Wyatt Employment Law Report

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NLRB Overrules Specialty Healthcare and Eliminates Overwhelming Community of Interest Standard

By Mitzi Wyrick

In PCC Structurals, Inc., 365 NLRB No. 160, the National Labor Relations Board (“NLRB”) clarified the correct standard for determining whether a proposed bargaining unit constitutes an appropriate unit for bargaining when the employer contends that the smallest appropriate unit must include additional employees.  The NLRB overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 934 (2011) (Specialty Healthcare) and reinstated the traditional community-of-interest standard for determining an appropriate bargaining unit in union representation cases.

Under Specialty Healthcare, if a union petitioned for an election among a particular group of employees, those employees shared a community of interest among themselves and the employer took the position that the smallest appropriate unit had to include employees excluded from the proposed unit, the NLRB would not Continue reading

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Effective Date of Persuader Rule Affects Employers’ Decisions to Retain Advisors

By Mitzi D. Wyrick

The United States Department of Labor’s (“DOL”) “persuader rule,” which requires employers and their advisors (including employers’ attorneys) to disclose publicly any advice that directly or indirectly persuades employees regarding union organizing or collective bargaining activity, took effect on April 25, 2016.  Litigation is pending to enjoin the enforcement of the rule because the broad sweep of the persuader rule now requires public reporting of what had been previously exempted services that are often provided by labor lawyers and consultants to their clients in confidence.  Examples of such activities include providing material or communications to employers for dissemination to employees; conducting union avoidance training; and developing personnel policies or practices that are intended to influence or persuade employees regarding their rights to engage in union organizing activities or other activity protected by the National Labor Relations Act.

It is important to note that the persuader rule applies only to persuader arrangements and agreements made on or after July 1, 2016.  In one of the pending cases to enjoin the enforcement of the persuader rule, the DOL filed a status report taking the position that advice given pursuant to Continue reading

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United States Supreme Court Hears First Amendment Challenge to “Fair Share” Fees

By Amanda Warford Edge

microphoneFor nearly forty years, the Supreme Court’s decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), has reigned. Under Abood, unions are permitted to collect agency fees from public employees who are not union members, as long as the fees go toward the costs of collective bargaining and not politics. But a group of California public school teachers has now challenged this practice. These teachers contend that such “fair share” fees violate their First Amendment rights.

According to the claimants, every year, they are required to financially support a group who advocates for viewpoints that they oppose and do not wish to subsidize. They argue that spending by public-sector unions always includes politicized speech, and since they are required to pay “fair share” fees, their First Amendment rights are violated. Counsel for the claimants has been quoted as stating that Continue reading

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Indiana Supreme Court Upholds Indiana’s Right to Work Law

By Emily C. Lamb

In a big victory for business groups, the Indiana Supreme Court issued a decision on November 6, 2014, in Zoeller v. Sweeney, 2 N.E.3d ___ (Ind. 2014) unanimously holding that Indiana’s Right to Work Law is constitutional. The Right to Work Law, which became effective in February 2012, bars employers from forcing workers to join unions or pay union dues as a condition of employment. Earlier this year, Local 150 of the International Union of Operating Engineers and several of its members filed suit against the Indiana Attorney General seeking to have the law overturned as unconstitutional. Specifically, the Union argued that the law violates Article 1, Section 21 of the Indiana Constitution, which prohibits the state from demanding any person’s services without just compensation because it requires unions to provide representation services to employees regardless of whether an employee paid dues. The trial court agreed and declared that the statutory provision of the Right to Work Law prohibiting employers from requiring union membership or the payment of union dues violates the Indiana Constitution.On immediate appeal to the Indiana Supreme Court, the Indiana Attorney General argued that the Right to Work Law does not violate Section 21 of the Indiana Constitution because it does not contemplate any state demand for services. Rather, it merely prohibits involuntary union membership. The Indiana Supreme Court agreed, reasoning that because it is federal law, not state law, that provides a duty of fair representation in the case of exclusive-agency unions, the compulsion for a union to provide services to non-members does not constitute a demand by the State of Indiana. Absent any state demand, the Court held that the Right to Work Law is constitutional. By this ruling, the Court affirmed that Indiana citizens cannot be compelled to join a union or pay dues as a condition of employment, but remain free to join a union if they choose.

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NLRB Attacks Employee Handbook Rules

By Edwin S. Hopson

In early June 2014, a National Labor Relations Board Administrative Law Judge (ALJ) in Professional Electrical Contractors of Connecticut, Case No. 34-CA-071532, ruled that a number of handbook provisions violated the National Labor Relations Act. The handbook applied to employees who largely worked in the field on customers’ premises.

The challenged handbook rules were:

  1. A rule prohibiting employees from disclosing the location and telephone number to outsiders of the customer to which the employee was assigned.
  2. A rule stating that no employee shall disclose customer information to outsiders, including other customers or third parties and members of one’s own family.
  3. A prohibition of boisterous or disruptive activity in the workplace.
  4. A rule against initiating or participating in distribution of chain letters, sending communications or posting information, on or off duty, or using personal computers in any manner that may adversely affect company business interests or reputation.
  5. A series of rules prohibiting employees from taking photographs or making recordings at the workplace without prior authorization by management.

The ALJ largely held for the NLRB’s General Counsel and issued an order requiring that the company cease and desist from:

(a) Maintaining a provision in its employee handbook that requires employees not to disclose the location of their customer assignment to outsiders.

(b) Maintaining a provision in its employee handbook that prohibits employees from engaging in “boisterous” activities in the workplace.

(c) Maintaining a provision in its employee handbook that prohibits employees from initiating or participating in the distribution of chain letters, sending communications or posting information, on or off duty, or using personal computers in any manner that may adversely affect company business interests or reputation.

(d) Maintaining a provision in its employee handbook that prohibits employees from taking photographs or making recordings at the workplace without the prior authorization by management.

The case likely will be appealed to the Board in Washington, D.C., and thereafter to a court of appeals.

This case is a good example of how closely the NLRB will scrutinize employee handbook provisions. This can be particularly problematic if the employer finds itself in the midst of a union organizing campaign.  Thus, if the employer wins the election, it may be set aside should there be handbook provisions in place that the NLRB finds objectionable.

For more information in the Louisville, KY, Lexington, KY or New Albany, IN areas, contact Ed Hopson.

For more information in the Memphis, TN, Nashville, TN or Jackson, MS areas, contact Odell Horton.

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NLRB Sets Dates For Hearing Comments on Proposed Changes to Union Election Rules

By Edwin S. Hopson

On February 26, 2014, the National Labor Relations Board announced that it will conduct a public meeting at its Washington, DC headquarters on April 10 and 11, 2014, in order for persons and organizations to express their views about recently proposed changes to the NLRB’s rules governing union representation election procedures. Additional days may be scheduled for April 8 and/or April 9, 2014, should the number of persons who wish to speak warrant it.

The proposed changes would speed up the election process, which is seen as an advantage for unions seeking to organize employers’ employees.

The changes the Board is proposing would:

■ allow for electronic filing and transmission of election petitions and other documents;

■ ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process;

■ streamline pre- and post-election procedures to facilitate agreement and eliminate unnecessary litigation;

■ include telephone numbers and email addresses in voter lists to enable parties to the election to be able to communicate with voters using modern technology; and

■ consolidate all election-related appeals to the Board into a single post-election appeals process.

These changes were previously implemented in late 2011, but the rule changes were invalidated by a Federal District Judge on the grounds they had not  been adopted by a validly constituted quorum of Board Members.  The NLRB’s appeal of that ruling was dismissed, pursuant to a joint stipulation, on December 9, 2013.

Persons wishing to speak are required to submit a Request to Speak, which must be received by no later than March 10, 2014, and must conform to the requirements set forth in the Notice of Meeting filed in the Federal Register. In addition, due to seating considerations, persons attending must submit a Request to Attend, that has to be received by the NLRB no later than March 31, 2014.

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NLRB Notice Posting Regulation is Dead

By Edwin S. Hopson

Previously, the U.S. Court of Appeals for the D.C. Circuit in National Association of Manufacturers et al. v. National Labor Relations Board, et al., __ F.3d __, Civil Nos. 12-5068, 12-5138 (D.C. Cir. 2013), had invalidated the NLRB’s regulation issued in 2011 requiring all employers (whether they had a union or not) subject to the National Labor Relations Act (NLRA), estimated at some 6 million businesses, to post an NLRB notice to employees regarding employee rights under the NLRA.  On September 4, 2013, that court denied a petition by the NLRB for rehearing in the case. The time for seeking U.S. Supreme Court review has now passed with no appeal by the NLRB.

According to a recent Huffington Post news report, the NLRB has decided not to fight this battle any further.  Also quoted in the Huffington Post report was the President of the National Association of Manufacturers, who stated:

“Manufacturers start off the new year with great news in our fight against an overreaching NLRB. This is the culmination of the NAM’s aggressive legal pursuit against a government-imposed regulation that would create a hostile work environment while injecting politics into manufacturers’ day-to-day business operations.”