|
|
|
COMMON SENSE SOLUTIONS
FOR
YOUR CHANGING WORKPLACE
|
LABOR RELATIONS LAW QUIZ- ANSWERS
|
|
1. In response to active union organizing, it is a "best practice" and lawful for an employer to quickly develop and implement an effective "NO SOLICITATION/NO DISTRIBUTION POLICY".
FALSE
. It is a serious mistake to wait until there is active union organizing. The NLRB has followed a long standing principle that introducing a NO SOLICIATION/NO DISTRIBUTION POLICY in response to active union organizing, even if it is carefully and otherwise lawfully written, is PER SE UNLAWFUL. This means that the simple act of introducing such a policy in response to active organizing is an unfair labor practice. As a result it is important, and completely lawful to put such a policy into place BEFORE organizing starts in your workplace.
2. Supervisors and managers can tell employees that the employer will shut down its operations if a union gets into the company.
FALSE
. It is unlawful to threaten employees with adverse consequence if a union 'gets into' the company. Supervisors and managers do have the right under section 8(c) of the National Labor Relations Act to state their "views, opinions and arguments" regarding unionization so long as those statements do not contain threats or promises and employees are not interrogated. Supervisors and managers can explain how unionization can result in costly strikes and counter-productive bargaining results which might threaten continued viability of the company's operation at that location.
3. A company that has a collective bargaining contract need not bargain with the union before it moves bargaining unit work to another location during the term of the contract.
FALSE
. In such a situation a company must at least bargain the effects of the decision to move the bargaining unit work. This would include such issues as whether or not employees are due severance pay or should be transferred to the new work location. The company might also be obligated to bargain the decision as to whether the work should be moved. This is often a tough judgment to make as it is necessary to closely examine the nature of the decision involved in light of the NLRB's Fibreboard and Dubuque Packing principles. Because a mistake on this point can be very costly, it is often a good idea to offer to discuss the work relocation decision.
4. A company that has a collective bargaining contract need not bargain with the union before it shuts down its operations during the term of the contract.
FALSE
. Again it always necessary to bargain the effects of such a decision. And again, it may be necessary to bargain the decision to close down the operation.
5. A company that has a collective bargaining contract need not bargain with the union before it implements a drug testing policy.
FALSE
. A company must bargain this issue with the union UNLESS the contract contains a clear and unmistakable waiver by the union of its right to bargain over this particular issue. A general management rights clause, even combined with a zipper clause will not suffice to eliminate the duty to bargain over this issue.
6. A company can prohibit employees from using its email system to solicit other employees to join a union.
FALSE
. As a general statement this was TRUE just about two years ago----until the NLRB decided Purple Communications in 2014 which held that if an employer gives an employee access to its email system to communicate with other employees, then it must also allow the employees to communicate about union activities and other matters of mutual interest during, at the very least, non-working time. Many issues remain to be decided with regard to this revolutionary new principle including whether the NLRB will now overturn it under the new Administration, the courts will affirm it and whether it extends to communications made by the employee on non-working time to employees who are on working time. Be on the lookout for decisions on this point......we will certainly keep an eye on it in the MMM.
7. If a union representative comes to a company with union authorization cards signed by all of the employees that work at the company and demands to be recognized, that company must recognize and bargain with the union within 30 days.
FALSE
. It has long been the law, as approved by the US Supreme Court, that employers can refuse to "recognize" the union making such a demand, and request that the NLRB conduct a secret ballot election to decide whether the union is by a majority of the employees in the petitioned-for unit. Congress nearly passed the Employee Free Choice Act (EFCA) in 2009 which would have changed this landmark principle. It is important to train managers and supervisors not to look at such cards if presented and to say or do nothing which would lead to the conclusion that the company has recognized the union without an election.
8. A company that has a collective bargaining contract need not bargain with the union before it starts video taping workplace activities.
FALSE
. A company must bargain this issue with the union UNLESS the contract contains a clear and unmistakable waiver by the union of its right to bargain over this particular issue. A general management rights clause, even combined with a zipper clause will not suffice to eliminate the duty to bargain over this issue.
9. Supervisors are prohibited from expressing their views, opinions and arguments about unions in the workplace as this is considered interference with protected concerted activity or unlawful harassment.
FALSE
. Supervisors and managers do have the right under section 8(c) of the National Labor Relations Act to state their "views, opinions and arguments" regarding unionization so long as those statements do not contain threats or promises and employees are not interrogated. Supervisors and managers can explain how unionization can result in costly strikes and counter-productive bargaining results which might threaten continued viability of the company's operation at that location.
10. Supervisors must not make promises or grant benefits in an effort to thwart union organizing at their company.
TRUE
.
Just as it is unlawful to threaten employees with adverse consequence if a union 'gets into' the company, it unlawful to promise or grant employees benefits to thwart union organizing. This is deemed inherently "coercive' as it is analogized to a 'fist inside a velvet glove'.
Labor Relations law mistakes can be very costly. Employers moving operations, for example, without properly bargaining with the union representing workers at the affected operation, have actually been ordered to return the work to the original location and make the affected employees whole. Please remember that Labor law advice is a call or email away at PSB!
|
YOUR ANTI-HARASSMENT NEW YEAR'S RESOLUTION (Part VII)
|
|
After you have completed your investigative report, you will need to meet with the alleged victim and alleged harasser. Do so promptly. Meet with the alleged victim separately, with a witness, and advise him or her of the conclusions of fact, and the actions that will be taken. Take notes and document this meeting. Reemphasize the Employer's policy against harassment, and urge the employee to come forward if he or she experiences more harassment, or retaliation.
Next, meet with the alleged harasser, separately, with a witness. Inform the alleged harasser of the conclusions you have made based upon the evidence, and the actions that will be taken to remedy the situation, including the discipline, if any, to be imposed. If the harasser is not being terminated, reemphasize the Employer's policy against harassment, and warn the harasser of the consequences of future violations. Document the meeting and actions taken.
Continue to monitor the victim for at least two months to make sure there are no other incidents of harassment or retaliation. Make sure these follow-up meetings are documented and put in the investigative file.
#MeToo has raised sexual harassment to the forefront of prime time conversation. But remember, harassment based on any protected characteristic (race, religion, etc.) is unlawful. Also, conduct a fair, impartial, and legal investigation. Do not engage in unlawful investigative practices that violate the alleged harasser's rights. Make sure you enforce your harassment policy in a non-discriminatory fashion, fairly and even-handedly. Polygraph tests are unlawful for all practical purposes and should never be used. Do not force an individual to submit to an investigative interview after the individual refuses the interview. You will end up on the wrong end of a false imprisonment claim. Only discuss the investigation with those that have a need to know, in order to avoid defamation claims.
Call our Firm if you have problems and need help. Happy New Year.
|
DOES YOUR HR DEPARTMENT NEED HELP?
|
|
With open enrollment and lots of year end projects in human resources, don't forget about our sister company PSB Consulting which can assist with all your Human Resources needs and projects such as open enrollment and year end tasks.
For more information:
www.psb-consulting.com
or contact Lisa at lisa@psb-consulting.com
|
|
|
|  PAUTSCH, SPOGNARDI & BAIOCCHI LEGAL GROUP is a law firm dedicated to finding common sense, affordable solutions for businesses to labor, employment, human resource and general business needs. With over 75 combined years of experience among its 3 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues. And as litigators, who combined have over thousands of trials "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner.
For more information on the firm, please go to our website at www.psb-attorneys.com or Lisa at lab@psb-attorneys.com |
|
|
|
|
