Welcome Developments from the National Labor Relations Board
By Donald J. Cairns, Esq.
The National Labor Relations Board administers the primary federal law governing relations between unions and employers in the private sector. Its major functions are two-fold: (1) determining whether employees wish to be represented by a union in dealing with their employer; and (2) investigating and remedying unlawful acts called "unfair labor practices" by either employers or unions.
In the closing months of Year 2004, the five-member Board issued three key opinions by a slim majority (3-2), overturning earlier rulings by a different majority and reaffirming long-standing policies significantly more favorable to employers.
Temporary Employment Agency Employees As Members of the User-Employer's Bargaining Unit
Section 9(b) of the federal law states that collective bargaining units must be appropriate - that is, the unit must conform to certain statutory standards and the employees must share a "community of interest." For the same reason, the law precludes the Board from defining units so as to require employers of separate employee groups to bargain jointly. The law allows for joint bargaining by employers only when they jointly employ the same employee group or when they voluntarily enter into a more inclusive bargaining relationship.
Temporary staffing is the second-most common outsourced function, surpassed only by building maintenance and cleaning. The decision to outsource specific functions may rest on a variety of factors, including improving performance by acquiring expertise in new areas, eliminating capital assets required for ancillary functions, and controlling costs in periods of market fluctuation.
In 2000, a Board majority ruled that a unit of all of the user's employees, both those solely employed by the user and those jointly employed by the user and the supplier, is an "employer unit." It did so by focusing largely on the work being performed by the temporary and permanent employees, rather than upon a consideration of the "community of interests" or, more importantly, the lack of such commonality. As a result of the Board's shift, user employers could now be required to bargain with a union over the terms of conditions of both employee groups as members of a single bargaining unit, even when significantly different wage, benefit and personnel policies covered permanent and temporary personnel.
Fortunately, in late November 2004, the Board returned to longstanding precedent and held that employees obtained from a labor supplier cannot be included in a unit of permanent employees of the employer to which they are assigned unless all parties consent to the bargaining relationship. Criticizing the "single employer unit" analysis used four years earlier, it found such units to be "multi-employer", and that allowing such units without consent "open[ed] the door to significant conflicts among the various employers and groups of employees participating in the collective bargaining process. The multiple employees are placed in the position of negotiating with one another as well as with the union, posing the types of conflicts that [the law] and the Board's community of interests tests are designed to avoid." H.S. Care L.L.C. d/b/a Oakwood Care Center and N&W Agency, Inc.
New Board Standard for Pro-Union Supervisory Conduct In Representation Election Cases
Election campaign statements by supervisors which reasonably cause pro-union employees to fear reprisal or to expect reward if they exercise their rights to engage in union organizing and collective bargaining will ordinarily be attributable to the employer and found objectionable. That principle of Board law is in recognition of the authority supervisors may exercise over employees, including the power to promote, reward, discipline, assign or direct, and the potential for abuse of that authority.
While most objectionable supervisor conduct is anti-union in nature, pro-union supervisory conduct may also interfere with the outcome of a Board election. Historically, the standard for finding pro-union supervisory conduct objectionable appeared to require an explicit threat of reprisal or promise of benefit by the supervisor. Last December, the Board disavowed that standard, adopting a two-part standard in its place:
- Whether the supervisor's pro-union conduct reasonably tended to coerce or interfere with the employees' exercise of free choice in the election (which requires a consideration of the nature and degree of supervisory authority by those who engage in pro-union conduct and the nature, extent and context of the conduct);
- Whether the conduct interfered with freedom of choice to the extent that it materially affected the outcome of the election, based upon a variety of factors (including the margin of the election victory, the timing and dissemination of the conduct, and the lingering effect of the supervisor's conduct.)
After emphasizing that it is incumbent upon the Board to protect employees from the conduct of supervisors, whether pro-union or anti-union, which interferes with election choice, the Board modified the rules governing supervisory solicitation of union authorization cards, finding that such solicitation is inherently coercive absent mitigating circumstances. The Board reasoned that a supervisor, by definition, has the power to affect the working life of employees. As in the case of a supervisor's distribution of anti-union buttons and T-shirts to individual employees, so, too, the solicitation of union cards affords the supervisor the opportunity to obtain a graphic illustration of who is pro-union and, by the process of eliminating non-signers, who likely is not. Employees solicited by a supervisor would reasonably be concerned that the "right" response will be viewed with favor, and a "wrong" response with disfavor. Harborside Healthcare, Inc.
New Approach to Facially Neutral Work Rules Governing "Abusive and Profane Language"
Work rules that reasonably tend to chill employees in the exercise of their rights under federal law to engage in union organizing or other activities for mutual aid and protection violate federal labor law. If a rule explicitly restricts protected activities, then the rule will be found unlawful. Where the rule does not explicitly restrict such activity, a violation of the law will nevertheless be found where:
- Employees would reasonably construe the language to prohibit protected activities; or
- The rule was promulgated in response to union activity; or
- The rule was applied to restrict protected, concerted activity.
Loud, abusive and/or foul language is unacceptable in any working environment as a disruption to order, discipline, and employee morale. However, since 1999, if an employer maintained a rule that prohibited such conduct, but did not define the words "loud, abusive and/or foul language", it risked a finding that the rule was unlawful -- the Board believed that employees could reasonably interpret such rule as a ban on lawful organizing propaganda. Few federal courts subsequently agreed with that view, but it nevertheless persisted.
A new Board majority recently concluded that the maintenance of work rules prohibiting "abusive and profane language," "verbal, mental and physical abuse" and "harassment . . . in any way" was not unlawful even where such words were not defined. The majority rejected the view that the rules were not sufficiently specific to avoid running afoul of the law, noting that no employee could reasonably believe that such rules applied to the exercise of their rights under federal law. In so doing, the Board adopted the approach taken by federal courts that recognize an employer's legitimate right to establish a decent and civil workplace and to protect itself from liability for workplace harassment by maintaining rules prohibiting conduct that could lead to such liability. Lutheran-Heritage Village-Livonia.
[Important Note: While a work rule prohibiting profane, abusive language is no longer unlawful on its face, employers must nevertheless exercise caution when imposing discipline for a violation of the rule. Employee activity that includes verbal abuse or profanity may nevertheless be protected under the law based upon the circumstances of the particular case, including the nature of the outburst.]
If you have any questions about the issues raised by this e-alert, please feel free to contact Don Cairns at (414) 273-3910 or by e-mail at firstname.lastname@example.org
Lindner & Marsack, S.C. represents management exclusively in labor, employment, and employee benefits law, including the administration of employee health and retirement programs. Established in 1908, Lindner & Marsack, S.C. is consistently rated among the top labor and employment law firms in the nation. We are located at 411 East Wisconsin Avenue, Suite 1800, Milwaukee, Wisconsin, 53202. Call us at (414) 273-3910 or visit our website, www.lindnermarsack.cert-mhcrm.com, to learn more about our firm and its talented and innovative legal professionals.
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This update is intended for general informational purposes and is not a substitute for legal advice.