When President Trump released his 2018 budget, he slashed the NLRB’s apportioned amount by 6% and called for a staff reduction despite a projected increase to the Board’s caseload. The 6% reduction would result in the lowest total operating budget for the Board since 2009 (President Obama’s first year). Likewise, staff reductions would place the body-count at 400 below the 15-year average of 1,700 full-time employees. Right-sizing at its finest.
If Trump’s budget-slashing survives Congressional review, I expect several things to happen, all of which are good for companies.
- The NLRB will increase the pressure to settle unfair labor practice charges early to prevent NLRB personnel from having to travel to speak with potential witnesses. Companies with the ability to outlast the NLRB will be in a much better position than they are today.
- The NLRB will increase its time targets for deciding whether unfair labor practice charges have merit in the hopes that, given more time, a case will settle. The Board’s target dates for closing a file have become uncomfortably quick. This quickness results in more Complaints being hastily issued not based on sound legal principal, but based on investigators having to decide what to do before the end of the month. I bet you didn’t know Board agents (and Regions) are graded on how quickly they move a case along.
- NLRB witnesses will be less prepared for trial because NLRB attorneys will not have been able to meet with witnesses as much as in the past. Anytime the other side is underprepared is good for the Company’s defense.
- The processing time of representation petitions will be lengthened from the “ambush” election targets. Sweet irony. The Board will have a taste of its own medicine and probably won’t like it.
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 National Labor Relations Board must issue a complaint if it finds conflicting testimony during an investigation of an alleged unfair labor practice charge. When an unfair labor practice charge alleges a supervisor said or did something and the supervisor said he didn’t; that he said, she said situation is conflicting testimony that can generally only be resolved by an administrative law judge after a hearing. The judge weighs the testimony of both sides, decides which side is more credible, and makes a determination of which side wins. But now it appears that conflicting evidence alone is enough to find against an employer and declare the union the winner without having a hearing.
In 2011 a management company was hired to manage a hotel. At that time, the housekeeping functions had been outsourced to a staffing company. The management company terminated the contract with the staffing company and brought the housekeeping function in-house. Shortly thereafter, the housekeeping effectiveness waned to an all-time low (based on performance metrics). The management company outsourced housekeeping to the staffing company. So where does the conflicting testimony come in?
At the time the management company decided to outsource the housekeeping functions, hotel employees had just started a union organizing drive. The union (and the NLRB) alleged that the outsourcing was motivated by anti-union animus. The management company argued that to prove it, the Board must produce evidence that the discrimination “in fact caused or resulted in a discouragement of union membership.” The Fifth Circuit ruled that the NLRB “need not prove discouragement as a matter of fact.”
The Fifth Circuit noted that the NLRB relied on evidence of two union-related conversations between housekeepers and Hotel supervisors prior to the outsourcing decision, as well as the statement of another supervisor that the outsourcing decision was “because of the union.” Together these constituted substantial evidence of an unlawful motive. Stating that it must pay “special deference” to the NLRB’s resolution of conflicting evidence, the court upheld the NLRB’s order.
And so it is: conflicting evidence is enough to find illegal motivation and rule against an employer.
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.
A National Labor Relations Board regulation requires witnesses to be “examined orally under oath.” The Board has interpreted this statement as prohibiting witnesses from testifying by telephone. In a recent unfair labor practice hearing before an administrative law judge, the General Counsel to the NLRB wanted to question a witness living in Spain via videoconference. The judge permitted the testimony but set certain conditions such as requiring the presence of a video technician where the witness appeared and in the NLRB hearing room.
The company filed exceptions to the judge’s decision arguing that the Board’s rules require live testimony and that the video conference testimony should not be permitted. The Board concluded that its regulation does not preclude taking testimony by videoconference – even internationally from witnesses who are located in another country and subject to another country’s laws – and affirmed the judge’s decision to permit the videoconference testimony.
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 firstname.lastname@example.org.