Union On Hook for Non-Member Worker’s Back Pay After Refusing to Represent Him

A discharged Cummins, Inc. plant worker who wasn’t a union member may be entitled to have the Machinists union pay his lost wages after the union refused to arbitrate his complaint contesting the firing.

Machinists Talbot Lodge No. 61 represents all of the production and maintenance employees at a Tennessee Cummins plant, but a union told a worker that it would not challenge his firing because he wasn’t a union member. The union presented testimony that its decision was because the claim lacked merit. The ALJ didn’t buy it. Amchan ordered the union to request reinstatement with back pay or arbitrate the firing.

Unions have a duty of fair representation to all employees in a bargaining unit regardless whether employees in right-to-work states, like Tennessee pay union dues.

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) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

No Policy, No Problem: Union Employee Disciplined for Use of Phone Despite No Policy Prohibiting Same

Cargill has a “no cell phone” policy in its employee guide. The policy provides that all employees must be attentive and alert to their jobs, and are not allowed to read books, magazines, newspapers, or other materials while on the clock.  From 2014 to 2016, the grievant was cited multiple times for his cell phone use while on the job. On October 10, 2016, posts were made to his Facebook page while he was on duty. On October 28 the grievant received a written reprimand for his use of social media during work.

The union grieved the employee did not violate a cell phone policy or a job productivity policy because there was no written policy or verbal policy that forbade the use of personal cell phones on the job.

Per the arbitrator, the grievant had sufficient notice of the employer’s work rule banning personal use of a mobile phone on duty since he had been cautioned about his mobile phone use in three performance reviews. The arbitrator also found that the work rule banning personal use of a mobile phone on duty was reasonable, given that distraction from work duties was the primary concern and the rule was consistent with other polices in the employee handbook requiring employees to be attentive and alert.

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) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

Employee Terminated for Profanity Reinstated because Profanity was Pervasive at Facility

A Coca-Cola bottler unlawfully fired a union steward who used profanity in front of company executives and dozens of employees. The ALJ said the National Labor Relations Act gives employees “some leeway for impulsive behavior,” and the decision illustrates that profanity in the workplace isn’t likely to take an employee outside the protection of federal labor law.

Heartland acquired a distribution center and warehouse in St. Charles, Mo., where Teamsters Union Local 688 represented employees. The Company had a backlog of orders and employees were scheduled to work extensive overtime. In March, the Company failed to give employees advance notice before trying to schedule work on their usual day off, a Friday. Without the advance notice, Heartland could not force the employees to work.

Heartland asked for volunteers, but no one came forward. A company vice president said, “Look guys, I get it. We’re all fucking tire,” but he pleaded with employees to come in on Friday. The Company invited a bargaining unit member to address the crowd. That member stood up and said “if you come in, do your business, do what you need to do, and if they lie to you and you’re still doing 16 hours, fuck ‘em. Don’t come in on your off day. Don’t do any more favors.” The Company fired the employee for saying that.

The employee was clearly talking about work-related issues, so his discharge was unlawful unless his language was so “egregious or opprobrious” that he forfeited his legal protections. In weighing such questions, the National Labor Relations Board considers the place of the discussion, the subject matter, the nature of the employee’s outburst, and whether the outburst was provoked by any employer unfair labor practices. The employee was awarded reinstatement and back pay because profanity was common at the warehouse.

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) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

Company Loses Despite Winning Termination Arbitration

File this under “Unions can Make Life Difficult”.

A company’s attendance policy tallies points for an absence that an employee accrues, regardless of the reason for the absence. Any employee who accumulates 10 points under the absenteeism system in a rolling 12 month period is terminated.

An employee telephones his supervisor and informed him that he was not going to be able to report to work because he had been arrested. The absence resulted in the employee receiving one attendance point.

On the following day, he failed to notify his superiors  he was not able to work his shift, which resulted in a “no call, no show” absence, bringing his total points to nine. Later the same day, he called his supervisor and said he was out of jail but needed an additional day off. The company deemed that absence as a personal unscheduled call off, resulting in two more points for a total of 11 points.

The union grieved the termination arguing that termination was a severe penalty for the incident. It said that the grievance was unaware of the ramifications of his actions. If he had been fully aware, he would have used his allotted vacation days or personal days, which were available to him. The union stated the decision to terminate the grievance, in light of the extenuating circumstances, related to his temporary incarceration, was “excessive.”

The company prevailed. The attendance policy clearly provided management with authority to terminate an employee who exceeded the allotted maximum number of point, the termination did not result in disparate treatment between the grievant and others in similar situations, and the union failed to offer any proof to support its claims.

In summary, the union forced the company to spend time, energy, and money on an employee who was close to pointing out, got arrested, missed work, no-called no-showed the next day, and accumulated points requiring termination despite the union having no proof to support its claims.

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) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

Ohio Union Denied Injunction Pending Arbitration Decision that Could Result in Elimination of Many Union Jobs

When the company and union began discussing a new contract, management announced that the Federal Energy Regulatory Commission had approved company plans to transfer two generation facilities to AES Ohio. Once the transaction was completed, the company said employees represented by Local 175 would lose their rights to transfer into open jobs at DP&L because they would not longer be DP&L employees. The Utility Workers local submitted a grievance and simultaneously filed the lawsuit seeking a temporary restraining order and preliminary injunction to halt the transfer pending an arbitrator’s decision on the grievance.

The union is not entitled to an injunction to block an Ohio power company from transferring more than 290 jobs to a nonunion subsidiary.

Both DP&L and AES are subsidiaries of parent company DPL, Inc. The union said the companies constitute a “single employer” that is bound by Local 175’s collective bargaining agreement.

“A federal court may sometimes issue an injunction to block an alleged breach of contract pending arbitration of a labor dispute,” Judge Thomas M. Rose of the U.S. District Court for the Southern District of Ohio said. A court may grant injunctive relief if the dispute is subject to binding arbitration and there are “traditional equitable bases” for court intervention, including a showing that irreparable harm would result without an injunction.

“Local 175 failed to show the union or its members would suffer irreparable harm if they have to wait for the dispute to be resolved in arbitration,” Rose said.

If the union succeeds at arbitration in showing the corporations are a single employer, the combined companies likely will have sufficient assets to cover the cost of traditional reinstatement and back pay remedies for any affected employees.

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) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com

Another Day Another NLRB Decision Invalidating Arbitration Agreements

An NLRB Administrative Law Judge issued a decision against a Domino’s franchisee for violating the National Labor Relations Act. The franchisee required employees, as a condition of employment, to agree to pursue legal disputes with the restaurant owners in binding arbitration on an individual basis. Thus, the employees waived their rights to pursue class and collective legal action. We all know how this works out for the employer….

The primary question in this case was whether the company’s arbitration agreement violated the NLRA. The agreement clearly and expressly barred employees from exercising their right to pursue collective employment claims in all forums. Administrative Judge Tafe concluded that, although circuit courts generally disagree, she must apply the Board’s rationale in D.R. Horton and Murphy Oil USA to the instant case. She summarized her decision as follows:

Having found that Respondent engaged in unfair labor practices, I shall order it to cease and desist from such conduct and to take certain affirmative actions designed to effectuate the policies of the Act.

She continued that the employer must either rescind or revise the policy or make clear to employees that the arbitration agreement does not preclude them from pursuing collective actions or filing charges with the NLRB. Oh yeah, the employer must also reimburse the plaintiff for attorneys’ fees related to his opposition of the franchisee company’s request that his lawsuit be sent to arbitration.

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.

Uber’s Deal with NYC Union Bides Time Before Union Organizing Commences

Uber probably just considers this the cost of doing business in NYC.

Uber drivers have expressed frustration over the appeal process for deactivated accounts. Now, with assistance provided by the International Association of Machinists union (IAM), the 40,000 Uber drivers in New York City can take their cases to arbitration with a group called the Independent Drivers Guild (IDG) which Uber funds.

The drivers did not vote for the IDG nor does IDG represent them in collective bargaining, and the drivers pay no dues to the organization. Additionally, the IDG has agreed that it will not attempt to organize drivers while the current agreement is in place (until 2021) nor attempt to get the drivers to reclassify as employees (Uber classifies them as independent contractors).

Hold on. First, this appears to only stop the IAM from trying to organize Uber drivers. Perhaps the agreement extends to all members of the AFL-CIO. But big name unions like the Teamsters, Steelworkers, UAW, and SEIU are not part of the AFL-CIO. Could the costs associated with the IDG be for naught if one of the other unions successfully organized a micro-unit of drivers?

Secondly, despite agreeing to not organize the drivers until 2021 (unless another, probably more union-friendly agreement is inked) the IAM actually has a 5-year head start in organizing. It’s the IAM who negotiated the for the IDG. It’s the IAM who negotiated that Uber fully funds the program. It’s the IAM who negotiate that drivers have a right to arbitration if they are dissatisfied with the deactivation of their accounts.

Thirdly, this may be end up being a bad business deal for the IAM, much like the Fight for $15 campaigns have been for other unions. Both organizing philosophies rest on the notion that the union can achieve for workers what workers cannot achieve without the union. But in the end, workers are not willing to join the union or pay the union for its achievements. Fight for $15 has not generated unionized workers in the fast food industry despite spending hundreds of millions of dues-dollars. Post 2021 will Uber workers want to join the IAM and pay membership dues for what they are currently getting for free? We’ll have to wait and see. But the adage, why by the cow when the milk is free seems appropriate at this time.

Matt Austin who 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.