Are Unions Regrouping, Planning for Post-Trump NLRB?

Surprisingly, most unions were slow in reacting over the past several years to the pro-union NLRB. It seemed as if unions were content on allowing the NLRB to do their heavy lifting. I fully expected unions to file more unfair labor practice charges (since the Board rarely found in favor of an employer), more petitions for elections (since unions win a greater percent of elections post-ambush election rules), and an overall increase in general union agitation against employers (since the NLRB seemed to condone whatever antics unions pulled). But, alas, what I saw was unions calling the same plays from their tired playbook.

 

Then I came across an article written by a pro-union person that said, “The next few years will demonstrate why unions tend to view the NLRB as a hopeless venue for workers’ rights and a place where organizing campaigns go to die.” According to him, “There is a macho component to labor’s preference to organize and bargain without appealing” to NLRB intervention. Unions, if you want to survive, stop being like the men on the Titanic – ask them about machismo – oh wait, you can’t, they went down with the ship.

 

Unions need the NLRB in order to thrive, and they do themselves no favors by not taking the Board seriously. As someone who represents companies, I assure you that my side spent the last 8 years honing our agenda for a post-Obama NLRB. Unions many never have such a staunchly pro-union NLRB, Congress, and White House again. But if you do, are you prepared to advocate for a resumption of equal time captive audience meetings, a prohibition on replacement workers, card check, and many of former union initiatives that you failed to put before the Obama-NLRB?

 

Unions and their allies should be convening research teams to plot out a campaign of regulatory and judicial activism. But, it doesn’t appear that such grassroots work is being done yet. Instead, they’re content being 6-months into Trump’s presidency and having the pro-union majority Obama-NLRB continuing to do the unions’ heavy dirty 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 

UAW Wins Right to Organize College Resident Advisers, Cancels Election to Avoid Loss

Organized labor has been on a crusade to organize all facets of higher education. The NLRB has granted unions the right to organize adjunct professors, graduate assistants, and Division I scholarship athletes. These wins have been controversial but successful for unions. You can now add to that list Resident Advisors.

The Regional Director of the Baltimore Office of the National Labor Relations Board accepted the union’s argument that resident advisors are technically university employees because they receive compensation in the form of a stipend and free housing. That RD relied on the decision granting graduate assistants the right to organize when concluding resident advisors had the right to form and join a union. This paved the way for the SEIU to proceed to a union election of resident advisors at George Washington University.

Instead of proceeding to an election, though, the SEIU withdrew its petition to organize the RAs. Ironically, the union blamed the ambush election rules for why it canceled the election. “We had only 5 days in which to ensure participation of RAs in this democratic process, and those 5 days happened to be in the middle of your exams,” said the union’s Director of Research and Planning. Canceling the vote was a shock to the student organizing committee who tweeted:

It I with great frustration that we received news at 5:15 pm this evening that SEIU Local 500 made the executive decision to cancel the election for tomorrow. We were not consulted in this decision and are upset that RAs will not have the opportunity to express their favor or disfavor for unionization. We do not agree with the decision to pull the vote.

We currently are trying to make sense of SEIU’s choice to pull the election, as it adds to the confusion that many of you have expressed during this long process.

I can appreciate the RAs confusion – mostly because they were wrapped up in the process and not explained the rationale behind the SEIU’s decision to cancel the vote. Unions cancel votes for representation because of one reason: they believe they will lose.

After all the of the hard work, grass roots organizing, NLRB hearings, etc., the SEIU turned its back on the college kids at George Washington University instead of risk publicly losing the election. While losing an election is embarrassing enough for a union, what the RAs didn’t know, is that the loss becomes a permanent blight on the union’s scorecard and the union is prohibited from trying to organize the same group of students for at least one calendar year. In other words, cancelling the election gives the union more time to garner more pro-union votes.

This brings me back to the little nugget largely overlooked by others in this story: the SEIU blamed the newish quickie / ambush election rules for why it did not have enough votes to win the election. The union needed more time to get more pro-union votes. This is the exact argument unions eschewed when made by employers seeking to halt the ambush election rules before they went into effect.

This should serve as a reminder to all unions: be careful what you wish for.

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.

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.

AFL-CIO Joins SEIU in Announcing Staff Layoffs

I recently reported that the SEIU slashed its budget by $90,000,000. Not to be outdone, the AFL-CIO is laying off a lot of workers. The AFL-CIO is dismissing dozens of staff members – both union and management – amid continuing declines in union membership. Oh yeah, they, too, are blaming President Trump and his not-yet-enacted labor laws and policies, and not-yet appointed DOL Secretary and NLRB Members for the union’s anticipated decline over the next several years.

What I found interesting was the PR spin that the unions put on the layoffs. The AFL-CIO said it was “restructuring.” The SEIU said it was “realigning our resources and streamlining our investments.” So what’s interesting about that? When one of my clients does that, and it results in the loss of union jobs, the union says the restructuring and realignment was motivated by anti-union animus and files an unfair labor practice charge with the National Labor Relations Board. Will the affected union member employees file the same charges against their union/employer? What’s good for the goose is good for the gander.

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.