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Is "Management Rights" An Oxymoron?


I am pleased to post my most recent blog for SHRM's We Know Next.

http://www.weknownext.com/blog/is-management-rights-an-oxymoron

Follow me on Twitter at: @Jonathan__HR__Law

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO A SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

 
 
 
 

NLRB's Trojan Horse


I am pleased to post an article by Allen Smith of SHRM on "Micro Units." I am honored to have been interviewed for it.

Here's the link: http://www.shrm.org/LegalIssues/FederalResources/Pages/Unions-microunits.aspx

Thanks,

Jonathan

BLOG DOES  NOT CONSTITUE LEGAL ADVICE, APPLY TO SPECIFIC FACTUAL SITUATIONS OR ESTABLISH ATTONEY-CLIENT RELATIONSHIP

 
 
 
 

Are We Keeping Unions In the Friend Zone?


I am pleased to post my recent article on unions for Fortune/CNN:  http://management.fortune.cnn.com/2012/07/19/unions-public-sector/?iid=SF_F_River

The article provides an overview of some of the reasons for the deep decline in unionization.  But be careful of complacency; management complacency is the union organizer's best friend. 

While unions will try to sell their service wherever there are willing buyers, we have seen an increase in union activity in health care and retail, among other industries.

We are here if you need help in developing a strategic plan to minimize the risk that you will be targeted and respond rapidly if you are.

Thank you

Jonathan

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship

 
 
 
 

Breathe Deeply Before You Read: ALJ Finds At-Will Statement Violates NLRA


In a recent case, an ALJ of the NLRB held that an employer's at will statement in its Employee Handbook violated the NLRA.  I told you that you needed to breathe deeply before reading.  Take another deep breath before continuing.

Of course, the Board has not yet ruled on the ALJ's decision. While I am not a betting man, I think the Board  is as likely to reverse the ALJ as is former Chair Wilma Liebman is to apply for a job with the National Right to Work Legal Defense Foundation.

Does this mean employers should eliminate the at-will language from their handbooks? Of course not!

But, based on the ALJ's "analysis," there are at least two steps we can take to minimize the risk under the NLRA as rewritten by the NLRB.

First, do not make a general statement that the at-will principle cannot be modified "in any way." Make clear it cannot be modified by any supervisor, manager or other representative of the company unless in writing. That way we are not impliedly stating, or so it may be interpreted, that a union could not negotiate a change.

Second, we should require only that employees acknowledge receipt of the handbook as opposed to requiring their agreement, too.  We don't need their agreement and requiring their agreement irritated the ALJ, who wrote: "For all practical purposes, the clause in question premises employment on an employee's agreement" not to engage in union activity that could result in a collective bargaining agreement. 

Independent of the NLRA, requiring agreement may undo the disclaimer that the handbook is not a contract. A results-oriented state court judge might say that, if you are going to require employees to agree to it, you as the employer better comply with it, too.

Of course, independent of both NLRA and state law contract claims, failure to comply with a handbook may be evidence of bias. So make sure your policies provide you with the agility you need to operate in this increasingly fast moving world. 

If you are feeling strong, emotionally and physically, you can read the entire ALJ opinion: American Red Cross Arizona Blood Services Region, Case No. 28-CA-23443 (February 1, 2012)

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

 
 
 
 

THE NLRB AND BOEING: THE LIFE AND DEATH CONSEQUENCES


For the first time I can recall, the NLRB is being talked about as part of the election campaign. No NLRB case is talked about more than Boeing.

In Boeing, the Company had a plant in Washington that had capacity.  Rather than using that capacity for new work, Boeing decided to build a new plant in South Carolina and do the work there.

A Boeing official talked about the risks in having a strike every 3 years as part of decision making process.  The NLRB seized upon that comment and sued Boeing for unlawful retaliation against the union for striking.

The comment by the Boeing official appears to have been take out of context.  Boeing has made clear that other factors, such as lower taxes and incentives from South Carolina, were key to its decision making process.

The law is clear that an employer cannot move work from one site to another to punish employees for exercising their right to strike.  In the Boeing case, there was no loss of work at the union plant.  It was simply a question of where to put the new work to best get it done.

Yet, the General Counsel issued a complaint against Boeing. What are the implications?

Consider the following example in health care.

A hospital has two campuses:  one union and one not.  Assume there have been strikes at the union campus.  During these strikes, there have  been struggles with the delivery of patient care.  Plus, independent of the strikes, the union facility is less productive based on objective criteria.

Assume further, the hospital has decided to build a new center to deal with pediatric cancer.  It chooses the non-union campus because it is more productive and it has had no issues with the delivery of patient care.

No work is lost at the union site.  And the union can try organize the non-union site.  But the NLRB’s “logic” in the Boeing case would suggest that the hospital may have acted unlawfully to the extent any concerns about patient care relate to potential interruptions due to a strike.

Is the NLRB suggesting that the union’s right to get new members (without any work) trumps the hospital’s right to minimize the risk to pediatric cancer patients by picking the location that is the most stable and productive?

The Boeing complaint is not only about management rights.  In health care, it can have life and death consequences.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS ESTABLISHING AN ATTORNEY CLIENT RELATIONSHIP OR AS APPLYING TO SPECIFIC FACTUAL SITUATIONS

 
 
 
 

Union Posting For Certain Government Contractors and Subcontractors


Important: The NLRB's delay of effective date of union posting rule for all employers from November 14, 2011  to January 31, 2012 does not affect OLMS union posting rule applicable to certain federal government contractors and subcontractors.  The OLMS rule remains in full force and effect.

This blog should not be construed as legal advice, as establishing an attorney-client relationship or as pertaining to specific factual situations.

 
 
 
 

Every Day May Be Labor Day At The NLRB But...


On this Labor Day, it is tempting to rail against the NLRB. The reality is that, at the NLRB, every day is labor day.

While employers have good reason to be concerned about the NLRB, employers cannot forget how important our employees are to our success.  As the New York Times accurately noted yesterday, without engaged employees,  an employer is less successful economically. Happier people do work harder!    

Management plays a critical role in helping to create an environment in which employees feel good about their employer and can make a meaningful contribution. The failure of management to meet the reasonable expectations of employees may result in employees being less dedicated, looking at other places to work, bringing claims they otherwise would not bring or seeking the support of a union.

At a very minimum, management should:

1. Provide regular and sincere recognition and appreciation. I firmly believe that, in most workplaces, approximately 85% of the employees do a good job but we spend 85% of our time on the other 15%. We need to re-calibrate the balance as much as we reasonably can.

2. Treat employees consistently where the circumstances are the same or substantially similar. But fairness and consistency are not always the same and managers and supervisors need training on that issue. Sameness does not always equal fairness.

3. Maximize business and social inclusion.  We need to go beyond the legal imperative and harness the diverse talent that exists in our workplaces.

4. Avoid engaging in and respond proactively to abusive and demeaning behavior, whether or not unlawful.  Being an equal opportunity abuser hardly makes one an employer of choice. 

5. Help employees solve workplace problems. Respond to those who raise them. Ask those who don't. Some of your best employees will suffer in silence because they hear the incessant carping of a small few and don't want to be seen as like them.  

6. Provide honest and regular information about the business.  If we want our employees to be business partners, we must treat them as such.

7. Treat employees with dignity and respect.

These are but 7 of the 20 some expectations that I recommend that employers expect of their managers and supervisors. 

The last may be the most important of all,  because it is assaults on dignity and respect that often provide the catalyst for union organizing, litigation and other adversarial situations.

Poor performers don't deserve continued employment. But every employee deserves to be treated with dignity and respect from their first day to their last....employers who forget that are often reminded the hard way.

This blog should not be treated as legal advice, as pertaining to specific factual situations or establishing an attorney-client relationship.

 
 
 
 

Seven Deadly Sins of Social Media


Please see link to article I wrote for Businessweek on practical guidance for executives, managers and supervisors on use of and responding to social media: http://www.businessweek.com/management/social-medias-seven-deadly-sins-08092011.html. Feel free to forward as appropriate.

 

This blog should not be construed as legal advice, as pertaining to specific factual siutations or as creating an attorney-client relationship.

Jonathan Segal

215-979-1869

 
 
 
 
 

Jonathan Segal

Business Ally. Help clients achieve business goals and manage legal risks. Areas of focus include: gender equality; wage and hour compliance; social media; leadership training; union avoidance; performance management; and agreements

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.