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.

Facebook and NLRB: Still Making Good Blog Fodder

Butler Medical Transport had a social media policy that provided, “I will refrain from using social networking sites which could discredit Butler Medical Transport or damage its image.” After being terminated, an employee posted on Facebook that she believed her termination was unjust. A still-employed employee responded, “Sorry to hear that but if you want you may think about getting a lawyer and taking them to court… You could contact the labor board too.” The employer then fired that employee for making those comments.

The National Labor Relations Board ruled that the discharge violated the Act because 1) the exchange was concerted (i.e. involved group activity); 2) the comments were made for the mutual aid and protection of workers; and 3) the discharge was made pursuant to the unlawful social media policy.

I say this a lot, thankfully Member Miscimarra dissented. He found the Facebook comments were not concerted activity and thus not protected by the National Labor Relations Board. He continued, by opining that the Board’s approach to social media cases has yielded “absurd” results. Circuit Courts agree here and here.

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’s View on Employers Protecting Customer Information

Employers can prohibit the use by employees of the names, social security numbers, and credit card numbers of customers in furtherance of organizational activities. This ruling came after the NLRB scrutinized the employer’s definition of confidential information and policies covering “Use of Personal Data” and “Confidentiality and Acceptable Use of Company Systems.”

The company defined confidential information as: It could be business or marketing plans, pricing strategies, financial performance before public disclosures, pending negotiations with business partners, information about employees, documents that show social security numbers or credit card numbers – in short any information, which if known outside the Company could harm the Company or its business partners customers or employees or allow someone to benefit from having this information before it is publicly known. Just as our Company requires that its own confidential information be protected, our Company also requires that the confidential information and proprietary information of others be respected… We are all trusted to maintain the confidentiality of such information and to ensure that the confidential information, whether verbal, written, or electronic, is not disclosed except as specifically authorized. Additionally, it must be used only for the legitimate business of the Company.

The Company’s Use of Personal Data policy states: The Company has certain personal data of its present and former associates, customers, and vendors. It respects the privacy of this data and is committed to handling this data responsibly and using it only as authorized for legitimate business purposes. What is considered personal data? It is information such as names, home and office contact information, social security numbers, driver’s license numbers, account numbers, and other similar data.

The Company’s Confidentiality and Acceptable Use of Company Systems policy states: Any information that is not generally available to the public that relates to the Company or the Company’s customers, employees, vendors, contractors, service providers, Systems, etc. that you receive or which you are given access during your employment or while you are performing services for the Company is classified as “Confidential” or “Internal Use Only.”

The union challenged these polices as unlawful, asserting they would lead a “reasonable employee” to interpret them as prohibiting contact with customers during a labor dispute, something that is protected by the National Labor Relations Act.

A two-person majority of Miscimarra and the usually pro-union McFerran concluded the polices related to use of customer information were lawful because the policy “specifically defines” confidential information and the “only information covered by that rule that arguably relates to customers is social security numbers or credit card numbers.” Further, both the Use of Personal Data and Acceptable Use of Company Systems policies “limit the use or disclosure of customer names and contact information” which is information that could arguably be used in a labor dispute but that “only apply to customer names and contact information obtained from the employer’s own confidential records.” [Not shockingly, Member Pearce dissented, implicitly authorizing employees to steal credit card and social security numbers from unsuspecting customers.]

For support, the Board cited many cases holding that employees who use information taken from employer systems are outside the protection of the Act, including where the employee had forwarded hundreds of company emails, some of which included confidential data, to a personal email account.

The takeaway – tailor policies to achieve your business objectives. In this case, the definition of confidential information was very specific and narrow. The types of information under the Use of Personal Data and Use of Company Systems policies were restricted, appropriately, to information that the employer collects as part of its business.

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.

Even When Company and Union Agree, NLRB Rules in Favor of Employee

A hospital desperately sought to hire some to fill the hard-to-fill position of part-time boiler operator. Despite candidate Legley being difficult to work with during the interview process, he was willing to be a part-time boiler operator, so the hospital hired him. I’m sure many of you have similarly undesirable jobs where you hire the first person willing to accept it, even if your better judgment tells you not to.

During orientation, Legley attended a meeting with the SEIU union that represented employees of the hospital. He became belligerent during this meeting and protested about having to become a union member in order to be employed in the position. One of the SEIU attendants at that meeting felt intimidated by Legley.

The hospital decided to terminate Legley shortly after orientation for “inappropriate disrespectful behavior.” The union agreed. Legley filed an unfair labor practice charge against both the hospital and union alleging he was fired for protesting mandatory union membership.

After trial, an administrative law judge ruled that both the hospital and union violated the National Labor Relations Act. On appeal, the NLRB rubber stamped that decision. On further appeal, the Circuit Court reversed the NLRB and criticized its decisionmaking – a common theme these days.

The appeals court faulted the Board or failing to properly interpret the hearing evidence. It noted that the Board “may not distort the fair import of the record by ignoring whole segments of uncontroverted evidence. Moreover, when the board purports to be engaged in simple fact-finding…it is not free to prescribe what inferences from the evidence it will accept and reject, but must draw all those inferences that the evidence fairly demands.” Per the court, “Because we believe that the Board had all of the evidence and arguments it needed to articulate a contrary position and, if it actually intended to take such a position, neglected to do so because of its failure to consider the record as a whole, we decline the dissent’s invitation to remand to the NLRB for reconsideration.”

Ouch.  Circuit Courts appear to have no more tolerance for the NLRB’s results-oriented decisions any more. For another example, click here.

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.

SEIU Suffers More Setbacks on Fight for $15

The following is from an opinion column in the Sun Prairie Star by Richard McCarty, Director of Research at Americans for Limited Government Foundation.

For the past several years, the Service Employees International Union (SEIU) has been dumping millions of dollars of its members’ money into efforts across the country to hike the minimum wage to $15. The membership of SEIU includes many lower-wage workers, such as janitors, security guards, home care workers, and graduate students. Last year alone, SEIU spent $19 million on its Fight for $15 campaign. Is this a good use of SEIU members’ money?

In June of 2014, the Seattle City Council voted to raise the minimum wage in a series of steps to $15 (with annual increases for inflation after the minimum wage reaches $15).

Later that year, the city signed a five-year contract with the University of Washington (UW) to study the effects of the wage increase. The first minimum wage increase of the series took effect in April of 2015. UW researchers found that increase had little impact, which may have been because many businesses were already paying above the minimum wage.

The second increase took effect in January of 2016. This time, UW researchers found that the wage hike negatively impacted workers. In fact, that minimum wage increase caused the average low-wage worker’s income to fall by $125 a month, and the wage increase led to about 5,000 fewer jobs in the city. And Seattle isn’t done yet; the next wage hike takes effect in January next year.

As inconvenient as the UW study is for SEIU and its Fight for $15 campaign, that’s not the only bad news for them: over the past year, three states have rolled back local minimum wage hikes.

The St. Louis Board of Aldermen voted to increase the minimum wage in August of 2015, but the minimum wage increase did not take effect until May of this year due to a lawsuit. The state legislature was displeased with the city’s action, in part because it wants a uniform minimum wage across the state. So, the legislature passed a bill to ban local minimum wages.

After the UW study was released, the governor of Missouri announced that he would allow the bill to become law reversing St. Louis’ wage hike.

Between late 2015 and early 2017, five Iowa counties passed local minimum wage hikes. Once again, state legislators disapproved of the measures, and passed legislation to ban local governments  from setting a minimum wage. The governor quickly signed the bill reversing the minimum wage hikes, but before he did, 10 city councils voted to opt out of their county’s minimum wage increases.

In 2014, the City of Louisville, Kentucky voted to hike the minimum wage; the next year, the City of Lexington, Kentucky followed suit. However, just last fall, the state Supreme Court ruled – nearly unanimously – that cities in Kentucky lack the authority to oversee the minimum wage.

With all of these setbacks – and with new evidence that minimum wage hikes are hurting those that are supposed to be helped – maybe SEIU should stop spending so much time and money playing politics and focus its efforts on representing its members.

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.

“The NLRB – Purposefully or Absentmindedly – Misrepresented Several of the ALJ’s Findings”

Unions have a knack at wanting to gloss over the details of contract language in collective bargaining agreements. This gives unions the ability to later allege a company violated the contract while the company is left without recourse to defend itself. Because of this, I insist on detailed collective bargaining agreements that leave very few stones uncovered. Even when dealing with less devious union negotiators, I keep in mind that the “friendly” ones will one day move on, and I cannot guarantee what type of career union agent I will deal with at that time. In my experience, union agents have become much more confrontational over the last five years – perhaps emboldened by an overly pro-union NLRB – so it remains a good practice to include detailed contract language.

And that is exactly what Fred Meyers Stores had in the “Union Access” clause in its collective bargaining agreement with the union representing its store. That clause stated that when the union visits the store, it “shall first contact the store manager” to notify the employer of the visit, and any contact between union representatives and employees shall “not interfere with service nor unreasonably interrupt employees with the performance of their duties.” The clause continued:

Business agents have the right to talk BRIEFLY with employees on the floor, to tell those employees they are in the store, to introduce themselves, and to conduct BRIEF conversations as long as the employees are not unreasonably interrupted. Such conversations should not occur in the presence of customers.

Business Representatives have the right to distribute fliers to employees on the floor AS LONG AS IT IS DONE QUICKLY. THE EMPLOYEES ARE NOT URGED TO STOP WHAT THEY ARE DOING TO READ THE MATERIALS AT THAT TIME AND FURTHER THAT THE MATERIALS ARE NOT PASSED OUT IN THE PRESENCE OF CUSTOMERS.

Business agents have the right to distribute materials in the break room. Lengthy conversations and discussions should always take place in the break room.

The parties agreed that the term “briefly” meant no longer than two minutes and the practice had been that only two union representatives during any one visit. Things rolled along smoothly until a new career union agent came to town. He called for “reinforcements” from the International to “energize” the union’s efforts. This resulted in groups of eight confrontational union representatives visiting the store at the same time.

One day the gang of eight entered the store, and the store manager reminded them that only two could be in the store at the same time. One union representative (wrongfully) said she had a right under “federal law” to “talk to employees as long as she wanted.” The confrontations escalated, and the store manager called the police. Upon arrival, the police told the union reps to leave the store or face arrest. One representative refused and was arrested. The others left. In the parking lot a representative tried to “educate” the police about his “federal rights.” In reply, the police said, “another word and you’re done.” Another word was uttered, and he too, was arrested.

While this may be a day in the life of having a union workforce, the NLRB actually found that the employer violated the National Labor Relations Act “by limiting the agents’ right to contact store employees,” by “disparaging the union,” and by threatening and causing the arrest of union representatives. Say what?

Thankfully businesses have a right to appeal bad decisions. On appeal, the court ruled that the union violated the collective bargaining agreement the moment the gang of eight entered the store without notifying management which was at least 5 minutes before the manager first said anything and a “long time before anyone was arrested – they had become trespassers [the employer] could lawfully expel from the Store.”

But the Court didn’t stop there. It concluded that the Board’s opinion was “more disingenuous than dispositive; it evidenced a complete failure to reasonably reflect upon the information contained in the record and grapple with contrary evidence – disregarding entirely the need for reasoned decisionmaking.”

The Court found it egregious that the Board stated the ALJ found “the parties did not have a clearly defined practice with regard to the number of union agents permitted to be in a store at any one time. [Yet, the ALJ expressly stated he made no such finding.] “The Board’s tone deafness – even after the dissent drew attention to the error – is the antithesis of reasoned decisionmaing.”

The Board also concluded the employer’s manager declined the union representative’s offer to read the parties’ access policy. Yet, the ALJ specifically stated he could not conclude what was said during the confrontation and “declined to determine precisely what occurred.”

The Court remanded the issue of whether the union representatives’ actions were protected noting “the Board – purposefully or absentmindedly – misrepresented several of the ALJ’s findings and failed to respond to key points raised by the dissent.”

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 Confused About Path to Organizing Tesla Factory Workers

As discussed previously, the UAW has Tesla in its crosshairs. One of the major themes of the organizing drive focuses on alleged safety problems at the factory. While the Company dismissed the reports as propaganda, it vowed to become the safest auto factory in the world.

Undeterred, the Tesla Workers’ Organizing Committee sent a list of demands to Tesla’s board of directors. Some of the demands include:

  • Transparent third-party safety audits
  • Employee involvement in the company’s safety plan
  • Ability to review accurate data about progress toward improved safety.

The demands didn’t stick to just safety, though. My favorite part: employees have endured years of a “vague promises of a raise” that never came to fruition. “We care deeply about both the company’s profitability and our own financial needs and thus have an important perspective on how to balance those concerns.”

So UAW, which is it? What’s your theme? Safety or more money? Here’s some unsolicited advice: stick with safety if you want community support. It’s easier for people without a dog in your fight to back your plight for a safe work environment. Bring up more money if you want to seem like ancient, greedy unions of yore. The bad publicity you’ll get whining about wanting more money from a company that has not yet turned a profit will doom your campaign.

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.