Labor Relations Today

Labor Relations Today

New Executive Order Targets Federal Contractors

Posted in Executive Orders, Government Contracting, Government Contracts, NLRA, Senate

President Obama has issued yet another executive order that will impose additional labor compliance requirements on companies that choose to do business with the federal government.  Entitled “Fair Pay and Safe Workplaces,” the new Order requires contractors and subcontractors to disclose their own labor law violations and requires federal agencies to exclude from federal contracting those companies with a history of poor labor law compliance. 

The Order, which seems to follow from a report issued by the Senate HELP Committee last December, targets the following areas:

  • Disclosure of Labor Law Violations: The Order requires that contractors seeking to procure a contract valued in excess of $500,000 must disclose whether whether an administrative merits determination, arbitral award, or civil judgment was rendered against it in the previous three year period.  This new disclosure requirement applies to violations of many different labor laws and Executive Orders, including the National Labor Relations Act.
  • “Paycheck Transparency”: Contractors must provide their employees with information regarding that employee’s hours worked, overtime hours, pay, and any additions or deductions to that employee’s paycheck.  Contractors must also include in their contracts with subcontractors a requirement that the subcontractor make the same paycheck disclosures.
  • Limiting arbitration agreements: While D.R. Horton has already severely limited an employer’s ability to make use of mandatory arbitration agreements (at least according to the NLRB), the Order limits the ability of certain contractors to arbitrate claims brought by employees pursuant to Title VII.  Covered contractors are now also prohibited from compelling an employee to arbitrate claims arising from a sexual harassment or assault unless the employee agrees to arbitration after the dispute arises.  However, the limits placed on mandatory arbitration agreements do not apply to employees covered by a collective bargaining agreement.

It is likely that it will take some time before employers and labor watchers get a clear picture as to an employer’s actual obligations stemming from the President’s Order.  Nevertheless, in conjunction with the President’s other recent executive orders establishing a $10.10 minimum wage for employees of contractors and addressing discrimination against LGBT employees of contractors, federal contractors will have significant new compliance obligations to digest as new regulations are issued over the next year.

Northwestern, CAPA Square Off In Reply Briefs

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

Both Northwestern University and the College Athletes Players Association (CAPA) filed reply briefs with the National Labor Relations Board (NLRB) yesterday to further strengthen their respective positions regarding whether Northwestern’s football players should be able to form a labor union.  The reader may recall that the players filed a representation petition last January.  NLRB regional director Peter Sung Ohr determined in March that the players were “employees” of the university pursuant to the National Labor Relations Act (NLRA) and could hold a union election.   

In its brief, Northwestern again hammered CAPA for arguing that football is unrelated to the school’s goal of educating young adults.

“There is overwhelming evidence that intercollegiate athletics are an integral aspect of the educational mission of Northwestern and other private and public universities,” the school said.

The CAPA, on the other hand, contended that the football players are employees because football is teaching them work skills

“Cultivating leadership, ability to work with others, and a dedication to hard work are attributes of employment,” the union said.

The parties’ briefs and reply briefs, as well as the briefs of various amici are in the Board’s hands and the case appears ripe for a decision.  Regardless of which way the Board rules, labor watchers expect the losing party to appeal the decision to the Circuit Courts.

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.