Trump’s NLRB GC will Protect Right to Refrain from Joining Unions

Peter Robb, President Trump’s pick as the next general counsel for the National Labor Relations Board, told a Senate panel that he would uphold the “core values” of federal labor law. He said that would include the right to “refrain” from union activity.

Robb’s statement indicates he would make it a priority for the Board to ensure the rights of employees who dissent from their union’s positions and that he would set a higher bar for unions to prove that they have majority support of workers before certifying an election. His position would be a sharp turn from general counsel Richard Griffin who strove to make union organizing easier.

Robb has practiced labor law at my go-to Vermont firm Downs Rachlin Martin since 1995. Prior to that, he served as chief counsel to NLRB member Robert Hunter.

In November 2013, Griffin was appointed as the board’s general counsel with five board members as part of a deal between Senate Republicans and the Obama administration. Griffin helped push the Board in a decidedly pro-union direction by re-evaluating exiting rules and procedures like the joint employer doctrine, which made companies potentially liable in any case where they had “indirect control” over another company’s workforce.

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.

Like Backyard Football when We were Kids, NLRB Allows a “Do-Over”

A union election was underway. One group of employees alleged co-worker Williams threatened to hang any employee who did not vote for the union “like they did…back in the 60s”. The company fired Williams. Williams filed an unfair labor practice charge over his termination. At hearing, the two employees maintained they heard the threat while three other employees said they did not hear Williams make a threat. When this “he-said-she-said” situation occurs, the Administrative Law Judge is required to decide which witnesses are more credible and make a ruling accordingly.

Here, the ALJ ruled that Williams did not make the statement, but then cast doubt on his decision by writing that he “might well be wrong,” and that “some doubt persists” regarding whether Williams made the threat. On appeal, the NLRB held that the ALJ had “undercut his own analysis” by not making a definitive credibility call.

The ALJ also appeared confused about the burden shifting requirements in this case. He seemed to believe that the co-worker had the burden of proving Williams made the threat about hanging people when actually the NLRB’s General Counsel had that burden.

Rather than doing what Boards in the past would have done and dismissed the case, the current Obama hold-over NLRB remanded the case back to the same ALJ for a determination of whether the general counsel carried his burden to prove that Williams did not actually make the statement about hanging.

A do-over. Go figure.

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.

Unions Continue to Convince Themselves They’re Better Off Long Term with Trump in the White House

Maybe a profoundly anti-worker Trump administration is just what American labor needs – a galvanizing force, and a defined target – is the thought process coming from many in the labor movement today. They then start to list the many areas of labor law that changed under President Obama and that are ripe for changing back to what they were pre-Obama. For example:

  • The make up of the NLRB. The term of the sole Republican Obama-appointed Philip Miscimarra expires in late 2017, as does that of general counsel Richard F. Griffin, Jr. That means President Trump will be in a position to radically reshape the NLRB with three board appointees and a new general counsel in his first year.
  • Quickie Elections. This change sped up the calendar for union-recognition campaigns and reduced companies’ ability to fight of the effort. A major win for unions.
  • Joint Employer. The NLRB made great strides in making franchisors share responsibility for the treatment of workers by franchisees. The same is true for the staffing industry where user and supplier companies are now more easily defined as joint employers.
  • Right to Work. Slightly more than half of the states in the U.S. have Right to Work laws allowing employees to decide if they want to be in a union and pay union dues. If a state is not Right to Work, then all employees working in a classification covered by the collective bargaining agreement must be in the union to work at that company. There is a movement at the federal level for a national Right to Work law which could get enough support within Congress and the Trump administration to pass.

So, says the labor movement, maybe a profoundly anti-worker Trump administration is just what American labor needs – a galvanizing force, and a defined target. And by expanding and building on the successful fights for higher minimum wages, labor can remind workers that the more they fight together, the more they gain together. Maybe. Or maybe unionization rates will continue to plummet year after year after year….

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 and Friends Publish Anti-Retaliation Joint Fact Sheet

“Retaliation Based on the Exercise of Workplace Rights is Unlawful” is a collaborative effort of the National Labor Relations Board, the Wage and Hour Division of the U.S. Department of Labor, the Occupational Safety and Health Administration, the Equal Employment Opportunity Commission, and the Office of Federal Contract Compliance Programs. The Fact Sheet reminds employers that it is unlawful to retaliate against employees for exercising their workplace rights, regardless of the workers’ immigration status. Although workers are “always entitled to pay for work actually performed, regardless of immigration status,” remedies may be limited for undocumented workers. For example, under the National Labor Relations Act, “reinstatement and back pay are not available as legal remedies for employees who do not have work authorization.”

The Fact Sheet, curiously released a few days before the inauguration of President Trump, underscores what some may view as a tension between Trump’s immigration stance and the legal protections afforded to all workers. Given Trump’s focus on immigration reform, it should come as no surprise that the key federal agency players in the workplace law arena have united to remind employers that the anti-retaliation protections apply all regardless of immigration status.

Matt Austin who 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.

President Trump’s Anticipated Effect on Workplace Policies

In 2016 the National Labor Relations Board maintained its generally pro-union, anti-employer stance in ways that affect both unionized and non-unionized employers. The Board currently has two openings, which, once President Trump fills, will result in a pro-business NLRB. However, due to the Board’s rules, employers might not see immediate improvement. After all it wasn’t until years 7 and 8 of Obama’s presidency that major pro-union initiatives were implemented. Therefore, employers in 2017 (and likely beyond) will be forced to deal with the extreme pro-union rulings from 2015 and 2016. But once the pro-business Board can start unraveling current anti-business rulings, here is what I expect will happen to workplace policies that have been in the crosshairs of the pro-union NLRB.

All employers, regardless of union status, should remain (or become) aware of the NLRB’s General Counsel’s position that many handbooks and other employer policies are unlawful. For reference, see his March, 2015 GC Memorandum 15-04. This guidance gives examples of good and bad language for policies on keeping employer information confidential (broad policies are deemed unlawful, because employees must be allowed to discuss wages and other issues of mutual interest), professionalism, media contact (employees have the right to talk to the media on their own behalf or on behalf of others), use of company logos (employees are allowed to use logos and marks for their own, non-commercial purposes), conflicts of interest, and recording and photography at work, which the General Counsel says must be permitted on non-work time when employees are engaged in protected activity. I do not expect changes to these to occur for a long time since many of the General Counsel’s theories are now supported by recent NLRB decisions.

Similarly, an employer rule prohibiting “non-approved individuals’ access to information or information resources, or any information transmitted by, received from, printed from, or stored in these resources” without prior written approval was unlawful because it would prevent employees from sharing, with their union representatives or their co-workers, information relating to work conditions stored on the information systems. See, T-Mobile USA, Inc. The Board also struck down bans on employees using information or communication resources in ways that were “disruptive, offensive, or harmful” or to “advocate, disparage, or solicit for political causes or non-company related outside organizations.”

Employers everywhere should take 2017 to audit all written policies and procedures in light of this and other recent decisions centering on language the Board finds to impose impermissible restrictions on employee sue and access to email and information systems.

Matt Austin who 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.

President Trump’s Anticipated Effect on Management Rights Clauses

In 2016 the National Labor Relations Board maintained its generally pro-union, anti-employer stance in ways that affect both unionized and non-unionized employers. The Board currently has two openings, which, once President Trump fills, will result in a pro-business NLRB. However, due to the Board’s rules, employers might not see immediate improvement. After all it wasn’t until years 7 and 8 of Obama’s presidency that major pro-union initiatives were implemented. Therefore, employers in 2017 (and likely beyond) will be forced to deal with the extreme pro-union rulings from 2015 and 2016. But once the pro-business Board can start unraveling current anti-business rulings, here is what I expect will happen with management rights clauses in collective bargaining agreements.

In Graymont the Board held that the employer violated the Act by denying the union the opportunity to bargain before unilaterally changing its work rules, absenteeism policy, and progressive discipline policy, notwithstanding a management rights clause in the collective bargaining agreement. The management rights clause stated that the employer “Retains the sole and exclusive rights to manage; to direct its employees; …to evaluate performance; …to discipline and discharge for just cause, to adopt and enforce rules and regulations and policies and procedures; and to set and establish standards of performance for employees….”

However, the Board held that the language in the clause did not support the conclusion that the union “clearly and unmistakably” waived its right to bargain over the policies as the language did not specifically mention the policies that would be controlled by the provisions and there was no indication that the parties discussed the subjects in question during negotiations. This decision, to me, grossly undermines the effectiveness of employer management rights clauses.

Similarly, in E.I. DuPont de Nemours, the Board held that discretionary unilateral changes made pursuant to a past practice under an expired management rights clause were unlawful, and noted that an employer may unilaterally act under an established past practice only if the changes are not made in the exercise of managerial discretion.

These decisions are a harsh reminder to employers to carefully consider the management rights clause in your collective bargaining agreements before implementing unilateral changes. Employers at the bargaining table in 2017 should reconsider the wording of a management rights clause to maximize their authority to act unilaterally in the future – an endeavor far easier said than done.

Matt Austin who 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.

The Anticipated Trump Effect on Labor Law in the Staffing Industry

In 2016 the National Labor Relations Board maintained its generally pro-union, anti-employer stance in ways that affect both unionized and non-unionized employers. The Board currently has two openings, which, once President Trump fills, will result in a pro-business NLRB. However, due to the Board’s rules, employers might not see immediate improvement. After all it wasn’t until years 7 and 8 of Obama’s presidency that major pro-union initiatives were implemented. Therefore, employers in 2017 (and likely beyond) will be forced to deal with the extreme pro-union rulings from 2015 and 2016. But once the pro-business Board can start unraveling current anti-business rulings, here is what I expect will result in the staffing industry.

Miller & Anderson amplified 2015’s Browning Ferris ruling, expanding the ability of “joint employees,” such as those provided to a user-employer by a staffing company, to organize. Now, solely and jointly employed employees can band together in the same unit without consent from either the user-employer or the provider-employer, if the “community of interest” standard is met. In a combined unit, the user-employer is required to bargain over all terms and conditions of employment for all employees it solely employs and for jointly employed employees that it possesses the power to control.

Because of this decision, I expect a lot of organizing to occur in the staffing industry. Staffing companies should step up their employee satisfaction and union avoidance programs right now. User-employers must evaluate both their own and their staffing companies’ vulnerability to union organizing. All employers, of course, should be looking at scenarios, including worst-case scenarios, in the event of organizing, and create plans for combating an organizing drive.

Matt Austin who 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.