NLRB Again Rules Telling Employees the Truth is an Unfair Labor Practice

Employees at Southern Bakeries filed a decertification petition in 2011 – yes, this case started in 2011. That election was unsuccessful. Another employee waited the required 1-year and filed a second decertification petition in 2012. After that filing, the employee collected signatures of 2/3 of the bargaining unit expressing their interest in decertifying the union. In response (because the law allows) the employer withdrew recognition of the union.

The union, as you can imagine, rejected the withdrawal of recognition claiming that it was unlawful. Per the union’s complaint, employees favoring the union had been subject to unlawful harassment and surveillance – including via surveillance cameras installed in the employee break room – and that management had made threats of plant closure and other reprisals.

In 2015 the case made its way to federal court. There, the judge ordered the bakery to continue bargaining with the union citing evidence that he believed caused the employees to reject the union.

At the end of 2016, Southern Bakeries filed its appeal to the judge’s ruling. In the appeal, Southern Bakeries argues that statements by company representatives that other unionized bakeries had been shut down or gone out of business and that collective bargaining could result in lower pay were not intended as specific threats and were First Amendment-protected criticism of the union (also protected by Section 8(c) of the National Labor Relation Act). It further argued that the alleged harassment and individual threats were either justified disciplinary action or did not happen, and that the break room cameras were to combat theft.

I do not know the ultimate outcome of this case, for it has not yet been decided. But there are two major takeaways for employers: 1) getting rid of a union is tricky, convoluted, and rife with legal hurdles employers must navigate; and 2) even when a company is within its Constitutionally-protected right to tell its employees the truth, it may still be bogged down in a legal quagmire by a union that is unwilling to let go of members who no longer want it.

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.

To Include or Not to Include in a Bargaining Unit; That is the Question

A union recently filed a petition seeking to represent a unit of truck drivers who drove company-owned vehicles at Golden State’s Sun Valley, California facility. The employer, Golden State, argued that some company-owned vehicle drivers should not be included in the bargaining unit because they do not share a community of interest with the other company-owned vehicle drivers. Conversely, drivers of personally-owned vehicles should be included in the proposed bargaining unit.

For example, employees who drive 53-foot tractor-trailers have distinct duties and responsibilities from drivers of other-sized vehicles. The tractor-trailer drivers perform line hauls, which carry large freight between the company’s hubs. The other drivers of company-owned vehicles deliver to offices and residences. The union countered that all company-owned drivers should be in the bargaining unit because they all receive the same five days of training, operate under Golden State’s insurance, have the same supervisors, have the same work rules, wear the same uniform, perform the same types of pickups and deliveries, and receive similar compensation, and are subject to the same drug testing policies.

Conversely, personally-owned vehicle drivers and the non-tractor-trailer company-owned vehicle drivers share an overwhelming community of interest which requires both groups to be included in a single bargaining unit. Per Golden State, both sets of drivers are given the same responsibilities for pickups and deliveries, are subject to the same supervisors, receive their routes through the same routers, interchange with each other when picking up and delivering receive similar training, work out of the same facility, record their work time using the same method and wear the same uniform, among other things. The union disputed that the community of interest between the company-owned vehicle drivers and the personally-owned vehicle drivers was not overwhelmingly enough to satisfy Specialty Healthcare.

So who should be included in the bargaining unit and have an opportunity to vote whether to join the union?

If you said that the 53-foot tractor-trailer drivers should be included in the bargaining unit, you’re right. Chalk this win up to the union. If you then said that the personally-owned vehicle drivers should also be included, then you would again be right. Chalk this win up to the employer.

The burning question now is whether the inclusion of the personally-owned vehicle drivers results in the union having authorization cards signed by less than 30% of the bargaining unit. If so, then there can be no election and thus no union at Sun Valley. Let this be a reminder to employers that they must closely and critically scrutinize the proposed bargaining unit immediately after receiving a notice of representation election. The company may be able to remain union-free without having to win a union election.

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.

UnionizeMe.org – Electronic Union Organizing at its Finest

The website http://www.unionizeme.org launched a few months ago with the stated goal of “ending poverty for employees at large companies through unionization.” The website, which generally targets fast food and retail workers, is another creative way for unions to push the envelope of alternative organizing tactics.

The website provides workers with a way to register individual accounts (allowing unions to gather the workers’ personal information and specific work location). Once registered, employees sign a union authorization card and are encouraged to have their coworkers do the same. The authorization card advises the employees that by signing they agree to allow unionizeme.org to represent them in negotiations with their employer over wages, benefits, hours, and working conditions.

Sounds like traditional electronic-based organizing, right? Wrong. The website does not seek to unionize a specific workplace. Instead, it seeks to organize clusters of stores in the same geographic area. Once 30% of a proposed bargaining unit in each store in the cluster has signed an authorization card, the cards are submitted to the NLRB for a representation election.

While http://www.unionizeme.org is registered as a 501(c)(5) nonprofit labor union, its website makes no mention of a specific union or where it receives funding.

Employers – especially in the fast food and retail industries – should be aware of this alternative organizing strategy and develop positive employment relations strategies to thwart its growth in your area.

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.

 

Campaigning to Congress to Reverse NLRB Joint Employer Ruling Started

More than 50 businesses and trade groups are asking Congress to pass legislation to repeal the National Labor Board’s new joint employer standard. As a reminder, in August 2015, the NLRB ruled that “indirect” and “potential” control over workers’ terms and conditions makes a company a joint employer. This rule change exposed a broad range of businesses – from contractors and subcontractors, to franchisors and franchisees – to workplace liability for another employer’s actions and for workers they do not employ.

The NLRB will not be reversing the ruling anytime soon on its own. “The president can nominate two new board members, but those nominees will require Senate approval, which takes time,” the groups wrote in their letter. “After new members are confirmed to the Board, it will take more time for an appropriate case to develop so the Board can restore the ‘direct control’ joint employer standard.” Even then, they said, the decisions could be overturned by future administrations.

Here is a link to the letter so you can see if your trade association has supported this movement. If not, you may want to consider requesting it do so.

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 has Tesla Workers in its Crosshairs

A Tesla factory worker says he wants to form a union. Tesla says he’s a salt who is being paid by the UAW to organize the company from within. According to the worker, the company “doesn’t function as well as it could” He claims employees work long hours, face excessive mandatory overtime, and are prone to injury. He also said Tesla workers are underpaid compared to the high cost of living in the San Francisco bay area.

According to a statement by Tesla, “This is not the first time we have been the target of a professional union organizing effort such as this.… We have a long history of engaging directly with our employees on the issues that matter to them, and we will continue to do so because it’s the right thing to do.” Elon Musk, the owner of Tesla is on record saying that his company is “union neutral,” that mandatory overtime is “dropping almost every week,” and “total compensation is higher for a given level of seniority when factoring in stock grants.”

Musk continued: “Our understanding is that this guy was paid by the UAW to join Tesla and agitate for a union. He doesn’t really work for us. He works for the UAW.”

Interestingly, the worker could not be reached for comment by CNNMoney who was investigating the situation because “he was working his shift” according to his spokesman. His spokesman? Since when do factory workers have spokesmen? When they’re salts?

To rub salt in this wound (bad pun intended), the worker’s spokesman, Bergen Kennedy, is employed by Storefront Political Media, a communications firm representing the UAW. Yet Brian Rothenberg, UAW spokesperson, said he could not describe, specifically, the ways in which the union is supporting the worker. “We always provide assistance to workers who are interested,” he said.

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.

Salting during Union Organizing Drive Continues to Make a Comeback

After eight years of a very pro-union president and the most pro-labor National Labor Relations Board since the Roosevelt Administration, union membership in the United States is at an all-time low. To make matters worse for unions, in 2016, 43% of union households voted for Donald Trump despite labor leaders funneling tens of millions of their dues dollars to groups supporting Hillary Clinton.

In mid-December I discussed the success that the IBEW had with salting Aerotek. This was not a one-off event. Unions everywhere have vowed for a renewed push to do what was once commonplace: to salt non-union workplaces in an effort to rebuild union ranks. Salting is when unions plant an unofficial union organizer into a non-union company with the express purpose of unionizing the company from within. As the Society of Human Resources Management (SHRM) explains:

Salting is a union organizing tactic whereby the union pays an individual to apply for a job within a targeted company and, once the job is obtained, to begin union organizing efforts. Salts – the term used for such individuals – may be overtly direct about their intentions or may use more subtle techniques. A salt’s role I to gather information as a company insider and use it in the union organizing campaign.

Salting is perfectly legal, so employers needs to learn the different way unions salt, when to recognize its being done to their company, and ways to defend themselves against it.

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.

No Need for Union Witness During Police Interrogation with Management Present

The National Labor Relations Board held that an employer did not violate a union worker’s rights during a police investigation of the worker’s gun violence threat by not providing the worker with a union representative because the investigation was conducted by the police, not the company.

Here’s the back story: An EMT learned that the Operations Manager planned to fire the EMT’s girlfriend. The EMT responded by telling his coworker, “if things go the way they are looking, I’ll come shoot everyone here.” The concerned coworker reported these comments to management who contacted the police department seeking advice in how to respond. The police dispatched an officer to the employer’s workplace. The officer spoke with the EMT in the presence of the Operations Manager (who did not say anything). The company terminated the EMT.

Seasoned labor practitioners will know this case turns on an employee’s Weingarten rights. Weingarten rights say that an employee represented by a union has the right to request that a union representative be present during an investigatory interview which the employee reasonably believes could result in disciplinary action. The burden is on the employee to make this request.

The EMT did not request union representation during this interview. Nonetheless, the EMT was not entitled to union representation because the interview was not an “investigative interview” for which the Weingarten rights apply. Rather, the interview was a police interrogation. Not every meeting with employees constitutes an investigative interview under Weingarten, and even if an investigative interview does take place, the employee must actually request union representation to invoke his Weingarten rights.

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.