Employers Are Often Surprised Who Can Vote in Union Elections

Before a union election can occur, the National Labor Relations Board sets a voter eligibility cutoff date. Workers employed (or who have an expectation of returning to work) on that date can vote. But what happens when the election is delayed 7 months and the pool of voters, i.e. workforce, dramatically changes? The original cutoff date remains in effect.

In Tekweld Solutions, Inc., the workers had a March eligibility date for an April election. But the election did not occur until November. The result of the election was 21 votes in favor of union representation, 20 against the union, and 30 challenged votes because the voters’ names did not appear on the March eligibility list, since they were hired after the original eligibility cutoff date.

The Board refused to count the challenged votes and kept the original cutoff date for two reasons: (1) neither side said a new date should be used after the 7-month delay (bad lawyering for Tekweld); and (2) the Board sought to “minimize the possibility that hiring decisions will be made with an eye toward affecting the election’s outcome.” So Tekweld employees are now represented by a union that may have lost the election by a landslide.

SEIU’s Alternative Organizing Techniques: Lawful or a RICO Violation?

In one corner is Prime Healthcare Services, Inc. that operates 28 hospitals in 8 states. In the other corner is the Service Employees International Union (SEIU), the nation’s largest union focused on the healthcare industry. Prime filed a RICO lawsuit against SEIU and several union executives for engaging in a conspiracy to force Prime to allow the unionization of tens of thousands of its employees. According to the suit, the SEIU “entered into an agreement and conspired to target and to attack Prime with the ultimate objective of either unionizing Prime, thereby altering its cost structure and business model, or eliminating Prime from the market altogether; either result benefits defendants.”

Prime further claims that the union has tried to avoid organizing its employees through traditional means, instead opting to wage a war on the hospital operator through an extortionate campaign under the guise of “social activism.” In fact, SEIU has a playbook for carrying out such campaigns (I know because I have a copy) that includes tactics “for harassing, intimidating, smearing, and psychologically and financially punishing employers that are unwilling to yield to their extortionate demands.” This lawsuit, involving two heavyweight fighters, will be fun to watch, as it will likely create new laws regarding alternative union organizing techniques.

Another UAW Represented Company Funds a VEBA for Retirees

Daimler Trucks North America has agreed to contribute almost $500 million to a new employee benefit plan in an effort to end a class action lawsuit filed by a group of retirees and the United Auto Workers union accusing the company of illegally cutting their benefits. According to the company, the benefits were not vested and could be terminated. These types of lawsuits are growing in popularity as companies terminate lifetime benefits for retirees when collective bargaining agreements are silent on the issue. Daimler’s half-billion dollar investment will go into a voluntary employees’ beneficiary association (VEBA) trust for the UAW to manage going forward. VEBAs are beneficial for some companies because they cap an employer’s obligation of having to make unknown, future contributions to the healthcare costs of retirees as the number of retirees and the cost of healthcare both dramatically increase each year.

“We Are Ohio” is 100% Union Funded and Focused on Preventing Ohio from Becoming a Right to Work State

Roetzel is an Ohio-based law firm, which means many of its clients are Ohio businesses. As we head into the final push of campaign season, we will see advertisements funded by a political action committee called “We Are Ohio.” We Are Ohio’s chief concern is preventing Ohio from becoming the nation’s 25th right to work state, sometimes referred to as “worker freedom state.” In fact, Central Ohioans have probably seen billboards and television advertisements paid for by the International Union of Operating Engineers, Local 18, propagandizing that the Workplace Freedom Act is a lie. A benefit of right to work laws to employees is they do not have to be in a union to work at a unionized workplace. A benefit to employers is a lower cost of doing business, which means more money can be reinvested into the company for growth opportunities. Unions do not see a benefit – though they should – for right to work states, and so they formed and funded “We Are Ohio” which should more aptly be named “We Are the Minority of Ohioans.”

NLRB Requires Employers Pay Employee Taxes on Back Pay

The Board’s determination to force employers to pay the taxes on back pay employees received as the result of filing an unfair labor practice charge with the NLRB was invalidated by the Noel Canning decision. But a few months later, the Board re-ruled in the same way on the same case. Employers must pay Social Security and income taxes on lump sum back pay awards. In theory, if an employee usually makes $25,000 per year and is owed $50,000 in back pay, then that lump sum payment will put the employee in a higher tax bracket (having received $75K that year) than it otherwise would have been had if it made $25K for three consecutive years. The Board believes having the employee who made more money pay more taxes is not fair, so it unilaterally sticks the employer with the bill.

Threatening to Hire Permanent Replacement Workers During a Lockout Not an Automatic Violation of Labor Law

After bargaining unit employees voted to reject the employer’s final contract offer, the Company announced that it would lock out employees and planned to hire permanent replacements for the workers. The Company followed through with the lockout, but within a week, it informed the union that the hiring of any replacements would be “temporary until further notice.” The company ended the lockout three months later, and all of the bargaining unit employees returned to work. The NLRB found that the company’s threat interfered with employee rights and violated Section 8(a)(1) of the Act, but the threat did not make the lockout illegal.

Not satisfied with a partial win, the union appealed to the Tenth Circuit arguing that the lockout itself was unlawful so employees should receive back pay. According to the court, an employer may lock out employees in order to bring pressure to bear on the workers and their union during contract negotiations and it may use temporary replacements to get its work done. However, threatening to hire permanent replacement workers does not automatically turn an otherwise lawful lockout unlawful. In fact, the Company specifically never acted on its threat and the threat had no material impact on labor negotiations.

Employer’s Bad Faith Bargaining Conduct Results in PayingUnion for Expenses Incurred During Negotiations

A California hospital that improperly made unilateral changes in nurses’ working conditions and set illegal conditions for bargaining must reimburse the nurses’ union for expenses it incurred during six months of contract negotiations that were “infected” by the hospital’s misconduct. Included in the reimbursement was “reasonable salaries, travel expenses, and per diems” of the union negotiators. Management negotiators insisted as a condition of bargaining that the union present all of its economic and non-economic proposals for a contract before the hospital would respond and refused to bargain unless the union directed nurses to stop using union-provided forms to document conditions they considered unsafe or inconsistent with their nursing licenses. Perhaps the company’s negotiator was new, perhaps he or she was bargaining his or her first contract, perhaps there was some past practice that led the negotiator to think that such tactics were lawful, or perhaps this is a prime example of why labor negotiations must be taken seriously and conducted only by skilled negotiators.

Michigan Employees Can Withdraw from Union Representation at Any Time

Michigan became the 25th Right to Work state in 2012, which means employees are no longer forced to be in a union just because a union represents workers at their employer’s place of business. Since becoming Right to Work, many Michigan employees have withdrawn from the union. The Michigan Education Association – the teachers’ union – though, only allowed members to withdraw from the union during the month of August. August is the busiest time of the year for teachers, and this window was obviously created in hopes that teachers would forget to withdraw, and the union would continue to reap its dues money from those teachers for at least another year. Thankfully, the National Right to Work Legal Defense Foundation sued the teachers union and the judge ruled that the MEA had to get rid of its August window. Teachers from across the great state of Michigan rejoiced and are now free to leave the union whenever they want.

Weingarten Rights: Employees Mistakenly Think They Always Apply

Employee Simmons claimed his supervisor Rodzach opened a meeting by asking whether he had been rude. Invoking hisWeingarten rights, Simmons said he would not discuss the matter without his shop steward being present. Rodzach did not respond to the request, so Simmons ended the meeting and left the room. Unfortunately for Simmons, Weingarten was not applicable since Rodzach went into the meeting with a counseling notice already prepared and did not attempt to question Simmons.

In Weingarten, Inc., the U.S. Supreme Court held that the National Labor Relations Act guarantees an employee’s right to have a union representative present during an “investigatory interview in which the risk of discipline reasonably inheres.” Weingarten does not apply if an employer is only informing an employee of disciplinary action. The right to have union representation can be triggered if the employer begins questioning the employee during the meeting, but Rodzach never attempted to question Simmons and never denied Simmons union representation. Therefore, Simmons never made an NLRA-protected request for union representation during an investigatory interview, and the company was justified in giving him a five-day suspension for walking out of the meeting.

NLRB Sinks Confidentiality Clause of “Titanic” Director James Cameron

The Board recently shot down a confidentiality policy maintained by a California elementary school founded by Hollywood director James Cameron and his wife as being overly broad. The policy prohibited employees from disclosing any information about the school or its owners, students, or employees. It also said that former employees were precluded from making any disparaging remarks about anyone associated with the school in a way that would harm the school’s reputation. Pretty standard stuff, right?

The judge determined the celebrity status of the school’s founders and parents of the students did not trump the employees’ right to discuss their wages, hours, or other terms and conditions of employment. “Muse precludes without limitation, any discussion about any nonpublic information regarding its founders, clients, and employees. Such a broad prohibition, without clarification, could reasonably be construed to include a prohibition on discussing employee wages.” The policy was struck down despite never having been enforced; just maintaining it was unlawful. This ruling makes it very difficult for any celebrity to force its personal assistants or employees of its businesses to maintain confidentiality. I’m sure TMZ has already sent the judge a fruit basket of thanks.