Nonprofit Museum Employees Strike Over Pay

Just before Plimoth Plantation’s busiest day of the year – Thanksgiving – union members are tyring to bring public pressure on their employer to agree to an initial contract. Plimoth, which uses the colonial-era spelling, is a nonprofit museum founded in 1947. Located near the original Plymouth Colony site in Massachusetts, the museum educates about daily life in the 1600s, with workers portraying Pilgrims and Native Americans inhabitants of the era.

The Society of Allied Museum professionals won a representation election a year ago to represent 70 of the museum’s 180 workers, including living history educators, artisans, and maintenance workers.

The union is asking for $13 per hour and for pay to reach at least $15 an hour in 2018. That was a nonstarter during negotiations. Per the museum, “Despite the fact that Plimoth Plantation, like more other living history museums across the country, is experiencing decreasing revenues, the United Auto Workers have proposed that employees receive economic increase as large as 36%, potentially adding almost $1 million to the Museum’s operating budget within the first year of the proposed contract.”

And since I know what everyone is thinking: No one work Puritan or Native American costumes while on the picket line.

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.

Fight for $15 Lowers Misses Goals, Lowers Expectations

Five years ago, when 200 New York City fast food workers first walked off the job for $15 an our and union rights, nobody gave us a shot. Since then, we’ve spread this movement to every corner of the country and beyond fast food,” said Steven Suffridge, a Fight for $15 organizer.

Target recently announced that it plans to raise the company-wide minimum hourly wage to $11 by next month and $15 by 2020. Suffridge continues, “We did what they said we couldn’t: we won. We won in the states, in the cities, with the big politicians, and with the big corporations.”

As a capitalist, I am all for someone getting paid as much as the market allows. Maybe $15 minimum wage is right. Maybe it isn’t. What I find interesting is how Fight for $15 takes credit for Target raising its starting wage to $15 nearly 10 years after the Fight for $15 campaign started. With normal adjustments for inflation, is $15 per hour in 2020 really a victory? Shouldn’t it be Fight for $20 in 2020?

As a management-side labor lawyer, I’m continually confounded how Fight for $15 celebrates achieving half of its goal. The other half – the increase the number of dues-paying union members – has failed miserably. Barely anyone in the fast food industry has joined a union since Fight for $15 launched.

So what we’re left with after peeling back this onion is:

  1. A union-funded worker center patting itself on the back because a company will raise its starting minimum wage to a level below the intent of Fight for $15 and
  2. No additional dues-paying members to offset the dues money being funneled into Fight for $15.

This is called diminished returned on lowered expectations. Not a successful, sustainable business model.

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.

Smaller Bonuses for Union Employees Not Unlawfully Discriminatory

A union filed an unfair labor practice charge alleging that a company discriminated against union-represented employees by paying them a lesser bonus than non-union employees. The Employer argued it did not discriminate in paying the lower bonus amount to union employees because negotiated wage increases for union employees exceeded increases granted to non-union employees.

The ALJ found that the employer’s payment of an end-of-year bonus was consistent with past practice (and despite no mention of such payment in a recently negotiated collective bargaining agreement) did not discriminate against the union-represented employees in violation of Section 8(a)(3) of the NLRA.

The ALJ found no discrimination under Wright Line because there was no independent evidence that the respondent was motivated by an anti-union purpose in paying the lesser amount to union employees. Rather the respondent tied the lesser amount to the higher wage increase earlier received by union represented employees.

The ALJ also analyzed whether the paying of the lesser amount to union employees constituted inherently destructive conduct under Great Dane Trailers, and thus supported a discrimination theory. She concluded it did not, because any harm due to the lower bonus payment to union employees was viewed as slight because of the higher bargained-for wage amounts received by union employees.

The ALJ also found that the employer failed to give the union adequate notice of the bonus payment and therefore failed to provide the union an opportunity to bargain over 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.

NLRB Requires Company to Continue Annual Wage Increases After Contract Expiration

A hospital and a union recently allowed their collective bargaining agreement to expire. One provision in the CBA provided that “for the duration of this Agreement, the Hospital will adjust the pay of Nurses on his/her anniversary date” in the amount of 3%. Despite the expiration of the agreement, the Board found that the hospital was required to continue providing the wage increases.

The Board explained that the language of the CBA did not establish a “clear and unmistakable waiver of the Union’s statutory right to bargain over the post-termination cessation of pay raises.” Companies have a statutory duty to maintain the status quo post-contract expiration. An employer cannot make a unilateral change of the term established in a CBA unless the contract term has a clear and unmistakable waiver of the union’s statutory right to maintenance of the status quo.

Despite the contract specifically stating that the wages were applicable for the duration of the agreement, the Board found that this was not enough to waive the union’s right to the status quo. The Board reasoned that the contract provision did not address any post-expiration conduct of the employer. The lesson to be learned here is that companies need to include explicit language addressing their post-expiration conduct to ensure they will not be forced to continue increasing wages past the contract expiration date. Specifically, when it comes to wages, I insert a table into the union contract that delineates the hourly wage of each classification for each year of the contract. This has worked to stop the “percent raise into perpetuity” argument found in this case.

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 Concludes Wage Hike to Non-Union Employees was Illegal

Yes, Virginia, there is a Santa Claus, and the NLRB does govern when and how a non-union company can give raises to its non-union workforce. Here, the NLRB ruled that a company that gave raises to non-union employees, seemingly out of spite that some employees voted to become members of a union, was unlawful.

A non-union company had not planned to grant wage increases to employees in 2010. The employees voted for a union in August 2010 and one day before it was certified, the company gave many of its employees wage increases ranging from $1 to $2 an hour. The National Labor Relations Board concluded that the company excluded newly union-represented workers from the pay increases without offering them any explanation. In its decision – five years since the increase was given – the Board explained that a company is not required to give unionized employees the same wages as unrepresented employees if the company is not acting with an unlawful motive. Here, the Board concluded that the wage increases given were “driven by the union campaign.” The Board commented that the company posted announcements of the wage increases in the work locations of newly union-represented workers, but it did not assure those employees that they would have an opportunity to receive an increase through bargaining. The Board interpreted this as the company denying these employees increases because it opposed their move to unionize.

One Board member, Harry Johnson (a management-side labor lawyer), dissented, stating that he disagreed with the Board’s reliance on the company’s failure to reassure union-represented workers that they could negotiate the wage increases through bargaining. I agree with Harry. A company should not have to tell union-represented employees what they can and cannot seek to obtain through negotiations; that’s the union’s job.

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 Orders New Election Despite Wage Increase Notices Being Mailed Before Election Petition Filed

A nursing home informed geriatric nursing assistants that they would receive wage increases via letters that were sent one day before the union filed its petition for an election. The employees voted 28-33 against union representation – a company victory that would be short-lived.

Though the letters were sent before the election petition was filed, the nurses received the notice of the wage increases during the time between the filing of the union’s petition and the election taking place. This time period is generally called the “critical period” when changes to terms and conditions of employment are prohibited. This freeze is to prevent employers from making workplace changes that could influence employees to vote against union representation.

An NLRB hearing officer ruled that the wage increase announcement was not objectionable because the letters were sent outside of the critical period – one day before the union filed its petition. Not surprising to readers of Roetzel Recap: Labor Relations, the Board overruled the ALJ and found the nursing home engaged in “objectionable conduct” during the critical period. The Board then ordered a new election be conducted.

Board Member Miscimarra, who was a management-side labor lawyer before being appointed to the Board, disagreed with the Board’s ruling. He disagreed with the Board’s finding that the employees learning about the wage increases during the critical period converted the wage increases into objectionable conduct. Miscimarra’s dissent stated that a party’s actions before an election should not be a basis for overturning an election even if those same actions would be objectionable conduct during the critical period. If only the Board had more Miscimarra’s on it; unfortunately, only two of the five Board Members are pro-management.

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.