Labor Relations Today

Labor Relations Today

Bentley U Adjuncts Join SEIU

Posted in NLRA, Quick Hits, Representation Elections, Unions

Yesterday, the Service Employees International Union announced that adjunct faculty working at Bentley University in Massachusetts have voted to form a labor union.  Per the union’s press release, eligible faculty voted 2-1 in favor of joining the union.  Reportedly about three-quarters of eligible voters cast a vote.

In a short statement, the University expressed its regret over the union vote, but committed to bargaining in good faith with the SEIU over a collective bargaining agreement.

Notably, yesterday’s election win reverses the SEIU’s loss at the same university from 2013.  In that election, the union lost by two votes and vowed to “re-group for another attempt,” which ultimately proved successful.

More on this story can be found here:

NFIB Files Amicus Brief Ripping NLRB Facebook Ruling

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

Earlier this week, the National Federal of Independent Business’ small business legal center filed an amicus brief with the D.C. Circuit, arguing that the National Labor Relations Board incorrectly held that employees of a clothing store had engaged in protected activity by griping about work on Facebook.  (See the NFIB Brief here).

The case arose when two employees working for a clothing store in San Francisco, CA asked their manager if the store could close earlier because the employees were being harassed after closing up shop at night.  The manager said she would talk to corporate officials about the issue.  Later, the two complaining employees raised the issue with the store’s owners.  The manager became frustrated and had words with the employees over the phone, prompting one of the employees to complain about “all the crap that’s going on” at the store on Facebook.  That employee, along with her complaining coworker, were terminated.

The Board held that the posts were protected activity, so the employer’s termination of the employees was illegal, a position with which NFIB’s brief disagrees:

“The NLRB’s message to employers is that an employee who participates in a social media exchange relating to their workplace is thereafter untouchable regardless of their admitted, unprotected misconduct,” the brief states. “This message flies in the face of long‐established NLRB precedent.”

We will be watching this matter closely and will make sure to keep you posted on important case updates, so stay tuned.



NLRB GC: Search of Company-Owned Vehicle Not an Investigatory Interview

Posted in Division of Advice, NLRA, Unfair Labor Practices, Weingarten Rights

In an Advice Memorandum issued February 6, 2015 in Southwestern Bell Telephone Company, Case 14-CA-141000, the National Labor Relations Board Office of the General Counsel found that an employer did not violate Section 8(a)(1) by searching an employee’s company-owned vehicle without a union representative present despite the fact that the employee had requested, and been provided, a representative for a prior, related investigatory interview.

The employer’s investigation began when it found a small bag of marijuana underneath empty chairs where the employee and a co-worker had recently been sitting. The employer investigated the matter by individually interviewing the employee and her co-worker, and during the employee’s interview, she requested the presence of a union representative and the employer granted the request. After the initial interview, the employee went to lunch and the employer then searched the company vehicle used by the employee. The employer did not notify the employee or the union representative of its intent to search the vehicle, and none of them were present for the search. The employer found a CD case that contained CDs and pornographic DVDs, but no marijuana. After the search, the employer conducted a second interview with a union representative present. The employee admitted that the CD case belonged to her, but denied knowing it had pornographic DVDs in it. The employer then disciplined the employee.

Given this fact pattern, the issue was whether the search of the company vehicle was a continuation of the employer’s first investigatory interview during which the employee requested a union representative. As set forth in the memorandum, in NLRB v. Weingarten, 420 U.S. 251 (1975), the Supreme Court held that employees in a unionized workplace may request the presence of a union representative at an investigatory interview that the employee reasonably believes may result in disciplinary action. An employer is engaged in an investigatory interview for the purposes of Weingarten when the employer confronts an employee and asks her to answer questions related to a disciplinary investigation.

An employer’s questions qualify as an investigatory interview even when they are merely implicit. Thus, in System 99, [289 NLRB 723 (1988)] the Board held that an employer’s request that an employee submit to a sobriety test was an investigative interview under Weingarten. The ALJ, affirmed by the Board, reasoned that, by requesting that the employee take a sobriety test, the employer asked the implicit question: “Will you submit to a sobriety test?” Because this implicit question was related to a disciplinary investigation, the employee had a Weingarten right to consult with a union representative before deciding how to respond. The Board, however, has expressly declined to pass on the question of whether a drug test “standing alone,” which is arguably analogous to a search, constitutes an investigatory interview under Weingarten.

The Division of Advice concluded that the employer’s search was not in itself an investigatory interview, nor a continuation of the prior investigatory interview.

When the Employer searched the company vehicle, it did not engage in a confrontation with the Employee and did not ask the Employee any questions, even implicitly. Instead, the Employee was not present for the search, was not asked to aid in the search, and was not even aware the search was taking place. Because the Employer asked nothing of the Employee, the Employee had no need for a Union representative’s assistance.

While this Advice Memorandum is a ‘victory’ for employers, the Advice Memorandum certainly suggests that there can be factual scenarios where the search of a company-owned vehicle can constitute an investigatory interview thereby granting union employees Weingarten rights. Accordingly, employers should not automatically assume that Weingarten rights are never implicated in the search of a company-owned vehicle.

FairPoint Strike Ends

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

As of this morning, employees working for FairPoint Communications in the New England area will return to work after striking for the past four months.  The workers began striking on October 17, 2014 when negotiations over a new collective bargaining agreement with their employer began to stall out.  However, a new contract has finally been reached.

The contract, which has been ratified by union members, lasts until August 2018.  Among its more controversial provisions are a union-run healthcare plan, as well as a provision allowing FairPoint to outsource work to non-union members in “extreme situations.”

As we reportedly previously, the contract negotiations were prolonged and nasty.  At one point, the unions representing FairPoint’s unionized workforce filed unfair labor practice charges against FairPoint with the National Labor Relations Board.  But those charges were dismissed in December 2014.

Once a federal mediator came on the scene, the deadlock began to dissipate.  And with the contract now ratified, FairPoint’s employees can finally get back to work.

More on this story can be found here:



UAW Organizes March at Mississippi Seat Plant

Posted in NLRA, NLRB, Quick Hits, Unions

In keeping with its make-or-break “Southern strategy,” the United Auto Workers are in the midst of an organizing campaign at an automobile seat factory in Cleveland, MS.  As the reader may recall, the UAW has been seeking to organize across the Southeastern United States, with the union losing an election in particularly embarrassing fashion at Volkswagen’s Chattanooga, TN plant about one year ago.

The current organizing drive is taking place at Faurecia SA seating.  Today, workers and UAW members plan to march through the city’s streets in order to protest what they believe to be low wages and poor working conditions.  Reportedly, employees make up to $11.64 per hour at the factory.

No petition for election has been filed with the National Labor Relations Board at this time.  Per the Board’s procedures, the UAW will have to garner union cards from thirty percent of the plant’s non-managers in order to call for a union election.  Typically though, unions will wait to file election paperwork until they are confident they have at least majority support at a given facility.

This is not the first time that Faurecia has been involved in a union campaign.  The company has previously recognized the UAW without a vote at its Louisville, KY plant.

Stay tuned to @LRToday for further updates, as we have been following the UAW’s Southern strategy since the VW fiasco last year.


Board ALJ Nixes Union’s Objector Policy

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

Last week ($$), National Labor Relations Board administrative law judge Amita Baman Tracy ruled that a United Food and Commercial Workers local violated the National Labor Relations Act by forcing new employees hired by Ralphs Grocery to voice their objections to becoming full union members at the union office, rather than by letter.

The case at issue arose after a 16 year old boy was hired by Ralphs Grocery in Southern California.  The boy did not want to join the union, so he and his mother sent a certified letter to the UFCW stating that he was declining membership.  The letter further requested that the boy be assessed non-member dues.  But the union refused the boy’s request.  Instead, a union official told the boy that he would have to register his membership objections at the UFCW local’s office.

Judge Tracy struck down the union’s “in person objector” policy, ruling that it imposed a high burden on objecting employees.

“The union presented no evidence to show that its method of in-person affiliation costs less than other potential methods. Like an overly broad rule set forth by an employer, the union here established a narrow rule on how to affiliate rather than providing from the outset various options for new hire employees,” the decision said. “Even though the union claims to not enforce this requirement, reading the plain language of the letter to new hire employees, a reasonable person would infer that if he did not affiliate in person with the union, the union could cause his discharge because he could not pay his dues.”

Stay tuned to @LRToday for any further case updates.

FairPoint Workers Strike To End

Posted in Negotiations, Quick Hits, Unions

Early reports indicate that FairPoint Communications has reached an agreement with the two unions representing the company’s unionized workforce to end a more than four-month labor strike.  The company’s 1,700 workers, represented by the International Brotherhood of Electrical Workers and the Communications Workers of America, will now vote on whether to ratify the newly-formed deal.

Details of the agreement were not available.  Workers will vote through the weekend on whether to ratify the contract.  Assuming the new agreement is ratified, employees will begin returning to work on Wednesday.

Union and company officials lauded the agreement in a short joint statement:

“The new labor agreements will provide employees with wages and benefits that are among the best in northern New England. At the same time, the agreements permit the company to achieve a much more competitive position in the marketplace,” the statement said.

More on this story can be found here:

Duquesne Will Get Hearing On Religious Exemption Argument

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

Last week, the National Labor Relations Board issued an Order remanding to the regional office the issue of whether Duquesne University comes under the protection of the Board’s religious exemption.  If so, the university is not subject to the Board’s jurisdiction.  As a practical matter, this means that Duquesne’s adjunct faculty could not form a labor union.

The United Steelworkers union has sought to organize the university’s 140 adjunct faculty members for the better part of two years.  In 2014, the Board’s regional office had rejected Duquesne’s request for a religious exemption without a hearing.  Duquesne appealed the denial of a hearing to the Board, which then remanded the case for hearing in light of the Board’s decision in Pacific Lutheran University.

That case, decided in December, created a new standard for determining whether a university can qualify for a religious exemption from the Board’s jurisdiction.  In order to qualify for the exemption, the university must demonstrate that its adjunct faculty are considered to be “performing a specific role in creating or maintaining the . . . religious education environment.”


Board RD Dismisses Columbia Grad Students Election Petition

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

In an Order dated February 6, 2015, National Labor Relations Board regional director Karen Fernbach administratively dismissed a petition for election filed by graduate students at Columbia University in New York, NY.  Ms. Fernbach explained that she dismissed the petition because:

“[I]t seeks an election among graduate students who are not ‘employees’ within the meaning Section 2(3) of the National Labor Relations Act.”

Specifically, the graduate students cannot be considered employees pursuant to the Board’s 2004 Brown University decision.  The Board ruled in Brown that graduate students are students, not employees, and thus do not fall under the Act’s jurisdiction.

The graduate students at issue in this case are represented by Graduate Workers of Columbia, which has been receiving assistance from the United Auto Workers.  The UAW’s rationale for backing the grad students became clear when Ms. Fernbach issued an Order to show cause as to why the petition should not be dismissed.  In response, the UAW argued that the Board should overturn Brown University.  Ms. Fernbach rejected the UAW’s argument because “reconsideration of current law is a decision for the Board.”

The UAW can now file a request for review with the Board, which will likely occur in the coming weeks.

Labor Sec. Jumps Into Cal. Ports Dispute

Posted in Negotiations, Quick Hits, Unions

Yesterday, U.S. Secretary of Labor Thomas Perez flew to California in order to seek a solution to a protracted labor dispute taking place at Southern California ports.  As we discussed here on the blog last week, port operators locked out its unionized employees over the weekend in response to what the operators believed to be a work slowdown.

The International Longshore and Warehouse Union and the Pacific Maritime Association, the two unions representing the unionized employees, have flatly denied the accusation.

Secretary Perez has already spoken with union leaders, and will now meet with port management officials to see whether his presence can jumpstart stalled contract negotiations.  As the reader may recall, the parties have been in talks over a new collective bargaining agreement since May 2014.  While the parties have reached agreement on several contract points, they are still negotiating pay rates and dispute resolution procedures.

More on this story can be found here: