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.

Striking Employee: No Need to Pay Them, But Can You Cancel Their Health Insurance?

The National Labor Relations Act is 81 years old. Nearly 70 years ago, the National Labor Relations Board confirmed that an employer has no obligation to finance a strike against itself by paying wages to employees during a strike. Relying on this, labor practitioners have routinely stopped wages, health care, and other perks of employment when employees go on strike. I know I have done this for several of my clients over the years. When done, strikers usually go on the union’s health care plan so long as they pay their premium and spend time walking the line. Is anyone surprised that the current NLRB changed the law last month and ruled that stopping health care during a strike may now be illegal?

In Hawaiian Telcom, Inc. (Feb. 2017), the two Democrat Members of the Board concluded that an employer’s right to stop benefits is a matter of contract interpretation. That is, unless the collective bargaining agreement says an employer can do it, an employer cannot do it. Specifically, in Hawaiian Telcom, the contract provided medical insurance for all employees covered by the Agreement, with no exceptions, except for termination of employment. Strikers have not terminated their employment, so the NLRB decided that medical benefits could not be stopped during the strike, even though the collective bargaining agreement had expired.

This decision adds yet another layer of complexity to negotiations. Management negotiators must be prepared to clog up a collective bargaining agreement by including extremely detailed nuances of when contract clauses apply and when they do not apply. This is bad news for both labor and management and erodes one of the tenants of the intent of the National Labor Relations Act – to provide for labor stability.

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.

2016 Work Stoppages Tell a Funny Tale

In 2016, there were 15 major work stoppages, defined as either a strike or a lock out. This is an increase from 12 major work stoppages in 2015. These stoppages involved 99,000 workers (the most since 2012) and resulted in 1,543,000 days idle (the most since 2008).

In summary, there were more stoppages, involving more workers, and more missed workdays. So why is this funny? Because last year also saw a record low number of workers in unions. This confirms what I have been telling my clients and audiences – while union density is shrinking, the remaining union supporters are aggressive. Unions are agitating more than before; they are “working to rule” more than before; they are more confrontational than before, and the laws protect unions more than ever before. Labor unions know their backs are against the wall. They dusted off their playbooks from the strike-heavy 1970s.

Companies: Now is not the time for complacency. Are you prepared for a walk-out? Can you operate during even a short term strike? Do you have a strike contingency plan?

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.

Petroleum Company Settles with Steelworkers for $8.08M Over Unpaid Bonuses During Strike

Tesoro agreed to pay more than $8.08 million to 769 employees at its Carson, CA and Anacortes, WA facilities who engaged in a strike during the winter of 2015. This amounts to over an average of more than $10,500 per worker.

According to the NLRB’s press release, in March 2015, Tesoro awarded bonuses for the previous year to non-unit and non-striking employees, but withheld such bonuses from striking employees deeming them ineligible to receive bonuses under the parties’ Memorandum of Understanding. These annual incentive bonuses were based upon performance and profits during the previous calendar year.

In response, charges were filed by the Steelworkers against Tesoro with the NLRB in California and Washington alleging that the accrued bonuses were not paid in retaliation for the employees’ strike, and that failure to pay the bonuses was an unlawful modification of the parties’ contract. After the NLRB issued complaint in both cases, parties reached this settlement which will provide workers with 100% of the bonuses that they were eligible for under their contract.

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.

NLRB Orders Company to Condone Racism at Work

The NLRB has stretched the bounds of the law as thin as possible with its latest ruling aimed at protecting racist comments hurled at replacement workers by strikers.

Cooper Tire employee Anthony Runion was picketing during a strike. He shouted admittedly offensive an racist taunts at black replacement workers, referencing fried chicken and watermelons, among other insults. He was fired. An Arbitrator upheld his termination. But, an NLRB administrative law judge cited that there were no express threats and that the firing was “clearly repugnant” to the National Labor Relations Act. The NLRB agreed and ordered Cooper Tire to reinstate Runion with full back page. Cooper Tire appealed the decision to the Eighth Circuit Court of Appeals.

Several business groups have also filed brief with the court arguing that the NLRB’s position is inconsistent with federal discrimination laws, protects racist comments, and essentially requires employers to condone racism in the workplace. In retort, the NLRB argued that the act of picketing involves “an element of confrontation” and some “impulsive behavior is to be expected” Further, per the NLRB, no cases have found employers liable under the discrimination laws for only two racially offensive remarks.

The Board’s position here reminds me of the way in which the Board allows employees to yell, curse, and intimidate their supervisors rendering their supervisors powerless to discipline such disruptive employee antics. I am also reminded of a phrase I read somewhere of how the NLRB permits employees to do at work what is illegal if done outside of work. The Eighth Circuit’s decision will be very interesting.

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.

NLRB GC Seeks to Make Unlawful Intermittent Strikes Lawful because They’re Gaining Popularity

As covered before, the National Labor Relations Board’s General Counsel, Richard Griffin, believes that intermittent strikes deserve legal protection – and announced he is seeking test cases to bring before the Board. Intermittent strikes fall into murky legal territory. Workers who strike more than once or twice run the risk of being fired for it. Yet, repeated strikes are getting more common. Griffin argues that intermittent strikes should be protected when they meet three criteria:

  1. No Disguised Slowdowns: “They involve a complete cessation of work, and are not so brief and frequent that they are tantamount to work slowdowns.” Striking for 10 minutes every half-hour would not be protected, but a series of one-day walkouts would. The general counsel suggests that strikers should not “reap the benefit of a strike without jeopardizing pay or risking replacement.
  2. No Usurping the Boss’s Authority: “They are not designed to impose permanent conditions of work, but rather are designed to exert economic pressure.” Leaving work after seven hours in order to establish a seven-hour day would not be protected, but boycotting overtime or weekend work to exert economic pressure on the company might be.
  3. The Point is Clear: The employer would have to be made aware of the employees’ purpose in striking.

One reason Griffin is urging this update is to “address changed industrial conditions – including the rise of worker movements outside the traditional collective bargaining model.” Non-union workers – such as the fast food workers, retail janitors, and airport workers who have walked out on recent, repeated short strikes – don’t have grievance procedures or the ability to sit down and negotiate with management. They typically earn less than union members, Griffin points out, and do not have access to strike funds, making it more difficult to pull off longer strikes. 

Since when does the amount of money an employee makes, or an employee’s ability to tap into strike funds determine whether a strike is (or should be) lawful? Either these faddish intermittent strikes have always been lawful or are not (now) lawful. There is no reason to change the law because of “a rise in worker movements outside the traditional collective bargaining model.” If it is outside the traditional governance of the National Labor Relations Act, then it is unlawful. Should looting also be made legal, since there has been a rise in that, too, over the past few years?

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.

NLRB GC Seeks to Change the Law on Short Duration Strikes to Disadvantage Employers

The National Labor Relations Board’s General Counsel’s office said the agency’s test for deciding whether multiple short-term strikes were protected is difficult to apply. So he is asking the NLRB to “clarify and modify” the law. Along with the memo was a model brief, which regional officials were asked to include in filings with the NLRB and administrative law judges, with a proposed framework to evaluate whether intermittent and partial strikes are protected under the NLRA.

Taken together the documents signal an intent from the General Counsel’s office to broaden protections for workers who take part in short-duration strikes.

One-day and other short-term strikes are most often used by unions during contract negotiations. Fast food, retail, and other non-union workers are also increasingly using these tactics in their campaigns for higher wages and better working conditions, i.e. Fight for 15, an effort aimed at raising the minimum wage and backed by the SEIU. In one instance last November, the Fight for 15 group launched a one-day strike in 270 cities across the US.

Legally, both union and non-union workers who take part in a short-duration strike have the same protections under the NLRA as do workers who engage in long-term strikes. Where things get murky is when workers engage in multiple, short-term strikes.

For decades, the NLRB has held workers who strike multiple times, especially in the same labor dispute, can face discipline, including termination. Under the General Counsel’s proposal, multiple short-term strikes would be protected if they involve a complete work stoppage and aren’t so brief and frequent that they amount to work slowdown; if they are not designed to impose permanent condition of work but rather to exert economic pressure; and if the employer is aware of the workers’ reason for striking.

Employers are left wondering how realistic is it to engage in permanent replacements or subcontracting for a one-day strike, or a one-hour strike, or a 45-minute strike every other day? Also, what about replacement worker contracts that require a minimum of 5 days pay to the replacement workers – employers will need to pay replacement workers despite regular workers returning from strike only one day after the strike began.

This is an issue that not many companies are following, but it is important since strikes, especially ones lasting a very short amount of time, are increasing. Hopefully this law will not change before a new, President Trump-appointed General Counsel takes office.

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.