Teamsters and Cleaning Company in Cahoots as Both Violate National Labor Relations Act

ISS Facility Services Inc. and IBT Local 210 (Teamsters) violated several sections of the National Labor Relations Act (NLRA) when they encouraged janitorial employees at JFK Airport’s Terminal 2 to join the Teamsters. A union official further violated the NLRA by threatening employees with termination unless they signed the dues checkoff authorization cards.

ISS provides cleaning services in Terminals 2 and 4 at JFK Airport. The Teamsters have represented the Terminal 4 cleaning staff for years while the Terminal 2 cleaning staff was represented by the United Services Workers Union until November 2013 when the union’s president decided to end the representation of Terminal 2’s cleaning staff. One month later ISS recognized the Teamsters as the bargaining representative for 40 workers in Terminal 2 and 49 workers in Terminal 4. The Teamsters and ISS bargained a contract requiring all 89 workers to become Teamster members and pay dues or be terminated.

The ALJ found that the Terminal 2 employees were not properly accreted, or subsumed, into a joint bargaining unit with the Terminal 4 employees. The Teamsters claimed it had majority support of the total 89 workers in the unit, but it had only 44 authorization cards, which was less than a majority of 89 employees. The ALJ also found that the two groups of workers lacked any degree of interchange and worked in separate locations. There was only “sporadic, if any, interchange between Terminal 2 and Terminal 4” employees.” The two groups of employees also lacked “common day-to-day supervision.” While various factors, including similar job functions, could support the Terminal 2 employees subsuming into the Terminal 4 unit, the lack of common supervision and lack of employee interchange outweighed these factors.

Just because a company and a union negotiate the terms of a collective bargaining agreement does not mean that the union was lawfully formed. Employees always have an option to challenge union representation.

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 Continues to Wage War on Handbooks, But Allows “Recording in the Workplace” Policy

A National Labor Relations Board administrative law judge (ALJ) recently found the overly broad language in T-Mobile USA Inc.’s employee handbook violated federal labor law. The ALJ concluded that this language restricted, or could reasonably be interpreted to restrict, employees from discussing their terms and conditions of employment.

One section at issue stated, “This Handbook is a confidential and proprietary Company document, and must not be disclosed to or used by any third party without the prior written consent of the Company.” The ALJ found that this statement was so broadly written that it “chilled” employees in exercising their rights under the National Labor Relations Act. Other policies deemed unlawful included policies that prevented the disclosure of employee contact information except for business purposes and provisions that broadly limited employees’ communications with the media but did not inform them they could speak to the media about issues related to their wages, hours, and working conditions.

Worth noting, a “Recording in the Workplace” rule that “prohibits employees from using photographic, audio, video, or any other recording devices in the workplace without authorization from a manager, the human resources department, or the legal department” survived the ALJ’s intense scrutiny. That policy provided valid, nondiscriminatory rationales for its implementation such as “concerns for safety, maintenance of a harassment free work environment, protection of trade secrets, and a workplace free from unnecessary distractions.” Companies can rest assured, at least for the time being, that employees do not have a right to make recordings in the workplace.

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.

English-Only Policy Violated NLRA

A Nevada hospital system’s policy requiring employees to speak English at all times when on duty, even when in non-patient care areas, violated the National Labor Relations Act because it could restrict employees from discussing the terms and conditions of their employment. Specifically, the health system required employees to speak only in English “when conducting business with each other,” when patients “are present or in close proximity,” and “while on duty between staff, patients, visitors [and/or] customers…unless interpretation or translation was requested or required.”

The NLRB determined that the rule was overbroad and inhibited employees, particularly non-native English speaking employees, from freely communicating about their jobs and dismissed the Employer’s argument that the English-only rule stemmed from Equal Employment Opportunity Commission guidance that allowed English-only rules for “business necessity.”

The Administrative Law Judge (ALJ) found that this rule did not meet the business necessity standard because it included employees’ communications among themselves and in non-patient care areas. The ALJ found that the English-only policy extended beyond the latitude typically given to companies in restricting Section 7 rights. Specifically, the ALJ stated, “I fail to see how patient care would be disrupted by Respondents restricting employees to speaking only English in non-patient care areas and even between employees, staff, visitors, and customers, particularly if a non-native English-speaking employee desires to converse with another non-native English speaking employee about their respective working conditions.”

Companies seeking to implement an English-only policy need to narrowly tailor any such policy to ensure it passes the Board’s heavy scrutiny.

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.

Secondary Boycotts: Unruly Union Behavior

The NLRB recently addressed a common practice among unions called secondary boycotting. A secondary boycott is a union tactic where the union pressures innocent parties to stop doing business with a targeted employer. The Culinary Union in Las Vegas has aggressively implemented secondary boycotts against non-union casinos, hotels, and restaurants. For example, the Union has contacted convention organizers trying to bring business to Las Vegas and threatened to disrupt the conventions using pickets and other unruly tactics.

The Union recently harassed a company looking to fill 1,200 rooms at Las Vegas’ non-union Station Casino. The convention would have provided an additional $300,000 in catering as well as additional spending on food, beverages, gambling and other services. However, because of the union’s harassment, the convention organizers took their convention elsewhere.

The Culinary Union claimed its goal was to persuade the company to allow workers a free choice on whether to unionize. Oddly, the Casino had already agreed to allow workers to vote on union representation via a secret ballot election. However, the union wanted to organize the casino via card check, a process where workers’ would “vote” by publicly signing their name on a piece of paper and allowing union officials to see exactly who did or did not support the union.

While secondary boycotts are lawful under certain circumstances and unlawful under others, they are always severely damaging to the targeted company.

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.

UAW Membership Swells to Highest Level Since 2008

The United Automobile Workers membership has grown to 400,000 people. This is the largest the union has been since 2008. UAW’s members include more than just auto workers. The union has successfully recruited members from higher education institutions, such as teaching assistants and graduate students at a number of universities, casino workers, and other non-traditional jobs well outside of the auto industry. At its peak, the UAW had about 650,000 members. This increase in membership results in an increase in dues, which translates into an increase in the replenished strike fund that the UAW has threatened to tap into during labor negotiations with the Big Three later this year.

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.

Fast Food Workers’ Corporate Campaign against McDonald’s Includes Occupational Safety and Health Charges

McDonald’s workers recently filed complaints with the U.S. Occupational Safety and Health Administration (OSHA) in 19 cities alleging burns from popping grease, lack of protective equipment, and other workplace hazards. The complaints are a tool to exert public pressure on McDonald’s as fast food workers campaign for $15 an hour wages and unionization. The Service Employees International Union (SEIU) began the push for higher wages and unionization more than two years ago. Among other tactics, the SEIU has protested and filed lawsuits alleging workers weren’t given their rightful pay.

Filing charges with OSHA and lawsuits over wage and hour misclassification or unpaid overtime are a typical tactic unions use when seeking to organize a workforce. The goal of this multi-prong approach is to overwhelm employers and force them into agreeing with the union’s demands.

The recent complaints highlight a central theme of the “Fight for $15” campaign, which has been trying to hold McDonald’s Corporation and its franchisees accountable as “joint employers” for working conditions at its franchise restaurants. Fast food chains have explained that they are not responsible for employment decisions at franchised restaurants, but this has not deterred the unions.

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.

Signs in Car Windows are a Lawful Form of Picketing

The collective bargaining agreement between the company and the International Brotherhood of Electrical Workers (IBEW) union prohibited “picketing of any of the Company’s premises” during the term of the contract. The union had a long-standing practice of commencing informational picketing before the expiration of each previous contract. Recently, the union passed out picket signs to employees bearing the messages “Honor Our Contract.” Employees placed these signs inside the windows of their personal vehicles when they parked in the Company’s lot during their work shifts. The Company instructed the employees to remove the signs.

Whether the signs in the car windows violated the no-picketing rule was arbitrated. The arbitration panel concluded 2-1 that the union members violated the contractual ban by stating, “Picketing does not have to be a sign on a stick.” On appeal, the National Labor Relations Board reversed the arbitration panel concluding that the arbitration award was “devoid of any reasoning to support its conclusion that the conflict constitutes picketing.” Further, the arbitrators failed to point to evidence that the contract was intended to cover window displays in parked cars. While the Board conceded that the display of stationary signs may constitute picketing under the National Labor Relations Act, it said “in such cases, the Board has relied on the presence of individuals in the area where the signs were stationed.”

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.