After years of unsuccessfully trying to increase revenue by organizing additional dues-paying members, the UAW recently voted to increase union dues by a whopping 25%. A veteran autoworker making $28 an hour will be out an additional $168 per year. Of course, this decision was met with resistance from rank and file UAW members. Some accused the union of overspending in its unsuccessful effort to organize Volkswagen in Tennessee, an organizing campaign that cost the union over $5 million. Others accuse the UAW of mishandling dues money and only contributing to progressive political causes when nearly half of the membership votes conservatively. Companies can expect the UAW to seek extravagant wage increases during bargaining as a way to offset this cost to its members.
The Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB) entered into a Memorandum of Understanding (MOU) whereby employees who file untimely complaints against their employers alleging violations of the OSH Act will be told to contact the NLRB. The statute of limitations to file a complaint with OSHA is just 30 days from the date of occurrence, but employees have 6 months from the date of occurrence to file unfair labor practice charges against their employers with the Board.
According to the MOU the Directorate of Whistleblower Protection Programs (DWPP) and the Office of the Solicitor (SOL) recommend that OSHA establish the following policy:
OSHA personnel will advise all complainants who have filed, or attempted to file, an untimely Section 11(c) complaint to also contact the NLRB to inquire about filing a charge alleging unfair labor practices. OSHA personnel must first follow their Region’s policy with respect to discussing the complainant’s rights under Section 11(c) and options with respect to untimely filed complaints (e.g. screen out or docket/dismiss).
After such discussions, OSHA personnel will then advise complainants regarding their ability to contact the NLRB. OSHA will advise the complainants that they may file a charge with the NLRB and that the NLRB time limit to file (6 months) is longer than OSHA’s (1 month) and therefore OSHA recommends that the complainant contact the NLRB as soon as possible to discuss his or her rights.
OSHA personnel are even supplied with the following talking points to advertise the NLRB to untimely OSHA complainants:
- OSHA recommends that you contact the NLRB as soon as possible to inquire about filing a charge alleging unfair labor practices.
- The time limit to file a charge with the NLRB is 6 months from the unfair labor practice.
- The NLRB is responsible for enforcing employee rights under the National Labor Relations Act (NLRA). The NLRA protects employee rights to act together to try to improve working conditions, including safety and health conditions, even if the employees aren’t in a union.
- You may also locate your nearest NLRB Field Office at http://www.nlrb.gov/who-we-are/regional-offices (OSHA may want to look up the nearest office and provide the number and address).
Untimely OSHA complainers will also receive a follow up letter from OSHA reminding them to reach out to the NLRB for support. Part of the follow up letter template provided to OSHA personnel reads as follows:
I regret that OSHA is unable to assist you further in this matter. However, OSHA recommends that you contact the National Labor Relations Board (NLRB) as soon as possible to inquire about filing a charge alleging unfair labor practices. The NLRB is responsible for enforcing employee rights under the National Labor Relations Act (NLRA). Employees are protected under the NLRA to act together to try to improve working conditions, including safety and health conditions, even if the employees aren’t in a union. The NLRB time limit is 6 months from the unfair labor practice.
OSHA estimates that up to 600 complaints are untimely filed each year. While this agreement does not necessarily give workers a second bite at the apple for lodging complaints related to safety and health, it does solicit and encourage employees to pursue alternative avenues of filing legal actions against their employers – avenues employees would otherwise not likely know are available.
Of course, the NLRB is embracing the MOU and has issued its own intra-agency memorandum instructing its intake officers to record whether the unfair labor practice charge was a referral from OSHA. The Board has even encouraged its employees to assist in training OSHA personnel in the nuances of the National Labor Relations Act to further help OSHA identify and market the Board’s purpose to employees.
While some MOUs result in a tremendous increase in charges at certain agencies, other MOUs have no impact on other agencies. Time will tell whether this MOU will increase the number of unfair labor practice charges filed against companies. Nonetheless, many businesses could learn an advertising and growth lesson from the Board over the past few years. Even though unionization rates continue to decline, the National Labor Relations Board effectively markets its services, enjoys increased workloads, and receives larger operating budgets year after year.
According to Bloomberg BNA’s annual report, while the number of elections held decreased slightly, the percentage of those elections won by unions increased slightly. The Board conducted 1,377 elections in 2013, down slightly from 1,385 in 2012. Unions won 882 of those elections, up from 877 wins in 2012. The union win rate of 64.1 percent in 2013 is up slightly from 63.3 percent the year before.
Unions organized 89,138 workers through NLRB elections in 2013, up from 50,082 workers the previous year. These statistics do not reflect the full extent of organizing conducted by unions since many of them organize through other methods including neutrality and card-check recognition agreements. The Teamsters led all unions by participating in 351 representation elections, winning 199 of them. For the fourth year in a row, the SEIU organized the most workers – 53,472 followed by the Teamsters with 7,179 and the Machinists with 3,560.
By bargaining unit size, unions had the greatest organizing successes among smaller units, further proving that micro units are on the rise since it is easier to organize 5 out of 9 people than 50 out of 90 people. Unions won 67.1 percent of the 957 elections involving bargaining units of 49 or fewer workers last year and 63 percent of 208 elections involving units of 50-99 workers. Unions won 46.7 percent of the 15 elections held in units of 500 workers or more.
After mining, with a 100% win rate, the industries with the next highest union win rates in 2013 were finance, insurance, and real estate (73.8%); health care services (71.1%); the services sector as a whole (70.1%) and transportation, communications, and utilities (69%). Unions lost most of the elections in manufacturing (45.3%) and retail (43.6%).
Together, these stats prove how unionization has shifted from organizing industrial workers to organizing service sector workers. A large reason for this shift is likely a result of traditionally union-heavy industries understanding the importance of union avoidance training and learning how to combat organizing drives. Conversely, service sector employers rarely conduct union avoidance training and are left exposed as low hanging fruit vulnerable to union organizing campaigns. Union organizing techniques have changed, corporate targets have changed; companies must keep up with these changes. After all, it’s not your grandpa’s labor union you have to deal with.
The Steelworkers Union filed suit against chemical distributor Brenntag Northeast, Inc. seeking medical monitoring for its members after a 2012 workers compensation ruling found that a 30-year employee had developed a progressive neurological disorder following exposure to chemicals at work. The complaint alleged that the company knew of the dangers posed by the solvent and failed to share that information with workers or mitigate the employees’ exposure to the chemicals.
However, the Union likely lacks standing to bring this lawsuit. The Union should have sought emergency interim bargaining with the company in an effort to modify the collective bargaining agreement in a manner that provides employees with the medical monitoring it seeks to obtain. But, since the Union cannot force the Company to do this through the collective bargaining process, it now asks a court to force the Company to do what the Union cannot achieve through negotiation. This will be an interesting case to follow to determine whether unions, as remote third-parties, can file lawsuits against employers instead of seeking redress through the National Labor Relations Board or arbitration processes.
In D.R. Horton, a group of employees sued the Company for alleged wage and hour violations. The Company sought to dismiss the lawsuit because the employees had previously signed mandatory arbitration agreements prohibiting them from instituting concerted or class action lawsuits against the Company. The Board ruled in favor of the employees holding that mandatory arbitration agreements are unlawful. This sparked many copycat claims with similar results. D.R. Horton appealed the Board’s ruling and won; the Board appealed that ruling to the Fifth Circuit and lost.
As it stands today, the Board’s decision in D.R. Horton only applies to that case. The Fifth Circuit ruled in favor of the Company and the Board did not appeal that decision to the United States Supreme Court. According to the NLRB, the Board will continue to follow its ruling in D.R. Horton until the U.S. Supreme Court changes the law. If the Board doesn’t appeal to the U.S. Supreme Court, then the Court can’t change the law. Therefore, the Board will continue finding mandatory arbitration agreements unlawful and hoping that one day a circuit court will agree. When that happens, a split in circuits occurs and the issue will be ripe for the U.S. Supreme Court to render a final ruling.
Whether front line supervisors and working foremen are exempt from bargaining units is always a contentious issue during union election campaigns. They perform much the same work as rank-and-file employees, but have some managerial functions. Whether they meet the National Labor Relations Act’s Section 2(11) definition of a supervisor is evaluated on a case-by-case basis.
A similar issue is whether these workers are exempt from overtime under the Fair Labor Standards Act. The Sixth Circuit recently ruled that front line supervisors of a Michigan manufacturer could proceed with their claims for unpaid overtime despite supervising crews of 20 hourly employees because there was a genuine issue of fact whether the supervisors had sufficient influence over personnel decisions to qualify as exempt from overtime.
Although the National Labor Relations Act and the Fair Labor Standards Act use different tests to determine whether an employee is a manager, companies must closely evaluate both of these statutes individually to ensure they are in compliance with both laws.
The National Labor Relations Board struck down an off-duty access policy in a nursing home’s handbook that prohibited employees from hanging around after work unless they had previous permission from their supervisors because it violated employees’ Section 7 rights of the National Labor Relations Act. As written, the rule provided supervisors with unlimited discretion to determine permissible access for off-duty employees, and this discretion could be used to deny workers from remaining (or returning) to work to engage in union organizing activities.
Over the past few years, the Board has consistently found off-duty access rules that allow access for some purposes and denies it for others violates the Act. For example, grocery stores, restaurants, and health clubs that allow workers to return to shop, eat, and exercise, must allow workers to return for other purposes, as well.