Unionization isn’t Dead: How Unions Can Remain Relevant Despite Trend of States Becoming Right-to-Work

Wisconsin recently became the 25th state to go right-to-work. Now exactly half of the states in the country allow employees to opt-out of paying union dues even though the union has an obligation to represent everyone in their workplace. As you can imagine, unionization rates in right-to-work states are far below rates in compulsory unionism states. From a business perspective, you can’t blame unions for not spending money recruiting members in states where those members do not have to pay union dues.

Modern unions are changing with the times. They have recognized that traditional union organizing methods have resulted in decreased unionization rates each year for the past several years. For those unions, creativity will, they hope, propel them into the future. Short of having Congress repeal the part of the Taft Hartley Act that allows states to pass right-to-work laws, some of the proposed efforts may work, others are sort of wacky.

Unions may allow for “members-only unions.” Currently, if enough people do not voluntarily pay union dues, the union becomes weaker. But, if the union only had to serve those who supported it financially, it would take less money to administer the contract and the union would not be weakened. As such, only employees who pay dues are covered by the collective bargaining agreement. Some other options are:

  • Require disclosure of wage and salary information, which would allow workers to bargain for higher pay if they’re being lowballed relative to their colleagues.
  • Make union elections automatic by giving employees a default chance to vote on representation every few years. Personally, I’d like employees to have an automatic decertification vote every few years.

Unionization isn’t dead. Connecticut’s percentage of unionized workforce rose last year. In Las Vegas, the Culinary Union represents 90% of the hotel and casino employees – and Nevada is a right-to-work state. Indiana’s unionization rate has remained steady both before and after 2012 when it became a right-to-work state. And we all know that the National Labor Relations Board is doing everything (and then some) in its power to make it easier for employees to unionize. So, instead of spending so much time and energy trying to change laws, unions should focus on their successes and reminding employees of a union’s core competencies.

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.

Search of Company-Owned Vehicle Not Investigatory Interview Triggering Weingarten Rights

An employer found a bag of marijuana beneath empty chairs where an employee and co-worker had recently sat. The employer investigated the situation, individually interviewing the employee and co-worker. During the investigation, the employee invoked her Weingarten rights and requested a union representative. The Company obliged. After the interview, the employee went to lunch and a manager went to search the company car used by the employee. The manager did not find any illegal drugs, but did find a pornographic DVD, which prompted another interview with the employee. The employee admitted it was her video, and she was disciplined.

The employee thought that searching her company-owned car was a continuation of the investigation for which she and her union representative were entitled to be present. She was wrong. According to the NLRB Division of Advice, “When the Employer searched the company vehicle, it did not engage in a confrontation with the Employee and did not ask the Employee any questions, even implicitly. Instead, the Employee was not present for the search, was not asked to aid in the search, and was not even aware the search was taking place. Because the Employer asked nothing of the Employee, the Employee had no need for a Union representative’s assistance.”

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.

A Glimpse into the Future of Joint Employer Status for US Companies, and it’s Scary

After years of outsourcing technical services jobs, CNN ended its contract with the supplying temp agency Team Video Services (TVS) and took those jobs in-house in 2003. The contract between CNN and TVS stated that TVS employees “are not employees of CNN and shall not be so treated at any time by either TVS or CNN.” TVS had “sole and absolute discretion and responsibility for hiring, firing, wages, benefits, compensation, direction of the work force and other matters of personnel and labor relations” regarding all technical personnel.

In September 2014, the National Labor Relations Board ruled – after sitting on the case for 10 years – that CNN was a joint employer with TVS and wrongfully terminated its contract with the temp agency because they did not negotiate with TVS’ unionized technicians before making the decision. This, despite conceding that CNN had no direct role in hiring, firing, disciplining, discharging, promoting, or evaluating employees and that CNN did not actively co-determine TVS technicians’ other terms and conditions of employment.

The Board claims that CNN terminated the contract out of “anti-union animus” and that CNN had a hand in determining working conditions for the technicians because they required them to work 40 hours a week, required part-time employees be available 24/7, and advised TVS on market-rate salaries to pay the employees. According to the Board, this level of involvement is enough to classify CNN and TVS as joint employers under the current (traditional Laerco) test for joint employment status. I can only imagine the lengths the Board will go to once it starts following the more lenient standards proposed by the General Counsel.

CNN is appealing this decision, as expected, to the D.C. Circuit Court, and some expect the D.C. Circuit to overrule the Board’s decision. Nonetheless, if the Board really is redefining the test for joint employer status to be indirect or potential control of working conditions, similar contracts throughout the United States are in peril. User companies will become joint employers with the temp agencies they use, and franchisors will become joint employers with their franchisees.

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.

Unlawful to Require Confidentiality of “Human Resources Related Information”

According to an Administrative Law Judge, a Washington state company did not violate the National Labor Relations Act by requiring its employees to maintain the confidentiality of “human resources related information” and “investigations by outside agencies (formal and informal), as well as supplier lists, prices, and marketing plans.” But on appeal, the NLRB overruled the ALJ and held that the company violated Section 8(a)(1) when it required employees to sign a confidentiality agreement that prohibited them from discussing their employment conditions or participating in work-related complaints or investigations. Keeping up with what is and is not permitted in handbooks, workplace policies, employee agreements and the like is becoming a near impossible task.

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.

Employers May Subpoena Records between Unions and Employees Acting as Agents for Unions

In a win for employers, the D.C. Circuit Court ruled that the National Labor Relations Board erred when it refused to allow an automotive parts retailer to subpoena an employee suspected of acting as union agent. In what seems to be a recent trend, the Board ordered the company to bargain with a group of employees even though the result of a union election was never certified. According to the company, the union organizing drive was rife with threats, harassment, and coercion by union agents, and the Company was entitled to a hearing to determine whether employees acting as union agents interfered with employee free choice during the election.

The Company sought information via subpoena about communications between the union and employees suspected to be agents of the union. The NLRB Hearing Officer vacated the subpoena alleging that it violated the employees’ collective bargaining rights. According to the D.C. Circuit Court, the Board’s responsibility is to weigh whether the information sought was of enough importance to counteract the potential loss of employee confidentiality, which it did not do by failing to review documents responsive to the subpoena in camera.

Even the General Counsel’s Guide to Hearing Officers requires subpoenaed information to be produced if it relates to any matter in question if it can provide background information or lead to other evidence potentially relevant to the inquiry. “The documents the company sought qualify on both counts: the documents relate to a matter in question – whether …employees were agents of the union – and the documents may have provided leads to other relevant evident,” the appellate court concluded.

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.

Ohio Nurse Wins $2 Million from Jury after NLRB ALJ Rules in Her Favor

Employees and plaintiff lawyers are savvy these days. They know that the best way to get a fast settlement is to cripple a company by filing several workplace charges in a variety of places like the Ohio Civil Rights Commission, the Equal Employment Opportunity Commission, the Department of Labor Wage and Hour Division, the National Labor Relations Board, and the court system, to name a few. And, that’s precisely what one Ohio nurse did, and it paid off pretty well for her.

In 2013, a nurse was leading a union organizing drive at the hospital where she worked. She was a 24-year employee who was fired during the drive for violating policies and procedures for patient care. After her termination, her employer sent a complaint to the Ohio Board of Nursing seeking to have her nursing license suspended or revoked. The NLRB ALJ determined her firing was pretextual and that the hospital retaliated against her for her union activity. The hospital was ordered to re-hire her, pay her back wages, and withdraw its efforts to have her nursing license revoked. The hospital refused, so the NLRB sought a Section 10(j) injunction in the U.S. District Court for the Northern District of Ohio to force the hospital to immediately reinstate the worker and to bargain for a first collective bargaining agreement even though no union election was held.

Simultaneously, the nurse filed a lawsuit in Ohio’s common pleas court system against the hospital for defamation of character because the hospital sought to have her nursing license revoked. She won, and the hospital was ordered to pay $800,000 in compensatory damages, $750,000 in punitive damages, and all of her attorneys’ legal costs, easily exceeding $100,000.

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.