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In June 2016, AmSurg Corp. and Envision Healthcare Holdings, Inc. (Envision) announced they have signed a definitive merger agreement pursuant to which the companies will combine in an all-stock transaction. Upon completion of the merger, which is expected to be tax-free to the shareholders of both organizations, the combined company will be named Envision Healthcare Corporation and co-headquartered in Nashville, Tennessee and Greenwood Village, Colorado. The company's common stock is expected to trade on the New York Stock Exchange under the ticker symbol: EVHC. Bass, Berry & Sims served as lead counsel on the transaction, led by Jim Jenkins. Read more.

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Inside the FCA blogInside the FCA blog features ongoing updates related to the False Claims Act (FCA), including insight on the latest legal decisions, regulatory developments and FCA settlements. The blog provides timely updates for corporate boards, directors, compliance managers, general counsel and other parties interested in the organizational impact and legal developments stemming from issues potentially giving rise to FCA liability.

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Labor Talk Blog: NLRB Finds No ULP by VW in Chattanooga

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February 5, 2014

The National Labor Relations Board (NLRB) has found that Volkswagen (VW) did not commit unfair labor practices (ULPs) in the support its German parent company showed to the United Auto Workers' union (UAW) at VW's plant in Chattanooga. Despite apparent opposition from members of management at the Chattanooga VW plant, and despite concern expressed by the business community in southeast Tennessee and northern Georgia over VW's decision to essentially "invite" the UAW into the Chattanooga plant, it appears that the UAW has sufficient cards to ask for an election and most likely enough support to win representation among the VW production employees. The decision to dismiss the ULP charges opens the door for that process to move forward.

As noted below, the NLRB's findings appear to use "results-oriented" reasoning in support of the UAW, such as:

  • Finding that statements supportive of the UAW, such as 1) the UAW would be a "natural partner," 2) that direct communication between workers' representatives globally was essential to good working conditions, and 3) and that U.S. labor law required participation by a labor organization before employees could form a works council, were not unlawful;
  • Finding it "well settled" that a "certain amount of employer 'cooperation' with the efforts of a union to organize its employees is lawful;"
  • Finding that statements threatening assignment of production only if the union wins the election, which statements were made by Board members of VW's German parent company, were not attributable to VW’s Chattanooga management and thus not unlawful.

The NLRB has now set the dates of February 12 – 14 for the employees to vote on whether to be represented by the UAW at VW’s plant in Chattanooga.

Discussion

In an Advice Memorandum, the NLRB's General Counsel recently advised that VW did not commit ULPs in connection with organizational efforts by the UAW. A group of Chattanooga employees – supported by the National Right to Work Legal Defense Foundation – had complained that VW had given unlawful assistance to the UAW and threatened to assign production for a second model to the Chattanooga plant on employees' selection of the UAW as their bargaining representative. The Advice Memo found that statements made by Board members of VW's German parent company could be attributed to VW's American subsidiary. The Advice Memo also found that VW did not unlawfully express support for the UAW to VW's American employees, and that VW did not make any unlawful threats.

VW has received a lot of attention over the past several months regarding its apparent desire to form a "Works Council" for its Chattanooga plant similar to the type of councils found in a number of VW's manufacturing facilities around the world. In its effort to organize the Chattanooga employees, the UAW had distributed materials containing statements from members of the VW Works Council and the VW Supervisory Board encouraging the formation of a Works Council at the Chattanooga plant through cooperation with the UAW. Since the National Labor Relations Act prohibits an employer from improperly providing assistance to or dominating a labor organization attempting to obtain bargaining rights on behalf of the employer's employees, VW had determined that a Works Council in the U.S. would have to include a "labor organization" and that the UAW would have to establish that it represents a majority of the employees in an appropriate unit to obtain bargaining rights for the VW employees at that facility.

The General Counsel concluded that statements made by representatives of VW's Work Councils elsewhere could not be attributed to the management of VW’s American subsidiary, including statements regarding the threat of assigning future work based on the implementation of a Works Council with the UAW in Chattanooga. The Advice Memo found no violation even though statements included the following: that the UAW would be a "natural partner," that direct communication between workers' representatives globally were essential to good working conditions, and that U.S. labor law required participation by a a labor organization before employees could form such a council. Those statements were lawful, according to the NLRB's General Counsel, "regardless of who said them, or on whose behalf they were said." The Advice Memo went so far as to emphasize that it was "well settled" that a "certain amount of employer 'cooperation’ with the efforts of a union to organize its employees is lawful."

There also were statements explaining that the allocation of production of a second vehicle to the Chattanooga site would be made only after it was "clear how to proceed with the employees' representatives in the United States." The Advice Memo did find that such statements could "perhaps" be understood to condition future expansion at the facility on the employees' representational status, but concluded that since those statements were not made by members of management at the Chattanooga facility, they could not be "attributed" to the actual "employer."

In a related ruling, the Board found that charges claiming the UAW had made misrepresentations to the employees about the effect of the authorization cards it was soliciting them to sign, and improperly setting up "hurdles" for employees who had signed cards but then decided to revoke them, were without merit. The Division of Advice found that even assuming there was corroboration for claims that authorization cards were secured through misrepresentations, the charging parties "did not show that such conduct would be unlawful restraint or coercion under the Act."

Clearly, under NLRB precedent, it is improper for an employer to provide "support" for a "labor organization" attempting to become the collective bargaining representative for its employees, or to "dominate" such an organization by essentially forming and directing its activities. The rise of interest in "employee committees" some years ago as an alternative to representation by "formal" unions was found to run afoul of such limitations if such committees actually engaged in "bargaining" over terms and conditions of employment. It also is clearly unlawful for an employer to threaten its employees with adverse economic consequences for their support – or lack of support – for a labor organization.

Nonetheless, this NLRB found that there was no unfair labor practice committed here. This is not surprising, given the current makeup of the NLRB, and the heavy influence of organized labor on the current administration. Similarly, the NLRB has demonstrated a strong reluctance to find that a labor union attempting to organize employees has "misrepresented" when attempting to persuade employees to sign authorization cards, especially since the NLRB has a secret ballot election process.


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