Duty to Bargain in Good Faith

Each side has the duty to bargaining in good faith during union negotiations. Oftentimes, though unfair labor practice charges are levied against employers alleging a violation of this duty. Given the current make-up of the National Labor Relations Board, proving a violation of the duty to bargaining in good faith is very easy.

The duty to bargain in good faith is an “obligation . . . to participate actively in the deliberations so as to indicate a present intention to find a basis for agreement . . .” The totality of conduct is the standard by which the quality of negotiations is tested. This means an employer is not judged solely on bargaining table behavior, but also by its words and actions away from the bargaining table.

Fortunately, the NLRB overlooks certain misconduct in an effort to preserve the bargaining process. For example, the Board refused to consider statements by the employer’s negotiators to the effect that it would be “their agreement or none at all” as evidencing a refusal to bargain in good faith. There, the Board said, “Although some statements by negotiating parties may show an intention not to bargain in good faith, the Board is especially careful not to throw back in a party’s face remarks made in the give-and-take atmosphere of collective bargaining.”

This give-and-take atmosphere is a significant reason why companies who are not used to negotiating contracts or whose negotiations have become acrimonious should consult a labor relations attorney before accidentally breaching its duty of good faith bargaining. Under some circumstances, refusing to give requested documents to the union is proper, refusing to sign a contract with a union security clause is lawful, refusing to meet when the union demands a meeting is OK, but sometimes each of these on their own are indicators of a company violating its duty to bargaining in good faith.

Combine those examples with a company’s conduct away from the bargaining table, and you can see just how easy it is to breach your duty to bargain in good faith. Unions are generally very wise when it comes to bargaining laws and are able to expose companies who do not have the same level of expertise. Companies should arm themselves with equal bargaining knowledge to obtain the best contract they can negotiate.

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.

No Solicitation / No Distribution Policies Must be Applied Evenly

No Solicitation / No Distribution Policies are enacted by companies to stop union organizers from soliciting employees to join or form a union – or distribute similar messages – during working time and in working areas. These policies must prohibit all types of solicitation and distribution, though, not just union organizing. The famous example of “if you allow moms to sell their daughter’s Girl Scout cookies at work, then you have to allow employees to sell the benefits of unionization at work, too” applies to this blog post.

Companies like to start enforcing No Solicitation / No Distribution Policies when faced with union organizing for the first time. Timing is key. Strict enforcement of an existing rule or the creation of a new rule during a union organizing campaign is an unfair labor practice. No Solicitation / No Distribution Policies applied only to stop union organizing is discriminatory and unlawful. For example, a company may not enforce a rule prohibiting non-work related use of the copy machine against an employee who copied pro-union literature after a history of tolerating personal use of the copy machine.

Companies with valid No Solicitation / No Distribution Policies should include the definition of “solicitation” and “distribution” in the policy. The National Labor Relations Board has found that mentioning an upcoming union meeting did not constitute solicitation, rather employees were “simply engaging in talk about the union.” Vague No Solicitation / No Distribution Policies make my job – to help companies overcome unfair labor practice charges – much more difficult. So please, for my sake, include examples in your policies.

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.

OSHA Threatens to Publish Injury / Illness Records Online

I recently completed a series of presentations around the state to member companies of the Ohio Petroleum Marketers and Convenience Store Association (OPMCA) regarding increased OSHA enforcement and OSHA’s “Regulation by Shaming” campaign. Those of you that attended the presentations know about this. For the rest of you, here is yet another way that despite being small, OSHA is powerful and has the ability to severely and negatively impact your ability to do business.

Current OSHA regulations only require employers to notify OSHA of fatalities or incidents involving the hospitalization of three or more employees. Employers must also post their OSHA 300A summaries (containing a summary of each establishment’s total number of incidents for the calendar year) in the workplace for a few months each spring. Companies are not required to send these summaries to OSHA. That is about to change.

OSHA has proposed that:

  • Companies with 250 or more employees must submit all 300 and 301 logs to OSHA quarterly and 300A summaries annually.
  • Companies with 20 or more employees in select industries (which there are several) must submit 300A summaries annually.

This may not seem like much of a burden, since companies are already keeping these logs. The problem is not that this rule is burdensome; rather, the problem is what OSHA intends to do with this data it demands.

One purpose of OSHA’s new rule is to publish all these records online for the whole world to see. And by whole world, I mean competitors, potential employees, lending institutions, and labor unions. Another purpose is for OSHA to target inspections of companies in industries with higher than average injury rates. So even if your OSHA 300A summary is clean, but you work in a high injury industry, you can expect an OSHA investigator to knock on your door.

OSHA’s leader, Dr. David Michaels coined his campaign as “Regulation by Shaming” and hopes that by making companies public spectacles they will comply with OSHA laws. There is a major flaw in logic in this prong of Dr. Michaels’ campaign, though.

The proposed regulation assumes that every incident recorded on an OSHA 300 log is a violation of the OSH Act. The vast majority of recorded injuries are not violations of the OSH Act. For example, even if companies strictly comply with each and every rule and regulation, there remains a chance that an employee may hit his thumb with a hammer, cut a finger with scissors, or twist an ankle when walking down the hallway. And those are recordable workplace injuries, but not violations of any OSHA law.

This proposed rule makes me mad.

In addition to Dr. Michaels’ flawed logic, OSHA’s own press release announcing this rule references estimated statistics to support its need. Yep, OSHA made up statistics to justify why companies’ private OSHA records should be made public. The release says that OSHA “estimates that three million workers were injured on the job in 2012.” It continues:

“Three million injuries are three million too many,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “With the changes being proposed in this rule, employers, employees, the government, and researchers will have better access to data that will encourage earlier abatement of hazards and result in improved programs to reduce workplace hazards and prevent injuries, illnesses, and fatalities.”

Somehow an “estimate” makes its way into a press release as factual. My anger doesn’t stop there. The press release continues:

OSHA plans to eventually post the data online, as encouraged by President Obama’s Open Government Initiative. Timely, establishment-specific injury and illness data will help OSHA target its compliance assistance and enforcement resources more effectively by identifying workplaces where workers are at greater risk, and enable employers to compare their injury rates with others in the same industry.

(emphasis added). So Dr. Michaels skews President Obama’s “Open Government Initiative” to mean that the federal government should change the law to collect a bunch of private information and then make that information public?

Aren’t you mad now, too?

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.

When is a Partner an Employee?

I was recently asked whether a business partner was an employee or owner of that company. The other owners wanted to take certain action and needed to know their lawful rights and obligations based on the way their partnership was structured. I’ll not bore you with the details, but I do want to highlight that the EEOC has recently given us guidance on this issue.

The Equal Employment Opportunity Commission weighed in on when an accounting firm’s partner is really an employee for purposes of the Age Discrimination in Employment Act (ADEA). According to the EEOC, for partners to qualify for coverage under EEO laws, the actual working relationship between the person and the partnership is paramount. The relevant questions is:

Whether the individual acts independently and participates in managing the organization (not an employee), or whether the individual is subject to the organization’s control (an employee).

To help, here are six factors to evaluate when making this determination:

  1. Whether the organization can hire or hire the individual or set the rules and regulations of the individual’s work;
  2. Whether and to what extent the organization supervises the individual’s work;
  3. Whether the individual reports to someone higher in the organization;
  4. Whether and to what extent the individual is able to influence the organization;
  5. Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts; and
  6. Whether the individual shares in the profits, losses, and liability of the organization.

There is some thought that the EEOC is seeking to expand the ADEA to partners of accounting firms, law firm, medical practices, and other similar industries. Partners in these businesses generally own and are responsible for the firm as a whole. Labeling them as employees would upend the business models of these professions, but I would not be surprised if this is an EEOC objective in 2014.

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 Does Your Union Contract Say About Successorship?

Yesterday we looked how precise language in a collective bargaining agreement forced a company to arbitrate a claim even though the employees had decertified the union. Today we look at how successorship language in a union contract prohibited a company from selling its equipment during tough financial times.

Team Carriers is a trucking company whose employees are represented by the Steelworkers union. Team Carriers had provided services to Mead Westvaco for over a decade until Mead Westvaco submitted local trucking services to competitive bidding. Team Carriers lost the bid, laid off 59 bargaining unit members, and sought to sell some now surplus equipment to Garten Trucking, the company that won the bid.

In its best Lee Corso voice, the Steelworkers said, “Not so fast!”

The union filed a grievance alleging Team Carrier was contractually obligated via the successorship language in the union contract to condition the sale upon Garten hiring Team Carrier’s Steelworker-represented employees. In other words, the Steelworkers sought to bind the drivers to the trucks as a package deal. Team Carrier responded that Garten is not a successor company; rather, Garten is simply buying Team Carrier equipment. The USW then sought a temporary restraining order stopping Team Carrier from selling its equipment until an arbitrator ruled whether the drivers went with the trucks.

The injunction was granted, and Team Carrier was prohibited from initially selling its trucks. According to the federal judge who granted the injunction, the successorship language was ambiguous enough that it could possibly be interpreted to mean that the drivers went with the trucks – and that is an issue for an arbitrator to decide, not a judge.

My guess is that if the arbitrator decides that the drivers (and thus the Steelworkers union) go with the trucks, Garten will not buy the trucks.

Don’t let your successorship language be ambiguous. Make sure your successorship language can only be interpreted in one way – the way you intend to interpret it. The sale of trucks should not invoke successorship language like it did here. Identify and define successors as true purchasers of the entire company’s assets or stock, and expressly exclude any other type of purchaser as a successor, i.e. a company that simply buys used equipment, vehicles, furniture, or real estate.

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 Does Your Union Contract Say About Post-Expiration Remedies?

Every single word in a collective bargaining agreement is important. Most words in a union contract have legal ramifications. This case highlights the importance of knowing the potential effect of each word before agreeing to include it in your company’s contract.

A hospital terminated employee Gwynn Pirnie after receiving a complaint that she did not give prompt attention to a patient seeking emergency room care. Pirnie’s union filed a grievance over the firing, and when the grievance was not resolved in Pirnie’s favor, the union submitted to arbitration the issue of whether the hospital had just cause to terminate Pirnie and if not, the appropriate remedy. Pretty standard stuff, right?

Well, two weeks before the arbitration hearing – and about a year after Pirnie was fired – the union was decertified. With no union, did the parties still have to arbitrate? Unfortunately for the hospital, yes. Double-unfortunately for the hospital because the arbitrator ruled Pirnie should be reinstated with back pay.

The collective bargaining agreement expressly authorized arbitration of “matters which arose prior to the time of expiration.” Further, absent a collective bargaining agreement provision limiting back pay to a period ending with the contract’s expiration, courts will enforce arbitration awards outlasting the contract.

But the contract didn’t expire. The union was decertified, so the contract was voided. Doesn’t matter said the court. Whether through expiration or being voided, the contract allowed for arbitration of matters that arose during the pendency of the contract.

Do you know if your company’s collective bargaining agreement allows for arbitration of matters that arose prior to the time of expiration? Do know if your union contract limits back pay to a period ending with the contract’s expiration? You may want to revisit these concepts in light of this case next time your contract is negotiated.

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.

How Are Truck Drivers Exempt from Overtime?

A truck driver sued his employer claiming that he was eligible for overtime. He lost.

For the trucking companies reading this blog, you know about MCAE (Motor Carrier Act Exemption), SAFETEA (Safe, Accountable, Flexible, Efficient Transportation Equity Act), TCA (Technical Corrections Act) and GVWR (Gross Vehicle Weight Rating). For the rest of you, you’re about to be educated.

Plaintiff McCall drove trucks for Red Racks Thrift Store. Red Racks is operated by the non-profit Disabled American Veterans (DAV). McCall was a salaried employee not eligible for overtime.

Now I know what you’re thinking: how is a truck driver exempt from overtime? The FLSA’s overtime provision is not applicable to “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of Section 31502 of Title 49.” This exemption is commonly referred to as the MCAE.

In accordance with SAFETEA, the MCAE only exempts employees from the FSLA who operate a “commercial motor vehicle.” To be a commercial motor vehicle, the vehicle must have a GVWR of 10,001 pounds. The trucks McCall drove had an actual weight of less than 10,000 pounds but a GVWR of more than 10,000 pounds. In other words, McCall operated trucks that were rated to carry substantially heavier loads than the loads he actually carried.

McCall believed he was eligible for overtime because his vehicle weighed less than 10,000. He was wrong.

The proper measure of a vehicle’s weight for purposes of the TCA is its GVWR. The DOL’s Field Service Bulletin No. 2010-2 is clear that FLSA overtime requirements only apply to vehicles with a GVWR of less than 10,000 pounds. McCall’s vehicle had a GVWR exceeding 10,000 pounds, so FLSA overtime protections did not apply to him.

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.