The Construction Advantage – Issue 15

Welcome to the fifteenth edition of The Construction Advantage! In this issue, we are bringing you something different. At Bernstein Shur, we have different practice groups, of which the Construction Law Practice Group is one. Several members in our firm are in more than one practice group, and the practice groups also work together for clients depending on the services that our clients need. For instance, our construction group works often with our Labor and Employment Law Practice Group on employment issues for those in the construction industry. So, this month, we decided to bring you a special feature from our colleague Linda McGill in the Labor and Employment Group. Linda’s article focuses on new developments from the National Labor Relations Board. As always, we hope you enjoy this edition of our newsletter!

2015 NLRB Developments

by Linda McGill

The National Labor Relations Board is now fully and legally appointed, after the U.S. Supreme Court invalidated recess appointments made in 2013. The new NLRB continues to expand its agenda, reaching into non-union workplaces and departing from long-established precedents to facilitate union organizing and broaden the scope of employee activities protected under the National Labor Relations Act. New NLRB developments may have a practical impact on construction industry employers. The following articles by Linda McGill help illustrate real and potential issues.

NLRB’s Final Rule on “Quickie” Elections 

What’s New: Although the NLRB’s earlier attempt to institute new rules for expediting elections failed because of invalid recess appointments, the new board has simply done it again. Under the rule changes set for April 14, 2015, once a union has filed a petition for election the employer must identify all its legal positions within seven days after filing – or waive them, and objections that can be raised before an election takes place have been limited. Employers must also provide the union with personal telephone numbers and email addresses of employees on the voter list. These rules are being challenged in Congress and court, but this time they may become a reality.

Why It Matters: The risk that a non-union construction company will be confronted with an organizing campaign may seem remote — but it’s real. And if a union gets a foothold in your company it’s a business game-changer. The new election rules seriously reduce the time and ability of an employer confronted with an election drive to respond effectively to the campaign. Now more than ever, the best opportunity to respond to a union organizing attempt is before it happens. Foremen and other supervisors (those excluded from coverage of the NLRA) should be trained to recognize and report any signs of union presence or activity, in the office or on site. Every company should plan strategically and legally how it will respond to the first signs of union organizing or other union activity. There are some excellent videos and other tools to help with the reality test, here and here. The expedited rules are a ticket to an election within two weeks after a petition is filed – this leaves barely enough time to call your lawyer!

Contractors or Franchisors as Joint Employers

What’s New: In a pending case, the NLRB will likely force a contractor to be at the bargaining table with the sub-contractor who directly employs the unionized workers. In Browning-Ferris Industries of California, Inc., 32-RC-109684 (2014), sanitary truck drivers and helpers on contract with Browning, a waste disposal company, are suing to force the company to the bargaining table along with the staffing agency that directly employs the workers. The NLRB’s general counsel has said that the NLRB’s current (and long established) direct control test for when a company is a joint employer “inhibits meaningful collective bargaining” and should be expanded to include “direct, indirect or potential control” over workers. This could broaden the joint employer test greatly. General counsel also recently determined that the NLRB will proceed against McDonald’s USA in certain unfair labor practice charges brought against McDonald’s franchisees. The general counsel has cited the rise of contingent work force and franchisor-franchisee relationships as rendering obsolete the direct control test. Browning-Ferris should be decided shortly.

Why It Matters: A broader standard for joint employer status will significantly increase the number of economic relationships within reach of the NLRB, potentially including those of large national franchisors or contractor-subconstractor arrangements. It may be wise to get legal review of contractor, franchisor and other two-party relationships to see whether there is exposure.

Employer’s Email System May be Used by Employees to “Engage in Statutorily Protected Discussions about their Terms and Conditions of Employment”

What’s New: The NLRB has ruled that employees have the presumptive right to use their employer’s email system for union activity on non-work time, even if the employer has a policy prohibiting employees from using the e-mail system for activities on behalf of organizations or persons with no business affiliation with the company or from sending email of a personal nature. Purple Communications, Inc., 361 NLRB No. 126 (2014).

Why It Matters: The new case overthrows well-established NLRB precedent that employees are not entitled to use an employer’s email for union organizing or other NLRA-protected activity because union business is not related to the employer’s business purposes. The premise of the earlier cases is that an employer owns its corporate email system and therefore may ban or regulate employees’ nonbusiness use of that system. Now, the board majority has decided that earlier cases undervalued the significance of communication as the cornerstone of Section 7 rights and overvalued employers’ property rights.  The NLRB has pointed to e-mail as an increasingly critical mode of communication in the workplace, comparing it to the old-fashioned water cooler as a place where employees communicate with one another, including about the terms and conditions of their employment. The board’s expanded protection of Section 7 rights, including the right to discuss terms and conditions of employment, will lead to more demands for access to employer-owned systems and greatly increase the communications network for unions using employer resources.  There are narrow business circumstances in which the new access rule may not apply, and it is worth getting review of your equipment use policies to see if they can be tightened – or if they are unenforceable after Purple Communications. If employees ask to use the email system (after work hours) for something that sounds like protected activities, get legal consult before you respond.

Employees’ Negative Statements about the Business may be Protected by the NLRA

What’s New: The NLRB is broadening the protection for employees’ negative statements about the employer or the business, even if the statements are untrue and are widely posted on Facebook or other social media. In one example an employer fired employees who put up posters on bulletin boards inside its store that falsely inferred that sick workers were making customers’ sandwiches because the company would not give paid sick leave. The NLRB invalidated the firings, finding that the statements related to a labor dispute and were not maliciously untrue, so were protected speech under the NLRA. In Plaza Auto Center, 360 NLRB No. 117 (2014), an employee who used profanity and personally attacked the owner was found to be engaging in protected speech and could not legally be fired for it. On the other hand, the NLRB upheld firings based on a running Facebook exchange between co-workers that was laced with profanity and showed that the “friends” were planning to disobey work rules and undercut the operation of the teen center that employed them.

Why It Matters: The NLRB appears to expect all employers to tolerate overt expressions of disrespect, profanity and untrue and damaging accusations as protected speech if they relate to terms and conditions of employment. If the speech or conduct (including social media posts) is protected activity, the fact that it is false, hostile or misleading will not be enough to cause it to lose protection. Before firing an employee for saying disloyal, provocative or critical things about supervisors or the business, even to a large audience through social media, check with counsel. Many of the Section 7 cases that have been lost at the board involve non-union employers. The NLRB has the power to reinstate and give back pay to fired workers, even in non-union workplaces.

The Big Point: The new NLRB is expanding its rules and reach in ways that directly affect non-union workplaces and will make union organizing easier. Keep your eye on NLRB developments and avoid any mis-steps that will bring the NLRB to your worksite.