Jersey City’s PLA Ordinance Preempted by NLRA

A Project Labor Agreement requires all construction companies working on a specific project to sign a union contract before being allowed to work on a project. Union companies are already signatory to union contracts, so they suffer no effect. Conversely, non-union companies are essentially required to “become union” for that particular job.

 

Jersey City, New Jersey passed an overtly pro-union city ordinance providing tax abatements to real estate developers that sign Project Labor Agreements (PLAs). Developers who did not sign PLAs, or who developed land using non-union labor, did not receive any tax abatements.

 

Non-union construction contractors claimed that the PLA ordinance effectively set 100% of the tax abatement project work aside for union workforces which made up only 15% of the construction industry. In turn, this drove up construction costs which Jersey City taxpayers had to bear in the form of tax abatements.

 

This PLA was stricken as unlawful. Note to all members of Associated Builders and Contractors and merit-shop construction companies, don’t blindly sign a PLA just to get work. Read it. Understand it. Ensure it is lawful before agreeing to it.

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 reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

A Positively Positive Court Ruling Overruling a Positively Awful NLRB Ruling

T-Mobile had a handbook that asked employees to be professional and maintain a “positive work environment.” The NLRB found that phrase unlawful because “employees would reasonably construe the rule to restrict potentially controversial or contentious communication and discussions, including those protected by Section 7 of the [NLRA], out of fear that the [employer] would deem them to be inconsistent with a ‘positive work environment.’”

 

Thankfully, the Fifth Circuit declared that the NLRB’s ruling on the policy was “unreasonable” because any reasonable employee would understand that the rule did not prevent the employee from engaging in protected activity.

 

Of course, this is the same Fifth Circuit that invalidated the NLRB’s position that mandatory arbitration agreements are unlawful, but the NLRB continues to thumb its nose at the Court and find them unlawful. I sure hope the NLRB’s attack on handbooks policies that have nothing to do with an employee’s Section 7 rights stops once President Trump’s Board is fully seated.

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 reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

Today’s Reminder that Documenting Poor Behavior is Critically Important

A Burger King franchise was sold. The new owner hired most of the old company’s employees. One employee not hired was a union organizer who was involved in the Fight for $15 campaign. It is illegal to not hire a known union organizer because of that employee’s union organizing activity.

At trial, the employer’s manager, the new company did not hire the organizer because he was insubordinate, refused to work certain shifts, stole food, and often reported to work late. The judge did not believe the manager’s testimony because  she failed to document the tardies, failed to document the refusal to work certain shifts, and failed to report any of the alleged bad behavior to human resources.

The manager allegedly did document the poor performance “for awhile,” but stopped because she “never received a response.” To all managers out there – document to cover you own a&# even if HR doesn’t do anything about it. To all HR personnel out there – respond to managers’ reports of poor performance. Here, both sides are guilty of dropping the ball while the unsuspecting business owner is left footing the bill.

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 reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

Former NLRB Chairman Speaks for Businesses when He Yearns for Better Days at the Board

As many followers of this blog know, the National Labor Relations Board is supposed to have 5 members on it: two representing management, two representing labor, and one from the sitting President’s party. President Trump’s Republican party generally skews pro-management. So, once his nominations are confirmed, the NLRB should consist of a 3-2 pro-company majority.

 

Former 8-year Board Member, Peter Schaumber yearns for the return of a Board that follows the law when deciding labor law cases. This would be a stark contrast to President Obama’s Board which is widely criticized as overstepping its bounds when making decision-based rulings.

 

Per Schaumber, “It wasn’t just a pendulum going back and forth. They went outside the schoolyard.” He doesn’t necessarily demand the Trump Board overturn the previous Board’s rulings, be he would like them “revisit it to balance it because of [its] damaging impact.” This reminds me of when Congress enacted the 1947 Taft-Hartley Act which revisited the 1935 National Labor Relations Act because the original version of the Act tilted also too far in favor of labor.

 

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 reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

Union Sues Member for $24,000 for Crossing Picket Line and Reporting to Work

In 2016, 40,000 Verizon workers walked off the job and went on strike during contract negotiations. The Communications Workers of America union spent 6 weeks on strike. After the strike ended, the CWA sued one worker who, kept working during the strike. According to the lawsuit, that employee “continued to work throughout the strike and earned considerable compensation including regular time compensation, overtime compensation, incentive compensation, and health care and other benefits.”

Per the union’s Constitution, it held its own trial where a jury of her brotherhood ruled that she owed the CWA over $24,000. Since she refuses to pay the penalty, the union filed suit asking a real federal court to uphold the fine imposed by the union’s kangaroo court.

All of this because an employee wanted to work.

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 reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com. 

 

NYC is Passing Outrageous Laws that Benefit Unions

Car Wash Licenses Cost Ten Times as Much for Non-Union Companies

Local Law 62 was passed by the City Council and signed by Mayor de Blasio in 2015 during a period of intense labor organizing among the city’s roughly 150 car wash companies, many of which are staffed by immigrant, non-union workers. The law made it illegal to operate car wash without a license and gave financial incentives to car wash companies that employed union workers. To get a license, companies need to post a bond which was a guarantee of solvency to cover workers’ wages. Companies whose employees were represented by a union posted a $30,000 bond. Companies whose employees were not represented by a union posted a $150,000 bond.

Thankfully, a federal judge shot down Local Law 62 because it “explicitly encourages unionization” and imposed an unfair burden on car wash companies where workers were not part of organized labor.”

This reminds of the inflated minimum wage laws that have spread across the country in cities like Los Angeles, Milwaukee, and Washington D.C. Those laws have two sets of minimum wages: a minimum wage for union employees and a higher minimum wage for non-union employees. The goal for those laws is to make unionization the less expensive way to do business.  in Los Angeles:

Fast Food Workers Can Payroll Deduct Donations to a Charity of their Choice

New York City Council approved a bill allowing fast-food employers to withhold up to $12 per month from a worker’s paycheck and remit that amount to the “non-profit organization” of the employee’s choice. The purpose of this legislation, per Council Member Julissa Ferreras-Copeland (D-Queens) is “to make it easier for employees to support advocacy organizations working on their behalf.”

While the bill expressly states that money collected is not to go to a union, it likewise expressly states that the money can be funneled to Fight for $15. This is clever. If all fast food workers made the maximum contribution, the SEIU (who thus far has spent $90 million on the failed Fight for $15 campaign) stands to receive over $9 million per year in “contributions.”

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 reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com. 

Difference between Employee and Non-Employee Off-Duty Access Policies

The NLRB and courts recognize that off-duty employees have greater rights than non-employees when it comes to accessing the employer’s property to engage in protected activity.

The NLRB applies a three-part test to determine if an employer’s off-duty access policy is valid under the National Labor Relations Act. An off-duty access policy is valid only if it: 1) limits access solely to the interior of the facility and other working areas; 2) is clearly disseminated to all employees; and 3) applies to off-duty employees seeking access to the facility for any purpose and not just to those engaging in union activity. In essence, employers may not maintain a rule or prohibit off-duty employees from accessing the exterior areas or other non-working areas of the employer’s premises.

The current NLRB will find that simply maintaining an overly broad off-duty access rule is unlawful. For example, off-duty employees distributed union pamphlets advocating for pay raises to other employees and customers just outside the main entrance of a store. The manager told the employees to leave, they did not leave nor were they disciplined for not leaving. The company had a long-standing policy prohibiting employees from loitering or “hanging out” around the company’s premises when off-duty. This policy prohibiting off-duty employees from hanging out in all areas of the employer’s premises was unlawful.

NLRB Chairman Miscimarra argued in his dissent that in evaluating work rules, the NLRB should place more emphasis on how a rule is actually applied compared to the more amorphous standard of how employees may “reasonably construe” a rule. Miscimarra is currently in the minority of the Board. As new Board members are appointed, the NLRB’s position on access rules and many other controversial issues may change.

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 reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.