Developments In Labor Law Outline. b. Interesting statistical analysis since the Final Rule s effect

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1 Developments In Labor Law Outline I. Recent NLRB Focus A. Election Procedures 1 a. Changes Effective April 15, 2015, the NLRB adopted a 733-page final rule that significantly changed the Boards union election procedures and eliminated many steps that employers have previously relied on to protect their rights and the rights of employees who may not want to unionize. b. Interesting statistical analysis since the Final Rule s effect The Wall Street Journal analyzed data to determine whether the new election procedures have actually created quicker election time. More specifically, the data and reports analyzed the medium number of days between the filing of a representations petition and the day on which employees vote. The conclusion was that the amount of days has fallen to twenty-three (23) days in uncontested elections where the employer and union stipulated to the terms for the vote, and twenty-five (25) days in the twenty (20) contested cases in which the election was directed by the Board after a hearing. In comparison, during the Boards 2014 fiscal year, the last full year before the new rules took effect; the medium time was thirty-eight (38) days for all elections and fifty-nine (59) days in contested elections B. Amended Electronic Signatures Stems From New Voting Procedures 2 Unions no longer will need to gather employees signatures on authorization cards before they can file a petition with the NLRB for a representation election. NLRB General Counsel has issued Memorandum announcing that effective immediately unions filing petitions will be allowed to submit and the Board will accept electronic signatures in support of a showing of interest if the Board s traditional evidentiary standards are satisfied. C. Increased Employee Handbook and Work Rules Scrutiny

2 On March 18, 2015, the NLRB issued Memorandum GC providing guidance regarding the legality of employer work rules. The Memorandum does not, in and of itself, represent a change in the law. Instead, the Memorandum was published to provide guidance on the NLRB s views on evolving labor law. One of the Memorandum s objectives is it will help employers to review their handbooks and other rules, and conform them, if necessary, to ensure they are lawful." D. Company Use For Union Organizing The National Labor Relations Board has found that employees have the right, during nonworking time, to use company systems for union organizing and other activity protected under the NLRA. In the NLRB s Purple Communications 5 decision, the Board overturned its 2007 Register Guard decision which found that employees have no right under the Act to use their company s system for union organizing and other concerted activities protected by Section 7 of the Act. At issue in Purple Communications was an employer's electronic communications policy providing, in part, that the employer's electronic systems and equipment "should be used for business purposes only." The policy also prohibited employees from using the employer's equipment to "engag[e] in activities on behalf of organizations or persons with no professional or business affiliation with the Company" and from "sending uninvited of a personal nature." The Board attacked Register Guard on two grounds. First, it found that decision gave too much weight to employer property interests and not enough weight to employees' "core Section 7 right to communicate in the workplace about their terms and conditions of employment." Second, the Board's majority argued that Register Guard inappropriately analogized corporate to the Board's precedent addressing other types of employer-owned equipment, such as bulletin boards, copiers, and telephones. In the Board's view, is distinguishable from these other categories of employer-owned equipment because its "flexibility and capacity" make its non-work use less costly and disruptive than non-work use of other employer property. Ultimately, the Board held that employee use of for union organizing and other protected purposes must be permitted by an employer, absent proof by the employer of special circumstances that would justify a total ban on non-work use of the company s system

3 E. Off-Duty Access 2015 Development a. Previous NLRB Case re: Off-Duty Access In Sodexo America LLC (2012) 6, the NLRB held that the University of Southern California Hospital violated Section 8(a)(1) of the NLRA because it maintained and enforced an illegal offduty access policy. The policy provided that: Off-duty employees are not allowed to enter or re-enter the interior of the Hospital or any other work area outside the Hospital except to visit a patient, receive medical treatment or to conduct hospital-related business. An off-duty employee is defined as an employee who has completed his/her assigned shift. Hospital-related business is defined as the pursuit of the employee s normal duties or duties as specifically directed by management. Any employee who violates this policy will be subject to disciplinary action. The NLRB applied its ruling in Tri-County Medical Center and found that such a provision violated the NLRA. In Tri County 7, the NLRB developed a three-part test to determine the legality of an off-duty employee access policy. The essence of the test balanced the property interests of an employer against the right of employees to engage in protected, concerted activity under Section 7 of the NLRA. Having applied the aforementioned test, the NLRB held that an off-duty employee access policy will be upheld only if it: limits access solely with respect to the interior of the facility and other working areas; is clearly disseminated to all employees; and applies to off-duty employees seeking access to the facility for any purpose and not just to those engaging in union activities. b NLRB Application of Tri County In Marina Del Ray Hospital, 31-CA (Oct. 22, 2015) 8, the NLRB upheld the hospital s off-duty access policy as lawful on its face, but then concluded that the hospital applied the policy in a discriminatory manner by permitting social events while barring meetings 6 spx/09031d4580ac817e+&cd=1&hl=en&ct=clnk&gl=us

4 with union representatives. Relying upon Tri-County Medical Center 9, the NLRB confirmed that employers may maintain off-duty employee access policies so long as they are limited to the interior of the facility, clearly disseminated to all employees, and apply to off-duty access for all purposes, not just union activity. F. Social Media Policies and Cases a. NLRB Social Media Policy Cases Triple Play Sports Bar and Grille, Nos. 34-CA , 34-CA (N.L.R.B. Aug. 22, 2014) 10 Hoot Winc, LLC, No. 31-CA (N.L.R.B. A.L.J. May 19, 2014) 11 Lily Transp. Corp., No. 01-CA (N.L.R.B. A.L.J. Apr. 22, 2014) 12 Landry s Inc., No. 32-CA (N.L.R.B. A.L.J. June 26, 2014) 13 b. Pier Sixty, LLC, 362 NLRB 59 (March 31, 2015). 14 The NLRB upheld an administrative law judge s decision that a catering company in New York City violated sections 8(a)(1) and (3) of the NLRA when it terminated an employee for profanely attacking and insulting a supervisor in a Facebook post two (2) days before a union certification election. G. Union Dues SCOTUS decision pending for 2016 a. Freidrichs v. California Teachers Association The Supreme Court of the United States is currently reviewing an agency shop arrangement. Under this arrangement, once a majority of workers have voted for union representation, the union can collect dues from all employees covered by their contract, whether or not they join the union. Since the union is obligated to represent all the workers, they in turn are all obligated to support it financially. The decision will decide whether California and those states with an agency shop policy, can compel public-employees to pay union agency fees. The generalized basis for the argument is on First Amendment grounds. A decision is expected by June, px/09031d4581b92710+&cd=1&hl=en&ct=clnk&gl=us 4

5 II. NLRB s expansion of the joint employer status Browning-Ferris Industries 15 A. Overview The NLRB in Browning Ferris Industries of California, Inc. had to decide whether the Board should adhere to its current standard for assessing joint-employer status under the NLRA or whether the standard should be revised. Previously, an employer had to exercise direct control over the terms and conditions of employment to be found to be a joint-employer. Under the new standard, what matters is whether the purported joint-employer possesses the authority to control the terms and conditions of employment, either directly or indirectly. In other words, not only the actual but the potential ability to exercise control, regardless of whether the company has in fact exercised such authority. According to the NLRB s opinion, the Board stated, reserved authority to control terms and conditions of employment, even if not exercised, is clearly relevant to the joint-employment inquiry. B. Browning-Ferris Industries General Effect The Board s decision has profound consequences on which employer will need to engage in collective bargaining. The Board s majority notes that extending joint-employer status is necessary to encompass the full range of employment relationships wherein meaningful collective bargaining is possible. III. Micro-Units The Macy s Decision. 16 A. Macy s Inc., 361 NLRB No.4 (Case No. 01-RC ). The NLRB held that a unit of 41 cosmetic and fragrance sales workers at a store in Saugus, Massachusetts, was appropriate for bargaining under the Boards 2011 Specialty Healthcare decision. IV PERC Development A. UFF v. Seminole State College, 42 FPER 69 (2015)

6 State College employer did not violate (1)(a) and (c) by unilaterally altering its past practice of providing faculty members with step increases at the beginning of a certain academic year. B. Arciola v. Lee County Mosquito, 42 FPER 53 (2015). PERC dismissed a veteran s preference complaint. It rejected individual complainants contention that the county employer violated his veteran preferences rights by failing to hire him for the position of a senior accountant. Employer selected a more qualified job applicant for the position in question. C. Castellon v. Orlando Utilities Commission, 41 FPER 341 (2015). PERC dismissed a veteran s preference complaint, despite a complainant s contention that a utilities commission improperly refused to interview her or hire her for a certain specialist s position. PERC agreed with the hearing officer s conclusion that the complainant lacked the minimum requirements of the specialist position, even though she maintained valuable human resources skills and experience. D. Dade County Police Benevolent Association v. Miami Dade County Board of County Commissioners, 160 So. 3d 482 (Fla. 1st DCA 2015). Police Union appealed from a PERC order concluding that the county did not commit an unfair labor practice when its mayor vetoed County Commission s resolution of a collective bargaining agreement impasse. Florida s First District Court of Appeal held that the mayo9r s veto constituted an unfair labor practice by the county. E. UFF v. Palm Beach State College BOT, 41 FPER 394 (2015). PERC dismissed a union s unfair labor practice charge, despite the union s contention that the state college employer unilaterally changed the eligibility requirements for continuing contracts for bargaining unit employees. PERC decided that the union clearly and unmistakably waived its right to bargain over those eligibly requirements by agreeing to certain contract terms. 6

7 Biography Michael Mattimore has practiced labor and employment law for thirty-five years. He has practiced exclusively with the management labor and employment law firm of Allen, Norton & Blue except for serving as the Chair of the Florida Public Employees Relations Commission from 1987 until Mr. Mattimore received a Juris Doctorate degree from Florida State University, Masters Degree from the University of Miami, Bachelor of Arts from Florida International University and Associate of Arts from Miami-Dade College. Mr. Mattimore s professional affiliations and recognitions include: Inductee Miami Dade College Hall of Fame Certified in Labor and Employment law by the Florida Bar Former Trustee of the Florida Bar s Labor and Employment Law Board of Trustees AV Preeminent Rating by Martindale Hubbell 2007 through 2016 Florida Trend s Elite Lawyers of Florida 2007 Present Florida Super Lawyer 2007 Present Selected as a Leading Lawyer in America Selected by the Best Lawyers organization as Tallahassee s foremost labor and employment lawyer in Tallahassee Named by the Wall Street Journal as one of the best lawyers in America Mattimore has served as the Labor Counsel and Chief Negotiator for Governors Chiles, Bush, Crist and Scott. His clients include the University of Florida, Florida State University, University of West Florida, Florida Supreme Court, Florida Department of Education and numerous colleges and school districts.