Union Sues Member for $24,000 for Crossing Picket Line and Reporting to Work

In 2016, 40,000 Verizon workers walked off the job and went on strike during contract negotiations. The Communications Workers of America union spent 6 weeks on strike. After the strike ended, the CWA sued one worker who, kept working during the strike. According to the lawsuit, that employee “continued to work throughout the strike and earned considerable compensation including regular time compensation, overtime compensation, incentive compensation, and health care and other benefits.”

Per the union’s Constitution, it held its own trial where a jury of her brotherhood ruled that she owed the CWA over $24,000. Since she refuses to pay the penalty, the union filed suit asking a real federal court to uphold the fine imposed by the union’s kangaroo court.

All of this because an employee wanted to work.

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. 

 

First Amendment Requires Police to Respond to Employer’s Complaint about Union Trespassers

When over 1,000 demonstrators showed up on the Venetian Casino Resort’s property in Las Vegas, the casino believed they were trespassers and asked them to leave. The resort then asked the police to intervene. The union filed an unfair labor practice charge with the National Labor Relations Board alleging that the Venetian interfered with the demonstration and employees’ rights in violation of the National Labor Relations Act. In response, the Venetian argued that its conduct in calling the police was protected by the First Amendment, which protects “the right of people…to petition the government for redress of grievances.”

The Noerr-Pennington doctrine interprets the First Amendment and insulates a company from liability where its conduct is a direct petition to the government. The D.C. Circuit Court of Appeals concluded that the Venetian’s “request that the police officers at the demonstration issue criminal citations to the demonstrators and block them from the walkway” was a protected petition to the government. However, that is not the end of this case. The Court remanded the case to the Board and directed the Board to consider whether the Venetian’s request for police intervention was a sham. If the Board determined that the petition was a sham, or that it was “objectively baseless,” then the Venetian’s request for police intervention would not be protected by the First Amendment.

Companies should not expect that all calls to police related to union activity are protected by the First Amendment. However, in some circumstances, such as when a company is trying to protect its property interests, the protection offered by the First Amendment and the Noerr-Pennington doctrine is a powerful tool in a company’s toolkit.

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.

Large Inflatable Animals Allowed as Part of Union Protest at Resort

A Las Vegas resort contracted with a construction company to perform renovation work at the resort, and the construction company sent contracted work to an environmental company. Neither the resort, construction company, nor the environmental company were represented by the Laborers International Union of North America (LIUNA), the union that chose the resort as its grounds for staging a protest. LIUNA displayed banners stating that the construction company supported immigrant labor abuse by hiring the environmental company. The Union also used 18-20 foot tall inflatable characters, including a rat, cockroach, pig, and cat as part of its protest.

The hotel filed an unfair labor practice charge, and the National Labor Relations Board’s counsel issued a complaint alleging that LIUNA violated the secondary boycott provision of the National Labor Relations Act (NLRA). This provision prohibits a union from using restraint or coercion to force a neutral organization (here, the resort) to cease doing business with an employer (the environmental company) that has a labor dispute with a union. However, a union may use a stationary banner on the employer’s premises in a non-disruptive way to publicize a labor dispute.

The Board’s general counsel argued that the union’s conduct violated the NLRA because the union’s banners and inflatable animals interfered with access to the hotel’s property. The administrative law judge (ALJ) who heard this case disagreed with the general counsel stating that, “there is no evidence that anyone was actually blocked, impaired, or delayed in accessing the front entrance walkway because of the placement of the banner.” The ALJ also found that LIUNA had not trespassed because there were no signs identifying the area in question as private or restricted property. The ALJ dismissed the complaint finding that any blockage of the hotel during the three weeks of union activity was minimal and concluded that none of the union’s inflatable animals “directly disrupted, or threatened to disrupt, the hotel’s operations.”

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.

Signs in Car Windows are a Lawful Form of Picketing

The collective bargaining agreement between the company and the International Brotherhood of Electrical Workers (IBEW) union prohibited “picketing of any of the Company’s premises” during the term of the contract. The union had a long-standing practice of commencing informational picketing before the expiration of each previous contract. Recently, the union passed out picket signs to employees bearing the messages “Honor Our Contract.” Employees placed these signs inside the windows of their personal vehicles when they parked in the Company’s lot during their work shifts. The Company instructed the employees to remove the signs.

Whether the signs in the car windows violated the no-picketing rule was arbitrated. The arbitration panel concluded 2-1 that the union members violated the contractual ban by stating, “Picketing does not have to be a sign on a stick.” On appeal, the National Labor Relations Board reversed the arbitration panel concluding that the arbitration award was “devoid of any reasoning to support its conclusion that the conflict constitutes picketing.” Further, the arbitrators failed to point to evidence that the contract was intended to cover window displays in parked cars. While the Board conceded that the display of stationary signs may constitute picketing under the National Labor Relations Act, it said “in such cases, the Board has relied on the presence of individuals in the area where the signs were stationed.”

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 Loses ULP Alleging Walmart Acted Unlawfully by Removing Protesters to Public Sidewalks During Black Friday Protests

If your remember, OUR Walmart – a UFCW backed union organizing committee focused on Walmart – engaged in demonstrations and picketing outside of Walmarts across the country on Black Friday (the day after Thanksgiving) 2012. After their demonstrations were over, OUR Walmart filed unfair labor practice charges against Walmart alleging that Walmart violated labor laws during the protests. 

One of the allegations OUR Walmart made was that Walmart violated Section 8(a)(1) of the National Labor Relations Act by telling employees that they could not be on company property and having police escort them off premises. Apparently as busloads of demonstrators arrived at each store to picket they were told by Walmart representatives that they could not picket or demonstrate on the company’s private property and they were moved to public sidewalks.

Importantly, the demonstrators included non-employees as well as employees who worked at different locations than where they picketed. Non-employee demonstrators can be removed from company property, and employees who are off-duty have less access rights than on-duty workers.

Since Walmart had a lawful solicitation and distribution policy requiring non-employees to obtain prior approval for activity on company property, and no Walmart employee made a request to remain on company property, Walmart acted lawfully by removing the protesters from its property.

Does your company have a lawful solicitation and distribution policy? Is it evenly and consistently enforced? Companies never know when a union will picket their facility. I have represented companies with just a few employees against rogue picketing by a zealous union. Having a lawful solicitation and distribution policy is a huge benefit when trying to thwart an uprising outside your front door or in your parking lot so you can continue conducting business. Make sure you are prepared.

Matt Austin is a Columbus, Ohio 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. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

Unions Strike While the Weather’s Hot

My clients like to tell me that their employees will never go on strike. No matter how contentious negotiations get, or how angered their workers become, their people will never engage in the ultimate act of solidarity. And for the most part, my clients are right. However, just because they’re right, doesn’t mean they shouldn’t prepare for a strike or be aware of strikes at other companies in their industries.

Strike activity generally peaks during warm months and declines during the winter, so we are in the height of strike season now. Two industries where many of my clients exist – grocery and ambulance – are making strike news this summer. Another industry where I do not (yet) have clients is also worth mentioning. Regardless of industry, these laws and tips apply to most companies in most industries.

Ambulance Industry Striking for Higher Wages

Gold Cross Ambulance workers in California who are represented by the Teamsters went on strike in an effort to increase starting salaries – currently set around $9.00 per hour. This is just one of the many strikes around the country by workers seeking to increase their wages. You have probably heard about strikes in the non-union fast food industry, too. While employees can strike for higher wages and solicit public support for their plight, workers’ wages must be negotiated at the bargaining table and companies are under no obligation to increase wages during bargaining.

Grocer to Close if Workers Strike

The UFCW has threatened to strike Ralphs and Albertsons over what it considers measly health insurance contributions. Under the most recent management offer, workers would pay $36/month for individual health insurance and $92/month for family coverage. I bet you pay more than that. Ralphs will temporarily close all Southern California stores and Albertsons will shut down 100 stores if grocery workers strike. This drastic action is not necessarily a bad business move – especially since the 141 day strike of 2003-2004 cost the company over $1.5 billion. The chain may have difficulty proving to the NLRB that shuttering the stores was not in retaliation for workers going on strike, though.

Funeral Company Goes On Offensive Against Striking Teamsters

A temporary restraining order seeking to quash horrific activity by striking Chicago Teamsters employed as funeral directors and drivers of 16 different funeral homes was granted. These workers went on strike because their employer wanted to end its involvement in the notoriously underfunded Teamster Pension Fund and instead provide 401k retirement benefits to the workers. Angry with this suggestion, the workers went on strike and engaged in the following abhorrent behavior:

  • Laughed, joked, and created a disturbance at the only public entrance to the funeral of a young child who passed away from cancer;
  • Unleashed a German Shepherd and intimidated a woman and her father who were planning a funeral for her recently deceased mother;
  • Shouted sexually explicit taunts at a woman in front of her toddler children while she made funeral arrangements for her grandmother;
  • Blocked a grieving widow’s vehicle as she tried to exit the parking lot;
  • Used the siren function of a bullhorn, compressed air horn, and shouted to disturb funeral services.

While these examples may seem extreme, they’re not. Obviously they are real and can happen to any company. I encourage you to become familiar with some of the laws surrounding strikes and picketing so if (hopefully not when) you find your company in a similar situation you will have a better understanding of how to react. My website or my two-part series on picketing is a good place to start, and of course, if you have any questions you are always welcomed call me.

Matt Austin is a Columbus, Ohio 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 always call Matt at 614.843.3041 or email him at Austin@LaborEmploymentOSHA.com

What is a Union Organizing Drive?

I have helped clients through many surprise OSHA investigations, Form I-9 audits, and other workplace investigations. Nothing gets the same type of reaction from an employer as “there is a union trying to organize your employees.” While some employers threaten to close the place down if a union gets in (you can’t) and others swear that everyone will make minimum wage if the union gets in (don’t say that), most employers take those words very seriously and immediately contact legal counsel to begin preparing to defend against the drive.

But what is a union organizing drive, really? There are two distinct phases of a union organizing drive, the pre-petition period and the post-petition period. The petition, of course, refers to the RC Petition that a union files with the NLRB seeking to have a secret ballot election to represent the employees in the proposed bargaining unit.

Pre-petition organizing drives are not always done in secret. When organizing is open, unions regularly trespass on business owners personal property, follow and intimidate rank and file employees who do not support the union, picket outside a company or owner’s home, and run advertisements in local newspapers or put up billboards near the place of business they are organizing that erroneously paint the employer as evil. Now, the goal is not only to get the employees to believe they need the union in order to keep their jobs, but to also get the employer to cave into accepting the union without providing the employees with the benefit of a secret ballot election.

Once enough authorization cards are signed and the union realizes that the employer is not caving, the union files an RC Petition and post-petition organizing begins. Representation elections generally occur around 46 days after the RC Petition is filed. However, the NLRB recently shortened that time frame dramatically, which is scheduled to take effect on April 30, 2012. A union’s tactic’s typically become more aggressive after an RC Petition is filed, since there is no longer a need for secrecy, and the union knows that the employer will be countering many of the brazenly outrageous promises a union organizer makes to an employee just to get them to sign an authorization card and vote for the union.

For example, most unions will convince employees that with the union they will 1) make more money and 2) not be laid off or fired. The truth is that if a union is voted into a workplace all bargaining unit members wages are subject to negotiations. So employees could make more, less, or the same as before they were members of a union. Second, union members can, and regularly are, laid off and terminated. A collective bargaining agreement does not insulate employees from losing their jobs.

Union organizing drives are not fun. When faced with an organizing drive, employers must do whatever it takes to keep the ability to run their own company. Understand that once a union is voted in, it will increasingly assume more and more control of running a company. Many of my clients are busy taking care of the day to day business necessities to forecast where their company will be in 5 or 10 years down the road, after 3 successor collective bargaining agreements, if they lose a union election. Organizing drives must be taken seriously, and legal counsel should be involved from the earliest possible point.