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Today’s Labor Updates:

United States: Feeding Parasites

Do your employees have the right to a union rep during a drug test?

NLRB: 1st Circuit Court sets high bar to overturn a union election

NLRB: successor employer determination must be made when buyer takes control of business

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United States: Feeding Parasites

Last Updated: September 30 2015

Article by James R. Redeker

Just in case you have not noticed, the Labor Board has created a popular, new protected class – workplace complainers. Complainers may be a cancer in your workforce, but for the very reason they are a cancer, they are protected by the National Labor Relations Act. All that is necessary is that their complaint concerns some term or condition of their employment (including how they are treated by their supervisor) and a “like” by another employee.

Whether it’s being discharged allegedly in retaliation for complaining or for violating a newly-found unlawful rule, such as “you must deal respectfully with all employees,” parasitic plaintiff’s lawyers are forsaking the civil rights agencies and finding a new way to extort undeserved severance pay from employers, the Labor Board. The ppls (predatory/parasitic plaintiff’s lawyers) don’t have to prove anything, just allege retaliation or unlawfulness of a rule in a way that is based on credibility and the Labor Board will accommodate by filing a complaint, taking over the prosecution and scheduling a trial within three months. Bingo!

Labor Board trials before an Administrative Law Judge are real trials with rules of evidence, witnesses, cross examination, transcripts, briefs and all of the other trappings. Most of all, they are expensive. A single employee Labor Board trial can easily cost an employer $50,000, let alone the cost of an appeal to an unsympathetic and biased Board.   It is no wonder why a ppl will file to get a quick hit – it’s too expensive for most employers to fight. It’s prudent business to settle.

If for no other reason, supervisors must be trained how to deal with the complainers and create a document trail that will successfully combat “credibility” cases.. HR professionals must take seriously the Board’s decisions that traditional codes of conduct and many new electronic communication and social media policies are unlawful. Paying attention matters. Not paying attention is expensive.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm’s full disclaimer.

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Do your employees have the right to a union rep during a drug test?

Michael Clarkson

USA September 28 2015

On August 27, 2015, a three-member panel of the National Labor Relations Board (NLRB) issued Manhattan Beer Distributors, LLC and Joe Garcia Diaz, (29-CA-115694) finding that an employer had unlawfully denied an employee his right to the physical presence of a union representative during a reasonable suspicion drug test. This case has implications for all employers conducting drug tests in a unionized setting.

In the case, a manager found that a route driver “reeked of the smell of marijuana” and had glassy, bloodshot eyes. The manager ordered the employee to take a reasonable suspicion drug test, and the employee requested the presence of a union shop steward. The employee was able to reach a union shop steward by phone but was unable to find anyone immediately available to accompany him to the test. The employer required that the employee immediately submit to the test anyway. When the employee refused, the employer discharged him for “refusal to submit to substance abuse testing based on reasonable suspicion.”

The NLRB has previously found that employees have the right to union representation during drug tests (Ralphs Grocery Co., 361 NLRB No. 9 (2014)) and that employers must provide employees with a reasonable time to obtain such representation (Consolidated Freightways Corp. of Delaware, 264 NLRB No. 76, 541, 542 (1982)). The Manhattan Beer Distributors case breaks new ground in that it makes clear that the physical presence of a union representative is required to actively assist the employee in a drug testing situation.

This case is important for employers seeking to ensure that the safety and efficacy of their workplaces are not compromised by alcohol and drug use. The NLRB’s decision—by allowing employees to delay drug and alcohol tests while waiting for a union representative—is all the more important because alcohol and drugs can dissipate quickly from the body and employees may be able to dilute their drug and alcohol testing samples to levels that are below laboratory cutoffs by consuming water. If an employer is forced to wait while an employee secures the physical presence of a union representative for the employee’s reasonable suspicion drug or alcohol test, the employer should ensure that the employee is kept under observation and that his or her water or adulterant consumption is monitored.

In the Manhattan Beer Distributors case, the employer allowed the employee to leave the office to contact his union representative and offered to allow the employee to drive himself to the drug testing lab. Both decisions allowed the potentially intoxicated employee an opportunity to drink water or defraud the drug test. Of course, allowing a potentially intoxicated employee to drive to a drug lab also creates a safety concern.

Note that if an employer cannot secure a union representative or cannot reasonably and lawfully prevent the employee from access to water, the employer is free to take disciplinary action without a drug or alcohol test. As the NLRB stated,

where an employee requests union representation before participating in a disciplinary investigation [such as a drug or alcohol test], the employer has three clearly established options:  (1) grant the employee’s request; (2) give the employee the option of proceeding without representation; or (3) discontinue the interview and make a disciplinary decision based on the information it has available.

In this case, the employer would have been better off either allowing the employee a reasonable time to secure union representation (while preventing him from diluting or adulterating his sample) or taking action against the employee for his signs of intoxication alone rather than requiring the employee submit to the drug test without union representation.

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October 05, 2015

NLRB: 1st Circuit Court sets high bar to overturn a union election

By Meghan E. Siket

Massachusetts employment law under settled National Labor Relations Board (NLRB) precedent, statements of employees who are not agents of a union and do not act at the union’s behest require the setting aside of a union election only if they created an atmosphere of fear and coercion that made free choice impossible.

The U.S. Court of Appeals for the 1st Circuit (which covers Maine, Massachusetts, New Hampshire, and Rhode Island) recently held that a Merry Maids franchise failed to meet that high standard when challenging a union election.

NLRB: Employer’s objection to election is garbage

Le Fort Enterprises, Inc., does business as a Merry Maids franchise and provides cleaning services primarily to homeowners in and around Boston. The company employs 29 housekeepers, and some of the housekeepers decided to unionize.

The NLRB conducted a secret-ballot election, and by a 16-12 vote (with one challenged ballot), the employees voted to unionize. Le Fort challenged the result based on intimidation that allegedly occurred during the election.

Le Fort’s challenge to the election was based on allegations that some employees made remarks to workers entering or leaving a foyer near the voting location. The company alleged:

  • Four employees were told (or overheard others saying) that whoever did not vote for the union would be dismissed (e.g., “whoever doesn’t vote for the union is going to be thrown out”).
  • A few employees were told, “We’re counting on your vote,” “We need you on our side,” or “You know how you’re going to vote.”
  • An employee overheard workers in the foyer making derogatory remarks about managers and employees who opposed the union.

The NLRB rejected the challenge and certified the union. The hearing officer—and eventually the NLRB—found that the conduct did not require setting aside the election results. On appeal, Le Fort argued that the comments, viewed collectively, warranted setting aside the election results.

Le Fort refused to bargain with the union, resulting in an unfair labor practices charge and an NLRB order directing the employer to bargain. The Board then petitioned the 1st Circuit to enforce its unfair labor practice order.

Employer must prove atmosphere of fear

First, the 1st Circuit laid out the applicable standard an employer must meet to set aside election results based on conduct by workers who are not agents of and do not act at the behest of the union. An employer must establish that the “misconduct was so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible.”

The court considered five factors in determining whether the employees’ threat created such an atmosphere:

  1. The nature of the threat;
  2. Whether the threat encompassed the entire bargaining unit;
  3. The extent of the threat’s dissemination;
  4. Whether the person who made the threat was capable of carrying it out and whether employees likely acted in fear because of his capability of carrying out the threat; and
  5. Whether the threat occurred at or near the time of the election.

Appellate court: Comments were ‘relatively mild’

The court of appeals found that Le Fort did not meet the standard for setting aside the election, rejected the employer’s objections to the election, and granted the NLRB’s request to enforce its unfair labor practice order.

The court held that the rank-and-file employees who made the threats that the union would cause employees who did not vote for it to be fired were not credible because they did not have the authority to carry out terminations.

The court held that the “we’re counting on your vote” comments and employees speaking out against management and workers who did not support the union were “relatively mild rah-rah electioneering” that did not interfere with voters’ free choice.

The court stated, “A certain measure of bad feeling and even hostile behavior is probably inevitable in any hotly contested election.” According to the court, the NLRB was not compelled to find that the employees’ conduct precluded a fair election. NLRB v. Le Fort Enters., 791 F.3d 207 (1st Cir., 2015).

Bottom line

This decision makes clear that employees are given a lot of leeway in what they say to persuade coworkers to vote for a union, including providing false and misleading information (for example, that workers will be discharged if they do not vote for the union).

One of the best ways to combat this issue is to get out in front of misinformation during a union campaign and ensure that employees are well-informed regarding your position on unionization before the election.

Employers must be prepared to take immediate and effective action in response to union-organizing activity, employee discontent, or the receipt of a union election petition. Once a union campaign begins, union representatives likely will meet with employees to discuss workplace issues and communicate their message.

Once you are on notice of union activity, you should be ready to communicate your antiunion message to employees. As long as supervisors avoid threatening or interrogating employees, promising them benefits, or spying on them because of their union views, they are free to act on behalf of management during a union campaign.

Thus, frontline supervisors should educate employees about the arguments for and against unionization. In addition, employers should communicate with employees directly via letters, e-mail, and meetings with leadership to explain the advantages and disadvantages of becoming a union member.

Meghan E. Siket (msiket@whelankindersiket.com) is a Partner at Whelan, Kinder & Siket LLP and an editor of Rhode Island Employment Law Letter.

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NLRB: successor employer determination must be made when buyer takes control of business

David S. Birnbaum, Brian W. Easley and Alice V. Brathwaite

USA October 1 2015

The National Labor Relations Board’s (“NLRB” or “Board”) successorship doctrine obligates a purchaser/new employer in an asset transaction to recognize and bargain with the union representing a seller’s employees if the new employer: (i) continues its predecessor’s business in substantially unchanged form, and (ii) hires predecessor employees as a majority of its post-closing workforce. GVS Properties, LLC, 362 NLRB No. 194 (Aug. 27, 2015); NLRB v. Burns Int’l Security Servs., 406 U.S. 272 (1972). However, a new employer will not be required to abide by its predecessor’s collective bargaining agreement if it makes clear to the union and the employees, either prior to, or at the time of, offering employment to seller’s employees, that it does not intend to be bound by the existing collective bargaining agreement. Under these circumstances, new employers may establish initial terms and conditions of employment that differ from the existing collective bargaining agreement and then bargain with the union for a new agreement. See Burns, 406 U.S. at 273.

In GVS Properties, LLC, a New York City ordinance required a new building owner and employer to retain its predecessor’s building service employees for 90 days after closing. The Board found that GVS was a successor employer because it made a “conscious decision” to purchase and manage the buildings with knowledge of the legal requirement that it must retain the employees for 90 days after closing. As a successor, the Board found that GVS had a duty to recognize and bargain with the union.

A Board majority rejected the argument that successor status should be determined after the statutorily-required, 90-day retention period expired. GVS lawfully terminated some of its predecessor’s employees after the 90-day retention period and at that time its workforce was not comprised of a majority of the predecessor’s employees. If the successorship determination were made at the end of the 90 days, GVS would not have been required to recognize or bargain with the union. Instead, the Board found that whether GVS maintained a sufficient continuity of workforce to become a successor should be determined at the time it “assume[d] control over the predecessor’s business and hire[d] the predecessor’s employees.” 362 NLRB No. 194, at 1. Therefore, the Board held that GVS violated Sections 8(a)(5) and (1) of the NLRA by refusing to bargain with the union representing its predecessor’s employees during the employee retention period mandated by local law. The Board found the fact that the buyer was required by law to retain seller’s employees was immaterial to the successorship determination.

Rejecting the dissenting Board member’s argument that the conscious decision to purchase real estate should not be conflated with the separate decision to retain a majority of seller’s workforce, the two-member majority held that GVS made a “conscious decision to … hire a majority of its employees from [its] predecessor,” because it acted with “actual or constructive knowledge” that local law required it to do so. The Board found that: “[W]here, as here, the decision to purchase a business inevitably leads to a requirement that employees be retained for a certain period of time, those decisions are in effect one and the same.” Id. at 3 n.13.

The Board majority also dismissed the notion that its broad holding may expose local retention statutes to preemption challenges, noting that such possibilities did not provide a “sufficient reason … to carve out a special exception in our successorship jurisprudence.” Id. at 7.

In reaching its decision, the Board relied on longstanding precedent holding that buyer-imposed employee probationary periods do not affect a successorship determination and that such determinations should be made prior to the end of the probationary period. Similarly, it cited to cases in which the buyer was contractually obligated to retain seller’s employees for a certain period of time after closing. The Board concluded that this case presented “no reason to depart from [its] precedent concerning probationary periods and compelled retention simply because the probationary period and the employee retention itself was required by a worker retention statute, rather than by the employer alone or by contract.” Id. at 5.

On September 2, 2015, GVS petitioned the United States Court of Appeals for the District of Columbia for review of the Board’s decision.

The GVS Properties decision should put potential buyers in asset transactions on alert regarding the potential of becoming a successor employer as well as an obligation to assume a predecessor’s collective bargaining agreement—both when there is a local law or contract requiring employee retention after closing, and when there is not. Based on the Board’s decision, buyers in an asset purchase should assume that they will become a successor at the time the transaction closes if a majority of their workforce at that time is comprised of its predecessor’s employees (regardless of whether the buyer was required to hire its predecessor’s employees by statute or contract). In stock transactions, the employing entity typically remains the same and the collective bargaining agreement will remain in effect between the existing signatories making a successorship analysis in that context unnecessary.

If a buyer is a successor, i.e., it has an obligation to recognize and bargain with the union representing the predecessor’s employees, it should always make clear to the applicable union and the employees prior to the time, or at the time, it makes offers of employment whether it intends to be bound by the predecessor’s collective bargaining agreement. If a buyer misleads the union or the employees into believing they will be retained under the same terms and conditions of employment, the buyer will be required to assume the existing collective bargaining agreement and will lose its right as a successor to set its own initial terms and conditions of employment.

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