Austin Legal Labor Relations Newsletter #5

Welcome to The Labor Leader – a weekly recap of the most valuable content on labor relations from an employer’s perspective. The National Labor Relations Act covers both union and non-union private-sector employers. This newsletter is a digest of my views on labor laws, the National Labor Relations Board, and unions.

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NLRB Protects Workers Regardless of their Immigration Status

Excellent summary with links to Dept of Homeland Security new policy to defer actions against immigrants if they file charges with the NLRB over alleged workplace violations of the National Labor Relations Act. The NLRB is indifferent to whether workers are in the US legally.

Click here for details from Associated Builders and Contractors Central Ohio Chapter

Should the Federal Government Insert itself in Labor Negotiations Between Private Companies and their Employees

President Biden, self-proclaimed “most pro-union president ever” participated in the labor negotiations for the railway industry.

He took credit for stopping a potential national freight rail strike.

A strike between the private rail companies and their employees, in theory, could have severely crippled the U.S. economy.

Secretary of Labor, Marty Walsh, a former union leader, has now inserted himself in labor negotiations between West Coast Port operators and the union representing their employees.

Again, in theory, a strike at the ports could severely cripple the U.S. economy.

But, per Sec. Walsh, a strike does not seem imminent. And some shippers have already re-routed their cargo to other U.S. ports.

Several more big labor contracts will be renegotiated in 2023 affecting over half a million employees.

• UPS (250k)
• Movie/TV Producers (150k)
• Big 3 Auto makers (150k)
• Kaiser Permanente (75k).

No telling if the federal government will insert itself into these negotiations.

I’m not sure how I feel about the government’s participation in negotiations between private employers and their employees.

Part of me thinks its good that deals were struck, strikes averted, and the economy did not shut down.

Part of me thinks government should not intrude because of its implied power to strong-arm a deal. Everyone knows where the allegiance of Biden and Walsh lies. I would feel the same if it was a pro-company President and Secretary of Labor.

Part of me thinks the threat needs to be big enough and imminent enough to justify stepping in. Perhaps air, rail, and freight should follow the healthcare rules: a few days notice before striking. That would satisfy the “imminent enough” prong to justify stepping in.

 

NLRB Must Prove Irreparable Harm when Seeking Injunctions

There are several reasons why a company can lawfully refuse to bargain with a union.

When unions file unfair labor practice charges against companies for refusing to bargain, the NLRB can seek an injunction in federal district court to force the company to bargain during the investigation of the unfair labor practice charge.

Injunctions can be used in discipline, termination, and other charges, too.

This puts the cart before the horse, in my opinion. It forces a company to bargain while determining whether the company must bargain.

And companies must bargain in good faith which includes turning over documents and information that unions are not entitled to have unless they are engaged in bargaining.

To succeed on getting the injunction, the NLRB must prove two things:

• Likelihood of success on the unfair labor practice charge; and
• The union will face irreparable harm if an injunction is not ordered.

This is a high hurdle to meet. And federal district courts don’t always get it right.

For example, one judge recently found likelihood of success on the merits and then assumed that the union would face irreparable harm if the parties did not immediately start to bargain.

You know what happens when you assume….

On appeal, the Ninth Circuit held that the NLRB did not prove irreparable harm.

Did the company bargain while the case was appealed from the District court to the Circuit court? Did the union get information and documents it wasn’t entitled to receive?

While seeking an injunction is not common, if done, it can be a powerful tool against companies.

The NLRB in increasingly using injunctions when investigating charges. The increase looks like this:

• 2020 – 8 times
• 2021 – 14 times
• 2022 – 21 times

This case is an important reminder for companies facing unfair labor practice charges. Take the time necessary in your position statements to fully flush out why a 10(j) injunction is not necessary.

 

OSHA Soon to Allow Anyone to Tag Along during Inspections

OSHA plans to allow worker advocates like unions and “community members” to tag along during OSHA inspections – even if the employees are not in a union.

While most people know me as an attorney who defends companies from unions. I also deal with OSHA. A lot.

You would be surprised to know how often a safety guard goes missing from a machine, or any number of other OSHA violations just magically appear, when employees are embattled in a union organizing campaign.

I remember this rule from 2013.

I remember employers being concerned about allowing strangers into their facilities for OSHA inspections.

An OSHA inspection can get into the nitty gritty of an operation. It oftentimes exposes a company’s trade secrets. It’s research and development. It’s confidential, competitive advantages.

When a union or “community member” tags along for an OSHA inspection of a manufacturer, that person could see and learn:

• What machines the company has
• Proprietary processes for production
• Current work being performed
• Customer list
• And more….

Each industry has its own, unique twist to the trade secrets that could be exposed during a routine OSHA inspection.

OSHA is onsite to inspect the workplace for violations of the OSH Act.

The inspector is qualified to complete that mission without the assistance of someone from the Local Union that has no affiliation with the employer, no OSHA training, no industry knowledge, and does not even represent the employees.

And opening the door to any “community member” to shadow the inspector is riddled with opportunities for corruption.

Allowing unions and “community members” a backdoor, all access pass into a company’s private property in no way helps the inspector determine if there is a violation of the OSH Act.

 

Educating Cannabis Employees that Unions are Not the Answer to Workplace Issues

Excepts from Guest Post by Mitchell Osak

Beware of the false promise of cannabis unions.

This is a trigger warning for the poorly treated worker (I sympathize), the perpetual victim (grow up) and the unrequited Marxist (visit Venezuela).

Unions are aggressively trying to organize cannabis firms. Not surprisingly, they are enjoying some success. Some executives are not exactly poster children for enlightened management nor is the sector known for being high payers or having vibrant cultures.

Still, unionization is not the panacea for these ills.

A high percentage of cannabis firms (including hundreds of highly leveraged small businesses) are unprofitable. Blaming industry travails on management is a soothing balm but it doesn’t diminish a company’s financial vulnerability and the tens of thousands of jobs that are at risk. These businesses can ill afford the higher wages that come with a union.

Furthermore, firms continue to struggle with getting their operating cadence right.  Union-imposed and restrictive work practices will reduce operational flexibility & agility and potentially worsen labor relations.

A good case can also be made that unions act first in their interests (e.g., political and cause-related donations) before that of the employee and certainly not the industry. And the irony of inviting in certain unions to a sector looking to distance itself from organized crime is not lost on many people.

Union organizing efforts are getting more media coverage, often against the backdrop of legitimate worker gripes and investor shenanigans. However, the issue is not always framed in a balanced and nuanced fashion.

Companies should obey the law and treat their employees fairly. This includes competitive pay. And don’t be a sweatshop.

Some cannabis companies employ hundreds of workers in small rural towns. In an over-built industry experiencing margin compression, we should not take for granted that their leadership has not explored selling its assets or leaving cultivation altogether. Becoming a union shop could force their hand.

2023 is not 1923.  Let’s consider this issue honestly and sensibly.

For content like this, sign up for my free newsletter, the Cannabis Management Review, on Substack.

 

Right to Work Tennessee Sees Fastest Growing Union Membership in US

Out of all 50 states, union membership has grown the fastest in the past two years in this right to work state:

Tennessee.

Government employees, building trades, and autoworkers union membership grew in Tennessee by more than 39% from the pandemic low in 2020. But that’s not the only place membership has grown.

Despite its rapid union membership growth, only 5.5% of all workers across Tennessee are in a union.

By comparison, over 20% of employees in Hawaii and New York are in a union.

Union growth in Tennessee is occurring even though Tennessee is a right-to-work state where employees have the option to not join a union at their workplace.

I’m not surprised by this trend.

Current unionization activities are being driven by younger employees in traditionally non-union industries like hospitality, the arts, and entertainment.

And Tennessee – especially Nashville – has all of that.

**On an aside, Tennessee also has the Tennessee Titans and its one-day-sure-to-be-in-the-Hall-of-Fame head coach, and my classmate from both Walsh Jesuit High School and The Ohio State University, Mike Vrabel.

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Matt Austin is a nationwide management labor lawyer. Labor laws govern virtually all private-sector employees regardless of union membership. Proactive management of labor relations is critical to maintaining flexibility and increasing profit.

Matt also runs Austin Legal’s HR Legal Compliance Program that, for a small monthly fee, ensures HR decisions are protected by the attorney-client privilege.

Matt’s experience is deeply rooted in helping manage many aspects of his clients’ businesses. To effectively manage labor relations, he must also manage budgets, forecasts, new growth areas, and projected market corrections. High emotional intelligence is also critical to negotiating union contracts and to properly advise HR Legal Compliance members through the nuances of the law, its application to their companies, and how it will be received by employees.

You can reach Matt via email at Matt@MattAustinLaborLaw.com.