Labor Relations Update

Mark Batten is a Partner in the Labor & Employment Law Department and resident in the Boston office. He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark has substantial experience with arbitration matters. He regularly represents employers in arbitrations of union grievances. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

These days, a union protest or picket that doesn't include a 16-foot inflatable rat, well, just isn't really a protest.  Expect to see more of them after the Board's decision yesterday in Brandon Regional Medical Center (pdf).  (For an enormous compilation of rat photos, see this link).  The Board held that the ubiquitous rat may be used not only to protest at a site of the employer with whom the union has a labor dispute, but also at those of "secondary" employers who do business with the primary employer.

In this case, the union had a dispute with Massey Metals and its temp firm WTS, which was providing nonunion employees to do sheet metal work at the Brandon Regional Medical Center, where Massey was constructing an addition.  The union inflated the rat and positioned it 100 feet from the front door of the hospital, and union members handed out leaflets.  One union member stood near the hospital's vehicle entrance and held out the leaflet with both hands to show visitors driving in and out of the hospital parking lot.

Section 8(b)(4)(ii)(B) of the Act prohibits unions from "threatening, coercing, or restraining" employers who do business with a primary employer when the object of the activity is either to coerce the secondary employer to stop doing business with the primary, or to force the primary to recognize the union. 

Relying entirely on last year's decision in Carpenters Local 1506 (Eliason & Knuth of Arizona, Inc.), which had held that the use of stationary banners at a secondary employer did not violate the Act, the Board held that the rat and outstretched leaflet were permissible because they were merely "persuasive" and not "intimidating." 

In dissent, Member Hayes found the use of the rat ("a well-known symbol of labor unrest") to be inherently coercive, and its use tantamount to picketing.  The union member holding out the leaflet, Member Hayes reasoned, was not handbilling; he was effectively wearing a placard, long held to be the equivalent of a picket sign.

The Board's decision is notable not only for its conclusion, which will undoubtedly spark greater activity and greater burdens for employers who have no labor dispute, but also for its heavy, almost single-minded reliance on its own 2010 decision and apparent lack of interest in finding support for its conclusions in older cases. 

Rhetoric back and forth between union and employer representatives is nothing new, but employers may have to start watching their words more carefully in light of the Board's surprising Jan. 31 decision in Regency House of Wallingford (PDF).  After an ALJ ordered rescission of a unilateral wage increase for certain junior employees, the employer tried to convince the union to engage in general bargaining that would allow the increase to remain in place without having to give the same increase to all unit members.  In support of that suggestion, the employer sent several letters to the union's Vice President (alone), opining that the union's demand for the rescission was not in the interests of its members, and that the Vice President was only looking out for the senior members. 

The Board held (2-1, Member Hayes did not join in this aspect of the decision) that the employer had violated Section 8(a)(1) by "denigrating" the union in the letters.  The Board brushed off the employer's argument that its letters were protected by Section 8(c), saying that the letters "contained an implicit threat that employees' representation by the Union would be futile." 

One might expect at least that such a violation would depend on communication of this "threat" to the bargaining unit, but it appears that the employer had done nothing to publicize the letters.  To the contrary, it was the union vice president who shared the letters with seven stewards and bargaining committee members, and who testified that she elected to discuss the letters with "an unspecified number of employees." 

The case also involved a number of more mundane unfair labor practices, and it remains to be seen whether sharp comments to a union vice president would be sufficient, standing alone, to warrant the finding of a violation.  But both the content of the employer's letters, and the limitation of their communication to a single union official, make this an unusual, and potentially quite troubling, decision.