The NLRB is inching towards Weingarten Rights for all employees

In NLRB v. J. Weingarten, Inc., the U.S. Supreme Court held that employees covered by a collective bargaining agreement are entitled to request the presence of a union representative during an investigatory interview that the employee reasonably believes may result in disciplinary action. 

In the 47 years post-Weingarten, however, the Board has vacillated on the issue of whether those rights also extend to non-union employees. For example, in 2000, in Epilepsy Foundation of Northeast Ohio, the Clinton-era Board found that employees in non-union settings have Weingarten rights to a coworker representative during investigatory interviews. More recently, however, the Bush-era Board, in IBM Corp., concluded the exact opposite, that, in light of certain policy considerations, the Board would no longer find that employees in non-union workplaces have the right to a coworker representative. Finally, in 2017, an Obama-era Board Advice Memo called for the Board to flip again and hold Weingarten rights extend to employees in non-union workplaces.

Which brings us to last week's Board decision in Troy Grove. 

Like herpes, the NLRB’s efforts to liberalize its joint employer standard just won’t go away

Joint employment under the NLRA has a tortured history over the past seven years. 

Yesterday, the NLRB released a Notice of Proposed Rulemaking (NPRM) to rewrite the standard for determining joint-employer status under the National Labor Relations Act.

Under the current joint employer standard — to which the NLRB adhered until the Browning-Ferris decision in Aug. 2015, and to which it formally reverted in Apr. 2020 — one employer is only a joint employer with another employer if it possesses and exercises "substantial direct and immediate control" over the terms and conditions of employment of another employer's employees.

Joint employment matters … a lot … because if you're a joint employer over the employees of another employer you are jointly and severally liable for the legal wrongs committed by the primary employer. Under the NLRA you also would share collective bargaining responsibility.

Checking the pulse of the American worker on labor unions as we enter Labor Day Weekend

The following stats should be eye-opening for any business owner, CEO, or board of directors.

• 71 percent of Americans "approve" of labor unions, the highest reported approval rating since 1965.
• 70 percent of non-union employees say that they would consider joining a union, up 141% in just three years.
• Unions win approximately 75 percent of all representation elections.

What does all of these stats mean? If a union organizer starts talking to your employees about unionizing, the odds are high that your business will end up unionized. 

Pizza shop closure is a teachable lesson on union avoidance

We are truly heartbroken to announce that we've made the difficult decision to permanently close both Knead Slice Shop and Knead Market effective immediately (August 23, 2022), regardless of the outcome or the occurrence of the requested union election.

We respect the right of workers to organize under the National Labor Relations Act or other appropriate laws. We hope our workers will recognize our related right as an employer, especially a small employer, during these extremely difficult operational times, to close our entire business operation.

We continue to wish our employees well. 

That's what a pizza shop posted to its Instagram last week, announcing its decision to shutter all of its operations, permanently.

NLRB re-writes law on employees displaying union logos at work

Tesla's General Assembly plant maintained the following dress code: "It is mandatory that all Production Associates and Leads wear the assigned team wear." For production associates, "team wear" consists of a black cotton shirt with the Tesla's logo and black cotton pants with no buttons, rivets, or exposed zippers, all which Tesla provides.

In the Spring of 2017, however, certain production associates started wearing black t-shirts with the phrase, "Driving a Fair Future at Tesla," along with the logo for the United Auto Workers.

Tesla banned the UAW shirts under its "Team Wear" policy, claiming that the ban limited the risk of alternative clothing damaging vehicles on the production line and made it easier to keep track of employees on the shop floor.

In a split 3-2 decision, the NLRB held that Tesla unlawfully prohibited its employees from wearing shirts with the UAW's logo. 

Consistency matters when applying anti-harassment rules

Can an employer legally fire an employee who writes "whore board" on an overtime sign-up sheet? Let's explore.

Following unsuccessful negotiations for a new union contract, Constellium unilaterally implemented a new overtime policy that required employees to sign up for overtime on a sheet posted on a bulletin board outside the lunchroom.

Employees were not happy about the new policy. Those who opposed it began calling the overtime sign-up sheet a "whore board," as they believed that those who used it to sign up for overtime were selling out their union. "Whore board" quickly became common slang in the workplace (even among supervisors). There was no evidence that Constellium disciplined anyone for saying the vulgarity.

One employee, Jack Williams, went a step further. He wrote "whore board" on the sign-up sheet. Constellium then fired him for "willfully and deliberately engaging in insulting and harassing conduct."

Employee too distraught to work over Dobbs decision loses job

I haven't been shy about hiding my disgust over Dobbs, the end of constitutional protections for abortion, and the threat to reproductive, women's and other fundamental rights that our nation currently faces. 

Michael Lopez was also disgusted; so disgusted, in fact, that he couldn't even work. Lopez was a production coordinator at Universal Music Enterprises, whose job included processing a weekly Friday report of upcoming releases. Except the Friday that the Supreme Court released Dobbs, Lopez was too upset to do his job. Instead, he sent the following email to his co-workers:

Does craft beer have a labor problem?

Does craft beer have a labor problem? Julie Rhodes, writing at PorchDrinking, sure thinks so. 

She cites low wages and labor conditions as the two main drivers of her conclusion. 

Accountability starts at the top, even for the NFL

NFL disciplinary officer Sue L. Robinson has suspended Deshaun Watson for six games for his violation of the league's personal conduct policy based on allegations by four masseuses that he solicited prostitution by paying for sex acts.

Some see six games as a slap on the wrist. I don't, at least in the environment that bound Judge Robinson and her ruling.

While I don't in any way condone Watson's misconduct, the NFL would place itself in serious legal jeopardy by imposing a suspension that encourages Watson or his union to litigate.

Don’t be mad at Watson for getting off light; be mad at the NFL for its long history of giving white male owners a free pass for their own sexual misconduct. The league created the legal environment that let Watson (a Black player) off.

NLRB dismisses charges against lawyers for alleged “union busting” against the employees of its client … but let’s not celebrate yet

One law firm has been at the center of most of the recent high-profile anti-union organizing efforts in large multi-state employers such as Starbucks, Apple, and Trader Joe's — Littler Mendelson. The Service Employees International Union filed an unfair labor practice charge against that law firm and its responsible attorneys alleging that they violated the National Labor Relations Act by illegally polling Starbucks' employees about their support for the union. 

Thankfully, the NLRB has now dismissed that charge.

Have you listened to Labor Relatedly yet?

Over the past few years, I've toyed with the idea of launching my own legal podcast. Two things have held me back. First, I don't really want to add another "thing" for me to manage. Secondly, other people ask me to guest on their podcasts and I feel like I'm getting enough bang for the podcasting buck that the added time of recording and producing my own show wouldn't justify any additional return.

Thus, I jumped at the chance when my friend Michael VanDervort asked if I wanted to join his existing podcast, DriveThruHR, as a recurring co-host to discuss all things labor relations in light of current and historic rise in union organizing. 

Apple becomes the latest national retailer to succumb to the union wave

Workers at the Towson, Maryland, Apple Store made history by becoming the first such store to vote to unionize. It wasn't close, with 65 "yes" votes and 33 "no" votes (12 eligible employees failed to cast a vote). Apple joins Starbucks, Amazon, and REI as major national retailers bit by the union bug, with petitions pending a myriad more Starbucks outposts, other Amazon facilities and Apple Stores, and other retailers such Trader Joe's and Target. In other words, the union wave is becoming a tsunami.

If you're wondering what's fueling this historic drive to organize, the Department of Labor thinks it has some answers.

The DOL believes it all comes down to employees demanding a voice.

Making threats vs. stating facts during union organizing

"Just know that if you unionize, when you are negotiating your benefits, you could gain, you could lose, or you could stay the same."

This is what Neha Cremin, a transgender and pro-union Starbucks worker, claims her manager told her. She alleges in her unfair labor practice charge with the National Labor Relations Board that the statement was an anti-union threat. How? 

1/ The company's health insurance covers gender reassignment surgery (include travel expenses) and other gender-affirming procedures such as hair transplants or breast reduction.

2/ Cremin's manager knew that she had previously used those benefits. 

3/ Therefore, mentioning the possibility of losing benefits during collective bargaining was a threat to take away trans health benefits after a union victory.

The manager's statement was not unlawful under the National Labor Relations Act, no matter how Cremin interpreted it or is attempting to spin it in her unfair labor practice charge.

Can you legally close a facility in response to unionization?

Almost two months to the day that workers at the College Ave. Starbucks location in Ithaca, New York, voted to unionize, the coffee conglomerate announced its intent to close the store on June 10. Employees claim that the closure was in retaliation for unionization and a post-vote wildcat strike over an overflowed grease trap.

In a tweet, Starbucks stated that the decision to close that store was not "easy" and that it was based on "many factors." The store's workers allege in an NLRB unfair labor practice charge that the only "factor" is illegal retaliation.

Do the employees have an argument? Can a company close a facility in response to unionization? Not surprisingly, it depends.

Surveilling your employee’s online activity to out union supporters is illegal … like, really, really illegal

Elon Musk. The name itself evokes a visceral reaction. Electric car visionary. Astronaut wannabe. Opponent of remote work. Potential Twitter owner. Failed SNL host. 

And, according to CNBC, Musk is also a spy, illegally surveilling his employees' online activities during a 2017 and 2018 union organizing drive at one of Tesla's factories.

Do you know? Unfair labor practice strikes

Workers who recently organized a Peoria, Illinois, Starbucks walked off the job on a recent Saturday in protest of alleged unfair labor practice committed by their employer at the store. The strike lasted a half-day and there are reports of similar strikes at other stores around the country.

Week.com quotes one employee on the picket line, Jon Gill, "Starbucks is breaking the law. Starbucks is retaliating against us, and if we do not organize ourselves to fight back, then we are showing Starbucks that we are allowing them to break the law."

Union yes? Employees, be careful what you wish for.

On Jan. 7, Great Lakes Coffee Roasting in Detroit temporarily closed following a Covid outbreak that sidelined nine employees. It never reopened, and now it's closed permanently.

What happened? A labor union happened.

Explaining the “Golden Age of Union Organizing”

Unions aren't just having a moment, they are having their best moment in at least 50 years.

• What has caused the "perfect storm" of union organizing that employers are currently experiencing?
• How have the White House's policies impacted unionization and collective bargaining?
• What explains the trend of smaller, "in-house" unions, such as those seen at Starbucks and Amazon?
• How should employers assess their labor strategies in response to these changes?

This week, I joined the ProjectHR Podcast to discuss The Golden Age of Union Organizing, the forces that are helping to cause it, and how employers should be responding and reacting.

Here's a preview of what you'll hear in the episode.

You can listen to the entire episode here, or wherever you get your podcasts.

Federal court holds that the NLRB doesn’t have a sense of humor

On June 6, 2019, unionized employees of Vox Media, a left-leaning digital media company, walked off the job during union contract negotiations. That same day, Ben Domenech, executive officer of FDRLST Media and publisher of The Federalist (which is the direct opposite of left-leaning), posted this tweet from his personal Twitter account: "FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine."

Following the filing of an unfair labor practice charge by someone with absolutely no relationship with FDRLST Media (employment or otherwise), the NLRB concluded that Domenech's tweet violated employees' rights to unionize or otherwise engage in protected concerted activity, agreeing with the administrative law judge that the tweet was an "obvious threat" that "working conditions would worsen or employee benefits would be jeopardized if employees attempted to unionize." 

Do we need labor unions anymore?

When I challenge the continued viability of labor unions and the lack of benefits they offer to or confer upon 21st century employees, this is the refrain I often hear.

Minimum wage ✔️
Overtime ✔️
OSHA ✔️  
Child labor protections ✔️
Anti-discrimination laws ✔️ 
ERISA ✔️

None of those laws, I'm told, would exist without the historic efforts put forth by labor unions. 

You know what? That statement is 100 percent correct. Labor unions played a huge role in the passage of the FLSA, OSHA, ERISA, and Title VII, each of which granted a wealth of new rights and protections to employees.

They also help render labor unions irrelevant.