Category: Labor Unions

Will Captive Audience Meetings Become Unlawful at the NLRB

Published by Brett Holubeck on April 28, 2022

In a recent post on the Fisher Phillips blog, I and my colleagues examine this issue.

Here is the first paragraph:

The NLRB’s top prosecutor just issued a memo which seeks to bar employers from convening employee meetings on working time to address union representation unless they provide employees specific assurances that participation is completely voluntary. These so-called “captive audience” meetings are routinely conducted to educate employees – particularly in response to arguments advanced by organized labor outside the workplace – and have been a staple in the American workplace since Congress amended the labor laws to recognize employer free-speech rights almost 75 years ago. Although a handful of states have enacted statutes attempting to restrict such meetings, the April 7 memo from NLRB General Counsel Jennifer Abruzzo (formally known as GC Memo 22-04) represents an unprecedented development in the annals of modern labor law. What do employers need to know about this significant step – and what should they do about it?

The rest of the article is available here: https://www.fisherphillips.com/news-insights/nlrbs-top-sheriff-calls-for-abrupt-end-to-75-years-of-lawful-captive-audience-meetings.html

Supreme Court 2020-2021 Labor and Employment Term Roundup

Published by Brett Holubeck on August 4, 2021

Image of the Supreme Court to represent the labor and employment decisions that were issued in the 2020-2021 term. — Photo by Jackie Hope on Unsplash

While there were some important decisions in the 2020-2021 term, this term was not as groundbreaking as last term when the Supreme Court issued the Bostock decision that prohibited employers from discriminating against employees based on their sexual orientation or gender identity.

Here are the labor and employment cases that were decided this term:

Cedar Point Nursery v. Hassid

There is a lot of controversy over this case. Some commenters have written that this is a radical decision and is disastrous for unions,

The Court held that California’s law that allowed union organizers access to the property of agricultural employers for up to three hours a day for 120 days per year was a taking (government seizure of private property) under the Fifth and Fourteenth Amendments, because the employers were not compensated.

The decision will not affect employers covered under the National Labor Relations Act. As stated on the NLRB’s website, agricultural workers are not protected by the National Labor Relations Act. The National Labor Relations Act controls access issues for the vast majority of employers. This decision will have no effect on that law contrary to any concern from various commentators.

The decision does indicate that the Supreme Court is currently favorable to employers on many labor law issues. There have been a few labor law cases in the last few years and with a more aggressive NLRB there is the possibility of new cases developing. Overall, this case will have a very narrow effect since it is limited to agricultural workers in California.

California v. Texas

In this decision, the Supreme Court held that the plaintiffs lacked standing to challenge the individual mandate of the Affordable Care Act (ACA). Justice Breyer delivered the opinion of the Court and Justices Alito and Gorsuch dissented. As the Court held that the plaintiffs lacked standing, the ACA is still the law of the land. The decision changes nothing for labor and employment law or employer requirements under the law. Companies still need to provide insurance if they meet the 50-employee threshold under the ACA and comply with the other obligations under the law.

Henry Schein Inc. v. Archer and White Sales Inc.

In this decision the Supreme Court again generally upheld the enforceability of arbitration agreements and found that when parties to an arbitration agreement delegate the issues of arbitrability to an arbitrator, the Court cannot override the contract by concluding that the arbitrability claim is wholly groundless. The Court, in a unanimous decision, determined that the “wholly groundless” exception to arbitrability is inconsistent with the Federal Arbitration Act. Arbitration is a matter of contract and the courts have to enforce these contracts. Courts still have the power to determine whether an arbitration agreement is itself valid.

This is just another decision indicating that the Court will generally rule in favor of arbitration agreements.

While the Supreme Court is generally in favor of enforcing arbitration agreements, many companies are now moving away from arbitration agreements because too many people have utilized them and they are costing the companies too much money to litigate compared to the cost of a court case. In arbitration, companies will normally pay for the costs of the proceeding and their own lawyers. Sometimes, the company will also pay the lawyers for the employee or other party.

For example, Amazon is currently facing 75,000 claims from customers and has dropped the arbitration requirement for customers presumably due to the cost of arbitration. Uber and Lyft have also faced numerous mass arbitration campaigns with thousands of workers filing claims.

There is likely a movement away from arbitration of employment law claims, but it will continue to be used frequently in labor arbitrations, as that forum is better for unions and companies than the NLRB (typically).

Decisions that are Not Employment Law Decisions But Affect Employment Law

Fulton v. City of Philadelphia

Last term there were three different cases that dealt with religious issues and the law. This term, there was one particular case that was interesting and may indicate how future decisions regarding religious issues will be determined. The case concerned the refusal of Philadelphia to contract with Catholic Social Services (“CSS”) unless CSS agreed to certify same-sex couples as foster parents.

In a unanimous decision, the Court ruled that Philadelphia’s refusal to contract with CSS unless it agreed to certify same-sex couples as foster parents violated the Free Exercise Clause of the First Amendment. The Court held that Philadelphia lacked a compelling interest to refuse to contract with CSS. The Court found that “CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else.”

The Opinion indicates that there are at least five justices that would overturn Employment Division v. Smith and replace it with a standard that is more favorable for accommodating religious beliefs. In Smith, the Supreme Court upheld the denial of unemployment benefits for two workers because they were fired for work related misconduct for ingesting peyote in a religious ceremony (peyote was illegal). The Court found that a person’s religious beliefs do not permit them to avoid complying with an otherwise valid law that controls conduct that the government has the power to regulate. The standard in Smith was that a generally applicable law that does not target a specific religious practice does not violate the free exercise clause of the First Amendment. It is not clear what standard the Court would use to replace the standard in Smith.

This decision could also indicate that the Court may find in a future case that employers need to better accommodate religious beliefs.

National Collegiate Athletic Association v. Alston

In this case, the Court held that the NCAA’s prohibition on education related benefits (e.g., scholarships) for college athletes violates antitrust laws. The NCAA cannot place limits on these benefits.

Justice Kavanaugh’s opinion on the issue is even more telling of the next steps that the Court may take regarding compensation for students in the NCAA. Justice Kavanaugh said that under the traditional “rule of reason” analysis “there are serious questions whether the NCAA’s remaining compensation rules can pass muster under ordinary rule of reason scrutiny.” It is likely that the compensation structure (i.e., wages) for student athletes will be challenged.

With the Big 12 Conference possibly imploding as a result of the loss of the University of Texas and the University of Oklahoma, one has to wonder whether the Supreme Court decision played a role. Sports Illustrated has a great article from a week before Texas and Oklahoma announced that they were leaving the Big 12 that they were leaving the Big 12 that speculated that super conferences were a possible response to this case and continued issues regarding scholarships. Certainly, the Supreme Court’s decision upends the current/prior model of college athletics and opens the possibility of schools competing with other schools by offering better compensation (at this point just scholarships and education benefits) to student athletes. Texas and Oklahoma may just be the first of many clear signs of the fallout from this case. Interestingly, the negotiations involving Texas and Oklahoma have been ongoing for about six months (or around January of 2021). The Court granted certiorari in this case in December 2020. It is possible that Texas, Oklahoma, and the SEC placed a bet on the outcome of the case by negotiating with the mindset that the NCAA was going to lose the case and they wanted to strike first.

What does Alston hold for the future of college sports and compensation? The next set of cases will concern non-educational related benefits and compensation for student athletes such as wages. It is likely that these rules will change.

Tanzin v. Tanvir

This is not really an employment law case, but it again shows some of the interesting situations that may arise in employment law matters in the future. In this case, a Muslim man had his name on the No Fly List despite posing no threat to flights because he refused to become an FBI informant and report on other individuals. He claimed that this substantially burdened his exercise of religion in violation of the Religious Freedom Restoration Act (RFRA).

The issue in the case was whether the RFRA allowed lawsuits seeking money damages against federal employees. The RFRA entitles persons to sue and “obtain appropriate relief against a government.” The Court held that this includes government officials such as government employees and appropriate relief includes monetary damages.

Again, this case demonstrates the Court’s willingness to uphold religious rights.

TransUnion LLC v. Ramirez

This is a bit of a technical decision and the implications to employment law are not direct. The Court held that to have standing under Article III, a plaintiff must show that they suffered concrete harm. In this particular case, 1,853 individuals suffered concrete harm and had standing because their credit reports were shared with third parties. The other 6,332 class members did not have concrete harm as their reports were not shared with third parties.

The implication for employment law is that courts may be less likely to find risk of future injury is enough for plaintiffs to have standing, and a court may be less likely to uphold certification of such a class.

Van Buren v. United States

While this case does not directly concern employment law, it does have labor and employment law implications.

The Court held: “An individual ‘exceeds authorized access’ when he accesses a computer with authorization but then obtains information located in particular areas of the computer—such as files, folders, or databases— that are off-limits to him.” The Court rejected the premise that obtaining information for personal purposes when contrary to a contract or policy constituted a violation of the Computer Fraud and Abuse Act (CFAA).

The decision is narrow. It does not cover people “who have improper motives for obtaining information that is otherwise available to them.” The Court specifically rejected the interpretation that Section 1030(a)(2) of the CFAA prohibits someone from obtaining information for their personal use when it is contrary to a contract or other policy (such as a workplace policy).

Under the decision, it will be more difficult for employers to pursue claims or charges against employees for violating the CFAA when they access computer documents that are off limits to them on a device that they are authorized to use (e.g., by breaching a firewall, going into an encrypted folder/document, or document/folder that is password protected)Oftentimes, this scenario will arise when an employee misappropriates trade secrets, financial information, customer lists, and other confidential information.

Conclusion

This was not a blockbuster Supreme Court session for labor and employment law like we have had over the past few years. However, there were several cases that affected employment and labor law. It will be interesting to see what the next term brings.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

How Does Union Organizing Begin?

Published by Brett Holubeck on June 22, 2021

Image of a coffee with the word begin on it to show that it is the beginning of new efforts to unionize companies. — Photo by Danielle MacInnes on Unsplash

As I have been explaining on my blog and podcast, the Biden administration may cause a turning point in the decline of unions as it does everything it can to support unions.

Currently, only 6% of the private workforce is unionized and 34.8% of the public workplace is unionized. The rate of overall unionization has declined from 20.1% or 17.7 million workers in 1983 (the first year for which there is data on unionization from the BLS) to 10.8% or 14.3 million workers in 2020. There are 7.2 million union members in the public sector and 7.1 million in the private sector.

Many businesses have never experienced union organizing. However, that may be about to change as I mentioned on the post with my last podcast episode. The Biden administration is the most pro-union presidency in decades. It is continuing to do more to help unions grow by encouraging the passage of the PRO Act, speaking in support of union campaigns (such as the campaign at Amazon), and the creation of a task force to find ways to support union organizing.

All of this leads to the important question…

How do Campaigns to Unionize a Company Begin?

There are two ways that unions seek to organize a company: employee driven and union driven campaigns. There are some major differences in both of these campaigns. Below are the major elements of each type of campaign.

1. Employee Driven Campaigns

An employee driven campaign is typically caused when employees want a union to fix some issue that they have with the company.

The most common issues that causes employees to seek a union are:

a. Unfair compensation

Employees may seek a union because they believe that the union will result in them receiving higher pay or more benefits. This may especially be the case if the employees are underpaid compared to others within their industry and geographic area.

b. Bad boss or supervisor

A poor supervisor that treats employees unfairly, plays favorites, and is generally unpleasant is one of the most common causes of a union organizing drive by employees. A union may be able to file grievances and represent employees that are unjustly terminated or disciplined.

Of course, on the flip side, unions also represent and sometimes get employees reinstated that should clearly not be such as this railroad engineer that defecated on a train-car Knuckle, threw toilet paper covered feces out the window of the train, and told his manager that he had left a present for him.

c. Poor safety record

The pandemic has increased employee concerns about safety. Employers that do not respond to safety problems are more at risk to unionize.

d. Poor job security

Employers that fire employees without good cause or treat employees unfairly and replace employees that should not be terminated may cause employees to feel that a union can protect their jobs.

e. Not being treated as well as employees elsewhere

If other employers are offering better pay or benefits, especially if they are unionized, then that may cause employees to seek a union.

f. Employee coming from another unionized facility

Employees that used to work at a unionized facility may be more likely to try to establish a union at a new place of business if they had a good experience with the union.

g. Ignoring employee complaints

Employers that ignore complaints of employees risk employees believing that a union could solve the problem.

2. Union driven campaigns

Union driven campaigns, those started by a union, differ from employee driven campaigns in a number of ways. Most unions, at least the major ones, have employees that are tasked with organizing companies (union organizers). These workers may try a variety of tactics to organize a company. For some unions this may be targeting their typical worksite (like the UFCW targeting food processors). Others may have selected specific companies that they wish to organize (like the UAW trying to organize the Volkswagen facility in Chattanooga, Tennessee that has failed repeatedly).

The typical targets for unions have the following characteristics.

a. Major companies

Unions typically target major companies where they can exert political and community pressure on the company to organize.

b. Within the union’s typical sphere

Unions typically, but not always, try to focus on groups of employees that they are familiar with to organize. For example, the United Auto Workers (UAW) focuses on car manufacturing and other manufacturing employers.

c. Target for many years

Unions will typically select a company that they wish to unionize and show up every year to try to build on their support. Organizing is a long game and it may take time before the union is successful in organizing a facility.

d. Vulnerable because of other unionized facilities in the area

Targets that are vulnerable because they are located in areas with a lot of unions are often selected. If there are unions in an area, then it is likely that workers are more familiar with unions and may be more inclined to unionize. Of course, there is also the possibility that workers in an area have seen unions fail to protect jobs or protect jobs of workers who deserved to be fired, which may cause them to be less inclined to unionize.

e. Desire for large units over small ones

Unions target companies that are bigger to try to get more members, or at least the campaigns that are started by unions tend to begin this way. The median bargaining unit size is only 26 employees. Small employers can often be organized easier than larger units.

f. Contacted by employees to run a campaign

Finally, unions often take over campaigns once they are contacted by employees about forming a union. In these circumstances, much of the groundwork has been done for the union to begin organizing the facility’s workforce. It is not a union initiated campaign, but unions that receive requests to assist often jump at the chance because it is an easy way for them to secure members.

Once a union decides that a company is a target, then the union will often assign organizers to conduct the campaign until the union wins, it becomes obvious that the union will not win, or the organizers find that their time is better spent targeting other companies.

How do unions typically campaign?

3. Common Tactics by a Union in a Campaign

Unions have a number of tactics that are common in their campaigns. Of course, some campaigns are larger than others and some even involve the infamous corporate campaign, which you can read about here.

The most common tactics in a normal union organizing campaign are the following:

Fliers

Unions are likely to come to the facility, at least pre-COVID, and pass out fliers to employees in the parking lot or as they leave the facility/building if the company lacks a no-solicitation policy.

Social media

Social media is a great tool for unions to organize meetings with employees and inform employees about unions.

Reaching out to employees at home

Unions will try to obtain employee addresses so that they can visit them at their homes without having to come to the facility. People at their homes may be more or less open to these visits. Many employees find this to be an invasion of their privacy. Once an election is filed, employers are required to provide unions with the names, addresses, cell phone numbers and employee addresses of eligible bargaining unit employees (an Excelsior list).

Events

Unions will hold events where employees can learn about the union and the union will attempt to recruit employees that can encourage other employees to sign union authorization cards.

Email

If unions have access to email, then they will often use it to share information and invitations to union sponsored events.

Text messages/phone calls

Much in the same way as email, unions will use employee phone numbers to provide information to employees.

Target supervisors

Some unions will attempt to place a supervisor in an awkward position or make them susceptible to a possible unfair labor practice. They may do this by calling out behavior of the supervisor (whether those complaints are justified or not) or encouraging employees to report any interactions with supervisors. Supervisors need to be especially careful with their friends and relatives that work at the facility. These individuals can, and do, make reports about supervisors to the union that can lead to unfair labor practice charges against the company that names the supervisor.

Company email

In the past, unions were allowed to use company emails to communicate with employees for the purpose of organizing and other non-business purposes (this was the Purple Communications standard). This rule was overturned by the Trump NLRB board in Caesars Entertainment Corp, which reinstated the 2007 standard that allowed an employer to ban all non-business email communications. It is expected that the Biden board will go back to the Purple Communications standard at some point in the future.

Aim to file unfair labor practice charges

Unions will file unfair labor practices against employers for activity that violates the National Labor Relations Act. As a bonus for the union, if there is an election the unfair labor practices charges that involve activity occurring during the election can result in the NLRB throwing out the election results and conducting a new election if the employer wins.

Salts

Unions may have union members seek to be hired by the employer that they are targeting. This is called salting. It is essentially a way for the organizers to gain an inside look at the facility and the ability to do more than they can do as outsiders (they may be able to talk to employees or solicit them inside the facility).

Conclusion

If you would like to learn more about responding to union organizing, how employees can decertify (get rid of) a union, and other information about union organizing you can read the following posts on my blog and my podcast, Employment Law Problems:

● How to Respond to Union Organizing: https://texaslaborlawblog.com/respond-union-organizing/

● How to Get Rid of A Union: https://texaslaborlawblog.com/how-to-get-rid-of-a-union/

● Amazon and responding to union organizing: https://podcasts.apple.com/us/podcast/amazon-and-responding-to-union-organizing/id1559744548?i=1000518395454

The information provided is my own and does not reflect the opinion of my firm or anyone else.