HR Investigations Weakened by NLRB Ruling

Conducting workplace investigations is one of the hardest tasks for HR managers. Getting unwilling witnesses to come forth, finding out what information is applicable, and making sure the process is as fair to the alleged violator as to the alleged victim are challenging enough without the NLRB’s influence weakening the process.

Until recently, to get a witnesses’ full and unencumbered cooperation, HR offered the witness confidentiality and asked the witness to avoid discussing the investigation with coworkers. Since Anheuser-Busch, Inc. (1978), a unionized employer did not have to disclose witness statements that were obtained from employees subject to a promise of confidentiality. The Anheuser-Busch Board even said, that forcing a release of confidential statements would “diminish rather than foster the integrity of the grievance and arbitration process.” Simply put, Anheuser-Busch protected employees against intimidation.

Thanks to the NLRB who overruled 35 years of law, HR can now only offer confidentiality in the rarest of circumstances. Witnesses are now discouraged from providing information, which will result in a deterioration in the quality and fairness of the investigation. This deterioration will be used against employers during arbitration as unions now can more easily argue that the employer did not fully investigate the situation before deciding what to do.

In Piedmont Gardens, the National Labor Relations Board said there should not be a “blanket exception” for witness statement. It instead instituted a balancing test to determine whether a union’s right to obtain witness statements trumps an employer’s assurance of confidentiality to its employees. According to the Board, asking employees not to discuss investigations with each other to ensure confidentiality and fairness is denying them their right to “protected concerted activity,” or the right to assemble and discuss workplace issues.

For an example of how this plays out in real life, consider this: An employee makes unwanted sexual advances towards a coworker. The coworker reports the behavior to HR, who immediately begins an investigation. The coworker tells HR that two other employees witnessed the behavior. HR speaks privately with each witness. To keep the investigation fair to both the alleged perpetrator and the alleged victim, HR asks each witness not to talk about the investigation with other employees. The NLRB says that instructing employees to not talk to coworkers about the investigation is unlawful.

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.

UAW, Ford, GM, FCA Legal Services Plan Takes Effect

The UAW successfully negotiated into collective bargaining agreements with Ford, GM, and FCA (Fiat Chrysler) a Legal Services Plan that commences today. According to a press release: “I am pleased to announce that UAW members will be able to participate in this benefit starting next Wednesday, and I would like to commend vice presidents Jimmy Settles, Cindy Estrada, and Norwood Jewell, and our national negotiating teams for their hard work at the bargaining table to bring the Legal Services Plan back,” said UAW President Dennis Williams.

The Legal Services Plan will offer a variety of office legal services such as wills and trusts, deeds, birth and marriage certificates, powers of attorney, uncontested family matters, contracts for goods and services, name changes, credit reporting, residential leases, purchase or sale and other uncontested issues regarding residential real estate property.

I expect UAW staff representatives to ask for similar legal plans throughout the country when bargaining new union contracts in 2017.

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 Membership Up in Ohio, But Down Nationwide

Union membership in Ohio was up in 2016 despite unionization rates falling to new record lows nationally. In Ohio, 12.4 percent (roughly 617,000) of workers are in unions. Nationally, the union membership rate was 10.7 percent in 2016, down from 11.1 percent in 2015, and down from 20.1% in 1983 (the first year for which comparable union data is available).

Union members in the U.S. and Ohio earned considerably more than their non-union counterparts. Median weekly earnings for union workers last year were $1,004 compared to $802 for non-union workers. This alone should make more people want to be in a union, but it doesn’t.

Ohio is ranked 14th among the 50 states and Washington D.C. for the highest union membership rate. New York is the leader with 23.6%, while South Carolina has the lowest unionization rate of 1.6%.

Union members everywhere tend to be middle-age or older workers. In 2016, nearly 27% of workers between 45 and 64 were union members. Another 10% were 65 or older. Conversely, less than 14% of union members are under 34 years old. This may account for why union rates continue to decline. As the aging population exits the workforce, the attraction and devotion to unions is leaving, too.

Some other quick statistics include:

  • Men continue to have a slightly higher union membership rate (11.2%) than women (10.2%) although the gap between their rates has narrowed considerably since 1983.
  • Black workers (13.0%) were more likely to be union members than were White (10.5%), Asian (9.0%), or Hispanic workers (8.8%).
  • The union membership rate was 11.8% for full-time workers, more than twice the rate for part-time workers at 5.7%.
  • Over half of the 14.6 million union members in the U.S. live in just 7 states, although these 7 states accounted for one-third of the wage and salary employment nationally: California (2.6 million), New York (1.9 million), Illinois (800,000), Pennsylvania (700,000), and Michigan, New Jersey, and Ohio (600,000).

For those companies wanting to stay union-free, the following seems to be the recipe for success: Be in South Carolina and hire only part-time, female, Hispanic workers. If you can’t do that, then call me for help.

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.

Company’s Preference to Hire Non-Union Employees Withstands NLRB Scrutiny

A union hospital had a collective bargaining agreement that gave preference to bargaining unit members for hiring or transferring into positions covered by the CBA. Stated differently, union-represented employees at that hospital received preference over non-union employees for open positions at that facility.

To level the playing field, the employer instituted a policy giving non-union employees preference over “external applicants” for hiring or transferring into open positions at its non-union facilities. Employees from the union sites were, of course, considered external applicants.

The union challenged this policy by alleging that it unlawfully discriminated against union employees based on union affiliation. Agreeing with the union (naturally), the NLRB sued the employer. The NLRB argued that the policy tilted the playing field too far in favor of nonunion employees, claiming the number of nonunion positions “pales in comparison” to the number of positions covered by the union hiring policy and that nonunion hiring preference covered two facilities, as opposed to the single facility by the union policy.

The hospital correctly countered that it merely was leveling the playing field in light of the fact union employees received a preference at the unionized facility over its nonunion employees.

The First Circuit Court of Appeals agreed with the employer. The court found that the employer’s desire to treat its union and non-union employees “even-handedly” negated an inference that the policy was motivated by union animus. While the court acknowledged that the nonunion policy covered more positions than the union hiring policy, union workers were not disproportionately harmed, given that the ratio of covered positions to covered employees was substantially the same under both policies. Likewise, nonunion employees had to compete with workers from two hospitals, as opposed to union workers’ need to compete only with workers from one hospital.

The court also noted that the Board ignored other aspects of the hiring policies that still leave union members at a comparative advantage, namely that union seniority trumps qualifications for open union positions, while the employer is required to choose “the best qualified” candidate for a nonunion position, regardless of seniority.

Employers should be cautious when implementing a hiring preference policy similar to the one at issue here. In order to justify such a policy, facts similar to those in this case likely need to be present.

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.

Petroleum Company Settles with Steelworkers for $8.08M Over Unpaid Bonuses During Strike

Tesoro agreed to pay more than $8.08 million to 769 employees at its Carson, CA and Anacortes, WA facilities who engaged in a strike during the winter of 2015. This amounts to over an average of more than $10,500 per worker.

According to the NLRB’s press release, in March 2015, Tesoro awarded bonuses for the previous year to non-unit and non-striking employees, but withheld such bonuses from striking employees deeming them ineligible to receive bonuses under the parties’ Memorandum of Understanding. These annual incentive bonuses were based upon performance and profits during the previous calendar year.

In response, charges were filed by the Steelworkers against Tesoro with the NLRB in California and Washington alleging that the accrued bonuses were not paid in retaliation for the employees’ strike, and that failure to pay the bonuses was an unlawful modification of the parties’ contract. After the NLRB issued complaint in both cases, parties reached this settlement which will provide workers with 100% of the bonuses that they were eligible for under their contract.

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 and Friends Publish Anti-Retaliation Joint Fact Sheet

“Retaliation Based on the Exercise of Workplace Rights is Unlawful” is a collaborative effort of the National Labor Relations Board, the Wage and Hour Division of the U.S. Department of Labor, the Occupational Safety and Health Administration, the Equal Employment Opportunity Commission, and the Office of Federal Contract Compliance Programs. The Fact Sheet reminds employers that it is unlawful to retaliate against employees for exercising their workplace rights, regardless of the workers’ immigration status. Although workers are “always entitled to pay for work actually performed, regardless of immigration status,” remedies may be limited for undocumented workers. For example, under the National Labor Relations Act, “reinstatement and back pay are not available as legal remedies for employees who do not have work authorization.”

The Fact Sheet, curiously released a few days before the inauguration of President Trump, underscores what some may view as a tension between Trump’s immigration stance and the legal protections afforded to all workers. Given Trump’s focus on immigration reform, it should come as no surprise that the key federal agency players in the workplace law arena have united to remind employers that the anti-retaliation protections apply all regardless of immigration status.

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.

President Trump’s Anticipated Effect on Workplace Policies

In 2016 the National Labor Relations Board maintained its generally pro-union, anti-employer stance in ways that affect both unionized and non-unionized employers. The Board currently has two openings, which, once President Trump fills, will result in a pro-business NLRB. However, due to the Board’s rules, employers might not see immediate improvement. After all it wasn’t until years 7 and 8 of Obama’s presidency that major pro-union initiatives were implemented. Therefore, employers in 2017 (and likely beyond) will be forced to deal with the extreme pro-union rulings from 2015 and 2016. But once the pro-business Board can start unraveling current anti-business rulings, here is what I expect will happen to workplace policies that have been in the crosshairs of the pro-union NLRB.

All employers, regardless of union status, should remain (or become) aware of the NLRB’s General Counsel’s position that many handbooks and other employer policies are unlawful. For reference, see his March, 2015 GC Memorandum 15-04. This guidance gives examples of good and bad language for policies on keeping employer information confidential (broad policies are deemed unlawful, because employees must be allowed to discuss wages and other issues of mutual interest), professionalism, media contact (employees have the right to talk to the media on their own behalf or on behalf of others), use of company logos (employees are allowed to use logos and marks for their own, non-commercial purposes), conflicts of interest, and recording and photography at work, which the General Counsel says must be permitted on non-work time when employees are engaged in protected activity. I do not expect changes to these to occur for a long time since many of the General Counsel’s theories are now supported by recent NLRB decisions.

Similarly, an employer rule prohibiting “non-approved individuals’ access to information or information resources, or any information transmitted by, received from, printed from, or stored in these resources” without prior written approval was unlawful because it would prevent employees from sharing, with their union representatives or their co-workers, information relating to work conditions stored on the information systems. See, T-Mobile USA, Inc. The Board also struck down bans on employees using information or communication resources in ways that were “disruptive, offensive, or harmful” or to “advocate, disparage, or solicit for political causes or non-company related outside organizations.”

Employers everywhere should take 2017 to audit all written policies and procedures in light of this and other recent decisions centering on language the Board finds to impose impermissible restrictions on employee sue and access to email and information systems.

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.