Newly Unionized College Adjunct Professors Cashing In with New Collective Bargaining Agreements

Over the past few years, we have seen a flurry of college adjunct professors across the country join unions. Most appear to be joining the Service Employees Industrial Union (SEIU). According to the propaganda released by researchers at the SEIU, the adjuncts are joining their union in droves:

  • In Boston, 20% of adjunct faculty at traditional private colleges were represented by a union in 2012. Now 48% have a union and 4,100 have united with SEIU alone.
  • In San Francisco Bay area, union density grew from 21% in 2012 to 71% today.
  • Nearly 40% of Chicago adjuncts are unionized, up from 25% in 2012.
  • In Minneapolis/St. Paul, there were 0 unions at private colleges in 2012. Today, 27% have a union.

And those who have joined their union are much better off for having done so. For example:

  • 63% of the SEIU Faculty Forward first contracts include pay raises of at least 20% for the lowest paid faculty.
  • 43% of contracts have pay raises of 30% or more for the lowest paid.
  • Over 70% of new SEIU Faculty Forward contracts include a professional development program worth over $550,000.

Per the SEIU researchers, “this is all just to illustrate, with numbers, a fact that has always been true, whether you are a college professor or a janitor: if you unionize, your workplace will get more than you have now, and the reason your boss does not want you to do so is because they don’t want to give you more.”

Up to you if you believe that rhetoric. But one thing is certain, the cost of a college education just skyrocketed.

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.

Teamsters Picket Jack Nicklaus’ Memorial Golf Tournament

NetJets’ (headquartered in Columbus, Ohio) workers who are represented by Teamsters Local 284 (Columbus, Ohio) launched an informational picketing campaign at the PGA’s Memorial Tournament (Columbus, Ohio).

The Teamsters represent aircraft mechanics, maintenance control, aircraft fuelers, aircraft cleaners, and stock clerks at NetJets. The union is mad that the company is not giving into its demands during negotiations for a successor collective bargaining agreement. One of the arguments is that NetJets does not employ enough mechanics, i.e. workers who would be required to join the union and pay dues to the union. Another is that NetJets mechanics do not make $15 per hour while alleging the CEO of NetJet’s parent company (Berkshire Hathaway Energy) received $17.5 million in compensation.

The public shame campaign, which was held at the non-commercial air field where some NetJets planes land when transporting players and fans to the PGA golf tournament, is interesting. First, the Teamsters chose to picket The Memorial because several NetJets customers will be flying NetJets private aircraft to the tournament. Many of these customers make the same or more than $17.5 million per year and run their own companies. For them, they understand labor costs, union propaganda, and will likely not stop using NetJets because of this flyer. In fact, many can’t because they’re locked into multi-year fractional ownership agreements.

So in the end, what did Teamsters Local 284 get for spending members’ dues money printing flyers and probably paying protesters (who may not have even been Teamsters members)? Not $15/hour for workers. Not more dues-paying members. Maybe a participation trophy for showing up?

According to NetJets, “The Teamsters today issued more misleading claims about NetJets maintenance operations. These claims are intended to advance the union’s agenda in negotiations over a new contract for approximately 215 represented maintenance professionals employed by NetJets. Their approach does nothing to help the parties reach an agreement.”

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.

NLRB Shamelessly Fights for Union that Did Not Comply with CBA

Common fodder for labor relations seminars is whether employers must bargain with a union over the employer’s discontinuance of providing workers with a Christmas ham (or my personal favorite, whether bargaining is required before changing the chips in a vending machine). Here, the issue was whether the employer’s change in a Christmas gift policy violated labor law, but there’s a twist, so keep reading…

The employer had a “Christmas Gifts” policy that covered “employees and retired employees” whereby employees would be eligible for a “Christmas gift” of a ham if the company deems so on a year to year basis.” The employer always included in the definition of “employee” those who were out on medical leave or workers compensation as eligible to receive the ham. The collective bargaining agreement also had a zipper clause which stated:

The parties acknowledge that during the negotiations which resulted in this Agreement, each had an unlimited right to make demands and proposals with respect to any subject or matter not removed by law from the area of collective bargaining. Except as provided below, they may therefore each voluntarily and unqualifiedly waive the right for the life of this Agreement to bargain collectively with respect to any matter referred to or covered in this Agreement or with respect to any subject or matter not specifically referred to or covered by this Agreement.

Pretty standard zipper (because it “zips up” the contract) clause language. But this particular zipper clause continued:

However, if the Company wishes to change an existing policy, create a new policy, or modify job performance standards that affect the bargaining unit, advance written notice will be provided to the Union via email. If the Union wishes to negotiate over the changes it will notify the Company in writing within ten (10) calendar days of the receipt of the notification. If the Union does not serve written notification of a desire to negotiate over the policy or policy change, the Company may implement the change and the Union waives any arbitration or other legal remedies concerning the creation of modification of the policy.

The Company sent the Union an email about changing the “Christmas Gifts” policy to include only active employees, and to exclude employees on leave. A copy of the changed policy was included with the email. The union did not respond to the employer and the new policy was implemented. Employees who did not receive the ham complained to the union and the union requested bargaining over the change. The Company refused to bargain citing the zipper clause.

The Administrative Law Judge opined how simple this case was: “the parties created and agreed to a specific procedure that applies when the employer wishes to change an existing policy.” The employer followed the agreed-upon procedure. On appeal, a three-member panel of the National Labor Relations Board upheld the ALJ’s decision without comment (the ultimate “why are we wasting our time with this” move).

So why was this case not quickly dismissed? The union failed to request bargaining within the agreed upon time frame and then immediately filed charges when it did not get its way. The union, arguably, violated its duty to bargain in good faith by filing Board charges despite the fact the language of the agreement said it waived “any legal remedies.” The employer followed the policy and the union didn’t. Despite the language of the zipper clause saying the union had waived all remedial rights by failing to respond to the email notice the NLRB General Counsel still pursued the case (on behalf of the union) through trial and appeal.

Unfortunately for employers, even with crystal clear language regarding notice and opportunity to bargain, and consequences for failing to respond, the NLRB may still carry the union’s bag and insist that such language doesn’t really mean what it says.

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.

Is Removal of a Job Classification from the Bargaining Unit a Mandatory or Permissive Subject of Bargaining?

A union representing employees of Rite Aid’s New York and New Jersey stores filed a complaint alleging that the company illegally insisted, as a condition of reaching a contract, that the union agree to remove newly hired interns and pharmacists working in New York stores from the bargaining unit. Rite Aid contended that is proposal to remove future pharmacists and interns from the unit was a mandatory subject because it was “a proposal to transfer work out of the unit to the future pharmacists and interns who will be performing work as statutory supervisors.”

The judge dismissed Rite Aid’s argument because of the inclusion of the interns. The interns were not going to perform supervisory duties once excluded from the unit. Had Rite Aid just sought to remove the pharmacists, the outcome would likely have been different.

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.

Smaller Bonuses for Union Employees Not Unlawfully Discriminatory

A union filed an unfair labor practice charge alleging that a company discriminated against union-represented employees by paying them a lesser bonus than non-union employees. The Employer argued it did not discriminate in paying the lower bonus amount to union employees because negotiated wage increases for union employees exceeded increases granted to non-union employees.

The ALJ found that the employer’s payment of an end-of-year bonus was consistent with past practice (and despite no mention of such payment in a recently negotiated collective bargaining agreement) did not discriminate against the union-represented employees in violation of Section 8(a)(3) of the NLRA.

The ALJ found no discrimination under Wright Line because there was no independent evidence that the respondent was motivated by an anti-union purpose in paying the lesser amount to union employees. Rather the respondent tied the lesser amount to the higher wage increase earlier received by union represented employees.

The ALJ also analyzed whether the paying of the lesser amount to union employees constituted inherently destructive conduct under Great Dane Trailers, and thus supported a discrimination theory. She concluded it did not, because any harm due to the lower bonus payment to union employees was viewed as slight because of the higher bargained-for wage amounts received by union employees.

The ALJ also found that the employer failed to give the union adequate notice of the bonus payment and therefore failed to provide the union an opportunity to bargain over it.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

JetBlue’s New Contractor Ordered to Bargain with Union at JFK Despite Not Hiring a Majority of Predecessor’s Employees

JetBlue uses outside contractors to provide baggage handling, skycap, checkpoint, and wheelchair services at JFK’s Terminal Five. Jet Blur selected PrimeFlight to replace Air Serv at JFK. Air Serv had a collective bargaining agreement with the SEIU.

PrimeFlight hired 362 employees, 52 percent of whom were former Air Serv workers. On May 23, SEIU demanded recognition as the bargaining agent of the PrimeFlight workers. PrimeFlight didn’t respond. On July 6, its Terminal Five staff totaled 507 employees. Only 39 percent of those 507 employees had worked at Air Serv. PrimeFlight argued it had no obligation to bargain with the SEIU because the former union-represented employees from Air Serv did not constitute a majority of PrimeFlight’s new workforce.

Air carriers such as JetBlue are covered by the Railway Labor Act, and the NLRB may consider a ground service company a “derivative carrier” if its work is subject to significant control by the air carrier. PrimeFlight argued JetBlue exercised such control – meaning the NLRB would not have jurisdiction over the case – but the judge said the evidence was unpersuasive. He also said it appeared that since 2013 the National Mediation Board (which enforces the Railway Labor Act) has been ceding jurisdiction over companies like PrimeFlight to the NLRB. 

With jurisdiction before the NLRB, the critical date to determine whether PrimeFlight had a duty to bargain was May 23 – the date the SEIU demanded recognition. The union-represented workers were a majority of the workforce at that time, and the union’s status as their bargaining agent was established then. In fact, the company had hired workers in every job classification by May 9 and the hiring of additional workers over the next two months did not affect the company’s duty to bargain with the SEIU. 

The judge entered a preliminary injunction requiring the company to meet and bargain with the SEIU while the NLRB completed processing the administrative proceeding against the company. The court held, however, that “any agreement reached between PrimeFlight and the Union is subject to termination if the NLRB determines that PrimeFlight is not subject to the NLRA or did not violate any provisions therein.”

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.