Labor Relations Today

Labor Relations Today

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.

UAW Opens Local In Chattanooga, TN

Posted in Quick Hits, Representation Elections, Unions

The United Auto Workers are seemingly going back to the future.  Last week, the UAW opened a new local, Local 42, only a few miles from Volkswagen’s Chattanooga plant in Tennessee.  The reader may recall that the UAW was defeated in a union election at VW’s Chattanooga plant earlier this year, despite VW’s pledge to remain neutral throughout the campaign.  After the union lost, they filed a lawsuit, which was subsequently withdrawn.

The move to establish a local at the Chattanooga plant comes not long after Volkswagen announced that a new fleet of SUVs would be built at that location.  The UAW will not be able to hold a new union election until next year at the earliest.  However, labor watchers expect the union to continue to push membership in the UAW upon VW workers at every opportunity.

More on this story can be found here:

LIRR Workers Ready To Strike

Posted in Negotiations, Quick Hits, Unions

As we reported briefly yesterday, leaders of the labor unions representing employees of the Long Island Rail Road (LIRR) announced that they planned to strike this coming Sunday.  A last ditch effort at negotiating a labor settlement with the Metropolitan Transit Authority (MTA) broke down after barely 45 minutes yesterday, leading to the call to strike. 

“I regret to report that negotiations have collapsed with the MTA, and all eight unions are now proceeding with strike plans for July 20,” United Transportation Union President Anthony Simon said in a press release after the meeting. “MTA has clearly decided that provoking a strike is the course of action it intends to pursue. No further negotiations are scheduled.”

During talks, union heads have made it known that they are looking for 17% raises for their constituents over a six-year period.  The most recent counter-proposal from the MTA would grant the workers a 17% raise over seven years, but would also require the employees to pay their own health care costs, which was unacceptable to the unions.

As noted yesterday, an LIRR strike would strand approximately 300,000 daily commuters.  No new talks are currently scheduled.