8th Circuit Court of Appeals Approves of NLRB’s Micro Unit Analysis

In FedEx Freight v. NLRB, the 8^th Circuit Court of Appeals (which covers Minnesota, Iowa, and a handful of other nearby states) weighed in for the first time and determined that the analysis under the NLRB’s controversial 2011 Specialty Healthcare decision is acceptable under the National Labor Relations Act.  Under this analysis, unions have the ability to organize small “micro units,” rather than larger bargaining units encompassing all or a large portion of an employer’s workforce.  For example, if the unit meets the test in the Specialty Healthcare decision, a union could organize a small unit of 6 out of an employer’s 106 employees—or multiple unions could each organize units of 6 employees each, and cause the employer to bargain individually with each bargaining unit!  Unions like these micro units because they are often easier to organize, and provide a way to divide and conquer a larger workforce, while employers are more likely to prefer to deal with an entire workforce as a whole or, a large segment thereof. 

Based on this analysis, the NLRB will first determine whether a bargaining unit proposed by the union is appropriate because it consists of employees who are “readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or similar factors)” and who “share a community of interest.”  Then, if the proposed unit is appropriate under this test, the employer can challenge the unit by showing that there are additional employees who need to be included in the unit to be appropriate—this is a high standard, and merely showing that another unit would be more appropriate is not sufficient.

This analysis is problematic for employers, because it gives unions the ability to pick and choose small groups of supporters to organize, and get a foot in the door to non-unionized employers, and then use these “insiders” to organize another group, and so on.  Additionally, bargaining with multiple different groups of employees is time consuming and leads to inconsistent labor relations.  However, the NLRB is already using this 8^th Circuit decision to support extending its analysis to other circuits.  For assistance in dealing with a union organizing campaign in your workplace, contact Wessels Sherman attorneys at (952) 746-1700 or email

jasherman@wesselssherman.com.

Court of Appeals Upholds NLRB Decision Backing Employee Posters Aimed at Damaging their Employer’s Business During Union Organizing

The Eighth Circuit Court of Appeals has upheld a determination by the National Labor Relations Board which held that a Minnesota Jimmy John’s franchise violated federal labor law during a union attempt to organize its employees.  What did the employer do to get in such trouble with the NLRB, you ask?  MikLin Enterprises Inc., the franchisee, was found guilty of removing posters placed near its restaurant entrances by certain pro-union employees and terminating the employees responsible for the postings.  Why would an employer get so upset about a poster, you ask?  The posters in this case complained that employees were not paid sick leave and, therefore, implied that Jimmy John’s sandwiches were being prepared by sick employees who might get customers sick.  Specifically, the posters stated to potential customers approaching the restaurant: “We Hope Your Immune System Is Ready Because You’re About To Take the Sandwich Test ...” Clearly, the posters were deliberately designed to drive customers away and harm the Jimmy John’s franchise’s reputation and business.  The case raises the question: Just how far can employees go in the name of promoting a union?  The answer from the NLRB and, on appeal, the 8^th Circuit?  Pretty far!  At least one appellate judge dissented, arguing that such “damaging disparagement” crossed the line of what federal labor law ought to protect as “concerted activity” in support of a union.  Many employers and people in general, probably agree with the dissenting judge!

Questions? Contact Attorney James Sherman at (952) 746-1700 or jasherman@wesselssherman.com. 

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.