Labor Relations Counsel - Legal Insight into Labor Relations Developments

By Jeffrey Place

The National Labor Relations Board (“the Board”) recently issued its decision in Caterpillar, Inc., 359 NLRB No. 97, in which a union charged that the employer had violated the National Labor Relations Act (“the Act”) by refusing to grant the union access to the employer’s facility to conduct a health and safety inspection in the wake of a fatal accident. The company objected to the union’s request on several grounds. First, the company noted that it had conducted an accident re-creation, which it allowed the union’s steward to attend, and had also provided a video recording of the re-creation to the union’s safety specialist. Further, the company provided copies of post-accident photographs and the local police department’s investigation file to the union. Finally, the company pointed out that the union also represented one of the company’s primary competitors, and stated that the company wanted to maintain the confidentiality of its manufacturing procedures. 

The union asserted that photographs and video recordings could not take the place of an on-site inspection, because only being physically present at the location of the accident would give the safety specialist a full understanding of the lines of sight, angles, and physical dimensions of the work area. Further, the union noted that the police department had been unable to determine the precise cause of the accident during its investigation. The union argued that it needed access to the employer’s facility in order conduct an independent investigation, which would allow the union to then engage in informed dialogue with the company about methods for preventing future accidents.

Continue Reading

By Noah Lipschultz 

In J.W. Marriott Los Angeles at L.A Live, 359 NLRB No. 8 (Sept. 29, 2012), the NLRB again has ruled against an employer’s off-duty employee access rule. A hotel in Los Angeles maintained a rule prohibiting employees from accessing the interior areas of the hotel more than 15 minutes before or after their scheduled shift. The policy further acknowledged there may be exceptions, but required that any exceptions can only arise with prior approval from management, and that failure to obtain such prior approval may result in discipline. The policy expressly applied only to interior areas of the hotel and not to parking areas or other outside non-working areas. In analyzing the rule, the NLRB applied its traditional test to such off-duty access rules, from its decision in Tri-County Medical Center, 222 NLRB 1089 (1976). Under Tri-County, a rule restricting off-duty employee access is valid only if: (1) it limits access solely with respect to the interior of the facility and other working areas; (2) is clearly disseminated to all employees; (3) applies to off-duty employees seeking access to the facility for any purpose and not just those employees engaging in union activity. 

The Board had recently invalidated off-duty access rules for failing the third prong of the Tri-County test by creating exceptions. In Saint John’s Health Center, 357 NLRB No. 170 (2011) the Board invalidated a rule that barred access except for “employer-sponsored” events, and in Sodexo America LLC, 358 NLRB No. 79 (2012), the Board invalidated a hospital’s off-duty access prohibition that made an exception for “hospital-related business.” The Board found fault with the employer’s rule here for the same reason; it was not a blanket prohibition but was instead subject to exceptions, made purely in the employer’s discretion. The Board also found that the rule would “reasonably tend to chill” Section 7 activity, due to the pre-approval condition which, according to the Board, could give management license to deny access on the basis of Section 7 activities. The pre-approval requirement that employees state the purpose of their off-duty visit likewise would tend to chill union activities, according to the Board. 

Continue Reading

During a hearing conducted by the House Committee on Education and the Workforce, labor experts and lawmakers debated the merits of the recently-introduced Workforce Democracy and Fairness Act (H.R. 3094), legislation that would restore the criteria used to determine an appropriate bargaining unit and prevent the National Labor Relations Board from pursuing its proposed changes to the representation election process. Continue reading this entry at Littler's Washington DC Employment Law Update.

On July 26, 2011, in Register Guard, 357 NLRB No. 27 (July 26, 2011), the NLRB issued a decision on remand from the U.S. Court of Appeals for the D.C. Circuit involving a challenge to an employer’s e-mail use and solicitation policy, and its enforcement of the same.  Neither the new Board decision, nor the appellate court opinion changes the precedent set by the original Register Guard decision in December 2007.  In that decision, the NLRB modified then-existing precedent concerning discriminatory enforcement of company rules and policies, announcing a narrower standard for discrimination with respect to rules governing activities or communications.  In so doing, the Board upheld the facial validity of an employer’s policy that prohibited the use of e-mail for “non-job-related solicitations,” acknowledging that an employer could make distinctions in its rules that might adversely affect employees’ NLRA Section 7 rights (such as allowing charitable, but not non-charitable e-mail solicitations), so long as such policies (or enforcement of those policies) did not discriminate along Section 7 or union-related lines.

The initial case involved a challenge to two disciplinary actions the employer took toward an employee under its e-mail use policy.  The D.C. Circuit reversed the Board’s initial ruling, holding that both instances of discipline violated the Act.  The D.C. Circuit noted that, while the employer argued the employee was disciplined for making solicitations on behalf of an organization, rather than on behalf of an individual, there was no basis in the employer’s policy for such a distinction, thus leading to the inference that the enforcement was based on the union-related nature of the communication.  The court observed that neither the company’s written policy nor its explanation in the warning drew a distinction between individual and organizational solicitations, finding that the employer’s rationale was “a post hoc invention” raised only after the General Counsel filed the complaint.  On remand, the NLRB accepted the D.C. Circuit’s ruling in this regard as “law of the case.”

Continue Reading

On March 25, 2011, the National Labor Relations Board issued a decision with potentially broad ramifications for employers involved in service contract arrangements. In New York New York, LLC, d/b/a New York New York Hotel & Casino, 356 NLRB No. 119, the Board considered issues arising from actions by off-duty employees of an onsite food service contractor seeking access to the hotel and casino property where they worked in order to handbill in connection with their union organizing activity. Addressing the "broader legal and policy questions raised by the factual pattern" involved, the Board held in a 3 to 1 decision that such off-duty contractor employees have a new type of access right based on the location where they are regularly employed. The Board majority stated: "we seek to establish an access standard that reflects the specific status of the [contractor] employees as protected employees who are not employees of the property owner, but who are regularly employed on the property." Under the new access standard, the Board found that the property owner did not have sufficient property or managerial interests to prohibit its contractor's employees' off-duty access to its property and consequently violated Section 8(a)(1) of the National Labor Relations Act.

Continue reading Jeffrey Kauffman's and Kathryn Siegel's ASAP on www.littler.com.

The Board recently expanded its protections for union bannering by concluding that a union display of stationary banners was not a violation of the NLRA’s prohibition against secondary boycotts even where the “primary” and “secondary” employers shared a common job site. The union in Southwest Regional Council of Carpenters (New Star General Contractors) (pdf) placed a large banner at the secondary employer’s worksite to publicize the union’s dispute with the primary employer. The union’s goal was to pressure the secondary employer by publicly “shaming” it for doing business with the primary employer during an ongoing union dispute. In this case, the Board ruled that the union’s bannering at a common worksite (a “common situs”) was not an unfair labor practice and did not “threaten, coerce or restrain” the secondary employer’s workers.

The Board’s recent decision is significant because it permitted a union to publicize its dispute with the primary employer at a “common situs” shared job site where several other companies were also working. In reaching its decision, the Board majority (Chairman Liebman and Members Becker and Pearce) cited its recent 2010 decisions, finding that a union’s stationary banners near a secondary employer’s jobsite did not amount to illegal picketing of the secondary employer because it did not “induce or encourage” employees to stop working and did not otherwise signal to employees to engage in a work stoppage. Member Hayes dissented, restating his position from the previous cases that the stationary bannering displays were unlawful as coercive conduct. Member Hayes went further in New Star General Contractors, viewing the union’s banner both as unlawful picketing and as intending to communicate a message for the secondary employer’s workers to engage in a work stoppage at the common worksite.

The significance of this decision likely will be seen on a wider scale where unions engage in continued bannering efforts directed at neutral secondary employers where the primary employer’s workers are on the “common situs” shared job site. The Board’s reasoning permits unions to publicize disputes with primary employers without well-defined limitations requiring unions to avoid disruption or unlawful appeals to the workers of secondary employers. The Board has now established a pattern of decisions condoning union tactics of placing banners at any entrance to a common worksite, regardless of where the primary employer’s workers enter and exit the jobsite. It is unlikely that the Board’s current view of the union bannering strategy will be limited unless reversed by a federal appellate court.

Despite the Board’s current composition and recent slant, it remains advisable for employers to consider continued use of a reserved gate system when facing union bannering efforts. The established practice of reserved gates for primary employers facing unions publicizing labor disputes permits separation of secondary employers’ workers at the “common situs” job site and may help minimize the opportunities for unlawful work stoppages or slowdowns.

This entry was written by Arturo Ross and Micah Heilbrun.

Photo credit: Wissmann Design

Two important statutes that permit labor unions to trespass on the private property of California employers have been found unconstitutional for the second time by a state appellate court.

In Ralphs Grocery Company v. UFCW Local 8 (1/27/11), (pdf) the Fifth District Court of Appeal held that the statutes are invalid as content discrimination under the free speech provisions of the California Constitution because they favor union speech (typically in the form of picketing or handbilling) over similar conduct by other groups. The case involved picketing by the UFCW on the private property of a grocery store in Fresno, California.

One of the statutes is the Moscone Act (Code of Civil Procedure Section 527.3), which the state Supreme Court construed decades ago as permitting union handbilling on the private sidewalk of a retail store. The second is an anti-injunction statute (Labor Code Section 1138.1), which establishes numerous difficult requirements for obtaining an injunction in a labor dispute.

Last year, the Third District Court of Appeal reached the same result in a case involving the identical parties at a store located in Sacramento. Ralphs Grocery Company v. UFCW Local 8, 186 Cal.App.4th 1078 (2010). The California Supreme Court has granted review of that decision, and it is anticipated that review will also be granted in the Fresno case.

Littler Mendelson filed amicus briefs on behalf of several trade associations in both of the Ralphs cases, and we are currently filing a similar brief in the case pending before the Supreme Court.

Photo credit: dra_schwartz

On August 27, 2010, the Board ruled in three consolidated cases that “bannering” at a secondary employer was not coercive and does not violate labor laws. The cases, involving the United Brotherhood of Carpenters and Joiners of America, Local 1506, in Arizona, arose when union carpenters held 16-foot banners near establishments (two medical centers and a restaurant) to protest work performed for the owners by construction contractors that the union claimed paid substandard wages and benefits.  Two of the banners declared “SHAME” while a third urged customers not to eat at the restaurant.  In all three cases, the banners were all placed on the outside edge of a sidewalk visible only to traffic or those across the street.  The Board concluded that as long as it is done in a non-coercive manner, a union may display such banners at a neutral, secondary employer without running afoul of the prohibition against secondary boycotts contained in the National Labor Relations Act.  United Bhd. of Carpenters and Joiners of America, Local Union No. 1506, 355 NLRB No. 159 (Eliason).

Eliason was the first to be decided among a backlog of more than a dozen bannering cases pending before the Board.  The Board’s subsequent decisions in the backlogged cases indicate a consistent conclusion, despite some differing factual circumstances.  In the second case, United Bhd. of Carpenters Local 1506 (AGC San Diego Chapter), 355 NLRB No. 191 (Sept. 22, 2010), the Board found that the union's conduct was essentially the same as that found lawful in the first case.  The only differences noted were that the banners were held by union members on the inside edge of the sidewalk so that pedestrians could see them.  Other union representatives handed out leaflets, which read “Shame on [secondary employer] for Desecration of the American Way of Life” and included a drawing of a rat gnawing on an American flag.  Despite the handbills, the Board applied its initial holding, concluding that “absent the use of traditional picket signs, patrolling, blocking of ingress or egress, or some other evidence of coercion” the display of banners was not coercive and did not violate the NLRA.

Continue Reading

An employer whose employees are represented by a union violates section 8(a)(5) of the National Labor Relations Act if it “refuse[s] to bargain collectively” with the union.  Section 8(d) of the Act defines “to bargain collectively” as “the performance of the mutual obligation of the employer and the [union] to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment . . . .”  Cases decided under these sections of the Act make clear that an employer must bargain with regard to pay and benefits, hours of work and overtime, seniority, disciplinary procedures, grievance procedures, job posting and bidding procedures, and the like.  Equally clear, but perhaps less obvious, is that an employer must also bargain over union security provisions, such as union-shop and dues-checkoff clauses; such provisions are encompassed within the phrase “conditions of employment” in section 8(d) of the Act.  Still less obvious, but important for employers to remember, is that bargaining unit employees’ access to the union agents and officials who represent them is also encompassed within the phrase “conditions of employment” and is therefore also a mandatory subject of bargaining.  The National Labor Relations Board recently reaffirmed this last point in its decision in Oaktree Capital Management (Turtle Bay Resorts), 355 NLRB No. 207 (September 30, 2010) (pdf).

Continue Reading

The NLRB will reconsider its earlier ruling on whether the Venetian Casino Resort committed an unfair labor practice by asking the Las Vegas police to cite a union agent for trespassing and to remove union protestors.  The case has followed a winding path and is based on the Venetian Casino’s response to a union demonstration in 2003.  At that time, the union organized nearly 1,000 protestors outside the casino’s temporary walkway entrance to publicize that the Venetian did not have a union contract with its workers.  To counter the demonstration, the casino posted signs that its walkway was private property, played a taped announcement that protesters could be arrested, and the casino’s private security guards placed a union agent under “citizen’s arrest” for illegally trespassing.  The casino also contacted the Las Vegas police and requested that police issue trespass citations to protestors and remove them from the casino’s temporary walkway entrance.  The union filed charges with the NLRB claiming that the casino’s actions violated section 8(a)(1) of the National Labor Relations Act, which prohibits activities that “threaten, restrain or coerce” union members in the exercise of their labor organizing rights under federal law.

Continue Reading