Can Employees Engage in Union Organizing in Mixed-Use Areas Where Work and Non-Work Activity Occurs?

Most companies have designated work areas and break rooms. Work areas are where employees are on-the-clock performing their job duties. Break rooms are where employees are completely free from engaging in any work-related activity. But, what about mixed-use areas, where some employees relax and some engage in work-related activity? For example, one company had a hallway where employees gathered, socialized, watched television, checked personal email on computers, and where various fairs, charity drives, raffles, and the sale of merchandise occurred. But, work-related products also regularly passed through this hallway. When off-duty employees began distributing union literature in the hallway, the company banned that activity claiming the hallway was a work area. The company erred. The hallway was determined to be a mixed-use area since work and non-work related activity took place there. According to NLRB law, companies cannot prohibit the distribution of union literature during non-work time in mixed-use areas. The nuances of whether an area is mixed-use are slight, so check with counsel before stopping or disciplining off-duty employees for engaging in union organizing in areas that are used for both work and rest.

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.

How the National Labor Relations Board Determined Supervisors Could Organize into a Union

A transportation company employed 40 road supervisors who monitor drivers to ensure they follow company policies. They recommend discipline by filling out “observation notices” when a driver breaks a rule and “pats on the back” when drivers do something positive. The notices and pats on the back are forwarded to a senior supervisor who metes out discipline and puts the positive notes in the drivers’ files. Observation notes can result in termination. Pats on the back can result in cash awards. The Regional Director dismissed the union’s organizing petition seeking to organize road supervisors determining road supervisors were supervisors under the National Labor Relations Act because they had authority to “discipline, reward, or effectively recommend such action.”

The NLRB overruled the Regional Director. According to the Board, “evidence did not indicate who determines whether to grant [the award] or how that determination is reached.” Therefore, no evidence establishes that road supervisors effectively recommend rewards without an independent investigation by whoever actually decides to grant the award. Similarly, the Board found that road supervisors did not have a critical role in the discipline process because the observational notices were “reportorial” by containing just a description of what happened; they did not contain a recommendation of discipline.

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.

Immigrant Temp Workers at Tire Recycler Organize under New Joint Employer Standard

Advocates for temporary workers are celebrating the National Labor Relations Board’s new joint employer test that has paved the way for a group of Guatemalans in New Bedford, Massachusetts to organize a tire recycler. The recycler has about 70 people, both employees and temporary workers, with a large number of the employees being from Guatemala. Most of the workers receive no paid sick leave or vacation time and earn about $11 per hour. After asking for a $1 per hour raise four Guatemalans were terminated. After being reinstated, they led an effort to organize all 70 workers to join the United Food and Commercial Workers union (UFCW). Now, the tire recycler, the staffing company that employs the workers, and the UFCW are negotiating a union contract. Interestingly, New Bedford, Mass. is home to roughly 1,500 Guatemalans, though some believe the real number is three times that and say at least some of the Guatemalans at the tire recycler are in the U.S. illegally. Most illegal immigrants in New Bedford, and in many other parts of the country, work for temporary employment agencies. Therefore, the new, expansive joint employer test not only has a direct impact on unionizing temporary workers, it may have an indirect impact on bestowing greater awards and protections to illegal immigrants.

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.

MGM’s Anti-Union Creation of the Academy Awards

We are in the middle of Awards Season—the Oscars, Emmys, Grammys, ESPYs, and even the SAG-AFTRA Awards. According to some, the origin of the Academy Award’s sponsor, the Academy of Motion Picture Arts and Sciences, is anti-union. The Academy (which awards the preeminent Oscars award) was founded in 1927 by Metro Goldwyn-Meyer (MGM) studios in an effort to prevent unionization in the film industry. As an invitation-only professional organization, it was meant to be a more prestigious alternative to unionization. It had separate branches for producers, actors, writers, directors, and technicians, and settled workplace disputes without the need for unions. Essentially, from 1927 to 1933 the Academy functioned as a company union controlled by the producers. But in 1933, two years before the enactment of the National Labor Relations Act, the Screen Actors Guild (SAG) unionized Hollywood. SAG would later merge with the American Federation of Television and Radio Artists to form the SAG-AFTRA union. Once the NLRA was enacted, company unions like the Academy were outlawed, but the Academy still has select membership. The competition between the Academy and SAG-AFTRA has resulted in both entities having their own motion picture awards ceremonies—one union, one nonunion.

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.

Service Workers International Union (SEIU) Insurance Pays for Sex Change

A female who identifies as male works at a hospital in New York as a cleaning and sanitation specialist. He is a member of 1199 SEIU United Healthcare Workers East. He has health insurance through the union’s self-insured plan. Two years ago when he sought authorization for his hysterectomy, he was told that it would not be covered. According to the union, “gender re-assignment surgery is not a covered benefit.” However, the union’s health plan does not contain a clause prohibiting gender transition-related care. Upon closer look (and with, shall we say “encouragement” from the Transgender Legal Defense & Education Fund), the SEIU changed its tune. Now, the official SEIU position is that it is “not the policy of our health funds to exclude coverage for gender reassignment.”

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.

Are Employees “Virtually Termination Proof” for Social Media Postings?

An employee was upset that the retail store she worked at stayed opened as late as it did because the store was located in an unsafe neighborhood. After the store owner did not change the hours of operation, the disgruntled employee posted on Facebook remarks about her “immature” manager and that she would bring a labor rights book to work with her the next day. She was terminated for the post.

This is not a routine “employee fired for social media post in violation of Section 7 rights” case, though. Here, the employee’s celebratory Facebook posts after being terminated included: “Muhahahahahaha!!! So they’ve fallen into my clutches” leading one to believe she purposefully trapped the company into committing an unfair labor practice charge when it terminated her employment. According to the Board, the post was protected. According to the National Federation of Independent Businesses, which filed an amicus brief in the case, the Board’s decision renders employees “virtually termination-proof” once they complain or comment online about anything work-related, regardless of the motivation for the posting. I don’t think employees are termination-proof, but it sure does appear that way.

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.

Will NLRB Force Employers to Give Unions Ability to Meet with Employees at Work and on Company Time?

Over 100 law school professors have urged the National Labor Relations Board to make a rule (since the Board is now fully ensconced in rule making) allowing unions to meet with non-union workers, on company property and in private, to urge them to vote in favor of union representation. If companies refused to allow such a meeting and later win a union election, the election results would be thrown out, a union-employee only meeting held, and a new election conducted. The proponents of this rule boldly state that it will “result in more collective bargaining, which the statutory policy of the National Labor Relations Act encourages.”

Interestingly, companies would be required to allow unions to hold these “captive audience” meetings as soon as an employer knows or thinks a union organizing drive is underway. While I disagree that employers should be forced to allow these meetings, holding them only after a petition for an election has been filed is more palatable. After all, union organizing drives can last for years, which raises a good question: how often must employers allow these meetings to occur? Furthermore, while not part of the proposal, I’m sure the Board will require employers to pay the workers their normal wage to attend the meeting.

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.