AFL-CIO Joins SEIU in Announcing Staff Layoffs

I recently reported that the SEIU slashed its budget by $90,000,000. Not to be outdone, the AFL-CIO is laying off a lot of workers. The AFL-CIO is dismissing dozens of staff members – both union and management – amid continuing declines in union membership. Oh yeah, they, too, are blaming President Trump and his not-yet-enacted labor laws and policies, and not-yet appointed DOL Secretary and NLRB Members for the union’s anticipated decline over the next several years.

What I found interesting was the PR spin that the unions put on the layoffs. The AFL-CIO said it was “restructuring.” The SEIU said it was “realigning our resources and streamlining our investments.” So what’s interesting about that? When one of my clients does that, and it results in the loss of union jobs, the union says the restructuring and realignment was motivated by anti-union animus and files an unfair labor practice charge with the National Labor Relations Board. Will the affected union member employees file the same charges against their union/employer? What’s good for the goose is good for the gander.

Matt Austin 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.

Striking Employee: No Need to Pay Them, But Can You Cancel Their Health Insurance?

The National Labor Relations Act is 81 years old. Nearly 70 years ago, the National Labor Relations Board confirmed that an employer has no obligation to finance a strike against itself by paying wages to employees during a strike. Relying on this, labor practitioners have routinely stopped wages, health care, and other perks of employment when employees go on strike. I know I have done this for several of my clients over the years. When done, strikers usually go on the union’s health care plan so long as they pay their premium and spend time walking the line. Is anyone surprised that the current NLRB changed the law last month and ruled that stopping health care during a strike may now be illegal?

In Hawaiian Telcom, Inc. (Feb. 2017), the two Democrat Members of the Board concluded that an employer’s right to stop benefits is a matter of contract interpretation. That is, unless the collective bargaining agreement says an employer can do it, an employer cannot do it. Specifically, in Hawaiian Telcom, the contract provided medical insurance for all employees covered by the Agreement, with no exceptions, except for termination of employment. Strikers have not terminated their employment, so the NLRB decided that medical benefits could not be stopped during the strike, even though the collective bargaining agreement had expired.

This decision adds yet another layer of complexity to negotiations. Management negotiators must be prepared to clog up a collective bargaining agreement by including extremely detailed nuances of when contract clauses apply and when they do not apply. This is bad news for both labor and management and erodes one of the tenants of the intent of the National Labor Relations Act – to provide for labor stability.

Matt Austin 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.

Will the Second Circuit Overturn the NLRB’s Surreptitious Workplace Recordings Ruling by Giving Employers a Road Map to Compliance?

Remember last year when the NLRB ruled that Whole Foods’ policy that prohibited recordings without proper authorization or the consent of the parties being recorded, was unlawful? As a reminder, Whole Foods said the purpose of the policy was to encourage open communication and to eliminate the “chilling effect” on the expression of views that may exists when an employee is concerned that his or her conversation is being secretly recorded. Conversely, the NLRB ruled that such policies have a “chilling effect” on an employee’s exercise of Section 7 rights. The Board went on to characterize covert (surreptitious) recordings as an essential element in vindicating Section 7 rights, thereby condoning and protecting that type of behavior.

Whole Foods appealed the decision to the Second Circuit. During oral argument, the judicial panel recommended adding a disclaimer to the policy that would alert employees that the policies were not intended to prohibit the recording of activities or conversations that fall within the ambit of Section 7 of the Act. Ironically, this is the precise language that management has proposed to add to several handbook policies that the Board has found unlawful. The Board has rejected the proposal every time. Could the Second Circuit finally give employers what they want by finding that disclaimer language would make an otherwise (NLRB interpreted) unlawful handbook policy lawful? Whatever the decision holds, it could have a tremendous impact on all employers, good or bad.

Matt Austin 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.

Teamsters Focuses on Organizing the Logistics Industry

This post hits close to home – like really close – since Columbus, Ohio is flush with logistics industry companies, warehouses, airports, and thousands of freight trucks. That’s what you get with “greater access to the US market within a 10-hour drive than any other major metro.” And the floundering Teamsters Union wants a piece of the action.

The Teamsters once has 2.1 million members at its peak in 1976. Then motor carrier deregulation took effect in 1980 and its membership shrunk to 1.4 million (today). Interestingly, deregulation accounted for the elimination of about 400,000 members, which means other than those, Teamster membership has stayed rather consistent for the past 40 years.

The Teamsters want to rebuild, though, and have expanded its organizing efforts to reach workers at logistics companies outside the union’s traditional niches of trucking, parcel, and airline. Its strategy will be focused primarily on transportation and the global supply chain. In other words, per one Teamster rep, the Teamster organization plans to hit companies from the supply chain’s first mile to the last.

One major challenge the Teamsters have is capturing a worker universe that is geographically dispersed and market fragmented. Thus, the union is focused on supporting workers who claim they’ve been misclassified as contractors even though they operate in a de facto manner as employees.

This movement will be interesting to watch. It comes at a time when nationalist movements in the U.S. and Europe may reshape international trade patterns and disrupt supply chains around the world. Further, the push for automation both on the road, in terms of autonomous vehicles, and in the warehouse and distribution centers put workers’ jobs in jeopardy. Could the Teamsters be chasing a dying industry? Are they about to spend millions of their members’ dollars on an industry that is unable to be organized, a la the SEIU’s botched Fight for $15 campaign? Thankfully, I’m based in the heart of the logistics industry and will have a front-row seat for the show!

Matt Austin 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.

Tesla Fights Back Against UAW Organizing Drive

A few weeks ago I mentioned that the UAW had Tesla in its crosshairs. And, as expected, it didn’t take long for Tesla to start fighting back. Tesla CEO Elon Musk recently spoke to some of his employees about the issue. First, he refuted the allegations of how unsafe the workplace is, specifically, that most employees in a specific job classification were out on medical leave at the same time due to various work-related injuries.

Next, he promised a frozen yogurt machine and an electric pod roller coaster machine. Now, those of you who follow this blog and/or regularly deal with labor relations knows that employers are not allowed to make promises of benefits to employees during a union organizing drive. Did Mr. Musk just break the law? Maybe. Maybe not. If the frozen yogurt and roller coaster machines were already in the works before the organizing drive started, he likely did not break the law. But that’s not for me to decide – I’m more curious what an electric pod roller coaster machine is….

In another ramp-up of staving off the union drive, Tesla (likely) registered domain names referencing Tesla, unions, and the UAW. I say Tesla likely registered these names because the domains use MarkMontior’s domain name privacy service – the same as Tesla (and this blog) while the UAW uses GoDaddy. Here are some of my favorite registered domains:

  • testlaunionfree.com
  • uawdestroysjobs.com
  • uawkillsjobs.com
  • uawsucks.com
  • unionfreetesla.com
  • uawrocks.com (really, Tesla?)
  • unsafetesla.com

That last name coupled with the public relations cry that workers were off sick show that the UAW has made safety a priority organizing theme. Is Tesla really that unsafe? Maybe. Do  Tesla workers need a union to make the place safer? No, that’s OSHA’s job.

Matt Austin 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.

Conflicting Evidence Means Union Wins at Hearing

The National Labor Relations Board must issue a complaint if it finds conflicting testimony during an investigation of an alleged unfair labor practice charge. When an unfair labor practice charge alleges a supervisor said or did something and the supervisor said he didn’t; that he said, she said situation is conflicting testimony that can generally only be resolved by an administrative law judge after a hearing. The judge weighs the testimony of both sides, decides which side is more credible, and makes a determination of which side wins. But now it appears that conflicting evidence alone is enough to find against an employer and declare the union the winner without having a hearing.

In 2011 a management company was hired to manage a hotel. At that time, the housekeeping functions had been outsourced to a staffing company. The management company terminated the contract with the staffing company and brought the housekeeping function in-house. Shortly thereafter, the housekeeping effectiveness waned to an all-time low (based on performance metrics). The management company outsourced housekeeping to the staffing company. So where does the conflicting testimony come in?

At the time the management company decided to outsource the housekeeping functions, hotel employees had just started a union organizing drive. The union (and the NLRB) alleged that the outsourcing was motivated by anti-union animus. The management company argued that to prove it, the Board must produce evidence that the discrimination “in fact caused or resulted in a discouragement of union membership.” The Fifth Circuit ruled that the NLRB “need not prove discouragement as a matter of fact.”

The Fifth Circuit noted that the NLRB relied on evidence of two union-related conversations between housekeepers and Hotel supervisors prior to the outsourcing decision, as well as the statement of another supervisor that the outsourcing decision was “because of the union.” Together these constituted substantial evidence of an unlawful motive. Stating that it must pay “special deference” to the NLRB’s resolution of conflicting evidence, the court upheld the NLRB’s order.

And so it is: conflicting evidence is enough to find illegal motivation and rule against an employer.

Matt Austin 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.

2016 Work Stoppages Tell a Funny Tale

In 2016, there were 15 major work stoppages, defined as either a strike or a lock out. This is an increase from 12 major work stoppages in 2015. These stoppages involved 99,000 workers (the most since 2012) and resulted in 1,543,000 days idle (the most since 2008).

In summary, there were more stoppages, involving more workers, and more missed workdays. So why is this funny? Because last year also saw a record low number of workers in unions. This confirms what I have been telling my clients and audiences – while union density is shrinking, the remaining union supporters are aggressive. Unions are agitating more than before; they are “working to rule” more than before; they are more confrontational than before, and the laws protect unions more than ever before. Labor unions know their backs are against the wall. They dusted off their playbooks from the strike-heavy 1970s.

Companies: Now is not the time for complacency. Are you prepared for a walk-out? Can you operate during even a short term strike? Do you have a strike contingency plan?

Matt Austin 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.