NLRB Unanimously Ruled Employee Conduct Lost Protection from the Act

The outcome of this case surprised me because the NLRB has previously found less egregious activity to be protected by the National Labor Relations Act. A union represented nurses at a hospital. The hospital and nurses’ union were negotiating a collective bargaining agreement. Negotiations became somewhat ugly. This caused the employer to cancel a bargaining session and the union employees to agitate against the employer.

When one nurse saw the employer conducting a tour of its hospital for managers and staff from a sister facility she started screaming and demanding to know “who the visitors were and why were they there.” When the employer did not respond, she started asking the visitors directly why were they allowed to visit her hospital when she was barred from visiting their facility (she and a union official previously attempted to visit the sister facility and were denied access). Still receiving no response, the nurse “again asked what the visitors were doing at the hospital, asked one particular visitor how many orientations he needed, and pointed out, sarcastically, ‘here’s the hallway, here’s the window…’”

When the tour wound down in the parking lot, the nurse approached the group, pointed at the leader of the tour and said “this one don’t do sh&t. She ain’t sh$t! She walks around here with an air…I am going to get you the f*ck out of here.” The employer terminated the nurse for unprofessional conduct.

As the NLRB Regional Offices are prone to do, it argued that her termination was motivated by her protected activity. The case went to trial where the Administrative Law Judge ruled that the motivating factor for the discharge was an independent set of circumstances completely divorced from any union or other protected activity – her unprovoked misconduct that interfered with a legitimate tour group. Here’s the kicker, on appeal, the NLRB upheld the ALJ’s decision.

I fully expected the NLRB to rule that the nurse’s behavior towards the tour group was protected concerted activity. I am glad I was wrong. Had the nurse used profanity towards a manager while expressing a legitimate workplace grievance and no outside visitors, customers, or clients were present, her conduct would be protected. Instead, the nurse aimed her antics at a tour group, visitors who were not involved in any workplace dispute, with the sole objective to vex the employer. According to the ALJ:

The tour and its aftermath were not an invitation for her to interfere with the tour so as to turn those acts of interference into protected activity. At best, [the nurse’s] testimony shows that in her mind, she perceived the tour as somehow related to her union activity. But protected activity must be based on objective fact, not subjective perceptions of the party or witness making the claim.

Pro tip to employers: while it certainly feels that employees are able to do whatever they want against an employer these days, don’t just assume a union employee’s activities are protected even during bargaining season. Close scrutiny should be paid to the facts before determining whether the activity was protected, whether it was protected but lost the protection, or whether it was never protected. Once that is determined, you should take appropriate action.

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.

Will the Disastrous Micro-Unit become Extinct?

The NLRB’s Regional Director recently approved a bargaining unit consisting of only warehouse workers (the unit sought by the union) and rejecting the employer’s contention that the unit should include the production employees in the plant as well as the production employees working in the employer’s plant across the street.

This bifurcation of the workers is permissible because of a case called Specialty Healthcare. That case is arguably the most significant decision issued by the Obama NLRB because it virtually guarantees that whatever ready-made bargaining unit the union wants to organize the union will be allowed to organize. If the group of employees sought by the union is identifiable, then the only way the employer can prove that a larger unit was appropriate is to establish the employees it seeks to add shared an “overwhelming community of interest” with the group of employees handpicked by the union. The word “overwhelming” has allowed the NLRB to deny most every employer’s request for a larger bargaining unit. (Larger bargaining units are more difficult for unions or organize, i.e. it is easier for unions to convince 3 out of 5 employees to vote for a union than 30 out of 50 or 300 out of 500).

NLRB Chairman Miscimarra (who remains the lone pro-business Board Member and thus in the minority) issued a dissent signaling his desire to overturn Specialty Healthcare when the Board is at full strength with a pro-business majority. But, Specialty Healthcare may go away sooner. Senator Johnny Isakson (R-Ga) recently introduced the “Representation Fairness Restoration Act” that would insert language directly into the National Labor Relations Act that states, “fragmentation of the bargaining units” is to be disfavored. Representative Francis Rooney (R-Fla) also introduced a companion bill in the House. Between Miscimarra, Isakson, and Rooney, it appears that Specialty Healthcare’s days are numbered.

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 

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 

NLRB Just Expanded Its Authority to Find an Employer Violated the Act when Banning Non-Employee from Worksite.

The Obama-era NLRB is determined to go out with a bang. The brief facts of this case, decided by a 2-member majority of pro-union Board Members, is as follows: A beverage supervisor worked at a casino for less than one month. After her employment ended, she frequently socialized at the casino’s nightclub. Six months after her one-month employment ended, she filed a class action lawsuit against the casino for alleged violations of the Fair Labor Standards Act. The casino then barred from the premises during the litigation.

Following in the footsteps of most plaintiff lawyers these days, she filed an unfair labor practice charge with the NLRB over the ban. That’s right. A former employee filed a ULP against her employer who banned her from the worksite more than 6 months after her employment ended. Surely this case would not survive because 1) Section 10(b) statute of limitations, or 2) the National Labor Relations Act only protects employees (and applicants). Wrong. The NLRB held that barring her from the premises after she filed a lawsuit violated Section 8(a)(1) of the Act since it was retaliation for engaging in the protected, concerted activity of filing a law suit.

Thankfully we have Chairman Miscimarra who dissented. While his dissent does not change the absurd outcome, it does provide guidance for when the Board is faced with similar facts after President Trump’s appointments are confirmed. Miscimarra did not believe the ban violated Section 8(a)(1). To him, there was no allegation that excluding the employee from her former place of employment affected her wages, hours, or terms and conditions of employment.

Secondly, Miscimarra opined that the Board must weigh the interest of employees in concerted activity against the interest of employers in operating their businesses. The record contained nothing preventing the NLRA-protected conduct by the former employee. Notably, the Fair Labor Standards Act has its own anti-retaliation provision and the NLRB cannot take it upon itself to enforce other statutes.

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.

Steelworkers’ Blue Print for Union Engagement / Expansion

If more unions would act like the Steelworkers Local 675, more workers would want to join unions. Local 675 represents oil refinery workers (among others) in the right to work state of Nevada where union employees get a window of opportunity every few years to withdraw from the union and stop paying union dues while still enjoying the benefits of the collective bargaining agreement. But Local 675 employees gladly stay in the union and keep paying union dues.

There appears to be comradery between union members. They engage in a lot of concerted action on behalf of each other. For example, a supervisor issued a rule forbidding workers from wearing baseball caps, sunglasses, and Hawaiian shirts on the shop flop. (Sorry, I don’t know the impetus of this rule, though I am sure it is entertaining). The workers signed a petition to undo this rule, presented it to their supervisor, but the supervisor threw it away.

In response, all workers reported to work wearing Hawaiian shirts, baseball caps, and sunglasses. The union bought a roasted pig. The workers had a luau on company property during their lunch break. The rule was rescinded and the supervisor was reassigned.

In an example with less levity, an explosion occurred at a refinery that blanketed nearby homes with potentially toxic dust. The union organized a caravan of vehicles that drove to the oil company’s headquarters where members in hazmat suits emptied a dump truck of horse manure on the company’s front door and held a sit-in.

Whether fun or serious, the union is active. The union members are engaged. The union stands for something. In most of the union shops I represent, the union has grown apathetic. The union does nothing for the workers, and the workers do nothing to support their cause. This lack of engagement, in my mind, is why unionization keeps dwindling year after year after year.

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.

“No Loitering” Policy: Unlawful says NLRB

Loiter (verb): to stand or wait around idly or without apparent purpose.

Many workplaces prohibit off-duty workers from loitering at the worksite. These policies make great sense. They decrease the likelihood of wage and hour violations by providing off-duty employees the opportunity to claim they were working, but not being paid for their work. They also decrease the risk of an off-duty employee being injured at work and thus file workers compensation claims. Most of the handbooks I have reviewed have “no loitering” policies, and my clients strictly enforce them.

Well, the NLRB recently determined that a no loitering policy at a restaurant violated the National Labor Relations Act because it prevented employees from engaging in concerted activities for the purpose of collective bargaining or other mutual aid or protection, i.e. the right to handbill.

The NLRB held that “an employer’s rule denying access to off-duty employees to all areas of its premises violates the Act unless there are legitimate business concerns to justify the rule or policy.” The Board further found that the rule was overly broad and ambiguous because it did not define “loiter” or “hang around,” and could reasonably be interpreted to prohibit employees from engaging in protected activities, such as handbilling. Also, the rule contained no exception for protected activities like handbilling (despite the Board previously ruling several times that such disclaimers do not turn an unlawful policy into a lawful policy).

To all the employers who have a similar policy in their handbook, I have included the definition of loitering at the top of this post. Copy and paste it into your handbook. Then add a (useless?) disclaimer that the policy does not cover protected activity. Time for my disclaimer: What I just said is not legal advice; your no loitering policy may still violate the NLRA even after doing what I said.

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.

Union Bosses Make Big Bucks (But Complaint When Corporate Leaders Do the Same)

It seems like every month a different labor union publishes the pay disparity between the average low-wage employee and CEOs of mega companies, i.e. the car washer vs. the owner of a car company, or the janitor vs. the top guy of a global real estate investment firm. The examples often cited by unions are like comparing apples to oranges – different industries, different geographies, and do not take into account things that boost CEO pay like performance incentive and stock offerings (which could be worthless in the future). Thankfully, the Workplace Fairness Institute publishes a much more reliable comparison. According to it, presidents of the following unions made this much money last year:

  • Communication Workers $163,904
  • SEIU (Service Workers) $282,281
  • AFL-CIO $294,537
  • Teamsters $386,344
  • UNITE HERE $316,825
  • UFCW (Food Workers) $354,568
  • IBEW (Electrical Workers) $435,596
  • UAW (Auto Workers) $184,159

Now, anyone who deals with unions on a regular basis knows what I’m about to say: these numbers are the bare minimum pay that must be reported. Unions are notorious for hiding pay. For example, union leaders get paid to sit on union committees, union boards, union charities, etc. While Richard Trumka’s AFL-CIO salary was $295,000 last year, he likely made several times that much through hidden payments and perks. Don’t forget how powerful he was over the last 8 years – flying private jets to visit the White House reportedly more than any other person during Obama’s terms.

Workplace Fairness Institute compares apples to apples:

         Union             President’s Salary             Average Represented Worker Salary

  • SEIU                         $282,281                                $22,930     Child care
  • SEIU                         $282,281                                $23,600     Home health
  • Teamsters               $386,344                                $31,000     Bus driver
  • UNITE HERE           $316,825                               $21,990     Casino dealer
  • UNITE HERE           $316,825                               $23,830     Housekeeper
  • IBEW                        $435,596                               $56,650     Electrician

Unions are also quick to report when the CEO of a major corporation lives in a gated community, flies on the corporate plane, or generally spends money on anything non-union related. Workplace Fairness Institute publishes the lavishness of the lives of union leaders that are paid exclusively through members’ dues money – members who, as shown above, make below the national income average. It is safe to assume that rank and file union members who finance their leaders’ extravagance, do not attend the below swanky hotels and restaurants.

  • UFCW spent $137,348 at MGM, Las Vegas for a Meeting
  • Teamsters spent $93,210 at Bally’s Casino-Hotel Las Vegas for undisclosed
  • UFCW spent $92,133 at Bally’s Casino-Hotel, Las Vegas for Meetings – Political
  • SEIU spent $47,796 at Renaissance Brussels Hotel for Support for Organizing
  • UFCW spent $38,360 at The Mayflower Renaissance, DC for Lobbying
  • Teamsters spent $15,527 at Westin Beach Resort Ft. Lauderdale for undisclosed
  • SEIU spent $14,740 at InterContinental Hotel Hong Kong for Support for Organizing
  • UAW spent $10,013 at Greektown Casino for undisclosed
  • UAW spent $6,079 at Joe’s Seafood, Washington DC for a Meeting

These are the raw numbers collected through mandatory disclosures called Form LM-2 that unions must file each year. Interpret them as you wish.

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.