In the Boeing Company case (365 NLRB No. 154 (2017)), the National Labor Relations Board established a new system for interpreting Employer policies and whether or not they would have a negative impact on an Employer's ability to exercise their Section 7 rights under the National Labor Relations Act. Specifically in the Boeing Company case, the NLRB determined that the Employer's "no camera rule" was lawful because the Employer (Boeing) articulated sufficient justifications, including specific security protocols necessary to perform classified work for the United States Government that excepted the "no camera rule" of the Employer from the potential violation of Employee Section 7 rights. Unfortunately, many Employers have interpreted this NLRB ruling to be a "blanket coverage" protecting an Employer's policies vis-a-vis Section 7 rights. Unfortunately, that is not true.
In the case of UPMS Presbyterian Sunnyside, 368 NLRB No. 2-June 14, 2019, the National Labor Relations Board granted Employers greater rights to limit union activity on their premises.
Here are some of the most news-worthy developments in labor law for the first months of 2019.
As of Wednesday, April 3, 2019, the Illinois House gave final passage to a bill that has already cleared the Illinois Senate that would clearly establish that only State Government, not Local Government (i.e, city, village, municipality, etcetera), would have the exclusive authority to enact laws governing what are known as Union Security Agreements. These are Agreements between Employers and Unions that establish the extent to which workers can be compelled to belong to a Union and whether or not the Employer will collect dues and fees on behalf of the Union.
Construction industry unions, particularly Operating Engineers Local 150, continue to use the strategy which we regularly refer to as "rats, banners and street theater". They rely on the 2010 Eliason & Knuth NLRB case which gives unions pretty much a green light to engage in secondary boycotts as long as they are not picketing. That Obama Board decision relied primarily on free speech theories. The normal union strategy is to put up a large rat at the premises of a neutral employer that says something like "Shame on You". In other words, there is disruption and demonstration in front of the neutral employer's premises and the whole objective is to have that neutral stop doing business with the primary. For unions, it is a way around the secondary boycott provisions of the National Labor Relations Act. But, with the new pro-business Board now in place, it is likely that this strategy will have a pretty short life expectancy. We anticipate that once the new Board finds an appropriate case they will overturn Eliason & Knuth and find this type of activity to be an illegal secondary boycott. Below is a picture of a typical Eliason & Knuth scene.
The author is fairly certain that a vast number of the readers of this Article have either seen or unfortunately been involved in a case where a union has placed signage and the RAT at an employer's premise to force the employer to "cease doing business with or supplying another employer with raw materials (i.e., stone, sand, gravel, piping, etc.)" with which the union has a labor dispute. The Obama Labor Board (NLRB) has found this type of activity to be "Free Speech" protected by the First Amendment and exempt from the prohibitions of a "Secondary Boycott."
In the course of our labor practice over the past 34 years, we have become intimately familiar with the various Northern Illinois labor unions. We have dealt with all of them. Naturally, most of these local unions are congregated in the metro Chicago area. The six country area is one of the few remaining areas in the U.S. where unions have significant strength. As we have chronicled in our reports to you over the years, union strength in the private sector is waning dramatically. However, Northern Illinois remains somewhat of an exception and, although membership numbers are declining, labor organizations still have power, at least by comparison to other areas of the country. There is particular truth to this in the construction industry. Below is a short commentary on the most important Northern Illinois labor unions.
While the above title is really the restatement of a very old Farmer's Almanac comment, it has particular application for what is taking place with regard to Multi-Employer Pension Plans throughout the United States. An analysis of the Multi-Employer Pension Plan Funding Crisis that was released on or about November 1, 2018 by the Actuarial Consulting Firm Cheiron, Inc., claims that 121 of the current Multi-Employer Pension Plans are underfunded by approximately 49 billion dollars. This is an increase of approximately seven (7) Plans from the previous year, with an underfunding in 2017 of 36.4 billion - a 13.4 billion dollar increase in 2017 versus 2018! The Plan that faces the biggest deficit continues to be the Central States Pension Fund, which provides Retirement Benefits for more than 400,000 Teamsters and is currently 22.9 billion dollars in the hole.
As our readers know, a significant portion of our practice here at Wessels Sherman is devoted to representation of employers in cases involving labor unions. This runs the full spectrum from remaining union-free to dealings with organized labor involving negotiations, arbitration, strikes, picketing, boycotts, and virtually all matters coming under the general description of labor-management relations. In connection with this we keep a close eye on what is happening with labor unions. Here is an update:
A few years ago, there was grave concern that the "Weingarten Rights", 420 U.S. 251 (1975) were going to be extended from just Unionized Employers to Non-Union Employers with the Non-Union individual who may be subject to discipline getting the right to ask a coworker to be present during any Disciplinary Interview. This did not occur, but a recent Decision by the National Labor Relations Board in Circus Circus Casinos, Inc. 336 NLRB No. 110 (2018) has changed the rules going forward.