What’s Good for the Goose Really Is Good for the Gander
In a 3-2 decision, the NLRB announced that unions will have to abide by the same standards as employers with respect to photographing employees during organizing campaigns.   In Randell Warehouse of Arizona, Inc., the Board reversed its 1999 decision in the case, which the U.S. Court of Appeals for the District of Columbia Circuit had refused to enforce.   In 1999, the Board had said that “employer photographing was presumptively coercive, even if it was not accompanied by an express or implied threat or other coercion,” although union photographing was not objectionable unless it was accompanied by express or implied threats or other coercion.  A copy of the 1999 decision is available here.

NLRB Nominees Confirmed
On August 3, the Senate approved nominations of four members, three of whom were serving interim appointments.  The present five-member Board is composed of two Democrats (Liebman and Walsh) and three Republicans (Schaumber, Kirsanow and Chairman Battista).  Ronald E. Meisburg (R) was confirmed as General Counsel.  The fully constituted Board is expected to soon act upon a number of important pending issues, including those dealing with card-check recognition.

Neutrality, Card-Check Agreement with UPS Freight
Gives Teamsters a Second Wind
The announcements at the Teamsters National Convention that the newly acquired UPS Freight (formerly Overnite Transportation) had agreed to neutrality and card-check recognition renewed a failed Teamster organizing campaign that began in 1994.  The campaign began when Overnite was owned by Union Pacific and included a three-year strike that ended in 2004.  Overnite was acquired by UPS last year.  The Indianapolis terminal was the first of more than 300 facilities to become covered by the agreement, and the contract to be negotiated there is expected to serve as a model for other UPS Freight facilties.  See the Teamsters brag about it here.

Disloyalty, False Statements About Employer Are Not “Protected”
Many non-union employers do not realize that their employees are protected by Section 7 of the National Labor Relations Act, which safeguards not only the right of unionized employees to engage in concerted activities for the purpose of collective bargaining, but also the right of all employees, union or non-union, to speak up publicly about their wages, hours and other terms and conditions of work.

That said, the NLRA does not grant employees an absolute right of free speech.  In a recent decision, the U.S. Court of Appeals for the District of Columbia held that statements made by a union supporter to the news media – at the request of the union – that layoffs had left “gaping holes” in the company and “voids in a critical knowledge base,” and that the company was being “tanked” by incompetent management, were not protected by the NLRA.  Accordingly, the employer lawfully terminated the 28-year employee.  The case is Endicott Interconnect Technologies, Inc. v. NLRB.

In refusing to enforce an NLRB Order to the contrary, the Court found that the “disloyal, disparaging and injurious nature of  [the employee’s] attacks on the company ‘ha[s] deprived [him] of the protection of [Section 7 of the NLRA], when read in light and context of the purpose of the Act.’

Two weeks after the Endicott decision, the NLRB ruled 2-1 that a company did not commit an unfair labor practice by discharging an employee who sent letters to the company’s corporate office and a major customer stating that drivers were being asked by the company to underreport their driving time.  The decision is available here.  The Board found the employee’s statements were maliciously false and, thus, not protected.

Hospital Awarded Nearly $17.3 Million After Being Libeled by UNITE HERE
A state-court jury in northern California recently found that UNITE HERE libeled the Sutter Health hospital chain by mailing a postcard to former patients and women of childbearing age who lived near a Sutter Health facility in which the union claimed that the hospitals did not ensure that their bed linens were free of “blood, feces, and harmful pathogens.”  The union sent the postcard after the hospital chain refused to meet with the union to discuss the union’s labor dispute with the hospital’s linen service.

Beware – Violating USERRA Can Be Costly!
A federal judge in Ohio recently awarded a driver almost $84,000 in compensatory and punitive damages after finding that the company denied him a pay differential for time he spent in basic training after he voluntarily enlisted into active duty.  The judge awarded the employee double compensatory damages ($33,926), punitive damages ($50,000) and attorneys’ fees after finding that the denial of the benefit was “improper and willful.”  Clients should be aware that USERRA does not require employers to pay employees during military leave, but if an employer establishes a benefit it may not “discriminate” against employees whose military service is voluntary.  A free link to the decision is not available, but Westlaw customers may find it at 2006 WL 2035650 (Koehler v. PepsiAmerica). 

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