Combatting Micro-Unit Union Organizing Techniques

Faced with difficulties in organizing broader units in a number of industries, some unions have adopted a strategy of targeting smaller units in order to convince a smaller number of employees to vote in favor of union representation. This is called micro-units. You can read more about micro-units on my website here.

As a refresher of why non-union companies should care about micro-units, first, smaller units are easier to organize. Unions have an easier time convincing 4 out of 7 employees to join a bargaining unit than convincing 40 out of 70 to do the same thing.

Second, smaller units create the possibility of inefficiency in operations; some employees at the same workplace may be subject to very different work rules, conflict resolution processes, or pay and benefit policies. For example, a typical grocery store has a produce department, deli, cash registers, and a frozen food department to name a few. Employees working in each of these departments could join different unions and work under extremely different terms and conditions of employment.

Third, the new NLRB will likely re-adopt its “quickie election” rule reducing the time a company has to explain the realities of collective bargaining to just a few short days. If you remember, the only reason quickie elections are not the law now is because of a minor voting technicality. Had the Board not encountered that glitch, we would be living with quickie elections today. This should go without saying, but non-union workplaces must start union avoidance training now.

Non-union companies should conduct a labor audit to prepare to combat the rise of micro-units.

The decline in union membership has resulted in many companies taking a complacent view towards labor relations and union avoidance strategies. Companies should revisit their priorities in order to be ready when a petition for a certification election arrives in the mail. Non-union employers would be well served to either conduct their own labor relations audit, or employ outside professionals to help assess their vulnerability to union organizing. Many unions are jumping on issues such as wage and hour violations, workforce reductions, reductions to fringe benefits, and unfair treatment of employees through smaller wage increases and longer working hours to attract support for an organizing effort.

Non-union companies in many industries, particularly those in retail and healthcare, need to begin looking at their workforce from the standpoint of whether it may be possible for a labor organization to carve out a small group of employees for organization and what, if anything, the employer may be able to do to avoid that result before they are faced with an organizing attempt.

In order to minimize the potential of having smaller groups of employees picked off by a union (or worse, multiple unions), employers should examine their workforce with an eye towards flattening out their management structures. This means more employees report to fewer managers. Companies should also examine existing positions to determine whether the number of classifications can be reduced and whether employees can be cross-trained and utilized to perform different jobs on an interchangeable basis. Lastly, make sure, that conditions of employment are consistent across the entire and non-supervisory workforce as much as practical. These are basic starting points – not legal advice. For more a more in depth discussion about preparing to combat micro-unit union organizing efforts, please contact your labor relations attorney.

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. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

AFL-CIO’s Blueprint to Add Millions of Non-Union Members

Richard Trumka, president of the AFL-CIO believes that if unions are having a hard time increasing their ranks, they can at least restore their clout by building a broad coalition to advance a worker-friendly political and economic agenda. He will invite millions of non-union workers into the labor movement even if their own workplaces are not unionized. Not stopping there, Trumka has proposed making progressive groups – like NAACP; the Sierra Club; the national Hispanic civil rights group La Raza; and MomRising, an advocacy group for women’s and family issues – either formal partners or affiliates of the AFL-CIO.

Several setbacks, including steady loss of union membership, frequent defeats in union organizing drives, and unions being forced to accept multi-year wage freezes has lead Trumka to conclude, “We really have to experiment.”

In the mid-1990s Trumka’s predecessor, John Sweeney, sought to rescue labor by pressing unions to organize far more workers. But that effort failed because only a few unions threw serious resources into the effort. Unions did not think labor was in crisis, workers did not see an advantage to joining a union, and employers started winning unionization drives.

Trumka’s vision relies heavily on Workers Centers. They might help unions press employers to fix safety hazards, lobby state legislatures for a higher minimum wage, and push Congress to increase taxes on the wealthiest Americans. Trumka’s strategists have not decided whether these non-union workers would or would not pay dues. If they are asked to pay dues, that would of course fatten struggling union treasuries.

AFL-CIO officials do not want to turn their backs on the employees who voted in favor of a unionization despite losing a union election. They say that those voters should be invited into the labor movement to, for example, lobby on pro-worker legislation or to get out the vote. They also say those workers should be able to avail themselves of some union benefits, like low-interest-rate credit cards, or low-cost life insurance.

I am asking, doesn’t opening up labor unions to non-union members, and requiring those members pay dues to enjoy some of the benefits of a union cheapen unions? To me, the AFL-CIO’s plan amounts to unions being “clubs” open for anyone to join for a nominal fee. A far cry from organized labor’s heyday.

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. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

What is a Reasonable Accommodation for a Diabetic?

This post is a great example of a real life situation that business owners and human resource professionals deal with daily. It highlights the complexity of many employment laws and serves as a reminder that it is always a good idea to check with competent counsel before taking questionable action against employees. And – time for a plug – Austin Legal’s Concierge Legal Services makes checking with counsel an affordable no-brainer.

A gas service technician who responds to customer requests to repair appliances and gas leaks submitted a doctor’s letter stating that his diabetes and related conditions required that he avoid extreme heat. The doctor suggested that he work close to home so he could access his insulin, which was refrigerated there, and that he use an air-conditioned vehicle to help keep his insulin cold, since he took it with every meal.

The employer denied his request. The company determined it would be unreasonable to adjust the workload to be near his home because customers were located throughout a region and the company could not predict where the work would be each day.

Instead, the company suggested that he carry a cool pack designed for his needs or a cooler to keep his medication cool while he worked. It also suggested that the employee take advantage of the company’s existing policy allowing “breaks at restaurants or other establishments to cool off on hot days.” The employee rebuked the adequacy of this accommodation because unlike non-diabetic employees, he could not wait as long to take breaks.

A federal court in Michigan ruled that the employer acted rightly when denying the request to work close to home. However, the court sided with the employee when holding that the employer’s proffered accommodations may not be reasonable. Specifically, the court did not like the “take breaks in restaurants” solution or the “go buy yourself a cooler” solution. Instead, the court hinted that a reasonable accommodation may have been if the employer offered to purchase an appropriate cooler.

Labor and employment laws are hard to follow and expensive when followed incorrectly. Get help – even if just a rubber stamp confirming that you are doing things right – before costly mistakes are made.

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. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

Employees with Smartphones: An Employer’s Nightmare; the NLRB’s Dream

The NLRB recently issued an advice memorandum that said an employer policy prohibiting employees from photographing or video recording the company’s premises, processes, operations, or products, including confidential information without the company’s permission violation the National Labor Relations Act. 

Let that one sink in before reading more. 

Decades ago, the NLRB concluded in Flagstaff Medical Center that a policy prohibiting the use of electronic equipment during work time including “the use of cameras for recording images of patients and/or hospital equipment, property, or facilities” did not violate the Act because employees would not reasonably interpret the rule as restricting Section 7 activity; they would interpret the rule as a legitimate means of protecting privacy rather than a tool to restrain protected activity. Furthermore, there was no evidence that the hospital enacted the rule in response to Section 7 activity or applied the rule to prohibit Section 7 activity.

However now, the NLRB General Counsel (yep, the guy who has a personal crusade against social media policies) opined that a portion of an employer’s social media policy prohibiting employees from photographing or video recording the employer’s property was unlawful. He said that the policy could reasonably be interpreted to prevent employees from using social media to communicate and share information regarding Section 7 rights through pictures and/or videos.

The General Counsel also deemed unlawful the employer’s ban on using of the Company’ logo, trademark or graphics without prior written approval. Why? Because employees could understand the rule to prohibit the use of logos, trademarks, or graphics on leaflets, cartoons, pickets signs, and other material used to engage in protected Section 7 activity.

Thankfully, the General Counsel upheld the company’s prohibition against an employee defaming the employer’s goods and services through social media. Glad to hear employees are still not allowed to defame a company on Facebook.

The takeaway from this case: 1) know the NLRB’s stance on all things social media before implementing a social media policy; and 2) tailor your policy to the specifics of your company to avoid sweeping, overly broad language that may infringe on an employee’s Section 7 activity.

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. To become a member of Austin Legal’s Concierge Legal Services, you can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

A Lesson for Health Care Employers About HIPAA Violations and Union Organizing

I see this scenario too often. Unfortunately, employers do not fully know the do’s and don’ts during union organizing drives and resort to self-help action to punish union organizers. And employers always lose.

Here, a pro-union employee was going to be given a warning for failing to check a patient’s vital signs prior to the patient’s discharge from the hospital. In an effort to defend himself, the employee accessed and printed the patient’s electronic medical records for use in the hospital’s internal grievance procedure. The hospital ended up discharging the employee for what it called a HIPAA violation. Wrong move hospital.

The problem is that the hospital changed its story several times when trying to justify its reason for terminating the employee.

  • First, the hospital actually acknowledged that HIPAA allows the use of protected patient health information for the resolution of internal grievances;
  • Second, the evidence showed that the hospital had granted the employee permission to view, copy, and use the patient’s file in the grievance procedure, and there was no evidence that the employee exceeded the scope of the authorization.
  • Third, the hospital changed its tune after first telling the employee that he would not be fired but then abruptly firing him.
  • Fourth, the hospital did not discipline the doctor and the department manager who also accessed the same records for use in the same grievance proceeding.
  • Fifth, the hospital’s argument that it had an “honest belief” that a HIPAA violation had occurred was not credible to the NLRB because of the above facts.

The NLRB concluded (and I agree) that the hospital seized upon the alleged HIPAA violation as a thinly veiled attempt to rid itself of a known and vocal union organizer. Union organizers must be treated the same as all other employees. Obviously that did not occur here. The threshold for proving retaliation against a known union organizer is very low. So tread lightly – and involve labor relations professional like yours truly – before taking action against union organizers.

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. To become a member of Austin Legal’s Concierge Legal Services, you can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

Not Negotiating with the Union About Changes to the Dress Code Violated Labor Law

Put this one in the “Duh” category.

The National Labor Relations Board found that the Memorial Hospital of Salem County in Salem, New Jersey violated the National Labor Relations Act when it refused to bargain with the Health Professionals and Allied Employees union over changes in the dress code and did not give the union relevant information the union requested.

The hospital changed dress codes to exclude hooded sweatshirts and fleece jackets, which were previously allowed to be worn during working times. According to the NLRB, this “resulted in discomfort from the cold to at least one employee due to her inability to wear sweatshirts or hoodies over her scrubs.

A change in the dress code is a change to the terms and conditions of employment and must be negotiated with the union. In other words, changes to a dress code is a mandatory subject of bargaining. Because the company changed the dress code without negotiating with the union, the company violated labor laws.

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 call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

 

Latest Facebook Firing Lawsuit Big Win for Employers

The latest Facebook lawsuit involves an ambulance company that took action against two employees for posts on those employees’ respective Facebook pages.

A paramedic for Monmouth-Ocean Hospital Service Corp (MONOC) lost a federal court lawsuit that alleged her employer illegally accessed and used a Facebook post to discipline her. Stated in the affirmative, an ambulance company properly disciplined an employee for a post she made on Facebook. Now for the rest of the story.

In the aftermath of a shooting incident at the Holocaust Museum in Washington, D.C., paramedic Deborah Ehling posted the following on her Facebook page:

An 88 yr old sociopath white supremacist opened first in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? And 2. This was your opportunity to really make a difference! WTF???? And to the other guards…go to target practice.

One of Ehling’s Facebook friends forwarded the post to one of MONOC’s managers.

After MONOC management was alerted to the post, Plaintiff was temporarily suspended with pay, and received a memo stating that MONOC management was concerned that her comment reflected a “deliberate disregard for patient safety.” In response, Plaintiff did what many employees faced with discipline are doing these days and filed a complaint with the National Labor Relations Board (“NLRB”). After reviewing the evidence the NLRB found that MONOC did not violate the National Labor Relations Act. The NLRB also found that there was no privacy violation because the post was sent, unsolicited, to MONOC management.

After several other disciplinary issues, Ehling was terminated. She sued alleging discrimination, wiretap violations, FMLA violations, and privacy violations. The crux of her lawsuit, though, was that MONOC illegally accessed her Facebook posting without her consent in violation of the federal Stored Communication Act. She was wrong.

MONOC did not violate the Stored Communications Act (or the Electronic Communications Privacy Act) because Ehling’s co-worker who forwarded the posting to management lawfully possessed it. He was an intended recipient of the electronic communication and had the lawful right to provide a copy to MONOC. This is good news for employers.

Hopefully this ends these types of lawsuits where plaintiffs allege that their employer illegally accessed their Facebook page.

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 call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.