Conflicting Evidence Means Union Wins at Hearing

The National Labor Relations Board must issue a complaint if it finds conflicting testimony during an investigation of an alleged unfair labor practice charge. When an unfair labor practice charge alleges a supervisor said or did something and the supervisor said he didn’t; that he said, she said situation is conflicting testimony that can generally only be resolved by an administrative law judge after a hearing. The judge weighs the testimony of both sides, decides which side is more credible, and makes a determination of which side wins. But now it appears that conflicting evidence alone is enough to find against an employer and declare the union the winner without having a hearing.

In 2011 a management company was hired to manage a hotel. At that time, the housekeeping functions had been outsourced to a staffing company. The management company terminated the contract with the staffing company and brought the housekeeping function in-house. Shortly thereafter, the housekeeping effectiveness waned to an all-time low (based on performance metrics). The management company outsourced housekeeping to the staffing company. So where does the conflicting testimony come in?

At the time the management company decided to outsource the housekeeping functions, hotel employees had just started a union organizing drive. The union (and the NLRB) alleged that the outsourcing was motivated by anti-union animus. The management company argued that to prove it, the Board must produce evidence that the discrimination “in fact caused or resulted in a discouragement of union membership.” The Fifth Circuit ruled that the NLRB “need not prove discouragement as a matter of fact.”

The Fifth Circuit noted that the NLRB relied on evidence of two union-related conversations between housekeepers and Hotel supervisors prior to the outsourcing decision, as well as the statement of another supervisor that the outsourcing decision was “because of the union.” Together these constituted substantial evidence of an unlawful motive. Stating that it must pay “special deference” to the NLRB’s resolution of conflicting evidence, the court upheld the NLRB’s order.

And so it is: conflicting evidence is enough to find illegal motivation and rule against an employer.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

2016 Work Stoppages Tell a Funny Tale

In 2016, there were 15 major work stoppages, defined as either a strike or a lock out. This is an increase from 12 major work stoppages in 2015. These stoppages involved 99,000 workers (the most since 2012) and resulted in 1,543,000 days idle (the most since 2008).

In summary, there were more stoppages, involving more workers, and more missed workdays. So why is this funny? Because last year also saw a record low number of workers in unions. This confirms what I have been telling my clients and audiences – while union density is shrinking, the remaining union supporters are aggressive. Unions are agitating more than before; they are “working to rule” more than before; they are more confrontational than before, and the laws protect unions more than ever before. Labor unions know their backs are against the wall. They dusted off their playbooks from the strike-heavy 1970s.

Companies: Now is not the time for complacency. Are you prepared for a walk-out? Can you operate during even a short term strike? Do you have a strike contingency plan?

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

Will Trump’s DOL Classify Worker Centers as Unions?

I first covered the budding Worker Center movement here. The takeaway from that blog post was:

But worker centers are not “labor organizations” – they are 501(c)(3) charities – so they are not regulated as heavily as unions nor do they pay taxes. Worker centers cannot engage in unfair labor practices and do not have to report income/expenses. They do, however, exert tremendous pressure on companies to yield to union demands during bargaining or foregoing secret ballot elections during a union organizing drive. For example, KIWA executed a corporate campaign against Koreatown store owners complete with picketing, parades, and social disobedience – and won.

Since that 2013 blog post, workers centers have become larger, richer, and more powerful. One of them is the machine behind Fight for $15. Another has been a thorn in Walmart’s side for years. Others have been causing havoc in other industries.

Pro-business groups hope that the Trump administration will scrutinize whether worker centers are labor unions or charities. If labor unions, then they need to play by the same rules as unions. Their ability to skirt certain rules, like financial disclosure reporting requirements, and most National Labor Relations Act laws, have aided the growth of worker centers.

The role of worker centers has grown over the past few years while traditional union membership continues to plummet. Worker centers are filling a void created by the steady decline in union membership, including by advocating for higher minimum wages, exposing alleged worker abuses, and giving employees more voice of at work. For example, while unionization rates dropped to an all-time low again last year, ROC United, a worker center focused on the restaurant industry, saw its revenue more than double in a single year. In 2008, ROC’s revenue was $250,000. By 2013, it had grown to $2.9 million. Last year it took in over $7 million.

Critics have tried in vain to get the Obama Department of Labor to force worker centers to file the same financial disclosures required of unions, like LM-2 reports which track dues and fees collected, detail where unions spend and receive money, and provides information about loans and investments. According to the U.S. Chamber of Commerce, these disclosures would be “useful to try and refute this concept that these union front organizations are amorphous swarms of workers coming together because they’re fed up with abuse from their employers.” Likewise, the International Franchise Association says: “If it looks like a union, acts like a union, and harasses like a union, it should be treated like a union.” In my opinion, dues-paying union members may want to know, and have a right to know, and should know, where their money is going and how much of it is going to finance worker center activities designed largely to help non-union workers.

But I caution pro-business groups against thinking that just because Donald Trump is in the White House that worker centers will be classified as labor unions. George W. Bush’s administration twice ruled that that ROC was not a union. With this precedent, I’m not sure how much of a priority the Trump administration will place on this issue.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

Union’s Right to Walk Around Your Company with OSHA Being Challenged in Court

Thankfully, the National Federation of Independent Business (“NFIB”) has challenged a rule that has been around for only a short period of time called the Union Walk Around Rule.

For background, when OSHA inspects a workplace, an OSHA Compliance Officer does a “walk around” where he literally walks around the workplace looking for violations of the OSH Act. Employers and/or their representative (OSHA consultant) are permitted to accompany the Officer during the walk around. Pursuant to the 2013 Union Walk Around Rule, a union official is permitted to accompany an employee during a walk around of a non-union workplace. Let me repeat that. A non-union workplace must allow a union official, whose job is to organize workers, complete access throughout the workplace during an OSHA inspection.

This is how it plays out: a union is trying to organize a workplace and some employees support the organizing drive. To show the employees that the union is working for them, the union instructs an employee to call OSHA and allege a violation of the OSH Act. There doesn’t need to be merit to the allegation; it’s just an allegation that triggers the OSHA investigation. When the inspector shows up to inspect, the union organizer is permitted to walk with the inspector. This grandstanding allows all workers to see the organizer, gives the organizer the opportunity to speak with workers while they are working, and provides an opportunity for the union to see “behind the scenes” of the company it is trying to organize.

NFIB argues that nothing in the OSH Act allows a non-employee to accompany the compliance officer. Stay tuned for the outcome. This will be interesting.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

Should the Right to Unionize be in the New Social Compact?

If you’re former President Obama the answer is yes, and he said so during his farewell address.

For those unfamiliar with the definition of a Social Compact (like I was), here’s the definition that Google gave me:

an implicit agreement among the members of a society to cooperate for social benefits, for example by sacrificing some individual freedom for state protection. Theories of a social contract became popular in the 16th, 17th, and 18th centuries among theorists such as Thomas Hobbes, John Locke, and Jean-Jacques Rousseau, as a means of explaining the origin of government and the obligations of subjects.

This was not the first time Obama endorsed the right to unionize, free from employer involvement. He uttered it at the 2009 AFL-CIO Convention and again when running for re-election in 2012. He won both with organized labor’s strong support. But union leaders have said, both privately and publicly, that Obama never followed through by pushing the cause. Nonetheless, there he was, on the cusp of turning over the presidency to Donald Trump, likely after he and Michelle he inked a book deal worth more than $60 million, when he made a final plea to the American people:

The laid-off factory worker, the waitress or health care worker whose just barely getting by and struggling to pay the bills. Convinced that the game is fixed against them. That their government only serves the interest of the powerful. That’s a recipe for more cynicism and polarization in our politics.

Now there’s no quick fixes to this long-term trend. I agree, our trade should be fair and not just free. But the next wave of economic dislocations won’t come from overseas. It will come from the relentless pace of automation that makes a lot of good middle class jobs obsolete.

And so we’re going to have to forge a new social compact to guarantee all our kids the education they need. To give workers the power to unionize for better wages. To update the social safety net to reflect the way we live now….

It was at this point, he was interrupted by cheers and applause.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him atMatt@MattAustinLaborLaw.com.

Unions Seek to Reverse the Elusiveness of Organizing Retail

Since 1980 real wages in retail have fallen by 11% while on-call scheduling, involuntary part-time work, and “clopening” (where workers lock up the store at night and reopen the next morning) have, according to unions, wreaked havoc with workers’ lives. But the retail sector has one of the lowest rates of unionization in the economy – around the 5% mark – resulting with unions that have virtually no influence.

But in 1970s retail had 15% union density. Grocery stores were higher at a staggering 31% in 1983. This begs the question: What went wrong for unions?

When asked this question the typical answer is given, “the general trend towards de-unionization of the U.S. workforce and the hollowing out of the National Labor Relations Act through case law and employer challenges.” But, according to Peter Ikeler, a sociologist at the State University of New York College at Old Westbury and author of the book, Hard Sell: Work and Resistance in Retail Chains, the most important factor in the fall of retail unionism has been employer hostility.

The drumbeat of anti-unionism typically begins as soon as new employees begin their training. New worker orientation at Walmart, the nation’s leading retailer, used to include a video that featured lines like: “The truth is unions are businesses, multimillion-dollar business that make their money by convincing people like you and me to give them a part of our paychecks.” Even smaller, regional chains invest in anti-union propaganda for new hires. According to internal documents provided to In These Times website by an employee of Big Y, the Massachusetts-based grocer warns new hires about signing a union authorization card since the company’s “continued success” would be “jeopardized through third party involvement.”

Unions also share part of the blame, says Ikeler, because they have done a lousy job of keeping workers engaged. In his view, labor unions need to step up their organizing.

Unions need to get back to what unions were in their early New Deal days: more worker-based rather than these large staff-run top-heavy entities that give lots of money to Democratic candidates every few years with relatively little payback.

Ikeler also sees a lot of potential in the worker center model because they give workers a place to go to form communities, talk about work conditions, and plan campaigns. Worker centers also help cultivate a sense of occupational identity in a sector of the economy known for deskilling workers in order to make them more easily replaceable. Per Ikeler, “If workers see themselves as part of an occupational community, they may be more likely to form organizations together and put up collective resistance.” Ikeler continues: “Worker centers cannot replace unions, but the two organization can work together.” They should be able to work together since worker centers are usually owned, funded, and operated by unions.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

Micro-Unions: I Cannot Overstate their Effect in the Labor Movement

Workplace organizing typically requires large amounts of time and money. Yet for more than five years now, labor unions increasingly have been relying on a low-cost alternative: micro-unions (or as some say, partial workplace organizing).

President Obama used his power of appointment to achieve a highly partisan pro-union majority on the five-member National Labor Relations Board, even when operating short-handed. The result has been a series of landmark decisions favorable to unions – and unfavorable to employers an dissenting employees. Specialty Healthcare, which addressed the issue of the appropriate size of a bargaining unit, is perhaps the most far-reaching.

Along with the decision in Specialty Healthcare, the NLRB issued a press release. Really, a press release for a decision? Seems like a big deal. In its press release, the NLRB downplayed the importance of the decision. The text spoke of a “new approach,” one that merely “clarified” standards for approval of bargaining units outside of the health care industry. Even then-Chairman and current Member Mark Pearce asserted “Specialty Healthcare was not designed to create any difference in the size of bargaining units.” Yet, the practical effect of the decision is that when a union cannot garner widespread support, unions in all industries are encouraged to organize the smallest units of employees possible.

The United States Chamber of Commerce recently released a report titled “Trouble with the Truth: Specialty Healthcare and the Spread of Micro-Unions” that summarizes several micro-union cases. Here is an excerpt from that report:

Volkswagen Chattanooga. The 108-44 vote in December 2015 by machine maintenance workers in favor of United Auto Workers representation at Volkswagen’s Chattanooga assembly plant. VW management appealed to the NLRB to reverse the regional director’s decision to hold the election, arguing that the union had created a fictional maintenance department for the sole purpose of undoing its defeat in a February 2014 election by a 712-626 margin for full plant representation (the company actually supported the union in that instance). The NLRB declined to overturn the regional director. Volkswagen this past September took its case to District of Columbus federal appeals court, where it remains active.

DTG Operations. At a rental car facility at Denver International Airport, 31 agents appealed to the NLRB for recognition as a collective bargaining unit after the board regional office had rejected their bid. The regional office had concluded that the smallest appropriate unit would be a “wall to wall” unit consisting of all 109 employees at the operation. In the aftermath of Specialty Healthcare, however, the NLRB had a rationale for overruling the regional office. And on December 30, 2011, the board concluded: “The RSA (rental service agents) and LRSAs (lead rental service agents) share a community of interest and…the Employer failed to demonstrate that the additional employees it seeks to include share an overwhelming community of interest.”

Macy’s. In March 2011, the United Food and Commercial Workers union filed a petition with the NLRB to represent all roughly 120 sales associates at the Macy’s department store in Saugus, Mass. The board approved the application. The UFCW lost its representation election in May. The Specialty Healthcare ruling months later gave the union a new lease on life. And in October 2012 the union went small. It filed a representation petition with the NLRB regional office, proposing to represent only the 40 or so salespeople / consultants who worked at the store’s cosmetics and fragrance counters. The regional office certified the bid for the micro-bargaining unit and ordered an election held. Macy’s management appealed, citing the nearly half-century precedent covering the retail industry. But it was to no avail. The NLRB upheld the regional decision, and in language indicating Specialty Healthcare should apply to the broader economy.

Nestle Dreyer’s. A local of the International Union of Operating Engineers proposed organizing more than 110 maintenance workers at Dreyer’s ice cream plant in Bakersfield, California. Dryer’s management objected saying that the campaign willfully prevented 578 production workers at the plant from having any say. Late in 2011, not long after the Specialty Healthcare ruling, the IUOE filed a complaint with the regional NLRB office. The office approved the proposed micro-bargaining unit. The company, in response, appealed to the National Labor Relations Board for a review of the approval. The board declined. Dreyer’s then took its case to court. Last April, the U.S. Court of Appeals for the Fourth Circuit upheld the NLRB’s decision.

The essence of the issue is this. If, for example, only 40 out of 200 employees at a given worksite want to unionize, any union is going to have enormous obstacles winning representation whether through secret ballot election or card check. But if those 40 pro-union employees constitute a majority within a division of 60 employees, under the Specialty Healthcare test they would win. And equally to the point, the 20 employees who do not wish to join the union would be outvoted and forced to join (unless they were in a Right to Work jurisdiction).

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.