Company Threats of Closure or Drug Testing Hands Union Organizing Victory without Election

Employees testified that immediately after the UE local filed an election petition with the NLRB supervisors at MTIL, Inc., the Company made comments to employees that the employer, which sanitizes plastic packing crates for another company, might close or relocate its plant if the union was elected. The NLRB also received testimony that supervisors told workers that MTIL might begin a drug testing program if the union was elected to represent the employee.

Threats of closure during a union organizing are unlawful. Actually closing is lawful, but threatening to do so is not. The threat to drug test is a little more grey to me. Drug testing may in fact be part of a yet-to-be-negotiated collective bargaining agreement. So the Company didn’t lie. But if the employee interpreted the comment as a threat (assuming that some employees would fail a drug test), then was unlawful.

This case is a perfect reminder of the thin line employers must walk when battling a union organizing campaign.

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 Wins Union Election but Ordered to Negotiate Collective Bargaining Agreement

A nursing home whose employees voted against union representation 64-60 was ordered to start bargaining with the union for a contract, a seldom-used penalty levied against companies that commit egregious unfair labor practice charges during a union organizing campaign. The company allegedly committed two “hallmark” unfair labor practices. First, it granted a raise to workers immediately before the representation election as a way to discourage union support, and it discharged a union organizer. Other violations included recruiting employees to campaign against the union, calling the police in response to employees engaging in protected activity, and expressing to employees the futility of attempting to obtain union representation by telling them it would not allow the union to come into the facility.

Rubbing salt in the wound, the Board’s PR department announced the ruling in an e-mailed statement, a departure from the lack of fanfare that generally accompanies these types of decisions.

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.

Minnesota Court Denies National Labor Relations Board’s Bargaining Order Request

In hallmark violations of the National Labor Relations Act, a manager told employees that their co-workers took a “huge risk” by supporting the union and that their audacity angered him. The manager also said that “by doing all of this union crap you’ve thrown us back almost all the way to square one” warning that their decision on unionization “will determine the future direction of the business.” The division president likewise told the workers just two days before the election for union representation that other plants could absorb the work performed by their plant. He also indicated that even if the union was voted in, he would not negotiate with it.

After losing the secret ballot election, the union sought relief in the form of a bargaining order. Bargaining orders are levied when a Company’s unfair labor practice charges are so egregious that they permanently taint the ability for a fair election, and rather than hold an election, the Company is automatically unionized and ordered to bargain with the un-elected union for a contract.

Bargaining orders are an exemplary remedy that should be used sparingly. The judge here ruled a bargaining order would not be appropriate because the alleged unfair labor practices paled in comparison to what traditionally results in a bargaining order. Employers have a lot of leeway in committing unfair labor practices before a bargaining order is imposed; but once imposed, a company is immediately unionized. So employers should be well informed and make calculated decisions about engaging in unlawful conduct during union organizing drives. Some unlawful conduct can have little repercussions. A lot of unlawful conduct can result in a union. This reminds me of a phrase I once heard: Pigs get fat, hogs get slaughtered.

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.

What are Gissel Bargaining Orders?

When employers commit unfair labor practices that disrupt pre-election conditions to the point where the National Labor Relations Board determines a free and fair election could not be held, an parties are ordered to bypass a secret ballot election and to immediately begin negotiating a first collective bargaining agreement. There are no automatic rules in determining when a Gissel Bargaining Order is required. The Board has issued bargaining orders when employers have:

  1. Closed one store in order to discourage union activity at several of its other stores that were also being organized;
  2. Partially closed a plant;
  3. Partially closed a plant and subcontracted other unit work;
  4. Laid off all unit employees and transferred the work to another location;
  5. Subcontracted all of the work of the bargaining unit;
  6. Unlawfully disciplined, discharged, or locked out employees or refused to reinstate strikers who made unconditional offers to return to work; and
  7. Impaired employee free choice by granting or promising benefits to discourage union support.

On the other hand, the National Labor Relations Board has declined to issue bargaining orders when:

  1. The employer interrogated employees or suggested that unionization would be futile;
  2. The employer postponed or withheld wage and benefit increases; and
  3. The employer circumvented the union and sought to engage in individual bargaining with employees.

Do not rely on the above examples as legal advice or guidance on how your company should or should not act. The validity of a Gissel Bargaining Order is based on the nuanced factual circumstances as they exist at the time the unfair labor practices were committed. Oftentimes uninformed and unrepresented companies do not realize they are close to receiving a Gissel Bargaining Order until it is too late and they find themselves staring at a union negotiator across the table. Counsel or an employee trained in labor relations should be involved immediately upon receiving an RC petition from the NLRB.

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. You can call Matt at 614.285.5342 or email him at Austin@LaborEmploymentOSHA.com.