Company’s Labor Consultant Violated Labor Law Defending Union Organizing Drive

During union organizing drives, some companies hire labor consultants (not to be confused with labor lawyers like me who only communicate with management) to speak directly with employees about the realities of joining a union. Most of the time labor consultants are helpful, and I have used several over the years to help defeat organizing campaigns. The consultants in this case may have crossed the line in zealously advocating for employees to vote no for the union.

One employee testified that a consultant asked him how he felt about the union. When the employee asked to be left alone, the consultant showed him a document titled, “Employee Rights Under the National Labor Relations Act” and said, “This document doesn’t work here, my brother. Who pays your check, the company or the union?”

Another employee testified that the consultant called the statement of rights “useless” and said that the company has “its own policies.” A third incident involved two employees who testified that a second consultant told workers in a pre-election meeting that if the Teamsters won the election the company could lower employee wages. According to the judge, the negative comment about employees’ labor law rights signaled that bargaining would be futile if employees voted to unionize.

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 Trying to Organize Casino Workers Guilty of Bullying

Unite Here tried to organize workers at an Indiana casino to join the union. Part of the organizing strategy was to harass customers of the casino at their homes and businesses through a secondary boycott. A secondary boycott is a tactic used by unions to stop a neutral third party (casino customers) from doing business with the target of the union’s labor dispute (the casino). A fine line exists between free speech protected by the First Amendment of the U.S. Constitution and an illegal secondary boycott. According to the judge, Unite Here went way over that line.

Here, the union frequently visited customers of the casino at their homes and businesses. For example, the union entered a restaurant owned by casino patrons and began questioning the restaurant’s customers about the casino habits of the owners. The union refused to leave until the owners threatened to call the police to intervene.

For another example, the union members distributed leaflets to neighbors within a block of one of the casino’s patrons. The leaflets described him and his wife as being regular customers of the casino. This customer alleged that his reputation in the neighborhood had been diminished, neighbors and family members questioned whether he had a gambling addition or problem, and one neighbor stopped doing business with him since the leafletting commenced.

According to the judge, there is no doubt that the union illegally tried to coerce casino patrons from going to the casino.

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.

 

Unions Increase Use of Salting to Gain New Members

Non-union Aerotek had a contract to provide electricians to Interstates Electric for a construction project in Council Bluffs, Iowa. The International Brotherhood of Electrical Workers (IBEW) union sent Brett Johnson and two other members to apply for jobs with Aerotek. Once hired, Johnson and his cohorts were instructed to organize Aerotek workers to join the IBEW. The act of a union sending a union member into a non-union company with the goal of organizing the non-union workers into forming or joining a union is called salting. Johnson was a salt.

Aerotek, realizing that they were salts, did not hire Johnson or the other union members seeking employment with Aerotek. The two pro-union NLRB Members, Pearce and McFerran, found Aerotek liable for unlawfully denying employment to salts. Member Miscimarra dissented because the NLRB has consistently declined to protect employees who undermine an employer’s business interests and should have applied the same rule to Johnson, a job applicant.

Now for some legalese. Members Pearce and McFerran said they assume that as a job applicant Johnson had a duty of loyalty to his prospective employer, but the proper test was the one the Board applies to post-discharge misconduct by employees who have been unlawfully fire by an employer. In such cases, the Board holds an employee who engages in misconduct after an act of discrimination retains a right to reinstatement and back pay unless the worker is “unfit for further service.” Member Miscimarra disagreed, stating the NLRB has repeatedly held that the National Labor Relations Act does not protect employees who attempt to interfere with a company’s contractual relationships.

Which side is right? For now, Members Pearce and McFerran make up a majority, so their opinion must be followed. Their opinion may not be right, but it must be followed.

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.

Textbook Example of Unlawfully Trying to Bust a Union

The owner of Ohio nursing homes sold two homes to another company. The new company took over the homes on July 1st. Under the takeover agreement, all employees were fired on June 30th right before midnight, including nurses’ aides, housekeepers, cooks, and others represented by the Service Employees International Union (SEIU). Employees were told of the change in ownership through a notice posted next to the time clock on June 30th. The new company hired some of the workers, did not recognize the union, and subsequently fired workers who continued to support the union.

Pro-union employees contacted their SEIU representative who went to the home’s office and asked the president of the new company if he would recognize the union. He said no and asked her to leave.

Shortly after June 30th, the new company changed the terms of employment by banning smoking, requiring employees to purchase new uniforms, eliminating shift differentials in pay, and wiping out accrued paid time off. The president also emphasized that none of his homes were unionized and that these would be no different. He continued, “employees could unionize later if they wished, but that he did not believe they would need union representation.”

There are right ways and wrong ways to eliminate a union from a company. Here, the new company chose the wrong way.

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.

Does Obama’s NLRB Deserve the Negative Press it Receives?

Over the past 8 years, Obama’s NLRB has overturned 4,500 years of precedent. The Board has overturned 91 precedents, averaging more than 45 years per decision. The Ambush Election rules alone overturned a combined 454 years of protocol according to a study by the Coalition for a Democratic Workplace and Workplace Policy Institute.

Some of the major changes that radically reshaped workplace operations include establishing micro unions, eliminating dues withholding after the collective bargaining agreement expires, holding companies liable for the behavior of other companies like franchises and subcontractors, shortening the length of a union campaign, and requiring employers to disclose the cost and details associated with labor relations advice.

The study cited above says, “In each case where the Obama Board changed the law, the resulting new law became more favorable to labor interests than it did under previous Board rulings – frequently at the expense of promoting stable bargaining and economic growth and without regard for balancing the interests of business, labor, and employees under the Act.”

The method of overturning law also departed from general progression in labor law. Rather than building up case law and using those decisions to chip away at longstanding practices without running afoul of the National Labor Relations Act, the Obama Board made radical changes in a single decision. This method of overturning precedent has hurt the ability of the Board to justify its decisions on appeal. For example, per D.C. Circuit Court of Appeals Judge Janice Rogers Brown, when ordering the NLRB to pay a Michigan healthcare provider litigation fees for pursuing bad faith litigation, “The Board’s conduct before us manifests a stubborn refusal to recognize any law. The Board’s obstinacy forced Heartland to waste time and resources fighting for a freedom the Board knew our precedent would provide.” “Administrative hubris does not get the last word under our Constitution,” she continued.

Heather Greenaway, spokeswoman at the Workforce Fairness Institute, said that “the Obama-era NLRB will be remembered as an anti-jobs agency that rewarded Big Labor cronies by rolling back years of long-standing precedent.” While this may be her opinion, the above backs it up with accurate facts and iron-clad statistics.

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.

Kent State University Part-Time Faculty are Now Steelworkers

Kent State University Part-Time faculty members voted unanimously to join the Kent Part Time Faculty Alliance (KPTFA), an affiliate of the United Steelworkers union. Representing over half of all faculty, the 1349 part-time faculty teach at Kent’s main and seven regional campuses. Unlike tenured, full-time faculty, the part-time faculty members had not received a raise in over ten years, receive no healthcare benefits, and no free tuition. According to reports, part-time faculty classes are sometimes dropped the day before the semester begins, their hours are purposely kept below the amount needed for healthcare coverage, and their contracts end in May depriving them from receiving unemployment benefits during the summer non-teaching months.

In typical union parlance, the co-chair of KPTFA said, “These part-timers earn sick days they can never use. Daily they travel the roads of northeast Ohio to teach at other universities to get enough work. They work two and three jobs just to scratch out a living. We listened at the meeting to one part time faculty member who, last Spring, taught at five colleges across three states just to make ends meet.”

It will be interesting to see how much, if any, changes are made through collective bargaining.

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.

UFC Fighters Fight to Unionize

On November 30th the Mixed Martial Arts Athletes Association was formed exclusively to “fight for the rights of MMA fighters and force UFC’s ownership to dramatically alter the company’s decade plus outrageous treatment of its athletes.” Past champion and proponent of unionizing Georges St. Pierre said “This same thing has happened before in every other sport – NFL, NHL, NBA. Now it’s happening in the UFC. It’s going to happen whether they like it or not.” The UFC fighters referenced many of the same things as other workers when deciding to seek union representation: rising medical costs and more money.

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.