When a union begins to “organize” employees in your workplace, it must first determine which employees it wants in the “bargaining unit”: Production? Maintenance? Sales? Clerical? Shipping? Receiving? Some of the above? All of the above? However, whether or not the bargaining unit the union chooses is “appropriate” ultimately will be determined by the National Labor Relations Board (“NLRB” ).

Historically, the NLRB’s primary concern has been whether or not the employees chosen have substantial mutual interests in wages, hours, supervision and other terms and conditions of employment, known as a community of interest. Thus, in most industries unions have organized using a facility-wide (location specific) model. For example, at a delivery company all couriers on all shifts almost certainly would be in the same unit. Indeed, neither a union nor an employer would have had much chance of prevailing were it to argue that the couriers who handle airfreight packages should be in a separate unit from the couriers who handle ground packages or that each shift should be in a separate bargaining unit.

The underlying policy reason for nonproliferation of bargaining units is that to do otherwise would not make for good labor relations. For example, each separate bargaining unit could have its own contract with different work rules and benefits, its own expiration date, and be organized by any labor union in the land. However, the current activist NLRB has decided that such an arrangement would be a good thing and, in doing so, has demonstrated its pro-union bias yet again. In addition to the chaos mentioned above, organizing a larger group is more difficult for the union than organizing a smaller group. Using the courier company example again, meeting with and persuading 12 couriers, all of whom work the night shift, is less time-consuming than meeting with and persuading 70 couriers that work all three shifts.

The first NLRB decision that approved a “micro” unit was Specialty Healthcare. In that case, the nursing home and rehabilitation center had various employee groups, including nurses, nurse assistants, cafeteria workers, maintenance workers, housekeeping, laundry and social services/rehabilitation staff. Normally, an appropriate unit would have consisted of all of the above except the registered nurses, because professionals are treated differently. But the NLRB approved a micro unit of solely nursing assistants, creating the potential for the other small employee groups to organize separately.

Historically, healthcare cases such as Specialty Healthcare have been used to provide guidance only for other healthcare cases, so there was some sense that this doctrine would not spread beyond healthcare. But that proved not to be the case as just last month a “micro” unit was approved for a cosmetic and fragrance department in a retail store in Macy’s, Inc.

In that case the NLRB approved a micro unit consisting of only the cosmetic and fragrance department employees at the Macy’s store. Macy’s argued to no avail for a unit that included all sales floor personnel. The NLRB held that because the cosmetic department employees did not also work in other departments and their pay structure was substantially different from all other store employees, they alone constituted an appropriate unit. It is certainly possible under the logic of the Macy’s decision that it would be just as easy for the shoe salespersons just across the aisle from cosmetics, the jewelry department workers across the other aisle from fragrances, and any other micro unit in the store to be granted “unique” status with the department store. That means any one of these “micro” units can be separately organized as discussed above, and that anyone could strike and shut down the entire store. Is that good labor policy? Only for a Labor Board that is in thrall to organized labor.

But there is some good news. Only a week after the Macy’s decision, the NLRB dismissed a petition and, in doing so, outlined some useful restrictions that may limit the growth of “micro” units. The dismissal decision involved a petitioned-for unit of women’s shoes employees from the store’s Salon shoes and Contemporary shoes departments. Unlike in Macy’s, the union could not establish a community of interest specific to that group because the employer had not established a clear departmental differentiation as it had in Macy’s. The unit petitioned for in Bergdorf Goodman included some employees from a second department, Contemporary Sportswear, but excluded that department’s other sales associates, which the NLRB viewed as a departure from the Employer’s organizational structure.

However, in making the Bergdorf Goodman decision, the NLRB noted that it would likely have approved the unit had the following factors been present:

Therefore, employers may look to the missing Bergdorf Goodman factors for guidance.

Implications for Employers and Employees

In the wake of these NLRB decisions, employers should be aware of “micro” bargaining units, their own employees’ movement to organize, and the potential impact on the work environment. Because it is now clearly possible for a small group of employees to be deemed a “micro” unit under the right conditions, employers may consider reevaluating their workplace structure, with consideration for:

Byandnbsp;Leslie G. Wolfe and John A. Heer

Wetlands are a major issue for almost anyone who owns commercial or industrial property – now more than ever thanks to the EPA’s new overly broad definition of what constitutes protected wetlands. A case in point involves a Walter | Haverfield client who owns a small piece of commercial property.

Several months before contacting us, the client had cleared and paved an area to provide more space for a tenant to park trucks on an adjacent parcel. At the time of the work, the client was unaware that there might be wetlands on the property.

Based on information supplied by an anonymous neighbor, the U.S. Army Corps of Engineers issued a violation notice to the client, alleging that material had been placed in the area illegally because it was on regulated wetlands without receiving prior authorization – a violation of federal law. The Corps’ letter presented two options for the client to remedy the violation. Under the first option, the client could remove the fill material, restore the area to pre-disturbance elevations and grades, and re-seed and mulch the disturbed area with an approved wetland seed mix. Alternatively, the client could apply for after-the-fact authorization for the prior filling.

Because the Corps took the position that half of the filled area contained broken asphalt, if the client chose to apply for after-the-fact authorization, it would be required to remove the broken asphalt and submit additional information for the permit, including a wetland delineation, drawings of the proposed project showing the areas to be filled from a top and side view, and a proposal for mitigation to offset wetland impacts.

The client’s objective was to take the path of least resistance and lowest cost to ensure the marketability of the property. Although the client originally sought to obtain a permit for the work that was already done, our environmental legal team advised that the more cost-effective and efficient response would be to remove the fill and restore the property.

Our attorneys worked with the client to reach an agreement with the Corps that the fill would be removed from the wetland areas. The Corps agreed to issue written approval for the proposed restoration plan. Under the plan, the client agreed to re-grade areas to their original depth; seed the area with an approved wetland seed mix; and dispose of the asphalt. About a week after the removal and restoration work was completed, the Corps issued its Acceptance of Restoration letter, confirming that the violation had been resolved.

Just a few of the lessons which can be learned from this case include:

To reach Attorney Wolfe, call 216-928-2927 or e-mail lwolfe@walterhav.com.

When a union begins to “organize” employees in your workplace, it must first determine which employees it wants in the “bargaining unit”: Production? Maintenance? Sales? Clerical? Shipping? Receiving? Some of the above? All of the above? However, whether or not the bargaining unit the union chooses is “appropriate” ultimately will be determined by the National Labor Relations Board (“NLRB” ).

Historically, the NLRB’s primary concern has been whether or not the employees chosen have substantial mutual interests in wages, hours, supervision and other terms and conditions of employment, known as a community of interest. Thus, in most industries unions have organized using a facility-wide (location specific) model. For example, at a delivery company all couriers on all shifts almost certainly would be in the same unit. Indeed, neither a union nor an employer would have had much chance of prevailing were it to argue that the couriers who handle airfreight packages should be in a separate unit from the couriers who handle ground packages or that each shift should be in a separate bargaining unit.

The underlying policy reason for nonproliferation of bargaining units is that to do otherwise would not make for good labor relations. For example, each separate bargaining unit could have its own contract with different work rules and benefits, its own expiration date, and be organized by any labor union in the land. However, the current activist NLRB has decided that such an arrangement would be a good thing and, in doing so, has demonstrated its pro-union bias yet again. In addition to the chaos mentioned above, organizing a larger group is more difficult for the union than organizing a smaller group. Using the courier company example again, meeting with and persuading 12 couriers, all of whom work the night shift, is less time-consuming than meeting with and persuading 70 couriers that work all three shifts.

The first NLRB decision that approved a “micro” unit was Specialty Healthcare. In that case, the nursing home and rehabilitation center had various employee groups, including nurses, nurse assistants, cafeteria workers, maintenance workers, housekeeping, laundry and social services/rehabilitation staff. Normally, an appropriate unit would have consisted of all of the above except the registered nurses, because professionals are treated differently. But the NLRB approved a micro unit of solely nursing assistants, creating the potential for the other small employee groups to organize separately.

Historically, healthcare cases such as Specialty Healthcare have been used to provide guidance only for other healthcare cases, so there was some sense that this doctrine would not spread beyond healthcare. But that proved not to be the case as just last month a “micro” unit was approved for a cosmetic and fragrance department in a retail store in Macy’s, Inc.

In that case the NLRB approved a micro unit consisting of only the cosmetic and fragrance department employees at the Macy’s store. Macy’s argued to no avail for a unit that included all sales floor personnel. The NLRB held that because the cosmetic department employees did not also work in other departments and their pay structure was substantially different from all other store employees, they alone constituted an appropriate unit. It is certainly possible under the logic of the Macy’s decision that it would be just as easy for the shoe salespersons just across the aisle from cosmetics, the jewelry department workers across the other aisle from fragrances, and any other micro unit in the store to be granted “unique” status with the department store. That means any one of these “micro” units can be separately organized as discussed above, and that anyone could strike and shut down the entire store. Is that good labor policy? Only for a Labor Board that is in thrall to organized labor.

But there is some good news. Only a week after the Macy’s decision, the NLRB dismissed a petition and, in doing so, outlined some useful restrictions that may limit the growth of “micro” units. The dismissal decision involved a petitioned-for unit of women’s shoes employees from the store’s Salon shoes and Contemporary shoes departments. Unlike in Macy’s, the union could not establish a community of interest specific to that group because the employer had not established a clear departmental differentiation as it had in Macy’s. The unit petitioned for in Bergdorf Goodman included some employees from a second department, Contemporary Sportswear, but excluded that department’s other sales associates, which the NLRB viewed as a departure from the Employer’s organizational structure.

However, in making the Bergdorf Goodman decision, the NLRB noted that it would likely have approved the unit had the following factors been present:

Therefore, employers may look to the missing Bergdorf Goodman factors for guidance.

Implications for Employers and Employees

In the wake of these NLRB decisions, employers should be aware of “micro” bargaining units, their own employees’ movement to organize, and the potential impact on the work environment. Because it is now clearly possible for a small group of employees to be deemed a “micro” unit under the right conditions, employers may consider reevaluating their workplace structure, with consideration for:

To reach Attorney Englehart, call 216-928-2929 or e-mail fenglehart@walterhav.com.

Everywhere you look lately, LGBT rights are making headlines. States as diverse as Wisconsin, Texas, Kentucky, Arizona and Kansas have been in the news for their legislative attempts to either increase or limit the rights of LGBT citizens.andnbsp;

At a national level, there have been some major changes regarding LGBT rights. Earlier this year, the U.S. government expanded the rights of same-sex spouses in the federal context, and last year a U.S. Supreme Court ruling struck down the 1996 Defense of Marriage Act (DOMA), which had blocked federal recognition of gay marriages. Regarding health insurance benefits, the U.S. Department of Health and Human Services announced on March 14, 2014, that, under the Affordable Care Act, insurance companies which offer benefits to opposite sex spouses must offer such benefits to same-sex spouses by Jan. 1, 2015.andnbsp;

In December 2013, a federal judge in Ohio ordered authorities to recognize gay marriages on death certificates, despite Ohio’s ban against same-sex marriages. In April 2014, another federal judge ruled that Ohio must recognize same-sex marriages performed in other states. Further, state lawmakers in Ohio recently withdrew legislation mimicking a controversial Arizona bill proposing to allow those who assert religious beliefs to refuse service to LGBT community members.andnbsp;

Despite this changing landscape, little has changed, to date, in federal or Ohio employment discrimination laws as it relates to LGBT employees in the private sector, as well as many parts of the public sector. There are signs, however, that this is changing.andnbsp;For instance, an employer with an Equal Employment Opportunity (EEO) statement or policy may consider including a statement prohibiting discrimination based upon sexual orientation or gender identity. Likewise for policies such as sexual harassment, workplace violence and anti-discrimination; andandnbsp;training employees, supervisors and subordinates alike (but in different training sessions) on the revised policies.andnbsp;

The federal government already prohibits employment discrimination against federal government employees based on sexual orientation only. In addition, President Barack Obama recently signed an executive order that prohibits job discrimination by federal contractors on the basis of sexual orientation and gender identity. And Congress has revived its attempt to pass the Employee Non-Discrimination Act, or ENDA, which would protect all employees (private and public sector) from job discrimination based on sexual orientation.andnbsp;

In Ohio, an executive order signed by Gov. John Kasich establishes an anti-discrimination policy in state government employment only. This order prohibits discrimination in the workplace on the basis of sexual orientation, but it does not include language prohibiting discrimination on the basis of gender identity.andnbsp;

In addition, at a municipal level, there are a dozen municipalities (including many of Ohio’s larger cities) that prohibit job discrimination based on sexual orientation and/or general identity in both private and public employment. These include the cities of Athens, Bowling Green, Canton, Cincinnati, Cleveland, Columbus, Coshocton, Dayton, Newark, Oxford and Toledo, as well as the Village of Yellow Springs.

There are five Ohio municipalities that prohibit discrimination based on sexual orientation and/or gender identity in public employment only: Akron, Cleveland Heights, Gahanna, Hamilton and Oberlin.

Legislative change definitely is coming. Regardless of when it comes, Ohio employers may want to start instituting changes in their company policies regarding LGBT employees.

Ways employers can address LGBT rights include:

learning what laws do currently apply. Employers should consult legal counsel to find out what laws apply;

Should you decide to get out in front of this issue and enact policies that exceed what is currently required by law, keep in mind that, by enacting these policies, you provide your employees with enforceable rights. Thus, be certain you are enacting reasonable policies and provide the proper training to managers and supervisors on the implementation and enforcement of the policies. And, as always, consult with legal counsel prior to making any formal changes.

Many Ohio employers have determined that discrimination of any kind can detract from employee morale, recruitment and retention, and, ultimately, productivity. As employers have discovered over time, the best business and employment decisions are based on objective metrics and operational needs.

U.S. Supreme Court May Clarify Employer’s Obligations to Accommodateandnbsp;

Pregnant Workers

The Court will Address the Equal Employment Opportunity Commission’s Obligations to Conciliate Prior to Bringing a Lawsuit