Holiday Pay – What Does Your Union Contract Say?

The collective bargaining agreement between Reyco Granning, a commercial vehicle suspension supplier, and the Teamsters provides holiday pay to workers who work at least 8 hours on the last regularly scheduled workday prior to the holiday. The CBA further states that an exception “may be made” if an employee arrives to work late by less than 60 minutes.

So did Reyco breach the contract when it did not pay a union worker holiday pay after he was 45 minutes late to work because of a flat tire on the last workday before a holiday? According the ALJ who heard the case, yes; but according to the 8th Circuit Court of Appeals, no, Reyco did not breach the contract.

Specifically, the ALJ ruled that Reyco loses its discretion when employees are late because of “vehicle mechanical trouble, oversleeping, or car wrecks.” But to reach that conclusion, the ALJ broke the golden rule of ALJing – he looked beyond the text of the union contract and considered testimony about contract negotiations and bargaining history between the company and the union.

The arbitrator made no determination about the ambiguity of the CBA’s holiday pay provision and went beyond the terms of the agreement when he analyzed negotiation history to decide that Reyco and the union intended for the tardiness exception to apply when employees were late because they overslept, had car issues, or were involved in an auto accident.

In fact, the collective bargaining agreement even said that the arbitrator “shall have no authority to substitute his discretion for the Company’s discretion in cases where the Company is given discretion by any provision of this Agreement, including the form of discipline imposed against an employee.”

The 8th Circuit Court of Appeals rectified the ALJ’s abuse of power. A court can vacate an arbitration award “if the arbitrator ignored or disregarded the plain language of an unambiguous contract or nullified a provision of the contract.” In chastising the arbitrator, the Court said, “Under the arbitrator’s decision, Reyco does not have discretion, rewriting the CBA to read ‘must’ instead of ‘may.’ Thus, the arbitrator’s interpretation alters the plain language of the contract as written.”

This case is a good reminder to union negotiators to make sure that every word in contracts is unambiguous. As we see here, even the tiny word “may” had a major legal implication.

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.

Sometimes Class Action Waivers with Opt-Out Programs are Lawful, Sometimes They’re Not

A National Labor Relations Board administrative law judge held that Bloomingdale’s did not violate federal labor law by maintaining an arbitration program that required employees to waive their rights to pursue class or collective actions because employees had a right to opt out of arbitration thus making the waiver voluntary.

Despite the NLRB’s argument that providing new hires an opportunity to opt out was not enough to show the waiver was voluntary, the ALJ ruled that the 30-day period for employees to decide whether they want to opt out was “not insubstantial or unjustifiable.”

Importantly, other ALJs have invalidated similar arbitration opt-out provisions, i.e. 24-Hour Fitness USA and Mastec Services Co. Previous ALJ decisions lack precedential authority unless and until reviewed and affirmed by the NLRB, though.

So as of now, it looks like companies with opt-out mandatory arbitration programs are at the whim of the randomly drawn ALJ as to whether their program is lawful.

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.

Make Sure Your Labor Lawyer Knows About Johnnie’s Poultry

We speak the language of our professions. I have to remind my accountant that I don’t speak accountant-ese. A construction client of mine is endlessly amused that I don’t know how to use a jigsaw. And my father-in-law catches himself remembering that I don’t know the difference between a spark plug and a piston.

Likewise, I’ve been doing traditional labor law for so long that I assume other people know the nuances of labor law. People who don’t know better assume that labor and employment attorneys all know traditional labor law: they don’t. Traditional labor law – the law dealing with labor unions and the National Labor Relations Board – is a highly focused specialty. If you don’t believe me, just ask Lawyer #3.

Lawyer #3 is an unnamed lawyer who interviewed an employee without giving that employee proper Johnnie’s Poulty assurances. Labor lawyers and a few others know about Johnnie’s Poultry assurances.

A long time ago a case called Johnnie’s Poulty created the law that representatives of companies, i.e. their labor lawyers, are allowed to interview employees represented by unions only after providing those employees with certain assurances.

Specifically, Johnnie’s Poultry allows questioning of employees only after the employer’s representatives:

  1. communicate to the employee the purpose of the questioning;
  2. assure the employee that no reprisals will take place for refusing to answer any question or for the substance of any answer given; and
  3. obtain the employee’s participation in the interview on a voluntary basis.

Each step is critically important, something Lawyer #3 working as outside counsel for Albertson’s grocery store did not realize.

The union seeking to represent workers at an Albertson’s grocery store filed an unfair labor practice charge alleging that management made unlawful statements while delivering a PowerPoint presentation to employees. Employee Martinez was interviewed twice about the statements by two different attorneys representing Albertson’s. Both those attorneys gave Martinez appropriate Johnnie’s Poultry assurances before starting the interview.

However, Lawyer #3, the third lawyer to interview Martinez admittedly did not know about Johnnie’s Poultry and interviewed Martinez without giving him the proper assurances. Despite having been assured twice before, the NLRB found that the long interval between interviews, the presence of a new attorney interviewer, and a change in the location of the interview and scope of questioning necessitated that Lawyer #3 give Martinez Johnnie’s Poultry assurances before the interview commenced.

The ramifications of not giving proper Johnnie’s Poultry assurances can be astronomical. For example, attorneys who fail to give assurances before withdrawing recognition of the union can find the withdrawal unlawful and the union back inside the company. At a minimum, make sure your labor lawyer knows how to properly use Johnnie’s Poultry assurances. If he or she doesn’t, you need a new labor lawyer.

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.

Bargaining to Impasse

Thankfully employers are not required to negotiate until they collapse on the treadmill of collective bargaining. When irreconcilable differences exist between the union and the company – after full, good faith negotiations – the law recognizes that an impasse has been reached. The National Labor Relations Board has defined impasse “as the point in time of negotiations when the parties are warranted in assuming that further bargaining would be futile .  . . Both parties must believe they are at the end of their rope.”

That “both parties” part has tripped up many unseasoned labor lawyers and companies who negotiate their own union contract. You see, they typically believe that they are at impasse long before the law allows them to be at impasse. There is no set number of bargaining sessions, no hours of table time, no percent of tentative agreements that must be satisfied before negotiations are at an impasse. Rather, impasse happens when impasse happens.

For example, I was once involved in an impasse situation after 12 bargaining sessions in a 2-month period when the company and union could not agree on a reduction in wages and benefits. Another impasse did not occur until well over a year of bargaining and several dozen bargaining sessions. We remained far apart and neither side had any new proposals to make beyond what each side had already rejected. To my surprise, the union did not make even the smallest modified proposal in an effort to break the impasse. Had it done so, the company would not have been allowed to implement its last, best, and final proposal.

The Board considers many factors when determining whether impasse has been reached. These include:

  • Fluidity of position
  • Statements or understandings of the parties concerning impasse
  • Union animus evidenced by prior or concurrent events
  • The nature and importance of issues and the extent of difference or opposition
  • Bargaining history between the parties
  • Demonstrated willingness to consider the issue further
  • Number and duration of bargaining sessions

Employers must remember that when an impasse is reached, the duty to bargain is suspended but not terminated. Changed circumstances that renew the possibility of productive bargaining may break an impasse. Companies should consult with their labor counsel before declaring impasse, since premature termination of bargaining is a very serious unfair labor practice.

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.

Surface Bargaining

Surface bargaining is when an employer engages in bargaining that is insincere, usually with the intent to not reach agreement with the union and thus not enter into a new collective bargaining agreement. Consider surface bargaining as sort of going through the motions. Surface bargaining is a form of bad faith bargaining.

The National Labor Relations Board looks at the totality of the circumstances when determining whether a party engages in surface bargaining; this includes the parties’ conduct away from the bargaining table, as well. As you can imagine, employers are the “party” most likely to engage in surface bargaining, and there is a very fine line between hard bargaining in good faith and engaging in surface bargaining.

The Board follows a 7-factor test when analyzing whether a company is attempting to avoid reaching an agreement. The 7-factors are as follows:

  1. Delay tactics
  2. Unreasonable bargaining demands
  3. Unilateral changes in mandatory subjects of bargaining
  4. Efforts to bypass the union
  5. Failure to designate an agent with sufficient bargaining authority
  6. Withdrawal of already agreed-upon provisions
  7. Arbitrary scheduling of meetings

A company that engages in just one of the above factors may be guilty of surface bargaining. The hard part, though, for people who do not regularly negotiate labor contracts, is knowing for example what a delay tactic is, or what unreasonable bargaining demands are. The nuances in the law – coupled with the reinvigorated NLRB – is a recipe for disaster to unseasoned negotiators.

Companies who negotiate their own contracts should heed the warning of unions complaining about surface bargaining. The threshold for proving a company is surface bargaining is quite low, yet the penalty is steep: the NLRB can mandate the parties negotiate a certain number of days per month for a certain number of hours per session until the parties reach impasse or agreement on a whole contract.

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.