Unions Won’t Like Having to Tell Objectors All this Detail about Where Union Dues Go

In March 2017 the National Labor Relations Board found that a Teamsters local violated the National Labor Relations Act by failing to provide sufficient information about the financial expenditures of the local and its affiliates to workers who exercised their rights to object to paying union dues and fees.

Specifically, the Board ruled that the Union failed to provide adequate and detailed financial disclosures because, in addition to providing the details about the local’s own expenditures of employees’ dues, the Board ruled the local must also provide details about its affiliates’ financials resulting from the local’s “per capita tax” expenditure – that is the portion of dues money that the local shares with its affiliates. For the Teamsters, the “per capita tax” is the amount that a local of the Teamsters union pays, using a portion of each employee members’ dues money, to three affiliated entities – the Teamsters International, the Conference of Teamsters, and the Teamsters Joint Council.

Unions are now required to provide Beck objectors with the following detailed expenditure information:

The major categories of its expenditures, the percentage of each category that it considers chargeable and nonchargeable, and a detailed explanation of how it calculates its allocation of expenditures; the names of its affiliates and other entities with which it shares income from dues and fees, the amounts of income shared, the major categories of expenditures of each affiliate or other entity and the percentages of each category those affiliates and other entities consider chargeable and nonchargeable, and a detailed explanation of how the affiliates and other entities calculated their expenditure allocation.

This holding essentially means that unions will have to disclose much more detailed financial information when employees exercise their Beck rights – information that unions will likely be far more resistant and hesitant to provide. With affiliates’ expenditures coming under greater scrutiny, it also makes it more likely that Beck dues objectors will seek to have less of their money going to the unions (and their affiliates) activities. With more Americans than ever choosing to be union-free and/or choosing not to be union members, this decision places much more power with individual employees, and emboldens their protected right to refrain from union activity, a right already afforded under the Act but often glossed over by unions.

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.

NLRB Enforces Subpoena about Alleged Joint Employer Relationship with Nothing More than Mere Allegation of Joint Employer Status.

The National Labor Relations Board has denied petitions to revoke subpoenas that were issued by an NLRB Regional Director to two companies seeking information about a possible joint employer relationship between the two employers. You read that right. The two pro-labor NLRB Board Members enforced the subpoenas despite the union’s failure to articulate any facts about the joint employer allegation.

This is remarkable. The charge referred to the employers as alter egos, single employer, and joint employers, but the unfair labor practice charge did not have any additional information. Per the NLRB, the subpoenas “lie well within the scope of the Board’s broad investigative authority, which extends not only to the substantive allegations of the charge, but to ‘any matter under investigation or in question’ in the proceeding.” The NLRB continued, “nothing in Section 11 of the Act or Sec. 102.31(b) of the Board’s Rules can be read to impose a requirement that the Regional Director articulate ‘an objective factual basis’ in order to compel the production of information that is necessary to investigate a pending unfair labor practice charge.”

Once again, employers are on the losing end of the current NLRB pro-union majority Thankfully acting-chair Miscimarra sticks up for employer’s rights (albeit in dissenting opinions only). Member Miscimarra wrote that a subpoena seeking documents pertaining to an alleged joint-employer or single-employer status of a charged party “requires more…than merely stating the name of possible single or joint employers on the face of the charge.” Specifically, the General Counsel must be able to articulate “an objective factual basis supporting such an inquiry.” Member Miscimarra found the General Counsel failed to do so here.

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.

President Trump’s Proposed Budget Eliminates Union-Funding Harwood Grant

President Trump’s budget slashed the Department of Labor’s funding from $12.2 billion this year to $9.6 billion next year. This equals a 21% cut. On the chopping block is the DOL’s Susan Harwood Training Grant Program. You don’t know what the Susan Harwood Grant is? I didn’t either.

The Susan Harwood grant gives out grants to nonprofit organizations to train workers in dangerous jobs. At least that’s what it’s supposed to do. Instead, labor unions and labor-affiliated advocacy groups – think worker centers – received millions of dollars from the grant program under President Obama.

Many people think there are problems with Harwood grants. For example, Restaurant Opportunity Center (ROC), a worker center, used grant money to urge employees to take action by “working with worker advocacy organizations to find successful ways to get your rights to decent pay and safer working conditions.” Seems like a blatant plug for union organizing to me.

One question I have is whether federal tax dollar grants should be used to further union organizing efforts. Seems like the House Appropriations Committee in the 114th Congress agrees because it concluded that the Harwood grant program is “inefficient and ineffective in achieving its intended purpose.” It’s intended purpose was to train workers in dangerous jobs not organize unions in the restaurant industry.

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.

Another Day Another NLRB Decision Invalidating Arbitration Agreements

An NLRB Administrative Law Judge issued a decision against a Domino’s franchisee for violating the National Labor Relations Act. The franchisee required employees, as a condition of employment, to agree to pursue legal disputes with the restaurant owners in binding arbitration on an individual basis. Thus, the employees waived their rights to pursue class and collective legal action. We all know how this works out for the employer….

The primary question in this case was whether the company’s arbitration agreement violated the NLRA. The agreement clearly and expressly barred employees from exercising their right to pursue collective employment claims in all forums. Administrative Judge Tafe concluded that, although circuit courts generally disagree, she must apply the Board’s rationale in D.R. Horton and Murphy Oil USA to the instant case. She summarized her decision as follows:

Having found that Respondent engaged in unfair labor practices, I shall order it to cease and desist from such conduct and to take certain affirmative actions designed to effectuate the policies of the Act.

She continued that the employer must either rescind or revise the policy or make clear to employees that the arbitration agreement does not preclude them from pursuing collective actions or filing charges with the NLRB. Oh yeah, the employer must also reimburse the plaintiff for attorneys’ fees related to his opposition of the franchisee company’s request that his lawsuit be sent to arbitration.

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 New NLRB Stop Protecting Unlawful Employee Conduct?

Something is wrong when the EEOC can find an employer liable for tolerating racist or sexist remarks by employees, and the NLRB can find an employer liable for not tolerating racist or sexist remarks by employees. But that is the quandary employers are left with after eight years of watching the Obama NLRB change laws to protect unlawful employee conduct. Here are some examples that highlight this problem.

  1. Cooper Tire & Rubber locked out employees until a new contract with the union was reached. One evening, a vehicle of African American replacement workers drove by the picket line. One employee picketer shouted admittedly offensive racial insults at them. As a result, Cooper Tire terminated the offending employee for gross misconduct. The union grieved the termination. At Hearing, the ALJ found the termination to be lawful. The union appealed the ALJ’s decision. The NLRB reversed the arbitrator and said that the racist comments, while offensive, did not reasonably coerce or intimidate employees in exercising their rights protected by the NLRA. Cooper Tire has appealed the decision, which is pending before the Eighth Circuit Court of Appeals.
  2. The NLRB found a two-day suspension unlawful for an employee who grabbed his crotch and made a “mean and hateful gesture” while yelling the word “scab” at a female employee, and hitting her car mirror when she left work and crossed the picket line.
  3. The NLRB also ruled against an employer that disciplined a union employee for profane, threatening, and insubordinate conduct during a grievance hearing. That employee repeatedly used the “F” word, referred to a supervisor using an obscenity, attempted to physically intimidate the supervisor, and declared that she could curse, say anything she wanted, and do anything she wanted. The NLRB concluded that the employee’s conduct, although “obnoxious,” did not cause her to lose protection of the National Labor Relations Act.
  4. The NLRB found against a fast food sandwich shop for terminating an employee and warning another employee who hung posters in the store and nearby public places that depicted “sick” sandwich pictures and “healthy” sandwich pictures. The poster stated that since the employees did not get sick days, “We hope your immune system is ready because you are about to take the sandwich test.”
  5. An employer was found to have violated the National Labor Relations Act when it terminated an employee who posted obscene phrase about a manager and his family on Facebook.

Hopefully once President Trump has appointed (and the Senate has confirmed) NLRB Members to the two open slots, that many of the NLRB’s recent decisions that fail to recognize the legitimate business needs of employers will be replaced with ones that balance an employee’s right with an employer’s desire for safe and appropriate workplace rules.

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.

 

Stark Reminder that Non-Union Employees are Usually Allowed to Strike

On December 20, a supervisor told three non-union employees at Hyundai Motor Manufacturing that on December 22 instead of working their normal 6 AM to 2 PM shift they would work a 6:30 AM to 3 PM shift. When the schedule change was not posted, and those employees were told to stay until 3 PM, they walked off the job at 2 PM in protest.

The employees returned to work the next day and were interviewed by management. They were interviewed separately but asked identical questions including whether they talked with each other before leaving. The employees continued to work until January 11 when they were given identical termination letters that said they voluntarily resigned when they walked off the job on December 22.

The employees filed an unfair labor practice charge over their termination. The Administrative Law Judge ruled that the manner of the interviews and questions asked during the interviews were unlawfully coercive. Huh? You can’t interview employees separately anymore? Further, the ALJ ruled that the walk-off was protected concerted activity because they were protesting a term or condition of employment, i.e. a changed schedule.

This case is a lesson for all my clients and audience members at seminars who don’t believe me that non-union workers are generally allowed to walk off the job or go on strike. Hyundai’s penalty for unlawfully claiming the employees voluntarily quit their job when they walked off is to rehire them with back pay, which means paying the employees their salary, benefits, and any ancillary items for the past 16 months.

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.

“Millennial” Judges Rule Retaliatory to Stop Saying “Good Morning”

Millennials get a bad wrap – some deservedly so – for being warm-fuzzy need-encouragement-at-work kind of people. The old guard, on the other hand expect people to show up, shut up, do their job, and go home. I’m of the generation somewhere in between. But when I ran across this employment law case (sorry hardened labor professionals, I’ll have a more union-oriented post tomorrow) I had to share it with the question – is this the future of employment law?

According to the Second Circuit Court of Appeals, as evidence of retaliation against an employee who filed workplace charges against his current employer, the court credited the employee’s testimony that:

  1. The general manager “stopped saying good morning to him”
  2. His direct supervisor “spoke to him without a ‘warm welcome’ in his voice’”
  3. His direct supervisor “continually monitored him at work”
  4. His supervisors “talked to him like he was a criminal”

No commentary on the last two; they’re too vague, and frankly, depending on the facts could rise to a level of retaliation. Let’s focus on the first two.

A manager who stops saying good morning and speaking without a ‘warm welcome’ is an element of retaliation? The Appeals Court placed enough weight on those elements to include them in the analysis. What if numbers 3 and 4 did not exist, would a finding that 1 and 2 occurred be enough for hold the employer liable for retaliating against an employee? This is absurd. Would it still be retaliation if the supervisor, though refraining from saying good morning, gave the employee a trophy for showing up to work? Trophies cure all, don’t they?

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.