U.S. Soccer Union Claims Ability to Reject Promotional Material Involving Players

The collective bargaining agreement between the U.S. men’s national soccer team and its players’ union is silent on the issue of advertisement approvals. The players union recently asked the Seventh Circuit Court of Appeals to affirm an arbitral finding that the union has the power to reject promotional materials sought by U.S. Soccer Federation sponsors. The union said the federation and union have operated under such an understanding for years, and that the arbitral award rightly filled a gap in the collective bargaining agreement between the two sides. The federation, on the other hand, asserts that it is not obligated to seek the union’s approval for ads. At most, said the federation, approval is needed only for video spots, and that arbitrator overstepped his bounds in obligating a preapproval process for print ads. Of course, the easiest solution would have been to fill the gap in the union contract through collective bargaining instead of having to go through an arbitration process and an appeal.

The National Basketball Association is likely paying close attention to the outcome of this case as it tests the waters for placing advertisements on players’ uniforms. The NBA first put a logo on players’ jerseys during the All-Star game with expectation to rolling out similar advertising opportunities in the future. My guess is that the NBA will address this issue during labor negotiations before basketball players become walking billboards.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Union Pension Fund Sues Yahoo, Claims Internet Company is Really an Unregistered Investment Company

Lead plaintiff in a shareholders’ federal class action, UFCW Local 1500 Pension Fund, claims Yahoo’s board of directors and top executives are violating the Investment Company Act of 1940. According to the suit, Yahoo’s investment securities make up 90% of the company’s value, so it must register as an investment company. The pension fund wants Yahoo to fire its executive officers, including CEO Marissa Mayer, and its entire board.

According to the pension fund, income from yahoo’s operations for 2013 was only 32.7% of its total net income, while income from investments accounted for 67.3%. The numbers were supposedly even more “shocking” in 2014, with 1.2% coming from operations income, compared to a “staggering” 98.8% for investment income, according to the complaint. Of course, the devil is in the details. Yahoo owns 2 billion shares of Yahoo Japan common stock, valued at $7.4 billion, representing about 25% of Yahoo’s market capitalization and almost 20% of Yahoo’s assets. Yahoo Japan is a joint venture with Softbank Corp., which was established in 1994. In 2005, Yahoo bought about 46% of Alibaba.com Corp., China’s biggest online marketplace and payment system. This amounts to about $27 billion, representing 89% of Yahoo’s market capitalization and 70% of its assets. Thus according to the complaint, Yahoo’s assets are primarily invested in publicly traded securities, and Yahoo is an investment company.

The union pension fund seeks class certification, disgorgement, permission to pursue two of the four counts derivatively, and damages for ICA violations, breach of fiduciary duty, and unjust enrichment.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

NYC Successor Grocers Required to Retain Former Workforce or Join a Union

I serve as the labor counsel to the Ohio Grocer’s Association, so this NYC law is of great interest to Ohio grocers and me.

The New York City Council passed a law that prohibits successor grocery employers from discharging certain grocery store employees without cause during a 90-day transition period following a “change in control.” A “change in control” is defined as “any sale, assignment, transfer, contribution, or other disposition of all or substantially all of the assets of, or a controlling interest in, including by consolidation, merger or reorganization any grocery establishment.”

Only grocery stores where “the sale of food for off-site consumption comprises fifty percent or more of store sales and that exceed 10,000 square feet in size, exclusive of any storage space, loading dock, food preparation space, or eating area designated for the consumption of prepared food,” are covered by this law.  Also excluded from coverage are managerial, supervisory, and confidential employees, as well as any worker who regularly works fewer than eight hours per week. Essentially, the Act protects unionized employees or those eligible for form a union.

Following the 90-day transition period, the successor employer must complete written performance evaluations for each of the retained employees, and maintain a record of such evaluations for at least three years. At the end of the transitional period, successors may, but are not required, to offer such employees continued employment.

Of course, this law does not apply to successor employers who, before a change in control occurs, enters into a collective bargaining agreement covering the eligible employees or, instead, agrees to assume the predecessor’s collective bargaining agreement covering the same employees.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Court Overrules NLRB, Says Workers are Independent Contractors Not Employees of Referral Service

A referral service that referred stagehands to event producers for concerts, plays, trade shows, and other events offered jobs to employees on a first-come, first-served basis. The referral service, which required employees to sign independent contractor agreements, did not withhold taxes or other benefits, prohibit the stagehands from accepting jobs from other referral services or from doing other work, or provide stagehands with any tools (other than a company vest for safety and identification reasons). The stagehands were required to check in and out with the company in order to keep track of their hours. Nonetheless, when a union petitioned the NLRB to represent the stagehands, the Board concluded they were employees, directed an election, and certified the union.

On appeal, the Eleventh Circuit said the Board made several errors “when it applied the law to the facts.” The errors include:

  1. The Board erred by not giving adequate weight to the facts that the employer did not withhold stagehands’ taxes and that the stagehands signed independent contractor agreements.
  2. The Board’s consideration of the stagehands’ inability to negotiate their pay was irrelevant.
  3. The Board’s conclusion that the stagehands performed the “essential functions” of the company’s operations was erroneous.
  4. Contrary to the Board’s conclusion that the company controlled the workers, “[o]nly the event producers and touring crews control the means of the work performed by the stagehands, and [the employer] lacks the expertise to direct the stagehands in their work for any particular client.”

The Court’s analysis is instructive to other companies faced with the potential union organizing of independent contractors. As the NLRB continues to aggressively expand the reach of the National Labor Relations Act and help unions organize any worker possible, this case provides a decent roadmap to ensure independent contractors remain independent.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Company Required to Bargain over Break Rule Change

Parsons Electric was part of a multiemployer collective bargaining agreement that was silent on the subject of employee breaks. Independent of the union contract, Parsons, for years, maintained a written policy that provided hourly employees with a 15-minute break in the morning and a 15-minute break in the afternoon each workday. Parsons then replaced the break policy with a statement that it would abide by applicable bargaining agreements, but reserved the right “in the absence of specific provisions for breaks in the collective bargaining agreement” to establish break policies. Parsons then stopped its practice of 15-minute breaks in the morning and afternoon.

Since employee breaks are terms and conditions of employment, bargaining over changing breaks is probable. But, a unilateral change to a collective bargaining agreement only violates the National Labor Relations Act if it is “material, substantial, and significant.” Parsons argued unsuccessfully that its change did not meet this test. According to the Eighth Circuit, the prior policy gave employees a “specific, concrete standard” for breaks and any managerial deviation from that policy was “an exception to the default rule.” The new policy eliminated the default rule and gave Parsons “unfettered discretion to determine whether employee breaks would be permitted at all….” This, according to the Court, was significant enough of a unilateral change to violate the Act.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Union Pension Payouts are Getting Cut and Retirees Threaten Militant Action

The Teamsters pension plan (Central States Pension Plan), widely criticized as being extremely underfunded and unable to pay a fraction of its obligations to retirees, is set to be cut in the coming weeks. The Central States Pension Plan last year became the first financially troubled pension fund to seek relief with the federal government under the Multiemployer Pension Reform Act that was passed in late 2014. The law was designed to keep multiemployer plans solvent and continue to pay retirees, but at a reduced rate. Without substantial changes, Central States will be insolvent within 10 years.

This reduced benefits amount has employees angry and threatening to “go old-school on their ass,” referring to Congress. Other suggestions from Akron-area retirees included a nationwide strike, blocking or occupying the U.S. Treasury Department building, and, as one member suggested, to “shoot them.”

Most companies I represent get out of the union defined benefit contribution plans because most of them are headed for the same fate as Central States. Workers are then free to invest in company sponsored 401k plans or some other option on their own. I feel bad for the workers who believed the union organizers that promised them a lucrative retirement if they voted for the union and paid into the union’s pension plan. Decades later, after the workers lived up to their end of the bargain, the union broke its promise.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Locking Out Workers: A Landmine of Legalities

A swimming pool cleaning supply manufacturer was negotiating a successor collective bargaining agreement with the United Food and Commercial Workers Union. After the Union rejected several healthcare plan proposals made by the Company, the Company said it wanted to freeze the current contract for one year, but also said it expected to have information on more plan options to propose. The Company said it wanted everything to stay the same for a year and requested that the Union have the employees vote on the Company’s offer. Union officials were unclear as to what the employees were voting on. Two days later the Company locked out the employees.

The Company violated the National Labor Relations Act by locking out its employees without providing the employees with a timely, clear, and complete offer setting forth the conditions necessary to avoid the lockout. The Company made a clear, complete proposal one week later, but that did not cure the unlawful lockout. The lockout remained unlawful until it ended and the employees were made whole.

The decision to lock out employees is one no company should make hastily. Locking out workers is a legitimate bargaining tactic used by many companies during negotiations – just as strikes are strategically used by unions. However, detailed planning, with experienced labor counsel, must be taken before implementing a lock out or risk losing any positional strength that might be gained by utilizing it as a bargaining tactic.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Companies Must Deduct Union Dues After Contracts Expire

Dues deduction became a common practice in the mid-1900’s when few workers had checking accounts. Unions tired of going to each member individually to collect dues, so they negotiated into collective bargaining agreements clauses forcing the employer to payroll deduct the dues and remit a single check to the union for all members’ dues. Companies were relieved of this “tax collector” role upon the expiration of the collective bargaining agreement.

However, last year the NLRB changed the law on when companies can stop deducting union dues after a collective bargaining agreement expires. There is little practical reason for this rule since nothing prevents employees from paying their dues directly to the union. In fact, employees were still required to remit dues, companies just weren’t required to deduct them from employees’ paychecks. Nonetheless, the NLRB said that it was issuing the ruling because it would help the “goal of promoting collective bargaining.”

Now, businesses may stop deducting dues only after a lawful impasse has been reached. Lawful impasses are reached only after the NLRB agrees it has been reached. Yet, employees are allowed to strike immediately upon the expiration of the contract. Therefore, companies that are negotiating a new collective bargaining agreement may be faced with a situation where they bankroll a strike against themselves. How exactly does that further the goal of promoting collective bargaining?

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Bernie Sanders or Hillary Clinton: A Powerful Combo for the Union Vote

The media has reported sporadically that some labor union members have broken from decades of allegiance with the Democratic Party in favor of Donald Trump for President of the United States. These blue collar Democrats, many in Ohio, are drawn to Trump’s ability to say what he wants, what he means, and to tell it like it is – values labor has always believed in. Formal endorsements tell a different story, though. Every major union or progressive organization that let its members have a vote endorsed Bernie Sanders. Meanwhile, all of Hillary Clinton’s major group endorsements come from organizations where the leaders decide. This appears to be an example of Clinton’s powerful appeal to the Democratic Party’s elite, even as support for Sanders explodes among the rank and file.

For example, the one major labor union that did allow for a vote was the Communications Workers of America. CWA followed a three-month process that included meetings with members, telephone town halls, and an online polling process. “We conducted an online membership poll from mid-September to early December,” said CWA spokesperson Candice Johnson in a statement to The Intrepid. “Tens of thousands of members voted in the poll, with Sanders getting a decisive majority.” Johnson noted that CWA did not endorse in 2008 because it followed the same process and the three leading Democratic candidates all received around the same proportion of votes.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

A Pro-Union Year in Review of the Labor Movement

According to a pro-union labor organization’s year in review, workers made more gains in legislation, administrative rulings, and some courts – including the court of public opinion – than they had made since before the Reagan years. I guess that’s one way to spin the fact that unionization rates remain dismally low.

According to the report, workers have increasingly turned to street protests and state ballot initiatives to get minimum-wage hikes and a number of other worker-friendly policies. That is true. And, the momentum for shaping workers’ rights into civil rights has begun. So, too, has the fight against “wage theft” (a labor term for misclassifying non-exempt employees as exempt or independent contractors and not paying them overtime wages). The report continues, arguing that the labor movement needs to decide if its goal is to improve working conditions or to build a more powerful working class. The report says these are related, but require different strategies and structures.

Notably, increasing unionization rates, earning additional dues revenues, and organizing the unorganized is not part of the labor movement’s first tier strategy moving forward. Is this labor’s way of reminding us that running successful businesses is not something they endeavor to do? Or do they believe that by passing local ordinances requiring higher minimum wages, or paid sick leave, or project labor agreements will somehow provide them with a bump in dues paying members? My job is to represent companies against unions, and even I don’t know the answer to those questions.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Right to Work is Reserved for States to Decide, not Counties

About half of the states in the United States are what is called “right-to-work” states where employees do not have to join a union to work at a unionized company. Section 14(b) of the National Labor Relations Act specifically states, “Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.” Some counties have broadly read this clause to mean that the creation of right-to-work counties (and by that extension, cities, and “zones”) can determine to be right-to-work even though the state as a whole is not. These counties are wrong.

A federal district court in Kentucky recently found that the National Labor Relations Act preempts a county right-to-work ordinance banning the use of union-security agreements between employers and unions and regulating other practices that are either permitted or prohibited by federal law. Unions successfully argued that Section 14(b) of the Act allows states or territories to prohibit union-security agreements; it did not authorize counties to enact a right-to-work measure.

Good try Hardin County, Kentucky. Now, I wonder how Minnesota’s “right-to-work zones” are going to fair with the same argument.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

2016 Should be the Year Persuader Rulemaking Takes Effect and is Litigated

Five years ago, the Department of Labor (DOL) first issued the proposed regulation to expand employer disclosure requirements about lawyers and consultants hired to help combat union organizing and collective bargaining activities. The rule would revise the DOL’s interpretation of the Labor-Management Reporting and Disclosure Act by narrowing the law’s “advice” exemption as it applies to employers reporting people hired as labor relations persuaders.

The word “persuader” is too narrowly defined for the current Administration, and according to the DOL, NLRB, and labor unions, gives employers and consultants a free pass from reporting unless the consultants they hire talk directly to the employees. For a DOL spokesman has said, “Under that interpretation, even if the consultants script every word that the employer says to employees, the employer and consultant can keep the consultant’s activities secret. This update will make employer reporting on expenditures related to organizing campaigns similar to reporting already required of unions.” The DOL’s perspective may have some traction when dealing with consultants. But, it completely disregards the attorney-client privilege, which is why the American Bar Association opposes the change.

On December 7, 2015, the Department of Labor-Management Standards sent the persuader rule to the Office of Management and Budget for final review. The agency estimated in its fall regulatory agenda that the rule will be published in March 2016. If published, I expect multiple lawsuits trying to stop it. For example, a lawsuit could argue that the regulation is arbitrary and capricious under the Administrative Procedure Act. The American Bar Association will likely challenge it on the basis that it infringes on the attorney-client privilege. Congress could also mount a Congressional Review Act challenge of the rule, potentially preventing its implementation if a motion of disapproval is then signed by the president. But, which president will be in office if a motion is made?

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Window Washers Awarded Back Pay Eight Years After Bringing Claim to NLRB

Some of my clients want to get rid of the union that represents their employees. They believe that if they close their company and reopen under another name, perhaps in a different location, that the union will no longer represent their employees. I have to tell them that they are wrong. According to a public press release from the National Labor Relations Board, former employees of a window washing company were awarded back pay after the company unlawfully closed Republic Windows and opened Echo Windows and Doors.

According to the press release, in December 2008, the employer abruptly shuttered operations at its Goose Island facility and filed voluntary Chapter 7 bankruptcy resulting in the termination of 270 employees. Simultaneously, the employer established Echo Windows and Doors with substantially identical ownership, management, and purpose. Upon closing operations in the Chicago area, the employer transferred all bargaining unit work to its alter ego operation in order to avoid obligations to the Union as the employees’ collective-bargaining representative. Bankruptcy proceedings often prevent compliance with Board-ordered remedies as employer’s assets are liquidated through Chapter 7 processes. The employees here did not receive full back pay, but the Board is considering this case a victory, nonetheless.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Clarity on When Colleges are “Religious Enough” That Their Faculty are Precluded from Joining a Union

The National Labor Relations Board recently held that it will assert jurisdiction over faculty members of a college or university that claims to be a religious employer unless the institution shows both: 1) that it holds itself out as providing a religious educational environment; and 2) that it holds out faculty who seek to unionize as performing a specific role in creating or maintaining that religious environment. The Board requires minimal evidence to satisfy the first factor. Meeting the second factor is more demanding.

The Regional Director declined to assert jurisdiction over Carroll College faculty because the employees were subject to employment-related decisions based on religious considerations. For example, the College’s handbook provision on discharging faculty who show “serious disrespect or disregard” for the school’s Catholic mission was “a public representation of the College.”

While this decision indicates a college may be able to show it is outside the board’s jurisdiction by pointing to employment policies that link employee behavior to the school’s religious mission, the Regional Director also determined that Carroll College faculty are managerial employees. Managerial employees in all industries are precluded from joining unions.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Union Corruption Continues in Cleveland and Kansas

In Cleveland, a labor union has been recommended for trusteeship by a federal investigative panel after it was named in a report for misusing funds and violating the Federal Labor Standards Act. The officers of the Teamsters’ Local involved, which has employees in the grocery and warehousing industry, spent over 70% of its members’ dues on gifts, golf tournaments, supplied the union’s principal officer with 30 weeks of vacation when the organization was in debt, and submitted inaccurate financial reports, perhaps to cover up its wrongdoing. Moreover, “the one function specified in its bylaws for the conference to do: review all the bargaining agreements entered into in the state, has not been performed, if ever, for decades” the investigative report concluded.

Meanwhile, in Kansas, the International Association of Machinists (IAM) assumed control of the day-to-day operations of its Local in Wichita. A temporary trusteeship was imposed on that Local for similar reasons. The Local violated IAM rules, such as not getting proper approval for expenses. Unions misusing members’ dues resulted in the federal government requiring unions to file LM-2 reports chronicling how they spend their money. Unions have been vocal recently arguing that they should not have to divulge their expenditures anymore. I don’t think these events help that argument.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Transferring Employees from One Company to Another May Bust the Union, but Effects Bargaining Still Required

A company owned multiple car dealerships. One dealership employed six mechanics, all of whom belonged to a union. In 2009, the company shut down the “union dealership” and offered the six employees jobs at its “nonunion dealership.” Five of the mechanics took the job at the nonunion dealership. The five employees were no longer a majority of the mechanics at the nonunion dealership. After the transfer of mechanics, the company refused to recognize the union since the union no longer represented a majority of employees in the bargaining unit. The D.C. Circuit ultimately held that the transferred mechanics were distinct from the larger pool of nonunion workers they were asked to join, thus opening the door for the mechanics to organize under the Board’s newly expansive micro-bargaining unit standard. Yet, regardless of their status after the transfer, according to the Court, the company should have negotiated with the union on the effects of the union dealership’s closure on it mechanics. Effects bargaining generally covers how the shutdown affects the organized workers. Unions seek lump sum payments, continued health care, job offers, and relocation assistance to the new facility, etc. But, just like bargaining for a new contract, neither side can force the other to propose or accept effects bargaining terms.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Can Employees Engage in Union Organizing in Mixed-Use Areas Where Work and Non-Work Activity Occurs?

Most companies have designated work areas and break rooms. Work areas are where employees are on-the-clock performing their job duties. Break rooms are where employees are completely free from engaging in any work-related activity. But, what about mixed-use areas, where some employees relax and some engage in work-related activity? For example, one company had a hallway where employees gathered, socialized, watched television, checked personal email on computers, and where various fairs, charity drives, raffles, and the sale of merchandise occurred. But, work-related products also regularly passed through this hallway. When off-duty employees began distributing union literature in the hallway, the company banned that activity claiming the hallway was a work area. The company erred. The hallway was determined to be a mixed-use area since work and non-work related activity took place there. According to NLRB law, companies cannot prohibit the distribution of union literature during non-work time in mixed-use areas. The nuances of whether an area is mixed-use are slight, so check with counsel before stopping or disciplining off-duty employees for engaging in union organizing in areas that are used for both work and rest.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

How the National Labor Relations Board Determined Supervisors Could Organize into a Union

A transportation company employed 40 road supervisors who monitor drivers to ensure they follow company policies. They recommend discipline by filling out “observation notices” when a driver breaks a rule and “pats on the back” when drivers do something positive. The notices and pats on the back are forwarded to a senior supervisor who metes out discipline and puts the positive notes in the drivers’ files. Observation notes can result in termination. Pats on the back can result in cash awards. The Regional Director dismissed the union’s organizing petition seeking to organize road supervisors determining road supervisors were supervisors under the National Labor Relations Act because they had authority to “discipline, reward, or effectively recommend such action.”

The NLRB overruled the Regional Director. According to the Board, “evidence did not indicate who determines whether to grant [the award] or how that determination is reached.” Therefore, no evidence establishes that road supervisors effectively recommend rewards without an independent investigation by whoever actually decides to grant the award. Similarly, the Board found that road supervisors did not have a critical role in the discipline process because the observational notices were “reportorial” by containing just a description of what happened; they did not contain a recommendation of discipline.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Immigrant Temp Workers at Tire Recycler Organize under New Joint Employer Standard

Advocates for temporary workers are celebrating the National Labor Relations Board’s new joint employer test that has paved the way for a group of Guatemalans in New Bedford, Massachusetts to organize a tire recycler. The recycler has about 70 people, both employees and temporary workers, with a large number of the employees being from Guatemala. Most of the workers receive no paid sick leave or vacation time and earn about $11 per hour. After asking for a $1 per hour raise four Guatemalans were terminated. After being reinstated, they led an effort to organize all 70 workers to join the United Food and Commercial Workers union (UFCW). Now, the tire recycler, the staffing company that employs the workers, and the UFCW are negotiating a union contract. Interestingly, New Bedford, Mass. is home to roughly 1,500 Guatemalans, though some believe the real number is three times that and say at least some of the Guatemalans at the tire recycler are in the U.S. illegally. Most illegal immigrants in New Bedford, and in many other parts of the country, work for temporary employment agencies. Therefore, the new, expansive joint employer test not only has a direct impact on unionizing temporary workers, it may have an indirect impact on bestowing greater awards and protections to illegal immigrants.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

MGM’s Anti-Union Creation of the Academy Awards

We are in the middle of Awards Season—the Oscars, Emmys, Grammys, ESPYs, and even the SAG-AFTRA Awards. According to some, the origin of the Academy Award’s sponsor, the Academy of Motion Picture Arts and Sciences, is anti-union. The Academy (which awards the preeminent Oscars award) was founded in 1927 by Metro Goldwyn-Meyer (MGM) studios in an effort to prevent unionization in the film industry. As an invitation-only professional organization, it was meant to be a more prestigious alternative to unionization. It had separate branches for producers, actors, writers, directors, and technicians, and settled workplace disputes without the need for unions. Essentially, from 1927 to 1933 the Academy functioned as a company union controlled by the producers. But in 1933, two years before the enactment of the National Labor Relations Act, the Screen Actors Guild (SAG) unionized Hollywood. SAG would later merge with the American Federation of Television and Radio Artists to form the SAG-AFTRA union. Once the NLRA was enacted, company unions like the Academy were outlawed, but the Academy still has select membership. The competition between the Academy and SAG-AFTRA has resulted in both entities having their own motion picture awards ceremonies—one union, one nonunion.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Service Workers International Union (SEIU) Insurance Pays for Sex Change

A female who identifies as male works at a hospital in New York as a cleaning and sanitation specialist. He is a member of 1199 SEIU United Healthcare Workers East. He has health insurance through the union’s self-insured plan. Two years ago when he sought authorization for his hysterectomy, he was told that it would not be covered. According to the union, “gender re-assignment surgery is not a covered benefit.” However, the union’s health plan does not contain a clause prohibiting gender transition-related care. Upon closer look (and with, shall we say “encouragement” from the Transgender Legal Defense & Education Fund), the SEIU changed its tune. Now, the official SEIU position is that it is “not the policy of our health funds to exclude coverage for gender reassignment.”

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Are Employees “Virtually Termination Proof” for Social Media Postings?

An employee was upset that the retail store she worked at stayed opened as late as it did because the store was located in an unsafe neighborhood. After the store owner did not change the hours of operation, the disgruntled employee posted on Facebook remarks about her “immature” manager and that she would bring a labor rights book to work with her the next day. She was terminated for the post.

This is not a routine “employee fired for social media post in violation of Section 7 rights” case, though. Here, the employee’s celebratory Facebook posts after being terminated included: “Muhahahahahaha!!! So they’ve fallen into my clutches” leading one to believe she purposefully trapped the company into committing an unfair labor practice charge when it terminated her employment. According to the Board, the post was protected. According to the National Federation of Independent Businesses, which filed an amicus brief in the case, the Board’s decision renders employees “virtually termination-proof” once they complain or comment online about anything work-related, regardless of the motivation for the posting. I don’t think employees are termination-proof, but it sure does appear that way.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Will NLRB Force Employers to Give Unions Ability to Meet with Employees at Work and on Company Time?

Over 100 law school professors have urged the National Labor Relations Board to make a rule (since the Board is now fully ensconced in rule making) allowing unions to meet with non-union workers, on company property and in private, to urge them to vote in favor of union representation. If companies refused to allow such a meeting and later win a union election, the election results would be thrown out, a union-employee only meeting held, and a new election conducted. The proponents of this rule boldly state that it will “result in more collective bargaining, which the statutory policy of the National Labor Relations Act encourages.”

Interestingly, companies would be required to allow unions to hold these “captive audience” meetings as soon as an employer knows or thinks a union organizing drive is underway. While I disagree that employers should be forced to allow these meetings, holding them only after a petition for an election has been filed is more palatable. After all, union organizing drives can last for years, which raises a good question: how often must employers allow these meetings to occur? Furthermore, while not part of the proposal, I’m sure the Board will require employers to pay the workers their normal wage to attend the meeting.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Clarity in What Contracts Include for New Crop of Unionized Adjunct Professors

The adjunct unionization trend is literally sweeping the country right now with a new school’s adjuncts electing to unionize on what seems like a weekly basis. The early adopters of unions have recently signed their first collective bargaining agreements (CBAs). These CBAs share many similarities. For example, Northeastern University’s adjuncts will see an average pay bump of 12% over the next 3 years; pay for the lowest earners will double, while pay for the highest will increase 9%. When courses are cancelled on short notice, adjuncts will receive 15% of the full-course pay. They also receive a 50% subsidy for health insurance.

Tufts University’s union contract is very similar to Northeastern’s, although Tufts’ contract included more job stability and larger salaries for some adjuncts. St. Michael’s College’s adjuncts will receive a 10% per course pay increase and a $1,000 per course cancellation fee. Hamline University in St. Paul will pay their adjuncts 15% more in 2016 and an additional 20% in 2017-18, as well as compensation for late course cancellations. Point Park University adjuncts will receive a 23% pay increase, job security, and late course cancellation pay.

Combined, these contracts show universities what life would look like if their adjuncts unionize. Adjuncts are receiving double-digit pay increases, pay for canceled courses, job security akin to a modified tenure track, and health care coverage or subsidies at some schools. These contracts also provide a roadmap to universities that want their adjuncts to remain union free.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

NLRB Deviates from Make Whole Remedies, Permits Windfall Remedies for Unlawfully Reduced Hours

The National Labor Relations Board has, until now, had authority to make aggrieved employees whole. Unlike courts of law that can award punitive damages or put plaintiffs in a better position than they were before their claim arose, the Board was limited to “make whole” remedies that restored wronged employees to the same position they were in before an unlawful act occurred. To this end, back pay remedies were reduced by any income received from the time the unlawful act occurred to the time the back pay is paid. This makes sense. An employee who was fired for a lawful Facebook post from his $1000 a week job for Company A made $800 a week from his subsequent employer, Company B. Ultimately, that employee is reinstated at Company A, and Company A must pay the $200 per week difference to the employee to make him whole.

Now, the Board has changed the law and awards full back pay for employees regardless if they received interim earnings. This amounts to a windfall for the aggrieved employee. But, there’s a catch. The windfall is only for employees whose hours are reduced, not terminated like the example above. As stated by Circuit Judge Neil Gorsuch in his dissent, “when the employer unlawfully reduces the employee’s hours to anything short of zero hours . . . the Board now says it will never under any circumstances deduct interim earnings from a backpay award. Thus treating cases that seem to differ mostly in degree [compared to termination cases] as different in kind.”

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

NLRB and Court Says Lying Out of Desperation to Get a Job is OK

Employee Membrino worked at non-union Pessoa Construction Company—until he attended a union meeting and discussed his employment concerns with a union representative. These meetings are generally protected by Section 7 of the National Labor Relations Act. After losing the impending unfair labor practice charge, Pessoa offered Membrino reinstatement but disputed the amount of back pay awarded to Membrino.

Pessoa contended that the NLRB should have reduced the award due to misrepresentations Membrino made when he sought work after being fired by Pessoa. Specifically, Membrino admitted he lied by holding himself out as “Membrino Trucking” or “Membrino Delivery Services” to cover gaps in his employment, and he failed to disclose periods of time when his commercial driver’s license had been suspended or revoked. Membrino also agreed that he failed to disclose he had a felony conviction for distribution of a controlled substance and possession of a handgun.

While the NLRB basically overlooked Membrino’s lies, on appeal the Fourth Circuit credited his explanation and noted that Pessoa failed to show Membrino’s actions prevented him from obtaining or retaining any jobs. According to the court, “If anything, the misrepresentations inured to the benefit of Pessoa in that they mitigated the earnings losses occasioned by Pessoa’s illegal termination of Membrino under the NLRA.” Feel free to file this ruling alongside the one that allows employees to berate and curse out their supervisors.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

NLRB Deals with Rapidly Increasing Size of Proposed Bargaining Unit Issues

Employees of Jersey City Bike Share, similar to the Citi Bike, Divvy, and CoGo programs that appear in several cities, are seeking to organize a union in New Jersey. This is not surprising considering that the company is already unionized in Chicago and Washington, D.C. That isn’t the takeaway from this article, though. What is interesting is how the NLRB is dealing with the rapid growth of this company when it comes to appropriate bargaining unit issues.

In order to hold a union election, at least 30% of the proposed bargaining unit (the group who votes) must have signed a union authorization card. If a proposed bargaining unit consists of 50 employees, then at least 15 employees must have signed a card. But, Jersey City Bike Share is exploding in growth, so the 30% number is in flux, and the 30% that originally signed cards may not be enough for a union election by the time the election is held.

Specifically, Jersey City Bike Share currently operates 35 stations with 350 bicycles. But, it has agreed to expand to 50 stations with over 500 bicycles in 2016. While this expansion will require additional employees, the exact number was unknown at the time of the NLRB hearing. According to the Regional Director, “the mere possibility that the Employer may decide in a few months to hire an unspecified number of additional unit employees does not mean that its current workforce is not substantial and representative.” Note to the Company – hire your slew of new employees before the election.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Division between Tenure and Non-Tenure Track Faculty Important in Union Organizing

All full-time and part-time non-tenure track faculty at the University of Southern California were included in a proposed bargaining unit seeking to be represented by the Service Employees International Union (SEIU). While adjunct faculty have been unionizing in droves lately, this nuanced division between tenured and non-tenured faculty is interesting. Here, USC argued unsuccessfully that non-tenured faculty are management personnel and thus excluded from joining a union pursuant to Section 2(11) of the National Labor Relations Act.

According to the NLRB Regional Director of Region 31, “I conclude that the Employer has failed to establish that the full-time and/or part-time non-tenure track faculty…actually or effectively exercise control over decision making pertaining to central policies of the university such that they are aligned with management.” Only time will tell if non-tenured professors (or professors who are spiteful for having been passed over for tenure) seek to unionize at the same alarming rate as adjunct faculty. Further, will non-tenured faculty and adjunct professors band together to form a larger bargaining unit, since as the Teamsters remind us, there is solidarity and strength in numbers?

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Resident Advisors and Peer Mentors Seek Right to Organize a Union on Campus

Organizing unions on college campuses is en vogue. As followers of Roetzel Recap know, the adjunct professor unionization movement is sweeping the country. Graduate students and some athletes, though to a lesser degree, have joined the movement. Now, resident advisors (RAs) and student peer mentors can be added to the mix of groups of people seeking to organize unions at college campuses.

Students at the University of Massachusetts at Amherst paraded through campus en route to the administrative building before delivering a 600-signature petition demanding job protections for resident advisors and peer mentors (people who provide academic and emotional counseling to first-year students). Most of the people parading were UAW represented resident advisors. Yes, U of M at Amhert RAs are (the only RAs in the country to be) represented by the Autoworkers Union. The UAW and the University are in the midst of negotiating a new collective bargaining agreement, so the students utilized the petition / parade as a way to voice their demands.

Similar fights have occurred at other U.S. colleges. For example, at New York University, RAs are campaigning for $15 an hour (on top of free room and board, which amounts to $22,000 per year). Wellesley College students successfully campaigned for the school to begin paying RAs in addition to their free room and board. But, these demonstrations are not limited to small, northeast colleges and universities. RAs at Midwestern Ohio University unsuccessfully tried to unionize last year and Michigan State University students recently circulated petitions to reinstate 10 RAs who were fired for hosting a booze-filled bash.

The takeaway from this is not what the college kids are doing. Instead, it’s what I tell each of my clients: the face of unions is getting younger and more educated, which means unionized workforces are no longer limited to blue collar manufacturing jobs. Emerging targets of unions are in the high-tech, healthcare, hospitality, transportation, higher education, and freelance journalism industries.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

“Some” Authority to Recommend Raises Not Enough for NLRA Supervisor Status

A South Carolina company had a tiered management system. At the bottom, employee groups were guided by team leads who reported to supervisors who oversaw between 20 and 40 employees. The supervisors reported to managers who in turn reported to the company’s vice president of operations. The issue was whether the supervisors could vote in the upcoming union representation election.

The supervisors recommended to managers certain employees for performance based raises, and even opposed specific pay bumps in some circumstances. The managers then gave their own input to the company’s vice president of operations, who made the final call. Since the managers had discretion to endorse or not endorse the supervisor’s recommendations, and since the vice president of operations had autonomy to do the same, these supervisors were not supervisory employees under the National Labor Relations Act.

This ruling provides some insight into just how much evidence an employer must present to exclude employees from proposed bargaining units. Although managers testified at hearing that the vice president usually follows the supervisors’ recommendations, that was not enough to determine just how much say the supervisors ultimately had in the vice president’s decisions.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Unsigned Collective Bargaining Agreements: As Enforceable As Signed Ones

I have had several clients over the past year assume that since they did not sign previous iterations of their collective bargaining agreements that they were not bound to those agreements. If only it was that simple. While I’ve been telling those companies that they must still comply with the contracts, I now have some muscle to back up my advice. According to the Sixth Circuit Court of Appeals, an employer is bound by a collective bargaining agreement even if the employer did not sign the agreement or expressly authorized someone else to sign the agreement on its behalf. While the Sixth Circuit case specifically dealt with the obligation to pay unpaid pension contributions, and pension contributions are generally governed by an agreement between the employer and the pension fund (not the union), it is equally applicable to employers required to follow other clauses of a collective bargaining agreement.

On an aside, I give credit to the company and its legal counsel for getting the lower court to accept the theory that since the collective bargaining agreement was not signed that the previous pension contributions were purely voluntary.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Are Employees “Virtually Termination Proof” for Social Media Postings?

An employee was upset that the retail store she worked at stayed opened as late as it did because the store was located in an unsafe neighborhood. After the store owner did not change the hours of operation, the disgruntled employee posted on Facebook remarks about her “immature” manager and that she would bring a labor rights book to work with her the next day. She was terminated for the post.

This is not a routine “employee fired for social media post in violation of Section 7 rights” case, though. Here, the employee’s celebratory Facebook posts after being terminated included: “Muhahahahahaha!!! So they’ve fallen into my clutches” leading one to believe she purposefully trapped the company into committing an unfair labor practice charge when it terminated her employment. According to the Board, the post was protected. According to the National Federation of Independent Businesses, which filed an amicus brief in the case, the Board’s decision renders employees “virtually termination-proof” once they complain or comment online about anything work-related, regardless of the motivation for the posting. I don’t think employees are termination-proof, but it sure does appear that way.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Somali Workers Lose Jobs after Unlawful Strike over On-The-Job Prayer Time Dispute

Of the approximately 2,000 employees at Cargill Meat Solutions, Inc.’s Fort Morgan plant, 600 are Somali. Nearly 200 Somalis walked off the job in protest that they were deprived of on-the-job prayer time. This is a Teamster facility, and the Somalis were terminated for violating the no-strike clause of their collective bargaining agreement. The Union is seeking reinstatement of the workers (probably with back pay), while the Company does not want to give the appearance that the strike was successful thus implicitly encouraging copycat acts to occur in the future. But, what makes this an unusually interesting case is the religious discrimination element.

Religious discrimination claims are on a sharp increase and will continue to be a focal point of many government agencies like the EEOC and NLRB. Here, the Somalis may have been asking for more than “religious freedom,” and insisting on preferential treatment. According to the Company, the Somalis were provided adequate time away from their jobs to pray, but the demands of the workplace took precedent. All facility employees, including the Somalis, were given unpaid lunch breaks, which meant they could use that time to pray, as well.

This case is in its delicate infancy, so I don’t have many facts, an opinion, or result, yet. But, with the focus that the federal government is putting on thwarting religious discrimination, I anticipate this case will become mainstream in the near future.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Whole Foods’ No Cell Phone Recording Policy: The Devil is in the Details

Fellow Ohio attorney Jon Hyman, author of “Ohio Employer’s Law Blog” recently dove deep into the footnotes of the Whole Foods decision and resurfaced with an excellent, albeit frightening, analysis of the Board’s thought process. Footnotes 7 and 9 may provide a peek into the Board’s future desire to, as Jon says, “stretch the definition of ‘concerted’ to the point of non-existence.”

Fn 7. [W]e would not characterize recording or photography as a solitary nonconcerted act encompassing a “limited scope of protected activity.”…

Fn 9. [A]ny act of recording by a single employee that forms part of, or is undertaken in furtherance of, a course of group action constitutes concerted activity within the meaning of Sec. 7. Even in the absence of a group action, activity by one individual is deemed concerted if undertaken in an effort to enforce the provisions of a collective-bargaining agreement or in order to initiate or induce group action.

Now for Jon’s takeaway: This case has implications well beyond camera bans. Consider, for example, employee social media activity. If, as the Board suggests, employee intent is the measuring stick for whether a lone employee’s activity is concerted, then any employee’s solitary social media post can be considered concerted merely by the employee stating an intent to initiate or induce group action. And, since social media is inherently social (i.e., group in nature), doesn’t this test suggest that all such activity is concerted?

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

NLRB’s Ruling that Whole Foods’ No Cell Phone Recording Policy May Be Short Lived

A few weeks ago, the NLRB ruled that non-union Whole Foods’ workplace policy that prohibits employees from recording conversations or taking pictures with their phones was unlawful. The Board thought this policy stifled open conversation. Ironically, Whole Foods said the policy was, in fact, to encourage open conversation because people may be less frank if they are being recorded. Before companies change their handbook policies to comply with this ruling, let’s first allow the ruling to be found lawful by other agencies and courts.

For example, the Board’s ruling may not stand up when applied to healthcare related companies and those covered by HIPAA. Likewise, educational institutions governed by FERPA laws may be allowed to continue banning recordings and pictures at work. Individual state’s trade secrets laws may also have an impact on the legality of the Board’s decision. So will states whose laws ban nonconsensual recording of another person.

For companies that want to make an immediate change to their recording / photograph policies, the Whole Foods’ policy failed because it prohibited all recordings and all photographs, not just those left unprotected by Section 7 of the National Labor Relations Act. While some readers may think a “quick fix” would be to have a blanket ban with the caveat that the policy is not intended to interfere with an employee’s Section 7 rights, these types of catchall provisions have been found unlawful.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Union May Be On the Hook for Damages Caused By Unlawful Strikes and Slowdowns

The National Labor Relations Board ruled that the Longshoreman’s Union (ILWU) violated federal law with slowdowns and work stoppages at the Port of Portland in 2012 and 2013. The Union is now on the hook for millions of dollars of damages as they are being sued by the Port and the Company that runs Terminal 6 at the Port for over $30 million. Specifically, International Container Terminal Services, Inc. (ICTSI) operates Terminal 6, the only international container terminal. Two international carriers – Hanjin and Hapag-Lloyd – left and the overall work has decreased by 30% because of the labor issues. This is a direct loss of work to ICTSI and the Port, but more importantly, others may soon leave or decide not to go to the Port because of the union.

This case will be interesting to follow. Obviously, any economic damage caused by a lawful strike or other economic pressure techniques would immunize the union from this lawsuit. But here, the union will most likely be held accountable for its unlawful actions.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Home Healthcare Aides are Not Domestic Service Employees and May Unionize

Minnesota Home Healthcare workers are permitted to unionize. While this ruling does not have much impact for most of our readers, the backstory should resonate with you. Minnesota passed a law that allowed collective bargaining for home care providers for Medicaid recipients. The 2013 law called the Individual Providers of Direct Support Services Representation Act (IPRA) allowed home care providers for Medicaid recipients to seek union representation under the state’s labor relations act. Minnesota is one of about 10 states with a similar law.

That law was challenged as violating the U.S. Constitution by unlawfully preempting the National Labor Relations Act. Opponents of the law said, “By seeking to reclassify individual providers as state employees for the purpose of collective bargaining when the NLRA precludes domestic service employees entirely from collective bargaining, the IPRA is in direct conflict with the NLRA. The Eighth Circuit Court of Appeals decided that the Act was not preempted and states are free to regulate their workers as they see fit. Accordingly, home healthcare aids are not domestic service employees.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

National Labor Relations Board’s Unorthodox Treatment of McDonald’s Joint Employer Case

By now, if you’re remotely interested in what happening at the NLRB, you are familiar with the McDonald’s joint employer case. If you’ve just crawled out from under a rock, this case will determine whether McDonald’s and its franchisees are joint employers. Currently they are not, which benefits companies, but this Board is not shy about changing the current status of the law to benefit unions. In total, there are 61 unfair labor practice charges alleging 181 violations of the National Labor Relations Act against McDonald’s and 31 franchisees in six NLRB Regions.

The Board recently determined that it would hear evidence on the idea that McDonald’s is a joint employer with its franchisees before considering evidence about the underlying unfair labor practice charges. In essence, the Board decided to determine who is liable for any unfair labor practices before ruling whether any unfair labor practices exist in the first place. This is called putting the cart before the horse. Or is it counting your chickens before they hatch?

Also odd is the unprecedented consolidation of all the charges. The alleged violations involve circumstances specific to particular employees at a specific location owned by a unique company. No two cases are like. Each has its own nuances. By lumping them all together many franchisees will be denied due process rights and be subjected to delays and costs that otherwise would not have existed if their cases were heard in the traditional manner.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Buckeye Fans: Is a Red Shirt, Grey Pants Dress Code an Unlawful Anti-Union Policy?

In the early 2000’s the United Autoworkers (UAW) unions began trying to organize the Nissan plant in Canton, Mississippi. Nearly 15 years later, it’s still trying. According to the UAW, “many” Nissan employees recently began wearing pro-union t-shirts and hats to work. In response the company changed its almost anything goes dress code to one that required employees wear a red polo shirt and grey pants; and if they needed a jacket, it too must be grey.

According to Nissan, this new policy “helps achieve the highest standards of safety and quality in all manufacturing facilities.” Employees have been able, and will continue to be able, to wear the clothing of their choice so long as it complies with the dress code. The UAW filed an unfair labor practice charge over this modified uniform policy alleging that the change was done as a direct result of employees wearing pro-union t-shirts and hats. The Board bought the argument and issued a complaint against Nissan.

While most uniform / dress code cases deal with a company allowing employees to wear buttons, t-shirts, and hats with logos, just not union logos, this one is different. Here, the company has denied all logos, even all colors outside of red for shirts and grey for pants. Nissan’s new dress code appears to be content neutral, but according to the Board, that isn’t enough to escape an allegation that it was implemented with an unlawful, anti-union motive.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

A Union’s Waiver of Bargaining Rights Must be Clear and Unmistakable

A union and hospital had a somewhat standard management rights clause in their collective bargaining agreement. That clause provided that the employer “retains the sole right to manage and direct” unit employees, to determine the “nature and extent of services provided,” and to “assign and delegate work.” The contract also had a specific provision that an employee assigned to serve as “preceptor” for a nurse or student nurse interns would receive added pay while performing the extra duty. Based on these contract clauses, the hospital created a program for nurses to provide clinical training to nursing students at a local university.

In the new program, nurses selected by the hospital and approved by the university received pay from the university and were considered employees of both the hospital and university. The union objected to this arrangement and argued that although a similar program was contemplated in the collective bargaining agreement, the agreement did not intend to authorize this type of program. The hospital rebutted that the union waived its right to bargain over this program based on language in the management rights clause.

A union’s waiver of bargaining rights must be established by clear and unmistakable evidence. Merely accepting a management rights clause and signing off on a contract provision that covers some training duties does not satisfy the NLRB that a union has surrendered its right to bargain about new and different programs. Here, the Board found that the new program was materially different from the one identified in the union contract and ordered the employer, if requested by the union, to rescind any changes made in the conditions of employment of unit employees because of the program.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Prepare for the Impending Persuader Rules

The 1959 Labor Management Reporting and Disclosure Act (LMRDA) focused primarily on union corruption. The most prevalent part of the LMRDA is an LM-2 form that details union expenses. A lesser- known part of the LMRDA deals with payments to consultants called “persuaders.” Companies must report payments for services like communicating with workers about their rights under the National Labor Relations Act. As a practical matter, persuaders interact with employees who may be members of a bargaining unit, while labor lawyers restrict our interactions to management. Lawyers lose the attorney-client privilege when dealing directly with bargaining unit (or potential bargaining unit) employees.

Unfortunately, a rule likely to go into effect in a few months changes this dynamic. The Department of Labor wants companies, consultants, and attorneys to report any time they draft, revise, or provide: 1) materials for presentations to employees; 2) speeches; 3) planning employees meetings; 4) employee attitude surveys; 5) training supervisors; 6) directing activities of supervisors; 7) developing personnel policies; 8) conducting a seminar for supervisors, and more.

This is a massive change and captures a lot of work routinely done by attorneys under the cloak of attorney-client privilege. This rule seeks to remove that privilege. It will certainly be challenged, but a broader interpretation has been in place before and survived legal challenge. Companies should contact their labor attorney now and prepare to avoid exposing corporate secrets after this rule takes effect.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Alter Ego Grocers Ordered to Recognize and Bargain with Union

Victor and Josephine Laracca owned and operated a Foodtown supermarket for ten years. Foodtown employees were represented by the UFCW. Shortly after Foodtown closed, Laracca’s son Roberto opened a supermarket named Fantastic a few miles from the shuttered Foodtown.

While Roberto is sole owner of Fantastic, a $400,000 loan was guaranteed by Victor and Josephine and secured by mortgages on properties they owned. Fantastic was also initially stocked with groceries that were purchased using funds from a loan personally guaranteed by Victor and Josephine and secured by a mortgage on property Josephine owned with Roberto’s sister. The UFCW, which had represented Foodtown employees before it closed, argued that Fantastic was an alter ego of Foodtown and thus UFCW was entitled to represent Fantastic employees, too. Fantastic was also largely staffed by Foodtown managers and non-supervisory personnel.

The NLRB finds alter ego status where multiple entities have substantially identical management, business purpose, operations, equipment, customers, supervision, and ownership. More importantly, though, through a legal procedure called a 10(j) injunction, the Board successfully persuaded a federal court to order Fantastic to recognize UFCW as the union representing its employees and bargain with the UFCW for a union contract while the issue of alter ego status was being investigated. Consider the waste of time, energy, and money Fantastic must expend on what could be an exercise in futility. If Fantastic is not an alter ego to Foodtown, then the UFCW does not represent Fantastic employees, so why make Fantastic pretend its employees are unionized? Wouldn’t it be better to wait for the results of the investigation?

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Proposal to Export U.S. Oil Causes Unions to Break from AFL-CIO

There has recently been a push to lift the 40-year old ban on oil exports. Several economists believe that pushing domestic crude oil into the world market will create hundreds of thousands of new jobs, contribute tens of billions of Gross Domestic Product dollars, put downward pressure on domestic fuel prices, and provide our allies with an alternative to sourcing energy from Russia and the Middle East. The AFL-CIO disagrees.

According to the AFL-CIO, the country’s largest union federation, “lifting the ban would not only prove detrimental to the jobs of the men and women employed at U.S. refineries, but also to the communities that rely on the tax base generated from these wages.”  Notably, the United Steelworkers, the main union for oil refineries, is a major player within the AFL-CIO.

This staunch opposition to exporting oil has caused the Laborers’ International Union of North America (LIUNA) and the International Union of Operating Engineers to break from AFL-CIO, sign a letter with 20 business and industry groups, and support a House bill ending the ban on oil exports. While the AFL-CIO’s position is largely taken to protect steelworkers, LIUNA and the Operating Engineers are involved in the shale oil industry and stand to benefit from new, international oil demand.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Peer Review Meetings Warrant Weingarten Rights

A hospital informed two nurses that a peer review committee had reviewed cases in which they may have “exhibited unprofessional conduct.” The employees’ request for union representation at follow-up meetings was denied. If those follow-up meetings determined that unprofessional conduct occurred, the hospital was required, by state statute, to report such conduct to the state Board of Nursing. The Board of Nursing would then determine whether any action should be taken against the employees. Under Weingarten, an employee has a right to be represented at an investigatory interview if the employee has a reasonable belief that the interview may result in disciplinary action. Although the peer review meetings did not directly result in employee discipline, they could have resulted in discipline through the state Board of Nursing. This, according to the National Labor Relations Board, was connection enough to rule that these meetings fell within Weingarten and the employees were entitled to union representation.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Union Boss Demanded Employees Pay Into His Personal Slush Fund

The former head of a Michigan construction union was recently charged with extorting union business agents and other employees to each pay $5,000 of their salaries per year into his personal “Slate Fund.” The fund was to be used for union election campaign expenses. But, and stop me if you’ve heard this one before, the union boss used most of the money for his own personal benefit and fired anyone who threatened to turn him in. He gave some of the money to his daughter as a wedding present and of course paid for non-work related and expensive meals and liquor with it. While these accusations are embarrassment enough, having the public learn that he spent $50,000 on special rims for his union-issued Cadillac is the cherry on top.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

New Union Organizing Tactic: Projecting Spotlight Image on Side of Target Company’s Building

A union that had sought to organize a casino for years took its efforts to a new level when it projected a three-story image onto the wall of the casino. Concerned that the light was a safety hazard that could blind motorists, the casino called the police who told the union to shut off the light. The union then filed an unfair labor practice against the casino for calling the police. The casino was cleared of wrongdoing because it may have had a “trespass due to light project” and nuisance claim, although state law was unclear if either claim was viable.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

NLRB Carve Out to Arbitration Clause Not Adequate, says Board

By now, most companies know that the National Labor Relations Board frowns upon mandatory arbitration agreements, even voluntarily entered into ones, and now even ones that permit employees to file charges with the Board. Specifically, an Administrative Law Judge found that the company acted unlawfully in making it “reasonably clear” that individual employees could file NLRB charges because the company’s “exclusions and restrictions” language confused, rather than clarified, the rights of employees to file unfair labor practice charges with the Board.

The policy language provided, “Any non-waivable statutory claims, which may include wage claims within the jurisdiction of a local or state labor commission or administrative agency, charges before the EEOC, NLRB, or similar local or state agencies, are not subject to exclusive review by arbitration.” According to the Board, the company’s suggestion that it “may” exempt the filing of Board charges is misleading in that it implies that some claims that are cognizable under Board law may nevertheless be subject to arbitration under the Employer’s policy.

Now I’m confused in trying to figure out how a plain language reading of the policy that permits the filing of Board charges was confusing to the Board.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

NLRB Treats Incomplete Election Petitions as if they were Properly Completed

Section 102.61(a)(8) of the National Labor Relations Board’s rules requires that a certification petition “shall contain a statement that the employer declines to recognize the petitioner as the representative within the meaning of Section 9(a) of the Act or that the labor organization is currently recognized but desires certification under the Act.” The NLRB’s standard form petition (Form NLRB 502(RC)) provides a space (block 7) for a description of a union’s bargaining demand and an employer’s response.

A union recently failed to allege that it had made any demand for voluntary recognition. Undeterred, the NLRB’s Regional Director did not dismiss the petition despite the “shall contain” language in the rule. The union prevailed in the election and the employer filed a post-election request for the Board’s review of the Regional Director’s decision.

The Board held that compliance with rule 102.61 is not mandatory, which begs the question whether other rules that also contain the word “shall” are mandatory? If so, how are employers ever to know when they must, or may, follow a rule?

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Union Blackballs Member Who Complained of Injustice

Unions are always quick to cast stones against companies and allege that employers retaliate against workers who stand up for their rights. Yet some unions don’t realize they live in a glass house. The Operating Engineers union recently retaliated against a female member by removing her name from a work-eligible list at its hiring hall after she filed a discrimination charge with the Equal Employment Opportunity Commission and openly criticized union management.

Unions are held to the same Wright Line standards as companies when it comes to retaliating against an employee. Under Wright Line, a union violates the National Labor Relations Act if it takes harmful action against a member in retaliation for that member’s statutorily protected activity unless the union can show it would have taken the same steps absent the protected activity. In addition to retaliating, the union also violated its duty of fair representation by excluding the member from the union’s out-of-work list and refusing to stamp her unemployment book.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Captain of the Ship and Highest Ranking Person Aboard Not a Supervisor Says NLRB

This case is interesting not because it involves the captain of a tugboat. Rather, its interest lies in that the NLRB has concluded that the highest-ranking person at a worksite, and the “person in charge,” is not necessarily a supervisor.

In this case, it is clear that six person crews on tugboats must obey commands of captains when the boat is at sea. And the captains are responsible for “everything that happens on a tugboat.” But, according to the current NLRB majority, nothing in the National Labor Relations Act requires that the highest ranking employee in a work group, the person whose orders must be obeyed, and the person responsible for everything, be considered a supervisor. The Board showed its true colors (its continued effort to increase unionization rates) when it cautioned: “[F]inding that captains are not supervisors for purposes of the Act does not mean that their commands need not be obeyed by the crew, or that the Employer may not discipline crew members for failing to obey them; it simply means that the captains may vote whether to be represented for purposes of collective bargaining and be represented as part of a unit that selects a representative.”

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.