Delaware Employment Law Blog

Labor-law attorneys had quite a day. The U.S. Supreme Court, in an unexpected decision announced today, has held that the two members of the 5-person National Labor Relations Board (NLRB), who remained after the other members’ terms expired and Congress failed to act on proposed new members did not have the statutory authority to issue rulings. As a result, nearly 600 cases have been voided. The four strict constructionists on the Court were joined by departing Justice John Paul Stevens, who wrote the opinion. Justice Anthony Kennedy, usually a swing vote, wrote a dissenting opinion joined by the liberal wing of the Court. The decision is New Process Steel v. National Labor Relations Board (08-1457).

The case hinged on language in the NLRA stating that “three members of the Board shall, at all times, constitute a quorum of the Board.” Once the Board was reduced to three members, before the third member’s term expired, the three delegated authority to act to the remaining two persons. The Supreme Court majority concluded that the three member quorum requirement had to be maintained “at all times,” while the dissent asserted that the three members needed to be in existence only at the time they delegated authority to the remaining two.

The practical effect of the decision may be minimal, since the two NLRB members who issued the decisions, current Chairperson Wilma Liebman and former Chairperson Peter Schaumber, a Democrat former union lawyer and a Republican former management lawyer respectively, had to agree in each case, so the decisions were, likely, noncontroversial philosophically.

After months of moribundity, the Employee Free Choice Act (“EFCA”) is showing signs of life. Or at least alternative means of imposing some of the major changes included in EFCA, such as greatly decreasing the time of an election campaign and limiting employers’ ability to actively participate in union elections, are being considered. It all depends on the possible confirmation of Craig Becker, whose nomination to the NLRB has been stalled in the Senate but was recently voted out of committee on a party line vote.

The theory goes that if Becker, who is currently Associate General Counsel of the SEIU, is confirmed by the full Senate, giving former union lawyers a 3-2 majority on the Board, strange (and bad) things may occur. Becker’s past published writings include such one-sided suggestions as excluding employers from participating in pre-election hearings to determine an appropriate bargaining unit, preventing employers from alleging that union campaign conduct coerced employees, and prohibiting employers from conducting mandatory meetings of employees at any time during the campaign (instead of only during the 24 hours before the election, as at present).

Given Becker’s extreme views, the theory goes, new NLRB Chairperson Wilma Liebman should have no trouble getting the majority of the Board to agree to embark on expanded rulemaking and in that fashion, impose many of the EFCA changes indirectly. Liebman has made no secret of her interest in having the Board expand its rulemaking activity, instead of limiting itself to ruling on cases presented to it.

For the first quarter of 2009, the Employee Free Choice Act (EFCA), was front page news, and the subject of scores of seminars, webinars and spirited discussions. Since then, it has virtually disappeared from view. Aside from a few rumors about possible Senatorial compromises, EFCA became a nonevent during the balance of 2009. As we move into 2010, an election year, will we see an effort to revive and enact EFCA in some form? I’m betting we will.

First of all, the current Congressional makeup is likely to be a high-water mark for union supporters that will recede after the November 2010 election. So it may be now or never for EFCA proponents. And now that the heavy lifting has been completed in the Senate on health care reform, and the economy has begun to stabilize, it seems like a more propitious time for President Obama and the Democrats in Congress to turn back to what was first on the unions’ wish list. Andy Stern, president of the SEIU and a regular White House visitor, has said recently that he expects Congress to take up EFCA in the first quarter of 2010. That sounds right.

The version of EFCA that is enacted will probably omit the card-check provision that caused the most angst among opponents. The unions may seek to retain the other major change, requiring interest arbitration of first contracts (after an unreasonably short period of negotiations.) Reducing the time for a union election to be conducted after a union files its petition will certainly remain in the final version. Some companies, anticipating EFCA’s passage, have begun regular union-avoidance training for all employees. Others have held training sessions for supervisors, who act as the early warning system for recognition of union organizing activity. Thoughtful employers who want to remain union-free should be considering their options and taking proactive steps in anticipation of the passage of EFCA in some form.

As 2009 winds down, it’s a good time to reflect on the most important employment law developments in what has been a very busy year. Here are my top 10:

Continue reading "Top 10 Employment Law Developments of 2009" »

Delaware Senator Tom Carper (D) supports the rights of employees to freely unionize without retribution by their employer.  So it's not surprising that Carper was one of 40 co-sponsors of the Employee Free Choice Act (EFCA).  What may be surprising to some employers, both in and out of the First State, is Carper's reservations about the secret-ballot provision of the proposed bill.  He has stated that card-check elections "are not a reliable way to determine the true wishes of the employees in a workplace truly want to be represented by a union." 

But don't let his reservations lead you to believe that he still won't support EFCA with his vote.  Carper is a co-sponsor, after all.  And he thinks the issue is a critical one to American workers.  At the very least, Senator Carper believes that EFCA deserves to come to the floor of the Senate for debate.

For more on the EFCA and its potential impact on employers in Delaware and across the country, be sure to register for our annual Employment Law Seminar, scheduled for April 29, 2009, when employment-law attorneys Barry M. Willoughby, Sheldon N. Sandler, and William W. Bowser, will host a panel discussion of the most important aspects of the bill.  You can also read more about EFCA in these prior posts:

Local Thoughts on the Employee Free Choice Act

Cappelli on the EFCA

Reverend Al Sharpton Speaks Out Against Employee Free Choice Act

Employers have another U.S. Supreme Court decision to contend with, 14 Penn Plaza LLC v. Pyett.   In a 5-4 decision written by Justice Thomas, the Supreme Court today held that, at least in some circumstances, its 35-year old decision in Alexander v. Gardner-Denver Co. does not prevent a unionized employer from forcing an employee belonging to the bargaining unit to arbitrate his age discrimination claim rather than pursuing it through an ADEA lawsuit, where the union entered into a collective bargaining agreement that included a clear and express provision prohibiting discrimination.  Depending on the prism through which one views the decision, it is either a giant step in overruling Gardner-Denver or a very narrow ruling that depends entirely on the specific facts and the language contained in the CBA.

Justice Thomas’ opinion makes a distinction between substantive rights and the forum in which those rights are pursued, and holds that allowing an age discrimination claim to proceed in an arbitral forum rather than in court does not affect the individual’s substantive right to be free from age discrimination. “The right to a judicial forum is not the nonwaivable ‘substantive right’ protected by the ADEA.” Since that is now the law of the land, would the Court also uphold individual employment agreements that contain an explicit waiver of the right to the judicial forum? One suspects that the current majority would see no difference, since the majority opinion states that “[N]othing in the law suggests a distinction between the status of arbitration agreements signed by an individual employee and those agreed to by a union representative.”

Such individual waiver agreements have had a checkered history, but may gain new life as a result of the Pyett decision. No doubt the dissenters would say that such an agreement, signed by the individual in order to obtain employment, is a contract of adhesion. But for the moment, it seems likely that any clear and unmistakable waiver of the right to pursue a discrimination claim in court will be upheld. As the dissent points out in what may be nothing more than a bit of wishful thinking, the majority left itself some wiggle room and the decision “may have little effect” since the court took pains to point out that it was not deciding whether a CBA’s waiver of a judicial forum is enforceable when the union has exclusive control over access to and presentation of employees’ claims in arbitration. So the door remains open a crack for unionized employees to continue to file Title VII, ADEA and ADA lawsuits. Whether Congress will react to this decision with another Ledbetter Act remains to be seen. Unions may be unwilling to make it an issue, since the decision increases the importance of the union’s role.

William W. Bowser was quoted on the Employee Free Choice Act (EFCA) in the Delaware newspaper, The News Journal, today.  Bill, a partner in the Employment Law Section at Young Conaway Stargatt and Taylor, commented on the real-world impact that the secret-ballot and interest-arbitration provisions could have if the legislation is passed.  Last week in Wilmington, Local 32BJ of the Service Employees International Union protested on behalf of employees of Optima Cleaning Systems.  The Wilmington-based company, claim AFL-CIO officials, has photographed and videotaped union activity on public property. 

Bowser pointed out that there has been far less attention given to the interest-arbitration provision than it deserves in light of its potentially game-changing impact.

This mechanism, known as "interest arbitration," exists in the public sector in some states, including Delaware. But in the private sector, labor and management are expected to hammer out their differences at the bargaining table.

"That is sort of a wild card in this whole thing that has never been tried here in the United States, in the private sector," Bowser said.

There's much more to be said on the EFCA, which was introduced to the House earlier this month.  You can read the full article from The News Journal, Business, Labor, Battle Over "Card Check", or review some of our previous posts on the EFCA at Delaware Employment Law Blog.

EFCA, the Employee Free Choice Act, has garnered a lot of attention from employers and employment law attorneys.  If passed, the much-hyped legislation could have far-reaching effects on non-union workplaces.  Unions would be able to bypass the election process and move directly to the card-counting process.  Penn professor and management guru Peter Cappelli has written a captivating column for HR Executive Online called, "EFCA's Significance for HR."  I would encourage anyone interested in the impact of the EFCA to read the column.  Maybe even read it twice.

Cappelli looks at the history of the labor movement, comparing the power and influence of the unions in the pre- and post-Reagan administration.  He notes, with apparent disappointment, that unions have been on the decline since the early 1980's. 

He contends that the EFCA doesn't stand a chance.  Interesting.

But he then contends that HR professionals and employment lawyers would only stand to benefit from the EFCA. 

So here's the little secret: Nothing would do more for the influence and prestige of human resources within companies than a resurgent labor movement.

While management lawyers across the country are warning employers of impending doom if EFCA passes, they are pinching themselves at their good fortune just to have legislation like it being considered because of the attention it gives them.

I remember in the mid-1980s hearing a table of labor-relations managers tell me that they really wished for a good organizing campaign at their plants because that was the only time senior management provided any resources to deal with bad supervisors and other workplace problems.

Cappelli is an expert in all things management and his perspective is one I've not heard previously.  It certainly is a fascinating approach to the potential impact of the Employee Free Choice Act. 

Recently, the New Jersey Supreme Court struck down a Lawrence Township ordinance that purported to ban the use of inflatable balloons, as well as banners and streamers, except in connection with grand openings. The court said the ban was not “content-neutral” since it allowed balloons to be used in one circumstance, grand openings, while prohibiting them in others, including union-related disputes.

Large inflatable rats have been used by unions as a signal that a labor dispute was taking place at the site of the rat balloon, usually involving a nonunion employer. The ruling seems a bit of a stretch. The court said it was a violation of free speech to prohibit one kind of expression while allowing another, but the ordinance did not single out union activity, it banned any kind of inflatable balloons except for one narrow circumstance. Union protests and the Thanksgiving Day parade are among the many activities covered by the ban.

With the publicity garnered by the ruling and the support of the Obama administration for union positions, we can expect to see the hoisting of more rat balloons. However, the NLRB has not hesitated to restrict the use of the rat in situations where the union claims it is doing area standards picketing rather than organizing. The NLRB sees the rat as a form of signal picketing that constitutes illegal secondary activity. Of course with the new Liebman Board, that view is probably going to be short-lived.

Hilda Solis, President Obama's choice for Secretary of Labor, will not be taking the office any time soon.  Republicans have professed concern about Solis' role as Treasurer for American Rights at Work (ARW), a pro-union advocacy organization.  Opponents of Solis' confirmation have pointed to a potential ethical issue because ARW is a lobbying organization and the Treasurer position requires money handling.

Likely, the real message being sent is the Republican anti-EFCA message.  The Employee Fair Choice Act (EFCA) is high on Solis' priority list.  Preventing (or at least delaying) the passage of the EFCA has been a top priority of employee-and-business proponents.  The hold on Solis' confirmation for Secretary is proving to be an effective way to stall the bill and there doesn't seem to be any indication when the hold might be lifted.

In the meantime, President Obama has asked Edward Hugler to serve as Acting Secretary of Labor until Solis is confirmed.  Hugler, a 30-year veteran at the Department of Labor, is currently the deputy assistant secretary for administration.

The news of Hugler's temporary appointment yesterday came on the same day that Labor turns up its campaign to pressure Congress to speed up its consideration of the EFCA. 

The Employee Free Choice Act (EFCA) has drawn substantial criticism from employers who worry about the bill's card-check and arbitration provisions. But the Obama administration has not given any indication that it will back away from its pro-union position.  With the nomination of Democrat Hilda L. Solis as the new Secretary of Labor, there is even more support for the EFCA. 

But not all Democrats are in favor of the EFCA.  Reverend Al Sharpton described the effect of the EFCA as "coercion" and expressed concern about how the legislation would impact minority-owned small businesses.  He was clear about his overall commitment to the right to organize but stated that the EFCA could go too far.  National Review Online's Peter Kirsanow has a great summary of why the position of EFCA-advocate Secretary of Labor nominee, Hilda Solis, is directly at odds with Sharpton's.  In short, Kirsanow argues that you must be a supporter of small and minority-owned businesses or of the Employee Free Choice Act--but you cannot be proponents of both. 

Under the proposed EFCA, businesses would have 120 days to negotiate a collective bargaining agreement once the union has made a demand for bargaining.  Failure to reach an agreed-upon CBA will divert power to an arbitrator, who becomes responsible for the contract.  Negotiating any contract in 120 days is difficult.  But a first contract, it can be near impossible.  And if you are an employer without a sophisticated and experienced bargaining team already in place, the impossibility becomes even more likely.  If nothing else, the negotiating "team" is likely to have multiple other business demands put on his or her time even though negotiating will necessarily take the top place on the list. 

According to Kirsanow, the EFCA won't make it impossible to successfully negotiate a first contract in 120 days but that one of the following two scenarios will occur:

1) In an effort to avoid arbitration, the small businessman without prior labor negotiating experience concedes to union demands that he would reject if he weren't compelled to reach an agreement in 120 days (under current law, the parties aren't required to reach agreement within a specific timeframe); or

2) The small businessman goes to arbitration. (Interest arbitration isn't cheap. It can go on for months and the legal fees alone can be substantial). The arbitrator writes a "contract" that the businessman would never have agreed to if he'd had the opportunity to bargain with the union in the context of their respective economic leverages. The business is saddled with uncompetitive labor costs and restrictive contract terms after having expended tens of thousands in arbitration.

The hardship this law could impose on small businesses, which, given this economy, could be the final blow. 

Rep. Hilda Solis was named Friday as President-Elect Obama's choice for Secretary of Labor.  He nominated the Democratic congresswoman at a news conference on Friday, December 19, 2008.   The Hilda nomination was very popular with the unions.  The four-term politician has voted pro-union nearly 100% of the time during her eight-years as congresswoman in Los Angeles, California. 

And Solis isn't shy about her union loyalties.  At the conference, she stated, "I am humbled and honored. . . As secretary of labor, I will work to strengthen our unions."  American Rights at Work Executive Director Mary Beth Maxwell called Solis "a great choice” who “brings the expertise and leadership required to a department in desperate need of reform and will champion common sense policies like the Employee Free Choice Act to restore balance and create an economy that works for everyone.”

The unions have lots of good things to say in return, too.  See the following union websites for the glowing reviews: SEIU, Unite to Win, American Rights at Work, and Change to Win.

Solis is also known for her successful campaign to increase California's minimum wage from $4.25 to $5.75 in 1996.  In addition to her deep roots in the union movement, Solis has long been branded as an ardent environmentalist, who has pushed hard for the "green job movement."

More than 50 Delaware employers attended The Union Revival Effort, a panel hosted by the Employment Law Department at Young Conaway Stargatt & Taylor, LLP last week. The panel, which included Sheldon N. Sandler, William W. Bowser, Scott A. Holt, and Teresa A. Cheek, and which was moderated by Section Chair, Barry Willoughby, discussed the various pro-labor legislation that is likely to see some significant activity, even passage, following the swearing in of President-Elect Obama.  Below are the laws that were discussed and a quick summary of each.

Employee Free Choice Act (EFCA)

Would amend the NLRA in three ways: (1) card check instead of secret-ballot election; (2) require compulsory, binding arbitration of initial two-year contract if no agreement in 120 days; and (3) increase penalties for violation of NLRA during organizing and before CBA (now cease and desist) (proposed is 2 times back pay as liquidated damages and civil penalty of $20,000 each willful or repeated violation)

RESPECT Act

Would amend the definition of “supervisor” to delete “assign” and “responsibility to direct” and require a “majority of time” spent supervising others (currently 10-15%). Would be subject to union organizing in the unit that they manage and would be subject to union rules and discipline for crossing picket lines. Issues with loyalty to management and conflicts of interest.

Lilly Ledbetter Fair Pay Act

Would overrule Ledbetter v. Goodyear Tire & Rubber Co., so the time limit to file a charge of discrimination with the EEOC or state agency would begin to run each time an employee receives a paycheck that manifests discrimination. Under the Court’s ruling in Ledbetter, the period begins to run only once—at the time the discriminatory pay-related decision is made.

Employment Non-Discrimination Act

Adds sexual orientation and gender identity as protected classes. Exemption for employer dress codes, small employers, religious organizations, and military.

Civil Rights Act of 2008

Sweeping changes to numerous statutes, including: lowers the burden of proof to get attorney’s fees; prohibits arbitration agreements in employment contracts; allows recovery of expert’s fees; removes caps from Title VII claims; prohibits denial of back pay to illegal immigrants; and expands equal pay claims under FLSA.

Working Families Flexibility Act

“Union-of-one” legislation that would requires good-faith negotiations with any employee who wants to change days worked, hours of work, or location of work. Five-step procedure for meetings and documentation of negotiations. If not granted, employer must provide reasons in writing and specify the costs in agreeing to change; effect of change on customer demand; and the overall financial resources of the company. Employee may have a representative of his choice at the negotiation meetings.

FOREWARN Act

Would amend the WARN Act to (1) lower coverage to employers with 50 or more employees (from 100 or more); (2) require 90 days’ advance notice of mass layoff or closing (instead of 60); and (3) double the amount of back pay owed if required notice is not given.

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If you would like to receive information about upcoming seminars and events hosted by Young Conaway's Employment Law Department, just send an email with your name, company name, and e-mail address to:  employmentlaw@ycst.com.  We'll confirm that you've been added to the list and you'll be the first to know when new seminars and other events are added to the calendar.

The Employee Free Choice Act and RESPECT Act are causing lots of employers some sleepless nights.  At our breakfast briefing last week, YCST Employment Law attorneys spoke on the pro-union legislation that can be expected once President-Elect Obama takes office next month. These two pieces of legislation pose real risks to the nonunion workplace and they have lots of employers looking for preventative solutions.

Michael Moore at the Pennsylvania Labor and Employment Law Blog has made an interesting proposal.  He asks whether employee-engagement surveys may be the answer to combating union-organizing efforts. A fascinating and insightful idea!  In short, the proposal requires us to acknowledge the value of a happy workforce.  Happy workers who are engaged in their work and look forward to going work everyday don't want their environment to change--through unionization or otherwise. Satisfied workers are less likely to be susceptible to the organizing efforts that are certain to increase in 2009.

I think Michael has the right idea and that employers should give serious consideration to the idea of utilizing employee-engagement efforts as a strategy in preventing a unionized workplace.

The Employee Free Choice Act (EFCA), is a priority for organized labor following the election.  The bill, described in greater detail in earlier posts on the EFCA, would unionize a workplace as soon as majority of employees signed cards saying they wanted the union to represent them.  No secret ballot election would be required.

Unions see the bill as a way to stop their declining membership, which has dipped to 7.5 percent in the private sector.  Employer groups have vowed to fight the bill.  “This will be Armageddon,”  according to Randel Johnson, vice president for labor policy at the United States Chamber of Commerce.

A recent report by the Bureau of National Affairs (BNA) indicates that that unions are fairing quite well under the current system.  According to the report, unions won 66.8 percent of secret ballot elections conducted by the National Labor Relations Board (NLRB) in the first six months of 2008.  This is a marked increase from the 58.5 percent during the same period in 2007.  According to Daniel V. Yager, Chief Policy Officer and General Counsel of the HR Policy Association, "This new data clearly demonstrates that the current system, if anything, is working to the unions' advantage."

Stay tuned.

Human Resources departments of Delaware employers will soon face a new and more challenging day once the initial excitement dies down and the new administrations in Washington and Dover turn to official business. 

The State of Unions

In Washington, one of the first items on the agenda will surely be the Employee Free Choice Act, which is designed to revitalize the union movement. It will substitute card checks for secret ballot elections, establish strict bargaining deadlines, and introduce interest arbitration to impose a first contract if the parties are unable to reach agreement in 90 days. Interest arbitration is a concept already familiar to Delaware public employers.

Of note, Delaware public employers have won every interest arbitration case decided to date, but the concept itself changes the bargaining landscape. It requires employers to, in essence, bid against each other by proving they are keeping pace with comparable employers. The Act would also increase the power of the NLRB to obtain injunctive relief and impose increased back-pay damages for unfair labor practices committed by employers during bargaining campaigns.

Another law designed to assist unions is the RESPECT Act, which would overturn an NLRB decision (Kentucky River) that labeled many employees as supervisors and removed them from the coverage of the National Labor Relations Act. Passage of that Act would add many exempt supervisors to the rank and file.

On the Agenda

President-Elect Obama has also supported a proposed law that would ban the permanent replacement of strikers.  And he will be appointing at least 3 new members of the NLRB, and it is virtually guaranteed that the majority will be sympathetic to unions. Passage of this cornucopia of union-favoring legislation would put a heavy thumb on the union side of the organizing scale.

Another change that seems certain is the reversal of the Supreme Court’s Ledbetter decision. The plaintiff in that case, Lilly Ledbetter, was featured in an Obama ad, so he certainly owes her. That case held that the time for filing a charge of discrimination based on unequal pay begins to run from the time the initial unequal wage was established. The new law would permit a charge to be filed every time a new paycheck is received.

President-Elect Obama also has expressed support for expanding FMLA coverage from companies with 50 or more employees to those with 25 or more employees, and to require at least 7 days of mandatory paid sick-leave per year.

Delaware's Political Landscape

In Delaware, it is harder to predict what might come to pass. Governor-Elect Markell, though a Democrat, is a former businessman and will, likely, approach game-changing labor and employment legislation cautiously. But the General Assembly, with many union members and advocates, could pass several bills that have been proposed previously but have never seen the light of day.  Among these are the expansion of the state discrimination statute to include sexual orientation, and the elimination of the employment at-will doctrine. Depending on what happens in Washington, there might also be efforts to add a Delaware FMLA law and a Delaware analogue to the WARN Act.

Fasten your seat belts, it is going to be a bumpy ride.

In Philadelphia, one of the most popular organizing tactics used by labor unions to recruit new members was found by the Third Circuit Court of Appeals to be in violation of the law.  Nearly two thousand employee-partners of Cintas, a publicly held industrial uniform company, filed suit against an affiliate of the AFL-CIO, UNITE-HERE, claiming that the labor-organizing operation had used their motor-vehicle records to wrongfully obtain their personal information. (Pichler v. UNITE).

They filed suit under the Privacy Protection Act of 1994, which prohibits the disclosure and use of personal information obtained through motor-vehicle records.  After being hit by a verdict of $5 million, UNITE HERE appealed to the Third Circuit, which has federal appellate jurisdiction over Pennsylvania, Delaware, and New Jersey.  

The Third Circuit's response was unequivocal.  Not only did it uphold the multi-million dollar verdict but it also implied that the union may be on the hook for more in light of the fact that there could have been numerous privacy violations for each employee targeted.  The court also reversed the district court's decision precluding an award of punitive damages.  Instead, the court remanded the punitive-damages issue to the lower court to be retried.

The suit alleged that UNITE HERE illegally obtained the personal information of Cintas employees in order to solicit their support during a union campaign.  The plaintiffs first learned of the information-theft when UNITE-HERE representatives started showing up at their homes uninvited.

This is the latest battle in a long war between UNITE HERE and Cintas. It's the second multi-million dollar verdict against the organizer, as well.  A California jury awarded Cintas $17 million for defamation against Sutter Health and its affiliated hospitals during a union-organizing campaign in 2006.  Cintas is also one of three companies to have sued the organizers alleging RICO-based claims of civil conspiracy.

This is the second recent decision in favor of employers who stood firm against unlawful union-organizing tactics.   (See Clarification of "Permanent-Replacement Employees" During Economic Strike).

Union members engaged in an economic strike are entitled to immediate reinstatement once they make an unconditional offer to return, unless the employer can demonstrate a legitimate and substantial business justification for refusing such reinstatement.  One such justification occurs when the employer hired "permanent replacement workers" to enable the continued operation of the business.  Last month, the Seventh Circuit Court of Appeals ruled on this requirement and came down on the side of the employer.

The union-plaintiff in the case filed an Unfair Labor Practice charge (ULP), with the National Labor Relations Board (NLRB), after its members were refused reinstatement despite having made an unconditional offer to return to work following an economic strike.  The employer contended that, because it had hired permanent replacement workers shortly after union members announced the strike, it was under no obligation to reinstate the members upon their request.

At issue was a form that the replacement workers signed at the time they were hired.  The form stated that the signatory accepted employment as a permanent replacement worker but could quit or be fired at any time, with or without cause or notice, including as a result of a strike settlement.  The union argued that the at-will status of the new employees prohibited them from being considered "permanent replacements."  Instead, claimed the union, a replacement worker had to be employed under a binding employment contract. 

The NLRB disagreed and so did the Seventh Circuit, both finding that at-will status and permanent-replacement status are not mutually exclusive concepts.  So long as the employer intends to employ the replacements only until the strike is resolved.

E-mail has become the modern-day medium for union solicitation. Employers who restrict employees' use of company e-mail must do so in a way that does not violate Section 7 of the National Labor Relations Act (NLRA).  The National Labor Relations Board (NLRB) was asked to determine the limits of these restrictions in a case decided in December 2007, The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70 (Dec. 16, 2007) (Register-Guard). But the decision may have raised more questions than it answered.

The NLRB's Decision

In Register-Guard, the Board was asked to rule on the circumstances under which an employer may discipline an employee for personal use of the business' e-mail account. Restrictions, the union argued, constituted an unfair labor practice based on its discriminatory effect on union solicitation.

The Board determined that an employer who restricted the use of its e-mail system to work-related business did not violate section 8(a)(1) of the NLRA when it applied this rule to Section 7 activity. The Board majority held that an employers email system is company property that employees have no statutory right to use. Although the decision offered some insight into the limits of e-mail usage policies, it was not the definitive resolution many had hoped for.

The Application of Register-Guard to the Unionized Workplace

Then, on May 15, 2008, NLRB General Counsel Ronald Meisburg issued a memorandum describing the Boards application of the holding in Register-Guard. Since the Register-Guard decision, Regional Officers have submitted discrimination cases involving company property to the Division of Advice. Labor and employment law blog, the Washington Labor & Employment Wire reports on the determinations reached by the Division of Advice:

1. An employer did not violate the Act by enforcing a rule that barred union officials from sending e-mails to company managers outside of the facility. The union used the company's e-mail system to send broadly distributed messages to company managers outside the facility. The Division determined that the company' rule was lawful because it concerned how the union was permitted to use the employer's e-mail system and did not otherwise prohibit the union from engaging in protected communications.
2. An employer's rule that prohibits solicitation for any purpose during work hours was unlawful when applied to union activity.  The employer inconsistently enforced this policy by permitting non-union-related solicitation activity including institutional and individual commercial solicitations, school fundraising solicitations, and personal solicitations. The Division reasoned that an employer may not discriminatorily enforce a facially valid no-e-mail-solicitation rule.
3. A rule that was re-promulgated after union organizing activities began at the employer's site was a violation of the Act. After an employee sent emails about a union meeting, the employee was disciplined for misusing the employer's email system. Prior to sending the email, the employee checked with the employer's IT director to determine what was considered abuse of the employer's computer system. The IT director did not inform the employee that personal email or email solicitation was against employer policy.     The case initially settled after an investigation revealed that the employee was disciplined because of union activity. Subsequently, the employer again disciplined the same employee for sending another email with union-related content. The Division concluded that the employer re-promulgated its email rule for anti-union reasons, and discriminatorily enforced the rule against union activity.
4. An employer violated the Act when it discriminatorily enforced its electronic communications policy against an employee. The employer terminated the employment of an employee after the employer learned that the employee was the author of an email sent to the employer's Board of Directors that listed concerns that employees had about working conditions. The employer alleged that the employee was terminated for inappropriately using the employer's computers in violation of its policy.           The Division found that the employer unlawfully discharged the employee for engaging in protected activities. The Division noted that the employer's email policy allowed reasonable personal use of the employer's computer and the employer permitted employees' use of the Internet, email, and other company equipment for personal purposes. Thus, the Division concluded that the employer disparately enforced its email policy.
5. An employer violated the Act when it discriminatorily prohibited use of its employee bulletin board. A union organization event was held at one of the employer's stores during which union material was placed on a bulletin board within the store designated for employees. The bulletin board was used for personal and general non-work related matters. The union material was taken down and the employer later turned the bulletin board into a management-only posting site. The Division concluded that the facts established an anti-union motive because the timing of the employer's conduct and the actions themselves were directly in response to the union activity.

These decisions reinforce the presumptive rule: an employer may not use facially neutral rules to effectuate anti-union animus nor may an employer discriminatorily enforce rules to prohibit protected collective activity.

What Other Employment-Law Blogs Are Saying

Since the General Counsel's memo was released, several employment-law bloggers have given additional discussion to the limits of workplace policies on personal e-mail usage. Some of the most informative posts include The Manpower Employment Law Blog's post, "Everything You Ever Wanted to Know About the New Union Email Rules," which was subsequently picked up by The Laconic Law Blog. The Ohio Employers' Law Blog tells us "How to Apply the New E-Mail Solicitation Rules."   And, earlier in the month, the Workplace Profs Blog posted about the General Counsel's Memo.

New Castle County’s blue-collar union ratified a three year contract, which provides for no cost-of-living increases in the next two years. The News Journal’s story on the settlement is located here. T

he agreement was reached after over a year of negotiations and reflects the tough economic times faced by New Castle County and other governments in Delaware. See our earlier post.

Bill Bowser and I will be discussing the state of public sector negotiations on April 16 at our Department’s Annual Seminar.

To register, contact Marie Willey at 571-4751. Cost is $95. Lunch is provided.