Labor Relations Insight
By Phil Wilson
These days calling an NLRB case scary is kind of like calling Kevin Durant injured: it’s just understood. But occasionally you see a case that stands out in what seems like an ocean of pro-union decisions. That’s what the
Grand Canyon Education decision felt like to me
the first time I heard about it.
Grand Canyon Education is a recent NLRB decision that found an unfair labor practice when an HR manager questioned an employee about how she felt about her supervisor. The first articles I read about the decision had me quite concerned.
Questioning employees about whether they support a union is illegal. If you are facing union organizing activity even asking people about their complaints is often over the line. But just asking about how you feel about your supervisor? Calling that unlawful activity is outrageous.
How about some good news? As sometimes happens with cases like this
the actual decision isn’t quite as horrible as the news coverage might suggest. Here are the facts. In
Grand Canyon there was a full-blown organizing campaign afoot. This means every interaction is going to get a very close look because the company has to preserve “laboratory conditions” on the ground. During the course of the campaign an employee named Gloria Johnson vocally supported the union. This is who the HR manager, Rhonda Pigati, questioned during a behind closed door, one-on-one meeting in her office.
At one point during the meeting Rhonda asked Gloria how she felt about her supervisor. Rhonda basically said her supervisor wasn’t that great. Not only that, but Rhonda mentioned she wasn’t the only one – a few coworkers told her they felt the same way. This was when Rhonda asked the question virtually every other HR manager on the planet would ask: who else should I talk to about this?
Any HR manager worth his or her salt is committed to creating a positive work environment. When they hear about a problem with a leader they run to the smoke – this is a way to make sure small issues don’t turn into big issues (the kind that lead to lawsuits or union organizing campaigns). We train this exact behavior in our
Tripwire early warning training. But when you are in an organizing campaign your world is anything but normal, as Rhonda found out.
The NLRB found that Rhonda asking about the other employees was an unlawful interrogation. Since Gloria was a vocal union supporter the Board found that asking about how other coworkers felt about her boss violated the Act.
Does this mean once a union has darkened your doorstep – a time when it is probably most important to look at the skills of your leaders – that you can no longer follow up on the performance of supervisors? I think it is important to call out a paragraph or two from the decision:
“To be clear, we do not discourage employers from monitoring supervisors’ performance, including by asking employees about it, if such questioning is done in a non-coercive manner. However, Pigati’s questions to Johnson extended beyond Johnson’s own views to include the identity of employees who had complained about Rosa. By this additional questioning, regardless whether it was prompted by Johnson’s own remark, Pigati sought information concerning protected activity by other employees concerning their terms and conditions of employment.”
In addition the Board found that the circumstances of the interview, including Rhonda’s asking of Gloria to keep the meeting confidential and holding it as a one-on-one conversation in her office with the door closed, also made it unlawful. I think it is important to point out that Gloria testified that she did not feel uncomfortable or intimidated at all by the meeting, a fact noted but dismissed by the Board.
This is a pretty unfortunate decision, but not surprising. Anytime you are involved in an election and start asking people to tell you what others think you are getting on pretty thin ice. Holding behind closed door meetings (especially with vocal union supporters) is also a sure way to an election objection. This is not to say that these meetings are always illegal (even this Board didn’t go that far!) But you should take care to avoid them when you can. And avoid the “naming names” part of the conversation.
Beyond this practical campaign advice there are some good
approachable leadership lessons here too. An approachable leader should stay focused on the individual employee in front of them. You should be talking to each person as an individual and focusing on their own needs, desires and progress. In fact, getting into how everybody else feels about a particular issue or person takes important time away from this individual’s concerns. It might even make them feel like their own situation isn’t really important to you. They may think the only reason you are really talking to them is to pump them for information about others.
If instead you keep the focus on this individual and how they feel you are going to have a very productive conversation. The employee will feel really listened to and understood. The deeper you understand this person’s situation the better able you’ll be able to empathize with others. You may get some great suggestions that can help improve the workplace. You will probably learn some great things to help coach that employee’s leader.
Further, your employees will not feel like you are on a witch hunt. They will feel like you care, that their concerns matter. They will feel understood. Focusing your conversation on this individual avoids creating the impression of interrogation. It keeps you out of trouble with the NLRB. But most important, people who feel their company cares for and understands them are more productive, they go above and beyond at work, and they do not vote for unions.
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Union Bailout Update
For only the second time in history, both houses of Congress used the Congressional Review Act to approve a disapproval resolution for a federal regulation, this time the Ambush Election rule promulgated by the NLRB. The House passed the measure by a
232-186 vote, but the Senate’s 53-46 tally is 14 votes short of the ability to override the sure-to-come veto. Interestingly, the first time this strategy was used in 2001 was to bury a another labor rule, from the outgoing Clinton administration.
The NLRB meanwhile began
training regional office employees March 16 to manage affairs under the new rule, and is also holding educational meetings for labor law practitioners March 23 through April 13.
The Supreme Court handed the DOL and NLRB (and other federal agencies) a huge victory in
Perez v. Mortgage Bankers Association, potentially
opening the floodgates to speedy rule changes or additions. Prior to Perez, agencies had to follow procedures for posting the rule to the public and collecting comment, which could effectively slow down the rulemaking process for months and sometimes years. Some labor experts expect the NLRB, DOL and other agencies to use this ruling to pass new or make changes to existing precedents outside the normal agency rulemaking process.
The aggressive NLRB General Counsel, Richard Griffin, released a memo Feb. 27th ordering board employees to use
immigration issues as additional leverage against employers during labor disputes. The memo directed regional offices to consider seeking extraordinary remedies when immigration issues were present, and advised them to refer such cases to the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices.
Griffin also widened the
job search and work related costs reimbursement threat initiated by former NLRB General Counsel Lafe Solomon. As Roetzel attorney Matthew D. Austin summed up so nicely,
So assuming a grocery store in Ohio unlawfully discharged an employee, and that employee applied for a job at a grocery store in Hawaii and traveled to Hawaii for an interview, would the Ohio grocery store be required to reimburse the employee for his Hawaiian
vacation job interview? And, would it matter if the applicant
vacationer turned down a job offer? Or, if he purposefully bombed the interview so he wouldn’t receive a job offer? This rule, like so many from the Board recently, leave us with so many unanswered questions.
In one of his more helpful actions, Griffin released
Memorandum GC 15-04 providing
guidance on employer handbooks and rules. The memorandum contains two sections. The first recaps NLRB decisions concerning 8 broad categories of policies, with examples of both lawful and unlawful wording of policies. The second section focuses on the Wendy’s International LLC settlement, using the case to explain why certain policies were found to interfere with employees’ rights under the Act and the language Wendy’s adopted to solve the problematic policies. It is recommended reading!
In recapping a busy year for his office,
Griffin released statistics covering ULPs, representation cases and litigation matters for fiscal year 2014. Among the data:
ULP related activity
- 20,514 charges filed
- 35.2% merit factor (64.8% of charges filed were dismissed or withdrawn)
- Of those charges determined to have merit, 93.4% were settled (about the same as 2013’s settlement rate of 93.2%)
- 1,216 complaints issued
- 85% litigation success rate for the General Counsel before NLRB Administrative Law Judges
Litigation activity
- NLRB regions submitted 144 requests to the General Counsel for Section 10(j) injunction authorization
- General Counsel submitted 38 of these 144 requests to the NLRB for approval
- Approval granted by the NLRB in 37 of the 38 requests
- 11 Section 10(j) cases litigated – 9 complete wins for the General Counsel; 2 partial wins
- 5 pending Section 10(j) injunction cases at the end of FY2014 – since the end of the fiscal year, these were resolved with 3 wins for the GC, 1 loss, and 1 settlement
- Noel Canning cases: 103 cases were returned to the Board from the courts of appeals for reconsideration and issuance of a new decision. The Board has re-decided 70 of these cases, and 4 were settled, leaving 29 cases still to be decided.
With the Ambush Election rule coming into play in April, activity for fiscal 2015 will more than likely stay lively.
Link & Comments
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Right-to-Work Rolls On
Wisconsin became the
25th state to enact a Right-to-Work law, following the 2012 moves by Michigan and Indiana. The AFL-CIO and a couple of unions
immediately filed suit, calling the law unconstitutional. The noise from Big Labor is likely to fall on deaf ears, as the court upheld those in Michigan and Indiana from similar assaults.
In Kentucky, where statewide efforts to secure Right-to-Work have failed, 10 counties have enacted Right-to-Work legislation with 6 more pending, taking perhaps the most unique approach to
protecting the state’s workforce from forced union dues. Missouri and Illinois seem headed for a fight. The Missouri Senate is debating a bill approved by the House while the Governor has stated he doesn’t intend to sign. Illinois is now almost surrounded by Right-to-Work states, but
R-t-W advocates face a huge uphill battle in a political environment dominated by joint Democratic-union interests.
In response to the the recent wave of Right-to-Work successes for employers and employees, Big Labor advocates are looking for the silver lining, or at least some “good news.” In the latest of the Big Labor navel-gazing, how-can-we-survive-the-apocalypse articles, this author
consolidated recent thinking by labor professors and union leaders into three possibilities:
- Allow for members-only unions
- Pass more laws that protect workers’ rights generally
- Just work harder to prove unions are valuable. [novel idea - not really a snowball’s chance…]
It’s a fun read (it’s always a fun read when union angst is involved).
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Alt-Labor
New York City-based Laundry Workers Center United brands itself as a humble worker center “geared toward improving the living and working conditions” of the low-wage immigrant workforce, but as we have seen time and again, these worker centers are usually a part of
Big Labor strategy. LWC proved just that during their Occupy-inspired attack on Hot and Crusty bakery back in 2012 and appear to be at it again.
LWC currently has their sights set on the Liberato, a restaurant in the Bronx. According to a company lawsuit filed against LWC, the Center’s effort to sway employee opinion in their direction began last spring when organizers allegedly engaged in “conspiracy” and “threatening conduct” and attempted to coerce management by “stalking and harassing the patrons, management and employees of Liberato, defaming the Plaintiffs and other employees…and unlawfully interfering” with the business. LWC also filed a class action lawsuit and NLRB complaint against the restaurant over alleged labor violations and mistreatment.
Liberato’s suit also charges LWC with “slander and harassment, as well as violating the Racketeer Influenced and Corrupt Organizations Act (RICO).”
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Who Knew?
An analysis of data from the National Labor Relations Board and the Census Bureau shows that
less than ten percent of currently unionized employees ever voted for their unions! As Richard Berman argues in one of his latest articles, this is a solid argument for the Employee Rights Act that would require an automatic vote to recertify a union after half of voters in the initial election had transitioned out of their jobs and guarantee employee secret ballots on unionization.
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Whistlin’ Dixie
Tennessee’s Senate Commerce Committee approved an incentive grant of $165.8 million to Volkswagen that is supposed to “give Southeast Tennessee a big foothold in the automotive industry.” While that may be true, the problem, according to Sen. Bo Watson, is
“VW is a magnet for organized labor, intentionally.”
Watson is referring to the newly-leaked news that though VW claimed to be a
neutral party during the entirety of the UAW/VW campaign in Chattanooga, that in fact was not the case. We started catching on when VW agreed to let UAW represent their employees even though they lost the election. Since then, it has come to light that Frank Patta, general secretary of Volkswagen’s European and World Group Works Council, and his brother Sebastian, head of Human Relations at the Chattanooga plant, have not only been pushing for the union, but have been degrading those who voted on the side of the company.
At the UAW’s 36th Constitutional Convention, Frank Patta had the following to say:
“I have not seen what happened to workers on the shop floor at Volkswagen ever before….This was not Volkswagen being active against workers. It was about fighting an attacker from the outside, and in the end fear mongering won the election. I would like to praise the 626 brothers and sisters (those who voted yes at Volkswagen Chattanooga) for their courage and steadfastness.” Additionally, he identified the 712 VW employees that voted for the company as “our enemies” and “attackers.”
When questioned at a roundtable discussion at the plant several weeks ago, Sebastian Patta allegedly said:
“Unions will be a part of this plant. If you do not like that, then go somewhere else to find a job.”
A review of the company’s treatment of Eric Wilson shows that the company is prepared to force people to do just that. Wilson was suspended after it became public knowledge that he wrote a letter to the State Legislature urging them not to approve the incentive grant. A former veteran, Wilson argues that he fought to protect the democracy and that to support Volkswagen and the UAW in their attempt to override the democratic election that was held last year is wrong.
Read Wilson’s full story
here.
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Teamsters Beat
Silicon Valley’s tech industry is known for keeping Big Labor at arms length – that is until last month when Teamsters Local 853
won the election for 158 employees at Compass Transportation. Compass Transportation provides shuttle bus drivers for Yahoo, Apple, Genentech, eBay, Zynga and Stanford University.
Joint Council 7 President and Local 853 Secretary-Treasurer, Rome Aloise, said he believes this is the beginning of a domino effect in the Valley wherein they will find success in organizing the rest of the tech industry’s service workers. This marks the first organizing success in the Silicon Valley since the 1990s.
Teamster leaders and members from 12 states attended the March 4 press conference over fast track trade promotion authority on Capital Hill. Together, they presented a letter signed by Jim Hoffa
urging Congress to oppose the bill. A decision isn’t expected to be made on the bill until Congress returns from its Easter recess on April 13.
Two years after firing former business agent David J. Baker, Teamsters Local 120 filed a
lawsuit accusing him of spending $22,897 on unapproved expenses. The suit comes two months after Baker sued the union for wrongful termination. Baker says the only reason he was fired was for “complaining about the union’s top regional leader.”
Baker’s attorney, Kevin Visser, had the following to say:
“They’re trying to throw mud at Dave….Local 120 had over two years to file an insurance claim or lawsuit against Baker for any alleged improprieties that occurred during his employment, but did not do so until Baker filed this lawsuit.”
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Own Worst Enemy
The
Portland Terminal 6 dispute with the ILWU is another typical example of a union focusing on a money-grab for it’s employees even if it damages the overall economy of a region, and eventually creates unemployment for the same employees they say they are “protecting.” Although half of U.S. cargo comes through West Coast ports, shipping routes are being altered to avoid the contentious port. With the expansion of the Panama Canal scheduled for completion next year, West Coast port workers, railroad employees and truckers
may find many of the jobs moving to the East Coast as shipping managers continue to revise trade routes.
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