President Trump’s Proposed Budget Eliminates Union-Funding Harwood Grant

President Trump’s budget slashed the Department of Labor’s funding from $12.2 billion this year to $9.6 billion next year. This equals a 21% cut. On the chopping block is the DOL’s Susan Harwood Training Grant Program. You don’t know what the Susan Harwood Grant is? I didn’t either.

The Susan Harwood grant gives out grants to nonprofit organizations to train workers in dangerous jobs. At least that’s what it’s supposed to do. Instead, labor unions and labor-affiliated advocacy groups – think worker centers – received millions of dollars from the grant program under President Obama.

Many people think there are problems with Harwood grants. For example, Restaurant Opportunity Center (ROC), a worker center, used grant money to urge employees to take action by “working with worker advocacy organizations to find successful ways to get your rights to decent pay and safer working conditions.” Seems like a blatant plug for union organizing to me.

One question I have is whether federal tax dollar grants should be used to further union organizing efforts. Seems like the House Appropriations Committee in the 114th Congress agrees because it concluded that the Harwood grant program is “inefficient and ineffective in achieving its intended purpose.” It’s intended purpose was to train workers in dangerous jobs not organize unions in the restaurant industry.

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.

Tesla Fights Back Against UAW Organizing Drive

A few weeks ago I mentioned that the UAW had Tesla in its crosshairs. And, as expected, it didn’t take long for Tesla to start fighting back. Tesla CEO Elon Musk recently spoke to some of his employees about the issue. First, he refuted the allegations of how unsafe the workplace is, specifically, that most employees in a specific job classification were out on medical leave at the same time due to various work-related injuries.

Next, he promised a frozen yogurt machine and an electric pod roller coaster machine. Now, those of you who follow this blog and/or regularly deal with labor relations knows that employers are not allowed to make promises of benefits to employees during a union organizing drive. Did Mr. Musk just break the law? Maybe. Maybe not. If the frozen yogurt and roller coaster machines were already in the works before the organizing drive started, he likely did not break the law. But that’s not for me to decide – I’m more curious what an electric pod roller coaster machine is….

In another ramp-up of staving off the union drive, Tesla (likely) registered domain names referencing Tesla, unions, and the UAW. I say Tesla likely registered these names because the domains use MarkMontior’s domain name privacy service – the same as Tesla (and this blog) while the UAW uses GoDaddy. Here are some of my favorite registered domains:

  • testlaunionfree.com
  • uawdestroysjobs.com
  • uawkillsjobs.com
  • uawsucks.com
  • unionfreetesla.com
  • uawrocks.com (really, Tesla?)
  • unsafetesla.com

That last name coupled with the public relations cry that workers were off sick show that the UAW has made safety a priority organizing theme. Is Tesla really that unsafe? Maybe. Do  Tesla workers need a union to make the place safer? No, that’s OSHA’s job.

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.

Union’s Right to Walk Around Your Company with OSHA Being Challenged in Court

Thankfully, the National Federation of Independent Business (“NFIB”) has challenged a rule that has been around for only a short period of time called the Union Walk Around Rule.

For background, when OSHA inspects a workplace, an OSHA Compliance Officer does a “walk around” where he literally walks around the workplace looking for violations of the OSH Act. Employers and/or their representative (OSHA consultant) are permitted to accompany the Officer during the walk around. Pursuant to the 2013 Union Walk Around Rule, a union official is permitted to accompany an employee during a walk around of a non-union workplace. Let me repeat that. A non-union workplace must allow a union official, whose job is to organize workers, complete access throughout the workplace during an OSHA inspection.

This is how it plays out: a union is trying to organize a workplace and some employees support the organizing drive. To show the employees that the union is working for them, the union instructs an employee to call OSHA and allege a violation of the OSH Act. There doesn’t need to be merit to the allegation; it’s just an allegation that triggers the OSHA investigation. When the inspector shows up to inspect, the union organizer is permitted to walk with the inspector. This grandstanding allows all workers to see the organizer, gives the organizer the opportunity to speak with workers while they are working, and provides an opportunity for the union to see “behind the scenes” of the company it is trying to organize.

NFIB argues that nothing in the OSH Act allows a non-employee to accompany the compliance officer. Stay tuned for the outcome. This will be interesting.

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.

Company Ordered to let Union Investigator onto Site of Fatal Accident

A union-represented worker was crushed to death at work. Union officials visited the scene of the accident and then asked their own health and safety specialist to investigate. The company denied the union’s investigator access to the accident site. Instead, the company provided the investigator with two videos reenacting the accident.

The union filed an unfair labor practice charge with the National Labor Relations Board, and the Board ordered the company to grant access to the investigator. The appellate court affirmed the Board’s order and concluded that the union’s right to represent its employees outweighed the company’s interest in protecting its property rights. The court criticized the two reenactment videos provided to the investigator because they lacked text or voices, had no sound except for “unexplained background noise,” and only showed one angle of the scene. These low-quality videos made it impossible for the court to understand what the videos were intended to demonstrate.

This case reaffirms our experience – that it is difficult for companies to justify excluding a union investigator from an accident site. Unions have the right to investigate circumstances surrounding workplace injuries consistent with their duty of fair representation of their members. But, that right has some limitations, so companies should consult counsel before unilaterally deciding to exclude unions from the site of workplace injuries.

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.

Fast Food Workers’ Corporate Campaign against McDonald’s Includes Occupational Safety and Health Charges

McDonald’s workers recently filed complaints with the U.S. Occupational Safety and Health Administration (OSHA) in 19 cities alleging burns from popping grease, lack of protective equipment, and other workplace hazards. The complaints are a tool to exert public pressure on McDonald’s as fast food workers campaign for $15 an hour wages and unionization. The Service Employees International Union (SEIU) began the push for higher wages and unionization more than two years ago. Among other tactics, the SEIU has protested and filed lawsuits alleging workers weren’t given their rightful pay.

Filing charges with OSHA and lawsuits over wage and hour misclassification or unpaid overtime are a typical tactic unions use when seeking to organize a workforce. The goal of this multi-prong approach is to overwhelm employers and force them into agreeing with the union’s demands.

The recent complaints highlight a central theme of the “Fight for $15” campaign, which has been trying to hold McDonald’s Corporation and its franchisees accountable as “joint employers” for working conditions at its franchise restaurants. Fast food chains have explained that they are not responsible for employment decisions at franchised restaurants, but this has not deterred the unions.

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.

Union Unlawfully Denied Access to Manufacturing Facility for Independent Investigation Because Company Permitted Others to Tour Facility

In September 2011, an employee of Caterpillar, Inc., who was a member of the United Steelworkers union (USW), died after being crushed by a heavy piece of equipment. The accident was properly reported to the police and the Occupational Safety and Health Administration (OSHA).

The president of the Local Union notified the USW Emergency Response Team (ERT). The ERT dispatched a representative to the facility, but she was denied entrance by company officials. Caterpillar assured the ERT that it was cooperating with the local police’s and OSHA’s investigations and additional investigation by the union was not required by the collective bargaining agreement and would not be productive. The Company also cited its need for protection of confidential information about plant processes as reasons to prohibit the union access to investigate the death.

The National Labor Relations Board found that Caterpillar allowed customers, dealers, technical groups, and students to tour the plant during working hours. Specifically, plant tours could pass the area where the accident occurred, and there was no evidence the company required participants to sign nondisclosure agreements as a condition of visiting the plant, nor were products or processes concealed during the tours.

Caterpillar, Inc. violated its duty to bargain with the United Steelworkers Union when it denied the union’s request to send an accident investigator into a Wisconsin manufacturing plant after a workplace fatality.

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.