Wessels Sherman Offers Help for Newly Unionized Employers Who Fall Victim to the Onslaught of Unions Taking Advantage of the NLRB’s New Ambush Election Rule

May 2015

By: James B. Sherman, Esq.

As many employer groups anticipated there has been a surge in the number of union election petitions filed with the National Labor Relations Board (NLRB) since its new rules for conducting union elections went into effect on April 14, 2015. Dubbed “Ambush Elections,” union elections are now being held in roughly half the time as before these new rules went into effect.  Under the former rules that existed for decades, NLRB Regional Directors aimed to hold elections within 42 days of receiving a union organizing petition. However in the first month since the new “Ambush” rules went into effect, elections are taking place on average in just 23 days. Make no mistake – the new rules heavily favor unions in elections.  Oftentimes employers have no meaningful opportunity to respond to union campaigning that may have gone on for months before an election petition was filed. With the significant increase in union organizing drives under the new rules and the expectation that unions will now win more elections than ever before, employers need a helping hand.  Wessels Sherman has taken action by creating its “Guidelines for Newly Unionized Employers.”

For those newly organized employers who have never had to deal with a union, the intricate and complicated federal labor laws can be overwhelming.  The National Labor Relations Act can govern everything from what employers say to their employees, to how and when they say it. Step out of line and face unfair labor practice charges or “ULPs” for short.  To help Wessels Sherman has created an extremely useful summary guide geared specifically for newly organized employers with no existing union contract.  These guidelines address many of the most common and significant issues employers can expect to face when dealing with a new union that has won the right to represent their employees.  These guidelines are useful for employers who have never had a union but also for those who have lost an election but have other union facilities or employee groups.

To receive Wessels Sherman’s valuable “Guidelines for Newly Unionized Employers,” please contact Ms. Chrissy Beggan at (952) 746-1700 or email chbeggan@wesselssherman.com to arrange your personal meeting or teleconference with attorney James Sherman.

Minnesota Federal Court Decision Sheds Light on Importance of Union Authorization Cards

May 2015

By: James B. Sherman, Esq.

The National Labor Relations Board’s (NLRB) Minneapolis Regional Office recently sued an employer in federal district court in Minnesota, seeking to force an employer to recognize and bargain with a union that had lost an election among its employees.  The court denied the NLRB’s request for injunctive relief, but the case holds important lessons for employers.  The first lesson is that employers can be saddled with a union in certain circumstances even where no election has taken place, or where the union has actually lost an election.  Another lesson is that a more aggressive NLRB (and regional office #18 in Minnesota) will not hesitate to sue in court if it determines an election was tainted by “unfair labor practices.”  A more subtle but perhaps more important lesson is that employee “authorization cards” solicited by unions are legally significant and binding in the eyes of the NLRB, as the facts of this particular case clearly demonstrate. 

Usually the only way that an employer becomes obligated to recognize and bargain with a union is if a majority of the employees elect that union as their exclusive bargaining representative in an election conducted by the NLRB.  While the NLRB’s procedures changed drastically as of April 14, 2015 with the implementation of its highly controversial new so-called “Ambush Election Rules,” the process continues to begin with union organizers or supporters soliciting support from employees in the form of a signed authorization card.  These cards vary somewhat depending on the union, but they generally state in writing that the signing employee hereby “authorizes,” “selects,” or otherwise “designates” a particular union to act as her or his “exclusive bargaining representative with respect to wages, hours and other terms and conditions of employment.” 

Despite what clearly is very legal and binding language, employees are often told to sign union authorization cards purely to allow an election to take place; in other words, union advocates frequently tell employees the cards are meaningless and serve only to allow the NLRB to conduct an election, where employees are then free to vote as they choose.  While a pitch for “Democracy” may sound appealing, in truth (and not surprisingly) the NLRB interprets signed authorization cards to mean what they say – that the person who signed the card actually designates the union to act as her or his exclusive bargaining representative, for all terms and conditions of employment!

The case, Osthus v. A.S.V., Inc., involved an election which the employer won by a majority vote of 26-15.  However, the union alleged that the vote was tainted by a number of allegedly very egregious labor law violations.  Based on these allegations, coupled with the fact that a majority of employees had signed union authorization cards well prior to the election, the NLRB’s Regional Director in Minneapolis sued in federal court to order the employer to recognize the union.

In the week leading up to the election, several members of management allegedly made comments suggesting that if the employees chose to unionize, production would shift from their location to a different, non-unionized location.  Prior to these statements, a majority of the bargaining unit signed authorization cards.  However, after the comments were allegedly made, the employees voted down the union by a 26-15 vote.  The NLRB used this as evidence of a sharp decline in support for the union after the employer allegedly made unlawful comments.  However, authorization cards do not necessarily show support for a union.  When soliciting authorization cards, unions will frequently tell employees that the cards will only be used to get an election, and at that time, the employees will vote whether or not they want the union.  However, this case highlights how the cards can be used in other ways—in this case the NLRB used the cards as evidence that at one time, the union had the support of the majority of the bargaining unit employees, and tried to force the employer to bargain with the union on this basis.

Many employers are unprepared when faced with a union organizing drive, and find themselves in trouble after saying something that is construed as an improper threat, promise, or interrogation.  Employers should have a plan in place so they are trained in what they can and cannot say or do to oppose union organizing. 

For help in responding to a current union organizing campaign, or to be proactive in case of any future organizing, contact Jim Sherman at (952) 746-1700 or by email at jasherman@wesselssherman.com. 

Illinois Close Neighbor Repeals Prevailing Wage Law!

By Richard H. Wessels, Esq.

Indiana Governor Mike Pence has signed a law ending Indiana’s Common Construction Wage Act. This was Indiana’s version of a prevailing wage act.

The new statute provides that, unless otherwise required by federal or state law, public agencies are prohibited from establishing, mandating, or otherwise requiring a wage scale or wage schedule for a public works project.

Supporters of the act are of the opinion that wages on public projects should be set by the marketplace and not by the government. Naturally, the outlook is that there will be significant savings to taxpayers under the new system.

West Virginia and Nevada have recently repealed state prevailing wage acts. Indiana’s move may create pressure in Illinois for a similar repudiation of prevailing wage laws.

Questions? Call Attorney Dick Wessels of Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email him at riwessels@wesselssherman.com.

Winds of Non-Compete Agreements Shifting In Favor of Wisconsin Employers

May 2015
By: Alan E. Seneczko, Esq.

Any employer that has ever desired to utilize a non-compete agreement in Wisconsin has asked, “is continued employment sufficient consideration in order for the agreement to be enforceable?” – only to be met with, “well… the law on that point is not clear.”  Not anymore.

 

On April 30, 2015, the Wisconsin Supreme Court finally answered this question, holding that an employer’s forbearance in exercising its right to terminate an at-will employee constitutes lawful consideration for signing a restrictive covenant. In Runzheimer International, Ltd. v. Friedlen, 2015 WI 45, an employer required all of its employees to sign a non-compete agreement or be fired. The employee signed the agreement, worked for two years, was terminated, and then went to work for a competitor in violation of the agreement. When the employer sued to enforce the agreement, the employee argued that it was not enforceable because the employer retained its right to terminate him at will – meaning it essentially gave up nothing in exchange for his promise not to compete. The court disagreed, finding that continued employment was indeed valid consideration for the agreement. In other words, as long as the employee’s continued employment was conditioned on executing the agreement, additional monetary or other consideration was not required in order for the agreement to be enforceable.

 

On another front, the Wisconsin Legislature is now considering substantial revisions to Wis. Stat. §103.465, the Wisconsin statute that governs (and limits) the enforcement of non-compete agreements. 2015 Senate Bill 69, which is currently pending in committee, proposes to repeal and recreate the existing statute in a manner that enhances the likelihood that such agreements will be enforceable – if drafted properly. For example, the new statute would define the consideration necessary for an agreement to be enforceable; exempt agreements that do not restrict competition (e.g., confidentiality agreements); create a rebuttable presumption of reasonableness for any restrictions lasting 6 months or less (and unreasonableness for 2 years or more); and, clarify the “legitimate business interests” that are necessary to justify an agreement. Although the Governor has much on his plate these days, the chances of this bill passing are good.  Stay tuned. 

 

Questions? Please contact WS Attorney Alan E. Seneczko at (262) 560-9696, or email alseneczko@wesselssherman.com.