Setting Aside Representation Elections because of Misrepresentations

The National Labor Relations Board has the power to set aside a representation election if certain behavior by the parties warrants that action.

When there is deliberate misrepresentation by the union or the employer about the material facts and the other party has no opportunity to reply, the election will be set aside. The reason for setting an election aside under these circumstances is because the misrepresentation may have had a significant impact on the election.

It is not enough that misstatements and misrepresentations were made by one party to warrant invalidating an election; it must also be shown that such statements or conduct impaired the integrity of the election so that it cannot be said to reflect the uninhibited desires of the employees with respect to their choice of a bargaining agent.

In an employer-friendly suit, an employer’s letter that opposed severance of a smaller unit from the larger unit and claimed workers would lose seniority was found to be permissible campaign propaganda. The Board reasoned the letter was just an expression of opinion as to the possible economic consequences of a decision by the voters to sever from the existing broader unit, and that such misrepresentations were not as to matters peculiarly within the knowledge of the employer and the petitioning union had full opportunity to rebut the statements.

When ruling on objections to conduct during a representation election, the Board balances the rights of employees to choose and the rights of the parties to wage a free and vigorous campaign in exercise of their rights of free speech. The tipping point of this balance is often in flux as new Members roll off and onto the NLRB. Consulting with legal counsel regarding the latest developments in this law is always a good idea when faced with a union organizing campaign at your company.

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.

An Overview of Seniority

Seniority is established strictly on an employee’s date of hire and is coveted by workers because of the privileges the senior worker enjoys over the junior bargaining unit member.

The extent of such right is determined by the particular contract governing the perks of seniority. For example, the most senior workers have increased access to jobs and some protection from layoffs. In addition to the above, seniority can control promotion, transfer, recalls to work after a layoff, pension, rates of pay, hours of work, training, and any other term or benefit of employment.

Some employment benefits are non-competitive; every employee receives more vacation time or a greater pension as his length of employment increases regardless of the length of his co-worker’s employment. Other rights and benefits, such as promotion, layoffs, and recall rights are competitive. The seniority system ranks the employees based on relative length of employment, so that when two or more employees apply for one job, the one with more seniority will get it.

Plant-wide seniority exists when competitive seniority is based on length of employment in all department and crafts in a particular plant. The seniority roster will include the names of everyone in the plant, ranked according to length of service in the plant. Job or craft seniority exists when competitive seniority is based on length of employment in a particular job or craft, regardless of department and perhaps plant; again, the roster will include everyone in the job or craft, ranked according to length of service in the job or craft. However, there can be separate job or craft seniority for each plant.

A collective bargaining agreement can provide that employment rights and benefits be controlled solely by length of employment or in addition to other factors such as education, experience with the same employer, experience with other employers, quality of performance, etc. Employers prefer if other factors, like skill and ability, control seniority because they want the best employees on the job regardless of time spent with the union. As you can imagine, unions vehemently oppose including skill and ability in collective bargaining agreements.

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.

Are Seasonal Employees Eligible to Vote in Union Elections?

Employers often ask me whether their seasonal employees are eligible to vote in union elections. The short answer is that seasonal employees who have a reasonable expectation of reemployment are eligible to vote in an election.

Seasonal employees who processed and canned vegetables and fruit juice were eligible to vote in a representation election under a stipulation allowing employees who were temporarily laid off to vote. The company’s business cycle caused a yearly need for temporary seasonal employees during tomato season and often during other seasons. The challenged employees all came from the same local market and had worked for the company in years past giving the employees a reasonable expectation of recall to justify their inclusion in the bargaining unit.

Employers should not presume that seasonal or part-time workers are automatically eligible to vote, though. Seasonal or part-time workers who are irregularly employed or regarded as temporary help have been denied the ability to vote.

College students who work during the summer are often ineligible to vote in a union election because they are casual summer employees who lack a reasonable expectation of permanent employment and do not share enough of a community of interest to be included in the bargaining unit. Similarly, casual employees of a non-profit religious hospital who had sporadic and irregular work schedules were also not eligible to vote in a representation election.

Seasonable employees are more likely to oppose unionization and their inclusion in the bargaining unit is often in the employer’s favor. So companies faced with a union organizing drive or election petition should discuss their options with counsel whether to seek to include those workers in the bargaining unit.

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.

 

Do You Know what Pre-Hire Agreements Are?

A pre-hire agreement is when an employer and a union come to an agreement before any workers are hired. This is widely utilized in the construction industry. In essence, the company is unionized before it has employees, which means the employees did not vote a union into their workplace via secret ballot election.

Section 8(f) of the National Labor Relations Act allows employers “engaged primarily” in the construction industry and bona fide labor organization of construction employees to negotiate a collective bargaining agreement pre-hire. The union and the employer can negotiate even though:

  1. The union’s majority status has not been established;
  2. A 7-day union shop is created;
  3. The parties agree that the employer will hire only employees referred by the union; and
  4. Employees are hired based upon certain objective criteria, including training, seniority, or length of residency.

Employers should be aware that an agreement with a minority union is lawful whether it is executed before or after the presence of a representative complement of employees. 

Regarding No. 2 above, Section 8(f) permits a 7-day union-shop agreement, which is different from a 30-day union shop permitted under Section 8(a)(3) of the Act. Seek advice from your labor relations professional before entering into either agreement. 

The good news for employees is that they are not without options if they do not want the union. A pre-hire contract will not bar a petition filed to decertify the union or to deauthorize a union-security agreement. However, there are time limits on when each petition can be filed, so make sure you do not file the petition at the wrong time or file one petition when you are supposed to file the other.

Employers that are considering entering into a pre-hire agreement should consult with competent labor counsel to ensure that the company’s interests are fully protected and that the agreement does not run afoul of the Act.

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.

Past Practices: Usually Not an Employer’s Friend

A past practice is a pattern of prior conduct consistently undertaken in recurring situations to the point that it evolves into an understanding between the company and the union that the practice is the appropriate course of action. A past practice can be used to clarify ambiguous language in a contract and can be used by arbitrators when an employer and a union have agreed to arbitration in their collective bargaining agreement.

Factors that are generally applied by arbitrators in determining whether activity qualifies as a past practice includes:

  1. Clarity and consistency of the conduct;
  2. Longevity and repetition of the activity;
  3. Acceptability of the pattern; and
  4. Mutual acknowledgement of the conduct by the parties. 

One way to contract around past practice is by including something called a zipper clause in the contract. In a zipper clause, both parties agree to waive their right to demand bargaining on any issue that is not addressed in the contract. Employers who draft a zipper clause in their agreement with a union need to take care that the clause is very specific or it may be deemed unenforceable by the National Labor Relations Board.

Generally, unions and companies make informal deals or do things a certain way throughout the pendency of a collective bargaining agreement. Unsuspecting companies don’t realize that each time they acquiesce to doing something one way, they are establishing a past practice that will forbid them from deviating from that way in the future.

For example, a company may accept oral notice of grievances within 5 days of the event despite having contract language requiring notice be given in writing within 3 days of the event. When a company later wants to go by the letter of the contract and enforce written notice within 3 days, it can’t because it has been accepting oral notice within 5 days.  These types of things happen all the time and employer’s don’t realize they are establishing a past practice until it is too late.

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 are Runaway Shops?

Plant shutdowns and relocations for the sole purpose of avoiding unionization are called “runaway shops” by unions. As you can imagine, the National Labor Relations Board has developed specific remedies to penalize companies that engage in this tactic.

The Board has ordered a runaway employer to offer its employees either: 1) payment of moving expenses to the new location, or 2) biweekly payment of transportation costs to and from the new location. And employees got to decide which option to take.

In fact, one company I know despised unions so much that it switched its entire business from manufacturing to jobbing and laid off all its employees because they were not qualified to perform the new work at the company. In that case, the NLRB ruled that if the company ever resumed manufacturing, it was required to reinstate the laid off workers.

Unfortunately, when the closing of a facility is discriminatorily motivated or due to anti-union animus, a violation of the Act has occurred and the NLRB may order restoration of the operations. This is seen when an employer shuts down, moves away (sometimes several states away), and starts running the same company at the new location with new employees. Those companies have been ordered to return to the state they left, re-hire laid off workers, and resume operations as usual – even if operating at a significant loss.

Whenever a company shuts down a unionized operation – whether a full facility or just a part that has unionized workers in it – the company must engage in effects bargaining. Effects bargaining generally covers how the shutdown effects the organized workers. Unions seek lump sum payments, continued health care, job offers and relocation assistance to the new facility, etc. But, just like bargaining for a new contract, neither side can force the other to propose or accept effects bargaining terms.

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.

Differences between Managerial and Supervisory Employees

Supervisors are excluded from coverage of the National Labor Relations Act under the Section 2 definition of “employee.” Section 14(a) also exempts employers from the duty to consider supervisors as employees under any law relating to collective bargaining.

Notably, the Board has overruled a rigid rule that once excluded professionals from supervisory status if they supervised non-unit employees less than 50 percent of the time. The current requirement is for “a complete examination of all the factors present to determine the nature of the individual’s alliance with management.” Some of the factors considered are the business of the employer, the duties of the individuals exercising supervisory authority versus those of the bargaining unit employees, the particular supervisory functions exercised, and the degree of control exercised over the non-unit employees.

Unlike supervisors, managerial employees, who have no supervisory functions, are not explicitly excluded from the protection of the Act. For example project engineers, unit heads in a legal clinic, ship pilots, nurses, and payroll / personnel administrators have been found to not be managerial employees. However, the managing attorney and an assistant training in a legal clinic, a credit manager, and a buyer for a manufacturer of paper products have been considered managerial.

The nuances of whether an employee is managerial or supervisory are slim. Prudent companies engage competent legal counsel to help identify whether employees are managerial and subject to unionization or supervisory and exempt from the NLRA.

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.