Who Invited You? OSHA Reverses Itself on Fairfax Memo

OSHA recently announced it will no longer bring union representatives to inspections of non-unionized workplaces.  As a result, barring a designation by an employee (which I'll discuss further below), non-unionized employers no longer have reason to fear that an OSHA compliance officer will appear at the door accompanied by a union representative on an inspection or walk-around. More ›

Tilting The Battlefield: NLRB Makes it Easier for Unions to Challenge use of Permanent Replacements

The National Labor Relations Board ("Board") recently denied review of its ruling in American Baptist Homes. That ruling upended the decades-old bright line test that an "independent unlawful purpose" is established only when an employer’s hiring of permanent replacements is unrelated to, or extrinsic to, the strike.  Specifically, the Board ruled the General Counsel is not required to show an employer was motivated by an unlawful purpose extrinsic to the strike; he need only show the hiring of permanent replacements was "motivated by a purpose prohibited by the Act." What constitutes a "prohibited purpose" is open to interpretation, and American Baptist Homes strongly signals employers could be exposed to unfair labor practice charges if there is any allegation that the use of permanent replacements is motivated by an intent to interfere with the exercise of Section 7 rights. More ›

NLRB Makes it Easier to Unionize Temporary Workers

On Monday, the National Labor Relations Board made it easier for unions to organize temporary workers in a 3-1 decision in the case Miller & Anderson. In doing so, the Board reversed its ruling in Oakwood Care Center, 343 NLRB 659 (2004) and returned to the standard established in M.B. Sturgis, Inc., 331 NLRB 1298 (2000).  More ›

Department of Labor's Persuader Rule Convinces No One

Late last month, the Department of Labor published its "persuader" regulation final rule, which significantly strengthens a union's rights under the Labor Management Reporting and Disclosure Act (LMDRA). 

Generally, the LMDRA regulates the public reporting obligations of businesses seeking legal and non-legal counsel to oppose or manage relations with unions. A consultant, known as a "persuader," helps an employer navigate organizing drives and labor disputes. Before this final rule, The LMDRA required "direct" persuader activities to be reported, such as meetings between the persuader and employees, but exempted "indirect" activities, such as the preparation of materials for the employer to provide to its employees. More ›

Is Labor Law Putting the Franchise Business Model at Risk?

Over the course of the last year, we have kept you abreast of National Labor Relations Board (NLRB) case law and Department of Labor (DOL) interpretive/enforcement guidance, how these agencies are changing their view of the responsibility of parent corporations for the employment relationship between employees of temporary agencies and franchises, and how these changes have the potential to drastically alter the benefits and risks of utilizing these relationships.

In what could become one of the most enlightening applications yet of this emerging shift, an NLRB hearing before an administrative law judge began last week in involving allegations by workers that McDonald's is responsible as a joint employer for the alleged labor law violations of its franchisees. The franchisors are alleged to have threatened, disciplined, or fired franchise employees who participated in widely-publicized campaigns for collective bargaining and a $15 minimum wage. More ›

Supreme Court: Ordinary Contract Principles do not Allow Inference of Vesting Rights Absent Clear and Express Language

In 2000, M&G Polymers purchased the Point Pleasant Polyester Plant in Apple Grove, WV. At that time, M&G entered into a collective-bargaining agreement and a related Pension, Insurance, and Service Award Agreement (P & I Agreement) with the union. The P & I Agreement provided for medical coverage with a full employer contribution to be provided for the duration of the agreement, subject to future negotiations. When those agreements expired, M&G announced that it would require retirees to contribute to the cost of their health care benefits. Several retirees sued M&G in federal district court, alleging that the P & I Agreement created a vested right to a lifetime contribution of free healthcare benefits. More ›

ALJ Finds Employer's Pizza Party, Cash and Gift Card Bonuses Interfered with Union Election

SBM Management Services, Inc. provides custodial services for certain commercial facilities. After the company took over the custodial contract at a particular facility, it had regular employee meetings on Fridays. At the meeting six days before a union election, SBM provided pizza for employees and certain employees were given bonus checks or gift cards, neither of which were common or regular occurrences. The election was conducted and only eight votes were cast in favor of the union, which then filed objections to SBM's conduct as allegedly affecting the results of the election.  The matter proceeded to an unfair labor practice proceeding to determine whether SBM violated section 8(a)(1) of the National Labor Relations Act such that the results of the election should be set aside. More ›

NLRB: Unions can Picket on Private Walkways in California

After a grocery store opened a warehouse grocery store under a different name in Sacramento, California, the store became a target for union picketing. The United Food and Commercial Workers Union Local 8 began picketing the store because the workers were not represented by a union and did not have a collective bargaining agreement. The Union agents held signs and distributed fliers in front of the store’s entrance and walkways, but did not impede customer access to the store. The grocery store contacted the Sacramento Police Department to remove the Union agents, but the police declined to do so without a court order. More ›

Seventh Circuit Finds Companies to be Single Employer for Purposes of Arbitrability Under Union Contract

A tile installation company employed union workers. Certain customers of the company request non-union employees in order to obtain cheaper labor. As a result, the owners of the company started a second company which employed only non-union employees. The union filed a grievance, seeking union benefits for the employees at this new company. The joint arbitration committee granted the union’s request, which prompted the companies to file a motion in federal district court seeking to vacate the award. The union also filed a motion for summary judgment, seeking to enforce the award. The owners argued that the new company was not subject to the collective bargaining agreement and thus should not be bound by the arbitration award. The district court granted the union’s motion to enforce the award on the grounds that under the “single employer” doctrine, the companies were treated as one and the same. The companies appealed, but the Seventh Circuit Court of Appeals affirmed the district court’s ruling. The Court of Appeals concluded that the two companies were centrally operated by the same entity, and were thus one and the same for purposes of arbitrability under the contract.

For more information read Lippert Tile Co., Inc. v. International Union of Bricklayers and Allied Craftsmen, et al. No. 12-2658 (7th Cir., August 1, 2013).

NLRB: Retailer Violated NLRA by Forcing Non-Union Workers to Distribute Flyers Apologizing for Bothersome Union Organizing Efforts

The National Labor Relations Board ruled earlier this week that an employer violated federal law when it required non-union employees to distribute fliers apologizing for union protests in front of its store. More ›