Local Right to Work Laws Not Preempted by National Labor Relations Act Paving the Way for Counties and Municipalities in Compulsory Unionism States to Go Right to Work

In an effort to have one cohesive labor law that governs the country, the National Labor Relations Act generally preempts labor regulation on the state and local level. There are exceptions, however, including the ability for states to adopt “right to work” laws. Surprisingly (and thankfully) the Sixth Circuit Court of Appeals just ruled that state exemption extends down to the local government, as well when it upheld a Hardin County, Kentucky right to work ordinance.

The NLRA allows businesses and labor to enter into “union security agreements,” where employees must either be members of the union or pay union dues. This prevents employees from reaping the (perceived?) benefits of organized labor without paying their fair share. But the NLRA also allows states to create exceptions to these rules called right to work laws that allow anyone to work regardless of union membership or dues paying. So in states that have not passed such right to work laws, some local governments have sought to step into their shoes by declaring union security agreements “unlawful, null, and void.”

In a case of near first impression, the Sixth Circuit had to wrestle with whether “State law” in the National Labor Relations Act also meant “local law.” Section 14(b) of the Act states:

Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.

According to the per curiam 3-judge panel, Sixth Circuit, “State law” can be treated the law of the state or any political subdivision. The court went on to cite City of Columbus v Ours Garage and Wrecker Service for more support:

Absent a clear statement to the contrary. Congress’ references to the ‘regulatory authority of a State should be read to preserve, not preempt, the traditional prerogative of the States to delegate their authority to their constituent parts. (Emphasis added)

What this means is that courts cannot presume that local governments are excluded from powers given to the state. Since the NLRA explicitly allows states to interfere in the federal government’s “integrated scheme of regulation,” as far as right t work laws are considered, there can be no finding of implicit field preemption.

Sounds like the Sixth Circuit came to a reasoned, correct decision.

Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

NLRB Must Show Why Employees are Distinct in Micro Unit Cases Says Second Circuit

The Second Circuit Court of Appeals reviewed the two-step analysis of Specialty Healthcare for determining whether employees share a “community of interest.” Under step one, the NLRB Regional Director performs a community of interest analysis to determine if the proposed unit is appropriate. If appropriate, the party opposing the proposed bargaining unit must demonstrate that the employees it wants to include share an overwhelming community of interest with the employees already included in the bargaining unit.

While Regional Directors are given (very) broad discretion in determining Specialty Healthcare issues, that discretion is not unfettered and must have a rational basis. They must, the Court reminds them, to engage in a meaningful first step analysis.

In Constellation Brands, the Second Circuit noted that although the Regional Director concluded the petitioned employees had distinct characteristics, the Regional Director “did not explain why those employees had interests sufficiently distinct from those of other employees to warrant the establishment of a separate unit” Essentially, the Regional Director has to make a prima facie showing at step one before moving on to step two. Since that was not done here, the Second Circuit refused to uphold the Regional Director’s determination and criticized the NLRB for failing to properly exercise its power of review to ensure Specialty Healthcare was applied correctly.

Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

NLRB Orders Company to Condone Racism at Work

The NLRB has stretched the bounds of the law as thin as possible with its latest ruling aimed at protecting racist comments hurled at replacement workers by strikers.

Cooper Tire employee Anthony Runion was picketing during a strike. He shouted admittedly offensive an racist taunts at black replacement workers, referencing fried chicken and watermelons, among other insults. He was fired. An Arbitrator upheld his termination. But, an NLRB administrative law judge cited that there were no express threats and that the firing was “clearly repugnant” to the National Labor Relations Act. The NLRB agreed and ordered Cooper Tire to reinstate Runion with full back page. Cooper Tire appealed the decision to the Eighth Circuit Court of Appeals.

Several business groups have also filed brief with the court arguing that the NLRB’s position is inconsistent with federal discrimination laws, protects racist comments, and essentially requires employers to condone racism in the workplace. In retort, the NLRB argued that the act of picketing involves “an element of confrontation” and some “impulsive behavior is to be expected” Further, per the NLRB, no cases have found employers liable under the discrimination laws for only two racially offensive remarks.

The Board’s position here reminds me of the way in which the Board allows employees to yell, curse, and intimidate their supervisors rendering their supervisors powerless to discipline such disruptive employee antics. I am also reminded of a phrase I read somewhere of how the NLRB permits employees to do at work what is illegal if done outside of work. The Eighth Circuit’s decision will be very interesting.

Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

Union Organizing via Apps

As everyone knows, the United Food and Commercial Workers Union has been trying to organize Walmart workers for years but has failed to do so. Its latest effort involves a tailored app that workers are encouraged to download onto their personal phones.

The app lets Walmart workers ask questions – anonymously, if they choose – about company policy and employees’ rights. Some of those questions will be answered by humans, but the app has used IBM’s Watson technology to put together replies to hundreds of the most common questions a Walmart worker might have. Users can also  share stories and chat with each other – similar to a private Facebook group which unions have been covertly using for years.

So, if you’re not Walmart you shouldn’t worry, right? Wrong. The app’s developers themselves have said that they hope to license the app to other labor groups to help other unions organize other workers. This technology is too new to determine whether it will have a material impact on unionizing non-union companies. But it should be noted that unions continue to industriously seek alternative ways at reaching non-union employees while companies largely read annual headlines that unionization rates continue to fall and convince themselves that their employees will not ever want a union. It’s a risk companies take. Sometimes they win. Sometimes they lose. Every time, though, the companies who lost, wish they had won.

Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

NLRB Refuses to Allow Truckers to Form a Micro Bargaining Unit

In contrast to yesterday’s blog post that summarized a decision where the NLRB upheld a micro bargaining unit, today the Board refuses to find that a micro bargaining unit is necessary.

The Teamsters union petitioned for an election of only drivers who drive company-owned vehicles and excluding drivers who use their own vehicles. The Regional Director ruled that the petitioned for unit constituted a fractured unit because personally owned vehicle drivers share an overwhelming community of interest with company-owned vehicle drivers which requires their inclusion in the unit.

For example, drivers of personally owned and company owned vehicles are both given the same responsibilities for pickups and deliveries, are subject to the same supervisors, receive their routes through the same training work out of the same facility, record their work time using the same method, and wear the same uniform.

As a result of the NLRB expanding the petitioned-for bargaining unit from only drivers of company-owned vehicles to all drivers, the Teamsters did not have enough signed authorization cards to go forward with a union election. Thus, the petition for an election was dismissed; a company win.

Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com

NLRB Refuses to Review another Decision Certifying the Appropriateness of a Micro-Unit

Just 14 service technician employees at Buena Park Honda sought to organize a union. The employer thought that, at a minimum, lube technicians should be included in the bargaining unit, but the NLRB disagreed because, according to the Board, other workers did not share “an overwhelming community of interest.”

When employees of a labor organization petition for an election in a unit of employees who are readily identifiable as a group based on job classifications, departments, functions, work locations, skills, or similar factors, and the Board finds that the employees in the group share a community of interest after considering the traditional criteria, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit.

The NLRB cited several examples why the lube technicians did not share an overwhelming community of interest with the service technicians. For example, the service technicians were more skilled, paid substantially higher wages, and required to routinely update and maintain their training and skills, making them “clearly identifiable and functionally distinct.”

Worth noting, Member Miscimarra agreed with the outcome but not the reasoning. To him, the Board’s reliance on Specialty Healthcare was misplaced. Instead, he argued that the Board should have applied its traditional principles, believing “bargaining unit determinations should be circumscribed and guided by industry-specific standards where applicable.”

Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.


 

Another Example of How the NLRB Gives Unions Two Bites at the Apple to Win a Union Organizing Campaign

In 2015 the NLRB pushed through the Ambush Election Rules to boost union organizing success principally by shortening the period between a union’s request for an election and the election itself and by making it more difficult for an employer to raise important, substantive legal issues prior to the election. Also among these rule changes were certain procedural requirements. One of these nit-picky rules was that the employer serve both the NLRB and all other parties to the case, i.e. the union, with a copy of the official voter eligibility list sufficiently in advance of the election.

In URS Federal Services, Inc., a union sought to represent a group of the employer’s employees. Those employees rejected union representation by a nearly 2-1 margin. But following defeat, the union filed an objection with the NLRB arguing that the election should be set aside and a second vote held because the employer did not send a copy of the voter eligibility list to the union like the rule required. Instead, the NLRB sent the list to the union (as previously required). In the end, the union received what it was entitled to receive on the day it was entitled to receive it.

At first, the NLRB Regional Director rejected the union’s claim that the union was disadvantaged from receiving the voter eligibility list from the NLRB as “exalting form over substance.” On appeal, though, Members Pearce and McFerran unsurprisingly overruled that decision and found in favor of the union, set aside the election and ordered a new election.

Member Miscimarra, thankfully (albeit ceremoniously) blasted the majority decision, accusing the majority of lightly setting aside unequivocal election results as well as creating a double standard under a Board decision issued just a few months earlier in which the Pearce and McFerran ruled in favor of a union, even though the union similarly failed to comply with a technical requirement of the election rules.

Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com