Labor Relations Today

Labor Relations Today

Met Threatens To Lock Out Workers

Posted in Interest Arbitration, Negotiations, Quick Hits, Unions

When one lockout ends, another begins?  That’s the message coming from the Metropolitan Opera in New York City, anyway.  Officials representing the Metropolitan Opera (the Met) have announced that they are ready and willing to lock out unionized employees as early as tomorrow unless the parties can agree to a new collective bargaining agreement by midnight tonight.  While there has been talk of the parties bringing in a federal mediator to aid in contract talks, such a move has yet to materialize.

The parties have been at odds for months, primarily because the Met has been running at about a $3million deficit and needs to cut costs.  Those proposed cuts, of course, would likely impact worker salaries and benefits.  The union has proposed that the parties engage in interest arbitration, but the Met has rejected the suggestion outright. 

This would not be the first time that the fabled Opera house has locked out its employees.  Large portions of both the 1969 and 1980 seasons were cancelled after the Met locked out union members during protracted labor negotiations.

Locked Out Kelloggs Employees Win Right To Return To Work

Posted in Federal Court Litigation, Negotiations, NLRA, NLRB, Quick Hits, Remedies, Unfair Labor Practices, Unions

Yesterday, U.S. District Judge Samuel Mays ordered that Kelloggs must immediately end its lock out of 220 workers at its Memphis, TN plant.  The Judge’s Order provides that Kelloggs made use of “creative semantics” to make changes to its collective bargaining agreement with the Bakery, Confectionary, Tobacco Workers and Grain Millers International Union (the Union). 

“Kellogg effectively demanded changes to the wage rates of new or rehired regular employees,” Mays wrote. “Those rates are set in the master agreement. The good-faith bargaining required by the (National Labor Relations) Act does not allow Kellogg to use creative semantics to force midterm changes in the wages of new or rehired regular employees in violation of the master agreement.”

Kelloggs has locked out its employees since last October.  The company now has five days to send out reinstatement offers to all of its locked out employees.

More on this story can be found here:

Senator Reintroduces Union Financial Transparency Rules

Posted in Department of Labor, Legislation, Quick Hits, Senate, Unions

The Washington Times reports that earlier today, Senatore John Thune (R-SD) introduced a bill that would bring back financial transparency rules for labor unions.  The three sets of rules promulgated by the Department of Labor were proposed during the administration of President George W. Bush.  President Obama did away with the proposed regulations when he assumed office in 2009.

The Senator noted that the rules are designed to limit union corruption.

“From exempting unions from parts of Obamacare to repealing union financial transparency requirements, the Obama administration has gone to great lengths to protect its union boss friends,” he said. “The Obama Labor Department’s rollback of these financial transparency rules is crony capitalism at its worst. I hope my colleagues join me in supporting my bill to put an end to the administration’s political favoritism and restore transparency to union finances. Union members deserve to know how their dues are being spent.”

While the legislation sounds good on paper, it has almost no chance of moving through the Democratic Senate.

NBA Players Elect New Union Chief

Posted in Negotiations, Quick Hits, Representation Elections, Unions

The National Basketball Players Association (NBPA) elected Michele Roberts as its new union chief.  The union for NBA players was without an appointed executive since 2013, when former chief Billy Hunter stepped aside after an internal investigation.  Ms. Roberts becomes the first woman ever to head a major sports union.

Interestingly, Ms. Roberts has few ties to the NBA.  That may have worked in her favor though, as she garnered 32 of the 34 possible votes in last Monday’s election.  As a tough and seasoned litigator, Ms. Roberts is now expected to form a consensus between the league’s “role players” and its all-stars before the current collective bargaining agreement expires in 2017.

More on this story can be found here:

National Labor Relations Board General Counsel to Pursue Complaints Against McDonald’s and Franchisees as Alleged Joint Employers

Posted in Uncategorized

The National Labor Relations Board Office of the General Counsel announced this afternoon that it has authorized complaints on 43 unfair labor practice charges filed against McDonald’s franchisees and their franchisor, McDonald’s, USA, LLC.   Significantly, the General Counsel has indicated that absent settlement in these cases, he will issue complaints against the respective franchisee and McDonald’s, USA, LLC as a joint employer respondent.

This announcement by the General Counsel of allegations his office will pursue in litigation before an Administrative Law Judge is widely being mischaracterized as a “ruling” or “decision” of the National Labor Relations Board itself.  We are likely years from such a conclusive finding.  Still, the General Counsel’s announcement is a clear proclamation of his legal position on the joint employment issue — a legal position, once again, at odds with decades of precedent.

The Board has long been expected to toss aside decades-old standard for determining whether two or more businesses may be found to be “joint employers.”  In May 2014, the Board invited interested parties to submit amicus briefs in Browning-Ferris Industries, a case involving the routine application of the Board’s existing standard.  Under that standard, two or more employers must “share or co-determine matters governing essential terms and conditions of employment.”  Perhaps consistent with the approach announced today, the NLRB’s General Counsel’s brief argued that the Board should abandon its current joint employer standard in favor of an amorphous “totality of the circumstances” test.  (McKenna Long & Aldridge filed an amicus brief on behalf of the Retail Litigation Center).  The briefing period for amici closed on June 26, 2014, and the case appears to be ripe for decision.  Obviously, the actual National Labor Relations Board decision in Browning-Ferris may have significant impact on the resolution of these McDonald’s cases as they go forward.

At a hearing of the House Subcommittee on Health, Education, Labor & Pensions on June 24, 2014, Andrew Puzder, the CEO of CKE Restaurants expressed his concerns about the Board’s shift in approach thus:

If franchisors are considered joint-employers with their franchisees, the cost of increased staff and increased risk will most likely translate into franchisors charging higher royalty rates and fees, perhaps significantly higher. Franchisor control over a franchisee’s labor force, and the risk and higher royalty rates and fees associated with it, have the potential to chill the desire of franchisors to franchise and of franchisees to acquire a franchise or to develop new units, at a time when the country desperately needs economic growth.

Many of these charges have been filed in concert with the Fight for Fifteen movement, funded significantly by the S.E.I.U.  Since November 2012, at least 181 charges have been filed across the country against McDonald’s franchises.  The General Counsel indicated today that 68 were found to have no merit, and presumably have been, or will be, dismissed.  To date, 43 of these cases are thought by the General Counsel’s Office to have merit, and will be the subject of litigation absent settlement.

Employer wins in Bergdorf Goodman, but Specialty Healthcare Still Alive and Well

Posted in Micro Units, NLRB Decisions, Representation Elections
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On July 28, 2014, the National Labor Relations Board issued its long-awaited decision in Bergdorf Goodman, 361 NLRB No. 11 (2014), unanimously finding inappropriate the petitioned-for unit of “all women’s shoe sales associates” at the employer’s retail store on Fifth Avenue–even under the controversial test articulated in Specialty Healthcare. The outcome is somewhat surprising given the Board’s recent decision in Macy’s, Inc., in which it applied Specialty Healthcare and found appropriate a petitioned-for unit consisting of all sales employees from only cosmetics and fragrances departments.

In Bergdorf, the union sought a bargaining unit comprised only of the women’s shoe sales associates in the “Salon shoes” department on the second floor, and in “Contemporary shoes” group in the larger “Contemporary Sportswear” department. The Board’s decision overturns the Regional Director’s decision, in which he found that petitioned-for unit appropriate because the women’s shoe associates position:

requires a distinct skill set from other sales associates due to the unique nature of the product they are selling. If a shoe is not sized appropriately for a customer, discomfort and possible knee, back and other physical injuries could result.

The Regional Director also found that the women’s shoes associates were compensated differently than the other sales associates and that there was little interchange and interaction with other employees, which outweighed the common terms and conditions of employment among all employees.

The Board disagreed as it found that the employees in these two departments lacked a community of interest despite the fact that they all sold women’s shoes, were the only employees who specialized in women’s shoes, were the only employees in the store paid on a “draw against commission” basis, and received the highest commission rate. Specifically, the Board noted that while the petitioned-for employees were readily identifiable as a group by virtue of their function, the “boundaries of the petitioned-for unit do not resemble any administrative or operational lines drawn by the Employer”:

while the Salon shoes employees constitute the whole of their department, the petition carves the Contemporary shoes employees out of a second department, Contemporary Sportswear, excluding the other sales associates in that department. The carved-out Contemporary shoes employees are then grouped with the Salon shoes employees, who are located on a separate, nonadjacent floor.

The Board, except for Members Miscimarra and Johnson, then took it upon itself to identify the following facts that could have swung the decision in the union’s favor:

  • if Salon shoes and Contemporary shoes employees shared common supervision despite being located in different departments;
  • significant interchange between the Salon Shoes department and the carved-out Contemporary shoes group;
  • significant contact between the two groups; and
  • shared skills and training.

Interestingly, while all five members of the Board participated in the decision, in a footnote Member Miscimarra expressly disagreed with the viability of Specialty Healthcare, as he reiterated the standard he set for in his dissent in Macy’s. that should apply. Member Johnson declined to address Specialty Healthcare or the recent Macy’s case.

Although the unit cherry-picked by the union was found inappropriate, employers should take little comfort in Bergdorf Goodman as the Board used it to create a road map for unions to identify “appropriate” fractured units despite Specialty Healthcare‘s admonition against  such units. Accordingly, please continue to monitor the blog for additional developments and analysis of micro unit cases.

SEIU Funds Fight For Fifteen Gathering

Posted in Quick Hits, Special Interests, Unions

The Boston Globe reports that last week, over 1,000 fast food workers from across the country gathered in a Chicago suburb to discuss ways to raise their wages.  The movement, colloquially dubbed the “Fight for Fifteen,” has been gaining steam since its inception in November of 2012.  Last week’s convention is believed to be the largest meeting of fast food employees since the Fight for Fifteen took off.

As we have reported previously, the movement is being underwritten largely by the Service Employees International Union (SEIU).  The SEIU has provided the Fight for Fifteen with organizing assistance, strategic advice, and cash. 

Glenn Spencer, an executive at the U.S. Chamber of Commerce, noted that the SEIU was not acting solely in the interests of the workers.   

“You don’t put that kind of money in just to have a sense of altruism,” he said. “You have a plan for how that transfers into new members.”

The Fight for Fifteen has gained a great deal of media attention in recent months, but organizing local fast food restaurants may prove difficult.  High turnover will in particular likely have a negative impact on any organizing efforts.  However, that is not to say that this movement can be ignored.  After 18 months, it has become clear that the Fight for Fifteen has some serious staying power.

More on this story can be found here:

Proposed House Bill Would Make Organizing A Civil Right

Posted in House of Representatives, Legislation, NLRA, NLRB, Quick Hits

The Nation reports that House Democrats John Lewis (GA) and Keith Ellison (MN) plan on introducing legislation that would make labor organizing akin to a civil right.  As currently written, the bill would amend the National Labor Relations Act to make union campaigning a fundamental legal right similar to the right to be free from age, sex, or racial discrimination in the workplace.   

If an employer violated the amended Act, an employee could seek redress in federal courts after 180 days.  This plan of action, similar to the current processes in place for EEOC processes, which place the allegedly aggrieved employee in the drivers’ seat.  Under current labor law, an employee must rely on the results of a National Labor Relations Board investigation before finding out whether a complaint may move forward.

Representative Ellison justified the proposed legislation in a statement to The Nation:

“[The NLRB] remedy, though useful and very important, and nothing in our legislation changes that, that remedy is considered slow and somewhat inadequate. For some of these union-busting law firms, [they] will say ‘so do it and we’ll just pay.’”

We will be following this legislation closely.  In its current form, it is quite unlikely that the bill will go anywhere in the Republican-controlled House.  Regardless, we will keep you posted.

Board ALJ Nixes Mercedes’ Handbook Policy

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

Last week, a National Labor Relations Board Administrative Law Judge determined that Mercedes-Benz’s employee handbook contained an overly broad and unlawful policy.  The complaint brought by the United Auto Workers (UAW) alleged that the policy, which prohibited employees from passing out nonwork-related notices during work time or in working areas, violated the National Labor Relations Act.

“Employees reasonably would understand” the solicitation and distribution rule, said Judge Locke, “to prohibit solicitation, in work areas, by employees not on working time of other employees not on working time.”

Mercedes-Benz must now revise the employee handbook’s “solicitation and distribution” section to ensure that employees understand that the rule in question does not prohibit solicitation of employees outside of working time.  We will keep you posted on whether Mercedes appeals the ALJ’s ruling to the full Board.

Top 10 NLRB Issues to Monitor the Rest of the Year

Posted in Expedited Elections, Micro Units, NLRA, NLRB, NLRB Administration, NLRB Decisions, NLRB Misc., NLRB Rule-Making, Presidential Appointments, Representation Elections, SCOTUS, Unfair Labor Practices
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UPDATED: JULY 29, 2014

1.  Aftermath of Noel Canning

The Supreme Court determined in late June of this year that President Obama’s purported recess appointments to the National Labor Relations Board were unconstitutional.  Hundreds, or potentially even thousands, of Board decisions issued by the improperly-constituted Board could be affected by the Court’s ruling.  Administrative actions taken by the Board and the former Acting General Counsel, Lafe Solomon, could also be affected by the decision.  Interestingly, Member Craig Becker, whose term in office was also effectuated via recess appointment, was deemed to be properly-appointed in a recent decision by an Administrative Law Judge, so presumably cases issued during his tenure are unaffected.

2.  Quickie Election Rules

After the Board’s 2011 efforts to adopt new rules designed to shorten the time between petitions and union elections were found to be procedurally defective, the Board announced in February 2014 that it was proposing virtually the same rules anew.  The Board held a public hearing, and the public comment period closed in mid-April.  While no date for final determination has been announced, a decision will likely come by the end of 2014.

3.  Micro Units

This week’s decision in Macy’s, Inc., finding appropriate a bargaining unit consisting only of cosmetics and fragrance employees represents a significant break from the Board’s long-standing practice of upholding only store-wide units in the retail industry.  It certainly reveals that the Board’s 2011 decision in Specialty Healthcare is alive and well.  Another micro-unit case — Bergdorf Goodman, Case No. 2-RC-076954– is pending at this time.  While that case also arose in the retail industry, application of the Macy’s/Specialty Healthcare framework to the facts of that case may shed additional light on how micro-unit cases will be approached in all industries.

UPDATE: The Board issued its decision in Bergdorf Goodman on July 28, 2014. Please see our post summarizing the decision, and continue to monitor the blog as we will provide additional updates and analysis of micro unit issues.  

4.  Employee Access to Employer Communication Systems

In May, 2014, the Board invited amicus briefs in the Purple Communications case, with an eye toward creating special rules for employee access to employer email systems for union activities. Currently, the Board’s Bush-era Register Guard decision governs these decisions, holding that employers can enforce a blanket-ban on non-work-related use of its email system so long as the ban is non-discriminatory and consistently applied.  The General Counsel’s position, summed up in its brief filed in the case is that employees should “have a statutory right to use [the employer's email] systems for Section 7 purposes during nonwork time, absent a showing of special circumstances relating to the employer’s need to maintain production and discipline.”  Such a holding would not only reverse the Register Guard holding, but would depart from decades of Board precedent holding that employees have no right to use employer equipment for union organizing activities. On June 24, 2014, the House Subcommittee on Health, Employment, Labor and Pensions (HELP) conducted a hearing concerning the National Labor Relations Board’s current agenda, including the issue of employee access to employer email systems. Briefing in Purple Communications has concluded, and thus the case is ripe for decision.

5.  Joint Employer Standard

In May 2014, the Board invited interested parties to submit amicus briefs in Browning-Ferris Industries, a case involving the routine application of the Board’s decades-old standard for determining whether two or more businesses may be found to be “joint employers.”  Under the existing standard, two or more employers must “share or co-determine matters governing essential terms and conditions of employment.” Predictably, unions and their allies submitted briefs proposing that a much broader standard be adopted.  The NLRB’s General Counsel’s brief argued that the Board should abandon its current joint employer standard in favor of an amorphous “totality of the circumstances” test.  The briefing period for amici closed on June 26, 2014, and the case appears to be ripe for decision.

6.  Deferral to Arbitration

Back in February of this year, the Board solicited briefings on whether it should “continue, modify or abandon the Olin/Spielberg standard for deferral to arbitration awards.”  The existing standard has been good law for many years, but has recently come under attack from former Acting General Counsel Lafe Solomon.  The current General Counsel is also advocating for a new standard, which would place the burden of proof on the party seeking deferral to demonstrate that (1) the collective-bargaining agreement incorporates the statutory right, or the statutory issue was presented to the arbitrator, and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue.  Briefing on the issue has concluded and labor watchers expect a ruling in the coming months.

7.  Persuader Rules

The much-anticipated and long-delayed Department of Labor rule narrowing drastically the scope of the “advice exception” to the so-called persuader regulations in the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) remains a very significant issue to be watched.

8.  Appointment of Sharon Block

The term of Board Member Nancy Schiffer, one of three Democrats on the five-member Board, expires December 16, 2014.  President Obama has announced that he intends to appoint Democrat Sharon Block to replace Member Schiffer.  Ms. Block was one of the attempted recess appointments invalidated by the Supreme Court in Noel Canning.  If Ms. Block’s appointment is confirmed by the Senate, the Democrats will maintain the existing 3-2 majority on the Board.

9.  Successor Employer Obligations

In 2011, the Board overturned existing precedent and held that, where a new employer is determined to be a successor employer after a sale or merger, no challenge to a union’s representational status may be raised for a “reasonable” time after the transaction.  NLRB General Counsel Richard Griffin has indicated that additional changes may be in the works impacting successor employers.  Under current law, even though a successor employer has an obligation to bargain with the union representing the predecessor’s employees, the successor may, in most instances, unilaterally determine the initial terms and conditions of employment for those employees.  On February 25, 2014, General Counsel Griffin wrote that his “initiatives or policy concerns” included “[c]ases involving the issue of whether a perfectly clear successor should have an obligation to bargain with the union before setting initial terms of employment.”  He is expected to request the Board to change the existing law in this area.

10.  Rights of Non-Union Employees

The Board and General Counsel Griffin are focused on addressing the rights of non-union employees. The Board has already issued a number of decisions affecting non-union employees such as cases involving employer work rules, rules against gossipconfidentiality rules, disciplining employees’ for insubordinate conduct while engaged in protected activity, as well as others. Meanwhile, General Counsel Griffin has identified multiple initiatives directed at non-union employees for which it wants to give guidance to the Regions. For example, he has publicly stated that one of his major focuses for the next term will be eliminating workplace rules stating that employees cannot discuss wages. In addition, he has directed that matters involving the following issues are to be submitted to the General Counsel’s Division of Advice:

  • the applicability of Weingarten principles in non-unionized settings;
  • at-will” provisions in employer handbooks
  • the rights of contractor employees, who work on another employer’s property, to have access to the premises to communicate with co-workers or the public; and
  • mandatory arbitration agreements with a class action prohibition.

Honorable Mention

While affecting a small subset of private employers, the Northwestern University case presents interesting issues about when students are “employees” under the National Labor Relations Act. In Northwestern, the Regional Director found that the university’s football players are not primarily students, and thus are “employees” under the Act and able to form a union. The players voted in a union election on April 25, but the ballots were impounded pending a decision by the Board on the university’s appeal of the Regional Director’s decision. The Board’s decision will not only address the status of football players under the Act, but also likley the continued viability of the Board’s 2004 decision in Brown University, holding that graduate students are not “employees” under the Act. Brown University reversed the Board’s 2000 decision in New York University holding for the first time that graduate assistants are “employees.” Briefing concluded on July 10, so the case is now ready for a decision.