Interactions between employers and labor unions generally fall under the purview of the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., which protects workers’ rights in regard to various labor organizing activities nationwide. In New York City, Mayor Bill de Blasio has imposed additional restrictions on employers and labor unions in certain situations. Executive Order No. 19 (EO19), issued in July 2016 and entitled “Labor Peace for Retail Establishments at City Development Projects,” requires covered employers and employees to enter into “labor peace agreements.” EO19 has come under criticism by various business interests, and it could be subject to court challenge.
The NLRA protects the rights of workers to organize for the purpose of collective bargaining and to engage in “concerted activities” toward that end. 29 U.S.C. § 157. Employers are generally prohibited from interfering with employees’ exercise of these rights or discriminating or retaliating against employees for union-related activity. Id. at § 158(a). The NLRA does not specifically say, however, that an employer cannot state its opposition to a union representing its employees. Employers are generally permitted to state a case for or against union organizing. It is theoretically then left to the employees to decide for themselves.
Before discussing how EO19 affects union organizing activities in New York City, it is important to note the limitations on its coverage. It only applies to “city development projects” that are larger than 100,00 square feet if commercial, or larger than 100 units if residential. “Covered employers” include retail and food-service businesses operating on the premises of a covered city development project, provided that they have at least 10 employees and occupy at least 15,000 square feet. Although EO19 only applies to business establishments physically located in New York City, it could affect New Jersey-based businesses that operate retail or food-service locations there.
EO19 defines a “labor peace agreement” as an agreement between a covered employer and a labor union that is enforceable as a contract and compliant with the NLRA and that provides that the parties agree to refrain from specific activities. Labor unions must, on behalf of their members, “agree to refrain from picketing, work stoppages, boycotts or other economic interference.” EO19 at § 1, p. 3. Covered employers must agree “to maintain a neutral posture” regarding labor organizing efforts. Id. This provision is likely to be the most controversial, both politically and legally.
Various interest groups from the business world, who are rarely amenable to policies that facilitate union organizing, have raised a wide range of objections to EO19’s requirement that employers remain neutral during union organizing. An executive order that arguably subjects employers to a prior restraint raises First Amendment issues. The U.S. Supreme Court struck down a similar provision in California, ruling that it was preempted by the NLRA. Chamber of Commerce v Brown, 522 U.S. 60 (2008).
On a practical level, EO19 does not specify a method of enforcement, so it is not clear what would happen to an employer or union who does not abide by the “labor peace” requirements. The lack of enforcement poses problems for both sides in a labor negotiation.
If you need to speak with a civil rights attorney in New Jersey or New York, contact the Resnick Law Group online, at 973-781-1204, or at 646-867-7997.
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