Charter Schools are Learning a Lesson About Union Organizing

There is a common misconception that unionization rates are decreasing. To balance any decrease in industries like manufacturing, unions are exploring how to infiltrate new industries. One such industry is education. While the unionization of adjunct faculty at universities across the nation receives most of the attention, unions are quietly organizing charter schools as well.

Historically, charter schools have been opposed to unions. Many charter schools believe the key to success is keeping schools away from the powerful teachers unions. Recently, teachers at a large charter network in Los Angeles announced their intent to join the United Teachers of Los Angeles. The possibility of a proliferation in charter schools unionizing presents many challenges. Unions, which have traditionally opposed the expansion of charter schools because it hurts their union membership, are now faced with balancing their support of organizing charter school educators with their opposition to charter schools overall.

A measly 7% of charter school teachers are union members compared to 70% of public school teachers across the country. With about 7,000 charter schools in 42 states, there is significant room to increase union membership if the unionization of charter schools is successful. For those believing the success of charter schools in based in part on no union interference, schools must implement union avoidance training immediately.

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 Objects to Company’s Efforts to Sell Assets via Stalking Horse Bidder

The United Mine Workers of America (UMWA) is objecting to Patriot Coal’s proposed plan to sell the majority of its operating assets. Patriot Coal proposes using a “stalking horse bidder,” which is when the best bidder gets some incentives before the auction. These incentives are intended to increase the value of the starting bid and eventually result in higher bidding overall.

The union objected to Patriot Coal seeking Chapter 11 bankruptcy and referred to the Company’s previous bankruptcy in which the UMWA negotiated with it regarding concessions from UMWA. It is likely that this Chapter 11 relief will further reduce pension benefits and retiree obligations.

The union has complained that the bid timeline doesn’t give competitors to the stalking horse bidder enough time to fully research and propose a bid, which reduces overall competition. The UMWA argues that Patriot Coal’s data room does not have financial projections, mine by mine data, and other information needed to evaluate the Company’s assets. UMWA also claims that Patriot Coal has delayed responding to requests from potential bidders for on-site visits.

For reasons unknown, the union argues that it should be allowed to attend the auction and be a consulting party to determine which bid is best. Really? The union legitimately believes that it deserves a seat at the table to decide which company purchases Patriot Coal? Companies should be mindful that the UMWA – or any other union for that matter – is not entitled to decide the future of a company unless the collective bargaining agreement gives them that right.

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.

Employees that Stopped Working, Gathered in Cafeteria, and Protested Discipline of Co-Worker for Over One Hour, Lawful

A hotel suspended a union employee pending investigation of an alleged theft from a hotel guest. In response to the suspension, employees gathered in a staff cafeteria demanding to discuss the employee’s suspension. The housekeeping director began suspending the employees about an hour after they had gathered. He suspended 77 workers for five days and refused their requests to return to work.

The judge found that the hotel had violated the National Labor Relations Act, and the National Labor Relations Board affirmed his decision. The Board analyzed the case under Quietflex Manufacturing Co., which required it to consider:

(1) the reason the employees have stopped working; (2) whether the work stoppage was peaceful; (3) whether the work stoppage interfered with production, or deprived the employer access to its property; (4) whether employees had adequate opportunity to present grievances to management; (5) whether employees were given any warning that they must leave the premises or face discharge; (6) the duration of the work stoppage; (7) whether employees were represented or had an established grievance procedure; (8) whether employees remained on the premises beyond their shift; (9) whether the employees attempted to seize the employer’s property; and (10) the reason for which the employees were ultimately discharged.

The U.S. Court of Appeals for the District of Columbia (D.C. Circuit) refused to enforce the Board’s order and remanded the case back to the Board. The Board issued a supplemental decision in which it clarified that its focus was not on whether the striking employees affected production but whether they “interfere with production or the provision of services by preventing other employees who are working from performing their duties.”

The D.C. Circuit upheld this supplemental decision finding that the 77 employees did not prevent other employees from working. This decision requires companies to fulfill a high burden of not only showing that the employee interfered with production, but also showing that the employee prevented other employees from performing their duties.

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.

Long-Awaited Joint Employer Decision Issued by NLRB

We have warned you several times (here, here and here) that the National Labor Relations Board was going to change the definition of joint employer to the detriment of Companies. Yesterday our fear came true. In fact, two Board members said this was “the most sweeping of recent major decisions.” Staffing and user companies, franchisors, franchisees, warehousing, and third-party logistic companies are the most likely to be immediately impacted by this decision, but any company that shares control of workers from another company – either directly or indirectly – must take note of this change in the law.

On August 27, 2015, the National Labor Relations Board issued a decision in which it “refined” its standard for determining joint employer status. “Refined” appears to be a euphemism for “totally re-did it in a manner that hurts employers.” The Board will now find that two or more companies are joint employers of a single workforce if 1) they are both employers within the meaning of the common law, and 2) they share or co-determine those matters governing the essential terms and conditions of employment. Joint employers no longer need to actually exercise authority to control terms and conditions of employment.

The Board claimed that a user firm would not be considered a joint employer based on its “bare rights to dictate the results of a contracted service or to control or protect its own property.” Rather, it “will evaluate the evidence to determine whether a user employer affects the means or manner of employees’ work and terms of employment, either directly or through an intermediary.” But overall “direct, indirect, and potential control over working conditions” are relevant to the joint-employer inquiry.

The facts of this case show how the corporate structure and day-to-day activities of the user company (BFI) and supplier company (Leadpoint) are familiar to companies in a multitude of industries.

BFI owns and operates a recycling facility. The essential part of its operation is the sorting of these materials that are then sold to other businesses. BFI solely employs approximately 60 employees that mostly work outside the facility.

The interior of the facility houses four conveyor belts, called material streams. Workers provided to BFI by Leadpoint stand on platforms beside the streams and sort through the material as it passes. The Union seeks to represent these approximately 240 Leadpoint employees.

The relationship between BFI and Leadpoint is governed by a temporary labor services agreement. It can be terminated by either party at will with 30 days’ notice. The Agreement states that Leadpoint is the sole employer of the personnel it supplies, and that nothing in the Agreement shall be construed as creating an employment relationship between BFI and the personnel that Leadpoint supplies.

Initially, relying on 30-plus years of legal precedent, the NLRB Regional Director ruled that BFI and Leadpoint were not joint employers. Only Leadpoint had authority to control the recruiting, hiring, counseling, discipline, scheduling, and termination of Leadpoint employees. While BFI had the power to control shift times, the speed of the trash processing line, and other plant operations, that control was not sufficient to make it a joint-employer of the Leadpoint workers.

On appeal, the NLRB focused on similar factors. While most factors revealed a common user / supplier relationship that historically resulted in companies not being joint employers, the Board changed the law and determined that the two companies were joint employers. The Board specifically noted that BFI communicated directives concerning work performance through Leadpoint supervisors to the Leadpoint employees. To the Board, this constituted “obvious control” of Leadpoint employees by BFI. The Board further found that BFI “codetermined the outcome” of the process by setting conditions on hiring, and exercised complete control over the speed of sorting lines and other productivity standards.

Under the test, BFI and Leadpoint are joint employers even though the contract between them specifically prohibited that from occurring. This means that if the Union is successful in organizing Leadpoint employees that work inside the BFI facility, BFI must aid in negotiating the collective bargaining agreement (with Leadpoint) and is co-liable (with Leadpoint) for Leadpoint’s violations of the National Labor Relations Act, i.e. unfair labor practices, if any. In fact, the Board even mentioned that “it is difficult to see how Leadpoint alone could bargain meaningfully about such fundamental working conditions as break times, safety, the speed of work, and the need for overtime imposed by BFI’s productivity standards.

Companies using temporary employees should be concerned about this eroded joint employer standard. Until now, companies had the freedom to contract with a third party to supply labor without the fear of becoming the employer of those employees. Companies across the United States had relied upon a lawful business model that now, overnight, may subject them to increased costs and future uncertainties. Every company that in some capacity either directly, indirectly, or potentially could have a modicum of control over another company’s employees must immediately evaluate how this sweeping change in the law impacts the way it does business.

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.

Secret Union Organizing via Handheld Social App

The Century Foundation (Foundation), a nonprofit research organization, recently released a report explaining the benefits of designing a virtual platform for union organizing. This proposal comes on the heels of the NLRB’s decision to allow the use of company email during non-work time for communications that are protected by the National Labor Relations Act. [See, “NLRB to Companies: Your Workers Can Use Your Email System for Union Organizing,” Roetzel Recap: Labor Relations, December 15, 2014].This platform could help employees determine an appropriate bargaining unit and encourage workers to communicate confidentially about a union without the fear of employer interference.

The Foundation believes the app would provide step-by-step guidance for employees seeking to organize, including instructions on how to overcome common roadblocks such as employers requiring employees to attend “captive audience” meetings, hiring anti-union consultants, and disciplining workers involved with union organizing. It is not entirely clear how a virtual platform will assist employees with these issues.

The app can connect employees with experienced union organizers to help with their organizing efforts, even though unions already rely heavily on Facebook and private internet sites to make these connections. Employees could also obtain virtual guidance on how to file a union petition electronically and integrate the voter list information that the employer must release.

Take heart, this virtual platform doesn’t yet exist. It is possible that web developers could create a for-profit platform by reaching licensing agreements with unions or a nonprofit organization could spearhead its development. This move toward virtual organizing is a step unions could take to make themselves more appealing to today’s younger, more tech-savvy employees. The key takeaway from this is that unions are finally adapting to the modern workplace. It is time companies update their approach to remaining union free, as well.

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.

The Face of Unions is Becoming Younger and More Educated

What comes to mind when you think about unions? Typically, people think of heavy industry, baby boomers, and seniority privileges. This picture of unions could be changing given the recent decision of Gawker Media to unionize. Gawker Media is a digital media outlet comprised mostly of college-educated, tech-savvy employees in their 20s and 30s. Recently they voted by a margin of 80 to 27 to join the Writers Guild of America East. Other digital media companies Salon, Guardian US, and Vice Media all quickly followed suit.

The parties have yet to negotiate their union contract, but it will be interesting to see if this contract reflects the young, educated population that makes up the union. Gawker staff members claim that their contract won’t look anything like a traditional union contract. The organizers noted that the benefits they are seeking through the union contract include: severance pay; salary minimums for each position; annual meetings with supervisors to discuss performance, salary, and promotions; and a bar against changing the company health plan without union approval. Of course, it remains to be seen whether the Gawker employees will obtain any of these contract terms.

The support of unions from younger employees should cause some concern for companies. A national survey indicates that young adults view unions more favorably than other age groups with 55% of those ages 18 to 29 viewing unions positively. It will be interesting to see whether the Gawker Media staff obtains a union contract that lives up to its expectations or if the employees struggle to break away from the more traditional picture of a union.

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.

Nursing Company Ordered to Forego Union Election and Begin Bargaining

When employers commit unfair labor practices that disrupt pre-election conditions to the point where the National Labor Relations Board determines a fair election cannot be held, the parties can be ordered to bypass the election and immediately begin negotiating a first collective bargaining agreement. There are no automatic rules in determining when this bargaining order, called a Gissel bargaining order, is required. However, the more egregious a company’s behavior, the more likely it will be subject to automatically bargain with the union.

A company committed several unfair labor practices in response to the Service Employees International Union’s attempt to organize a unit of employees at an elder care facility. For example, management banned logos on uniforms just after being presented with a petition for union election and awarded discretionary raises after several years of not giving employees raises.

A manager also warned employees to watch out for “thieves” posing as union representatives who visited employees at their homes to talk about union organizing. This manager justified her characterization of the union representatives as possible “thieves” based on her concern about a binder of personally identifying information being stolen from the facility’s office months earlier.

This same manager also asked employees to sign a “voluntariness form” indicating whether they felt they were forced into voting for the union. The form told employees, “[w]e need you to know that while you have the right to participate in any legal association however, you are not obligated to do so especially as a result of illegal or intimidating tactics.” The judge found the form to be unlawful polling under the National Labor Relations Act.

Management also made statements that violated the NLRA including stating that they could no longer trust an employee who had voted in support of the union and saying that the company would be forced to shut down if it had to unionize. Other problematic practices included terminating union-supporting employees for activities that previously were not subject to discipline, including arriving late to work within a 7-minute grace period and napping during breaks on overnight shifts.

A Gissel bargaining order is an extraordinary remedy, but the NLRB will not hesitate to impose such an order when an employer commits multiple unfair labor practices. When faced with a union organizing drive, prudent companies follow their labor counsel’s advice on what to say and do. Oftentimes a logical response to the drive is an unlawful response that denies employees the right to vote for or against a union. Companies dealing with the threat of a union organizing their workers are better off allowing their workers to vote than being ordered to start bargaining a first contract – with a vote the company retains the possibility of remaining union free.

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.