Recent Supreme Court Ruling on Who is a Supervisor Does Not Affect Supervisor Test Under National Labor Relations Act

By now you have heard that the U.S. Supreme Court recently ruled that an employee is a supervisor when the employer has empowered that worker “to take tangible employment actions against the victim,” including hiring, firing, failing to promote, reassignment, or some other action causing a significant change in employment status. See, Vance v. Ball St. Univ.

Now, for purposes of Title VII claims, which allege harassment or discrimination based on race, gender, sex, military status, etc., if the alleged harasser is a supervisor, the company can be held liable for his or her harassment. However, if the alleged harasser is a co-worker and not a supervisor, the employer will be liable only if it was negligent in controlling the working conditions. This is good news and a good time for companies to review their harassment training – when was it last done, who did it, are the materials current, etc.

When dealing with who is a supervisor for labor relations purposes, i.e. which workers may lawfully be included in a bargaining unit, employers must still comply with Section 2(11) of the National Labor Relations Act. A Section 2(11) supervisor is an employee with authority to hire, fire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees. Additional duties may include directing employees, answering grievances, or recommending disciplinary action, so long as it requires independent judgment. Whether a job description or title identifies one as a supervisor is inconsequential; actual day to day duties must be evaluated.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.

Supreme Court to Review Union Corporate Campaign Tactic: Are Neutrality Agreements Lawful?

Every so often I highlight especially well written and timely articles from some of the blogs that I follow. Today, Seyfarth Shaw, LLP discusses union corporate campaigns and how the US Supreme Court will decide whether neutrality agreements during organizing campaigns are lawful. To read the original post, click here.

 

By Seyfarth Shaw LLP on June 24th, 2013

As I’ve commented on before in this blog, the hurdles unions face in organizing employees are demonstrated by decades of steadily-declining private sector unionization rates.  Traditional union organizing campaigns – where organizers try to convince employees to sign enough authorization cards to obtain an National Labor Relations Board (NLRB) secret ballot election – are hard work, contentious and expensive.  And this is particularly so because Section 8(c) of the National Labor Relations Act (NLRA) guarantees an employer the right to express its views to employees about the benefits of remaining union free and the potential costs and risks of unionization.  After all, it’s called a “campaign” for a reason, and most campaigns – whether political, military, or union organizing – are contested.

To overcome the difficulty with this “bottom up” or grass roots type of organizing, unions have developed and are increasingly using a “top down” or boardroom approach to organizing – a corporate campaign – to increase their odds of success.  Whether it is a combination of consumer boycotts, appeals to government regulators or politicians, attacks on a company’s directors, shareholder initiatives, or other means, a corporate campaign is designed to inflict pain, financially and politically, until the employer’s board of directors and top management decides it is preferable not to oppose a union’s organizing efforts.  (It’s not surprising how declining sales, a lower share price, or adverse publicity will get a company’s attention.)

The ultimate goal of a corporate campaign, however, is usually to get the employer to remain neutral – in other words, to get the employer to agree not to contest the union’s efforts to organize employees, or to exercise its free speech rights under NLRA Section 8(c) – as a tradeoff for the union stopping the corporate campaign.  With a neutrality agreement, unions are typically given access to the workplace and employee contact details, and the employer often agrees to recognize and bargain with the union once it has been able to convince a majority of the employees to sign authorization cards (called card check recognition) – without any secret ballot NLRB election.  With the pressure of a persistent “in your face” union organizer or coworker asking the employee to sign a card, no countervailing information about the potential downsides of organizing, and no ability for the employee to eventually vote “no” in an NLRB secret ballot election, neutrality agreements are a far easier way for a union to organize.

That tactic is now before the United States Supreme Court.  Today the Court granted certiorari in Mulhall v. UNITE HERE Local 355, 667 F.3d 1211 (11th Cir. 2012), which found that neutrality agreements violate the Labor Management Relations Act (LMRA) because they provide a union with something of value.  In Mulhall, the employer agreed to remain neutral while the union attempted to organize the workforce, and provided the union with both access to non-public work areas on its property and its employees’ contact details.  In exchange, the union agreed to support a local ballot initiative the employer wanted to have passed, and agreed not to strike once it was recognized as the employees’ bargaining representative.  Under Section 302 of the LMRA, an employer may not “pay, lend or deliver any money or other thing of value to any labor organization… which seeks to represent… any of the employees of the employer.”  29 U.S.C. 186.   In deciding that this arrangement unlawfully provided something of value to the union,  Mulhall conflicts with earlier cases decided by the 3rd and 4th Circuit Courts of Appeals.  By granting certiorari, the Supreme Court will resolve this conflict and settle the issue.

If the Supreme Court finds that these types of neutrality agreements are unlawful, unions will have lost a key object of their corporate campaigns strategies.  While it is unlikely that a decision that neutrality agreements are unlawful would signal the end of corporate campaigns, unions will have a more difficult time convincing employers to remain neutral.  And if so, the decline in unionization rates likely will continue.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.

Unions Target Home Workers

As posted June 19, 2013 at http://online.wsj.com

As the population ages, more people are being paid by the government to care for the elderly in their homes. That has prompted unions to try to organize more such workers, who typically receive modest wages and few or no benefits.

But others question whether these workers even qualify to join a union, noting that many are caring for their relatives and could be considered self-employed. Battles have broken out in many legislatures over moves to allow, or bar, these workers from organizing.

After seven years as a home health aide in West Haven, Conn., Terrell Williams, 34, earns about $12 an hour, without health-care or retirement benefits. He attaches a lift used to help Michael Whalen, a paraplegic client with cerebral palsy, get in and out of bed.

The number of home health-care workers is expected to reach 3.2 million by 2020, up 68% from 1.9 million in 2010, according to the Labor Department.

Also known as personal-care aides, the workers typically bathe, dress and feed the elderly and people with disabilities, for a median wage of $9.70 an hour in 2010, the Labor Department says. Many have no health-care coverage themselves.

A large percentage of these workers are hired directly by people with disabilities or their families, rather than being employed by private agencies. Workers typically are paid with Medicaid or Medicare funds administered by states.

In many cases, home-care workers are relatives of the people they care for. A 2011 study commissioned by the state of Michigan found that 75% of home-care providers there went into the field to help a family member or friend.

Unions and many Democratic lawmakers say workers receiving public funds are state employees and can be unionized. Many Republican lawmakers and opponents of unionization argue that home-care workers are independent contractors, and therefore ineligible to join unions.

Last month, Democrats in Minnesota passed a bill over Republican objections giving 15,000 home health-care workers, as well as 7,000 home child-care providers, the ability to join unions. In Vermont, Democratic Gov. Peter Shumlin signed a measure last month permitting the state’s 7,000 home health aides to unionize. In Connecticut, Democrats have passed measures enabling unions to represent the workers.

Republicans have overturned some moves to allow organizing home health-care workers, notably in Wisconsin and Ohio. Lawsuits filed by conservative groups are seeking to overturn organizing in other states.

“Home-care workers are the new face of labor,” said Eileen Boris, a professor of history at the University of California at Santa Barbara. She compares organizing these workers to the unionization of factory workers in the 1930s and ’40s.

After seven years on the job in West Haven, Conn., Terrell Williams, 34, earns about $12 an hour, without health or retirement benefits, or paid vacation or sick days. He helps one paraplegic client get in and out of bed and get dressed. For another client with a pulmonary disease, Mr. Williams does laundry and housework.

With benefits, “you could have more of a career,” said Mr. Williams. Last year, he voted to join the Service Employees International Union, which currently is negotiating with the state on behalf of 8,000 such workers.

Amid declining union membership, home-care workers are an increasingly important source of union strength. SEIU represents about 600,000 home-care workers—a major chunk of its 1.9 million members—in about 20 states, including Democratic strongholds like California, New York and Massachusetts.

About 25% of home-care workers nationwide belong to unions, estimates Ms. Boris of the University of California.

In an interview, SEIU President Mary Kay Henry said the union would focus on organizing home-care and other health workers. “It’s a sector of the economy that hasn’t collapsed in the economic downturn and it can’t be offshored,” she said.

Pay varies widely for unionized home-care workers. In northern California, workers who belong to SEIU earn more than $12 an hour and a small percentage have health care through union contracts.

But success in winning higher pay and benefits has been mixed. In Michigan, SEIU organized 41,000 home-care workers in 2005. Today, many of them earn $8 an hour, slightly more than the federal minimum wage of $7.25 an hour, according to the union’s most recent contract. During eight years of union representation, the workers didn’t gain health benefits, vacation time or sick leave.

Michigan workers paid dues representing 2.75% of their income, yielding $35 million for the union since 2005.

SEIU says it won a big pay increase for Michigan workers and helped set up a training program, and that it also helped workers by lobbying against budget cuts to home-care programs.

Last year, Michigan Republican Gov. Rick Snyder signed a law barring home health aides from unionizing, saying that “private individuals cannot become public employees simply by receiving government dollars.” The move erased about 45,000 members from SEIU’s rolls and $6 million in annual dues.

Some home-care workers in Michigan are glad they are no longer part of SEIU.

Chet Junker, 78, of Evart, Mich., said he and his wife receive a bit more than $1,000 a month from the state to bathe, dress and feed their 46-year-old son, who was left severely disabled from seizures suffered as a boy. The state stopped deducting about $17 a month in union dues in April.

Mr. Junker, a retired insurance agent, said he never supported the union even though he believes it lobbied successfully for a pay increase for home-care workers. He said he opposed SEIU’s political stands and wasn’t informed that a union election was going to be held.

“I had no choice when they wrote to me and said you’re going to be in the union,” he said. “I’m happy I’m not in the union anymore.”

The Mackinac Center and National Right to Work Legal Foundation, both conservative groups, have filed lawsuits in Illinois, Minnesota and elsewhere similarly arguing that courts should overturn laws allowing home-care organizing. One appeal is pending before the U.S. Supreme Court.

“They aren’t employees,” said Patrick Wright, director of Michigan’s Mackinac Center Legal Foundation. “They’re hired and fired by their clients.”

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.

Matt Austin Presented at the Lancaster Fairfield Chamber of Commerce

Employment attorney Matt Austin presented an engaging seminar at the Lancaster Fairfield Chamber of Commerce meeting today titled “Is your Handbook a Hand Grenade?” Just about every seat was filled and audience members stayed well past the meeting’s normal ending time to continue asking great questions and diligently taking notes about handbooks in general, toxic policies, iron-clad policies, updating handbooks, new case law that affects old handbooks, and many “war stories” that brought a level of reality to an otherwise conceptual topic.

A copy of the PowerPoint slides can be obtained from Matt Austin’s LinkedIn profile here.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.

HRACO’s Traditional Labor SIG Meets Tomorrow

Labor Lawyer and member of the Human Resource Association of Central Ohio, Matt Austin, leads HRACO’s Traditional Labor SIG tomorrow from 12:00 – 1:30 at the Upper Arlington Main Library, 2800 Tremont, Upper Arlington, OH 43221. The meeting will focus on all types of strikes, how to plan for a strike, how to defend your company if a strike occurs, and how to emerge from a strike with minimal damage to your company’s reputation and bottom line.

 

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.

OSHA Takes the Heat Seriously and You Should, Too

I am in Effingham, Illinois today meeting with Meyer Oil, a great company that owns Mach 1 gas stations and convenience stores in central and southern Illinois. It will be 94 degrees here, today. When the weather gets this high, I think of OSHA’s campaign to prevent heat-related illness – especially for outside workers. If your employees work outdoors, spend some time on OSHA’s website learning about steps you can take to prevent heat-related illness, how to diagnose it, and how to respond if one of your workers becomes overheated.

OSHA even has an app that allows workers and supervisors to calculate the heat index for their worksite and display the risk level to outdoor workers. I have this app on my phone (for my clients, not because my employees work outside) and it is simple to use and very valuable. The app even sends reminders about protective measures as the temperature starts to rise, like drinking enough fluids, scheduling rest breaks, gradually building up the workload for new workers, training on heat illness signs and symptoms, and monitoring each other for signs of heat-related illness. You can download the app here.

Of course, you can learn more about how OSHA governs your workplace by bouncing around Austin Legal’s OHSA pages on its website by clicking here.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.

Matt Austin Presented “Is Your Handbook a Hand Grenade” at the Lancaster Fairfield Chamber of Commerce

Employment attorney Matt Austin presented an engaging seminar at the Lancaster Fairfield Chamber of Commerce meeting today titled “Is your Handbook a Hand Grenade?” Just about every seat was filled and audience members stayed well past the meeting’s normal ending time to continue asking great questions and diligently taking notes about handbooks in general, toxic policies, iron-clad policies, updating handbooks, new case law that affects old handbooks, and many “war stories” that brought a level of reality to an otherwise conceptual topic.

A copy of the PowerPoint slides can be obtained from Matt Austin’s LinkedIn profile here.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.