Category: Labor Law

July 30, 2018

Strike Basics for Employers

The National Labor Relations Act (NLRA) allows both union and nonunion employees in the private sector to participate in strikes. Make sure you understand when and how a strike could affect your company before one occurs.

[Read here to see whether your organization is subject to the NLRA.]

What Is a Strike?

A strike is a work stoppage resulting from employees collectively refusing to work. Since most union contracts have no-strike clauses, strikes most often occur during negotiations after the collective bargaining agreement expires. Official strikes take place after a majority vote by union members.

Although strikes are rare, employers should be aware of the labor laws surrounding this process. While the NLRA guarantees the right to strike, it also places limitations on exercising this right. Whether a strike is lawful depends on its purpose, timing, and the conduct of striking employees.

Employer Limitations

Companies cannot terminate or take other adverse actions against employees who participate in legal strikes. Employers also may not harass or otherwise question employees about their intent to strike or offer special benefits or other incentives in exchange for individual employees not striking.

Types of Strikes

Strikes generally fall into one of two categories: economic strikes and unfair labor practice strikes. Economic strikes occur in response to complaints about work conditions, such as wages or hours. Unfair labor practice strikes protest alleged unfair labor practices by an employer.

Unfair labor practice strikers have greater rights to reinstatement than economic strikers, whom employers may permanently replace. After an unfair labor practice strike ends, the employer must terminate temporary replacement workers and allow the strikers to return to their positions.

The NLRA does not protect all strikes. It is illegal for employees to strike against secondary employers or engage in “sympathy” strikes. Sit down strikes and workplace slowdowns also do not receive NLRA protections. “Sick-outs,” where employees who cannot legally strike (e.g., because of a no-strike clause) collectively call in sick, are not protected.

“Wildcat strikes” occur when represented employees engage in a work stoppage without union authorization. These unofficial strikes are usually illegal.

Employees who participate in illegal strikes may be subject to discharge.

Strike Pay

Employers do not have to pay striking employees or offer benefits during the strike. Unions often have strike funds that provide some pay or occasionally employee benefits. Striking employees do not receive unemployment benefits.

Picketing

Picketing often occurs during strikes. It involves employees congregating outside the employer’s location to protest grievances and discourage others (employees, customers, vendors, etc.) from crossing the picket line. Similar to the right to strike, the right to picket is subject to limitations relating to its purpose, timing, and potential misconduct on the picket line.

Employers can discipline employees for inappropriate conduct during picketing, such as physically blocking workers from entering the building or threatening violence.

Unions may fine employees who cross the picket line.

Healthcare Exception

Unlike employees in other industries, employees working for healthcare institutions must give at least a 10 days’ written notice to the employer and the Federal Mediation and Conciliation Service before picketing or going on strike. The notice must indicate when (date and time) the activity will begin.

Conclusion

The laws surrounding labor strikes are complex, and employers who anticipate a strike are highly recommended to obtain the assistance of an experienced labor lawyer.

The good news is strikes are rare. Almost all union contracts in the United States eventually settle without a strike. Nonetheless, employers who anticipate a work stoppage may take out strike insurance to offset potential losses.

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July 17, 2018

NLRB Charges: What’s an Unfair Labor Practice?

The National Labor Relations Board’s General Counsel (through Regional Offices) investigates violations of the National Labor Relations Act. An Unfair Labor Practice (ULP) occurs when an employer or union violates Section 8 of the Act. Those affected by these violations, including nonunion employees, can bring NLRB charges against the offending party. The NLRB receives 20,000 to 30,000 charges a year from employers, employees, and unions. Employers should be aware of the most common board charges to help them reduce the chance of receiving one.

Common NLRB Charges Against Employers

Employers incur NLRB charges by interfering with employee rights to engage in concerted or union activity and engaging in “bad faith” collective bargaining. Common allegations against employers include threatening or disciplining employees for union activity and promises of certain benefits in exchange for employees not to engage in union activity. In collective bargaining, common allegations against employers include refusals to provide requested information, bargaining in “bad faith,” and attempting to negotiate directly with employees.

To lessen the chance of receiving charges, employers should train managers in complying with the Act. Furthermore, charges of “bad faith” bargaining do not mean employers cannot take a hard stance in negotiations or leave the bargaining table. However, an employer cannot bargain with no intention of actually reaching a deal.

It is also important for employers to be aware that the balance between employer and employee rights under the NLRB tends to fluctuate based on the political climate in Washington.

Common NLRB Charges Against Unions

Charges against unions are less common than allegations against employers. Common charges against unions include failure to represent an employee in a grievance and failure to bargain in “good faith”. It is also common for charges against unions to allege illegal coercion of employees, illegal picketing, secondary boycotts, and discrimination against employees. Both employers and employees can bring charges against unions.

Investigation Process

Once a charge is filed, the General Counsel investigates the allegation to determine whether there is reasonable cause to issue a complaint or dismiss the charge. The investigation is delegated to the Regional Director of the area where the alleged violation occurred, assuming the parties involved fall under NLRB jurisdiction. If the Regional Director decides to issue a complaint, an Administrative Law Judge will hear the case. As shown in the chart below, most charges result in withdrawal or settlement.

The NLRB encourages voluntary resolution throughout the investigation process. This includes an alternative dispute resolution (ADR) program which aids in settlement through mediation and arbitration. The NLRB recently announced an initiative to be more proactive in encouraging parties to participate in ADR.

Potential Consequences of NLRB Charges

In some cases, the NLRB’s General Counsel can seek a temporary injunction under Section 10(j) of the Act. Temporary injunctions are intended to stop ULPs and irreparable harm to employees during the litigation process. The Act defines 15 categories of labor disputes where temporary injunctions are appropriate, including secondary boycotts and hot cargo agreements. Temporary injunctions cease once the NLRB decides the case.

If the NLRB ultimately finds a violation, it can order reinstatement of employees, pay back pay, or other make-whole remedies. It can also issue informational remedies, such as requiring an employer to post notices in the workplace. The NLRB cannot assess pure penalties under the Act. It has no statutory power to enforce its decisions directly, but can seek enforcement through the federal court system.

The consequences of a charge also include the time and money spent during the investigation, adjudication, and litigation processes.

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July 13, 2018

NLRB Promotes ADR Pilot Program

For many years, alternative dispute resolution (ADR) has been increasing in popularity as a means of resolving legal controversies. ADR methods including mediation and arbitration can help avoid lawsuits or get them out of the court systems more expeditiously. On July 10, 2018, the National Labor Relations Board (NLRB) launched a pilot program to ramp up its use of ADR.

ADR in Labor Disputes

ADR is common in labor disputes. Most collective bargaining agreements between unions and employers provide for arbitration of grievances that the parties can’t mutually resolve. There, arbitration replaces court litigation over breach of contract claims.

Mediation, usually through the Federal Mediation and Conciliation Service (FMCS), also plays a role in resolving disputes between unions and employers in collective bargaining.

NLRB Pilot Program

According to the NLRB’s press release, “[t]he new pilot program will increase participation opportunities for parties in the ADR program and help to facilitate mutually-satisfactory settlements.”

The program tasks the NLRB’s Office of the Executive Secretary with “proactively” engaging parties to determine whether their cases should enter the ADR program. Parties may also initiate a request to participate in the program. The NLRB’s ADR program imposes no direct fees or costs on the parties.

Once in the ADR program, parties may voluntarily withdraw from it at any time. Their cases would then proceed under standard NLRB procedures.

History of the NLRB’s ADR Program

The NLRB’s ADR program itself is not new. It was initially established in 2005 to assist parties in resolving pending unfair labor practice cases. The Board reports that approximately 60% of the cases entering the program have settled with the assistance of a mediator.

The NLRB typically provides mediators through the FMCS. Settlement discussions in mediation remain confidential.

According to its website, “The Board established the ADR program in response to the success experienced by other federal agencies and the federal courts in settling contested cases through ADR, as well as the success of the NLRB’s own settlement judge program at the trial level.”

What Employers Should Expect

In announcing this “pilot program” the NLRB seems to be emphasizing the value of a program it already had in place. It is also apparently making ADR available to parties earlier. Consequently, employers can expect the NLRB’s Regional Offices to encourage greater participation in ADR to resolve unfair labor practice charges. Whether this pressure should be welcomed will depend on the facts of a particular case. But it is a good idea to discuss the possibility of mediation with your labor relations team upon receipt of a charge, as there may be cases where relatively early participation would be beneficial. The value of mediation may appear later in other cases, and not at all in some.

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