NLRB: Employers Can’t Have It Both Ways; You’re Either Union or Not

A construction company had a Section 8(a) collective bargaining agreement with the Carpenters union. Section 8(a) contracts are unique to the construction industry and allow employers to walk away from the contract when it expires. This particular contract was for three years and automatically renewed at the end of its term for another three years unless the employer informed the union, in writing, at least four months before the expiration date that the employer was terminating the agreement. A few dates are critical to this case:

  • October 18, 2011: Company sent a letter to the Union terminating the agreement
  • October 25, 2011: Union said the letter is ineffective because it was not send at least four months before the contract expired
  • February 10, 2012: Contract expiration date
  • April 3, 2012: Company invoked the agreement’s grievance procedure to compel arbitration of court claims filed by the Union for missed dues and fringe benefit payments
  • October 22, 2012: Court granted the Company’s motion to compel arbitration
  • March 23, 2015: Company did not respond to an information request by the Union
  • April 15, 2015: Union filed an unfair labor practice charge over the Company’s refusal to respond to the information request
  • April 25, 2015: Company argued that the unfair labor practice charge was untimely pursuant to Section 10(b) statute of limitations

Case law is clear: to avoid a Section 10(b) statute of limitations claim, the National Labor Relations Act requires a party to file an unfair labor practice charge within six months of the receipt of clear and unequivocal notice of total contract repudiation.

The National Labor Relations Board did not believe that the October 2011 letter terminated the contract because the Company acted inconsistently with the intent to terminate the contract when it filed a motion to compel the union to arbitrate claims in federal court. By invoking arbitration under the contract, it purportedly repudiated months earlier, the Company sent a “conflicting signal” concerning its position on the continuing validity of the contract.

I thought this was a pretty straight forward case. But, initially the administrative law judge found in favor of the Company as did Member Miscimarra in his dissent. Per Miscimarra’s dissent, the Company repudiated the contract and was not obligated to respond to the union’s request for information. Miscimarra found that the Union had clear and unequivocal notice of the Company’s repudiation no later than October 2011. To him, even if the Company’s conduct after a clear and unequivocal repudiation constituted a “conflicting signal” and prevents the six-month Section 10(b) period from running from the date of the repudiation, it was unfair and contrary to sound labor policy to treat the employer’s motion to compel arbitration such as a “conflicting signal.” You go Member Miscimarra!

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.

Teamsters Boss Arrested for Extorting Money from Chicago Film Studios

Federal authorities made secret recordings at Cinespace Chicago Film Studios as part of an investigation into a Teamsters union boss who was charged with extorting the business. Who knows whether this extortion rap will stick or if the union boss will be acquitted like the Teamsters who extorted the Top Chef program but were acquitted on a technicality.

Surveillance recordings between union head John Coli, Sr., and the alleged victim, Cinespace president Alex Pissios, were critical in charging the union with extorting $100,000 in cash from the studio which bills itself as the largest studio outside of Hollywood. Chicago Fire and Chicago PD television shows are filmed there as was the movie “Batman v. Superman: Dawn of Justice” among others.

The indictment against Coli alleges he began shaking down the studio around October 2016 when he was president of Teamsters Joint Council 25, a labor organization that represents the Teamsters Locals in Chicago and Northwest Indiana. He allegedly accepted five payoffs totaling $75,000 in 2016 and $25,000 in 2017 after using “fear of economic loss from threatened work stoppages and other labor unrest unless such cash payments were made.”

These cases are not without a wrinkle, though. According to an article in Chicago Tribune about this issue:

In the early days of the studio, its leaders counted Coli as a key ally. In a 2011 interview in the Tribune, the studio’s founder, Greek studio magnate Nick Mirkopoulos, praised Coli’s role in getting Cinespace started. ‘The Teamsters – John Coli – they were more than fair, and they play the game excellent,’ said Mirkopoulos, who died in 2013 and left Pissios to run the business. ‘We make good teammates.’

Was Coli shaking down the studio from the beginning? Was Mirkopoulos too intimidated to blow the whistle? Did Pissio stop making payments to Coli when he started running the business? It is plausible the studio paid $25,000 per year to keep Coli happy, stopped in 2013 when Pissio took over, Pissio realized it was “in his best interest” to pay $25,000 for each of 2014, 2015, and 2016 (the $75,000 paid in 2016) and $25,000 in 2017 but then turned the arrangement over to the FBI. I’m just guessing…..

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.

Newly Unionized College Adjunct Professors Cashing In with New Collective Bargaining Agreements

Over the past few years, we have seen a flurry of college adjunct professors across the country join unions. Most appear to be joining the Service Employees Industrial Union (SEIU). According to the propaganda released by researchers at the SEIU, the adjuncts are joining their union in droves:

  • In Boston, 20% of adjunct faculty at traditional private colleges were represented by a union in 2012. Now 48% have a union and 4,100 have united with SEIU alone.
  • In San Francisco Bay area, union density grew from 21% in 2012 to 71% today.
  • Nearly 40% of Chicago adjuncts are unionized, up from 25% in 2012.
  • In Minneapolis/St. Paul, there were 0 unions at private colleges in 2012. Today, 27% have a union.

And those who have joined their union are much better off for having done so. For example:

  • 63% of the SEIU Faculty Forward first contracts include pay raises of at least 20% for the lowest paid faculty.
  • 43% of contracts have pay raises of 30% or more for the lowest paid.
  • Over 70% of new SEIU Faculty Forward contracts include a professional development program worth over $550,000.

Per the SEIU researchers, “this is all just to illustrate, with numbers, a fact that has always been true, whether you are a college professor or a janitor: if you unionize, your workplace will get more than you have now, and the reason your boss does not want you to do so is because they don’t want to give you more.”

Up to you if you believe that rhetoric. But one thing is certain, the cost of a college education just skyrocketed.

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.

 

Why Teamsters were Acquitted After Menacing the “Top Chef” Crew

I remember where I was when I first blogged about this case – a hotel in San Francisco. Some things just stick with me. Perhaps I remember this because I found the actions of the Teamsters so outlandish. As outlandish as they were, they were, unfortunately, lawful – and had been since 1973.

This case arose out of events in 2014 when the Top Chef television crew was filming at a restaurant in Boston. The union used non-union vehicle drivers, but Teamsters Local 25 wanted the show to hire Teamster drivers. The show did not use Teamster drivers because it already had (non-union) employees serve as drivers.

According to Padma Lakshmi, celebrity host of Top Chef, a car in which she was a passenger tried to enter the restaurant’s parking lot to begin filming but was blocked by Teamster Local 25 members. The Teamsters “swarmed” Lakshmi’s vehicle and were “furious.” One Teamster leaned his arm into the car and said: “Lookee here, what a pretty face,” or “what a shame about that pretty face.” Lakshmi interpreted this to be a threat to her physical safety. She testified she was terrified over this, and a witnessed confirmed Lakshmi was stunned. That’s not all. The Teamsters vociferously slurred racist, misogynist, and homophobic taunts to the show’s crew while nine of the show’s production vehicles had their tires slashed.

Sounds pretty bad, right? Prosecutors agreed, and charged the Teamsters members with attempted extortion and conspiracy to extort. But, since the U.S. Supreme Court case U.S. v. Enmons (1973), this activity is lawful, and the Teamsters were acquitted. As summed up by one of the Teamsters’ lawyers, “it’s not unlawful to be mean.”

The Hobbs Act says it is illegal (criminal extortion) to threaten or use violence to obtain the property of another without consent. That is exactly what the Teamsters did here. But, Enmons, in interpreting the Hobbs Act, held that union member conduct, even if at times violent or destructive, cannot be prosecuted as criminally extortionate when that conduct was intended to further “legitimate union objectives, such as higher wages in return for genuine services that the employer seeks.” Here, Teamsters argued that their actions were intended for the lawful purpose of influencing the production company to hire Teamster drivers and to pay Teamster wages for driving services needed by the production company.

I hope this case is further appealed to the United States Supreme Court (and the Court takes it). A crime should be a crime. The Supreme Court should re-evaluate the immunity from extortionate crimes that Enmons provides 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 reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

Labor Board Tried (but Failed) to Expand Weingarten Rights to Non-Union Companies

An employee’s Weingarten rights is something that everyone dealing with a unionized workforce is familiar with. Perhaps you didn’t know the name, but you know that union employees are entitled to have a representative present during compulsory, investigatory interviews that may lead to discipline. Weingarten rights only apply to union employees. This is black letter law. The nuances can be tricky, though.

These nuances have led to a lot of litigation. For example, can the union assert representation on behalf of the employee or must the employee assert it? Does the employee get to pick the particular union representative? What if the chosen union representative is not available during times the employer wants to conduct the interview? What is the role of the union representative during the interview – is the representative an advocate or a listener? Does a violation of Weingarten rights overturn discipline administered as a result of the offending interview?

Here, two nurses received a “peer review” letter alleging that they “exhibited unprofessional conduct” as defined by the Kansas Nurse Practice Act. Each nurse was granted an opportunity to address the Peer Review Committee regarding any potential reportable incident. The letter stated this meeting would occur “only if you choose.” In lieu of appearance, the nurses could submit a written response.

Both nurses asked for union representation at the meeting. Both requests were denied. In the end, the nurses violated the Act, but the violation was so low that it was not reportable to the Nursing Board. Nonetheless, the nurses filed unfair labor practice charges and the NLRB sued the employer alleging that the nurses’ Weingarten rights were violated when they were denied representation at the meetings. On appeal, the appeals court concluded that because the employer’s letter told the nurses they could attend “if they choose” or submit a written response, attendance was not compulsory and Weingarten was not triggered.

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.