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The Dawn of "Micro-Unions": A Scary Proposition for Employers

Executive Summary: Unions can be difficult enough to manage, even for experienced employers. Imagine taking your workforce of 100 employees and dividing them up into 10 different collective bargaining units… represented by 10 different unions… and 10 different collective bargaining agreements… with 10 different effective dates. Sound like an administrative nightmare? Welcome to the brave new world of "micro-unions." Recent National Labor Relations Board (NLRB) decisions have legitimized the use of such micro bargaining units and, by so doing, have thrust unparalleled confusion into the already murky waters of collective bargaining. This article discusses how the concept of micro-unions came about and how employers can best prepare and protect themselves from having micro-unions form in their workplaces.

Avoid Making Your Business “Easy-to-Unionize”

Last year, the National Labor Relations Board (“Board”) put its stamp of approval on “micro-units,” or small groups of employees who may unionize. The Board recently decided two cases involving micro-units in Macy’s and Bergdorf Goodman, which should make employers ask themselves, “Does my business model make it easier for a union to organize my employees?”

Buyer Beware – Continuing Its Controversial Changes, NLRB Increases the Price Tag of a Successor's Unlawful Failure to Hire Its Predecessor's Employees

On September 30, 2014, the National Labor Relations Board overruled established precedent once again. The Board’s decision enhanced the liability to which a successor employer is exposed when it fails to hire employees of its predecessor to avoid recognizing their union representative. In Pressroom Cleaners Inc., Decision and Order, Case No. 34-CA-071823 (Sept. 30, 2014), the Board held a successor found guilty of such a scheme, in addition to being required to recognize and bargain with the union, had to: (1) restore the “status quo” by putting in place the employment terms of its predecessor, i.e., those spelled out in their old labor agreement, until it bargained to an agreement or impasse with the union; and (2) pay the employees it unlawfully failed to hire back pay and benefits under the monetary terms under which they worked for the predecessor.

Buyer Beware – Continuing Its Controversial Changes, NLRB Increases the Price Tag of a Successor's Unlawful Failure to Hire Its Predecessor's Employees

On September 30, 2014, the National Labor Relations Board overruled established precedent once again. The Board’s decision enhanced the liability to which a successor employer is exposed when it fails to hire employees of its predecessor to avoid recognizing their union representative. In Pressroom Cleaners Inc., Decision and Order, Case No. 34-CA-071823 (Sept. 30, 2014), the Board held a successor found guilty of such a scheme, in addition to being required to recognize and bargain with the union, had to: (1) restore the “status quo” by putting in place the employment terms of its predecessor, i.e., those spelled out in their old labor agreement, until it bargained to an agreement or impasse with the union; and (2) pay the employees it unlawfully failed to hire back pay and benefits under the monetary terms under which they worked for the predecessor.

Board Holds off on Major E-mail Use Pronouncement . . . For Now

In its long-awaited Purple Communications decision, on September 24, 2014, the NLRB reserved judgment on the most anticipated issue in the case: the legality of the employer’s electronic communications policy prohibiting use of e-mail for any nonbusiness reason, and the continuing validity of the NLRB’s 2007 Register Guard decision. The Board had previously invited briefing from both the parties and amicus regarding whether to overrule or modify Register Guard, and it was anticipated the Board would address that issue in the Purple Communications decision.

NLRB Declines to Revisit Employee Use of Company Email Systems . . .

Under current National Labor Relations Board (NLRB) law, employees do not have a statutory right to use their employers’ email systems for union organizing or for other purposes. Email systems remain employer property for now, as the Board, in Purple Communications, Inc., 361 NLRB No. 43 (2014), declined the NLRB’s General Counsel’s invitation to overrule Register Guard, 351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). But, in continuation of a troubling trend, the Board in Purple found yet another employer work rule—a “no disruption” rule—to be unlawful, resulting in an employer’s election victory being overturned and a new election being ordered.

NLRB Sidesteps Register-Guard; Still Orders New Elections in Purple Communications

Late last week, the NLRB issued its highly anticipated decision in Purple Communications, 21-CA-095151, which many NLRB observers believed would re-visit whether or not employers may prohibit their employees from using company equipment, especially e-mail, for non-business purposes. The Board saved that issue for another day, but its ruling still provides important lessons to employers.

Labor Board Declines to Overrule Favorable Union Beck Notice Precedent

A union fulfilled its “Beck” notice obligations to a new employee even though it failed to disclose the “reduced fees and dues” for which the employee would be responsible by refusing to become a member under a union security clause at the same time it first informed the employee of his obligations under the clause, the National Labor Relations Board has ruled. United Food & Commercial Workers Local 700, 361 NLRB No. 39 (Sept. 10, 2014). In a 3-2 decision, the Board dismissed the NLRB General Counsel’s complaint against the union.

Back To Basics: A Divided Seventh Circuit Upholds Indiana’s “Right To Work” Law

In 2012, Indiana enacted the “Indiana Right to Work Act”, prohibiting unions from requiring an individual, as a condition of employment, to 1) become or remain a member of a labor organization; 2) pay dues, fees, assessments, or other charges of any kind or amount to a labor organization; or 3) pay to a charity or third party an amount equivalent to or a pro-rate part of dues, fees, assessments or other charges required of members of a labor organization. Indiana thus became one of 24 states with some version of a right to work law on the books.

Senators Introduce NLRB Reform Act to Reduce Partisanship at the Board

On September 16, 2014, Senate Republican Leader Mitch McConnell (R-KY) and Senator Lamar Alexander (R-TN) introduced the National Labor Relations Board Reform Act. In a press release, Sen. McConnell said, “it’s past time to restore the NLRB to its proper role as umpire, instead of advocate for the Right or Left.” Co-sponsor Alexander said, “The board is too partisan, swinging from one side to the other with each new administration . . . It's time for the board to restore stability to our nation's workplaces, with nonpartisan decisions made more quickly, assisted by a neutral general counsel.”