Complaining of Secondhand Pot Smoke: Protected Concerted Activity or Terminable Offense?

A carpenter hired by Circus Circus Casinos in Las Vegas to work on guest rooms complained during a safety meeting that workers were exposed to secondhand marijuana smoke while performing work in rooms and he was concerned that this exposure could cause a positive drug test. The carpenter was later discharged for another reason and filed an unfair labor practice charge over the discharge, alleging that the discharge was because of his concern about secondhand pot smoke. Let us suspend our cynicism that the carpenter is really just preemptively defending why he will fail a test in the future because of his own recreational drug use.

The Administrative Law Judge determined that the comment was protected concerted activity. The comment was raised during a safety meeting and another employee tangentially concurred that he, too, was concerned. The questioning carpenter agreed to take a drug test “on the spot” to prove his concern was for secondhand smoke instead of his own drug use. The decision to terminate the employee for refusing to be fitted for a respirator mask (which would prevent him from inhaling secondhand smoke) was, according to the ALJ, pretextual, and the employee was reinstated to his previous job and awarded back pay.

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’s Budget Increases as Workload Decreases

By now, it is no secret that unionization rates in the United States have fallen each year for the past 30 years. This decrease in union membership results in a lessened need for the National Labor Relations Board, whose sole purpose is to govern labor and management relations. In fact, today the Board is presiding over fewer union elections, handling fewer cases, and issuing fewer decisions than it ever has in its nearly 80 year existence. The NLRB has even shuttered and combined Regional Offices because of inactivity. Specifically, since the height of unionization in 1980, union representation cases and unfair labor practice cases are down 58 percent and published decisions are down 85 percent. But, and this is a very large but, the Board’s budget is up 98 percent. Much of the increased budget goes toward the Board’s outreach program intended to educate people about the National Labor Relations Act, a law that has been around since 1935.

NLRB Changes Arbitration Deferral Standards

In 1984 the NLRB held that it should defer action if the contractual issue under a collective bargaining agreement is “factually parallel” to an unfair labor practice issue, an arbitrator is presented with relevant facts to resolve the issue, and an arbitration award is not “clearly repugnant” to the National Labor Relations Act. Thirty years later, the 2014 Board said this standard “creates excessive risk that the Board will defer when an arbitrator has not adequately considered the statutory issue, or when it is impossible to tell whether he or she has done so.” So now, the Board will defer to an arbitral decision if the party urging deferral shows “(1) the arbitrator was explicitly authorized to decide the unfair labor practice issue; (2) the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing deferral; and (3) Board law reasonably permits the award.”

According to a dissenting opinion by Board Member Miscimarra, who was a management-side labor lawyer before accepting appointment to the NLRB, the Board’s new approach is inconsistent with Section 10(C) of the NLRA, which precludes reinstatement and back pay for employees discharged for cause. “In other words,” he said, “The Act makes ‘cause’ and ‘statutory issue’ as a matter of law in every discharge and suspension case.” He continued by warning that “if parties do not rewrite their collective bargaining agreements, the majority’s new standards make two track arbitration / Board litigation a near certainty, thereby eliminating the benefits previously afforded by ‘final and binding’ arbitration.”

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.

Arbitrator Re-Writes Union Contract to Make Certain Employees Eligible for a Bonus

Seven different unions were negotiating a collective bargaining agreement with a single employer. While bargaining for the 2011 agreement, everyone agreed to exclude newly hired workers from an established pension plan, but did not discuss the “Copper Price Bonus” or workers’ eligibility for it. The bonus was kept in place in the 2011 version of the agreement. After the agreement was ratified, an HR manager “became aware that there could be an issue with eligibility for the Copper Price Bonus for new hires…because of the link between receiving the Copper Price Bonus and eligibility for the pension plan.” The HR manager “was concerned that this might be a problem for new hires since they were no longer eligible for the pension plan.” Ultimately, the company announced that workers hired after July 1, 2011, would not be eligible for the quarterly bonus; the unions grieved this decision.

According to the arbitrator, the unions and the employer made a mutual mistake during negotiations by “failing to change the bonus eligibility language to ensure that new hires remained eligible for the bonus” and that neither party made an effort during bargaining to change the eligibility requirements for the bonus despite doing so for the pension. Further, “there was no evidence that by removing new hires from participation in the pension plan that the new hires would then also not be eligible for participation in the Copper Price Bonus.” This ruling was made despite the Company’s objection and argument that no mistake existed and even if one did exist, the arbitrator lacked authority “to rewrite the contract to make new hires eligible for the bonus.”

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.

Unfair Labor Practice 101: Pizza Party, Cash, Gift Cards Interfered with Union Election

A company held employee meetings every Friday. No big deal. However, at the meeting held six days before a union election, the company, for the first time, gave the employees pizza, large bonus checks and/or gift cards. The company won the election causing the union to file objections alleging improper interference by the company. The Board, rightly, sided with the union and the election results were set aside.

Section 8(a)(1) of the National Labor Relations Act states that “it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” Benefits granted to employees during the critical period before an election are inferred to be improper. However, employers can overcome this inference by explaining that something other than the pending election triggered the benefit, i.e. an established past practice or prior promise. Since this was the first time the company provided pizza or gave out bonuses or gift cards of a large amount, the company did not overcome the negative inference.

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.

Inflated Local Minimum Wage Laws Intend to Make Having a Union the Low Cost Way of Running a Business

Local minimum wage ordinances containing exemptions for workers covered by a collective bargaining agreement are popping up across the United States. These laws pressure employers into recognizing unions and boost union organizing, since unions will become the “low cost” way of doing business. Local wage ordinances frequently state that they “do not apply to employees covered by a bona fide collective bargaining agreement, to the extent that such requirements are expressly waived in the collective bargaining agreement in clear and unambiguous terms.” As an example, if the state’s minimum wage is $9 per hour, but a collective bargaining agreement sets wages at $8 per hour, then that employer may lawfully pay $8 per hour to its employees. Non-union employers, however, must pay $9 per hour pursuant to the local wage ordinance.

These minimum wage laws can also be industry specific. In Los Angeles, the City Council drafted an ordinance applying only to hotels in the vicinity of LAX Airport. Los Angeles’ UNITE HERE Local 11 “saw its membership and revenues jump after the city included a union escape clause in a minimum wage hike on hotels.” A similar ordinance was passed in Long Beach, California, where an increased minimum wage was only applicable to hotels with at least 100 rooms. UNITE HERE was, again, the beneficiary of that law as some hotels voluntarily struck organizing deals with the union. Other hotels, though, began remodeling and closing off entire floors in order to bring themselves below the 100-room threshold.

In Washington D.C., the Large Retailer Accountability Act would have required all retailers in D.C. with at least 75,000 square feet of store space and $1 billion in revenue to pay employees at least $12.50 per hour. This measure was aimed at organizing a single big-box store and included the familiar union escape clause. That store threatened to withdraw plans to build if the law passed; D.C. Mayor Vincent Gray vetoed the measure, City Council failed to override the veto, and the store was built.

These laws have crept into the Midwest, as well. The Milwaukee County Board of Supervisors passed its “living wage” ordinance that basically forced county contractors to unionize their workforce or face inflated labor costs. That ordinance raised the minimum wage for employees of the county and its contractors to $11.32 an hour, though conveniently exempting contractors that are unionized from paying the “living wage.”

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.

Is Scranton, Pennsylvania the Next Detroit? Public Union Pensions Driving Scranton to Bankruptcy

Scranton, Pennsylvania, home of Vice President Joe Biden, is bracing for bankruptcy because of overly generous union pension plans. According to Stephen Moore of Investor’s Business Daily Online:

The city also increased various fees, such as for garbage collection, by two-thirds. It’s becoming a tax hell. These taxpayer costs are skyrocketing, because the city’s auditors calculate that the police and fire pension fund will be completely depleted in three to five years….

Finances are so tight in Scranton that late last year the city auditor advised city agencies that “only in the event of an extreme emergency can a purchase be made”… So now, homeowners are getting squeezed on basic city services as they pay ever-escalating property taxes. Don’t be surprised as more leave Scranton, further depleting the tax base. And who would want to move there now?

The mayor of Scranton pleaded with unions to renegotiate the soaring pension costs. So far, unions have refused, making a Detroit-style bankruptcy the only and inevitable option.

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.