Decertification Petition Shouldn’t Be Processed Even After “Reasonable Period” Passed

When employers voluntarily recognize a union, a “recognition bar” prohibits employees from challenging the union’s status as their representative for a “reasonable period” of time. This “reasonable period” begins on the date of the first bargaining meeting between the union and the employer and lasts for six to twelve months.

Americold Logistics LLC agreed to a card check campaign. If a majority of its employees signed union authorization cards, Americold would accept the union without a secret ballot election. A majority of employees signed cards, the parties executed a recognition agreement in June 2012, and negotiations between the union and company began about four months later.

The parties reached an agreement in June 2013, just over a year after executing the recognition agreement, but an employee filed a decertification petition before the union ratified the contract. The Regional Director processed the petition because it was filed more than a year after the parties executed the recognition agreement. However, the National Labor Relations Board ruled that the one-year period did not begin to run until the parties held their first bargaining meeting. More importantly, the Board also determined that a reasonable period had not passed because the parties were on the cusp of an agreement and any reasonable period must include time for the union to hold a ratification vote.

This ruling lengthened the “recognition bar” from a set one year to an amorphous “one year plus” time for the union to ratify a contract. This ruling assumes the membership would ratify the contract. But ratification votes are not automatic. Oftentimes the deal struck at the bargaining table is unacceptable to the union membership at large. If not ratified, would the decertification petition be processed? Would the parties be required to continue bargaining? At what point would the recognition bar expire? While changing the rules to favor unions is expected under the current NLRB, I hope that future changes answer more questions than they raise.

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.

Data Breach Leads to NLRB Filing Complaints

The United States Postal Service suffered a data security breach at the end of 2014. Electronic files including information such as employee names, dates of birth, social security numbers, addresses, beginning and end dates of employment, and emergency contact information was compromised in the breach. The Postal Service offered affected employees a free year of credit monitoring services to help protect them from any potential identify theft, but the unions representing the employees wanted more.

The unions demanded that they should be involved in at-the-table discussions of how to respond to data security breaches. After being refused a seat at the table, the unions requested copious amounts of information. Unsatisfied with that they received, the unions filed unfair labor practice charges against the Postal Service for failing to furnish requested information about the breach. From management’s perspective, a union’s involvement in reacting to a data security breach will restrict a company’s flexibility and slow down the response time. Further, the Postal Service claims it could not have given employees or the union notice of the breach without compromising the investigation and remediation of the breach.

This Postal Service case will be interesting to monitor. Headlines are rife with data security breaches from nationwide companies down to local mom and pop shops. The outcome of this case will likely govern whether companies can respond to future security breaches with agility and temporary confidentiality, or if they need to bargain with their unions about how to best protect sensitive corporate data.

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.

UK Unions May Get Opportunity to Take Paid Time to Volunteer for Union

The United Kingdom’s Conservative Party recently announced its election pledge to give workers three days paid volunteer leave each year. The Trades Union Congress (TUC), a British organization with 51 unions that negotiates on behalf of unions in Europe, expressed its support for this campaign pledge, but with a sales pitch for unions. The TUC characterized unions as “the UK’s biggest voluntary groups” and applauded the opportunity for union members to spend their three days of volunteer leave getting involved with union activities. Unions in the U.S. would give almost anything for an opportunity to engage in such “volunteer work.” Employers, I imagine, would not be so amused for their employees to have days-off specifically devoted to union organizing, agitating, and solidarity.

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.

Minnesota Court Denies National Labor Relations Board’s Bargaining Order Request

In hallmark violations of the National Labor Relations Act, a manager told employees that their co-workers took a “huge risk” by supporting the union and that their audacity angered him. The manager also said that “by doing all of this union crap you’ve thrown us back almost all the way to square one” warning that their decision on unionization “will determine the future direction of the business.” The division president likewise told the workers just two days before the election for union representation that other plants could absorb the work performed by their plant. He also indicated that even if the union was voted in, he would not negotiate with it.

After losing the secret ballot election, the union sought relief in the form of a bargaining order. Bargaining orders are levied when a Company’s unfair labor practice charges are so egregious that they permanently taint the ability for a fair election, and rather than hold an election, the Company is automatically unionized and ordered to bargain with the un-elected union for a contract.

Bargaining orders are an exemplary remedy that should be used sparingly. The judge here ruled a bargaining order would not be appropriate because the alleged unfair labor practices paled in comparison to what traditionally results in a bargaining order. Employers have a lot of leeway in committing unfair labor practices before a bargaining order is imposed; but once imposed, a company is immediately unionized. So employers should be well informed and make calculated decisions about engaging in unlawful conduct during union organizing drives. Some unlawful conduct can have little repercussions. A lot of unlawful conduct can result in a union. This reminds me of a phrase I once heard: Pigs get fat, hogs get slaughtered.

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.

NYU Graduate Students Ratify Union Contract

New York University graduate assistants are now members of a United Auto Workers affiliate union. They overwhelmingly approved a five-year contract that includes wage increases totaling at least 12% over five years and at least 90% of health care premiums paid for by NYU. The agreement covers about 1,500 research and teaching assistants working at NYU’s Washington Square campus and the Polytechnic Institute of NYU in Brooklyn. These are the country’s only private university graduate students covered by a collective bargaining agreement. But, didn’t the NLRB hold that graduate assistant roles were primarily academic and thus precluded from entering into a collectively bargained contract?

Yes it did. In 2004, the Board decided that teaching and research assistants did not have a right to bargain collectively because their relationship with their schools was primarily academic. Through ingenuity, the UAW convinced NYU to enter into a neutrality agreement with the union and allowed the students to decide whether they wanted union representation outside of NLRB governance.

While this is an isolated incident of graduate students being organized, more could be on the way. The UAW has been attempting to organize similar units of graduate students at two nearby New York private universities and support for similar non-Board elections is growing on campuses across the U.S. This non-traditional type of unionization is on the rise and will become more prevalent in the coming years.

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 Orders Reinstatement of Undocumented Workers Terminated in 2003

The NLRB ordered a bakery to reinstate – but not remit back pay – to several undocumented workers that it fired in 2003 for participating in protected labor activities. Each employee’s reinstatement is conditioned on the employee showing that he or she is allowed to work in the U.S.

The employers escaped back pay liability thanks to a 2002 U.S. Supreme Court ruling that blocked the NLRB from issuing back pay to employees who were undocumented immigrants at the time they were fired. Accordingly, the NLRB views reinstatement as the only remedy available for providing relief to the terminated employees and deterring future unfair labor practices.

The company had just 14 days to offer the workers their old jobs or an equivalent position, but the NLRB ordered that the employees be given a “reasonable time” to provide the company with a valid I-9 form and documentation of their legal status. Wouldn’t requiring both parties to comply within 14 days or a reasonable time be more equitable? Shouldn’t the Board strive for fairness?

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 Rules a Mass “Walk-In” to Executive’s Office Protected Activity

A 19-year employee and active union delegate, Patrick Atkinson, led 15 employees into a nursing home administrator’s office and stood against the wall. Atkinson told the administrator that the employees were concerned about other employees who had been suspended. He held a grievance in his right hand and touched it to his left palm “as a gesture indicating emphasis.” The administrator announced she was uncomfortable and left her office. The nursing home terminated Atkinson for leading the protest.

The Board considered four factors in determining whether Atkinson’s behavior lost the protection of the National Labor Relations Act: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was provoked by the employer’s unfair labor practices. While the first three factors weighed in favor of Atkinson, the fourth weighed in favor of the nursing home because there was no evidence the home engaged in any unfair labor practices that provoked the protest. The Board concluded the nursing home unlawfully terminated Atkinson.

First, the administrator’s office was away from patient care areas, the protest was not overheard by patients or visitors, and it did not disturb the employer’s operations. Second, the Board concluded that Atkinson’s statements to the administrator related to disciplinary actions and other terms of employment, which were protected. Third, the Board found the “nature of the employee’s outburst” was “extremely mild” and that there was no other menacing or abusive behavior.

Companies must weigh multiple factors before deciding to discipline an employee, and the Board probably got this case right. If the starting point is that employees are allowed to call their boss a MF, then Atkinson’s peaceful protest is easily protected. The fact that several people quietly crowded an office is simply not enough to lose protection of the Act. Nonetheless, managers faced with similar demonstrations at their workplaces should consult legal counsel before taking adverse employment action against the agitators.

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.