Category Archives: Unions

NLRB Makes It Easier for Unions to Organize Staffing Employees

The National Labor Relations Board just made it much easier for unions to organize employees of staffing firms – sometimes called temp agencies.

It used to be that both the staffing firm and the client had to consent before a union could represent a group of employees that included both staffing firm employees and your regular employees.

However, under the NLRB’s new standard, consent isn’t required.  This means that a union can lump together staffing firm employees and regular employees, even though they are employed by different companies and viewed and treated as separate groups.

Under the NLRB’s decision, unions will also have an easier time organizing all of a staffing firm’s employees, regardless of where they work or are assigned.

As a result of the NLRB’s decision, unions will have a far easier time organizing.

So what can you do? Here are 3 steps all Companies that work with staffing firms should take in response to the NLRB’s new standard:

  1. Ask your staffing firm what steps they’re taking to improve employee satisfaction and avoid unionization, keeping in mind that the lowest cost provider may bring with it lower employee satisfaction and higher risk of unionization.
  2. Take a close look at your company’s union avoidance efforts. Make sure that you’re paying attention to all employees – both direct and those through staffing companies – and consider stepping up your union avoidance efforts by educating your team about the realities of unionization and how to spot organizing campaigns.
  3. Finally, make sure your agreement with your staffing firm includes a cooperation clause so that, if there’s an organizing campaign, you’re in the best position to work together quickly to respond.

In avoiding unions, the best defense is a good offense.  Take steps now to ensure that you – and your staffing firms – are in the best position possible to avoid union organizing efforts.

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Is Your Company Ready For A Union Campaign?

vote-unionThe NLRB’s “ambush election rules” – which became effective this Spring – continue to be challenged by business trade groups. See previous blog posts. These groups, however, have yet to persuade a court that the rules violate any laws.  What that means is that employers should take precautionary steps to prepare for a union organization effort, rather than waiting for a petition to be filed. If you wait for that petition, you won’t have much time at all (as little as 10-21 days) to effectively communicate with your employees .

What can be done now?

  • Training. Your managers/supervisors need to know how to detect union “storm warnings.” They should be aware – and immediately inform higher management – of:
    • Employee complaints changing or increasing
    • Employees being out of normal areas
    • Employees being on premises while “off duty”
    • Employees making unusual requests for information and materials concerning job descriptions, pay, benefits, compensation, policies, etc.
    • Employees asking unusually aggressive or argumentative questions at group meetings
    • Normally talkative and open employees avoiding speaking with managers/supervisors
    • Employee group conversations quieting down when managers/supervisors pass by
    • Lunchroom, locker room, and bathroom cartoons and graffiti
    • Over-qualified job applicants with spotty backgrounds
    • Employee complaints being made by groups of individuals
    • Strangers on company premises
    • Use of unusual technical language by employees
  • Communicate now. Educate your employees on the company’s position on unions and unionization now. Make sure your managers/supervisors are maintaining an open door policy with their employees and continue to train them on effective communication.
  • Review your policies and practices. Make sure all employment policies and practices are compliant with employment laws and the views of the NLRB.
  • Develop campaign materials in advance if any “storm warnings” are detected. You want campaign materials at your fingertips when a petition is filed so you can start campaigning right away.

The future of the NLRB’s new election rules is unknown. But as of right now, they stand, and employers need to be prepared.

Wisconsin becomes the latest “right-to-work” state

wisconsin-webOn March 9th, Wisconsin passed right-to-work legislation banning collective bargaining agreements that require private-sector workers to pay labor fees. The law, which makes Wisconsin the 25th state to pass such legislation, becomes effective immediately.

The legislation bans “union security clauses” — clauses that provide for the termination of an employee who fails to join and pay labor fees to the union — from being included in collective bargaining agreements.

Although this type of legislation started in the southern and western states, in recent years, Indiana and Michigan, traditionally union-friendly states, passed similar right-to-work laws. This type of legislation has proven to reduce state-wide union membership.

It seems unlikely that Illinois will implement right to work legislation in the private sector (at least with the current makeup of the legislature), but it is definitely on the forefront in the public sector.  Last month, Illinois governor, Bruce Rauner, announced a controversial executive order that would prohibit unions from requiring state workers to pay union fees.

Do Employees Have a Right to Use Company Email to Organize?

Otypingn Thursday, the National Labor Relations Board re-opened the question of whether workers have a right to use their employers’ communications systems (including email) for union organizing and other protected activities.

In 2007, the NLRB handed down its decision in Register-Guard, holding that employees don’t have the right to use employer email systems for non-business purposes (such as union organizing).  Since then, many employers have implemented policies requiring that email only be used for business purposes.

The question arose again in 2013 when Purple Communications was accused of committing an unfair labor practice for prohibiting the use of company equipment for non-business purposes. The Administrative Law Judge relied on Register-Guard and dismissed the charge; however, both the NLRB’s General Counsel and the Communications Workers of America filed exceptions, encouraging the NLRB to overrule Register-Guard and find that employees who use email for business purposes have the right to use it for union or organizing activity. In response, the NLRB has invited the public to weigh in (by way of amicus briefs) on whether the Board should overrule Register-Guard .

Employer groups will no doubt come out strongly in favor of upholding Register-Guard , but with the current composition of the NLRB, the employer-friendly holding of Register-Guard might be short-lived.

NLRB Rules Football Players are Employees. Really?

In a decision that has been attracting a great deal of attention, the Region 13 Regional Director of the National Labor Relations Board (“NLRB”) ruled yesterday that football players at Northwestern are “employees” within the meaning of the National Labor Relations Act (“NLRA”), and directed that an election take place to determine whether the players should be represented by a union.  (See decision here)  The ruling is irrelevant to most employers in the private sector, but nevertheless we thought we would add our two cents to the dNU Football Helmetiscussion because it is an interesting subject.

First, it is important to keep in mind that the ruling is, at this stage, simply the view of a Regional Office whose job duty is basically to expand the jurisdiction of the NLRB and attract attention for its enforcement activities.  The decision will inevitably be appealed, and the legal fight relating to the classification of these players is likely to go on for years.

Second, the decision is a good example of how the most ridiculous conclusions can sometimes be dressed up to look reasonable through references to a hearing record and the use of case citations.  There is an old saying that “to a man with a hammer, everything looks like a nail.”  In this situation, everyone looks like an employee to a Regional Office applying the NLRA.  The fact of the matter is that the NLRB does a particularly poor job of applying its law and precedent to students in educational institutions.  It has struggled for years with what to do about graduate students, and now it has “dropped the ball” (sorry, couldn’t avoid the pun) with college athletes.  The NLRB only understands relationships in terms of an employer-employee dynamic.  It cannot conceive of individuals (or institutions) pursuing something for anything other than monetary reasons.  If you ask college athletes whether they would still play their sports and compete if they did not get a scholarship, odds are most would say “absolutely” (assuming they could still afford to do so).  Yet Region 13 seems to think they are simply assembly line workers punching the clock.

The other problem with the decision from the Regional Office is that it hinges on the assertion that college athletes are not “primarily students” because they spend most of their time training or playing football.  What does this mean for those who are getting debate scholarships and who can put in as much time as student athletes?  Are they employees as well?  If not, what is the difference?  What about football players at Division III schools who put in as much time as Division I players but who don’t make as much (any?) money for their schools?  What about high school athletes?  In addition, if football players at Northwestern are not “primarily students,” then why are they accepting a college scholarship as the only return for their efforts?  Most players at Northwestern are not going to the next level and turning pro in their sport.  Apparently, they see some value in attending a prestigious university and getting a degree after four years.

Although the NLRB is addressing only the scope of the NLRA in the Northwestern case, is it fair to ask (based on the Regional Office’s reasoning) whether football players are also employees for purposes of other laws, such as wage and hour and tax laws?  If not, why not?  Many more questions of this kind can and should be asked about the Regional Director’s decision.  Our own view is that there may be many things wrong with the way college athletics works in America today, but applying employment laws to the relationship between the student athlete and the university is not the right answer.  We also believe that Region 13’s rush to extend its jurisdiction ultimately will be beaten back, if not by higher ups at NLRB, then by the Supreme Court or Congress.

Employment Law Update: A Look Back and a Look Ahead

This year, LP’s Labor & Employment attorneys tried something different with our annual “Employment Law Update” and hosted the program as a webinar. The new format allowed us to record this year’s program and make it available for all our blog friends, colleagues and clients who were unable to participate.  LP labor and employment attorneys Peter DonatiLaura Friedel and Kenneth Kneubuhler highlighted recent updates in labor and employment law and tips to keep your workplace practices current.

You can find the recording here and the presentation materials here.

To give you an idea of what topics are covered in this year’s “Employment Law Update” here are the topics we discussed:

•The impact of recent Supreme Court decisions on supervisor liability and the burden of proof for retaliation claims

• Trends involving arbitration agreements: Will they prevent class claims?  Should your business be using them?

• Same sex marriage: How it affects employee rights under the FMLA and benefit plans

• Recent Illinois cases involving non-compete agreements.  Will your agreements be enforceable when you need them?

• New developments at the National Labor Relations Board that affect both union and non-union workplaces

• How to properly use background checks to avoid scrutiny by the EEOC and avoid violating state laws

• Current wage and hour issues, including developments involving interns and independent contractors

• Other important state law trends, including laws on concealed weapons, medical marijuana, and social media passwords