Labor Relations Today

Labor Relations Today

Guards To Board: SEIU Force Us To Pay Dues

Posted in NLRA, NLRB, Quick Hits, Unfair Labor Practices, Unions

The National Right to Work Foundation has filed unfair labor practice charges on behalf of a group of security guards against the Service Employees International Union (SEIU), alleging that the union forced them to pay dues to support union activities.  The guards, who are not members of the union, accuse the union of forcing them to pay full union dues, even though some of those dues are unrelated to bargaining activities.

The guards argue that the SEIU’s actions are in contravention of the guards’ current collective-bargaining agreement with their employer, in which the union stated that nonunion workers could refrain from paying for the union’s political activities.

“SEIU bosses are resorting to deception and even outright intimidation to force workers into full dues paying union ranks,” Patrick Semmens, vice president of the National Right to Work Foundation, said in a statement announcing the unfair labor practices claim.

The union has yet to comment on the charges.  We will keep you posted as the charges move through the National Labor Relations Board’s processes.

St. Thomas Adjuncts Say No To Union

Posted in NLRA, NLRB, Quick Hits, Representation Elections, Unions

This past week, it was announced that an organizing campaign among adjunct professors at the University of St. Thomas in St. Paul, Minnesota had failed.  In a drawn out and contested election, the final vote tally was 84 in favor of unionizing and 136 against.  The proposed unit, which would have been represented by Adjunct Action, was limited to the 300 or so adjunct faculty who teach undergraduate students.

In a short statement, Adjunct Action expressed its disappointment with the results.

“We are disappointed with the results of today’s election, but are incredibly proud of the gains this campaign achieved by bringing the reality faced by adjuncts at St. Thomas out of the shadows. By starting this process, we’ve initiated a long overdue dialogue with leadership at St. Thomas that has not happened for far too long.”

This is one of the first big losses during a union drive involving Adjunct Action, which has been installed at approximately a dozen universities across the country.  We will keep you posted on further developments.

Subway Franchise Workers Unionize

Posted in NLRA, NLRB, Quick Hits, Representation Elections, Unions

In a sign that the Fight for Fifteen is not going away, a group of workers employed at a Subway Sandwich Shop franchise in Bloombury, NJ voted to join a labor union.  A National Labor Relations Board elections official notified parent company Pilot Flying J late last week that the workers voted 8-5 to join the Retail, Wholesale, and Department Store Union.  Pilot Flying J now has one week to file any objections to the results before the union is certified as the workers’ official bargaining representative.

Interestingly, Pilot Flying J is run by Jimmy Haslam, the owner of the Cleveland Browns and the brother of Tennessee Governor Bill Haslam.  The reader may recall that Governor Haslam was involved in a protracted labor dispute earlier this year when the United Auto Workers sued to overturn a union election after they were voted down at a Volkswagen Plant in Chattanooga, TN.

As noted above, the movement toward unionizing fast food employees is very likely here to stay.  Big labor has been investing significant sums of money into organizing campaigns and protests over the last few years.  This year’s international “Fight for Fifteen” protest comes to mind, wherein the SEIU and several other labor unions convinced fast food employees to walk off the job in a day of action.  

@LRToday will be watching this story closely to see whether the employer appeals the election results.

Board Investigating McDonalds For ULPs

Posted in NLRA, NLRB, Quick Hits, Unfair Labor Practices, Unions

The Huffington Post reports that the National Labor Relations Board has opened an investigation into whether a McDonalds franchise violated the National Labor Relations Act for terminating nine workers for allegedly supporting an employee unionization effort.  The Fast Food Workers Committee, an outside labor organization representing the fired workers, claims that nine McDonalds franchise employees were fired between November of 2012 and this year for joining labor unions and helping to organize workers.  This investigation is significant because the McDonalds corporation, not just the franchise, has been named in the complaint.  If the corporation is deemed to be a “joint employer” of the employees at issue, then the corporation could be held liable for the acts of its franchisor.  We will keep you posted as the investigation continues.

Tribes Pressing For Timely Review of Board Orders

Posted in Federal Court Litigation, NLRA, NLRB, Quick Hits

Last week, the Chickasaw Nation, the Saginaw Chippewa Indian Tribe of Michigan, and the Little River Band of Ottawa Indians argued in briefs to the Sixth and Tenth Circuit Courts of Appeal that several Orders issued by the National Labor Relations Board concerning the agency’s jurisdiction should be remanded for expedited review.  The Board is asking that its prior Orders be totally vacated.  In those Orders, the Board determined that it had jurisdiction over the three tribes’ casino operations pursuant to the National Labor Relations Act.

The tribes are all arguing that completely vacating the Orders would prolong the jurisdictional question for years.  As such, the Courts should abate the tribes’ current appeals of the Board’s Orders and force the Board to take up the jurisdictional question again forthwith.

“The board asks this court to simply vacate its order and allow the board an unstructured do-over,” the Saginaw Chippewa tribe argues in its Sixth Circuit appeal. “This ‘solution,’ though, would penalize both the tribe and this court for the board’s mistake.”

We will be watching these appeals closely.  Stay tuned to @LRToday for any and all updates concerning the Board’s jurisdiction over the tribes.

Board Judge: Becker’s Appointment Valid

Posted in NLRA, NLRB, Quick Hits, Unfair Labor Practices

This past week, a National Labor Relations Board Administrative Law Judge determined that a sushi manufacturer violated the National Labor Relations Act by seeking to compel individual arbitration proceedings of a wage-and-hour class action brought by a former employee.  In his decision, Judge Wedekind determined that Fuji Food Products had run afoul of the NLRB’s D.R. Horton ruling, which provides that mandatory arbitration agreements requiring employees to waive their right to pursue collective action are unlawful. 

While an ALJ striking down yet another unlawful arbitration agreement is certainly a run of the mill ruling these days, this decision was notable for an entirely different reason.  Fuji had attempted to argue that the D.R. Horton decision itself was invalid because Member Craig Becker, one of the participating members in the ruling, was appointed by the President during an intrasession recess of the Senate.

Judge Wedekind gave this argument short shrift, explaining that the Supreme Court’s Noel Canning decision overruled the D.C. Circuit’s view that intrasession recesses were unconstitutional.  Despite Fuji’s arguments to the contrary, Member Becker’s appointment was most likely valid because he was appointed during a 17-day recess. 

“Further, the court’s analysis suggests that recess appointments will be upheld if the recess lasted 10 days or longer. Member Becker was appointed during a 17-day intrasession recess. Thus, his appointment appears to have been valid,” Judge Wedekind wrote.

Even though the ALJ’s decision is not particularly surprising, it is notable because it is the first time since the Supreme Court’s Noel Canning decision that a Board Judge had an opportunity to pass on the validity of recess appointments.  The larger open question, however, remains the continuing validity of the D.R. Horton decision.  The Board recently chose not to seek Supreme Court view of the Fifth Circuit’s decision invalidating D.R. Horton.  Accordingly, labor watchers must continue to wait and see whether the decision will stand the test of time, or whether it will be invalidated based on recent Supreme Court holdings like CompuCredit Corp. v. Greenwood or American Express Co. v. Italian Colors Restaurant.

Breaking: LIRR Strike Averted

Posted in Negotiations, Quick Hits, State/Local Issues, Unions

Earlier today, it was announced that unions representing employees of the Long Island Rail Road (LIRR) reached an agreement with the Metropolitan Transit Authority (MTA), averting a labor strike that was set to begin on Sunday morning.  The deal was signed early this afternoon and will grant LIRR employees 17% raises over a six and a half year period.  While the cost of the contract was not immediately available, union officials disclosed that LIRR workers would have to contribute to their health care costs.  Thankfully for consumers, the cost of the deal will not be passed on to them.

“This deal puts no additional pressure on the fares,” Metropolitan Transportation Authority Chairman Tom Prendergast said at a press conference at which the deal was signed.

A union spokesperson explained that he was confident union members would ratify the deal by the middle of August.  The MTA Board, in turn, will formally approve the contract in early September. 

More on this story can be found here:

UFCW Sets Sights On Sodexo

Posted in Negotiations, NLRB, Quick Hits, Unions

This past week, cafeteria workers at Texas Christian University (TCU) approved their first-even union contract.  TCU’s cafeteria workers, employed by food service company Sodexo, voted last March to join the United Food and Commercial Workers union (UFCW).  A spokesman for the union now reports that it has begun organizing drives in at least five other colleges and universities this summer.  Those schools are believed to be Dallas Baptist, Texas A & M, Tulsa, Oral Roberts, and Langston.

TCU’s union issues began after Sodexo revised its full-time employment formula last fall.  The change, which went into effect January 1, caused many of Sodexo’s variable-hour workers to lose health insurance coverage.  The resulting discontent allowed the UFCW a foothold on campus.

Hail Mary Talks Resume In Attempt To Avert LIRR Strike

Posted in Negotiations, Quick Hits, Unions

Multiple media outlets are reporting that the Metropolitan Transit Authority (MTA) and unions bargaining on behalf of employees of the Long Island Rail Road (LIRR) have returned to the bargaining table at the urging of Governor Andrew Cuomo.  As widely reported earlier this week, the unions are planning to call a labor strike as early on Sunday morning if an agreement on a new collective bargaining agreement is not reached by midnight this coming Saturday.  In a statement, the MTA emphasized that it remained committed to avoiding a labor strike and reaching a deal.

“The only way to prevent a strike is for both sides to negotiate a fair and reasonable settlement at the bargaining table,” the MTA said. “We have asked the LIRR unions to resume negotiations immediately.”

For their part, anxious riders are hoping for a resolution.  A strike would strand almost 300,000 daily commuters.  With no reasonable alternative of getting to work, the economic impact of a labor shutdown could be disastrous.  We will keep you posted as this story continues to develop.

Supreme Court’s Hobby Lobby Decision and Unionization

Posted in Interest Arbitration, Media Round-Up, NLRA, NLRB, SCOTUS
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Ned Resnikoff has a piece today at MSNBC.com opining that the Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., will provide employers a means of avoiding unionization:

By declaring that “closely held” corporations may hold religious beliefs, the court may have provided businesses with a new tool for crushing workplace unionization drives. In addition to declaring themselves exempt from contraception mandates and non-discrimination laws, religious employers may soon be able to argue for an exemption from collective bargaining laws.

All you need is one employer saying, ‘My religious beliefs tell me I shouldn’t collectively bargain,’” said Alex Luchenitser, associate legal director for Americans United for Separation of Church and State. If an employer takes the National Labor Relations Board (NLRB) to court and uses that argument, it could set the table for a major court battle over the future of union rights in nominally religious workplaces.

However, it is very unlikely that Hobby Lobby can be used by employers to escape their obligations under the National Labor Relations Act. First, the employer would have to establish that it holds a “sincere religious belief” against collective bargaining. How many religions have specifically addressed the religious virtues (or lack thereof) of collective bargaining, let alone expressly forbade it or otherwise discouraged its followers from engaging in it? As such, employers would likely have an uphill battle in establishing a “sincere religious belief.”

Second, even if the employer could meet that burden, the courts would likely find that collective bargaining under the NLRA ”is in furtherance of a compelling governmental interest; and … is the least restrictive means of furthering that compelling governmental interest.” The problem for the government in Hobby Lobby was the fact that Department of Health and Human Services (HHS) ”itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.” Unlike the HHS, the NLRB does not have at its disposal a less restrictive alternative to collective bargaining. One could argue that interest arbitration is an alternative to collective bargaining that could be employed by amending the NLRA, but interest arbitration is rarely a better option than traditional collective bargaining for private employers. As such, employers would not advocate such an alternative, and they would be hard pressed to identify another viable alternative that they prefer to collective bargaining.

Mr. Resnikoff’s article includes a quote from a statement by the National Right To Work Legal Defense Foundation regarding the Pacific Lutheran University case currently before the NLRB, suggesting another means for an employer to use Hobby Lobby for objecting to collective bargaining on religious grounds:

“If the NLRB recognizes Local 925 as the adjuncts’ exclusive bargaining agent, union officials will be empowered to negotiate over terms and conditions of employment with Pacific Lutheran University,” said the Legal Defense Foundation in a statement. “Those negotiations could force university administrators to make concessions that contradict the school’s religious mission, such as expanding access to abortion under the university’s health care plan.”

However, that argument likely finds no support under Hobby Lobby because while the union could certainly make proposals that contradict the employer’s religious beliefs, such as access to abortion, the NLRA does not require employers to agree to any proposal. Employers could simply reject the proposal by explaining to the union why it cannot agree to it. Therefore, an employer like Hobby Lobby challenging its collective bargaining obligation on those grounds would have difficulty proving that collective bargaining imposes a “substantial burden on the exercise of religion.”

Consequently, while Hobby Lobby might encourage closely-held corporations to assert a religious objection to collective bargaining in NLRB proceedings, it is unlikely that either the NLRB or the courts will find any merit to those objections.