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.

NLRB Refuses to Allow Truckers to Form a Micro Bargaining Unit

In contrast to yesterday’s blog post that summarized a decision where the NLRB upheld a micro bargaining unit, today the Board refuses to find that a micro bargaining unit is necessary.

The Teamsters union petitioned for an election of only drivers who drive company-owned vehicles and excluding drivers who use their own vehicles. The Regional Director ruled that the petitioned for unit constituted a fractured unit because personally owned vehicle drivers share an overwhelming community of interest with company-owned vehicle drivers which requires their inclusion in the unit.

For example, drivers of personally owned and company owned vehicles are both given the same responsibilities for pickups and deliveries, are subject to the same supervisors, receive their routes through the same training work out of the same facility, record their work time using the same method, and wear the same uniform.

As a result of the NLRB expanding the petitioned-for bargaining unit from only drivers of company-owned vehicles to all drivers, the Teamsters did not have enough signed authorization cards to go forward with a union election. Thus, the petition for an election was dismissed; a company win.

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 Refuses to Review another Decision Certifying the Appropriateness of a Micro-Unit

Just 14 service technician employees at Buena Park Honda sought to organize a union. The employer thought that, at a minimum, lube technicians should be included in the bargaining unit, but the NLRB disagreed because, according to the Board, other workers did not share “an overwhelming community of interest.”

When employees of a labor organization petition for an election in a unit of employees who are readily identifiable as a group based on job classifications, departments, functions, work locations, skills, or similar factors, and the Board finds that the employees in the group share a community of interest after considering the traditional criteria, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit.

The NLRB cited several examples why the lube technicians did not share an overwhelming community of interest with the service technicians. For example, the service technicians were more skilled, paid substantially higher wages, and required to routinely update and maintain their training and skills, making them “clearly identifiable and functionally distinct.”

Worth noting, Member Miscimarra agreed with the outcome but not the reasoning. To him, the Board’s reliance on Specialty Healthcare was misplaced. Instead, he argued that the Board should have applied its traditional principles, believing “bargaining unit determinations should be circumscribed and guided by industry-specific standards where applicable.”

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.


 

Another Example of How the NLRB Gives Unions Two Bites at the Apple to Win a Union Organizing Campaign

In 2015 the NLRB pushed through the Ambush Election Rules to boost union organizing success principally by shortening the period between a union’s request for an election and the election itself and by making it more difficult for an employer to raise important, substantive legal issues prior to the election. Also among these rule changes were certain procedural requirements. One of these nit-picky rules was that the employer serve both the NLRB and all other parties to the case, i.e. the union, with a copy of the official voter eligibility list sufficiently in advance of the election.

In URS Federal Services, Inc., a union sought to represent a group of the employer’s employees. Those employees rejected union representation by a nearly 2-1 margin. But following defeat, the union filed an objection with the NLRB arguing that the election should be set aside and a second vote held because the employer did not send a copy of the voter eligibility list to the union like the rule required. Instead, the NLRB sent the list to the union (as previously required). In the end, the union received what it was entitled to receive on the day it was entitled to receive it.

At first, the NLRB Regional Director rejected the union’s claim that the union was disadvantaged from receiving the voter eligibility list from the NLRB as “exalting form over substance.” On appeal, though, Members Pearce and McFerran unsurprisingly overruled that decision and found in favor of the union, set aside the election and ordered a new election.

Member Miscimarra, thankfully (albeit ceremoniously) blasted the majority decision, accusing the majority of lightly setting aside unequivocal election results as well as creating a double standard under a Board decision issued just a few months earlier in which the Pearce and McFerran ruled in favor of a union, even though the union similarly failed to comply with a technical requirement of the election rules.

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

Bernie Sanders or Hillary Clinton: A Powerful Combo for the Union Vote

The media has reported sporadically that some labor union members have broken from decades of allegiance with the Democratic Party in favor of Donald Trump for President of the United States. These blue collar Democrats, many in Ohio, are drawn to Trump’s ability to say what he wants, what he means, and to tell it like it is – values labor has always believed in. Formal endorsements tell a different story, though. Every major union or progressive organization that let its members have a vote endorsed Bernie Sanders. Meanwhile, all of Hillary Clinton’s major group endorsements come from organizations where the leaders decide. This appears to be an example of Clinton’s powerful appeal to the Democratic Party’s elite, even as support for Sanders explodes among the rank and file.

For example, the one major labor union that did allow for a vote was the Communications Workers of America. CWA followed a three-month process that included meetings with members, telephone town halls, and an online polling process. “We conducted an online membership poll from mid-September to early December,” said CWA spokesperson Candice Johnson in a statement to The Intrepid. “Tens of thousands of members voted in the poll, with Sanders getting a decisive majority.” Johnson noted that CWA did not endorse in 2008 because it followed the same process and the three leading Democratic candidates all received around the same proportion of votes.

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 Requires Every Voting Employees’ Contact Info, Where Do You Keep It?

The Ambush Elections rules obligate employers to provide employees’ personal phone numbers and personal email addresses if such data is “available” to the employer. I put “available” in quotes because we recently learned that the definition of available is different for different people.

Prior to a union election, the employer provided the union with all of the personal phone and email addresses it had in its human resources computer system, which accounted for 94% of the bargaining unit. The human resources computer system did not have this data for the other 6%. The union appealed its defeat alleging that the missing 6% violated the new election rules. At the hearing, it was discovered that one of the employer’s supervisors maintained an independent list of email addresses and phone numbers separate from the human resources computer system, and the supervisor’s list contained the missing information.

Gone are the days when a simple roster print out from the HR Department satisfies a company’s burden to produce names, addresses, phone numbers, and email addresses of its workers. Now, prudent employers periodically poll supervisors and others to ensure that a single, comprehensive list is maintained and regularly updated.

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.

Ambush Elections: Lies, Damned Lies, and Statistics

Regardless upon which side of the argument you sit, the statistics of the first 150 days post-ambush elections will help your argument. Management lawyers argue that the dire warnings were well founded. Pro-labor law reformists say the warnings were much ado about nothing. You should make up your own mind after learning the stats.

Union election petitions are up 9% and decertification petitions are down about 9%. Median days between the filing of an election petition and the election (with election agreement) is down from 37 days to 23 and (with directed election) down from 65 to 30, respectively. Median size of units shrunk from 28 to 23 workers. The percent of union election cases the union won dipped from 69% to 68% and the percent of decertification cases the union won remained the same at 40%.

So what’s your conclusion? Mine is that the data validates the predictions that the new processes will result in a shorter time frame in which employers do not really have time to prepare a campaign. This lack of time forces employers to prepare a counter-campaign even if they aren’t certain they will ever need it.

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.