{"id":37971,"date":"2016-03-31T19:26:17","date_gmt":"2016-04-01T00:26:17","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/uncategorized\/union-organizing-and-the-virtual-workplace.html"},"modified":"2016-07-05T10:05:37","modified_gmt":"2016-07-05T15:05:37","slug":"union-organizing-and-the-virtual-workplace","status":"publish","type":"corporate","link":"https:\/\/corporate.findlaw.com\/litigation-disputes\/union-organizing-and-the-virtual-workplace.html","title":{"rendered":"Union Organizing and The Virtual Workplace"},"content":{"rendered":"
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Unions face major challenges in organizing employees at today\u2019s virtual workplaces. No longer can union representatives simply station themselves at plant gates when workers change shifts. Today\u2019s workers are often widely scattered and many are connected with the company and their fellow workers only through computer networks.<\/p>\n

Unions are using electronics to their own advantage by creating Web sites and union-sponsored computer networks. Nevertheless, unions must discover an effective means of convincing a company\u2019s virtual workforce to support organization. The National Labor Relations Board<\/a> is trying to help by allowing unions access to employee names and home addresses during an organizing campaign. Under current law, Excelsior Underwear<\/i>, 156 NLRB 1236 (1966), employers must give this information to unions shortly after a representation petition is filed. The Board wants to give unions this critical information before a petition is filed.<\/p>\n

New Board Policy<\/b><\/p>\n

This change in Board policy was announced in Technology Service Solutions<\/i>, 324 NLRB 298 (1997), by a panel consisting of Chairman Gould and Members Fox and Higgins. It has not progressed much further since.<\/p>\n

Technology Service Solutions (TSS) began as an IBM-Kodak partnership and, while the case has been pending, became a wholly-owned IBM subsidiary. It provides computer repair and warranty services to commercial customers through customer service representatives (CSRs). CSRs go to customer sites. They do not display TSS logos on their clothing or on their vehicles. Many customers do even know the CSRs work for TSS because they identify themselves as representing the computer manufacturer. Most CSRs work out of their homes<\/a> and have very little contact with their fellow CSRs. They communicate with their regional offices electronically through portable terminals and small IBM Thinkpad computers. TSS does not even publish employee lists. CSRs are supposed to attend an annual regional meeting and monthly territory meetings, but many choose not to travel and attend electronically.<\/p>\n

IBEW began organizing CSRs when one particular CSR, Dennis Phillips, contacted the union in October 1994 after receiving a pay cut. Working through Phillips, the union filed a petition seeking to represent CSRs based in Colorado. The regional director instead directed an election in a different unit covering most of Colorado and parts of three other states. TSS handed over a 63-employee Excelsior list with names and home addresses. The election was held by mail ballot. However, the ballots were impounded when the Board granted the employer\u2019s request for review. The Board (1995 NLRB LEXIS 891) agreed with the employer that the smallest appropriate unit was TSS\u2019s Southcentral region, covering eight states and 236 CSRs. The Board panel (Chairman Gould and Members Cohen and Truesdale) noted control was centralized at the regional level and TSS had no office structure below the regional level.<\/p>\n

Rapid Expansion<\/b><\/p>\n

This Board ruling expanded the unit<\/a> fourfold. It created serious problems for IBEW. The union could no longer satisfy the Board\u2019s 30% showing of interest requirement. The union moved to reduce that requirement but that motion was denied by the region and later by the Board. The union then demanded that TSS give it all CSR names and addresses in the entire Southcentral region. TSS refused. The union promptly filed a Section 8(a)(1) charge alleging it had \u201cno reasonable alternative means\u201d of discovering those employee names and addresses. A complaint issued, and this novel Board theory headed for a confrontation with reality.<\/p>\n

The Board\u2019s administrative law judge dismissed this complaint (1996 NLRB LEXIS 682). The Board reversed and sent the case back to the ALJ for a further hearing. The Board held the General Counsel had presented sufficient evidence to overcome the employer\u2019s dismissal motion. The Board pointed to McDermott Marine Construction<\/i>, 305 NLRB 617 (1991), where an offshore oil rig operator was ordered to provide the union with reasonable onshore access to its employees, and to S&H Grossingers<\/i>, 156 NLRB 233 (1965), enf\u2019d, 327 F.2d 26 (2d Cir. 1967), where a mountain resort hotel was required to give the union access to its employees on its premises.<\/p>\n

Reality again intruded. On remand, ALJ James Kennedy again dismissed the complaint, 1999 NLRB LEXIS 47 (February 2, 1999). He found the union \u201cmade no serious effort\u201d to reach eligible CSRs and \u201cdid not take reasonable steps\u201d to do so. He criticized the union for not utilizing the 16 international representatives assigned to this organizing campaign and for relying almost exclusively on Phillips, \u201ca poor resource\u201d who was geographically isolated in Grand Junction and \u201cignorant of company communication procedures\u201d as well. The ALJ found the Southeast regional CSRs \u201care reachable by traditional means\u201d and concluded \u201cunlike the remote work site cases, these people are not inaccessible.\u201d<\/p>\n

Back Again<\/b><\/p>\n

This case is now back before the Board, which must struggle to save its novel theory against decidedly unfavorable facts. TSS presents a fairly typical virtual workplace, with widely scattered employees and a fluid and shifting work force that changed dramatically during the five years this case has been pending. IBEW was able to attract sufficient support for its original petition covering 63 CSRs. The 236 CSR multi-state unit was not impossible because almost half of those CSRs were clustered in major cities such as Denver (35), Kansas City (16) and Oklahoma City (12 to 15). Moreover, other CSR groups were based at customer locations such as Boeing in Wichita (12 CSRs) and IBM in Boulder (7 to 8 CSRs).<\/p>\n

This is not a good case for the Board. Unlike the offshore oil rig employer and the mountain resort hotel, TSS did nothing to block the union from gaining access<\/a> to its employees. Those cases involve the very different issue of non-employee union organizer access to employer properties.<\/p>\n

The current Democratic-controlled Board will not throw in the towel. This novel pre-petition employee names and addresses requirement will be kept alive unless the 2000 elections change the political composition of the Board. The simple truth is that today\u2019s unions need government\u2019s help to organize virtual workplaces.<\/p>\n

*article courtesy of Nixon Peabody LLP.<\/i><\/p>\n","protected":false},"excerpt":{"rendered":"

Unions face major challenges in organizing employees at today\u2019s virtual workplaces. No longer can union representatives simply station themselves at plant gates when workers change shifts. Today\u2019s workers are often widely scattered and many are …<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_categories":[6520,6532],"class_list":["post-37971","corporate","type-corporate","status-publish","hentry","corporate_categories-litigation-disputes","corporate_categories-litigation-disputes__other-litigation-disputes"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate\/37971","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=37971"}],"wp:term":[{"taxonomy":"corporate_categories","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_categories?post=37971"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}