Electrical Workers Union Sparks Lawsuit Over Banner and Flyers at Hospital that Retained Non-Union Construction Company for Expansion

I have been involved in a few of these union demonstrations and they walk a very fine line between being protected under the First Amendment of the U.S. Constitution as free speech and being unprotected and thus unlawful. Since the difference between lawful free speech and unlawful antics is razor thin and heavily fact-dependent, I will not opine on the merits of the lawsuit.

In 2012, a hospital in Las Vegas hired Kitchell Construction to build an expansion to its Siena Campus hospital in Henderson, Nevada. Kitchell Construction is non-union and hired a non-union contractor to handle all electrical work at the site. The electrical union was upset by this and protested.

The local chapter of the International Brotherhood of Electrical Workers (IBEW) union allegedly defamed a Las Vegas hospital that hired non-union contractors by posting a sign: “Danger 1 out of 10 People Die at This Hospital” on a banner that contained images of a coffin and two tombstones. The union also passed out flyers that stated: “1 out of 10 people DIE at Siena Campus, Death among patients with serious treatable complications.” At the bottom of the flyers was the phrase: “Brought to you by the IBEW Union Local 357 Information Department.” The flyers also referred readers to a website, HospitalSafetyScore.org, which does not substantiate the union’s claims. According to the Hospital, the information is completely false.

Trained labor professionals will notice the importance of the phrase “brought to you by the IBEW Union Local 357 Information Department,” since it is generally lawful for the union to disseminate such rhetoric for information purposes, only. Whether this phrase will cloak the banner, message, graphics, and passing out of flyers is not yet answered.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Hostess’s Sweet Story Tempting Entenmann’s to Follow Suit

In a standard move, the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union refused to grant concessions to save Hostess from bankruptcy liquidation two years ago, fearing it would drive down wages and benefits across the industry. Since then, the Company became non-union, dropped brands beyond snack cakes, shed 18,000 jobs, outsourced delivery, operates just 4 of its previous 13 facilities – was 5 until the union snuck into a Chicago plant prompting that plant to be shut down – and has seen its value grow by over $1 billion.

Hostess’s main competitor, Entenmann’s, now faces the same fate as it’s locked in negotiations with its New York City area union delivery drivers. The Company seeks wage cuts from drivers in the northeast after winning similar concessions from workers in Ohio. But, members of Teamsters Local 802, which represents roughly 300 Entenmann’s drivers in New York and northern New Jersey, are preparing for a fight and have authorized union leaders to call a strike. This tale of two sweets superstars is worth watching: non-union Hostess is thriving, which heavily unionized Entenmann’s is suffering. Will Entenmann’s (and then Little Debbie, then Tastykake, etc.) follow suit by going non-union and becoming profitable?

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

NLRB to Companies: Your Workers Can Use Your Email System for Union Organizing

Employees who have access to an employer’s email system as part of their job may now, during non-working time, use the email system to communicate about wages, hours, working conditions, and union organizing issues notwithstanding corporate policies restricting email to business purposes only. Most businesses view this as an unprecedented taking of their private property. Employees now have, with the push of a button, immediate access to reach everyone they want to send a message to, including co-workers they seek to recruit to join a union organizing campaign.

This new rule does not require companies to provide access to their email systems to all employees; rather, it covers employers that provide email accounts hosted on the employer’s email server. Companies can still lawfully monitor employee email use if done so in the ordinary scope of business. Employers can still ban all non-work-related use of email – including Section 7 email use on non-working time – if the company can demonstrate that special circumstances make the ban necessary to maintain “production or discipline.” Unfortunately, the NLRB concluded that such special circumstances would be rare.

All companies should review their email policies for compliance with the Purple Communication decision and should consider eliminating the use of email by employees whose jobs do not require it. A preliminary measure of compliance could be to modify a rule restricting email use to business purposes only to articulating that, with the exception of communications regarding wages, hours, working conditions, and unions, email systems may be used only for business purposes.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Trump Taj Mahal and Unite Here Union Engaged in Cold-War Style Brinksmanship

In a fascinating case of brinksmanship, Trump Entertainment, which owns Atlantic City’s Trump Taj Mahal casino, filed for Chapter 11 bankruptcy protection in September citing, among other reasons, the decline in Atlantic City’s gambling market, debt, and significant tax increases. The Bankruptcy Court agreed to allow the Company to break its contract with the union representing its employees because wages and benefits were a significant contributor to the Company’s debt. Specifically, the pension will be replaced with a 401(k) and employer-provided health insurance will be swapped out for coverage under the Affordable Care Act. The Union, Unite Here Local 54, appealed this decision claiming that the Bankruptcy Court did not have the authority to render such a ruling. The Casino says it will close in mid-December if the Union does not drop its appeal. Who do you think blinks first?

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

NYC Unions “Exposing” Columbus Hotels are Union-Free in Attempt to Lure Democratic National Convention to New York

From Columbus Business First – Unions representing hotel workers in New York City are pushing the Democratic National Committee to take union representation into consideration when choosing between New York, Philadelphia and Columbus for the 2016 Democratic National Convention, Capital New York reports. In particular, they’re pointing out that New York City’s unionized hotels represent 80,000 rooms, compared with 5,000 in Philadelphia and zero in Columbus. “Every single delegation could stay at a (New York) hotel that treats workers with dignity and respect while providing middle-class wages and benefits,” Hotel Trades Council President Peter Ward said in a letter to the DNC. “Why would the party bring its business to a city that has settled for anything less?”

I’m sure my city, Columbus, Ohio, will respond appropriately, so there is no need for my snarky commentary. However, if the DNC is interested in saving cost on its Convention – money that could then be spent on candidate campaigning – non-union hotels in Columbus, Ohio is an extremely attractive proposition. So, from me personally, thank you New York City unions for highlighting yet another reason Columbus should be the host city.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Cuts to Pension Plans Part of the 2015 Congressional Budget Bill

For the first time, Congress approved a bill that allows the retiree benefits of distressed union multi-employer pension plans to be cut. A multi-employer pension plan is where a group of employees in the same industry join unions to provide pension coverage to retirees. Of the 1,400 multi-employer plans in the U.S., hundreds either have failed or are tail spinning into insolvency. Cutting the benefits awarded to retirees is the only way to salvage pensions in plans that are in imminent danger of running out of money.

For perspective, retirees in the Teamsters’ Central States fund are entitled to $3,000 a month or more for the rest of their lives after working 30 years. Accordingly, a 30-year employee who is not yet 50 years old is likely entitled to over $1 million plus significantly subsidized health care benefits. Central States has a staggering 5:1 ratio of retirees to employees paying into the pension fund. Obviously, this model is not sustainable. The fund has $18 billion in assets, pays out $2.8 billion annually, but only collects $700 million each year. Central States’ pension plan will run out of money in the next 10 – 15 years. Without the recent Congressional changes, the plan will fail and no retiree would receive any money. Even the Pension Benefit Guaranty Corporation (PBGC), which insures union pension funds, only guarantees $13,000 per year and it too will soon run out of money.

Some of the changes that may occur to retirees who are members of pension plans that will run out of money within the next 20 years include:

  • Benefits may be cut by as much as 60% for some retirees in some plans.
  • Retirees who are 80 and over will not have their benefits cut; those who are 75-79 will receive smaller cuts than retirees under 75 years old.
  • Retirees cannot challenge the plan’s trustee’s decisions in court even if arbitrary and capricious or contrary to the best interest of the plan participants.
  • No automatic restoration of lost benefits even if the plan’s funding status improves.
  • The insurance premiums that multi-employer plans pay to the PBGC are increased from $13 to $26 per participant per year. In contrast, premiums paid to the single-employer plan program are between $57 and $475 per participant per year. The benefits guaranteed by the single-employer program are four times the maximum benefits guaranteed by the multi-employer program.

Although these changes are supported by both employers and unions (but not retirees) they are not guaranteed to become law. President Obama has not yet given it his blessing and is beginning to get heat from James Hoffa, President of the Teamsters union – the same union whose pension plan stands to gain the most from these changes. Go figure.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Union Demands Right to Bargain Effects on Workforce during Cyber-Security Attack

A postal workers union recently filed an unfair labor practice charge with the National Labor Relations Board over the U.S. Postal Service’s handling of a recent data breach. If successful, companies can add union negotiations to the already robust list of concerns companies must attend to during cyber-attacks. This is the first time a union has alleged that it has a right to negotiate with an employer over the benefit that an employer offers in connection with a security incident or breach.

Specifically, the union took issue with USPS’ offering employees affected by the incident one year of free credit-monitoring, a decision that the postal workers characterized as a unilateral change to wages, hours, and working conditions that an employer is not permitted to make without first bargaining with the union. According to the union, the employer failed to give advance notice “that would enable it to negotiate the impacts and effects” on employees of the cyber-attack that the USPS publically disclosed the same day the union lodged its charge.

Now that the union has brought the issue to the forefront, companies that experience security incidents that compromise data belonging to unionized employees will have to start factoring communications with the union into their already jam-packed response efforts, despite there being a clear conflict between the need to respond to data breaches quickly and the need to talk to the union. A realistic drawback to negotiating with the union over the types of products or services that may be offered to employees could also result in the breach being disclosed before the company has made a formal announcement, since the union would not be under any obligation to maintain the confidentiality of the information that it learns from the company.