Union Bailout Update

by | Aug 25, 2016 | News

Decertification activities are one of the most tricky business maneuvers to pull off properly. The employees risk the wrath of the union, while the employer risks the wrath of the NLRB, and can’t initiate or provide aid other than to answer questions the employees may ask about the logistics and timing of the process. A turn of phrase can make or break the effort. Case in point: a recent decertification petition was overturned this month due to a simple slip up by a couple of supervisors. The pair asked the employees how many signatures they had acquired on their petition, and upon hearing the answer, told the employees to “go out and get more signatures” instead of just providing the facts about what percentage of employees must sign the petition to make it valid. Purchasing a business with unionized employees just became a bit more complex, as the NLRB went out of its way to redefine how a “perfectly clear successor” is determined, limiting the ability of the purchaser to make changes to the terms and conditions of the employees. If this is an area that interests you, be sure to read this article for the details. The board continues to chip away at noncompete agreements. In its recent Minteq International, Inc., decision, the board General Counsel found that two common provisions in an agreement interfered with employees’ rights in violation of Section 8(a)(1) of the NLRA. If you use noncompetes, be sure to read the details. As reinforced in the preceding paragraph, the NLRB currently interprets the law to suit its pro-labor agenda. An additional case regarding management-rights clauses reiterates this tendency. The board latched onto the phrase “required specificity” to rule in Graymont PA, Inc. that the company committed an unfair labor practice when it instituted new policies without bargaining with the union. Operating under the assumption that it had the unilateral right to do so via its management-rights clause, the company even sat down with the union to discuss the policies (after notifying the union it was not obligated to do so), and made several union-suggested changes before implementation. However, after implemented, the union filed a complaint, which the board upheld. In a footnote to the decision, the Board dismissed any claim that the “right to adopt and enforce rules,” reserved by the employer in the management-rights clause, had the required specificity to establish a clear and unmistakable waiver by the union.

New York Mayor De Blasio

New York Mayor De Blasio

The attack against mandatory class action waivers just received another blow, this time from the 9th Circuit. The first such appeals court ruling could have been seen as an anomaly (the 7th Circuit), but 9th Circuit covers a vast territory (California, Washington, Arizona, Nevada, Oregon, Hawaii, Idaho, Montana, and Alaska) and could indicate momentum against such waivers. The usurpation of proper legislative authority by “executive order” comes not only at the pen of the President, but by lesser potentates as well. New York mayor Bill De Blasio signed an order forcing neutrality agreements on any retailers and food service employers participating in “city development projects.”  The mayor is basically telling these employers, if you want to do business here, leave your First Amendment rights at the door.

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