By: Rashal G. Baz

Seyfarth Synopsis: On June 20, 2018, Peter B. Robb, General Counsel for the NLRB, directed regional offices to continue aggressively pursue temporary injunctions to stop categories of potentially unfair labor practices

In a newly released memorandum, National Labor Relations Board (“NLRB”) general counsel, Peter B. Robb (“Robb”) urged regional offices to continue to pursue Section 10(j) relief as an “important tool” for effective enforcement of the National Labor Relations Act (“NLRA”).

Section 10(j) of the NLRA authorizes the NLRB to seek temporary injunctions in federal district courts against employers and unions while a case is being litigated before the administrative law judges and the Board.  Robb touts that “in [his] first six months in office, [he] sent 11 cases to the Board for 10(j) authorization, receiving authorization to proceed” in all of them.

The General Counsel urges regional offices to submit recommendations to the Injunction Litigation Branch of the Board to ask whether or not to seek an injunction for certain types of cases that will most likely warrant a 10(j) injunction. Robb described them as unfair labor practices that may lead to “remedial failure,” including:

  • Discharges that occur during an organization campaign;
  • Violations that occur during the period following certification when parties should be attempting to negotiate their first collective-bargaining agreement; and
  • Cases involving a successor’s refusal to bargain and/or refusal to hire.

Ultimately, Robb notes that “[o]f upmost importance” is that regions expedite the processing of any potential 10(j) case that raises a threat of irreparable harm or remedial failure. The memo explains that the “threshold for proving a violation to a district court is very low” and in light of the highly deferential standard, it doesn’t serve the NLRB’s purposes to delay seeking an injunction solely to strength the theory of violation or merit within the case.

Employers should be mindful of this initiative and, as always, prepared to defend against a possible 10(j) injunction, especially in those categories of cases identified by Robb as appropriate for such extraordinary relief.

By: Glenn J. Smith and Samuel Sverdlov

Seyfarth Synopsis: Given the Ninth Circuit’s recent holding that successor withdrawal liability is governed by a constructive notice standard, private equity companies and other businesses seeking to acquire other enterprises should be hyper-diligent in determining whether the transaction will expose their organizations to withdrawal liability triggered by the seller.

Under the Employee Retirement Income Security Act (“ERISA”), as amended by the Multiemployer Pension Plan Amendment Act (“MPPAA”), generally, an employer may face withdrawal liability when withdrawing from, or ceasing to make payments to, a multiemployer pension plan. If a successor employer acquires an entity that has unpaid withdrawal liability, then the purchasing entity is potentially responsible for that withdrawal liability if it has notice of the liability. Existing precedent provides that to be liable, the purchaser must “(1) be a successor, and (2) have notice of the withdrawal liability.” Withdrawal liability can sometimes be overlooked by successor employers that assume the operations of their predecessor because, broadly speaking, withdrawal liability is an unperfected liability that does not necessarily appear on the seller’s financial statements. Said otherwise, purchasing entities must be completely certain of that which they are assuming.

New case law makes clear that acquirers can no longer simply rely on a seller’s representation that no withdrawal liability exists. On June 1, 2018, in Heavenly Hana, LLC v. Hotel Union & Hotel Industry of Hawaii Pension Plant, the Ninth Circuit held that a private equity company that purchased a hotel in Hawaii was liable for the seller’s unpaid withdrawal liability under the MPPAA. In doing so, the Court overruled the lower District Court’s holding that no withdrawal liability was assumed because “actual notice” was missing. The Ninth Circuit held that the private equity company had “constructive notice” of the selling entity’s unpaid withdrawal liability, which is a sufficient basis upon which to impose successor withdrawal liability “because a reasonable purchaser would have discovered their predecessor’s withdrawal liability.” The Court determined that the purchasing entity had constructive notice of the liability because:

(1) the private equity company had experience with other acquisitions involving multiemployer pension plans, and was familiar with withdrawal liability;

(2) the private equity company was on notice that the employees at the hotel were unionized and that the seller had previously contributed to a multiemployer plan; and

(3) the multiemployer pension plan’s funding notices were publically available, and clearly demonstrated that the plan was underfunded.

The Court rejected the private equity company’s argument that it relied upon the representation of the seller that no withdrawal liability existed. Further, the Court noted that the purchasing entity, rather than the seller or the pension plan, was in the best position to determine whether it will face withdrawal liability because: (1) the seller is incentivized to under-represent any potential withdrawal liability; and (2) the pension plan should not be tasked with keeping track of every sales rumor and identifying all potential purchasers. As the Court stated: “[p]urchasers .. have the incentive to inquire about potential withdrawal liability in order to avoid unexpected post-transaction liabilities.”

This decision serves as a helpful reminder to purchasing entities that in the world of acquisitions, acquirers must push deeply on their inquiries into labor agreements and potential withdrawal liability that frequently accompanies a collective bargaining relationship. As made evident by the Court’s decision in Heavenly Hana, LLC, a purchasing entity cannot simply claim ignorance as an excuse to be absolved of successor withdrawal liability. Rather, purchasing entities should retain experienced transactional counsel, including traditional labor and benefits counsel, to make sure there are no hidden landmines in the transaction.

If you have any questions regarding withdrawal liability, please contact your local Seyfarth Shaw attorney. Glenn J. Smith is a Partner in Seyfarth’s New York office whose practice focuses on management-side traditional labor law. Samuel Sverdlov is an Associate in Seyfarth’s New York office.

The 2018 edition of The Legal 500 United States recommends Seyfarth Shaw’s Labor & Employee Relations group as one of the best in the country. Nationally, for the second consecutive year, our Labor practice earned Top Tier.

Based on feedback from corporate counsel, Seyfarth partner Brad Livingston was ranked in the editorial’s “Leading Lawyers” list, and 4 other Seyfarth Labor attorneys were also recommended in the editorial.

The Legal 500 United States is an independent guide providing comprehensive coverage on legal services and is widely referenced for its definitive judgment of law firm capabilities. The Legal 500 United States recognizes and rewards the best in-house and private practice teams and individuals over the past 12 months. The awards are given to the elite legal practitioners, based on comprehensive research into the U.S. legal market.

By:  Monica Rodriguez

Seyfarth Synopsis: The ALJ found that the employer did not violate the Act where it terminated an employee for using vulgar language during a staff meeting in efforts to undermine the general manager’s managerial authority.

Disciplining employees can sometimes be a challenge when attempting to comply with the National Labor Relations Act (the “Act”). Fortunately for the employer, the Administrative Law Judge (the “ALJ”) in Buds Woodfire Oven LLC d/b/a Avas Pizzeria & Ralph D. Groves, 2018 WL 2298221 (May 18, 2018), found that the termination of the employee who used vulgar language when criticizing the general manager during a staff meeting did not result in protected activity so as to violate the Act.

Background Facts

The general manager of a pizza restaurant had called a staff meeting to make a broad critique of the staff’s performance, and requested feedback from the employees of how they could do better. The general manager set the tone of the meeting by stating that he “didn’t want to come to work to be anybody’s f*cking babysitter.” In response, the charging party employee criticized the general manager and said: “how do you know you don’t do sh*t around here”.

The employee had been frustrated that the general manager did not assist with the kitchen operations like the other managers. The employee had previously expressed his frustration about the general manager to his co-workers. At the hearing, the other employees testified that they joked about the general manager’s actions or inaction, or that they’d ask the general manager to help out in certain cases.

After the staff meeting, the employee went back to work to finish his shift. The general manager terminated the employee after the employee completed his shift. The employee then filed an unfair labor practice claiming that the general manager violated section 8(a)(1) of the Act.

ALJ’s Analysis

The ALJ’s central focus when determining whether the termination constituted a violation section 8(a)(1) of the Act was whether the employee had engaged in concerted protected activity.  The ALJ acknowledged that individual action could rise to the level of concerted activity if those activities were linked to the actions of his co-workers. Just about two years ago, the National Labor Relations Board (the “Board”) reminded that even conduct personal in nature could be enough to constitute concerted activity.[i] The ALJ recognized, however, that the coworkers’ “jokes” about the general manager’s actions and inactions, where none of the coworkers shared the charging party’s concerns,  “falls short of concerted activity.”

The ALJ further noted that it is “difficult to imagine how lashing out at a manager who asks employees for feedback by asking, ‘how do you know you don’t do sh*t around here,’ even begins to lay the foundation for meaningful dialogue about employees’ terms and conditions of employment.” The ALJ found that the employee’s conduct did not entail the nature of his work conditions, but rather, was calculated to undermine the general manager’s managerial authority.

This decision is a pleasant reminder that not all vulgar comments and acts of insubordination need to be tolerated. And while this decision ended favorably for the employer as to this allegation, employers should be mindful that where more than one employee is sharing a similar concern, a vulgar comment seeking to improve employees’ terms and conditions of employment will likely be protected. In these situations, employers should exercise caution before terminating an employee based on the fact that the employee undermined the manager, or the employer might find itself undermined by the Board.

[i] M.D.V.L., Inc., d/b/a Denny’s Transmission Service, 363 NLRB No. 190 (2016) (finding that the employer violated the Act because employee discussed a demand letter for overtime pay with another employee and rejecting employer’s argument that conduct was personal in nature and not concerted protected activity).

 

 

 

 

By Ron Kramer

Seyfarth Synopsis:  While an employer can bargain to impasse and exit a critical status multiemployer pension fund, under the Pension Protection Act it cannot bargain to impasse and implement a proposal that would have it remain in the fund, but under different terms than the rehabilitation plan schedule the parties had previously adopted.

In a case of first impression, the Fourth Circuit held that the Pension Protection Act’s (“PPA”) obligation on bargaining parties to continue to follow a multiemployer pension fund’s rehabilitation plan schedule trumps an employer’s right, upon lawful impasse, to unilaterally implement a proposal to move new hires to a 401(k) plan.  Bakery & Confectionary Union & Industry International Pension Fund v. Just Born II, Inc., Case No. 17-1369 (4th Cir., decided April 26, 2018).

Just Born, the maker of Peeps, participated in the Bakery & Confectionary Union & Industry International Pension Fund (“Pension Fund”).  The Pension Fund is in critical and declining status, and had adopted a rehabilitation plan under the PPA which included a preferred schedule adopted by the Company and its Union pursuant to which Just Born was required to contribute hourly for every bargaining unit employee.

The Company proposed during its 2015 union negotiations that it remain in the Pension Fund for existing employees, but move new hires to a 401(k) plan.  The parties bargained to impasse, and the Company implemented its pension proposal.  The Pension Fund sued.  The Pension Fund relied on a PPA provision (as amended by the Multiemployer Pension Reform Act), 29 U.S.C. § 1085(e)(3)(C)(ii) (“the “Provision”), that the bargaining parties to an expired contract remain obligated to contribute under the rehabilitation plan schedule, which under the Pension Fund’s schedule included all employees, until such time as they reached an agreement.  Indeed, the Provision expressly provides that if the parties cannot reach an agreement within 180 days after contract expiration, the Pension Fund must apply the schedule, as updated, upon which the parties had previously agreed.

The Fourth Circuit ruled for the Pension Fund.  In addition to rejecting various affirmative defenses, the Court rejected the Company’s claim that it ceased being a “bargaining party” governed by the Provision once it reached a lawful impasse because it was no longer a party to an operative collective bargaining agreement.  The Court found that a plain reading of the Provision makes clear that a contract’s expiration cannot alter the employer’s status as a bargaining party.  Indeed, the Provision only applies to parties whose contracts have expired.

The Court further rejected the Company’s Hotel California argument that such an interpretation would mean that once an employer found itself in a critical status plan it would never be able to exit.  The Company argued that Trustees of the Local 138 Pension Trust Fund v. F.W. Honerkamp Co., 692 F.3d 127 (2d Cir. 2012), which upheld an employer’s right to bargain to impasse and implement a proposal to exit a critical status fund, gave it the Company the right to implement its proposal.  The Court distinguished Honerkamp, for it did not provide that an employer could implement a proposal to remain in the fund under different rules than provided for in the rehabilitation plan.

Last but not least, the Company argued that the Pension Fund’s interpretation undermined the Company’s right under the National Labor Relations Act (“NLRA”) to implement its last, best proposal upon impasse.  The Court disagreed, noting that although the right to implement a final offer applies to the Company’s bargaining rights and obligations, the Company’s statutory obligations under the PPA are separate and independent from its rights and obligations under the NLRA.  Just Born was free to bargain to impasse and implement its proposals provided, however, the Company could not implement proposals contrary to the PPA.

Just Born sets an important limit on an employer’s right to bargain to impasse over its participation in a critical or endangered status fund.  An employer is free under the PPA to bargain out and pay the resulting withdrawal liability, even if it has to reach lawful impasse and unilaterally implement.  What it cannot do, according to Just Born, is to remain in the fund but negotiate to impasse and implement conditions on participation different from the rehabilitation or funding improvement plan schedule to which it is a party.  Just Born does not address whether an employer can negotiate to impasse and implement a different schedule provided for in a rehabilitation plan — although it is doubtful since there would still be no agreement as required by the Provision.  Nor does it provide that the bargaining parties can just agree to terms different from a rehabilitation plan schedule.  While a fund may agree to different schedules, it is under no obligation to do so.  Employers beware.

 

  By: Paul Galligan, Esq. and Samuel Sverdlov, Esq.

Last month, the National Labor Relations Board (“NLRB”) vacated election results from a representation election because the Board agent opened the polling for a voting session 7 minutes late. The employer lost the election by a vote of 14-12, with one challenged ballot. However, there were 4 eligible voters (who were present in the polling location during the 7-minute delay) who did not vote in the election. Following the election, the employer filed two objections, one of which challenged the election results because the delay in voting resulted in potential disenfranchisement of a dispositive number of voters. At a hearing before a Hearing Officer, there was no evidence presented regarding either the reasons why the employees did not vote or whether any employees complained that they were prevented from voting due to the delay. Thus, the Hearing Officer overruled the employer’s objection, and the Regional Director adopted the Hearing Officer’s decision.

The employer thereafter appealed the Regional Director’s decision to the Board. In the 2-1 decision, in which Board Members William Emanuel, a Trump-appointee, and Lauren McFerran, an Obama appointee, participated in the majority, together, the Board applied the “potential disenfranchisement test” rather than the “actual disenfranchisement test” to determine whether to set aside the election. The Board majority cited Pea Ridge Iron Ore Co., 355 NLRB 161 (2001) in holding that the key issue in deciding whether to vacate the election is whether the late opening of the polls results in the “possible disenfranchisement of potentially dispositive voters.” As the Board in Pea Ridge stated:

When election polls are not opened at their scheduled times, the proper standard for determining whether a new election should be held is whether the number of employees possibly disenfranchised thereby is sufficient to affect the election outcome, not whether those voters, or any voters at all, were actually disenfranchised.

The Board rejected dissenting Board Member and Obama appointee Mark Pearce’s contention that setting aside an election requires proof of actual-disenfranchisement. Accordingly, the NLRB vacated the results of the election and remanded the case to the Regional Director to conduct a second election.

OUTLOOK

In an era when bipartisan politics appears to be as forgotten as the film, A Bronx Tale, the Bronx Lobster decision reminds us that Republicans and Democrats can still find common ground applying hyper-technical interpretations of union election rules. Specifically, the NLRB is willing to vacate a union election when the polling began 7 minutes late! This decision serves as a valuable lesson to employers that any deviation from the union election rules could result in an election being set aside. Thus, employers should consult with experienced counsel when preparing for a union election to understand the applicable rules, select appropriate observers, and remain vigilant during the election for any irregularities.

If you have any questions please contact your local Seyfarth Shaw attorney.

Yesterday, the National Labor Relations Board (NLRB or Board) issued an Order vacating the Board’s decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (2017), in light of the determination by the Board’s Designated Agency Ethics Official that Member William Emanuel is, and should have been, disqualified from participating in the Hy-Brand proceeding. In Hy-Brand, the NLRB had overruled its joint employer test set forth in Browning-Ferris Industries, 362 NLRB No. 186 (2015),and returned to its pre Browning-Ferris test.

Under the pre Browning-Ferris joint employer test, which the Board had restored in Hy-Brand, two or more entities were deemed joint employers under the National Labor Relations Act (NLRA) if there was proof that one entity has exercised control over essential employment terms of another entity’s employees (rather than merely having reserved the right to exercise control) and did so directly and immediately (rather than indirectly) in a manner that was not limited and routine.

In contrast, under the Browning-Ferris test again in effect, the NLRB finds that two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law;  and (2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board will – among other factors — consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so.

As the Hy-Brand Board majority underscored, the breadth and vagueness of such a joint employer test threatens to ensnare a vast range of economic relationships, including:

  • insurance companies that require employers to take certain actions with their employees in order to comply with policy requirements for safety, security, health, etc.
  • franchisors
  • banks or other lenders whose financing terms may require certain performance measurements
  • any company that negotiates specific quality or product requirements
  • any company that grants access to its facilities for a contractor to perform services there, and then regulates the contractor’s access to the property for the duration of the contract
  • any company that is concerned about the quality of contracted services
  • consumers or small businesses who dictate times, manner, and some methods of performance of contractors

Accordingly, companies in or contemplating such relationships should account for this new development.  While it is widely expected that the Trump NLRB will eventually overrule Browning-Ferris, when that may occur is uncertain.

By: Nick Geannacopulos, Esq. & Jinouth Santos Vasquez, Esq.

Synopsis: Ralphs Grocery v. Victory Consultants, 17 Cal. App. 5th 245 (2017), gives some solace to private property store owners. The Silver lining of the Victory Consultants grocery store decision—petitioners and signature gatherers have no free speech rights on private property, including in store entrances, when engaging in signature gathering for election issues.

Background

In 2012, the California Supreme Court handed unions a significant victory when it restricted the availability of injunctions for picketing by labor unions on private property. Ralphs Grocery Co. v. UFCW Local 8, 55 Cal. 4th 1083 (2012). The court reasoned that although the property around the store was private property, the Moscone Act (California Code of Civil Procedure Section 527.3) and California Labor Code Section 1138.1, limited the authority of courts to issue an injunction in a “labor dispute.” The Court found, however, that non-labor conduct was subject to trespass laws, reasoning that a private sidewalk in front of a customer entrance to a retail store in a small shopping center is not a public forum under the doctrine of Robins v. Pruneyard Shopping Center, 23 Cal 3d 899 (1979). But the Ralphs court did not directly address the issue of whether a non-labor petitioner has a constitutional free speech right to engage in petition activity on private property. The court also did not address what activity is allowed at a store entrance. In Victory Consultants, the California Court of Appeal answered both questions in favor of property owners.

The case

In Victory Consultants, a group engaging in petition gathering activities in front of two Ralphs grocery store entrances were informed that their activity constituted unlawful trespass. After asking the petitioner to leave and failing to get law enforcement to remove the petitioner, Ralphs pursued a case for trespass and sought injunctive relief. Ralphs named the individual on the property as well as the petition gathering company he allegedly worked for as Defendants. The petition gathering company claimed the actual petitioner was not their employee but rather, an independent contractor, and therefore the company should not be liable for his alleged trespass. Before the hearing on the injunction, the company filed an anti-Slapp motion arguing that the complaint arose from acts protected by the United States and California Constitutions and the store was not likely to prevail on the merits. The California Constitution provides that “every person may freely speak, write, and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” Article 1, Section 2 Cal Const. The store argued that the free speech protections were not available because the conduct took place on private property. The trial court granted the anti-Slapp motion, finding that none of the actual petitioners were agents or employees of the company.

The Court of Appeal, relying on Lloyd v Tanner, 407 U.S. 551 (1972), held that free speech rights do not apply to private forums such as a retail store if it is not a Pruneyard public forum. The court held, “where the complaint includes allegations that the challenged conduct occurred on private property which would render the conduct unprotected for anti-Slapp purposes we must consider those allegations as part of our first prong analysis.” The court quoting Lloyd noted that private property owners have a right to exclude persons from their property if there are no common areas at the site that allow people to congregate in a leisurely fashion. The court found:

  • (1) Areas immediately adjacent to entrances of individual stores typically lack seating and are not designed for relaxation;
  • (2) These areas exist solely to let people in the store and to exit the store; and
  • (3) Soliciting signatures for petitions poses a significantly greater risk of interfering with normal business operations when those activities are conducted near the entrances and exits of stores.

Therefore, within a shopping mall or center, the individual store entrances, at least as typically configured, are not public forums under Pruneyard and therefore are off limits for petition gathering activities.

Practical significance

Private property rights seemingly trump the right of free speech in California when it comes to non-Pruneyard activities even when those activities involve core political rights. In particular, the free speech right is trumped by private property rights.

Previously the courts concentrated on the size of the retail mall, but the Victory Consultants case concentrated on the exact location of the activity as opposed to the size of the mall, finding that the store entrance is private property and not subject to trespass. That of course leaves open the areas away from the store entrance for another day.

Legal significance

The special rights previously bestowed on labor activities by the California Supreme Court in prior Ralphs cases become more suspect after Victory. In effect, Victory Consultants makes clear that petition gathering activity on store entrances is off limits because store entrances are not open to the public for purposes of congregating.

By: Robert A. Fisher & Skelly Harper

Seyfarth Synopsis: A 2016 decision of the National Labor Relations Board (“Board”) finding that the graduate students at Columbia University were employees under the National Labor Relations Act (“NLRA”) has been teed up for review by the Court of Appeals. In order to obtain appellate review of the Board’s decision, Columbia University has refused to bargain with the union certified to represent its graduate-student assistants.

In a landmark ruling, Columbia University, 364 NLRB No. 90 (2016), the Obama Board reversed prior precedent and held that graduate-student assistants at Columbia University were employees and therefore could vote on whether to form a union. After the Union prevailed at the election in December 2016, Columbia filed objections and requested a rerun election. In a decision issued in December 2017, the current Board rejected those objections and certified the Union as the exclusive bargaining representative of the graduate-student assistants. 365 NLRB No. 136.

Teeing up the issue of whether graduate-student assistants are employees under the NLRA, Columbia has now refused to bargain with the Union. There is no right to a direct appeal of Board decisions in representation cases, and the only way for the University to obtain review of the earlier election determination is by refusing to bargain with the Union. Presumably, the Union will file an unfair labor practice charge against Columbia that will then lead to an adverse Board decision against Columbia. At that point, the University would be able to ask a federal Court of Appeals to assess whether the Board correctly decided the employee issue in the first instance.

While it is not the Board’s practice to review representation cases in the context of a refusal to bargain, there is reason to believe that the current Board may revisit whether graduate-student assistants are employees under the NLRA. Both Columbia decisions included vigorous dissents by a Republican Board member. In addition, in a separate December 2017 decision in a case involving Harvard University, another Republican Board member noted his view that Board precedent on the employee-status of students warrants reconsideration. Indeed, the Board had previously gone back and forth on the issue. In Brown University, 342 NLRB 483 (2004), the Board held that graduate-student assistants were not employees. Just two years earlier, in New York University, 332 NLRB 1205 (2000), the Board had held that graduate-student assistants were employees under the NLRA.

Regardless of whether the Columbia University decision is revisited through the appeals process or by the Board itself, it is unlikely that the 2016 decision will be the last word on the issue. The final outcome will most certainly impact efforts by unions to organize graduate-student assistants and other students such as residence assistants. The final decision also may impact the cases in which certain college athletes, usually scholarship athletes, are claiming employee status for purposes of state and federal wage-hour laws.

  By: Kyllan B. Kershaw, Esq.

Seyfarth Synopsis: Union organizers are increasingly embracing the #MeToo movement as an organizing tool, claiming that unions are the key to eliminating gender inequity and sexual harassment in the workplace.

Employers across the country are examining their corporate culture and taking steps to avoid being the next sexual harassment headline in response to the #MeToo movement. While employers already have plenty of reason to eliminate sexual harassment in the workplace, the #MeToo movement has also created an uptick in unions claiming that joining their ranks is the key to preventing sexual harassment.

Female union organizers are openly embracing this strategy, publicly forecasting plans to collaborate with the Women’s March and use political action committees to promote unions aimed at protecting women. Given the current focus on sexual harassment, employers can also expect to see unions increasingly target companies with high-profile sexual-harassment or gender-discrimination claims, including employers facing collective actions.

Female union leaders are not only using #MeToo as an organizing tool but to call out organized labor on its own gender issues. For example, in a recent article entitled “What #MeToo Can Teach the Labor Movement,” union organizer Jane McAlevey bemoans the “sexist male leadership inside the labor movement” and calls on women to embrace the idea of a female-led labor movement focused on obtaining free childcare, schedule control, and family leave, including in areas such as education and healthcare where women employees comprise the majority.

Employers should expect that the #MeToo movement’s substantial momentum will spur increased organizing efforts aimed specifically at women and quite possibly result in a significant shakeup of union leadership or the formation of new female-focused unions. As such, female-driven union campaigns are likely on the rise, creating unique issues for employers and an increased need for well-trained female members of management who can persuasively assure female employees that a union is not necessary to stopping harassment, achieving pay equity, and otherwise improving the workplace for women.

Seyfarth lawyers have extensive experience devising strategies to avoid and respond to union campaigns targeted towards women, including those involving claims of sexual harassment or raising issues of gender equity. Please do not hesitate to reach out to any Seyfarth lawyer for more information.