Pautsch, Spognardi & Baiocchi Legal Group LLP
Monday Morning Minute
In This Issue
Answers-Labor Relations Law Quiz
IL Nursing Mothers Workplace Act-Providing Paid Breaks
Coming Soon! Do Not Forget! Mini COBRA law for Arizona
                  October 15, 2018
 
COMMON SENSE SOLUTIONS
FOR
YOUR CHANGING WORKPLACE
                      

www.psb-attorneys.com 

 

                                                   Follow us on Twitter Like me on Facebook

LABOR RELATIONS LAW QUIZ-ANSWERS
American labor law contains many "traps for the unwary,"--------principles of law that pose dire consequences for employers who act without obeying the law affecting their conduct. These traps affect both unionized and non-union employers. We have developed a short TRUE/FALSE quiz to focus on some of these traps:

TRUE OR FALSE
 
1. A company that has a collective bargaining contract need not bargain with the union before it implements a drug testing policy.

FALSE. A company must bargain this issue with the union UNLESS the contract contains a clear and unmistakable waiver by the union of its right to bargain over this particular issue. A general management rights clause, even combined with a zipper clause will not suffice to eliminate the duty to bargain over this issue.
 
2.  A company can prohibit employees from using its email system to solicit other employees to join a union.

FALSE. As a general statement this was TRUE just about two years ago----until the NLRB decided Purple Communications in 2014 which held that if an employer gives an employee access to its email system to communicate with other employees, then it must also allow the employees to communicate about union activities and other matters of mutual interest during, at the very least, during non-working time. Like many Obama-era decisions it is being re-evaluated by the new Trump NLRB ......we will certainly keep an eye on it in the MMM.
 
3.  If a union representative comes to a company with union authorization cards signed by all of the employees that work at the company and demands to be recognized, that company must recognize and bargain with the union within 30 days.

FALSE. It has long been the law, as approved by the US Supreme Court, that employers can refuse to "recognize" the union making such a demand, and request that the NLRB conduct a secret ballot election to decide whether the  union is by a majority of the employees in the petitioned-for unit. Congress nearly passed the Employee Free Choice Act (EFCA) in 2009 which would have changed this landmark principle. It is important to train managers and supervisors not to look at such cards if presented and to say or do nothing which would lead to the conclusion that the company has recognized the union without an election.

4.  A company that has a collective bargaining contract need not bargain with the union before it starts video taping workplace activities. 

FALSE. A company must bargain this issue with the union UNLESS the contract contains a clear and unmistakable waiver by the union of its right to bargain over this particular issue. A general management rights clause, even combined with a zipper clause MAY suffice to eliminate the duty to bargain over this issue.
 
5. Supervisors are prohibited from expressing their views, opinions and arguments about unions in the workplace as this is considered interference with protected concerted activity or unlawful harassment. 

FALSE. Supervisors and managers do have the right under section 8(c) of the National Labor Relations Act to state their "views, opinions and arguments" regarding unionization so long as those statements do not contain threats or promises and employees are not interrogated. Supervisors and managers can explain how unionization can result in costly strikes and counter-productive bargaining results which might threaten continued viability of the company's operation at that location.
 
6.  Supervisors must not make promises or grant benefits in an effort to thwart union organizing at their company.

TRUE . Just as it is unlawful to threaten employees with adverse consequence if a union 'gets into' the company, it unlawful to promise or grant employees benefits to thwart union organizing. This is deemed inherently "coercive' as it is analogized to a 'fist inside a velvet glove'
 
7. In response to active union organizing, it is a "best practice" and lawful for an employer to quickly develop and implement an effective "NO SOLICITATION/NO DISTRIBUTION POLICY".

FALSE . It is a serious mistake to wait until there is active union organizing. The NLRB has followed a long standing principle that introducing a NO SOLICIATION/NO DISTRIBUTION POLICY in response to active union organizing, even if it is carefully and otherwise lawfully written, is PER SE UNLAWFUL. This means that the simple act of introducing such a policy in response to active organizing is an unfair labor practice. As a result it is important, and completely lawful to put such a policy into place BEFORE organizing starts in your workplace.
 
8.  Supervisors and managers can tell employees that the employer will shut down its operations if a union gets into the company.

FALSE . It is unlawful to threaten employees with adverse consequence if a union 'gets into' the company. Supervisors and managers do have the right under section 8(c) of the National Labor Relations Act to state their "views, opinions and arguments" regarding unionization so long as those statements do not contain threats or promises and employees are not interrogated. Supervisors and managers can explain how unionization can result in costly strikes and counter-productive bargaining results which might threaten continued viability of the company's operation at that location.
 
9.  A company that has a collective bargaining contract need not bargain with the union before it moves bargaining unit work to another location during the term of the contract.

FALSE . In such a situation a company must at least bargain the effects of the decision to move the bargaining unit work. This would include such issues as whether or not employees are due severance pay or should be transferred to the new work location. The company might also be obligated to bargain the decision as to whether the work should be moved. This is often a tough judgment to make as it is necessary to closely examine the nature of the decision involved in light of the NLRB's Fibreboard and Dubuque Packing principles. Because a mistake on  this point can be very costly, it is often a good idea to offer to discuss the work relocation decision.
 
10. A company that has a collective bargaining contract need not bargain with the union before it shuts down its operations during the term of the contract.

FALSE . Again it always necessary to bargain the effects of such a decision. And again,  it may be necessary to bargain the decision to close down the operation.
ILLINOIS NURSING MOTHERS WORKPLACE ACT AMENDED TO PROVIDE PAID BREAKS
Effective August 21, 2018, Section 10 of the Illinois Nursing Mothers in the Workplace Act was amended.  The Act first went into effect in 2001, and applies to Illinois employers with more than five employees, exclusive of immediate family members. (820 ILCS 260).  In summary, the amendments to Section 10 mandate reasonable paid breaks as needed by the employee.
 
Section 10 of the Act was amended to require a covered employer to provide a "reasonable" paid, rather than unpaid break time, to express milk for a nursing infant, each time the employee needs to express milk for one year after a child's birth.  The employer shall not reduce the employee's compensation when exercising this break period. 
 
The employer must provide a reasonable break time as needed, unless to do so would cause an undue hardship as defined in the Illinois Human Rights Act.  The burden of establishing an undue hardship is on the employer, and is defined as being prohibitively expensive when considering multiple factors including the cost, and financial resources of the employer, among other things.  Employers should evaluate how their current policy needs to be revised.
ARIZONA EMPLOYERS- GET PREPARED FOR MINI COBRA LAW
For health plans renewing after 12/31/2018
"small" employers are now required to offer COBRA in accordance with state law.  

A "small" employer is one that employs at least 1 but not more than 20 employees in the preceding calendar year.  

The qualifying events required to offer employees mini COBRA coverage are very similar to the federal law.  

For more information, contact any PSB Attorney. 

PAUTSCH, SPOGNARDI & BAIOCCHI LEGAL GROUP is a law firm dedicated to finding common sense, affordable solutions for businesses to labor, employment, human resource and general business needs. With over 75 combined years of experience among its 3 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 

 

For more information on the firm, please go to our website at www.psb-attorneys.com or Lisa at lab@psb-attorneys.com