Three Takeaways from Unions Demanding $15 an Hour

First, while unions that are part of the AFL-CIO are advocating for $15 per hour, the AFL-CIO doesn’t pay its own workers that much. It was recently reported that an usher working the AFL-CIO’s annual summer meeting where union bosses boasted about their success in championing the $15 minimum wage made well below that “minimum” amount.

Second, Los Angeles-area unions funded a “Raise the Wage” campaign to raise the minimum wage in L.A. to $15.25 while simultaneously seeking an exemption from higher wages for their represented employees. Ironic that unions can tell fast food chains, hotels, and hospitals that if they agree to union representation, their wage bill should be substantially lower, thereby making a unionized workforce the least costly option.

Third, the L.A. unions’ proposed exemption became a reality in Seattle. According to the local newspaper, “After well-funded campaigns by labor unions, SeaTac and other jurisdictions have an exemption for unionized employers that allow them to pay a lower wage and not pay for sick leave. Thanks to the union escape clause supported by labor, unionized employers can legally pay their workers less than what their non-union counterparts earn.”

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.

Single Employee Filing Class Action Lawsuit Engages in Protected, Concerted Activity

Remember when the NLRB expanded the definition of protected, concerted activity to times when an employee talks to himself? How about when an employee files a sexual harassment claim for the way a supervisor treated her? Now, the Board has expanded it to times when an employee does not even communicate or solicit assistance of other employees before filing a class action lawsuit.

Now, an employee who files an employment-related class action lawsuit, i.e. a failure to pay employees overtime, engages in protected concerted activity within the meaning of Section 7 of the National Labor Relations Act even though the employee has not previously consulted with other employees about the lawsuit. Historically, for protection, employees needed to engage in “group action” for the “mutual aid and protection” of others, instead of solely for his or her personal benefit.

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 Employers May Track Employees through GPS, Sometimes

A Company whose workforce is unionized lawfully terminated an employee after installing a GPS tracking device on the employee’s company-owned truck to assist a private investigator in following him. The investigator personally observed the employee operating his truck in an unsafe and illegal manner, failing to follow specified delivery times, stealing time, and falsifying his daily log. The GPS device even showed the driver’s vehicle resting at his home during work hours. After the employee was terminated, the union filed an unfair labor practice charge alleging that the Company unilaterally installed the GPS device and engaged in electronic surveillance in violation of labor laws.

Notably, the associate general counsel of the NLRB’s Division of Advice said the charge should be dismissed because the most recent collective bargaining agreement between the parties contains work rules prohibiting stealing time and requiring drivers adhere to federal regulations that they accurately account for their time. Further, the union was aware of, and did not object to, the Company’s practice of retaining a private investigator to follow an employee suspected of stealing time and using any results obtained through observation for disciplinary purposes. Since the GPS was only used in conjunction with the investigator’s observations, it was lawful.

Union companies everywhere should not interpret this single case as authority to stick GPS tracking devices on all of their vehicles. For now, this holding is limited to those facts described above.

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 Requires Every Voting Employees’ Contact Info, Where Do You Keep It?

The Ambush Elections rules obligate employers to provide employees’ personal phone numbers and personal email addresses if such data is “available” to the employer. I put “available” in quotes because we recently learned that the definition of available is different for different people.

Prior to a union election, the employer provided the union with all of the personal phone and email addresses it had in its human resources computer system, which accounted for 94% of the bargaining unit. The human resources computer system did not have this data for the other 6%. The union appealed its defeat alleging that the missing 6% violated the new election rules. At the hearing, it was discovered that one of the employer’s supervisors maintained an independent list of email addresses and phone numbers separate from the human resources computer system, and the supervisor’s list contained the missing information.

Gone are the days when a simple roster print out from the HR Department satisfies a company’s burden to produce names, addresses, phone numbers, and email addresses of its workers. Now, prudent employers periodically poll supervisors and others to ensure that a single, comprehensive list is maintained and regularly updated.

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.

Ambush Elections: Lies, Damned Lies, and Statistics

Regardless upon which side of the argument you sit, the statistics of the first 150 days post-ambush elections will help your argument. Management lawyers argue that the dire warnings were well founded. Pro-labor law reformists say the warnings were much ado about nothing. You should make up your own mind after learning the stats.

Union election petitions are up 9% and decertification petitions are down about 9%. Median days between the filing of an election petition and the election (with election agreement) is down from 37 days to 23 and (with directed election) down from 65 to 30, respectively. Median size of units shrunk from 28 to 23 workers. The percent of union election cases the union won dipped from 69% to 68% and the percent of decertification cases the union won remained the same at 40%.

So what’s your conclusion? Mine is that the data validates the predictions that the new processes will result in a shorter time frame in which employers do not really have time to prepare a campaign. This lack of time forces employers to prepare a counter-campaign even if they aren’t certain they will ever need 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.

Another Reason to Refuse to Consent to Mail-In Ballots in a Union Election

Union representation elections are usually done in person at the workplace. When the workforce is scattered or works odd shifts the union and the National Labor Relations Board likes to use mail-in ballots as a way to ensure all voting employees have an equal chance to vote. Oddly, an NLRB Regional Director declined to count ballots that came in after the ballots were counted, but were postmarked before the deadline, resulting in complying voters not having their vote counted.

Due to the large percent of delayed ballots, the outcome of the election could have been different. Of the ballots counted, 60% voted in favor of the union. But, 40% of the ballots came in too late to be counted. If 40% of the late ballots were against union representation, the workforce would have remained non-union. The Board’s decision to disregard these important ballots failed to assure employees the fullest freedom in exercising the rights guaranteed by the National Labor Relations Act while furthering its goal in increasing union membership.

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.

Ohio Not Likely to be Right to Work Anytime Soon

I am often asked these days whether I think Ohio will become Right to Work. My answer is unequivocally the same each time. No. While I am a supporter of employees having the right to decide whether they want to be in a union, early results from Indiana’s recent foray into being right to work may have many employers wishing it was still business as usual.

Indiana had 299,000 paying union members last year, up from 249,000 in 2013, the last year it was a compulsory unionism state like Ohio. This meant that union membership, which had dipped to as low as 9.1 percent in 2012 was back up to 10.7 percent in 2014. And, the number of Indiana workers who are represented by unions but are not paying dues rose to 335,000 last year, which is 12 percent of the total workforce.

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.