NLRB Quick to Conclude Independent Contractors are Employees

The National Labor Relations Board filed a complaint against Postmates, Inc., an on-demand company, similar to Uber, that has a network of couriers delivering goods. The complaint alleges that Postmate’s violated the National Labor Relations Act by requiring employee drivers to enter into arbitration agreements as a term of employment. The complaint further alleged that Postmates interfered with the Section 7 rights of Customer Service Associates (CSA) by prohibiting them from discussing terms and conditions of employment.

While the NLRB has made clear that misclassification of independent contractors could result in an unfair labor practice, in this case the NLRB simply assumed that Postmates’ couriers are employees, rather than independent contractors, without holding a hearing or allowing any briefing on the issue. This is significant because the NLRB does not have jurisdiction to file complaints on behalf of independent contractors.

The Postmates complaint should put employers utilizing independent contractors on notice that the NLRB will likely gloss over the employer’s characterization of independent contractor status and file a complaint when it believes that worker are “employees” under the National Labor Relations Act, and that a violation of the Act has occurred. 

As a result, employers in the on-demand economy should: 1) make sure that their classification of couriers as independent contractors is consistent with the law; and 2) avoid having overly-broad or vaguely defined employment policies that could be interpreted to infringe on the Section 7 rights of potential employees. This “belt and suspenders” approach could help on-demand companies avoid lengthy and costly battles at the NLRB.

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.

h/t Seyfarth Shaw’s Employer Labor Relations Blog

Employer Punished for Truthful Statements During Union Organizing Effort

Anyone who has been through a union organizing campaign can relate to the following. Until now, employers could tell the truth to their employees. Employers could tell employees that a union could not guarantee a wage increase, that everything is negotiable, that unions cost money, that unions preclude an employee from working directly with management, etc. Apparently, these statements are now unlawful. 

A company recently implied that workers’ wages and benefits would start from “ground zero” simply by choosing union representation and not as a possible outcome of good faith bargaining. Management’s suggestions of a more onerous or difficult work environment after voting to join the union also constituted an unfair threat under the National Labor Relations Act. According to the Judge, “I find that employees would reasonably believe, based on [the Company’s] statements, that with the union, the would lose many of their benefits, experience decreased pay, lose all flexibility they might have in navigating day to day work conditions, and forfeit any flexibility in terms and conditions of employment they might enjoy.

The Company committed additional unfair labor practice by: 1) holding a meeting with employees to urge them not to unionize, 2) sending a letter to employees encouraging them to forego unionization and telling them that they would lose the ability to represent themselves if they voted in favor of the union, and 3) telling employees that the union would cost money and could potentially put their paychecks, benefits, and work flexibility at risk.

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.

Contractor that Thought it was Out of a Multi-Employer Bargaining Unit made Unlawful Workplace Changes

A marble contactor dropped out of a multi-employer bargaining unit and informed the union it would be terminating an existing CBA when it expired. The company also informed the workers it would implement new employment policies like modifications to wages and health insurance, stopping contributions to the union’s pension plan, as well as implementing flexible spending accounts, profit sharing, and a 401k plan.

In response, the workers held a union representation election and voted the union in. The company refused to bargain with the union, and the NLRB ruled that the Company’s refusal was a violation of the National Labor Relations Act. Undeterred, the Company followed through with the previously announced changes believing that it no longer had a duty to bargain under the previous CBA. But, the NLRB held that the Company was still obligated to bargain with the union and violated the Act by making unilateral changes after the CBA expired. The Board then ordered the Company to rescind the changes and rehire the laid off employees. 

In Member Miscimarra’s dissent, he said that the Company’s move to implement changes that had been announced before the union election was held was legal. “Board case law is crystal clear that this action was lawful. An employer does not violate the NLRA when, after a union is elected, its implements a term or condition of employment decided on before the election,” he said. Miscimarra also noted that under the majority’s decision, a company in Ardit’s situation would be caught between a rock and a hard place since none of the employer’s options would have been legal under the majority’s framework.

The respondent had three options: (1) it could implement the terms it had previously announced; (ii) it could refrain from implementing those terms or (iii) it could give the union notice and opportunity to bargain. Under any fair system of law, one of these options must be lawful. Under the majority’s decision here, all three options are unlawful.

Miscimarra also concluded that Ardit’s layoffs were similarly lawful because the company had no work for the workers to perform.

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 GC Seeks to Make Unlawful Intermittent Strikes Lawful because They’re Gaining Popularity

As covered before, the National Labor Relations Board’s General Counsel, Richard Griffin, believes that intermittent strikes deserve legal protection – and announced he is seeking test cases to bring before the Board. Intermittent strikes fall into murky legal territory. Workers who strike more than once or twice run the risk of being fired for it. Yet, repeated strikes are getting more common. Griffin argues that intermittent strikes should be protected when they meet three criteria:

  1. No Disguised Slowdowns: “They involve a complete cessation of work, and are not so brief and frequent that they are tantamount to work slowdowns.” Striking for 10 minutes every half-hour would not be protected, but a series of one-day walkouts would. The general counsel suggests that strikers should not “reap the benefit of a strike without jeopardizing pay or risking replacement.
  2. No Usurping the Boss’s Authority: “They are not designed to impose permanent conditions of work, but rather are designed to exert economic pressure.” Leaving work after seven hours in order to establish a seven-hour day would not be protected, but boycotting overtime or weekend work to exert economic pressure on the company might be.
  3. The Point is Clear: The employer would have to be made aware of the employees’ purpose in striking.

One reason Griffin is urging this update is to “address changed industrial conditions – including the rise of worker movements outside the traditional collective bargaining model.” Non-union workers – such as the fast food workers, retail janitors, and airport workers who have walked out on recent, repeated short strikes – don’t have grievance procedures or the ability to sit down and negotiate with management. They typically earn less than union members, Griffin points out, and do not have access to strike funds, making it more difficult to pull off longer strikes. 

Since when does the amount of money an employee makes, or an employee’s ability to tap into strike funds determine whether a strike is (or should be) lawful? Either these faddish intermittent strikes have always been lawful or are not (now) lawful. There is no reason to change the law because of “a rise in worker movements outside the traditional collective bargaining model.” If it is outside the traditional governance of the National Labor Relations Act, then it is unlawful. Should looting also be made legal, since there has been a rise in that, too, over the past few years?

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.

Smaller Bonuses for Union Employees Not Unlawfully Discriminatory

A union filed an unfair labor practice charge alleging that a company discriminated against union-represented employees by paying them a lesser bonus than non-union employees. The Employer argued it did not discriminate in paying the lower bonus amount to union employees because negotiated wage increases for union employees exceeded increases granted to non-union employees.

The ALJ found that the employer’s payment of an end-of-year bonus was consistent with past practice (and despite no mention of such payment in a recently negotiated collective bargaining agreement) did not discriminate against the union-represented employees in violation of Section 8(a)(3) of the NLRA.

The ALJ found no discrimination under Wright Line because there was no independent evidence that the respondent was motivated by an anti-union purpose in paying the lesser amount to union employees. Rather the respondent tied the lesser amount to the higher wage increase earlier received by union represented employees.

The ALJ also analyzed whether the paying of the lesser amount to union employees constituted inherently destructive conduct under Great Dane Trailers, and thus supported a discrimination theory. She concluded it did not, because any harm due to the lower bonus payment to union employees was viewed as slight because of the higher bargained-for wage amounts received by union employees.

The ALJ also found that the employer failed to give the union adequate notice of the bonus payment and therefore failed to provide the union an opportunity to bargain over it.

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.

JetBlue’s New Contractor Ordered to Bargain with Union at JFK Despite Not Hiring a Majority of Predecessor’s Employees

JetBlue uses outside contractors to provide baggage handling, skycap, checkpoint, and wheelchair services at JFK’s Terminal Five. Jet Blur selected PrimeFlight to replace Air Serv at JFK. Air Serv had a collective bargaining agreement with the SEIU.

PrimeFlight hired 362 employees, 52 percent of whom were former Air Serv workers. On May 23, SEIU demanded recognition as the bargaining agent of the PrimeFlight workers. PrimeFlight didn’t respond. On July 6, its Terminal Five staff totaled 507 employees. Only 39 percent of those 507 employees had worked at Air Serv. PrimeFlight argued it had no obligation to bargain with the SEIU because the former union-represented employees from Air Serv did not constitute a majority of PrimeFlight’s new workforce.

Air carriers such as JetBlue are covered by the Railway Labor Act, and the NLRB may consider a ground service company a “derivative carrier” if its work is subject to significant control by the air carrier. PrimeFlight argued JetBlue exercised such control – meaning the NLRB would not have jurisdiction over the case – but the judge said the evidence was unpersuasive. He also said it appeared that since 2013 the National Mediation Board (which enforces the Railway Labor Act) has been ceding jurisdiction over companies like PrimeFlight to the NLRB. 

With jurisdiction before the NLRB, the critical date to determine whether PrimeFlight had a duty to bargain was May 23 – the date the SEIU demanded recognition. The union-represented workers were a majority of the workforce at that time, and the union’s status as their bargaining agent was established then. In fact, the company had hired workers in every job classification by May 9 and the hiring of additional workers over the next two months did not affect the company’s duty to bargain with the SEIU. 

The judge entered a preliminary injunction requiring the company to meet and bargain with the SEIU while the NLRB completed processing the administrative proceeding against the company. The court held, however, that “any agreement reached between PrimeFlight and the Union is subject to termination if the NLRB determines that PrimeFlight is not subject to the NLRA or did not violate any provisions therein.”

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 GC Seeks to Change the Law on Short Duration Strikes to Disadvantage Employers

The National Labor Relations Board’s General Counsel’s office said the agency’s test for deciding whether multiple short-term strikes were protected is difficult to apply. So he is asking the NLRB to “clarify and modify” the law. Along with the memo was a model brief, which regional officials were asked to include in filings with the NLRB and administrative law judges, with a proposed framework to evaluate whether intermittent and partial strikes are protected under the NLRA.

Taken together the documents signal an intent from the General Counsel’s office to broaden protections for workers who take part in short-duration strikes.

One-day and other short-term strikes are most often used by unions during contract negotiations. Fast food, retail, and other non-union workers are also increasingly using these tactics in their campaigns for higher wages and better working conditions, i.e. Fight for 15, an effort aimed at raising the minimum wage and backed by the SEIU. In one instance last November, the Fight for 15 group launched a one-day strike in 270 cities across the US.

Legally, both union and non-union workers who take part in a short-duration strike have the same protections under the NLRA as do workers who engage in long-term strikes. Where things get murky is when workers engage in multiple, short-term strikes.

For decades, the NLRB has held workers who strike multiple times, especially in the same labor dispute, can face discipline, including termination. Under the General Counsel’s proposal, multiple short-term strikes would be protected if they involve a complete work stoppage and aren’t so brief and frequent that they amount to work slowdown; if they are not designed to impose permanent condition of work but rather to exert economic pressure; and if the employer is aware of the workers’ reason for striking.

Employers are left wondering how realistic is it to engage in permanent replacements or subcontracting for a one-day strike, or a one-hour strike, or a 45-minute strike every other day? Also, what about replacement worker contracts that require a minimum of 5 days pay to the replacement workers – employers will need to pay replacement workers despite regular workers returning from strike only one day after the strike began.

This is an issue that not many companies are following, but it is important since strikes, especially ones lasting a very short amount of time, are increasing. Hopefully this law will not change before a new, President Trump-appointed General Counsel takes office.

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.

Retail Store Wins Injunction Against In-Store Union Protest

Since 2011 unions have held demonstrations inside and in front of a retail store as part of a campaign to raise wages and improve working conditions of employees. Protestors would sing, chant, march, carry posters, or assemble “flash mobs.” The store filed suit in California state court accusing the unions of disruptive labor activities despite its cease and desist demands. The store also filed an unfair labor practice charge with the NLRB two months previously.

The Los Angeles Superior Court found that the stores are not a public forum and that the unions had unlawfully trespassed. The trespassing had substantially or irreparably harmed the store. The just issued the injunction barring the unions from sending people inside the store to engage in unlawful activity.

On appeal, the union argued unsuccessfully that the court did not have jurisdiction to enter an injunction because the matter was preempted by the NLRA since the retailer had filed a charge with the NLRB. The three-judge panel said National Labor Relations Act does not preempt retailers from filing trespass actions, and that a trespass claim can be considered local interest exemption for the purposes of preempting the law.

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 Finds Joint Employer Relationship Partly Because Companies had Worked Together Before thus They will do so Again

Retro Environmental Inc., a construction company, was a joint employer with staffing agency Green JobWorks, LLC regarding a group of full- and part-time laborers. The NLRB found that the construction company primarily controlled the day-to-day work of the temporary workers, while the temporary staffing agency handled matters such as hiring and assigning employees to job sites, completing pre-employment drug screens, and conducting background checks. Green JobWorks also controlled the rate of pay and payroll procedures for the temporary workers, as well as discipline and termination, although Retro could request a replacement when unsatisfied with a particular worker’s performance.

During the summer of 2015, the staffing agency provided workers to the construction company for two demolition and asbestos abatement projects scheduled to conclude in July. In June 2015 the NLRB’s Regional Director dismissed the petition because the projects were close to being completed and there was not enough evidence to suggest the companies would continue working together. In a 2-1 decision reversing the Regional Director in part because the staffing agency had supplied workers to the construction company on several projects before, so it was foreseeable that it would do so again. So according to the NLRB, just because a company contracts with another before means that it will do so again and thus those separate companies are joint employers?

Both staffing agency employers and employers who contract with staffing agencies should be mindful of ongoing attempts by unions to organize a single group of workers in this context, and they should contact qualified counsel regarding strategies for handling possible joint employment scenarios, including the drafting and implementation of service agreements and the areas of control that an entity may ant to exclusively maintain or forego.

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.

It’s Not What You Say, It’s What a Union Hears That Can Allow a Union to Audit a Company’s Financial Records

Most people who have familiarity with labor negotiations know that claiming an “inability to pay” (or “pleading poverty”) triggers an obligation to prove the claim by allowing the union access to financial records. The line of demarcation used to be that a claim of inability to pay requires justification while a claim of “competitive disadvantage” does not.

But, according to a recent NLRB case, a company that affirmatively asserts it is not claiming an inability to pay but stating that it is unprofitable and not competitive may be sufficient to give rise to an obligation to allow a union to conduct a financial audit of the employer’s books.

In that case, an employer sought concessions from the union since it was not winning as many bids for jobs as it used to because of competition with non-union firms. In fact the employer had laid off most of its employees due to lack of work. The employer made the following statements:

  • The company “wasn’t in jeopardy…but that what we were not going to be able to provide was jobs” if the company wasn’t competitive.
  • That the company “had come to an agreement with the bank and the landlord” and “it was important for the union to get on board…so that they could go to the bank and say, hey, this is where we’re at.”
  • A union representative testified that the company wasn’t “crying poverty…They can’t compete with that collective bargaining agreement. I don’t believe they ever said they couldn’t afford the contract.”

As negotiations broke down, the union demanded an audit by a union-selected auditor “to substantiate the employer’s claim of inability to pay.” The employer rejected the request.

The ALJ dismissed the allegation noting that the employer never claimed that it could not pay. Moreover, the ALJ noted that the unions did not request information to evaluate the claim of non-competitiveness by asking for examples of which bids had not been awarded. On appeal, the Board majority reversed the ALJ and found the employer violated its duty to bargain by not allowing an audit of its financial records.

This conclusion shifts the analysis from what was actually stated in negotiations to the much more subjective basis of how the union interpreted statements that do not on their face amount to a claim of inability to pay.

Now, an employer seeking concessions must be much more vigilant when presenting the reasons for the proposed cuts or risk triggering an obligation to open itself to an audit of its financial records. This new standard appears to have moved beyond the clear cut “inability to pay” statement to claims of unprofitability tied to some urgency.

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.

Management Rights Clause: Not an Automatic “No Need to Bargain” Clause

A  company had a management rights clause in its collective bargaining agreement that, among other things, gave it the right to: “adopt and enforce rules and regulations and policies and procedures.” Relying on that clause, the company unilaterally adopted new work rules and a new attendance policy. It also denied the union’s request to receive information and bargain about the changes because the management rights clause allowed the employer to adopt rules and policies, bargaining was not required.

According to the Board, while the management rights clause reserved the right to adopt “rules,” it did not specifically say “work rules,” and while it reserved the right to adopt “policies,” it did not specifically say “attendance” policies.

The Board wrote, “in order to find a waiver [of a duty to bargain] based on contractual language, the language must be ‘sufficiently specific.’” The Board determined it would look for evidence that the intent to waive was “fully discussed and consciously explored during negotiations.”

What does all this mean for an employer who relies on management rights clauses?

  •  Do not assume your management rights clause gives you the right to take unilateral action without first bargaining over your proposed course of action.
  • The duty to bargain can also apply to many other management rights (e.g. subcontracting, transfers of work, layoffs).
  • “Bargaining” does not always mean “get agreement” or “get permission.” In many cases, an employer has the right to ultimately take its proposed action without agreement with the union.
  • How much discussion has to occur, and how much information needs to be exchanged in order to satisfy the duty to bargain requires a case by case analysis. Employers cannot be too quick to say “we have talked enough.” Allow the union sufficient time – often over several meetings – to ask questions and offer alternatives. In these situations, patience really is a often a virtue (and helps avoid costly economic consequences).

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 Reaffirms Obligation to Bargain Over Pre-Contract Discipline But Also Establishes a Burden-Shifting Defense

The Board found that the discharges in Total Security met the standard established in Alan Ritchery for pre-imposition bargaining and that no such bargaining took place. The board declined, however, to order retroactive enforcement of its decision, holding that such enforcement would constitute manifest injustice.

Total Security also set forth, for the first time, the remedies available for future Alan Ritchey violations. In addition to standard remedial relief, i.e. cease and desist orders, a requirement to bargain, and notice-posting, the Board opined that make-whole remedial relief, including reinstatement and back pay and purporting to settle the pre-discipline bargaining violation would be subject to review under the Board’s standards for non-Board settlement agreements if challenged. In the event the parties post-violation bargained in good-faith to impasse over the discipline, back pay would run until the date of impasse.

Such make whole relief would be subject to an employer’s affirmative defense that the discipline was “for cause” under the Act. This new “for cause” defense places the burden on the employer, during the compliance phase of the case, to show “(1) the employee engaged in misconduct, and (2) the misconduct was the reason for the suspension or discharge.”

The burden of proof then shifts to the charging party to challenge the employer’s showing by demonstrating, for example, discipline for the same behavior or other reasons for leniency. The employer may rebut such evidence by proving that the employee would have received the same discipline regardless. The ultimate burden of persuasion remains, at all times, with the employer.

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.

Judge Condemns NLRB’s Tolerance for Racist and Sexist Behavior by Strikers

The DC Circuit Court of Appeals largely upheld the findings of the National Labor Relations Board that the employer unlawfully terminated and/or suspended a number of employees for strike-related misconduct. But, a concurring opinion notably took the NLRB to task for “the too-often cavalier and enabling approach that the Board’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes.”

In one of the relevant incidents, the Board concluded that a striker grabbed his crotch and made obscene and intimidating gestures toward a female employee reporting to work.  But, per the NLRB, this behavior was not sufficiently egregious to warrant the suspension imposed by the employer following the strike. On review, the DC Court of Appeals held: “Given the rough and tumble nature of picket lines and the fleeting nature of the striker’s offensive misconduct, we cannot conclude that the Board erred in its assessment of the objective impact of this particular conduct in this instance.”

The concurring opinion catalogs recent examples of the Board’s countenance of racial epithets, and cases permitting misogynous vulgarities directed at women. In the judge’s view: “Those decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace. The sexually and racially disparaging conduct that Board decisions have winked away encapsulates the very types of demeaning and degrading messages that for too much of our history have trapped women and minorities in a second-class workplace status. While the law properly understands that rough words and strong feelings can arise in the tense and acrimonious world of workplace strikes, targeting others for sexual or racial degradation is categorically different. Conduct that is designed to humiliate and intimidate another individual because of and in terms of that person’s gender or race should be unacceptable in the work environment.”

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 Changes Backpay Formula for Terminated Employees: Harmful to Employers

The NLRB voted 3-1 to revise its backpay formula for compensating workers found to have been unlawfully terminated, ordering an employer to pay for a former employee’s interim-employment and search-for-work expenses.

The Board had previously treated those types of expenses as offsets that reduced the amount of interim earnings that were then subtracted from gross back pay. This ruling, though, establishes that employees will now be compensated for such expenses, even when interim earnings are nonexistent or less than those expenses.

“The Board has been awarding search-for-work and interim employment expenses for 80 years,” the majority wrote. “The changes we make today only affect how the board calculates search-for-work and interim employment expenses, not whether these expenses are a permissible remedy.”

But in his dissent, Member Miscimarra wrote, “I do not discount the fact that parties and claimants experience substantial, often oppressive non-monetary consequences as the result of unfair labor practices. “Nonetheless, the NLRA only permits the board to award relief that is remedial.”

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.

Impact of Subway’s “Voluntary Agreement” with the US DOL on Joint Employment

Doctor’s Associates, Inc., which is the owner and franchisor for the Subway sandwich restaurant chain entered into a Voluntary Agreement with the US Department of Labor (DOL) Wage and Hour Division “as part of Subway’s broader efforts to make its franchised restaurants and overall business operations socially responsible” and as part of Subway’s “effort to promote and achieve compliance with labor standards to protect and enhance the welfare” of Subway’s own workforce and that of its franchisees.

While the Agreement appears intended to help reduce the number of wage and hour law claims arising at both Subway’s company owned stores and those operated by its franchisees across the country, the Agreement appears to add further support to efforts by unions, plaintiffs’ lawyers, and other federal and state agencies such as the NLRB, OSHA, and the EEOC to treat franchisors as joint employers with their franchisees.

The Agreement, which among other things commits Subway to working with both the DOL and Subway’s franchisees to develop and disseminate wage and hour compliance assistance materials and to work directly with the DOL to “explore ways to use technology to support franchisee compliance, such as building alerts into a payroll and scheduling platform that Subway offers as a service to its franchisees.”

Employers advised to review the full range of their operations and personnel decisions, including their use of contingent personnel supplied by temporary and other staffing agencies to assess their vulnerability to such action and to determine what steps they may take to better position themselves for the challenges that are likely coming.

Employers should also carefully evaluate their relationships with suppliers, licensees, and others they do business with to ensure that their relationships, and the agreements, both written and verbal, governing those relationships do not create additional and avoidable risks.

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.

OK to Ask Employee to Delete Tweets per NLRB

The NLRB found a fast food restaurant in Pennsylvania did not violate federal labor law when it asked a worker to delete certain Twitter postings, including one with “cheap #labor.” The Board’s ruling comes after an Administrative Law Judge found among other things, that the company violated the employee’s right to discuss wages and working conditions when it requested he delete a handful of postings from his Twitter account.

The employee wrote “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Another tweet, referencing that the company charged for guacamole, said “it’s extra not like #Qdoba, enjoy the extra $2.”

Per the NLRB, these tweets did not constitute concerted activity because they did not address a term or condition of employment and were not made on behalf of a group of employees. Rather, they were a single worker’s gripe. Savvy workers have, in the past, made similar gripes but gratuitously referenced concerted activity or union organizing at the end which made them activity protected by the National Labor Relations Act.

The NLRB also upheld the ALJ’s finding that an outdated social media policy that prohibited employees from posting “incomplete, confidential, or inaccurate information” and making “disparaging, false, or misleading statements” violated the NLRA.

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.

Responding to Questions About the Future of Joint Employment and the NLRB

Many businesses have recently asked me how they can defend against the NLRB’s Browning Ferris and Miller & Anderson rulings, should they be aware of other cases that may extend these holdings into previously unregulated relationships, and generally, what should companies do to comply with the new laws. Here are some answers:

Before Browning Ferris, companies were joint employers only if each one exercised direct and immediate control over the employees. Now, the NLRB may find a company to be a joint employer even if it does not exercise control in a direct and immediate way. The NLRB may also find a company to be a joint employer if in practice it does not exercise any authority at all, as long as it possesses the authority to control employees.

These are still live issues. The D.C. Circuit is currently considering an appeal of the NLRB’s Browning Ferris decision. Miller & Anderson will also likely by appealed to the federal courts.

Future NLRB cases will likely apply the joint employer doctrine to other forms of business relationships. Joint employment can come in many forms, including temporary agencies and other staffing and subcontracting arrangements, and, as the NLRB argues in the McDonald’s case, franchising. The NLRB is looking at a wide range of business relationships and using the joint employer doctrine as a way to apply the NLRA to any sort of arrangement where more than one entity has control over employees.

As it stated in Miller & Anderson, “to the extent that multiple employers will be required, as a practical mater, to cooperate or coordinate in bargaining, that is a function of the freely chosen business relationship between user and supplier employers that defines all joint employer situations.”

Many employers are not waiting to re-examine their business relationships. In response to McDonald’s arguments to the NLRB that it should not be considered a joint employer with its franchises, many companies are working to distance themselves from their partners who they fear could be considered joint employers.

There is no consensus on a single strategy employers should use in light of the changes to the joint employer doctrine. What many employers do have in common is that they are proactively re-examining business relationships in which more than one entity has the authority to exercise some control over employees, regardless of whether the entities involved are currently unionized or not. Some employers are determining that they must make changes now, despite the uncertainty in the joint employment doctrine. Others re not making immediate changes, but are actively strategizing for the future – whatever it may hold.

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 Says a Corporate Seller’s Conduct Can Prevent a Buyer from Setting Initial Terms of Employment

The law surrounding a purchaser’s obligations to the seller’s union is complex. When structured accordingly, purchasers can set initial terms of employment while bargaining a new collective bargaining agreement. Until now, only the purchaser could bind itself to additional obligations to the seller’s union. Now, though, the seller can obligate the purchaser to inherit the seller’s union and seller’s collective bargaining agreement unbeknownst to the purchaser.

The National Labor Relations Board relied on the parties’ Purchase and Sale Agreement stating that the employees would be offered “(i) a base salary or wages no less favorable than those provided immediately prior to the Closing Date and (ii) other employee benefits, variable pay, incentive or bonus opportunities…substantially comparable in the aggregate” to those provided by the seller. The Board also focused on the seller’s communications, rather than the buyer’s, with the employees. For example:

  • On November 7, an email from seller’s president was delivered via hard copy to the employees stating, “We anticipate approximately 2,000 [Seller Company’s] employees will transfer to the new business.”
  • On November 8 an employee Q&A was posted on the intranet and the bulletin board stating, “Under the terms of the agreement, for at least 18 months following closing, the newly independent company is required to provide to each transferred employee, base salary and wages that are no less favorable than those provided prior to closing; and other employee benefits that are substantially comparable in the aggregate to compensation and benefits [currently enjoyed].

The Board’s reliance on these communications completely disregarded the buyer’s later statements, which made it clear that any continued employment would be under new and different terms and conditions. The purchaser’s statements included the following:

  • On February 16, the purchaser met with the union business agent and provided a draft copy of an offer letter to be distributed to the employees. The letter stated, “We think you should know that [Purchaser] has not agreed to assume any of [Seller’s] collective bargaining agreements. We have chosen not to adopt, as initial terms and conditions of employment, any of the provisions contained in any current or expired collective bargaining agreement…”
  • On February 17, the purchaser mailed the offer letters to the employees along with a document called “You New Benefits at a Glance,” which detailed the changes to the employee’s health insurance, life insurance, and retirement benefits should they accept the offer.

In relying so heavily on the seller’s statements, the NLRB blurred the identity of the speaker and the time at which the buyer’s responsibility for communication kicks in. It held that the seller’s statements to the employees may be imputed to the purchaser for purposes of the “perfectly clear successor” analysis, a stark departure from the Board’s previous requirement. Now, the purchaser’s obligation to notify the union of a change in terms and conditions may be triggered simultaneously with the seller’s effects bargaining obligation.

In the meantime, potential successors contemplating purchases from unionized sellers should:

  1. Carefully review purchase agreements for any language that could trigger a perfectly clear successor obligation under the Board’s new standard including obligations to provide similar or comparable wages and benefits to the seller’s employees.
  2. Negotiate strict limitations on the seller’s ability to communicate the terms of the deal to its employees or the ramifications of the deal on their continued employment.
  3. Recognize that although the seller has an effects bargaining obligation, the purchaser may want to consider insisting that any communications by the seller to the employees be coupled with affirmations that any continued employment with the buyer will be under different terms and conditions of employment.
  4. Potentially require that a decision on the initial terms and conditions of employment be made prior to execution of a purchase agreement including the terms of any communications regarding those initial 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.

NLRB Says Loud, Profane, Obnoxious, Stalking Employee Discipline was Unlawful

Cheryl Walton, an employee of the United States Postal Service was, for lack of a better term, a troublemaker. She was loud, aggressive, confrontational, and had a reputation for regularly using profanity. During a meeting with her supervisor she became agitated and cut the meeting short. Upset, Walton shook her finger and yelled, “I can say anything I want. I can swear if I want. I can do anything I want.”

Afterwards, Walton started showing up at her supervisor’s office, calling her from the lobby and demanding to see her. Walton even began “closely watching” her supervisor as she arrived for her shift. Walton ultimately received a warning letter for her behavior.

The Board rejected the administrative law judge’s conclusion that Walton had lost protection under the NLRA with a “disturbing pattern of conduct.” The NLRB majority said Walton didn’t lose protection under the National Labor Relations Act despite acting in a way that was “loud, profane, disrespectful, and obnoxious.” “In these circumstances,” the board wrote, “we find that the nature of Walton’s outburst weighs, albeit not by much, in favor of finding that she retained protection of the NLRA.”

In his dissent, Member Miscimrra said the NLRA doesn’t “give an employee carte blanche to invoke the act’s protection, on the one hand, while physically threatening another person, literally, with the other.” “Nor should the board give its own cloak of approval to such conduct, which goes way beyond what anyone would reasonably deem acceptable in a civilized work setting,” he wrote.”

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.

Employers Can No Longer Hire Permanent Replacement Workers During Strikes

The National Labor Relations Board just severely restricted the law that gives employers the right to permanently replace economic strikers. In its American Baptist Homes decision the Board ruled that it is unlawful for an employer to hire permanent striker replacements where any part of the intent of that decision is to harm the union. Ummm, the only purpose of either a strike or hiring replacement workers is to harm the other side. That’s why they are called economic weapons.

This decision essentially guts the 1938 Supreme Court decision in Makay Radio approving the use of permanent replacement workers as one of the economic weapons available to an employer after a union makes the decision to try to shut down a company by striking. Until American Baptist Homes is overturned, the hiring of permanent replacement workers will become a never-ending legal battle that will wind its way through courts for years.

In his dissent, Member Miscimarra stated that the point is to make strikes so painful for both sides that the incentive is to settle and avoid the battle in the first place. The Supreme Court understood this perfectly when it allowed permanent replacement more than 75 years ago. The American Baptist Homes decision essentially removes that weapon from employers and is likely to lead to more strikes and thus fewer union shops.

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 GC Removes Employers’ Ability to Withdraw Recognition from a Union that Loses Majority Status

An employer is only allowed to bargain with a union that has proven it represents a majority of employees in an appropriate bargaining unit. Otherwise the company violates the law by recognizing a non-majority union. This rule on majority status is tricky. If a company thinks a union has lost its majority status it is between a rock and a hard place. If it bargains with a non-majority union it is committing an unfair labor practice. On the other hand if it refuses to bargain with a union that does represent a majority it is also committing an unfair labor practice.

Historically employers in this situation had to options. They could file an RM petition (essentially a decertification petition filed by management). Or they could withdraw recognition by informing the union that the employer will not longer follow the collective bargaining agreement or negotiate with the union due to the doubt about its majority status.

The NLRB General Counsel released a memo in May that essentially takes away withdrawal of recognition as an option. It states that an employer is not allowed to withdraw recognition unless there was a prior RD or RM election. After a union loses an RD or RM election the union no longer represents anyone, so withdrawal of recognition becomes moot. If adopted by the NLRB this will overturn the 2001 Levitz decision which followed the historic rule that companies could withdraw recognition without an election

Withdrawal of recognition should remain an option. Regardless if a union has lost an RD or RM election, the employer is still committing an unfair labor practice if it recognizes and bargains with a minority union. That is part of National Labor Relations Act. There has to be some process that allows a company to protect itself when it is in this no-man’s land between a bargaining obligation and an actual RD or RM result.

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 Requires Employers to Look in a Chrystal Ball when Negotiating Management Rights Clauses

A company announced its intent to make changes to existing policies, specifically, its work rules, absenteeism policy, and progressive discipline policy, which were maintained outside of the collective bargaining agreement. Upon learning of this, the union asked to meet and requested information regarding the proposed changes. The company agreed to the meeting, but made clear its position that there was no obligation to bargain over the proposed changes since the management-rights language reserved the right to adopt and enforce rules and regulations and policies and procedures, and to establish standards of performance for employees. The company also denied that it had an obligation to provide the requested information given there was no duty to bargain.

Nonetheless, the parties met and discussed the proposed changes. The employer made some revisions requested by the union and then implemented the modified policies. The NLRB ruled that the employer did not have the right to make these changes outside of bargaining because it did not specifically reserve the right to make such changes in the management rights clause of the collective bargaining agreement.

In his dissent, Member Miscimarra said the “management rights language demonstrates that the parties had already bargained and agreed that the employer had the right to make those changes unilaterally.” To hold otherwise would require employers to determine every potential management rights-related change they may want to make during the future life of the collective bargaining agreement and negotiate those changes into the agreement or risk losing the ability to make the changes without bargaining over them.

This case indicates that the Board will now require a degree of specificity not previously required in order to find a waiver in the language of a management-rights clause. Employers should consider negotiating management-rights provisions with as much specificity as possible as to the rights being retained or engage in bargaining with the union before making any changes in terms and conditions of employment.

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 [Again] Overturned Decision that Pro-Union Buttons Violated Work Rules

In Boch Honda the employer maintained a handbook policy that prohibited customer-facing employees from wearing, among other things “message” pins. NLRB ALJ determined that the employer’s interests in workplace safety and preventing damage to vehicles met the special circumstances standard and justified the ban.

As it’s prone to do, the NLRB reversed the ALJ and determined that the employer had failed to meet the special circumstances exception because the ban on pins was overbroad because it applied to employees, e.g. administrative and finance employees, who had no contact with vehicles.

Unfortunately, on appeal, the court agreed with the NLRB. The court was not persuaded that a “small and unobtrusive” union pin worn by a non-uniformed employees would interfere with the general professional image the car dealer was trying to create. The court also agreed with the NLRB that the ban was overbroad. Although acknowledging that a pin could fall into an engine or scratch a vehicle, the court found the ban was not narrowly trailer to prevent those kinds of events from happening.

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 Overturned Decision that Pro-Union Buttons Violated Work Rules

The Daily Grill, a “traditional American grill” restaurant in Los Angeles, prohibited its employees from wearing union buttons while interacting with customers. Although employees had been allowed to wear buttons such as “trainer” and “anniversary” pins, the restaurant threatened to discipline or sent home early several employees who, during a union organizing drive, wore one inch in diameter UNITE HERE union buttons at work.

Employees are allowed to wear union pins or buttons at work absent “special circumstances.” Special circumstances where the display of union buttons may jeopardize employee safety, damage machinery or products, exacerbate employee dissention, or unreasonably interfere with a public image that the employer has established, as part of its business plan, through appearance rules for its employees.

The ALJ held that the Company’s ban was lawful because it fostered the Daily Grill’s public image as a traditional American grill restaurant and that a consistent, customer-driven experience and atmosphere was at the core of the employer’s business model, and the uniform and professional appearance of its servers was part of that model.

On appeal the uber pro-union NLRB disagreed and explained that when it is faced with an employer’s claim that its public image justifies a ban on union buttons, it considers the button’s physical appearance and message to determine if it interferes with the employer’s desired public image. The NLRB found that the employer “presented no evidence on how the Union’s small, inconspicuous, and non-inflammatory buttons would unreasonably interfere with a server’s ability to provide reliable service or interfere with the [restaurant’s] public image.”

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 Significant Takeaway from the NLRB’s Temp Worker Union Ruling

The key issue that could arise out of the Miller & Anderson ruling isn’t necessarily its effect on collective bargaining or union organizing efforts, but rather on how any eventual collective bargaining agreements are used.

What’s to stop a union from using a CBA as evidence that employers are joint employers? According to one article I read, “The [ruling] created, with a gun to [employers’] head, a piece of evidence that can be used in other contexts to prove joint employment, like wage and hour cases, Occupational Safety and Health Administration complaints and workers’ comp claims.”

The simple truth is that avoiding unionization is not a primary reason that employers enter into business relationships with suppliers and staffing agencies. Even though Miller & Anderson is a return to the NLRB’s Sturgis standard, The reality is that the board is likely to apply the ‘community of interest’ test more frequently than it did under Sturgis because the board also recently expanded the concept of joint employment in Browning Ferris.

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.

Keeping Up with the Changing Landscape of Joint Employer

NLRB Tightens its Joint Employer Standard

In 1984 the NLRB issued a decision known as TLI, Inc. that set the standard of when it would find two or more companies to be joint employers. There, joint-employment would only be found when both entities actually exercised direct or immediate control over the employment of the same workers. For example, a warehouse employer would be deemed a joint-employer of a staffing agency’s workers only if it actually controlled decisions like “hiring, firing, discipline, supervision, and direction” of the staffing company’s workers in a direct or immediate manner.

Browning Ferris and its staffing company contained a customary disclaimer and also vested the staffing agency with nearly all firing, firing, and control over its supplied workers. Despite that language, the NLRB found that Browning Ferris and the staffing agency were joint employers over the supplied employees.

The NLRB found that the contract in Browning Ferris (2015) allowed the employer to reserve control over certain terms and conditions of the supplied workers’ employment, such as a reserved right to reject a temporary hire and set the hours of the workforce as a whole. Though minimal, this was enough for the NLRB to find the companies to be joint-employers. Thus, the NLRB’s new standard is that reserved control of terms and conditions of employment can be sufficient for finding joint-employment – as opposed to the prior test which required actual control.

DOL Issues Administrative Interpretation on Joint Employment

On the heels of the NLRB’s revised joint-employer standard, the DOL’s Wage and Hour Division issued a new “Administrator’s Interpretation No. 2016-1”) on January 20, 2016 that revised its test for joint-employer status under the federal employment laws within its control, most notably the Fair Labor Standards Act (FLSA). Following the NLRB’s lead, the DOL made it easier for joint-employment relationships to be found.

The Interpretation announced that the DOL will use an “economic realities test” that does not focus solely on the control that a possible joint-employer has over an employee but rather centers on whether an employee is “economically dependent” on the potential joint-employer. A number of factors are considered by the DOL under this new test, including the amount of control the employer has over the working conditions and the work performed by the employees; the duration of the relationship between the company and employees at issue; the nature of the work being performed and its importance to the company; the location where the work is being performed, i.e. whether it is on the company’s premises; and others.

Of course the finding of joint-employment by the DOL imposes significant risks on companies. For example, assume employees from a staffing agency work at company ABC 20 hours per week, at Company XYZ 20 hours per week, and at the staffing agency itself 10 hours per week. Individually, none of the hours result in overtime compensation to the worker. But if ABC, XYZ, and the staffing agency are joint employers, they may all be liable for overtime payment to the employee despite the worker working at most 20 hours per week for a specific company.

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 Removes Consent Requirement for Temp Workers’ Inclusion in Bargaining Units.

This is an issue that has ping-ponged at the NLRB over the years. For decades, the rule was that if a union petitioned to represent direct / permanent employees at a work site along with temporary employees provided by an outside entity, both of the employers (the company and the temporary agency) would have to consent. During the Clinton NLRB era, the NLRB changed that rule in its M.B. Sturgis, Inc., 331 NLRB 1298 (2000), decision, which eliminated the consent requirement. That was quickly overturned by the George W. Bush-era NLRB, however, in its 2004 Oakwood Care Center, 343 NLRB 659 (2004) decision, as Oakwood reinstated the consent requirement. In Miller & Anderson, the NLRB reversed itself yet again and returned to the Clinton-era standard.

Once again, employer consent is no longer required for potential bargaining units that combine jointly employed and solely employed employees of a single user employer. In other words, regular employees (employed directly by the owner of the business) and temporary employees (supplied by an outside temporary staffing agency) can be in the same bargaining unit – and therefore vote together on representation. The NLRB noted it will apply the traditional community of interest factors (i.e. factors related to similarity of terms and conditions of employment) to decide if such units are appropriate.

Now, two different employers will be responsible for bargaining over terms and conditions of employment. These employers may have different and competing objectives to achieve during bargaining, which could result in them being at odds with one another, as well as the union, during the bargaining process.

Between this decision and the “quickie election rules” issued in 2015, companies using temporary labor should consider staying vigilant with respect to union avoidance efforts. Because now, workers who are not employees of a company can bind a company to  a collective bargaining agreement within days of a union organizing drive commencing.

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.

Worker Complaints Over Tips Not Protected Says NLRB

The firing of a New York airport porter who refused to help a French soccer team with their bags, saying they were “poor” tippers, was legal because the complaint about tips was not a protected concerted employment activity, a NLRB judge ruled Friday.

The NLRB brought the case, claiming that the worker’s complaint about the tips and his refusal to work was a protected concerted activity as a complaint about wages.

But an Administrative Law Judge did not buy that argument and found that issues over tips concern the employee and the customer which are out of the control of the employer. The ALJ ruling said, “In this case, the reason for the refusal to perform work was the perceived dissatisfaction with the customer and not with the employer.” The judge continued, “In my opinion, this was simply an offhand gripe about [the employee’s] belief that French soccer players were poor tippers.”

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.

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.