Employers ... Be Careful of Mixed-Guard Unions

Since the NLRB’s holding in Wells Fargo Corp., 270 NLRB 787 (1984), an employer could, upon the expiration of a contract, refuse to continue to bargain with a “mixed-guard” union representing both its security guards and other employees.  No longer. On June 9, 2016, in a case titled Loomis Armored US, Inc., 364 NLRB No. 23 (2016), the NLRB overturned more than thirty (30) years of precedent by holding that an employer cannot refuse to continue bargaining with a “mixed-guard” union where the employer has voluntarily recognized that union previously.  The holding does not apply retroactively.

Essentially, the NLRB has held that once a voluntary bargaining relationship is established with a mixed-guard union, an employer may not unilaterally withdraw recognition of the union based on mixed-guard status, and must continue to bargain. This holding turns decades old precedent on its head.  Now, employers who have recognized mixed-guard unions must continue that relationship and cannot withdraw recognition until such time as the union loses majority support among the bargaining unit members, if at all. Going forward, employers faced with signing an agreement with a mixed-guard union may wish to think twice or thrice about the implications of doing so in light of the Loomis decision.  When faced with such a prospect, employers may wish to consult with labor counsel to discuss the likely serious ramifications of any such action.

New York Minimum Wage Rises to $9.00 Per Hour

Just a reminder that effective as of December 31, 2015, New York's minimum wage was increased to $9.00 per hour.  Employers should revise their postings to reflect the change in the law.  You can download the current New York State Department of Labor poster here (look under "Other Publications" for form LS 207).  Happy New Year to all.

Does Facebook Activity Constitute Protected Concerted Activity Under the NLRA?

It does, according to the United States Court of Appeals for the Second Circuit.  In Triple Play Sports Bar and Grill v. NLRB, the Second Circuit upheld a ruling of the National Labor Relations Board (the "NLRB") that Facebook activity by employees, which was critical of the company, constituted protected concerted activity under Section 7 of the National Labor Relations Act (the "NLRA").  The Summary Order issued by the Second Circuit (which lacks precedential effect) can be found here.

Triple Play is a sports bar located in Connecticut.  One of its employees had made a post on Facebook that was critical of the employer. The post concerned claimed mismanagement of payroll tax by the employer; as a result, employees would owe additional taxes which should have been deducted in the first place.  The post stated as follows: "Maybe someone should do the owners of Triple Play a favor and buy it from them. They can't even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!."  A fellow employee "liked" the post on Facebook and commented "I owe too. Such an asshole." When the employer became aware of this, it fired the two employees.

The Second Circuit upheld the NLRB ruling that the two employees were engaged in a work-related discussion that was protected by the NLRA.  It makes for interesting reading, particularly the discussion concerning the issue of whether the Facebook activity was so disloyal or defamatory as to lose the protection of the NLRA; the Second Circuit held that the protection was not lost in this instance.

Inflatable Rats And The First Amendment

In a Decision dated October 27, 2014, the United States District Court for the Eastern District of New York (Bianco, J.), refused to ban a Union from using inflatable rats to communicate its objections to the hiring by an Employer of a supervisor who had run a non-union business previously. The Union, Asbestos, Lead, and Hazardous Waste Laborers' Local 78, began displaying the inflatable rats at various worksites of the Employer, Microtech Contracting Corporation. The case is Microtech Contracting Corporation v. Mason Tenders District Council of Greater New York, et al., Case No.: 14-CV-4179.

The Employer brought suit against the Union and sought a preliminary injunction.  The Court refused to issue the injunction and held that use of the inflatable rats did not violate the no-strike provision of a collective bargaining agreement (the “CBA”) between a contractor’s association and the Union; the employer was a member of that association and was bound by the terms of the CBA. 

In refusing to grant the injunction, the Court held that the Norris-LaGuardia Act of 1932 deprives federal courts of jurisdiction to issue restraining orders or injunctions in cases involving or growing out of labor disputes, except where the strike violates an express or implied promise not to strike, and where the underlying issue is arbitrable. The Court held further that preventing the Union from using the inflatable rat would violate the Union’s First Amendment right to free speech.

The no-strike provision contained in the CBA prohibits “strikes, walkouts, picketing, work stoppages, slowdowns, boycotts or other disruptive activity of a similar nature at a job site of or otherwise directed at, any employer [emphasis added].” Although the Court stated that First Amendment rights can be surrendered in a CBA or some other contractual agreement, it held that the Union did not waive those rights in this case.

The Court held that use of the inflatable rats did not constitute “disruptive activity” under the no-strike provision because that term was qualified by the words “of a similar nature.” In the Court’s view, that qualification refers to activities similar to strikes, walkouts, picketing, work stoppages, slowdowns, or boycotts, but not to the use of an inflatable rat to publicize or otherwise broadcast objections to an employer’s business practices.  It appears that if the words “of a similar nature” were not contained in the clause, then use of the rats may have been prohibited as violative of the CBA.  Interestingly, the Court stated that even if use of the rats were prohibited by the no-strike provision, the dispute was not subject to the grievance clauses in the CBA because it did not involve an "interpretation and application" of the agreement.  Rather, it involved the Union's objections to the Employer's hiring of a supervisor with a non-union history.

While there is room for disagreement with the Court’s Decision, perhaps, as a practical matter, the Employer should consider use of inflatable “cats” on its jobsites which stand much taller than the Union’s inflatable rats.  After all, free speech is free speech.       

Obama's "Recess" Appointments To NLRB Held Unconstitutional

In a blistering, 9-0 Decision, the United States Supreme Court ruled that President Obama’s recess appointments to the National Labor Relations Board (the “NLRB”) were unconstitutional. The revocation of those appointments, made in 2012, voids hundreds of decisions made by the NLRB.

The President made appointments to the NLRB to fill vacancies when the Senate was in a pro forma session, not in official recess.  The President claimed that although a formal “recess” had not been declared, the Senate was in recess as a practical matter because it was not meeting and conducting business.  The United States Supreme Court disagreed.

During the period in which the NLRB made decisions involving the now invalid appointees,  approximately 600 employers sustained adverse determinations. Each of those determinations is null and void because the NLRB lacked authority to act due to the improper appointments.  Most likely, de novo hearing and review of those vacated decisions will be made by a reconstituted NLRB.  Those revised decisions, made by persons appointed in accordance with the law (rather than in violation of it), may result in different outcomes. Of course, spending so much time to rehear and redetermine those cases may strain NLRB resources; it could affect adversely the processing of current cases and throw a monkey wrench into the NLRB’s heretofore pro-labor agenda. The former result is troubling, while the latter is encouraging.

To paraphrase an old television commercial ... it’s not nice to fool with the Constitution.

NLRB Rules That College Football Players Are Employees And May Unionize

Yesterday, the Chicago district of the National Labor Relations Board (the “NLRB”) ruled that football players at Northwestern University qualify as employees of the university and can unionize.  Certainly, one can extrapolate from the ruling that it applies to all student athletes, not just football players at Northwestern. 

While the players may be rejoicing over their new-found status, they should approach this development with some trepidation.  There are a number of unknown or unintended consequences that could occur as a result of the NLRB ruling.  Colleges and universities may elect to no longer issue scholarships for their athletes, and could avoid allegations of anti-union animus if financial considerations come into play. Indeed, if sports scholarships are discontinued, that will likely affect a great number of individuals who might not otherwise be able to afford an education, but for those  scholarships. If scholarships continue, student recipients could be taxed on all or portions of those scholarships as employee income. Small schools may decide to cancel their sports programs completely. Student athletes who are hurt in a game or in activities related to their participation in the sport may qualify for workers’ compensation benefits. 

Also, unionization raises the prospect of strikes by disgruntled players and lockouts by athletic departments. Strikes and lockouts are particularly likely since the athletes may lack any real leverage at the bargaining table; this could result in the utilization of non-union replacement players.    
           
The NLRB ruling applies solely to athletes at private schools because the NLRB lacks jurisdiction over public universities.  I expect that Northwestern will appeal and that the matter will be decided ultimately by the United States Supreme Court.  In the interim, due to potential litigation, it is likely that the matter won’t be finalized for years. Stay tuned. 

New York Increases Minimum Wage

Effective as of December 31, 2013, New York State has increased its minimum wage to $8.00 per hour.  This is the first of three planned increases.  The New York minimum wage will again increase on December 31, 2014 to $8.75 per hour, and will further increase to $9.00 per hour on December 31, 2015.  Note that the current federal minimum wage is $7.25 per hour, but that New York employers must  pay the higher of the two rates.  New York employers are required to post notice of the current increase in the State's minimum wage in a conspicuous place.  The poster from the NYS Department of Labor can be found here.

Happy New Year!