NYC is Passing Outrageous Laws that Benefit Unions

Car Wash Licenses Cost Ten Times as Much for Non-Union Companies

Local Law 62 was passed by the City Council and signed by Mayor de Blasio in 2015 during a period of intense labor organizing among the city’s roughly 150 car wash companies, many of which are staffed by immigrant, non-union workers. The law made it illegal to operate car wash without a license and gave financial incentives to car wash companies that employed union workers. To get a license, companies need to post a bond which was a guarantee of solvency to cover workers’ wages. Companies whose employees were represented by a union posted a $30,000 bond. Companies whose employees were not represented by a union posted a $150,000 bond.

Thankfully, a federal judge shot down Local Law 62 because it “explicitly encourages unionization” and imposed an unfair burden on car wash companies where workers were not part of organized labor.”

This reminds of the inflated minimum wage laws that have spread across the country in cities like Los Angeles, Milwaukee, and Washington D.C. Those laws have two sets of minimum wages: a minimum wage for union employees and a higher minimum wage for non-union employees. The goal for those laws is to make unionization the less expensive way to do business.  in Los Angeles:

Fast Food Workers Can Payroll Deduct Donations to a Charity of their Choice

New York City Council approved a bill allowing fast-food employers to withhold up to $12 per month from a worker’s paycheck and remit that amount to the “non-profit organization” of the employee’s choice. The purpose of this legislation, per Council Member Julissa Ferreras-Copeland (D-Queens) is “to make it easier for employees to support advocacy organizations working on their behalf.”

While the bill expressly states that money collected is not to go to a union, it likewise expressly states that the money can be funneled to Fight for $15. This is clever. If all fast food workers made the maximum contribution, the SEIU (who thus far has spent $90 million on the failed Fight for $15 campaign) stands to receive over $9 million per year in “contributions.”

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. 

Fight for $15 Leader Paid $146,000 to Fight, Not Protest

By now readers of this blog have heard about worker centers and the worker center called Fight for $15 whose mission is to establish a $15 minimum wage for fast food workers. Anecdotally, the Fight for $15 leader (who is the subject of this post) said that $15 was chosen as their preferred minimum wage not because of solid economic theories but because it “made sense.” According to him, “$10 was too low and $20 was too high so we landed at $15.”

Back to your regularly scheduled programming. Fight for $15 staged a protest against McDonalds in Chicago in mid-May. The leader of Fight for $15 is Ken Fells. When Mr. Fells was asked whether he was paid to attend the “March on McDonalds” in May, he said, “No I am not.” This is parsing words at its finest.

Fight for $15 is a worker center affiliated with the Service Employees International Union (SEIU). Fight for $15 is not a union, and thus does not have to file paperwork detailing its income or expenses. The SEIU, on the other hand, is a union and must detail its income and expenses on a Form LM-2. The SEIU’s 2016 LM-2 lists Mr. Fells as its “deputy organizing director” who is “on loan” to the “Fight for $14” campaign with a salary of $146,000 per year.

Later in the interview, Mr. Fells divulged some of the tactics his Fight for $15 activists employ to pressure fast food restaurants. For example, when a restaurant fires an employee, “McDonald’s, Wendy’s, Burger King – these places specialize in selling burgers. We specialize in fighting. So it’s hard for them to fight us and sell burgers at the same time,” he said. “So if they were to fire one of our workers or cut one of our worker’s hours, we try to have a reasonable conversation with them because we’re very reasonable individuals.” If that doesn’t work, then we’ll bring in 150 people and shut their store down day after day after day.”

To date, Fight for $15 has spent millions of dollars trying to disrupt the fast food industry without a single union organizing victory to its credit.

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.

Laws About Buttons at Work Continue to Confound Employers

In-N-Out Burger has a uniform policy that forbids employees from wearing buttons, pins, or stickers on their uniforms because the burger chain wants to create the public image of a “sparkling clean” restaurant. This policy was challenged by workers who were refused to remove a “Fight for Fifteen” button. Let’s get to the law.

First, it doesn’t matter if an employer has a union. Nearly all private employers are subject to the National Labor Relations Act. Second, employees are generally allowed to wear whatever button they want at work unless “special circumstances” exist. To meet the special circumstances exception, employers must prove the prohibition of buttons (or the prohibition of certain types of buttons) are narrowly tailored to address only those special circumstances.

From the beginning, the law was not on the side of In-N-Out. There is a 1982 NLRB decision against Burger King for the same situation. Worth noting, that decision was overturned by the Sixth Circuit Court of Appeals (the court finding special circumstances existed to prohibit union buttons), but the current pro-union NLRB has steadfastly ignored federal court decisions that do not align with the outcome the Board desires.

Cases that found special circumstances existed were also reviewed. In 2004, the NLRB permitted a supermarket to restrict a butcher from wearing a t-shirt with the words “Don’t Cheat About the Meat.” In 2007, the NLRB permitted a construction company to bar a worker from wearing a hardhat depicting a person urinating on a rat balloon.

The NLRB ultimately decided In-N-Out’s prohibition was closer in facts to the Burger King prohibition than the grocery store or construction store prohibitions. In-N-Out did not sufficiently explain how its practice of prohibiting the buttons was necessary to uphold its business model, and the NLRB was not convinced the buttons would adversely affect the business in any way.

Chairman Miscimarra – Please add special circumstances for dress code policies to your long list of interpretations that should be overruled once your have a fully seated Board.

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.

Teamsters Focuses on Organizing the Logistics Industry

This post hits close to home – like really close – since Columbus, Ohio is flush with logistics industry companies, warehouses, airports, and thousands of freight trucks. That’s what you get with “greater access to the US market within a 10-hour drive than any other major metro.” And the floundering Teamsters Union wants a piece of the action.

The Teamsters once has 2.1 million members at its peak in 1976. Then motor carrier deregulation took effect in 1980 and its membership shrunk to 1.4 million (today). Interestingly, deregulation accounted for the elimination of about 400,000 members, which means other than those, Teamster membership has stayed rather consistent for the past 40 years.

The Teamsters want to rebuild, though, and have expanded its organizing efforts to reach workers at logistics companies outside the union’s traditional niches of trucking, parcel, and airline. Its strategy will be focused primarily on transportation and the global supply chain. In other words, per one Teamster rep, the Teamster organization plans to hit companies from the supply chain’s first mile to the last.

One major challenge the Teamsters have is capturing a worker universe that is geographically dispersed and market fragmented. Thus, the union is focused on supporting workers who claim they’ve been misclassified as contractors even though they operate in a de facto manner as employees.

This movement will be interesting to watch. It comes at a time when nationalist movements in the U.S. and Europe may reshape international trade patterns and disrupt supply chains around the world. Further, the push for automation both on the road, in terms of autonomous vehicles, and in the warehouse and distribution centers put workers’ jobs in jeopardy. Could the Teamsters be chasing a dying industry? Are they about to spend millions of their members’ dollars on an industry that is unable to be organized, a la the SEIU’s botched Fight for $15 campaign? Thankfully, I’m based in the heart of the logistics industry and will have a front-row seat for the show!

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 GC Seeks to Change the Law on Short Duration Strikes to Disadvantage Employers

The National Labor Relations Board’s General Counsel’s office said the agency’s test for deciding whether multiple short-term strikes were protected is difficult to apply. So he is asking the NLRB to “clarify and modify” the law. Along with the memo was a model brief, which regional officials were asked to include in filings with the NLRB and administrative law judges, with a proposed framework to evaluate whether intermittent and partial strikes are protected under the NLRA.

Taken together the documents signal an intent from the General Counsel’s office to broaden protections for workers who take part in short-duration strikes.

One-day and other short-term strikes are most often used by unions during contract negotiations. Fast food, retail, and other non-union workers are also increasingly using these tactics in their campaigns for higher wages and better working conditions, i.e. Fight for 15, an effort aimed at raising the minimum wage and backed by the SEIU. In one instance last November, the Fight for 15 group launched a one-day strike in 270 cities across the US.

Legally, both union and non-union workers who take part in a short-duration strike have the same protections under the NLRA as do workers who engage in long-term strikes. Where things get murky is when workers engage in multiple, short-term strikes.

For decades, the NLRB has held workers who strike multiple times, especially in the same labor dispute, can face discipline, including termination. Under the General Counsel’s proposal, multiple short-term strikes would be protected if they involve a complete work stoppage and aren’t so brief and frequent that they amount to work slowdown; if they are not designed to impose permanent condition of work but rather to exert economic pressure; and if the employer is aware of the workers’ reason for striking.

Employers are left wondering how realistic is it to engage in permanent replacements or subcontracting for a one-day strike, or a one-hour strike, or a 45-minute strike every other day? Also, what about replacement worker contracts that require a minimum of 5 days pay to the replacement workers – employers will need to pay replacement workers despite regular workers returning from strike only one day after the strike began.

This is an issue that not many companies are following, but it is important since strikes, especially ones lasting a very short amount of time, are increasing. Hopefully this law will not change before a new, President Trump-appointed General Counsel takes office.

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.

Three Takeaways from Unions Demanding $15 an Hour

First, while unions that are part of the AFL-CIO are advocating for $15 per hour, the AFL-CIO doesn’t pay its own workers that much. It was recently reported that an usher working the AFL-CIO’s annual summer meeting where union bosses boasted about their success in championing the $15 minimum wage made well below that “minimum” amount.

Second, Los Angeles-area unions funded a “Raise the Wage” campaign to raise the minimum wage in L.A. to $15.25 while simultaneously seeking an exemption from higher wages for their represented employees. Ironic that unions can tell fast food chains, hotels, and hospitals that if they agree to union representation, their wage bill should be substantially lower, thereby making a unionized workforce the least costly option.

Third, the L.A. unions’ proposed exemption became a reality in Seattle. According to the local newspaper, “After well-funded campaigns by labor unions, SeaTac and other jurisdictions have an exemption for unionized employers that allow them to pay a lower wage and not pay for sick leave. Thanks to the union escape clause supported by labor, unionized employers can legally pay their workers less than what their non-union counterparts earn.”

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.