HRACO Traditional Labor SIG Meets Tomorrow

Labor Lawyer and member of the Human Resource Association of Central Ohio, Matt Austin, leads HRACO’s Traditional Labor SIG tomorrow from 8:30 – 10:00 at the Wesley Glen Retirement Community, 5155 N. High St. Columbus, OH 43214. Thank you to Christopher Nichols for hosting the meeting.

The meeting will focus on helping the members understand an employee’s “Section 7 Rights” under the National Labor Relations Act.

 

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio 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.

Matt Austin Gave NLRB Legal Update at Ohio State Bar Association Annual Convention

Management labor lawyer Matt Austin presented a seminar to other attorneys about the flurry of changes to established legal precedent coming from the National Labor Relations Board at the Ohio State Bar Association’s Annual Convention in Cleveland, Ohio.

The crowd of roughly 75 attorneys were treated to a legal update focused solely on the resurgence of traditional labor law. This presentation included the most up-to-date analysis of whether President Obama’s “recess” appointments to the NLRB were unconstitutionally appointed, ways the NLRB is overturning settled precedent – some of which has been settled for over 50 years, how the Board is invaliding many handbook provisions, and how to create a social media policy that passes the National Labor Relations Board’s scrutiny.

A copy of Matt’s PowerPoint slides can be found on his LinkedIn profile at: http://www.LinkedIn.com/in/MattAustinLegal

 

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio 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.

Matt Austin to Present “Is Your Handbook a Hand Grenade” at Lancaster Fairfield Area Chamber Meeting

Employment attorney Matt Austin is excited to present the always-riveting seminar: “Is your Handbook a Hand Grenade” to the Lancaster Fairfield Area Chamber of Commerce on June 6, 2013. This presentations will cover many of the nuances between a lawful, beneficial handbook and an unlawful detrimental handbook, including toxic policies, iron-clad policies, and policies that should have been updated in the last year because of the National Labor Relations Board’s targeted expansion into governing non-union workplaces.

 

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio 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.

 

The Difference Between Unable to Pay and Unwilling to Pay

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

The Difference Between an Unwillingness to Pay and an Inability to Pay is Enormous

A company’s financial health is generally confidential information that is not known to the rank and file workforce or the union that represents them. Yet, there is a little known secret in the world of labor relations, and unsuspecting companies find themselves in a pickle when, during union negotiations, they insinuate they cannot afford to give their workers a raise.

The parlance is that a company “pleads poverty.” The penalty is that the company must allow the union to inspect their financial records to validate whether a raise is possible.

The company that makes Stella D’oro cookies was in the middle of labor contract negotiations. When the union pressed for wage increases, the company refused and said it was “not in the business to sustain losses” and “had to reduce the costs of the labor agreement in order for them to stay in business.” The union then demanded the employer’s audited financial statements to verify that claim. In response, the company allowed the union to inspect a 19-page audited financial statement at the next bargaining session but prohibited the union from retaining a copy of the confidential document.

The union filed an unfair labor practice charge against the company for refusing to allow it to keep the documents. The NLRB – not surprisingly – agreed that the employer should have given the confidential documents to the union and by not doing so committed an unfair labor practice. The employer appealed and the Board’s decision was overturned on the hair splitting difference between an “unwillingness to pay” and an “inability to pay.”

The Court of Appeals rejected the NLRB’s conclusions, and ruled that the NLRB had arbitrarily and improperly applied a key distinction in federal labor law: when an employer claims that contract proposals are unaffordable, the union is entitled to information to back up those claim, but an employer that merely states its unwillingness to pay triggers no such duty. Stella D’oro asserted an unwillingness – not an inability – to pay higher wages. Further, even if Stella D’oro had an obligation to provide the documents, that obligation was satisfied when the union reviewed the financial statement and took notes about them.

What Should HRACO Members Do

The key takeaway from this case is to recognize that in labor relations wording is everything. There are grave ramifications if you use one word over another when doing union avoidance training, election campaigning, and contract negotiations. Specific to this case, an employer that claims an inability to pay will be obligated to “open its books” to the union, and the NLRB will aggressively enforce that right. An employer that merely explains it believes a union proposal is foolish, or that is unwilling to agree to the union’s terms, avoids that obligation.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio 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 is Union Street Theater?

Street theater, like picketing (here and here), handbilling, and blowing up a union rat, is used by unions to exert pressure on non-union companies. The union’s thought is that if it can make life uncomfortable for the non-union company, then the non-union company will sign a collective bargaining agreement and have its employees become members of a union. In reality, this type of pressure only makes non-union employers more grateful that they don’t have a union and remain firmly committed to union avoidance measures.

Street theater is exactly what it sounds like – acting out a play on the street (or sidewalk, usually). The most common example of street theater is a mock funeral procession. These processions generally include a fake coffin, the grim reaper, maybe someone dressed up as a preacher, funeral music, and solemnity. Although unions claim that the funeral is because their wages are dying or the employer is utilizing non-union contractors, the impact that a mock funeral procession in front of a hospital can be enormous.

Another mock funeral occurred in the recent bargaining dispute that the Communication Workers of America (CWA) had against Verizon. There, the CWA held a mock funeral in front of the home of Verizon’s Chairman, on a quiet residential street. According to the CWA, they were protesting the death of the middle class.

Sometimes the line between street theater and loosely organized mob activity is a thin, blurry one. Take this excerpt from journalist Nina Easton from May, 2010 for example:

Last Sunday, on a peaceful, sun-crisp afternoon, our toddler finally napping upstairs, my front yard exploded with 500 screaming, placard-waving strangers on a mission to intimidate my neighbor, Greg Baer. Baer is deputy general counsel for corporate law at Bank of America (BAC, Fortune 500), a senior executive based in Washington, D.C. And that — in the minds of the organizers at the politically influential Service Employees International Union and a Chicago outfit called National Political Action — makes his family fair game. 

Waving signs denouncing bank “greed,” hordes of invaders poured out of 14 school buses, up Baer’s steps, and onto his front porch. As bullhorns rattled with stories of debtor calls and foreclosed homes, Baer’s teenage son Jack — alone in the house — locked himself in the bathroom. “When are they going to leave?” Jack pleaded when I called to check on him…

 

Now this event would accurately be called a “protest” if it were taking place at, say, a bank or the U.S. Capitol. But when hundreds of loud and angry strangers are descending on your family, your children, and your home, a more apt description of this assemblage would be “mob.” Intimidation was the whole point of this exercise, and it worked-even on the police. A trio of officers who belatedly answered our calls confessed a fear that arrests might “incite” these trespassers.

 

According to Easton, Baer is … a lifelong Democrat. For her trouble in reporting on this, she’s naturally been smeared by the left. As for why SEIU is singling out Bank of America for thug tactics, supposedly it’s a protest of foreclosures by banks generally but Big Journalism notes that the union apparently owes BoA $90 million, which, per Easton, means $4 million in outstanding interest and fees. Terrorizing an exec’s family might make them think twice about being too insistent in collecting.

Even the “Occupy Wall Street” (and later “Occupy Every Suburb in America”) movement was a form of street theater. Once labor unions got involved, the protestors donned zombie-like outfits and marched as if afflicted with rigormortis to demonstrate the death of the middle class and their own future.

As you can tell, street theater is creative. It can be entertaining, but it can also be extremely disruptive. The more disruptive and coercive the skit, the less likely it will be considered a form of picketing.

  

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio 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.

Obama’s Appointments to the NLRB Were Unconstitutional, Now What?

 

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

 

Obama’s NLRB Recess Appointments were Unconstitutional, Now What?

In order for the five-Member National Labor Relations Board to operate, there must be a quorum of at least three Board Members at all times. Less than three Board Members and any action taken by the Board is void. We learned this the hard way in 2010 when hundreds of cases were invalidated because the Board only had two Members. We may have learned the same lesson again, as one court recently held that the National Labor Relations Board Members appointed by President Obama in December 2011 were unconstitutionally appointed and all of their cases since that time may also be invalidated.

How Are Board Members Appointed To The NLRB

NLRB Members are supposed to be appointed by the President and confirmed by the Senate. Board Members serve staggered terms, so they are periodically rolling on and off. Due to political wrangling, President Obama’s appointees were not confirmed throughout 2011. So, no new Members replaced the Members whose terms expired and who rolled off the Board. Hoping to bypass the Senate confirmation part of appointing Board Members, and to keep the NLRB functioning with at least three Members, the President used his recess appointment power to appoint new Board Members in December 2011.

According to the United States Constitution, a President’s recess appointment power is only valid when Congress is officially not in session. If Congress was in session when the President appointed new Board Members, then those Members were unconstitutionally appointed and anything they do will be voided.

Instead of laying low and avoiding further controversy while the question of whether they were unconstitutionally appointed worked its way through the court system, the NLRB was extremely active. My columns over the past year have highlighted many of the controversial rulings emanating from a Board that brazenly sought to extend its breadth of governance as far as possible. The legality of these extensions and Board rulings are now in question.

How The Case Worked Its Way Through the Court System

In Noel Canning v. NLRB, a union filed an unfair labor practice charge against a company named Noel Canning. An arbitration was held, and Noel Canning lost. The Company appealed to the National Labor Relations Board and lost again. Since the National Labor Relations Board is part of the federal government, and the National Labor Relations Act is a federal law, appeals from the NLRB are heard by federal district courts. The Washington D.C. District Court affirmed the Board’s decision and Noel Canning lost, again. The company then appealed to the D.C. Circuit Court.

The D.C. Circuit Court held that Congress was in session when President Obama made recess appointments to the NLRB in December 2011, so those appointments were unconstitutional and anything the Board did since that time is void. Therefore, the Board’s decision against Noel Canning was void. The NLRB issued a press release in the wake of this decision disagreeing with the decision and vowing to continue to operate as usual.

The federal government had two options to appeal. It could have asked for an en banchearing before the D.C. Circuit Court, where all thirteen D.C. Circuit Court judges hear the case instead of the standard three judges that heard Noel Canning. But, the government decided to appeal the case to the United States Supreme Court hoping that the U.S. Supreme Court overturns the D.C. Circuit and holds that Congress was in recess when President Obama made the appointments. The Supreme Court does not hear every case appealed to it. In fact, the U.S. Supreme Court only hears about 75 of the 10,000 appeals each year. The Supreme Court has not yet decided whether it will hear the appeal.

Meanwhile, in California, the NLRB ruled against a company named HealthBridge after HealthBridge refused to reinstate employees who went on strike. HealthBridge sought an emergency appeal to the U.S. Supreme Court to determine whether it was required to follow an order from the NLRB after Noel Canning determined that the Board Members were unconstitutionally appointed. The U.S. Supreme Court twice declined to accept it, so no one knows whether the Supreme Court will accept the governments appeal in Noel Canning.

What are HRACO Members To Do

Noel Canning leaves us in a pickle. Practitioners like me are not certain whether the Supreme Court will accept the case. We do not know whether other Circuit Courts will agree or disagree with Noel Canning. We do know that the NLRB continues to rule on cases and make new laws as brazenly as it did before Noel Canning was decided.

This question will likely end up before the U.S. Supreme Court at some point assuming liberal Circuits, like the Ninth Circuit covering the west coast, determine the recess appointments were constitutional. Once this happens there is a split in the law that only the Supreme Court can remedy. But no one knows when the Supreme Court will hear the case, and two Supreme Court Justices will likely retire in the next few years paving the way for President Obama to appoint new Justices. Conventional wisdom is that the mostly conservative, i.e. employer-friendly, U.S. Supreme Court will be liberal, i.e. union-friendly by 2015, so timing is critical for if and when the Supreme Court decides whether the appointment of the Board Members was constitutional.

So where does Noel Canning leave us? The rule of thumb is for companies to continue abiding by decisions from NLRB Regional Offices and seek legal counsel for how to deal with anything going to or coming from the National Labor Relations Board in Washington D.C.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio 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 Do You Know About The Union Rat?

A few posts ago I covered picketing. Part I dealt with Recognitional, Informational, and Area Standards Picketing. Part 2 covered Mass Picketing, Common Situs Picketing, and Signal Picketing. I promised at the end of the signal picketing excerpt to expand on the Union Rat. Here’s me making good on that promise.

Unions consider employers who do not have unions to be rats. Rats are a reviled animal and the word rat conjures up an image of an ugly rodent in your mind. Obviously, by calling non-union employers “rats,” unions want you to react in the same manner when you learn that a certain employer does not have a union. Since subtly is not a union’s strong suit, unions have – for decades – blown up giant balloons that look like rats outside non-union worksites. These balloons can be 25 feet tall but the 12-foot model seems to be the most utilized balloon because it fits in the back of a pickup truck and can be wheeled around town without violating local ordinances.

Ironically, the maker of the rat balloon, Big Sky Balloons, is a non-union company on the outskirts of union-dominated Chicago, Illinois. Go figure. In addition to several versions of the rat, Big Sky Balloons makes a Greedy Pig, Fat Cat, cockroach, and skunk balloons at the request of unions, I’m sure. Scabby the Rat even follows me on Twitter and generally provides AFL-CIO and DOL updates.

That’s the background of the rat. Now for the legal lesson – I’m sure I just lost most of the readers.

The union rat is considered signal picketing and is protected by the free speech clause of the First Amendment of the Union States Constitution. A local municipal ordinance in New Jersey that prohibited the use of inflatable signs was overturned because it violated the First Amendment. There, the electrical workers union inflated a rat near where a health club was being built with non-union labor. After being ticketed $133 for violating the municipal ordinance, the union successfully challenged the constitutionality of that ordinance. The National Labor Relations Board has taken it even further. The Board has recently approved the use of the union rat in front of a company’s suppliers and customers’ businesses, in addition to the targeted company with which the union has a labor dispute.

If you see the rat outside your company, first take a picture and send it to me. After that, call your attorney to determine whether the rat is in fact a signal picket, whether it is lawfully positioned, and whether there is anything you can do about getting it deflated.


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.