Ohio: Get Ready for a Union Onslaught

The Service International Employees’ Union made it a priority to organize healthcare workers in the Midwest while simultaneously investing resources in battleground states, like Ohio, for the 2018 midterm elections. By mobilizing voters to support pro-union politicians in 2018, the SEIU is hoping newly elected lawmakers will support its legislative goals.

SEIU members and employees will be encouraged to volunteer 40 hours of their time for voter outreach with the goal of galvanizing support for Democratic politicians who will back a $15 minimum wage and worker’s rights. Since there are a number of open seats at all levels in Ohio (governor, mayoral, and legislative), our state will face the brunt of the SEIU’s latest pet project. One law the SEIU has in its crosshairs is Ohio’s law banning local governments from establishing a minimum wage higher than the statewide rate. This law defeats the SEIU’s plan of creating a patchwork of mini-minimum wage zones (like Cleveland tried last year) with a $15 minimum wage.

While this is newsworthy, I’m not particularly concerned. Conversely, union members should be concerned with the manner in which the SEIU is going to use their dues money considering union investment in politics has not been successful recently and considering that many union members voted for Republican candidates, including President Trump, whom the SEIU did not support.

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) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

Does the Future of Union Organizing Involve a Few Mega-Unions?

I’m watching college football while writing this blog post. College football fans know that football conferences have undergone changes over the past few years. For example, the Big Ten Conference now has 14 schools; the Big Twelve only has 10 schools; the Pac 10 recently became the Pac 12; and the Big East has schools from Illinois, Wisconsin, and Nebraska.

So how does this relate to unions? AFL-CIO President Richard Trumka recently said his union is working with other unions to organize industry sectors, i.e. transportation, building trades, professional employees, etc. instead of individual unions targeting single employers. According to Trumka, labor’s collective effort is necessary to counter “deep pocket supports of conservative causes.” This is an odd statement considering unions accounted for 10 of the top 50 political donors in the 2016 election. Those 10 unions donated well over $200 million to non-conservative candidates, parties, and causes.

I am skeptical of this new organizing strategy but am curious to see how it plays out. Unions will work together in the beginning, I imagine. But at some point territorial boundaries will erode their good will. After all, the UAW represents casino card dealers, and the Steelworkers represent nurses. Under Trumka’s Utopian organizing plan, will Teamsters sit idly by and watch (or help) the Machinists union continue to try to organize Uber drivers? I don’t think so.

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) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

NLRB: It’s Not What Management Says, It’s What Employees Hear

A union sought to organize workers of a construction company. In response, the owner of the company told employees that electing a union would financially “crush” the company. This statement was unlawful because the owner offered no objective evidence that a union win would make it impossible for the company to survive.

This case involves a pretty straight forward maxim of labor law but one that is routinely violated by unsuspecting business owners and management. Pursuant to Gissel Packing Co. (1969), an employer may predict the consequences of unionization as long as the prediction is “carefully phrased on the basis of objective fact” to convey the employer’s belief concerning “demonstrable probable consequence” that are beyond the employer’s control. Here, the business owner did not provide any substantive support for his predictions. Rather, he merely assumed that bargaining with the union would lead to higher wages that he could not afford.

Please let this be another reminder that labor laws are screwy (legal term of art). Even the best, well-intentioned comments and actions can have catastrophic consequences. Here, the employer was forced to accept the union at his workplace. Only time will tell if his “crushing” comment proves to be false or prophetic.

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) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

UAW Confused About Path to Organizing Tesla Factory Workers

As discussed previously, the UAW has Tesla in its crosshairs. One of the major themes of the organizing drive focuses on alleged safety problems at the factory. While the Company dismissed the reports as propaganda, it vowed to become the safest auto factory in the world.

Undeterred, the Tesla Workers’ Organizing Committee sent a list of demands to Tesla’s board of directors. Some of the demands include:

  • Transparent third-party safety audits
  • Employee involvement in the company’s safety plan
  • Ability to review accurate data about progress toward improved safety.

The demands didn’t stick to just safety, though. My favorite part: employees have endured years of a “vague promises of a raise” that never came to fruition. “We care deeply about both the company’s profitability and our own financial needs and thus have an important perspective on how to balance those concerns.”

So UAW, which is it? What’s your theme? Safety or more money? Here’s some unsolicited advice: stick with safety if you want community support. It’s easier for people without a dog in your fight to back your plight for a safe work environment. Bring up more money if you want to seem like ancient, greedy unions of yore. The bad publicity you’ll get whining about wanting more money from a company that has not yet turned a profit will doom your campaign.

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) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

Today’s Reminder that Documenting Poor Behavior is Critically Important

A Burger King franchise was sold. The new owner hired most of the old company’s employees. One employee not hired was a union organizer who was involved in the Fight for $15 campaign. It is illegal to not hire a known union organizer because of that employee’s union organizing activity.

At trial, the employer’s manager, the new company did not hire the organizer because he was insubordinate, refused to work certain shifts, stole food, and often reported to work late. The judge did not believe the manager’s testimony because  she failed to document the tardies, failed to document the refusal to work certain shifts, and failed to report any of the alleged bad behavior to human resources.

The manager allegedly did document the poor performance “for awhile,” but stopped because she “never received a response.” To all managers out there – document to cover you own a&# even if HR doesn’t do anything about it. To all HR personnel out there – respond to managers’ reports of poor performance. Here, both sides are guilty of dropping the ball while the unsuspecting business owner is left footing the bill.

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) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

NYC is Passing Outrageous Laws that Benefit Unions

Car Wash Licenses Cost Ten Times as Much for Non-Union Companies

Local Law 62 was passed by the City Council and signed by Mayor de Blasio in 2015 during a period of intense labor organizing among the city’s roughly 150 car wash companies, many of which are staffed by immigrant, non-union workers. The law made it illegal to operate car wash without a license and gave financial incentives to car wash companies that employed union workers. To get a license, companies need to post a bond which was a guarantee of solvency to cover workers’ wages. Companies whose employees were represented by a union posted a $30,000 bond. Companies whose employees were not represented by a union posted a $150,000 bond.

Thankfully, a federal judge shot down Local Law 62 because it “explicitly encourages unionization” and imposed an unfair burden on car wash companies where workers were not part of organized labor.”

This reminds of the inflated minimum wage laws that have spread across the country in cities like Los Angeles, Milwaukee, and Washington D.C. Those laws have two sets of minimum wages: a minimum wage for union employees and a higher minimum wage for non-union employees. The goal for those laws is to make unionization the less expensive way to do business.  in Los Angeles:

Fast Food Workers Can Payroll Deduct Donations to a Charity of their Choice

New York City Council approved a bill allowing fast-food employers to withhold up to $12 per month from a worker’s paycheck and remit that amount to the “non-profit organization” of the employee’s choice. The purpose of this legislation, per Council Member Julissa Ferreras-Copeland (D-Queens) is “to make it easier for employees to support advocacy organizations working on their behalf.”

While the bill expressly states that money collected is not to go to a union, it likewise expressly states that the money can be funneled to Fight for $15. This is clever. If all fast food workers made the maximum contribution, the SEIU (who thus far has spent $90 million on the failed Fight for $15 campaign) stands to receive over $9 million per year in “contributions.”

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) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com. 

Unions Divided on Pathway to Organize Gig Economy Workers

Unions remain baffled in how to organize workers in the gig economy. The gig economy is a term use for companies, like Uber, whose business model is built on the use of independent contractors. Independent contractors are, by law, not allowed to join unions. But that is not stopping unions from creatively trying to represent the independent contractors.

 

Remember when Seattle City Council passed an ordinance allowing ride-share drivers to join unions? Well, that ordinance is on-hold pending the outcome of a lawsuit filed by the U.S. Chamber of Commerce seeking to invalidate it. In the meantime, union organizers are considering quasi-union models for independent contractors. One option bandied about is to create an industry-wide oversight board with the power to audit sharing-economy businesses and negotiate certain terms and conditions of work.

 

The gig economy is not limited to just Uber. It also includes Lyft personal car service, Instacart personal grocery shoppers, Postmates food deliverers, and home cleaning and repair service providers linked with customers through online platforms such as TaskRabbit and Handy, to name a few. As technology continues to develop, conventional wisdom believes that the gig economy will proliferate which means 1) less employees for unions to organize, and 2) more independent contractors for unions to figure out how to organize.

 

A Teamster lobbyist recently said “Labor unions are kind of split, and they certainly don’t have a single voice on how to [unionize gig workers] and how to create an organizing model that makes sense.”

 

The Independent Driver’s Guild is trying to fill some of that void for Uber drivers in New York. The Guild is funded by Uber and works in partnership with the International Association of Machinists. (IAM representing independent contractors in the taxi/ridesharing industry sounds about right these days.) The Guild has established an appeals system for drivers kicked off of the Uber platform and convinced Uber to scrap a policy requiring luxury vehicle drivers to also pick up lower-paying fares.

 

Notice the Guild hasn’t done anything with prices or pay. When you have a bunch of businesses (which independent contractors are) coming together to fix prices among them, you may have antitrust issues. Antitrust law exempts unions that bargain on behalf of employees they represent. But, according to Mike O’Brien, a member of the Seattle City Council, “My understanding of antitrust law is that it was intended to break up the robber barons colluding to limit competition. [To say] that these companies want to use it to stop low-wage workers from joining together seems to be a stretch.”

 

To be sure, unions would like dues money from gig workers, but as it relates to rideshare gig workers, unions would rather they go out of business. Follow me here. Each effort that chips away the rideshare gig worker from being an independent contractor places the worker, and the company, closer to a traditional taxi company which will ruin the very thing (whatever that is) that makes the gig economy successful. Americans outside of New York City and Chicago do not regularly use taxi cabs. Americans throughout the United States use Uber. Organizing Uber equals turning Uber into a cab company which equals no one will use it which results in Uber going out of business. A union wins if it organizes a company or the company goes out of business. A union loses if its workers are non-union.

 

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) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.