Company’s Truthful Statements Deemed Unlawful during Union Organizing Campaign

The Seventh Circuit Court of Appeals recently upheld a National Labor Relations Board decision that an Illinois auto dealership illegally discouraged workers from supporting a union. The dealership’s management met with employees to discuss a union organizing effort. The managers (truthfully) stated that bargaining with the union would “start from scratch” and pointed out that its Orlando dealership had not had any bargaining negotiations despite those workers electing a union nearly three years earlier. The managers (truthfully) advised that pay raises were “absolutely possible” in the event that employees rejected the union and responded that they did not know if some employees would be demoted under union rules.

The Board determined that the managers’ truthful statements all had a tendency to discourage employees from organizing and were therefore unlawful. This case is especially concerning because there were no blatant violations here. Many of the managers’ statements that the Board found violated the Act were spoken in hypotheticals, such as when the managers responded to inquiries about future pay increases. Apparently, the Board is now telling employers that they cannot tell the truth to their employees.

Companies need to walk a fine line between being cautious about what they tell employees during union organizing campaigns and providing as much information as permissible to support the company’s campaign against the union. All managers must be trained on what they cannot say or do. Given the new election rules implemented in April of this year, union campaigns are shorter, making it even more important that companies train their managers before union organizing begins.

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.

Court Disagrees With NLRB’s Finding of Surveillance

We previously reported on a National Labor Relations Board decision where Intertape Polymer Corporation won a union election 142-97, but the Board ordered a new election based on unfair labor practices. [See, “Minor Employer Misconduct During Organizing Campaign Nullifies Company’s Victory”] The Board, as expected, found that the company engaged in unlawful surveillance when its supervisors handed out anti-union leaflets at the plant gate alongside union supporters who were handing out pro-union leaflets.

Upon appeal, the Fourth Circuit held that there was no evidence that the company expected the union supporters to be at the gate when it sent its supervisors out to distribute the leaflets. The court concluded that the company had a legitimate explanation for being at the gate to exercise its First Amendment and NLRA Section 8(c) rights to leaflet its employees during a union campaign. Furthermore, the court said that the “brief periods of simultaneous leafletting” were insufficient to establish that the company acted aggressively or coercively.

The court directed the Board to reconsider its decision to set aside the election. While it is ultimately up to the Board to decide whether a new election is warranted, concurring Judge J. Harvie Wilkinson made it clear that the company’s infractions were minor compared to the large margin by which it won the first election such that a new election would not be a proper remedy. This is yet another example of the Board forcing companies to appeal egregious decisions before having a fair shot of winning based on the current state of the law.

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.

Seattle Proposes Alternative Collective Bargaining Law for Cab Drivers

One limit of the National Labor Relations Act is that it applies only to employees. Independent contractors are not covered by the Act. A Seattle city council member recently introduced legislation that would bring collective bargaining to cab drivers that work as independent contractors who are not covered by the Act. This is another creative way unions have found to increase revenue by skirting traditional labor laws.

The legislation proposes creating a process so that a majority of independently contracted drivers who work for the same company could choose to join a “driver represented organization.” The organization would negotiate pay rates and other conditions of employment for cab drivers and drivers for services such as Uber and Lyft, as well as other for-hire drivers. The city of Seattle would have to review the agreement reached and would also be tasked with enforcing the agreement.

Alternative labor organizations like the ones envisioned by this bill are unlawful under the NLRA, but have been implemented elsewhere. Volkswagen recently agreed to meet with any organization certified to represent at least 15% of the workers at VW’s Chattanooga, Tennessee plant. [See, “Volkswagen Agrees to Meet With Any Organization Representing 15% of a Group of Workers”]  VW would meet with these organizations even though its employees lost a union election. Similarly, graduate students at New York University formed a “union” that lies outside the National Labor Relations Board’s jurisdiction. [See, “NYU Graduate Students Ratify Union Contract”]

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.

Pro-Union Congressional Members Propose Drastic Changes to National Labor Relations Act

Over the past few years, we have seen how the pro-union, Democrat-controlled National Labor Relations Board has given new meaning to many terms of the National Labor Relations Act (NLRA). Democrat lawmakers now seek to pile onto the drastic changes to the Act. The recently proposed bill, titled the Workplace Action for a Growing Economy (WAGE) Act, seeks to tip the scales even further in the favor of unions.

The proposed changes are far-reaching and include the following:

  • Providing workers with triple damages if unlawfully terminated for protected activity;
  • Establishing a private right of action to sue companies in federal court;
  • Civil penalties of up to $50,000 for companies that commit unfair labor practices;
  • Doubling civil penalties for repeat violators of the Act;
  • $10,000 per day fines for companies that fail to comply with Board orders;
  • Mandating that the Board seek preliminary injunctions from federal courts when an employer is accused of unfair labor practices and a Board official is suspicious that such practices have occurred; and
  • Permitting company officers and directors to be individually penalized for labor violations.

As this list demonstrates, the main focus of the bill is to establish additional penalties for companies and to increase already existing penalties. Congress is currently controlled by Republicans, which provides some reassurance that this drafted bill will probably never actually become law. Nonetheless, this bill is making its way through Congress.

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.

Unions Target Bank Tellers…Again

The Service Employees International Union (SEIU) supported the Fight for $15 Campaign and its goal to obtain a $15 minimum wage for fast food workers. After receiving no traction in that campaign, unions are now targeting the banking sector and bank tellers specifically.

This is not the first time that unions have targeted the banking industry. While the rest of the country was working toward recovering from the Great Recession of 2008, unions tried to capitalize on the negative image associated with banks and organize bank employees. The SEIU spearheaded that unsuccessful movement.

Undeterred by the SEIU’s failure, the Communication Workers of America is now backing a coalition called the Committee for Better Banks. The Committee for Better Banks is made up of bank workers, community and consumer advocacy groups, and labor organizations. This coalition is leading a movement to seek higher wages for bank workers with the ultimate goal of achieving union representation for these workers. Apparently, unions are following the sound business practice of “if at first you fail, try, try, again.” While only time will tell whether tellers are open to the unions’ message this time around, banks should take this coalition seriously and ensure they are implementing best practices for union avoidance.

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 Cannot Ban Email Solicitation Based on Safety Concerns during Non-Working Time

In a much-discussed decision, the Board decided that employees with access to an email system for work purposes have a right to use that email system on non-work time for communications protected by the National Labor Relations Act. [See our prior summary of the decision in Purple Communications in “NLRB to Companies: Your Workers Can Use Your Email System for Union Organizing”]  In other words, employees can use their employer’s email system to engage in pro-union activity, including organizing activity. Policies that prohibit such email use are presumptively illegal unless the company can show special circumstances for restricting employees’ access to the system.

Recently, a hospital had a solicitation rule that provided “staff members may not use [company] electronic messaging systems to engage in solicitation.” The hospital argued that its policy was justified by the “special circumstances” of the healthcare institution. Specifically, the hospital cited to studies finding that there is a correlation between employee distraction and patient safety and identified computers as sources of distraction. The NLRB did not buy this argument. While the Board agreed that sending emails during working time may be distracting and negatively affect patient care, it found that such concerns were not present during non-working time. The Board suggested that the hospital could revise its policy to apply solely to working time.

Employers are still questioning what “special circumstances” can overcome the Board’s presumption that employees can use company email to engage in union activity. The concern that employees will be distracted by the email system is not sufficient. Companies should be sure to review their email policies to verify compliance with Purple Communications.

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 Allows Electronic Signatures on Election Petitions

Unions must provide evidence that at least 30% of the proposed bargaining unit supports its petition before the Board will schedule an election. Unions may either submit signed and dated authorization cards or a signature list. Until recently, employees needed to physically sign their name in ink on a piece of paper. Now, though, the Board accepts electronic signatures to support a union’s showing of interest for an election petition. The electronic signature must contain the signer’s name, email address or social media account, phone number, authorization language agreed to, date, and name of the employer. The signature cannot contain private identifying information such as the signer’s date of birth or Social Security number.

This change in the law is effective immediately, and companies should expect unions to take advantage of their newfound ability to submit electronic signatures.  The freedom to gather signatures using email and social media is yet another way that the Board has made it easier for unions to organize employees. Who among us hasn’t clicked “Agree” on their cell phone or computer screen when downloading an app or opening a program? We as a society don’t read fine print. I anticipate unions creating an app or a newsletter opt-in where employees must “Agree” to electronically sign an election petition before completing a download or sign-in. But, the details of what the employee is agreeing to will be tucked in the fine print and never read.

Bringing technology to the union organizing process enables unions to obtain all of the necessary signatures in a shorter timeframe than before electronic petitions containing electronic signatures were permitted.

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.