Fight for $15 Workers Finally Join a Union, But Not the One Paying their Salaries

Employees of the labor-backed social justice campaign Fight for $15 have joined a union themselves. The organizers joined the United Media Guild via card check. Comically, a majority of workers signed authorization cards desiring union representation. I’m left wondering why all workers did not sign cards. Apparently even when you work for a union, you don’t want to be in a union.

No time is set to begin bargaining.

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.

Authorization Cards are Awfully Tricky

Authorization cards are small cards signed by employees authorizing the union to act on behalf of the employee even though that employee is not a member of the union. These cards are contracts and cannot be undone. When enough authorization cards are signed (no matter what the employee was told to get his signature on the card), the union can demand an election to determine whether a majority of employees desire union representation.

Sometimes unions will have an informational session, serve pizza and beer, talk about the union, and at the end of the evening ask people to “sign this card” if you want to learn more about the union, be on the union’s mailing list, receive an invitation to the union’s summer picnic, etc. While employees may honestly just want to learn more about the union, unions can use those signatures to have the NLRB schedule a union election or worst. Before you know it, your company is organized all because some workers thought they were signing up to receive an invitation to the union’s summer picnic.

Here’s the “or worst”: Unions can (and do) get trickier with authorization cards than just scheduling a secret ballot election. They sometimes walk into the owner’s office with a box of cards, dump the cards on her desk, tell her that the union represents a majority of her employees, and asks her for dates to start negotiating a first contract. This is called organizing through card check. Executives in this situation should not touch the box or look at the cards. Rather, tell the union representative she denies his assertion and to leave the company’s premises. Employers should not know who signed authorization cards, so company executives should never pick up the cards and begin to read the signatures.

An employer that claims a signed authorization card does not reflect his current feelings towards unionization must prove he had a change of heart. However, authorization cards are valid for up to 1 year after they are signed, so despite the employee’s change of heart, an election may still be held. In fact, employees oftentimes ask for their authorization cards back only to have unions refuse to return them because their cards are needed to meet the minimum number of cards signed to trigger a union election.

Matt Austin is a Columbus, Ohio 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. You can call Matt at 614.285.5342 or email him at Austin@LaborEmploymentOSHA.com.

HRACO Labor Relations SIG Preview

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

 

Are You Coming to the HRACO Labor Relations SIG to Learn About These Important Changes From the National Labor Relations Board? 

Thank you for such great feedback and enthusiasm for HRACO’s first Special Interest Group dedicated exclusively for traditional labor matters. A time, date, and location have been set! The first meeting will be held on Tuesday, February 19th at Trustaff from 8:30 – 9:30. The address for Trustaff is: 470 Olde Worthington Rd., Suite 200, Columbus, OH 43082. Thank you to HRACO’s President Nicole Smith for hosting this first meeting.

Now onto some of the topics up for discussion at the HRACO Labor SIGs. 

How the Pro-Union NLRB Impacts Every Company

The Board is made up of five Members who are usually appointed by the President and confirmed by the Senate. The political affiliation of the Board is supposed to include two Republicans, two Democrats, plus one person from the President’s party. Under President Bush, there were usually three Republicans and two Democrats. Under President Obama, there are currently just three Democrats (zero Republicans) including a former union attorney who had long represented the Teamsters, SEIU and the CWA and the former General Counsel of the International Union of Operating Engineers – although he was recently named as a defendant in a RICO lawsuit for allegedly firing an employee who blew the whistle on the union’s embezzlement scheme. Together these individuals have and will continue to create union-friendly laws such as:

  • Micro Bargaining Units  Unions can now organize employees by job titles instead of the traditional “community of interest” standard. Employers face the likelihood of several small bargaining units that are easier to organize and several union contracts that are more difficult to administer. For example, just the ladies’ shoe department of a major department store was recently permitted to unionize paving the way for the men’s department, perfume counter, children’s section, housewares, men’s suits, and handbag departments (17 different departments for 382 employees) to all be represented by different unions.
  • Persuader Rules  This rule, which is anticipated to take effect in April 2013, seeks to force companies to disclose to the federal government where and from whom they receive labor relations advice and how much they paid for that advice, whether spending $20 at a luncheon listening to a speaker or several thousand dollars defending a union organizing drive. Labor lawyers, like me, believe this rule violates the attorney-client privilege.
  • Social Media  Tweets, Facebook posts, and the like can be considered “protected concerted activity,” and employers are not allowed to discipline or discharge employees for engaging in such conduct. Protected concerted activity is when an employee acts on behalf of a group of employees regarding a term or condition of employment. For example, a tweet like: “I hate my job. My boss plays favorites, and I don’t make enough #&@^$ money to put up with him” is probably protected concerted activity, and that employee – regardless whether she is in a union – cannot be disciplined or discharged despite possibly breaking several employment-related policies. Further, the Board’s strict rules of acceptable social media policies results in the vast majority of policies violating the Act. Seeking legal advice before implementing a social media policy is prudent.
  • Arbitration Agreements  The NLRB prohibits all employees from signing arbitration agreements that prevent them from joining other workers in class-action arbitration proceedings or lawsuits.
  • End of Confidential Workplace Investigations  The hallmark of a workplace investigation is that the information provided remains confidential until all the facts are uncovered and a decision is made. While human resources cannot promise anonymity in investigations, most policies ensure as much confidentiality as possible. These policies are now unlawful according to the NLRB. Subject to certain limitations, employers cannot require confidentiality during ongoing workplace investigations. Specifically, discussing an investigation with co-workers is considered “collective activity” under the Act and trumps workplace policies of confidentiality during investigations.
  • Open Door Policies  The following policy from a handbook violated the NLRA: “Voice your complaints directly to your immediate supervisor or to human resources through our ‘open door’ policy. . . Complaining to your fellow employees will not resolve problems” because it allegedly prohibited employees from speaking to co-workers about terms and conditions of employment.
  • At-Will Disclosures  A handbook clause that states an employee’s at-will status can be changed only by a corporate executive may lead an employee to believe that being represented by a union or having a collective bargaining agreement would be futile because neither of those could alter the at-will status. As such, the Board has forced non-union companies to change the at-will language in their handbooks.
  • Moonlighting Policy  A moonlighting clause banning employees from outside employment without prior written consent from the employer may now violate the NLRA if it has an unlawful motive or was implemented with anti-union animus, i.e. to prohibit union organizers from obtaining employment at non-union companies.
  • Limiting Off-Duty Employees’ Access to Company Property  Limiting off-duty access to the workplace except with management approval or when employees are engaging in employer-related business is unlawful because the limitation could prevent employees from engaging in Section 7 rights, such as union organizing, without management’s approval.
  • Work During Working Hours  A company rule requiring employees to only perform work during working hours violates the Act because such rule could confuse employees into believing that they cannot engage in union solicitation during breaks and lunches. According to the NLRB, “working hours” now means time when you are at work, not time spent actually working.

How the NLRB’s Pro-Union Agenda Impacts Unionized Employers, Specifically

The Board’s pro-union agenda does not just focus on non-union employers. Companies that deal with labor unions on a daily basis must also be cognizant of several major changes in the law, some of which are:

  • Discipline  Employers must now bargain with a union over discretionary discipline during negotiations for a first collective bargaining agreement.
  • Dues Deduction  In overturning a 50-year law, employers must now continue automatic dues deduction after the expiration of a union contract.
  • Beck Objectors  The Board believes that lobbying expenses are germane to the union’s duties as bargaining agent and thus chargeable back to Beck objectors.
  • Witness Statements  In overturning a law from 1978, witness statements from employees to employers are no longer exempt from disclosure to unions absent assurance of confidentiality to employees, nor do they qualify as privileged under the attorney work-product doctrine unless “specifically created in anticipation of foreseeable litigation.”
  • Backpay  In most cases where backpay is awarded as a remedy, the losing employer not only has to pay the backpay (and interest), it must also pay the employee’s taxes associated with the backpay, i.e. social security and income taxes.

NLRB’s Pro-Union Agenda’s Forecast for the Future

While much of what the Board will do in 2013 is obviously not yet determined, below are some educated estimates of future changes.

  • Shorter Election Cycles  Currently, the time between when a union files a petition to represent employees and the representation election averages around 45 days. Statistically, the shorter the time period, the likelier employees will vote in favor of union representation. The Board has opined that this period should be “as short as possible” and “quickie elections” with time periods as short as 5-7 days is likely. Employers should actively engage in union-avoidance and pro-employee relations now, as waiting to campaign against unionization until after a representation petition is filed is too late.
  • Hang the Poster  Employers will be required to hang a poster throughout the workplace that specifically informs workers of their right to organize a union and how to learn more about the process of organizing a union.
  • Unions Granted Equal Access  Currently, an employer’s property is its private property and unions, for the most part, are not allowed to trespass. Unions will likely receive greater (if not equal) access to an employer’s property to engage in union organizing activity.
  • Email for Union Organizing  Currently, an employer can place restrictions on how its employees utilize company-furnished email accounts and electronic devices. This will probably change. For example, organizers will be permitted to solicit employees to attend the next organizing meeting, and pro-union employees will be allowed to openly campaign in favor of unionization through company provided technology.
  • Card Check  Richard Tumka, head of the AFL-CIO who claims he talks to the White House every day and visits a few times each week, promised that if Obama won a second term as President, that card check will be a reality. The only thing standing in way of card check is a Republican controlled Senate. If Democrats regain control of the Senate in 2014, card check will be a reality.
  • Temporary Workers  Currently temporary workers do not pay union dues and do not work under the confines of a union contract. It is anticipated that temporary workers – who are not employed by the unionized employer – will have the right to organize and belong to a union alongside the employer’s regular, full time employees. 

What Should HRACO Members Do

HRACO members should continually educate themselves about the onslaught of grave labor law changes from the NLRB. Employers must train supervisors on compliance matters as well as union-avoidance strategies to diminish the Board’s governance of your company as much as possible. Since the above was written for informational purposes and not legal advice, companies are encouraged to seek legal counsel to ensure they are complying with the law as even the smallest form of non-compliance can result in significant detriment to your company. Attendance at HRACO Labor SIGs – held on the third Tuesday of every month from 8:30 to 9:30 – will provide education and guidance on many of these issues.


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.