Secretary of Labor Misconstrues Advantages of Being in a Union

Secretary of Labor Thomas Perez recently published a blog post painting a very rosy picture of union membership. He cited data from the Bureau of Labor Statistics to support his conclusion that the median weekly earnings for union workers last year were $200 a week more than for non-union workers. This “fact” seems to be an undeniable reason to favor unionization, but this statistic is a misleading oversimplification of the data.

Perez compares median weekly earnings for union members with non-union members. This comparison is misleading because union members are more concentrated in higher-paying government-sector jobs, including teachers and federal employees. Additionally, unionized workers are more heavily concentrated in urban and northeast regions, where the costs of labor and costs of living are higher. Unionized workers also tend to be older than non-unionized workers, and older workers make more than younger workers.

Like the National Labor Relations Board, the Labor Department is concerned with declining rates of union membership. The Board has reacted by changing well-settled law to favor unions while the Department of Labor attempts to influence unionization with over-simplified, misleading claims.  It appears that the government’s pro-union marketing and changing laws to benefit unions is paying off – unionization is beginning to increase. More elections are being held, and unions are winning at a higher rate than previously reported.

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.

First Amendment Requires Police to Respond to Employer’s Complaint about Union Trespassers

When over 1,000 demonstrators showed up on the Venetian Casino Resort’s property in Las Vegas, the casino believed they were trespassers and asked them to leave. The resort then asked the police to intervene. The union filed an unfair labor practice charge with the National Labor Relations Board alleging that the Venetian interfered with the demonstration and employees’ rights in violation of the National Labor Relations Act. In response, the Venetian argued that its conduct in calling the police was protected by the First Amendment, which protects “the right of people…to petition the government for redress of grievances.”

The Noerr-Pennington doctrine interprets the First Amendment and insulates a company from liability where its conduct is a direct petition to the government. The D.C. Circuit Court of Appeals concluded that the Venetian’s “request that the police officers at the demonstration issue criminal citations to the demonstrators and block them from the walkway” was a protected petition to the government. However, that is not the end of this case. The Court remanded the case to the Board and directed the Board to consider whether the Venetian’s request for police intervention was a sham. If the Board determined that the petition was a sham, or that it was “objectively baseless,” then the Venetian’s request for police intervention would not be protected by the First Amendment.

Companies should not expect that all calls to police related to union activity are protected by the First Amendment. However, in some circumstances, such as when a company is trying to protect its property interests, the protection offered by the First Amendment and the Noerr-Pennington doctrine is a powerful tool in a company’s toolkit.

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 Just Illogically Expanded its Specialty Healthcare Micro-Units Decision

As we have explained several times before, the controversial 2011 Specialty Healthcare decision opened the door for unions to organize smaller, union-friendly groups of employees. Specialty Healthcare allows unions to create micro-bargaining units, which are a small portion of the total number of employees at a particular worksite. Unions can target these smaller groups and organize them more effectively and quickly than organizing an entire department or workplace. Micro-units create a logistical nightmare for companies, as one company could have to manage several unions with several different union contracts. The different terms and conditions of employment in each contract require more time from management and make it more likely that a supervisor will make a mistake in administering the contract.

Unfortunately, the Board further expanded the reach of Specialty Healthcare in a recent case where the union organized a unit at a commercial printer that included pre-press, digital press, offset bindery, digital bindery, and shipping and receiving employees, but excluded offset-press employees. During a printing project, the project would start in pre-press, move to offset-press, and then move to offset bindery. By excluding the offset-press employees, the union cherry-picked one small group of employees to remove from an integrated work process.

The company challenged the proposed unit and argued that the offset-press employees needed to be included in the petitioned-for unit. Despite the offset-press employees working closely with the other employees in the petitioned-for unit and all employees working toward the same final product, the Board found that the petitioned-for unit was appropriate.

This case demonstrates that even where employees work in the same space and form part of the same workflow, they do not all have to be included in the unit. This gives unions the ability to cobble together a unit of union-friendly employees to increase their chances of successfully organizing the employees. Unions are gaining the ability to decide exactly who they want to be in their union, a powerful tool in union organizing.

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.

Company-Run “Sham” Union Unlawful; Teamsters Instead Gain Access to Employees

Unions have been organizing drivers in Silicon Valley at a rapid pace, and companies are desperate to stop this trend. One tech shuttle provider, which runs daily shuttles for tech workers from San Francisco to corporate headquarters, tried to fight back against this trend by developing a management-run union called The Professional Commuter Drivers Union hoping to block other unions from organizing its employees.

The attempt was an unlawful management-sponsored union created to avoid the Teamsters’ effort to organize the company’s workforce. According to the National Labor Relations Act, unions cannot be controlled or influenced by management. Instead, they are third parties that are supposed to work on behalf of employees to negotiate their terms and conditions of employment. Here, the National Labor Relations Board sought an injunction to put an end to this “union,” and ultimately, the company and the Board entered into a settlement agreement that grants the Teamsters access to the company’s break room for one hour per week to meet with employees about union organization.

Labor lawyers are keeping a close eye on all facets of the transportation industry. These tech shuttle drivers have gone from having no unions to being heavily unionized in a matter of months. This speedy union organizing underscores the importance of having an active union avoidance plan in place at all times.

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.

Employee Takes a Stand against His Union for Not Informing Him that He has a Right to Not Pay Full Union Dues

Are your employees fully informed of their Beck rights? Probably not. Unions hate Beck rights because employees can avoid paying a percentage of their union dues. This is oftentimes the only reprieve employees have in non-right-to-work states.

In Communication Workers of America v. Beck, the Supreme Court ruled that the National Labor Relations Act prohibited unions from collecting dues for political activities if a member chooses to opt out of the union. Unions can instead collect dues from non-members only for collective bargaining and other representational activities. Unions are required to prorate dues for these non-members. Of course, the devil is in the details as most unions claim most dues money goes towards non-political activity. Therefore, even when employees opt-out, they may still find themselves paying a larger portion of dues money than they anticipated.

Recently, a nurse’s aide in California alleged that he was not able to exercise his Beck rights because his union, the Service Employees International Union (SEIU), failed to properly notify him of those rights when he started to work at a unionized hospital. He was not informed that he had a right to be a non-member of the union. Instead, the union gave the worker a letter upon his hiring that stated, “You are automatically a member of the union.”

The SEIU ignored employees’ Beck rights and forced all new employees into full dues-paying union ranks instead of giving them the option to be non-members paying lesser, pro-rated union dues. Beck rights are especially important in non-right-to-work states where employees can be forced to pay union dues as a condition of employment. Companies in those states should consider informing their employees of their Beck rights during on-boarding and periodically throughout the year. We encourage companies to consult with competent legal counsel before educating employees of their Beck rights to avoid unintended unfair labor practice charges.

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 and Adjunct Professors Reach Tentative Collective Bargaining Agreement

Unions’ efforts to organize adjunct faculty have been in the spotlight lately and for good reason. The United Steel Workers (USW) and Point Park University in Pittsburgh, Pennsylvania, spent nearly 10 months bargaining before reaching a tentative agreement. This agreement is the first of what the USW anticipates will be many agreements organizing professors throughout Pittsburgh.

The union has not released specific details of the tentative agreement, but it has indicated that economic factors and job security were two of the primary reasons the professors voted to be represented by the USW. The union also reported that “concerns about basic materials to do the job, basic institutional support” were factors that mobilized the faculty and were discussed at the bargaining table.

This recent contract is a just another feather in the cap for the USW, which has found success at organizing adjunct faculty at private universities throughout the United States. This success is at both religious and non-religious institutions. While religious institutions are generally immune to unionization, case law from the current NLRB holds that most religious colleges and universities are predominantly academic, not religious, and thus lose their immunity.

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.

Non-Union Workers Lawfully Filed Unfair Labor Practice Charges and Went on Strike

The Warehouse Worker Resource Center, a non-profit employee advocacy group, filed an unfair labor practice charge against a warehouse company and affiliated agencies that supply the company with some of its workers. The charge alleged that the company interfered with the workers’ concerted protected activities under the National Labor Relations Act. Allegedly, the company’s general manager told employees they could not use his name in protest materials and threatened to fire workers.

Just six days after the unfair labor practice charge was filed, about two dozen employees went on strike. The workers participating in the strike did not indicate when they would be returning to work.

This case serves as a good reminder that non-union companies are not immune to unfair labor practice charges or strikes. Even companies without unions must comply with the National Labor Relations Act and can be forced to defend an unfair labor practice charge before the National Labor Relations Board.

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.