Types of Union Picketing (Part 2)

In Part 1 of “What is Picketing,” I covered Recognitional Picketing, Informational Picketing, and Area Standards Picketing, as well as how long picketing can occur under certain circumstances and how to check to make sure that the picketing occurring outside your company is legal. I also encouraged you to seek legal counsel at the first sign of picketing because of the complexity of whether the picketing is legal, whether it is covered by the National Labor Relations Act, and whether you can do anything to stop or imped the activity that is happening against you. In this, Part II, I will cover Mass Picketing, Common Situs Picketing and Signal Picketing.

Mass Picketing: Mass picketing is exactly what it sounds like – a very large concentration of people. The large number of picketers makes entering or leaving a place of employment difficult. Mass picketing is illegal because it obstructs the path into or out of a workplace. When ingress or egress is blocked, employers can seek temporary restraining orders against the picketers. State courts are usually receptive to limiting the number of people who can picket at any one time once a showing of obstruction, violence, or picket line misconduct is made.

Common Situs Picketing: If you’re a regular reader of this blog, you know I don’t write legalese. Yet, I had to throw the Latin word situs in this post because, well, that’s what it’s called. Common situspicketing is when an entire construction site is picketed by a union who is striking a particular contractor or subcontractor that is working on only one section of the job site.

For example, the Plumbers and Pipefitters Union want to picket non-union Jones Plumbing Contractor while Jones does work on the construction site of Big Box Store, Inc. In order for the Plumbers and Pipefitters to legal picket Jones Plumbing, the picketing must 1) be done in a peaceful manner, 2) specifically identify Jones and the primary employer with which the union has a dispute, and 3) limit the picketing to times when Jones is on the Big Box Store’s property, 4) Jones must be engaging in its normal business, and 5) the picketing must be limited to places near where Jones is working on the jobsite, and 6) the picketing signs must clearly identify the primary employer. Of course, there are exceptions to this rule.

I’ve said it once, I’ll say it again – properly responding to picketing is tricky a little devil. And properly responding to picketing at a construction site is the trickiest little devil of them all.

Signal Picketing Signal picketing, according the NLRB, occurs when unions do not use the traditional form of picketing – carrying signs that identify the union and employer that the union is picketing. The most common form of signal picketing is a large inflatable rat. The rat is commonly known in traditional labor circles to represent that a union has a labor dispute with an employer. According to some employers, when the rat is present at a construction job site or outside a workplace, the rat signals other unions to walk off the job, not make deliveries, and not otherwise engage in business with the employer being picketed.

The rat is a spectacle to be seen and draws a lot of questions from passersby who do not understand what it means. I will explore the rate in a later post.


Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at
Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.

What to Expect from the NLRB During Obama’s Next Four Years

 

As appearing in the Human Resources of Central Ohio (HRACO) monthly newsletter

 

What to Expect From Obama’s National Labor Relations Board Over the Next Four Years

I’m not the kind of guy who looks back and reflects on the past. I’m too busy living today and planning for tomorrow. There may be a time in the future when I contemplate my existence, remember the good ‘ol days, or reminisce about times of yore. But until then, I keep looking forward. This philosophy works well for me because I deal with the National Labor Relations Board every day. However, we need to look back at how the Board changed under Obama’s first term before exploring what to expect during his second.

The Last Four Years

In 2010, after the US Supreme Court ruled that nearly 600 NLRB decisions were invalid and needed to be reconsidered because the 2-Member Board did not have the required a 3-Member quorum, Obama unilaterally put people on the Board in contravention of established procedure.

The President used the Executive Branch’s recess appointment power to hand pick and place Craig Becker onto the NLRB. This appointment was controversial because Mr. Becker previously served as counsel for the AFL-CIO and the SEIU, was a staunch supporter of the Employee Free Choice Act, and his “writings clearly indicate[d] that he would use his position on the NLRB to institute far-reaching changes in labor law far exceeding the Board’s authority and bypassing the role of Congress.” For example, Mr. Becker has written, “employers should be stripped of any legally cognizable interest in their employee’s election representative,” which means companies should not be allowed to campaign against unionization, representation elections should not be held, and card check is the only way to determine whether a non-union company becomes unionized.

Obama continued using recess appointments to place additional Members on the Board instead of having them vetted and confirmed by Congress as has historically been the law and custom of this country.

The President made three additional “recess” appointments to the NLRB in January 2012 that sparked outcry from Republican Congressmen because the appointments likely occurred while Congress was not officially on break. Thus, the appointments may not be valid and all cases decided since January 2012 might not be valid – just like the 600 cases that were invalidated in 2010. The 3 appointed Board Members, as expected, have furthered the Administration’s pro-union agenda and have implemented many additional pro-union rules.

Some argue that in Obama’s quest to stack the Board with Members who will carry out his agenda, he is callously indifferent to Constitutional and statutory procedures and precedent and would rather have extreme labor laws in place, even for a short period of time before being invalidated or overruled by federal courts, than to seek change via traditional methods. I don’t believe this ideology to be true, but considering the number of recess appointments, invalidated cases, and the Board’s recent focus on non-union workplaces, I can see merit to the argument.

Over the last four years, the Board has taken action through adjudication (new decisions that overturn or expand existing case law) and rulemaking that broadens the National Labor Relations Act’s impact and makes it easier for unions to organize workers, i.e the Notice of Employee Rights poster requirement (if upheld by the courts), the expedited election rule (if upheld by the courts), bargaining unit composition changes (micro-units), and the Board’s attack of policies in handbooks of non-union companies (at-will clauses, confidentiality during investigations, arbitration clauses, and social media policies to name a few).

The Next Four Years

The National Labor Relation Board’s employee-friendly agenda will continue throughout Obama’s second term. The President will continue to control appointments to the NLRB and the NLRB will continue to interpret the laws very broadly so as to foster unionization and enforce the laws very aggressively. I expect four main topics to impact labor relations over the next four years: 1) shorter election cycles; 2) the persuader rule will take effect; 3) a resurgence of the notice posting rule; and 4) a continued pro-union agenda.

First, last year the Board tried to reduce the period of time for an election to take place after a union has filed a petition to represent a group of employees. As I’ve written before, shorter election periods benefit unions, since unions can start to campaign long before employers ever know of the organizing drive. For example, if you were told a union election was going to occur in 7 days from today, you would probably feel you needed additional time to campaign against unionization and to espouse the virtues of working in a union-free environment. A federal court rendered the shortened election campaign period rule invalid – but only because of a technicality. Since the Board continues to talk about it, I anticipate it will try to implement this rule again.

Second, a rule that impacts all of my clients is the persuader rule. This rule seeks to force companies to disclose to the federal government where and from whom they received labor relations advice and how much they paid for that advice. This disclosure could be as simple as spending $20 at a HRACO or SHRM seminar to earn continuing education credits to spending much more than that on attorneys to defend a union organizing drive and a multitude of unfair labor practice charges. Even though the rule is not in effect, my clients and I both receive letters from the federal government seeking this information. We do not respond to those letters since this law is not in effect yet, and I believe this information is protected by the attorney-client privilege.

Third, the notice posting rule will make headlines, again. Currently, the rule that requires most private sector employers to post a notice informing employees of their right to form, join, or assist a labor union is being scrutinized in federal court as to whether the Board had the authority to create such a rule in the first place. In my opinion, this decision is the most important legal development regarding the National Labor Relations Board during Obama’s Presidency. If upheld, the Board will have broad latitude to make similar rules. If invalidated, the Board’s rulemaking powers will be kept in check.

Fourth, the Board will continue to infiltrate non-union workplaces to advance its pro-union agenda. I believe that the rules regarding social media, at-will clauses, and confidentiality during pending investigations are just the tip of the iceberg. Here are some other developments I would not be surprised to see:

  • Unions granted equal access to non-union workplaces to recruit and organize potential bargaining unit members;
  • Employer’s email system will be available for union organizing purposes;
  • Card check, in some form, is likely;
  • Electronic or mail-in ballots will become the Board’s preferred method of voting thus providing opportunities for manipulated election results; and
  • Temporary workers will have the right to organize along with regular, full time employees.

What to Do Next

As you can tell, changes with the NLRB come fast and furious. In an effort to keep HRACO members up to date on the latest developments in labor relations, HRACO is launching its Labor Relations Special Interest Group in January, 2013. Each month I will lead a discussion and answer questions regarding labor relations. If you have an interest in attending this exciting new SIG, please let us know by clicking here and sending me an email that expresses your interest so we will have a better understanding of the size of room to reserve. Together, we will stay a step ahead of these constantly changing laws.


Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at
Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.

Types of Union Picketing (Part 1)

Union picketing is a tricky little devil. The National Labor Relations Act allows employees – whether in a union or not – to “engage in concerted activities for the purpose of collective bargaining or other mutual aid or protections.” Picketing is a concerted activity. The ability to picket is not absolute, though. Picketing (which is not limited only to people carrying signs and walking up and down the sidewalk) can be stopped depending on the union’s objectives, the message conveyed, and the time and place of the activity. There are many other highly technical nuances of picketing. If your company is the target of picketing, legal counsel should be contacted immediately to determine what rights you may have against the concerted activity.

Recognitional Picketing: Recognitional picketing is a common tactic unions use against an employer they seek to organize. This type of picketing can only occur for 30 days unless the union files a petition for election. Once filed, the picketing can continue until the petition is processed, which usually means until there is an election, until the election results are final, or until the union withdraws the election petition.

There is one exception to the 30-days rule. Sometimes one union will picket an employer in protest that another labor union represents the employees of that place of employment. This type of union-on-union picketing is forbidden for 12 months after a valid union election. Short of this unique exception, the 30-days rule above applies.

Informational Picketing: While recognition picketing is common, informational picketing is more common. Informational picketing is simply when a sign states an employer does not employ union members or has a union contract. Since there is no demand that the employer recognizes the union, this picketing is not subject to the 30-days rule. Informational picketing, however, must still be truthful, appeal to the public, and not try to dissuade someone from doing business with the employer.

Area Standards Picketing: Area standards picketing is common in the construction world. These picketers want to convey that the non-union employer pays wages and has benefits lower than unionized companies in the same area. This type of picketing falls outside the National Labor Relations Act. Although unions act like area standards picketing is informational in nature, area standards picketing is generally used to coerce the employer into recognizing the union. As such, whether area standards picketing falls under the 30-days rule or not is highly fact specific depending on the conduct of the picketers and the messages they convey.

Make sure to check back next time when I discuss mass picketing, common situs picketing, and signal picketing.


Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at
Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.

HRACO Traditional Labor SIG Launches January 2013

As appearing in the Human Resources of Central Ohio (HRACO) monthly newsletter

Traditional Labor Special Intrest Group Launches in January 2013 

One of the benefits of HRACO membership is the ability to participate in Special Interest Groups (SIGs). Monthly HRACO meetings provide great programming that appeals broadly to its diverse membership, while SIGs are meetings focused on a single topic. HRACO currently has the following SIGs that meet regularly to discuss developments and nuances within their specified area:

  • Compensation and Benefits
  • Employee Relations
  • Training and Development
  • Staffing Management
  • Labor Relations (beginning January 2013)

Why Have a Labor Relations Special Interest Group?

I write an article every month for the HRACO newsletter that deals with significant developments from the National Labor Relations Board. These articles are generally limited to one topic and provide a high-level overview of changes in the law and my advice to human resource personnel in how to respond to those changes. Thankfully, these articles have been well received and have sparked great dialogue.

The format of my HRACO newsletter article does not allow for in-depth analysis or for human resource personnel to ask follow up questions. The Labor Relations SIG will bring life to the topic discussed in the preceding month’s article and through question and answer sessions, a deeper analysis and can be provided to members in attendance.

What Are Some Topics That Will be Covered In the Labor Relations SIG?

As you know, the National Labor Relations Board has been very active this past year. Many of the Board’s rulings have adversely affected non-union companies. Now, companies with and without unions need to pay attention to what is happening at the NLRB with equal intensity.

Some topics that will be covered include: Requiring employees to work during working hours; Micro bargaining units; Ambush elections; NLRB’s independent contractor test; Mandatory bargaining orders; Dues checkoffs; Board settlements; Personnel policies that violate the NLRA; Social Media; and other topics that have not yet occurred.

What are the Details of the Labor Relations Special Interest Group?

The meetings are for HRACO members only, will occur once per month, and will last for one hour. The date will likely be the third Tuesday of every month, with meetings beginning around 8:00am. The location has not been determined, yet. I am working with HRACO to identify suitable meeting venues, but until we know how many people are interested in attending this SIG, confirming meeting space is not practical.

So, if you have an interest in attending the Labor Relations SIG, please let us know by clicking here and sending an email that expresses your interest in the SIG. We will have a better understanding of the size of room to reserve based on the number of responses received. Of course, sending this email is not an RSVP to attend the first Labor Relations SIG, since the date, time, and location are not yet set.


Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at
Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.

Key Provisions of Collective Bargaining Agreements (Part 3)

 

This is the final installment of the three part series of what I consider some of the most important parts of a collective bargaining agreement. Part I covered the recognition, management rights, and dues check off clauses. Part 2 covered the no strike / no lock out clause, as well as the sympathy strike clause.  This last part covers subcontracting clause and the union security clause.

If you’re wondering why I don’t include wages as a key provision of a collective bargaining agreement, that’s because, to me, they aren’t that key. These other key provisions can, if negotiated poorly, cost an employer a lot more money than wages and hinder the employer’s ability to freely run the company.

Subcontracting Clause: This is a fancy way of discussing when an employer can hire another company to perform work on behalf of the employer. Oftentimes unionized employers can have work performed less expensively and more efficiently by subcontracting the work to another company instead of doing the work in house. This is regularly the case when the employer has outdated equipment or high wage earning employees. As the saying goes, there is always someone willing to do it cheaper, faster, and better.

Unions seek to have no-subcontracting clauses in collective bargaining agreements because they believe subcontracting work that can be performed in house takes away jobs from their union members. They don’t care that subcontracting could provide the employer with additional revenue (to hire more union members) or a higher quality product (that increases the company’s reputation and fosters industry growth). Rather, unions take the position that if something can be done in house by a current union member, then the employer should forego all other options and have that union member perform that service.

Union Security Clause: Union security clauses are clauses that, literally, secure the union’s existence at a place of employment. These clauses are in collective bargaining agreements as “union shop” clauses or “maintenance of membership” clauses. Dues check off clauses can also be considered a form of union security clause.

Essentially, a union security clause either requires all employees working in a certain job classification to pay union dues and remain members in good standing of the union throughout the duration of their employment. Now for the technical part – employees do not have to pay all of the union dues, sometimes they can be “service fee” members instead of union members. Service fee members only have to pay the part of dues that are used for representational purposes, such as collective bargaining, grievances, and arbitration proceedings (and not pay for non-representational activity like political donations, education, and lobbying). Union security clauses should account for the service fee, and if not, be sure to raise it during your next collective bargaining meeting.


Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at
Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.

Are State Law Donning and Doffing Claims Preempted by Sec. 301 of LMRA?

As appearing in the Human Resources of Central Ohio (HRACO) monthly newsletter

 

Are State Law Donning and Doffing Claims Preempted by §301 of the Labor Management Relations Act?

If you’re reading this, I am glad that the title did not bore you away from reading my article. A few definitions before we dig into the analysis, so that we are all on the same page:

Labor Management Relations Act:  The LMRA is an amendment to the National Labor Relations Act that limits the rights of labor unions and gives the federal government (not the National Labor Relations Board) the ability to resolve certain disputes between companies and unions.

§ 301 of the LMRA:  Section 301 of the LMRA gives federal courts the ability to enforce collective bargaining agreements.

Preemption:  In essence, whenever a federal law conflicts with a state law on the same topic, the federal law trumps, or preempts, the state law.

Donning and Doffing:  These are legal words that mean to put on clothing or equipment needed to perform your job and to take off clothing or equipment needed to perform your job. Many lawsuits focus on whether donning and doffing time is compensable.

State Law Donning and Doffing:  The Fair Labor Standards Act is the federal law that governs whether donning and doffing is compensable. Many states have their own wage laws. The FLSA preempts state wage laws that contradict it.

Okay, now we’re all on the same page and we can explore whether state law donning and doffing claims are preempted by § 301 of the LMRA.

Indiana factory workers alleged they were denied pay for time spent donning and doffing protective clothing. The workers were members of a union and thus covered by a collective bargaining agreement. They sued their employer under both the Fair Labor Standards Act and Indiana’s Wage Payment Act.

The employer got the Wage Payment Act claim dismissed under the theory that it was preempted by Section 301 of the LMRA. According to the employer, the collective bargaining agreement covered when donning and doffing was compensable and thus it was central to the dispute. In fact, it would be impossible to determine whether the employer violated the Wage Payment Act without first determining whether it had breached the collective bargaining agreement.

So why do I highlight this case for you? Although donning and doffing is such a hot topic now and many class and collective law suits are filed every week by union and non-union employees and former employees, this holding is much broader than a wage payment claim. In my opinion, every state law claim – not just wage and hour claims – filed by employees who work under a collective bargaining agreement should be scrutinized to determine whether those claims are preempted by § 301 of the LMRA. Attorneys who do not regularly practice traditional labor law are usually not used to the intricacies of § 301 preemption, so a gentle reminder from human resources is prudent.


Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at
Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.

Key Provisions of Collective Bargaining Agreements (Part 2)

Collective bargaining agreements contain many different clauses. This three part series covers what I believe to be among the most important clauses to any labor contract. In Part 1 I discussed the recogition clause, management rights clause, and dues check off clause. Today I cover the no strike / no lock out clause and the sympathy strike clause.

No Strike / No Lock Out Clause A no strike / no lock out clause is pretty straight forward. During the term of the collective bargaining agreement, the union agrees that it will not go on strike. In exchange, the employer agrees that it will not lock the union members out of the workplace. These clauses are intended to do one thing: avoid workplace shut downs. The hallmark of any no strike / no lock out clause is the inclusion of a grievance and arbitration procedure in the contract. Historically union disputes with management resulted in unions striking as a way to voice their opposition; the grievance and arbitration procedure along with a no strike / no lock out clause has eliminated mid-contract strikes while still providing an avenue for unions to voice their opposition to management.

Once a contract expires, however, the grievance and arbitration clauses terminate and unions are able to strike just as employers are free to lock out union members. Although lock outs after the expiration of a contract are legal, they must be completed with precision. Due to the number of restrictions placed on employers, companies that do not consult with legal counsel before locking out their employees are in grave danger of violating the law. Likewise, when unions strike, legal counsel must be consulted to limit the number of strikers, location of picketing, and selection of replacement workers among other critical aspects of surviving a strike.

Sympathy Strike:  A sympathy strike is when union members strike because the same union at a different workplace is on strike. For example, workers who are members of the UFCW in Cincinnati, Ohio who do not have a labor dispute strike because their “brothers” who are members of the UFCW in Columbus, Ohio are on strike because of a labor dispute. Most collective bargaining agreements contain the above no strike / no lock out clause. But certain language must be included in the collective bargaining agreement for employers to be able to stop these dangerous sympathy strikes. I am always amazed when I review collective bargaining agreements that do not prohibit sympathy strikes; make sure your contract isn’t one of them.

Stay tuned for Party III of Key Provisions of Collective Bargaining Agreements coming up next where I discuss subcontracting clauses and union security clauses.


Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at
Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.