Like Backyard Football when We were Kids, NLRB Allows a “Do-Over”

A union election was underway. One group of employees alleged co-worker Williams threatened to hang any employee who did not vote for the union “like they did…back in the 60s”. The company fired Williams. Williams filed an unfair labor practice charge over his termination. At hearing, the two employees maintained they heard the threat while three other employees said they did not hear Williams make a threat. When this “he-said-she-said” situation occurs, the Administrative Law Judge is required to decide which witnesses are more credible and make a ruling accordingly.

Here, the ALJ ruled that Williams did not make the statement, but then cast doubt on his decision by writing that he “might well be wrong,” and that “some doubt persists” regarding whether Williams made the threat. On appeal, the NLRB held that the ALJ had “undercut his own analysis” by not making a definitive credibility call.

The ALJ also appeared confused about the burden shifting requirements in this case. He seemed to believe that the co-worker had the burden of proving Williams made the threat about hanging people when actually the NLRB’s General Counsel had that burden.

Rather than doing what Boards in the past would have done and dismissed the case, the current Obama hold-over NLRB remanded the case back to the same ALJ for a determination of whether the general counsel carried his burden to prove that Williams did not actually make the statement about hanging.

A do-over. Go figure.

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.

Will New NLRB Stop Protecting Unlawful Employee Conduct?

Something is wrong when the EEOC can find an employer liable for tolerating racist or sexist remarks by employees, and the NLRB can find an employer liable for not tolerating racist or sexist remarks by employees. But that is the quandary employers are left with after eight years of watching the Obama NLRB change laws to protect unlawful employee conduct. Here are some examples that highlight this problem.

  1. Cooper Tire & Rubber locked out employees until a new contract with the union was reached. One evening, a vehicle of African American replacement workers drove by the picket line. One employee picketer shouted admittedly offensive racial insults at them. As a result, Cooper Tire terminated the offending employee for gross misconduct. The union grieved the termination. At Hearing, the ALJ found the termination to be lawful. The union appealed the ALJ’s decision. The NLRB reversed the arbitrator and said that the racist comments, while offensive, did not reasonably coerce or intimidate employees in exercising their rights protected by the NLRA. Cooper Tire has appealed the decision, which is pending before the Eighth Circuit Court of Appeals.
  2. The NLRB found a two-day suspension unlawful for an employee who grabbed his crotch and made a “mean and hateful gesture” while yelling the word “scab” at a female employee, and hitting her car mirror when she left work and crossed the picket line.
  3. The NLRB also ruled against an employer that disciplined a union employee for profane, threatening, and insubordinate conduct during a grievance hearing. That employee repeatedly used the “F” word, referred to a supervisor using an obscenity, attempted to physically intimidate the supervisor, and declared that she could curse, say anything she wanted, and do anything she wanted. The NLRB concluded that the employee’s conduct, although “obnoxious,” did not cause her to lose protection of the National Labor Relations Act.
  4. The NLRB found against a fast food sandwich shop for terminating an employee and warning another employee who hung posters in the store and nearby public places that depicted “sick” sandwich pictures and “healthy” sandwich pictures. The poster stated that since the employees did not get sick days, “We hope your immune system is ready because you are about to take the sandwich test.”
  5. An employer was found to have violated the National Labor Relations Act when it terminated an employee who posted obscene phrase about a manager and his family on Facebook.

Hopefully once President Trump has appointed (and the Senate has confirmed) NLRB Members to the two open slots, that many of the NLRB’s recent decisions that fail to recognize the legitimate business needs of employers will be replaced with ones that balance an employee’s right with an employer’s desire for safe and appropriate workplace rules.

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 Again Rules Telling Employees the Truth is an Unfair Labor Practice

Employees at Southern Bakeries filed a decertification petition in 2011 – yes, this case started in 2011. That election was unsuccessful. Another employee waited the required 1-year and filed a second decertification petition in 2012. After that filing, the employee collected signatures of 2/3 of the bargaining unit expressing their interest in decertifying the union. In response (because the law allows) the employer withdrew recognition of the union.

The union, as you can imagine, rejected the withdrawal of recognition claiming that it was unlawful. Per the union’s complaint, employees favoring the union had been subject to unlawful harassment and surveillance – including via surveillance cameras installed in the employee break room – and that management had made threats of plant closure and other reprisals.

In 2015 the case made its way to federal court. There, the judge ordered the bakery to continue bargaining with the union citing evidence that he believed caused the employees to reject the union.

At the end of 2016, Southern Bakeries filed its appeal to the judge’s ruling. In the appeal, Southern Bakeries argues that statements by company representatives that other unionized bakeries had been shut down or gone out of business and that collective bargaining could result in lower pay were not intended as specific threats and were First Amendment-protected criticism of the union (also protected by Section 8(c) of the National Labor Relation Act). It further argued that the alleged harassment and individual threats were either justified disciplinary action or did not happen, and that the break room cameras were to combat theft.

I do not know the ultimate outcome of this case, for it has not yet been decided. But there are two major takeaways for employers: 1) getting rid of a union is tricky, convoluted, and rife with legal hurdles employers must navigate; and 2) even when a company is within its Constitutionally-protected right to tell its employees the truth, it may still be bogged down in a legal quagmire by a union that is unwilling to let go of members who no longer want it.

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.

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.

Company’s Labor Consultant Violated Labor Law Defending Union Organizing Drive

During union organizing drives, some companies hire labor consultants (not to be confused with labor lawyers like me who only communicate with management) to speak directly with employees about the realities of joining a union. Most of the time labor consultants are helpful, and I have used several over the years to help defeat organizing campaigns. The consultants in this case may have crossed the line in zealously advocating for employees to vote no for the union.

One employee testified that a consultant asked him how he felt about the union. When the employee asked to be left alone, the consultant showed him a document titled, “Employee Rights Under the National Labor Relations Act” and said, “This document doesn’t work here, my brother. Who pays your check, the company or the union?”

Another employee testified that the consultant called the statement of rights “useless” and said that the company has “its own policies.” A third incident involved two employees who testified that a second consultant told workers in a pre-election meeting that if the Teamsters won the election the company could lower employee wages. According to the judge, the negative comment about employees’ labor law rights signaled that bargaining would be futile if employees voted to unionize.

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 Quick to Conclude Independent Contractors are Employees

The National Labor Relations Board filed a complaint against Postmates, Inc., an on-demand company, similar to Uber, that has a network of couriers delivering goods. The complaint alleges that Postmate’s violated the National Labor Relations Act by requiring employee drivers to enter into arbitration agreements as a term of employment. The complaint further alleged that Postmates interfered with the Section 7 rights of Customer Service Associates (CSA) by prohibiting them from discussing terms and conditions of employment.

While the NLRB has made clear that misclassification of independent contractors could result in an unfair labor practice, in this case the NLRB simply assumed that Postmates’ couriers are employees, rather than independent contractors, without holding a hearing or allowing any briefing on the issue. This is significant because the NLRB does not have jurisdiction to file complaints on behalf of independent contractors.

The Postmates complaint should put employers utilizing independent contractors on notice that the NLRB will likely gloss over the employer’s characterization of independent contractor status and file a complaint when it believes that worker are “employees” under the National Labor Relations Act, and that a violation of the Act has occurred. 

As a result, employers in the on-demand economy should: 1) make sure that their classification of couriers as independent contractors is consistent with the law; and 2) avoid having overly-broad or vaguely defined employment policies that could be interpreted to infringe on the Section 7 rights of potential employees. This “belt and suspenders” approach could help on-demand companies avoid lengthy and costly battles at the NLRB.

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.

h/t Seyfarth Shaw’s Employer Labor Relations Blog

Employer Punished for Truthful Statements During Union Organizing Effort

Anyone who has been through a union organizing campaign can relate to the following. Until now, employers could tell the truth to their employees. Employers could tell employees that a union could not guarantee a wage increase, that everything is negotiable, that unions cost money, that unions preclude an employee from working directly with management, etc. Apparently, these statements are now unlawful. 

A company recently implied that workers’ wages and benefits would start from “ground zero” simply by choosing union representation and not as a possible outcome of good faith bargaining. Management’s suggestions of a more onerous or difficult work environment after voting to join the union also constituted an unfair threat under the National Labor Relations Act. According to the Judge, “I find that employees would reasonably believe, based on [the Company’s] statements, that with the union, the would lose many of their benefits, experience decreased pay, lose all flexibility they might have in navigating day to day work conditions, and forfeit any flexibility in terms and conditions of employment they might enjoy.

The Company committed additional unfair labor practice by: 1) holding a meeting with employees to urge them not to unionize, 2) sending a letter to employees encouraging them to forego unionization and telling them that they would lose the ability to represent themselves if they voted in favor of the union, and 3) telling employees that the union would cost money and could potentially put their paychecks, benefits, and work flexibility at risk.

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.