Decertificatoin of Forced Dues Paying Employees Delayed by Bogus Election Lists

Minnesota Democratic Gov. Mark Dayton received thousands of signatures from union members seeking to end one of the largest bargaining units in history. The Service Employees International Union (SEIU) formed the bargaining unit in 2014 after claiming to have organized 27,000 people who are registered as Personal Care Assistants.

The PCAs were not traditional employees, so the decertification campaign had to collect signatures across the whole state. Many PCAs were just people who worked in homes to help people collecting Medicaid.

The decertification campaign originally canvassed the state to show enough PCAs wanted to hold a decertification vote. The membership list that the state provided was completely inaccurate. The addresses listed led to empty lots and homes with residents that did not match the name provided.

The campaign petitioned the state to investigate whether the original union election was fraudulent. But, the state did little to help, which raised suspicions it was trying to help the union.

Campaign attorney Doug Seaton went to court to demand the state provide an accurate membership list. The union and state stonewalled but eventually were forced to abide. The second list was inaccurate too. Ultimately, the decertification campaign had three lists that were completely different from one another. The union members continue to try to collect signature to decertify a union they never wanted to join in the first place.

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) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

Another Company That Won a Union Election Forced into Re-Election

I don’t disagree with the law: an employer’s initial success in opposing a union organizing effort is unlawful if there were threats of job loss by management shortly before the vote. I do, however, disagree with what the NLRB determined were unlawful statements by the Company.

Here, the employees voted 73-118 to remain union-free. This is a pretty large margin as far as union representation elections go. But, that margin will be tested in another representation election based solely on the comments made by a safety manager.

The safety manager told workers that he would enforce tardiness and other rules more strictly if they opted for union representation. This comment was made at a mandatory meeting attended by employees who would vote in the election. The administrative law judge and the NLRB found that this comment violated the National Labor Relations Act. The penalty for this isolated comment: a re-do election.

Not surprisingly, I would not find the safety manager’s comment unlawful. A truthful comment cannot be an unlawful comment. The comment that tardiness rules would be more strictly enforced is a truthful comment. Without a union, managers have tremendous discretion in how they apply work rules. This manager chose to be lax on tardiness rules. With a union, managers must strictly follow the clauses of a collective bargaining agreement; they cannot be lax when following tardiness or other rules. For the safety manager to say he would follow the tardiness rules of a collective bargaining agreement more strictly than non-union work rules is a truthful statement and should not have resulted in a subsequent election.

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) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

There is an Art to Decertifying Unions and This Company Should Learn It

If at first you don’t succeed, try, try (and since you failed on your third try, you’ll have to) try again.

Here, a majority of employees filed a decertification petition in 2009. That petition failed. The employees tried again in 2011. That petition failed, too, because the Company unlawfully assisted the decertification.

On the third attempt, the Company mounted an anti-union campaign where threatened employees’ jobs and threaten closure if the workers did not decertify the union. The Company also installed cameras to conduct surveillance of employees’ union activities and encouraged them to report on such activities by co-workers. The Company also banned union representatives from the premises despite a collective bargaining agreement that permitted such visits. Needless to say, the NLRB found these efforts to be done with anti-union animus. Anti-union animus precludes decertification.

Without a doubt, the Region and the Board would find these acts were done with anti-union animus. But we have appeal rights. On appeal, the majority of the 8th Circuit also found anti-union animus with one judge dissenting. The dissenting judge said that the board and court misinterpreted or mischaracterized the company’s actions as unlawful threats and promises of benefits if employees decertified their union.

For example, executives’ statements that “we can’t survive” or “we can’t meet or beat the competition” were not threats because they were not predictions of a precise effect. Rather, the statements were opinions as to the potential economic repercussions that might accompany union retention.

Perhaps the newly constituted NLRB will agree with the dissenting judging in the coming years. Until then, the Company should seek and then follow its counsel’s advice on how to carry that decertification football across the goal line.

*I did not represent the Company but know labor lawyers in the firm that did represent it are competent at the laws of decertification and anti-union animus.

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) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

 

Union Unnecessarily Strikes for Better Healthcare

Thirty truck drivers and warehousemen represented by the Teamsters Union at Independent Pipe and Supply Corp. in Canton, Ohio stopped working for 60 days. The strike, as usual, necessitated regular police detail. The Canton police responded to more than a dozen disputes and disturbances at the picket line and charged five individuals with crimes ranging from disorderly conduct to assault and battery.

The workers receive $25.56 per hour plus $5.69 per hour in pension contributions. Prior to the strike, the Company proposed a $0.70 per hour wage increase and increases in the pension contribution. Notably, the Company also proposed to maintain the workers’ current health insurance plan (the same one the rest of the company is on), continue to pay 85% of the premium for that plan, and provide dental and vision benefits. This wasn’t enough.

The Union insisted that the Company provide health insurance through the Union’s health and welfare fund and pay family plan premiums for all employees even for employees who do not select a family plan. The Teamsters officials maintained that the Company’s healthcare proposal was not acceptable, and went on strike in an effort to force the Company to agree to the Union’s exorbitant and pricy healthcare proposal.

This reiterates that Unions will strike over anything, oftentimes silly things, and sometimes just to harm a Company instead of gain anything for their membership. Here, the workers made a good wage and had good healthcare, but unfortunately that wasn’t enough for the Teamsters.

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) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

Attention All Veterinarians: Unions Are Coming After Your Workers

The National Veterinary Professionals Union recently filed papers with the National Labor Relations Board in an effort to become an officially recognized union. The stated role of the NVPU is to collectively bargain and negotiate for better wages and benefits, safer working conditions, and more workplace support for employee veterinarians, veterinary technicians, unlicensed assistants, client-care coordinators, reception staff, and other unlicensed assistive personnel.

Unions are not unheard of in the veterinary medicine space. Some private clinics, universities, and research settings already have unions. For example, the American Society for the Prevention of Cruelty to Animals has a relationship with a local organization representing ASPCA veterinarians at its Animal Hospital and Adoption Center in New York City. In 2004, some employees at an emergency veterinary hospital in Pennsylvania voted to unionize for better working conditions. Oddly, though, after organizing, they went on strike and the union stopped representing the workers.

The creation of the NVPU is unique because it is specifically targeting all employees of every veterinary clinic. The NVPU appears to be headquartered in the state of Washington and plans to work its way east. For all Midwest and east coast vets, you should prepare now for the onslaught of union organizing activity heading your way.

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) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

Unions Failing Members: Wage Increases Dwindling

Every union organizing campaign promises increased wages. Regardless what employee currently make or that they sought out union representation to improve safety conditions at their workplace, every union organizer promises increased wages to offset union initiation fees and monthly dues. It’s. Just. That. Simple.

What do unions do when data shows that they are not getting wage increases for their members? Out of the 490 union contracts that the Bureau of National Affairs tracks, 2017 has thus far yielded a lower first year monetary increase (wages and lump sum payments) than in 2016. Another bad trend for unions is the increasing use of lump sum payments instead of wage increases. For example, ContiTech and the Steelworkers recently ratified a contract where the employees received a $1,500 signing bonus but no raise beyond a cost of living adjustment for the next 5 years.

Will the unionized ContiTech workers be in a better financial place in 5 years with a one-time $1,500 signing bonus or a 3% per year wage increase? The $1,500 equates to $300 per contract year, or $0.15 per hour (assuming 2,000 work hours). Conversely, if ContiTech employees earn $20 per hour, a 3% wage increase for the next 5 years would result in a lot more than $0.15 per hour.   

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) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

Beginning of the End for Default Language in NLRB Informal Settlement Agreements?

After a union files an unfair labor practice charge, the charge is investigated by the National Labor Relations Board. If the Board believes the company violated the National Labor Relations Act, the Board will seek a settlement before filing a complaint against the company. Those settlements are called “informal settlements” and must be posted for (generally) 60 days in an area commonly frequented by employees. Many companies choose to settle cases they would win if litigated because they do not have the resources to litigate. Informal settlements are in no way admissions of wrongdoing, and such is explicitly stated in the settlement agreement.

A few years ago, the Board appointed by the-President Obama required certain language in all informal settlements saying that if the company breaches the settlement agreement, the Board’s General Counsel may reopen the settled case and move for default judgment. The employer loses the right to litigate the underlying issues it settled and can litigate only whether it breached the settlement agreement. I have never liked this “default language.”

Neither did the employer in Outokumpu Stainless USA. After entering into an informal settlement agreement and posting the agreement for all employees to see, he posted a letter next to the agreement that criticized the union for filing the charges and emphasized that the Board did not find the company guilty of the alleged violations. The Board ruled that the employer’s posting undermined the authority of the Board and breached the settlement agreement.

Thankfully Miscimarra dissented, and his dissent may foreshadow the direction the Board is heading regarding default language in informal settlement agreements. Miscimarra found that the letter did not breach the settlement agreement because the agreement did not prohibit the side letter. He would, however, set aside the settlement agreement because the side letter detracted from the purpose of the notice, but he would not invoke the default judgment provisions and would give the employer an opportunity to defend itself against the underlying unfair labor practice charges.

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) 614-843-3041 or emailing him at Matt@MattAustinLaborLaw.com.