Contractor that Thought it was Out of a Multi-Employer Bargaining Unit made Unlawful Workplace Changes

A marble contactor dropped out of a multi-employer bargaining unit and informed the union it would be terminating an existing CBA when it expired. The company also informed the workers it would implement new employment policies like modifications to wages and health insurance, stopping contributions to the union’s pension plan, as well as implementing flexible spending accounts, profit sharing, and a 401k plan.

In response, the workers held a union representation election and voted the union in. The company refused to bargain with the union, and the NLRB ruled that the Company’s refusal was a violation of the National Labor Relations Act. Undeterred, the Company followed through with the previously announced changes believing that it no longer had a duty to bargain under the previous CBA. But, the NLRB held that the Company was still obligated to bargain with the union and violated the Act by making unilateral changes after the CBA expired. The Board then ordered the Company to rescind the changes and rehire the laid off employees. 

In Member Miscimarra’s dissent, he said that the Company’s move to implement changes that had been announced before the union election was held was legal. “Board case law is crystal clear that this action was lawful. An employer does not violate the NLRA when, after a union is elected, its implements a term or condition of employment decided on before the election,” he said. Miscimarra also noted that under the majority’s decision, a company in Ardit’s situation would be caught between a rock and a hard place since none of the employer’s options would have been legal under the majority’s framework.

The respondent had three options: (1) it could implement the terms it had previously announced; (ii) it could refrain from implementing those terms or (iii) it could give the union notice and opportunity to bargain. Under any fair system of law, one of these options must be lawful. Under the majority’s decision here, all three options are unlawful.

Miscimarra also concluded that Ardit’s layoffs were similarly lawful because the company had no work for the workers to perform.

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 GC Seeks to Make Unlawful Intermittent Strikes Lawful because They’re Gaining Popularity

As covered before, the National Labor Relations Board’s General Counsel, Richard Griffin, believes that intermittent strikes deserve legal protection – and announced he is seeking test cases to bring before the Board. Intermittent strikes fall into murky legal territory. Workers who strike more than once or twice run the risk of being fired for it. Yet, repeated strikes are getting more common. Griffin argues that intermittent strikes should be protected when they meet three criteria:

  1. No Disguised Slowdowns: “They involve a complete cessation of work, and are not so brief and frequent that they are tantamount to work slowdowns.” Striking for 10 minutes every half-hour would not be protected, but a series of one-day walkouts would. The general counsel suggests that strikers should not “reap the benefit of a strike without jeopardizing pay or risking replacement.
  2. No Usurping the Boss’s Authority: “They are not designed to impose permanent conditions of work, but rather are designed to exert economic pressure.” Leaving work after seven hours in order to establish a seven-hour day would not be protected, but boycotting overtime or weekend work to exert economic pressure on the company might be.
  3. The Point is Clear: The employer would have to be made aware of the employees’ purpose in striking.

One reason Griffin is urging this update is to “address changed industrial conditions – including the rise of worker movements outside the traditional collective bargaining model.” Non-union workers – such as the fast food workers, retail janitors, and airport workers who have walked out on recent, repeated short strikes – don’t have grievance procedures or the ability to sit down and negotiate with management. They typically earn less than union members, Griffin points out, and do not have access to strike funds, making it more difficult to pull off longer strikes. 

Since when does the amount of money an employee makes, or an employee’s ability to tap into strike funds determine whether a strike is (or should be) lawful? Either these faddish intermittent strikes have always been lawful or are not (now) lawful. There is no reason to change the law because of “a rise in worker movements outside the traditional collective bargaining model.” If it is outside the traditional governance of the National Labor Relations Act, then it is unlawful. Should looting also be made legal, since there has been a rise in that, too, over the past few years?

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.

Smaller Bonuses for Union Employees Not Unlawfully Discriminatory

A union filed an unfair labor practice charge alleging that a company discriminated against union-represented employees by paying them a lesser bonus than non-union employees. The Employer argued it did not discriminate in paying the lower bonus amount to union employees because negotiated wage increases for union employees exceeded increases granted to non-union employees.

The ALJ found that the employer’s payment of an end-of-year bonus was consistent with past practice (and despite no mention of such payment in a recently negotiated collective bargaining agreement) did not discriminate against the union-represented employees in violation of Section 8(a)(3) of the NLRA.

The ALJ found no discrimination under Wright Line because there was no independent evidence that the respondent was motivated by an anti-union purpose in paying the lesser amount to union employees. Rather the respondent tied the lesser amount to the higher wage increase earlier received by union represented employees.

The ALJ also analyzed whether the paying of the lesser amount to union employees constituted inherently destructive conduct under Great Dane Trailers, and thus supported a discrimination theory. She concluded it did not, because any harm due to the lower bonus payment to union employees was viewed as slight because of the higher bargained-for wage amounts received by union employees.

The ALJ also found that the employer failed to give the union adequate notice of the bonus payment and therefore failed to provide the union an opportunity to bargain over 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.

JetBlue’s New Contractor Ordered to Bargain with Union at JFK Despite Not Hiring a Majority of Predecessor’s Employees

JetBlue uses outside contractors to provide baggage handling, skycap, checkpoint, and wheelchair services at JFK’s Terminal Five. Jet Blur selected PrimeFlight to replace Air Serv at JFK. Air Serv had a collective bargaining agreement with the SEIU.

PrimeFlight hired 362 employees, 52 percent of whom were former Air Serv workers. On May 23, SEIU demanded recognition as the bargaining agent of the PrimeFlight workers. PrimeFlight didn’t respond. On July 6, its Terminal Five staff totaled 507 employees. Only 39 percent of those 507 employees had worked at Air Serv. PrimeFlight argued it had no obligation to bargain with the SEIU because the former union-represented employees from Air Serv did not constitute a majority of PrimeFlight’s new workforce.

Air carriers such as JetBlue are covered by the Railway Labor Act, and the NLRB may consider a ground service company a “derivative carrier” if its work is subject to significant control by the air carrier. PrimeFlight argued JetBlue exercised such control – meaning the NLRB would not have jurisdiction over the case – but the judge said the evidence was unpersuasive. He also said it appeared that since 2013 the National Mediation Board (which enforces the Railway Labor Act) has been ceding jurisdiction over companies like PrimeFlight to the NLRB. 

With jurisdiction before the NLRB, the critical date to determine whether PrimeFlight had a duty to bargain was May 23 – the date the SEIU demanded recognition. The union-represented workers were a majority of the workforce at that time, and the union’s status as their bargaining agent was established then. In fact, the company had hired workers in every job classification by May 9 and the hiring of additional workers over the next two months did not affect the company’s duty to bargain with the SEIU. 

The judge entered a preliminary injunction requiring the company to meet and bargain with the SEIU while the NLRB completed processing the administrative proceeding against the company. The court held, however, that “any agreement reached between PrimeFlight and the Union is subject to termination if the NLRB determines that PrimeFlight is not subject to the NLRA or did not violate any provisions therein.”

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 GC Seeks to Change the Law on Short Duration Strikes to Disadvantage Employers

The National Labor Relations Board’s General Counsel’s office said the agency’s test for deciding whether multiple short-term strikes were protected is difficult to apply. So he is asking the NLRB to “clarify and modify” the law. Along with the memo was a model brief, which regional officials were asked to include in filings with the NLRB and administrative law judges, with a proposed framework to evaluate whether intermittent and partial strikes are protected under the NLRA.

Taken together the documents signal an intent from the General Counsel’s office to broaden protections for workers who take part in short-duration strikes.

One-day and other short-term strikes are most often used by unions during contract negotiations. Fast food, retail, and other non-union workers are also increasingly using these tactics in their campaigns for higher wages and better working conditions, i.e. Fight for 15, an effort aimed at raising the minimum wage and backed by the SEIU. In one instance last November, the Fight for 15 group launched a one-day strike in 270 cities across the US.

Legally, both union and non-union workers who take part in a short-duration strike have the same protections under the NLRA as do workers who engage in long-term strikes. Where things get murky is when workers engage in multiple, short-term strikes.

For decades, the NLRB has held workers who strike multiple times, especially in the same labor dispute, can face discipline, including termination. Under the General Counsel’s proposal, multiple short-term strikes would be protected if they involve a complete work stoppage and aren’t so brief and frequent that they amount to work slowdown; if they are not designed to impose permanent condition of work but rather to exert economic pressure; and if the employer is aware of the workers’ reason for striking.

Employers are left wondering how realistic is it to engage in permanent replacements or subcontracting for a one-day strike, or a one-hour strike, or a 45-minute strike every other day? Also, what about replacement worker contracts that require a minimum of 5 days pay to the replacement workers – employers will need to pay replacement workers despite regular workers returning from strike only one day after the strike began.

This is an issue that not many companies are following, but it is important since strikes, especially ones lasting a very short amount of time, are increasing. Hopefully this law will not change before a new, President Trump-appointed General Counsel takes office.

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.

Retail Store Wins Injunction Against In-Store Union Protest

Since 2011 unions have held demonstrations inside and in front of a retail store as part of a campaign to raise wages and improve working conditions of employees. Protestors would sing, chant, march, carry posters, or assemble “flash mobs.” The store filed suit in California state court accusing the unions of disruptive labor activities despite its cease and desist demands. The store also filed an unfair labor practice charge with the NLRB two months previously.

The Los Angeles Superior Court found that the stores are not a public forum and that the unions had unlawfully trespassed. The trespassing had substantially or irreparably harmed the store. The just issued the injunction barring the unions from sending people inside the store to engage in unlawful activity.

On appeal, the union argued unsuccessfully that the court did not have jurisdiction to enter an injunction because the matter was preempted by the NLRA since the retailer had filed a charge with the NLRB. The three-judge panel said National Labor Relations Act does not preempt retailers from filing trespass actions, and that a trespass claim can be considered local interest exemption for the purposes of preempting 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.

NLRB Finds Joint Employer Relationship Partly Because Companies had Worked Together Before thus They will do so Again

Retro Environmental Inc., a construction company, was a joint employer with staffing agency Green JobWorks, LLC regarding a group of full- and part-time laborers. The NLRB found that the construction company primarily controlled the day-to-day work of the temporary workers, while the temporary staffing agency handled matters such as hiring and assigning employees to job sites, completing pre-employment drug screens, and conducting background checks. Green JobWorks also controlled the rate of pay and payroll procedures for the temporary workers, as well as discipline and termination, although Retro could request a replacement when unsatisfied with a particular worker’s performance.

During the summer of 2015, the staffing agency provided workers to the construction company for two demolition and asbestos abatement projects scheduled to conclude in July. In June 2015 the NLRB’s Regional Director dismissed the petition because the projects were close to being completed and there was not enough evidence to suggest the companies would continue working together. In a 2-1 decision reversing the Regional Director in part because the staffing agency had supplied workers to the construction company on several projects before, so it was foreseeable that it would do so again. So according to the NLRB, just because a company contracts with another before means that it will do so again and thus those separate companies are joint employers?

Both staffing agency employers and employers who contract with staffing agencies should be mindful of ongoing attempts by unions to organize a single group of workers in this context, and they should contact qualified counsel regarding strategies for handling possible joint employment scenarios, including the drafting and implementation of service agreements and the areas of control that an entity may ant to exclusively maintain or forego.

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.