NLRB Division of Advice Decides Common Union Avoidance Statements are Lawful

A union recently tried to organize a bakery and café operator’s stores at Philadelphia International Airport. The employer promptly responded to the union organizing effort through employee meetings and a letter from the company’s CEO.

In his letter, the CEO asked whether employees “really want a union to be your spokesperson instead of having a direct line to any level of management, right up to me.” The CEO also said, “Unions only increase the divide between management and employees” and urged employees not to vote for union representation.

The NLRB has previously ruled that employers can lawfully state that management’s relationship with employees would change as a consequence of unionization. The Board has applied this principle broadly, although the Board has recently questioned this case law. In a 2012 case, former Member Sharon Block stated that previous case law is at odds with NLRB decisions about employee predictions concerning the consequences of unionization and stated that she supports re-examining this law in a future case.

That case has not yet arrived. In an NLRB Division of Advice memorandum, the NLRB Associate General Counsel concluded that the CEO’s statements were lawful. The Division of Advice explained that the CEO’s statements “would not necessarily be read to imply that employees would lose all direct access to the Employer as a result of union representation.”

A company’s speech is restricted when a union campaign is underway. But as this case shows, companies have some leeway to legally respond to union campaigns and fight to keep their businesses union-free. Companies are always allowed to tell their employees the truth (conversely, the law permits unions to lie), and telling workers that voting for a union may erode a direct line to management is a fact.

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 New Election Despite Wage Increase Notices Being Mailed Before Election Petition Filed

A nursing home informed geriatric nursing assistants that they would receive wage increases via letters that were sent one day before the union filed its petition for an election. The employees voted 28-33 against union representation – a company victory that would be short-lived.

Though the letters were sent before the election petition was filed, the nurses received the notice of the wage increases during the time between the filing of the union’s petition and the election taking place. This time period is generally called the “critical period” when changes to terms and conditions of employment are prohibited. This freeze is to prevent employers from making workplace changes that could influence employees to vote against union representation.

An NLRB hearing officer ruled that the wage increase announcement was not objectionable because the letters were sent outside of the critical period – one day before the union filed its petition. Not surprising to readers of Roetzel Recap: Labor Relations, the Board overruled the ALJ and found the nursing home engaged in “objectionable conduct” during the critical period. The Board then ordered a new election be conducted.

Board Member Miscimarra, who was a management-side labor lawyer before being appointed to the Board, disagreed with the Board’s ruling. He disagreed with the Board’s finding that the employees learning about the wage increases during the critical period converted the wage increases into objectionable conduct. Miscimarra’s dissent stated that a party’s actions before an election should not be a basis for overturning an election even if those same actions would be objectionable conduct during the critical period. If only the Board had more Miscimarra’s on it; unfortunately, only two of the five Board Members are pro-management.

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.

If You Can’t Beat ‘Em, Join ‘Em: SEIU Befriending Franchisees

We have reported on the SEIU’s campaign for $15-an-hour wages for fast food workers. Seeking to have franchisees pay nearly twice the minimum wage for historically minimum wage work is not the way to befriend fast food franchisees. Now, the SEIU is extending a proverbial french fry to franchisees in hopes of forming an alliance against franchisors.

The SEIU recently launched the “We Are Main Street” initiative to supposedly highlight how the franchise system negatively affects franchisees. Up until this point, the union has pushed to hold the franchisees accountable for raising the minimum wage. Realizing their efforts have failed, the union’s focus has now shifted to strengthening franchisee rights. The initiative’s website states that small-business owner franchisees lack business protections and accuses franchisors of taking away franchisees’ businesses unfairly, blocking franchisees from selling their franchise at a fair price, and retaliating when franchisees join together.

The SEIU’s attempt at forging a friendship with franchisees is an odd proposition given that franchisees are often small-business owners who oppose unions. However, this isn’t the first time the SEIU has tried to cozy up to franchisees. In California, the SEIU recently supported a bill that expands franchisee rights.

While the SEIU and franchisees both endeavor to expand franchisee rights, they still remain opposed on other fronts such as whether franchisors should be treated as joint employers and increasing minimum wage.

The SEIU has publicly challenged franchisors such as McDonald’s, which recently took the position that it is not responsible for employment decisions at franchised locations. This position may be the SEIU’s way of negotiating on behalf of workers across all McDonald’s restaurants rather than trying to fight labor disputes at individual franchises. With the NLRB’s general counsel saying that it may name McDonald’s as a joint employee with franchisees in labor charges filed against the company, a lengthy battle is in sight.

Unions are always fighting to stay relevant in a world where traditionally unionized industries are slowly shrinking. And so they turn to new industries, like fast food. With the vast number of fast food workers in America, organizing this industry would result in an enormous payday for unions. Since dues money is the gas that fuels a union’s engine, unions will continue to strategically try to organize the fast food industry by any means necessary – even if it means trying to befriend an enemy.

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.

Disney Performers Reinstated After Refusing to Wear “Contaminated” Costumes

Three performers employed at Disney’s Animal Kingdom in Orlando caused a stir when they refused to wear their unitards for the Festival of the Lion King show. The employees said the unitards had been tainted by other sweaty garments that had accidentally touched theirs. The dirty costume pieces had been on a rack that was pushed up against where their clean clothing hung.

Their refusal to wear the unitards resulted in one of the shows being canceled, and Disney promptly terminated the three performers. So how does this relate to labor law?

Well, the local Teamsters union representing the workers claimed that Disney violated the parties’ collective bargaining agreement by giving the performers unsanitary clothing. An arbitrator agreed with the performers ruling that Disney violated the union contract by firing the performers. The arbitrator ordered Disney to give the performers their jobs back and awarded them back pay.

It is hard to fathom that employees, who work in a sweaty environment, are allowed to refuse to work because their clothing touched a co-worker’s sweaty clothing. But apparently, pursuant to that particular union contract, this was permitted. This ruling raises an interesting question: under what circumstances can an employee lawfully refuse to perform his job? Here, the touching of one sweaty garment to another was apparently enough. On a construction site, could a laborer refuse to work if a sweaty co-worker’s shirt touched his or her shirt? The take away from this case – make sure your union contract does not have similar language in it.

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.

Applebee’s Class Action Ban Latest to be Ruled Unlawful by National Labor Relations Board

Since arbitration helps companies avoid the high costs associated with litigation, companies often have employees enter into agreements to arbitrate disputes rather than take them to court.

Workers at Applebee’s restaurants in Pennsylvania, New Jersey, Maryland, and Delaware typically sign an arbitration agreement that includes a term prohibiting employees from becoming members of a class action. The National Labor Relations Board recently ruled that this arbitration agreement violates federal labor law.

The Board recently reversed its position on class action waivers in arbitration agreements. Such waivers used to be permissible. Now, though, arbitration agreements that preclude workers from joining a class action are unlawful. Unsurprisingly, Applebee’s counsel argued that the NLRB should follow federal court cases that permit these waivers. However, the Administrative Law Judge who heard the case disagreed stating that NLRB judges must follow NLRB law unless it has been reversed by the United States Supreme Court.

The state of law related to arbitration agreements is evolving, and it is possible that the Supreme Court will make a final determination of the legality of arbitration agreements. Until then, employers need to be cautious about arbitration agreements that preclude class actions.

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.

National Labor Relations Board Continues Jurisdictional Reach into New Areas: Airline Contractors

The Railway Labor Act (RLA) governs labor disputes at airlines, railroads, and some contractors. The contractors covered by the RLA must be under the control of, and performing the same functions as, an airline or railroad. The National Labor Relations Act governs disputes in other industries, including airline and railroad contracts that are not subject to the RLA.

The NLRB recently refused to review a decision ruling that the cleaning employees of an airline contractor were covered by the NLRA and not the RLA. This decision demonstrates that contractors who provide cleaning, baggage handling, wheelchair assistance, and other similar services are independent from the airlines and control their own business and labor relations policies. The National Mediation Board (NMB), which enforces the RLA, has recently chosen not to assert jurisdiction over airline service contractors. That decision paved the road for the NLRB to continue its trend toward expanding its jurisdiction into areas previously occupied by courts and other judicial tribunals.

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 Withdraws Petition to Represent Boeing South Carolina

Do you remember when Boeing moved a production line from union-heavy Washington State to virtually union-free South Carolina a few years ago? Remember how unions were publically outraged? Me too. That’s why I was surprised to see that the International Association of Machinists (IAM) union tried to organize the Boeing South Carolina employees – the same ones the union did not want to have a job a few years ago and labeled as inferior and less skilled than the Washington state employees.

I was not surprised, though, to learn that the IAM withdrew its representation petition for more than 3,000 South Carolina workers. Naturally, IAM filed an unfair labor practice charge against the company the same day it withdrew its election petition.

The IAM released a statement saying that the union decided to cancel the scheduled election based on information learned from union organizers during home visits with 1,700 Boeing workers. The union claims it won’t get a fair election. Could it really be that the IAM learned the South Carolina Boeing employees don’t want to be represented by a union? Union’s don’t withdraw petitions for elections they think they can win.

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.