Indiana and then Michigan, along with ever-shrinking private sector union membership, have forced labor into a place of critical self-evaluation. And what is emerging from this self-evaluation is a dedication to expanding the scope of union organizing.Union membership decline

In March, Trumka highlighted new targets of organizing that are being explored – non-traditional targets. Trumka noted home care workers, taxi drivers and others who don’t fit neatly into the traditional models of unionization will be targets. The point is: unions are increasingly setting their sights on individuals who “do not neatly fit the legal definition of an employee.” And businesses and employers who before may have not traditionally considered themselves targets for big labor should be paying attention.

Such efforts are not just anecdotal.  As we saw in Michigan with home health care unionization, these non-traditional unionization efforts can have a lot of upside for unions, even if they are not ultimately successful in keeping their representative status. SEIU collected $34 million in dues from more than 59,000 home health care workers in Michigan before it was ultimately forced to end its status as bargaining representative in 2012.

Meyerson also points out the recent one-day strikes of fast-food workers in New York and Chicago as evidence of a changing model. Workers in other cities, including St. Louis and then Detroit this past weekend, have followed suit. Employers will be mindful to pay attention to such trends.

Meyerson explains the AFL-CIO’s plan too. And, it starts with seeking more political power – not necessarily more dues paying members. As Meyerson explains: “The first part of this plan is to expand its Working America program, a door-to-door canvass that has mobilized nonunion members in swing-state working-class neighborhoods to back labor-endorsed candidates in elections in the past decade.”  Phase Two, according to Meyerson quoting Trumka, is “we’re asking academics, we’re asking our friends in other movements ‘What do we need to become?’” And Phase Three: “We’ll try a whole bunch of new forms of representation.  Some will work; some won’t, but we’ll be opening up the labor movement.”

Where all of this ends up is anyone’s guess – but this is clear: the model of unionization is changing.  Change means new challenges. The bottom line for employers: Be Prepared.

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Sixth Circuit Upholds Michigan Law Which Bars Schools from Collection Union Dues

Barnes & Thornburg

The 6th Circuit in Bailey v. Callahan, decided Thursday, May 9, has vacated an injunction entered by the District Court and has upheld Michigan’s Public Act 53 which prohibits Michigan’s public schools from assisting in the collection of dues and service fees for unions. The Court summarized the Union’s First Amendment challenge to the statute in this way:

“Unions engage in speech (among many other activities); they need membership dues to engage in speech; if the public schools do not collect the unions’ membership dues for them, the unions will have a hard time collecting the dues themselves; and thus Public Act 53 violates the unions’ right to free speech.”

The problem with that, according to the majority opinion, is that this argument has already been rejected by the U.S. Supreme Court in Ysursa v. Pocatello Education Association, 555 U.S. 353 (2009). Moreover, the Court determined that Public Act 53 does not restrict speech and is not designed to specifically suppress speech by teachers’ unions. Finally, the Court, in two paragraphs, rejected the plaintiff’s equal protection argument.

The opinion incited a lengthy dissent from Circuit Judge Jane Stranch who contended that the majority “mischaracterizes the First Amendment interests at stake, glosses over key distinctions the Supreme Court requires us to observe, and averts its gaze from Act 53’s blatant viewpoint discrimination.”

With a 2-1 decision and a lengthy dissent on a Constitutional claim, one would think this is headed for an en banc determination by the full Sixth Circuit.

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