Union On Hook for Non-Member Worker’s Back Pay After Refusing to Represent Him

A discharged Cummins, Inc. plant worker who wasn’t a union member may be entitled to have the Machinists union pay his lost wages after the union refused to arbitrate his complaint contesting the firing.

Machinists Talbot Lodge No. 61 represents all of the production and maintenance employees at a Tennessee Cummins plant, but a union told a worker that it would not challenge his firing because he wasn’t a union member. The union presented testimony that its decision was because the claim lacked merit. The ALJ didn’t buy it. Amchan ordered the union to request reinstatement with back pay or arbitrate the firing.

Unions have a duty of fair representation to all employees in a bargaining unit regardless whether employees in right-to-work states, like Tennessee pay union dues.

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.

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.

Unions Adapt to Right to Work Laws to Increase Membership

The United States now has more right to work than compulsory unionism states. In right to work states, employees are not forced to be in a union just to work at a union company. Employees, instead, choose whether to join the union and pay union dues or not pay union dues. Regardless of their decision, if the company is unionized, the union represents everyone – even those who do not pay dues. This has proved challenging to union organizers whose job is to increase revenue through dues paying members.

I recently stumbled upon some of the playbook organizers use in right to work states to increase dues.

  1. Fight the Boss

One key to surviving right to work is to do the essentials that unionists should be doing anyway: win grievances. Fight for a good contract. Involve members in regular meetings. Distribute newsletters that report your victories and struggles.

Interesting that the first rule is to create hostility at work. Instead of focusing on positive aspects of employment, the union’s objective is to “Fight the Boss” and flaunt it.

  1. Ask People to Join

Signing up a new member can be as simple as asking your co-worker to join the union: they’re not going to join if no one asks. Remind co-workers of all the ways the union has benefited them personally. Let them know their co-workers don’t appreciate their freeloading.

This assumes the union has benefited the co-worker. What about the co-worker who is not receiving merit pay increases or promotions because of the union contract? Further, is there an implied threat in letting co-workers know you “don’t appreciate their freeloading?”

  1. Make Membership the Union’s Business, Not the Boss’s

Every new employee should be welcomed into the union right away. Push for contract language that allows union leaders to talk with new hires at orientation. To prevent Human Resources from pushing drop-out forms, propose contract language that prohibits the employer from talking with bargaining unit members about union membership. That’s your business, not theirs.

While I’ve seen these clauses before but they don’t stay in a collective bargaining agreement that I’ve negotiated. Orientation is during working hours, and employees are being paid to attend. The Union has the right to talk with employees outside of work.

  1. Track Union Membership

Cross-reference your seniority list to identify those who aren’t paying dues. In your union meetings, include monthly reports on membership where you name the people who are freeloading! This helps to create a culture where it’s not okay to freeload off your co-workers.

So that was an implied threat about freeloaders in No. 2. Here, the union condones bullying co-workers until they become dues paying union members.

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.

Local Right to Work Laws Not Preempted by National Labor Relations Act Paving the Way for Counties and Municipalities in Compulsory Unionism States to Go Right to Work

In an effort to have one cohesive labor law that governs the country, the National Labor Relations Act generally preempts labor regulation on the state and local level. There are exceptions, however, including the ability for states to adopt “right to work” laws. Surprisingly (and thankfully) the Sixth Circuit Court of Appeals just ruled that state exemption extends down to the local government, as well when it upheld a Hardin County, Kentucky right to work ordinance.

The NLRA allows businesses and labor to enter into “union security agreements,” where employees must either be members of the union or pay union dues. This prevents employees from reaping the (perceived?) benefits of organized labor without paying their fair share. But the NLRA also allows states to create exceptions to these rules called right to work laws that allow anyone to work regardless of union membership or dues paying. So in states that have not passed such right to work laws, some local governments have sought to step into their shoes by declaring union security agreements “unlawful, null, and void.”

In a case of near first impression, the Sixth Circuit had to wrestle with whether “State law” in the National Labor Relations Act also meant “local law.” Section 14(b) of the Act states:

Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.

According to the per curiam 3-judge panel, Sixth Circuit, “State law” can be treated the law of the state or any political subdivision. The court went on to cite City of Columbus v Ours Garage and Wrecker Service for more support:

Absent a clear statement to the contrary. Congress’ references to the ‘regulatory authority of a State should be read to preserve, not preempt, the traditional prerogative of the States to delegate their authority to their constituent parts. (Emphasis added)

What this means is that courts cannot presume that local governments are excluded from powers given to the state. Since the NLRA explicitly allows states to interfere in the federal government’s “integrated scheme of regulation,” as far as right t work laws are considered, there can be no finding of implicit field preemption.

Sounds like the Sixth Circuit came to a reasoned, correct decision.

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.

Right to Work is Reserved for States to Decide, not Counties

About half of the states in the United States are what is called “right-to-work” states where employees do not have to join a union to work at a unionized company. Section 14(b) of the National Labor Relations Act specifically states, “Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.” Some counties have broadly read this clause to mean that the creation of right-to-work counties (and by that extension, cities, and “zones”) can determine to be right-to-work even though the state as a whole is not. These counties are wrong.

A federal district court in Kentucky recently found that the National Labor Relations Act preempts a county right-to-work ordinance banning the use of union-security agreements between employers and unions and regulating other practices that are either permitted or prohibited by federal law. Unions successfully argued that Section 14(b) of the Act allows states or territories to prohibit union-security agreements; it did not authorize counties to enact a right-to-work measure.

Good try Hardin County, Kentucky. Now, I wonder how Minnesota’s “right-to-work zones” are going to fair with the same argument.

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.

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.

Unionization isn’t Dead: How Unions Can Remain Relevant Despite Trend of States Becoming Right-to-Work

Wisconsin recently became the 25th state to go right-to-work. Now exactly half of the states in the country allow employees to opt-out of paying union dues even though the union has an obligation to represent everyone in their workplace. As you can imagine, unionization rates in right-to-work states are far below rates in compulsory unionism states. From a business perspective, you can’t blame unions for not spending money recruiting members in states where those members do not have to pay union dues.

Modern unions are changing with the times. They have recognized that traditional union organizing methods have resulted in decreased unionization rates each year for the past several years. For those unions, creativity will, they hope, propel them into the future. Short of having Congress repeal the part of the Taft Hartley Act that allows states to pass right-to-work laws, some of the proposed efforts may work, others are sort of wacky.

Unions may allow for “members-only unions.” Currently, if enough people do not voluntarily pay union dues, the union becomes weaker. But, if the union only had to serve those who supported it financially, it would take less money to administer the contract and the union would not be weakened. As such, only employees who pay dues are covered by the collective bargaining agreement. Some other options are:

  • Require disclosure of wage and salary information, which would allow workers to bargain for higher pay if they’re being lowballed relative to their colleagues.
  • Make union elections automatic by giving employees a default chance to vote on representation every few years. Personally, I’d like employees to have an automatic decertification vote every few years.

Unionization isn’t dead. Connecticut’s percentage of unionized workforce rose last year. In Las Vegas, the Culinary Union represents 90% of the hotel and casino employees – and Nevada is a right-to-work state. Indiana’s unionization rate has remained steady both before and after 2012 when it became a right-to-work state. And we all know that the National Labor Relations Board is doing everything (and then some) in its power to make it easier for employees to unionize. So, instead of spending so much time and energy trying to change laws, unions should focus on their successes and reminding employees of a union’s core competencies.

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.