Symphony Allowed to Negotiate Private Deals with Performers, Now Union Wants to Know the Details

A symphony orchestra that agreed to pay some of its musicians more than a collective bargaining agreement provides must disclose the “overscale” arrangements to the musicians’ union.

The Denver Musicians Association has waived any right to negotiate such contracts for individual musicians, but the ALJ said the information is relevant to the union’s representation of all employees and should have been released.

Overscale agreements are common in music, entertainment, and news organizations, and unions have won access to such contracts before. However, the ALJ broke new ground in ruling the Colorado Symphony Orchestra had to turn over contracts requested by the Denver Musicians Association even if the union’s objective is to use them as evidence to support a female employee’s sex discrimination claims.

After principal flutist Brook Ferguson complained to the union in 2016 that her overscale contract left her underpaid compared to male musicians in comparable positions, the union requested that the CSO provide contracts for all of tis principal wind and brass players.

The ALJ said information about employee wages is presumptively relevant to a union’s bargaining for employees, and the CSO did not establish that the union was requesting information for an improper purpose. Even if the union was partly motivated by Ferguson’s complaints, the ALJ said, it had a duty to oppose discrimination and it was not required to justify to the CSO why it needed wage information about musicians it represents.

The ALJ wrote that union representatives had no role in negotiating the overscale contracts, but that didn’t mean the union had waived the right to see the agreement. He also said the NLRB has held that the union’s right outweighs any individual employee’s interest in keeping an overscale agreement confidential.

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.

UFCW Seeks to Increase Chicken Costs by Slowing Down Processing Lines

Unions representing poultry workers are demanding the Department of Agriculture reject an industry petition to increase poultry line speeds in plants.

The National Chicken Council recently presented a petition to the UDSA to implement a waiver system that would permit young chicken slaughtering plants to operate without line speed limits imposed. Opponents of the petition say current speeds are already too fast and have a high rate of injury, i.e. carpal tunnel syndrome.

The United Food and Commercial Workers union president sent a letter to the USDA warning that faster line speeds would make the industry “dramatically less safe, both for workers and consumers.” But poultry industry experts say that allowing unlimited speeds would not compromise food safety and would give US plants more birds to process to keep up with foreign competitors.

The USDA “will continue to consider line speeds at establishments that are capable of consistently producing safe, wholesome, and unadulterated product and are meeting pathogen reduction and other performance standards.”

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 Failing Members: Wage Increases Dwindling

Every union organizing campaign promises increased wages. Regardless what employee currently make or that they sought out union representation to improve safety conditions at their workplace, every union organizer promises increased wages to offset union initiation fees and monthly dues. It’s. Just. That. Simple.

What do unions do when data shows that they are not getting wage increases for their members? Out of the 490 union contracts that the Bureau of National Affairs tracks, 2017 has thus far yielded a lower first year monetary increase (wages and lump sum payments) than in 2016. Another bad trend for unions is the increasing use of lump sum payments instead of wage increases. For example, ContiTech and the Steelworkers recently ratified a contract where the employees received a $1,500 signing bonus but no raise beyond a cost of living adjustment for the next 5 years.

Will the unionized ContiTech workers be in a better financial place in 5 years with a one-time $1,500 signing bonus or a 3% per year wage increase? The $1,500 equates to $300 per contract year, or $0.15 per hour (assuming 2,000 work hours). Conversely, if ContiTech employees earn $20 per hour, a 3% wage increase for the next 5 years would result in a lot more than $0.15 per hour.   

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.

Companies Must Deduct Union Dues After Contracts Expire

Dues deduction became a common practice in the mid-1900’s when few workers had checking accounts. Unions tired of going to each member individually to collect dues, so they negotiated into collective bargaining agreements clauses forcing the employer to payroll deduct the dues and remit a single check to the union for all members’ dues. Companies were relieved of this “tax collector” role upon the expiration of the collective bargaining agreement.

However, last year the NLRB changed the law on when companies can stop deducting union dues after a collective bargaining agreement expires. There is little practical reason for this rule since nothing prevents employees from paying their dues directly to the union. In fact, employees were still required to remit dues, companies just weren’t required to deduct them from employees’ paychecks. Nonetheless, the NLRB said that it was issuing the ruling because it would help the “goal of promoting collective bargaining.”

Now, businesses may stop deducting dues only after a lawful impasse has been reached. Lawful impasses are reached only after the NLRB agrees it has been reached. Yet, employees are allowed to strike immediately upon the expiration of the contract. Therefore, companies that are negotiating a new collective bargaining agreement may be faced with a situation where they bankroll a strike against themselves. How exactly does that further the goal of promoting collective bargaining?

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.

Clarity on When Colleges are “Religious Enough” That Their Faculty are Precluded from Joining a Union

The National Labor Relations Board recently held that it will assert jurisdiction over faculty members of a college or university that claims to be a religious employer unless the institution shows both: 1) that it holds itself out as providing a religious educational environment; and 2) that it holds out faculty who seek to unionize as performing a specific role in creating or maintaining that religious environment. The Board requires minimal evidence to satisfy the first factor. Meeting the second factor is more demanding.

The Regional Director declined to assert jurisdiction over Carroll College faculty because the employees were subject to employment-related decisions based on religious considerations. For example, the College’s handbook provision on discharging faculty who show “serious disrespect or disregard” for the school’s Catholic mission was “a public representation of the College.”

While this decision indicates a college may be able to show it is outside the board’s jurisdiction by pointing to employment policies that link employee behavior to the school’s religious mission, the Regional Director also determined that Carroll College faculty are managerial employees. Managerial employees in all industries are precluded from joining unions.

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.

A Union’s Waiver of Bargaining Rights Must be Clear and Unmistakable

A union and hospital had a somewhat standard management rights clause in their collective bargaining agreement. That clause provided that the employer “retains the sole right to manage and direct” unit employees, to determine the “nature and extent of services provided,” and to “assign and delegate work.” The contract also had a specific provision that an employee assigned to serve as “preceptor” for a nurse or student nurse interns would receive added pay while performing the extra duty. Based on these contract clauses, the hospital created a program for nurses to provide clinical training to nursing students at a local university.

In the new program, nurses selected by the hospital and approved by the university received pay from the university and were considered employees of both the hospital and university. The union objected to this arrangement and argued that although a similar program was contemplated in the collective bargaining agreement, the agreement did not intend to authorize this type of program. The hospital rebutted that the union waived its right to bargain over this program based on language in the management rights clause.

A union’s waiver of bargaining rights must be established by clear and unmistakable evidence. Merely accepting a management rights clause and signing off on a contract provision that covers some training duties does not satisfy the NLRB that a union has surrendered its right to bargain about new and different programs. Here, the Board found that the new program was materially different from the one identified in the union contract and ordered the employer, if requested by the union, to rescind any changes made in the conditions of employment of unit employees because of the program.

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.

Company’s Lockout of Union Members Lawful When Bargaining Both Mandatory and Permissive Subjects

The United Steel Workers (USW) went on strike at an aluminum oxide plant after its collective bargaining agreement expired. Management responded with a “last, best and final” proposal to end the dispute. The workers rejected this contract proposal prompting the company to begin a lockout of bargaining unit employees the next day.

A company can initiate a lockout, which is a temporary work stoppage, during a labor dispute. Companies often use the lockout as a tactic to encourage the union to accept the proposals set forth by the company. Lockouts are riddled with landmines that can easily result in unsuspecting companies unlawfully locking out their employees. Extreme caution and proper legal counsel is prudent before a lockout.

The USW alleged that this lockout was unlawful because the company locked out the employees based on permissive rather than mandatory subjects of bargaining. The parties had engaged in bargaining about retiree health insurance, a permissive subject, which the company included in its proposal along with several mandatory bargaining subjects. The NLRB regional director concluded that just because a party is engaged in a lockout does not mean that the party has conditioned its willingness to enter into an agreement on acceptance of all of its proposals. Here, the company continually indicated that it was looking for an overall agreement and never expressly predicated reaching an agreement on its retiree benefit demands. Based on this, the lockout was lawful.

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.