Fast Food Workers and Pot Pushers are the Same Thing to Unions

Tomorrow is supposed to be a nationwide fast food worker strike. Organized by worker centers representing labor unions, this strike is the latest outburst by unions seeking to organize the largely non-union fast food industry.

With union membership at (or near) an historic low, unions are trying to organize fast food workers and newly legalized marijuana dealers with equal vigor. Using a play on words, AFL-CIO President Richard Trumka – the man who talks to the White House every day – recently said, “to be blunt, our basic system of workplace representation is failing to meet the needs of America’s workers by every critical measure.”

Targeting fast food workers has been a new goal of unions. Hundreds of McDonald’s, Burger King, and workers from other chains have walked off their jobs in a series of strikes across the country to demand upwards of $15/hour. In fact, boosting wages of fast food workers is the primary goal of the SEIU – whose former President visited the White House more often than any other person during President Obama’s first year in office. Are you noticing an access to the Obama White House trend, here?

While organizing the fast food industry remains a goal, unions have had success getting marijuana dealers to organize. The UFCW, the nation’s largest union for retail workers, claims several thousand marijuana dealers are now dues paying members. These dealers are allegedly seeking to legitimize their industry and secure a pension at the same time. Um, they should be careful what they wish for.

Regardless whether through Big Macs or Mary Jane, unions need to increase their membership before becoming inconsequential. And to unions, the fast food worker pushing burgers and fries is the same as the drug dispensary worker selling White Widow (thank you Internet) – a monthly dues check. Unions cannot exist without dues checks; they are, after all, a business just like the ones they bad mouth.

Matt Austin is a Columbus, Ohio 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. You can always call Matt at 614.843.3041 or email him at Austin@LaborEmploymentOSHA.com

Unions use Non-Union Worker Centers to Do Heaving Lifting of Union Organizing

Worker centers may be the biggest thing non-union companies never heard of. They are pro-union advocates who organize rallies and protests, try to engage workers into acting collectively, and seek to get companies to discuss wages, hours, and terms and conditions of employment. If it sounds a lot like unions to you, it should. Unions are generally the founders and moneymen behind worker centers.

Sometimes worker centers are organized around a single company, like Organization United for Respect at Walmart (OUR Walmart) which is part of the United Food and Commercial Workers (UFCW) union. Sometimes they encompass an entire industry such as the Restaurant Opportunities Centers United (ROC-United) which is affiliated with the UNITE HERE union. They can be national or hyperlocal like the Koreatown Immigrant Workers Alliance (KIWA) that focuses on organizing grocery store and restaurant workers in the Koreatown neighborhood of Los Angeles.

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

For another example, ROC protestors used a 12-foot inflatable cockroach to scare off patrons from an eatery, took pictures of diners through the window attempting to intimidate them, and verbally assaulted people as they entered and existed the restaurant. In another case, ROC avoided an NLRB settlement order by calling their protests “prayer vigils” – services that were conveniently led by ROC and took the form of boisterous demonstrations right outside the restaurant’s doors.

When it is not attacking restaurants directly, ROC lobbies every level of government and releases “reports” that savage particular eateries. ROC’s annual “Diners’ Guide” rates restaurants not on food quality and service, but on whether they meet ROC’s arbitrary labor standards. The report heaps failing grades on most national chains while awarding a handful of single-outlet or regional locations a passing grade. ROC’s own NYC based restaurant gets many of the top marks – go figure – even though it has been cited for numerous health and safety violations and sued by its own employees for unpaid wages.

The proliferation of worker centers has caught the eye of Congress. Two Republican Representatives recently asked new Labor Secretary Thomas Perez for an official determination whether worker centers are in fact labor organizations. I won’t hold my breath for an employer-friendly ruling from Secretary Perez who has a reputation of being a pro-union advocate. So it is likely worker centers are here to stay.

I make the following analogy when giving seminars or educating clients about combatting worker centers: you can lead a horse to water, but you cannot make him drink. Meaning, worker centers can lead employees to unions, but they cannot make workers vote in favor of union representation. Companies with strong, consistent union-free philosophies and consistent management training will ride out this rush of worker centers unscathed. Companies with the mentality of “it can never happen to us” or “I’ll deal with it when it comes” will soon face the wrath of unregulated worker centers.

Matt Austin is a Columbus, Ohio 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. You can always call Matt at 614.843.3041 or email him at Austin@LaborEmploymentOSHA.com

NLRB Rules On T-Shirts and Baseball Hats

Remember when AT&T employees were allowed to wear t-shirts that read “Inmate #….” on the front while making house calls next door to a federal prison? Imagine the freight of people who opened their door thinking that an escaped convict was on their doorstep. Those t-shirts were protected activity because the workers who wore them were acting concertedly in response to the employer’s bargaining positions.

It should come as no surprise that employees are also allowed to wear t-shirts that say “Slave” on the front with a picture of a ball and chain on the back despite a company’s prohibition of racially discriminatory messages. According to the judge, “the fact that the rule prohibits racially and sexually discriminatory messages in no way changes the fact that it also prohibits derogatory messages about the company regardless of whether they are racially or sexually discriminatory.” So, I guess employees are allowed to make racially and sexually discriminatory comments so long as they are bad mouthing the company (or supervisors) when making those comments? Surely the judge did not just give a blanket OK for employees to violate discrimination policies, or did he?

As for baseball hats, a rule that employees can only wear baseball caps with the company’s logo violated the National Labor Relations Act. While some industries like healthcare and retail can prohibit union-related insignia on clothing, commercial printers – the company here – cannot exclude pro-union messages on clothing without special circumstances.

The company laughably tried in vain to create special circumstances. Hey, I’ve been in this position before – keeping a straight face when arguing on behalf of clients who clearly ran afoul of the law. It’s not fun, but it’s a part of the job.

First, the employer argued that the policy was for safety – to prevent hair from becoming entangled in machinery. But, there was no evidence that hats with union logos did a better job of preventing hair from being caught in machinery than hats with the company’s logo on them. Nor did the judge buy the argument that the policy was to prevent gang activity, since no gang activity ever existed. The judge also dismissed the argument that the logo ban was for employee-customer interaction purposes because employees did not interact with customers.

Now is a good time to review your corporate policies to ensure they cannot be interpreted by the pro-union NLRB as interfering with employees’ Section 7 rights. You may have to dig deep to think about twisted interpretations of Section 7 rights, but that is the world we live in now.  Seemingly benign dress code and safety related policies like the ones discussed here can cause a lot of trouble, inconvenience, and expense for unsuspecting companies.

Matt Austin is a Columbus, Ohio 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. You can always call Matt at 614.843.3041 or email him at Austin@LaborEmploymentOSHA.com

NLRB Rulings: More of the Same

As many of you know, I’ve taken some time off from blogging to have a baby. Well, I didn’t give birth, but I was an empathetic husband who gained my share of baby weight. Unfortunately, my wife’s baby weight is coming off quickly in the 3 weeks since the kid was born, but mine is sticking to the ribs – literally.

The NLRB decided against taking a few weeks off to celebrate the birth of my son. Instead, it kept trudging right along rendering anti-company decisions on some of its favorite topics: social media, confidentiality policies, and at-will clauses in handbooks. Here are some of the highlights (lowlights?) from those decisions.

Social Media

A major grocery store’s social media policy violated Section 7 of the National Labor Relations Act because it restricted an employee’s use of non-public information. The employer’s policy stated:

  • You [the employee] have an obligation to protect confidential, non-public information to which you have access in the course of your work. Do not disclose, either externally or to any unauthorized Associate any confidential information about the Company or any related companies…or about other Associates, customers, suppliers, or business partners. If you have questions about what is confidential, ask your manager.
  • Do not use any Company logo, trademark, or graphics, which are proprietary to the Company, or photographs or video of the Company’s premises, processes, operations, or products that have confidential information owned by the Company, unless you have received the Company’s prior written approval.
  • Do not defame or otherwise discredit the Company’s products or services….
  • Please note that the Company will not construe or apply these guidelines in a manner that improperly interferes with or limits employees’ rights under any state or federal laws, including the National Labor Relations Act.

Followers of this blog and members of the Labor Relations meetings I lead for the Human Resource Association of Central Ohio would know that this policy would not pass NLRB muster. First, the policy does not define what is “confidential” or “non-public.” Second, the no-photographing or videotaping clause infringes on an employee’s right to photograph or videotape protected concerted activity, like picketing or a strike, and then sharing the photographs or video with others via social media. Third, and like I said before, the “savings clause” or disclaimer at the end does not matter to the NLRB.

Confidentiality Policies

Quicken Loans – a Detroit company whose owner also owns the Cleveland Cavaliers and the casinos in Cleveland and Cincinnati – required all mortgage bankers to sign an employment agreement containing a confidentiality clause that prohibited the brokers from “publicly criticizing, ridiculing, disparaging or defaming the Company or its products, services, policies, directors, officers, shareholders, or employees, with or through any written or oral statement or image.”

I guess in an attempt to not be vague, the agreement also had a “Proprietary/Confidential Information” section that contained a laundry list of items – including “all personnel lists, rosters, personal information of co-workers” as well as handbooks, personnel files, personnel information such as home phone numbers, cell phone numbers, addresses, and e-mail addresses – employees agreed to hold and maintain “in the strictest of confidence” and not “disclose, reveal or expose.”

A former employee – I wonder if she was “former” by choice – filed an unfair labor charge with the NLRB alleging that the clauses violated the National Labor Relations Act by infringing on her Section 7 rights. As you can imagine, the Board agreed with the former employee. Quicken Loans was required to reprint lawful versions of the agreement, modify its handbook, and post a notice informing employees of their rights under the NLRA.

At-Will Clauses

According to a recent case, traditional “at-will” language is a per se violation of Section 7 of the National Labor Relations Act. The judge specifically held that signing an

acknowledgement form [with at-will language] is essentially a waiver in which an employee agrees that his/her at-will status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not, to change his/her at-will status. For all practical purposes, the clause in question premises employment on an employee’s agreement not to enter into any contract, to make any efforts, or to engage in conduct that could result in union representation and in a collective-bargaining agreement, which would amend, modify, or alter the at-will relationship. Clearly, such a clause would reasonably chill employees who were interested in exercising their Section 7 rights.

Well, I clearly disagree with the judge. Thousands of unions have won thousands of union elections at thousands of companies that had traditional at-will language in their handbooks and clearly, the Section 7 rights of the union proponents were not chilled.

I’m back on track with blogging now that living with an infant is sort of figured out. Now it’s time to get on a different kind of track to get rid of my baby weight.

Matt Austin is a Columbus, Ohio 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. You can always call Matt at 614.843.3041 or email him at Austin@LaborEmploymentOSHA.com

Unions Strike While the Weather’s Hot

My clients like to tell me that their employees will never go on strike. No matter how contentious negotiations get, or how angered their workers become, their people will never engage in the ultimate act of solidarity. And for the most part, my clients are right. However, just because they’re right, doesn’t mean they shouldn’t prepare for a strike or be aware of strikes at other companies in their industries.

Strike activity generally peaks during warm months and declines during the winter, so we are in the height of strike season now. Two industries where many of my clients exist – grocery and ambulance – are making strike news this summer. Another industry where I do not (yet) have clients is also worth mentioning. Regardless of industry, these laws and tips apply to most companies in most industries.

Ambulance Industry Striking for Higher Wages

Gold Cross Ambulance workers in California who are represented by the Teamsters went on strike in an effort to increase starting salaries – currently set around $9.00 per hour. This is just one of the many strikes around the country by workers seeking to increase their wages. You have probably heard about strikes in the non-union fast food industry, too. While employees can strike for higher wages and solicit public support for their plight, workers’ wages must be negotiated at the bargaining table and companies are under no obligation to increase wages during bargaining.

Grocer to Close if Workers Strike

The UFCW has threatened to strike Ralphs and Albertsons over what it considers measly health insurance contributions. Under the most recent management offer, workers would pay $36/month for individual health insurance and $92/month for family coverage. I bet you pay more than that. Ralphs will temporarily close all Southern California stores and Albertsons will shut down 100 stores if grocery workers strike. This drastic action is not necessarily a bad business move – especially since the 141 day strike of 2003-2004 cost the company over $1.5 billion. The chain may have difficulty proving to the NLRB that shuttering the stores was not in retaliation for workers going on strike, though.

Funeral Company Goes On Offensive Against Striking Teamsters

A temporary restraining order seeking to quash horrific activity by striking Chicago Teamsters employed as funeral directors and drivers of 16 different funeral homes was granted. These workers went on strike because their employer wanted to end its involvement in the notoriously underfunded Teamster Pension Fund and instead provide 401k retirement benefits to the workers. Angry with this suggestion, the workers went on strike and engaged in the following abhorrent behavior:

  • Laughed, joked, and created a disturbance at the only public entrance to the funeral of a young child who passed away from cancer;
  • Unleashed a German Shepherd and intimidated a woman and her father who were planning a funeral for her recently deceased mother;
  • Shouted sexually explicit taunts at a woman in front of her toddler children while she made funeral arrangements for her grandmother;
  • Blocked a grieving widow’s vehicle as she tried to exit the parking lot;
  • Used the siren function of a bullhorn, compressed air horn, and shouted to disturb funeral services.

While these examples may seem extreme, they’re not. Obviously they are real and can happen to any company. I encourage you to become familiar with some of the laws surrounding strikes and picketing so if (hopefully not when) you find your company in a similar situation you will have a better understanding of how to react. My website or my two-part series on picketing is a good place to start, and of course, if you have any questions you are always welcomed call me.

Matt Austin is a Columbus, Ohio 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. You can always call Matt at 614.843.3041 or email him at Austin@LaborEmploymentOSHA.com

OSHA Cracks Down on Compactors

Compactors and balers are commonplace in many workplaces. But many of them are old, missing guards, and used by people who are not trained on how to properly use them or are too young to use them. As many of you know, I represent a lot of grocery stores. Whenever I am on-site I always ask to see their compactors, make sure they’re working properly and have the required guards in place, and I remind clients that minors are – for the most part – prohibited from using compactors. I am proud to say that the overwhelming majority of my clients comply with the law and have not had any compactor or baler injuries.

A grocer in California was not as fortunate. There, a 43-year old employee was crushed to death in a machine used to compact cardboard for recycling. The worker had been with the store for over 5 years, which in the high turnover grocery industry is a very long time. I am certain that for the company, any resulting OSHA fines will pale in comparison to the horror of losing a worker in this manner.

Now is a good time to remind readers of OSHA regulations pertaining to compactors and balers. The Department of Labor has a great summary of how and when minors are permitted to use these machines. I suggest everyone read Fact Sheet #57.

Matt Austin is a Columbus, Ohio 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. You can always call Matt at 614.843.3041 or email him at Austin@LaborEmploymentOSHA.com