Ohio Union Denied Injunction Pending Arbitration Decision that Could Result in Elimination of Many Union Jobs

When the company and union began discussing a new contract, management announced that the Federal Energy Regulatory Commission had approved company plans to transfer two generation facilities to AES Ohio. Once the transaction was completed, the company said employees represented by Local 175 would lose their rights to transfer into open jobs at DP&L because they would not longer be DP&L employees. The Utility Workers local submitted a grievance and simultaneously filed the lawsuit seeking a temporary restraining order and preliminary injunction to halt the transfer pending an arbitrator’s decision on the grievance.

The union is not entitled to an injunction to block an Ohio power company from transferring more than 290 jobs to a nonunion subsidiary.

Both DP&L and AES are subsidiaries of parent company DPL, Inc. The union said the companies constitute a “single employer” that is bound by Local 175’s collective bargaining agreement.

“A federal court may sometimes issue an injunction to block an alleged breach of contract pending arbitration of a labor dispute,” Judge Thomas M. Rose of the U.S. District Court for the Southern District of Ohio said. A court may grant injunctive relief if the dispute is subject to binding arbitration and there are “traditional equitable bases” for court intervention, including a showing that irreparable harm would result without an injunction.

“Local 175 failed to show the union or its members would suffer irreparable harm if they have to wait for the dispute to be resolved in arbitration,” Rose said.

If the union succeeds at arbitration in showing the corporations are a single employer, the combined companies likely will have sufficient assets to cover the cost of traditional reinstatement and back pay remedies for any affected employees.

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

Stark Reminder that Non-Union Employees are Usually Allowed to Strike

On December 20, a supervisor told three non-union employees at Hyundai Motor Manufacturing that on December 22 instead of working their normal 6 AM to 2 PM shift they would work a 6:30 AM to 3 PM shift. When the schedule change was not posted, and those employees were told to stay until 3 PM, they walked off the job at 2 PM in protest.

The employees returned to work the next day and were interviewed by management. They were interviewed separately but asked identical questions including whether they talked with each other before leaving. The employees continued to work until January 11 when they were given identical termination letters that said they voluntarily resigned when they walked off the job on December 22.

The employees filed an unfair labor practice charge over their termination. The Administrative Law Judge ruled that the manner of the interviews and questions asked during the interviews were unlawfully coercive. Huh? You can’t interview employees separately anymore? Further, the ALJ ruled that the walk-off was protected concerted activity because they were protesting a term or condition of employment, i.e. a changed schedule.

This case is a lesson for all my clients and audience members at seminars who don’t believe me that non-union workers are generally allowed to walk off the job or go on strike. Hyundai’s penalty for unlawfully claiming the employees voluntarily quit their job when they walked off is to rehire them with back pay, which means paying the employees their salary, benefits, and any ancillary items for the past 16 months.

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.

Ohio Not Likely to be Right to Work Anytime Soon

I am often asked these days whether I think Ohio will become Right to Work. My answer is unequivocally the same each time. No. While I am a supporter of employees having the right to decide whether they want to be in a union, early results from Indiana’s recent foray into being right to work may have many employers wishing it was still business as usual.

Indiana had 299,000 paying union members last year, up from 249,000 in 2013, the last year it was a compulsory unionism state like Ohio. This meant that union membership, which had dipped to as low as 9.1 percent in 2012 was back up to 10.7 percent in 2014. And, the number of Indiana workers who are represented by unions but are not paying dues rose to 335,000 last year, which is 12 percent of the total workforce.

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.

Electrical Workers Union Sparks Lawsuit Over Banner and Flyers at Hospital that Retained Non-Union Construction Company for Expansion

I have been involved in a few of these union demonstrations and they walk a very fine line between being protected under the First Amendment of the U.S. Constitution as free speech and being unprotected and thus unlawful. Since the difference between lawful free speech and unlawful antics is razor thin and heavily fact-dependent, I will not opine on the merits of the lawsuit.

In 2012, a hospital in Las Vegas hired Kitchell Construction to build an expansion to its Siena Campus hospital in Henderson, Nevada. Kitchell Construction is non-union and hired a non-union contractor to handle all electrical work at the site. The electrical union was upset by this and protested.

The local chapter of the International Brotherhood of Electrical Workers (IBEW) union allegedly defamed a Las Vegas hospital that hired non-union contractors by posting a sign: “Danger 1 out of 10 People Die at This Hospital” on a banner that contained images of a coffin and two tombstones. The union also passed out flyers that stated: “1 out of 10 people DIE at Siena Campus, Death among patients with serious treatable complications.” At the bottom of the flyers was the phrase: “Brought to you by the IBEW Union Local 357 Information Department.” The flyers also referred readers to a website, HospitalSafetyScore.org, which does not substantiate the union’s claims. According to the Hospital, the information is completely false.

Trained labor professionals will notice the importance of the phrase “brought to you by the IBEW Union Local 357 Information Department,” since it is generally lawful for the union to disseminate such rhetoric for information purposes, only. Whether this phrase will cloak the banner, message, graphics, and passing out of flyers is not yet answered.

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.

The Laborers Union Guilty of Union Busting

The Laborers International Union of North America (LiUNA and Laborers) did not hire a union contractor to oversee a massive renovation at its Washington D.C. headquarters. The union awarded a major renovation on its $28 million downtown office building to Davis Construction. Adding insult to injury, Davis Construction is in the midst of a labor dispute with the local Carpenters Union, and the contract between LiUNA and Davis does not require the use of any union members. The irony of this is that the Labors frequently – I know from experience – use disruptive protest tactics to force builders and their customers to use union labor. This just goes to show you that unions are businesses, and like most businesses, hire companies that are cost-effective and competent.

Is the Federal Government Giving Increased Scrutiny to Non-Union Factories?

Representative Martha Roby (R-AL) is concerned that the U.S. Department of Labor is targeting Southern vehicle and auto-parts manufacturers because of their failure to unionize.

Southern automotive manufacturers are now subject to in-depth inspections as part of an OSHA regional emphasis program. This increased scrutiny comes a year after the agency announced union representatives may accompany OSHA officials when inspecting non-union sites – an organizing tactic unions now use.

Department of Labor Secretary Thomas Perez explained to Congress that Alabama’s auto-parts manufacturers in particular had seen about 4.5 occupational injuries per 100 workers, compared with the average of 3 per 100 nationwide. He used 2010 statistics. But 2012 statistics, the most recent available, shows that both Georgia and Alabama have a better safety record than the national average. Left unanswered is why did OSHA wait until 2014 to implement a regional emphasis program if it was truly concerned about 2010 injury statistics.