Labor Relations Today

Labor Relations Today

Fast-Food Strike Follows From Joint-Employer Rumblings

Posted in NLRA, NLRB, Special Interests, Unions

The Fight for Fifteen is back. Union organizers running the campaign designed to secure $15 per hour wages for fast-food workers announced on Labor Day that fast-food employees will walk off the job this Thursday in approximately 150 cities across the country. The organizers expect that major fast-food hotspots Burger King, McDonalds, and Wendy’s will be hit hard by labor shortages.

Thursday’s planned strike, organized and underwritten primarily by the Service Employees International Union (SEIU), comes on the heels of a July meeting held in Chicago where over 1,000 fast-food workers met to discuss their working conditions. During the meeting, workers agreed to ramp up their efforts to win higher wages.  It is likely that some protesters will resort to civil disobedience.

The New York Times is reporting that sit-ins are planned in more than a dozen cities. A Burger King employee was more blunt, stating that he would be willing to go to jail for the cause.

“On Thursday, we are prepared to take arrests to show our commitment to the growing fight for $15,” said Terrence Wise, a Burger King employee in Kansas City, Mo., and a member of the fast-food workers’ national organizing committee.

For his part, the President seems to have thrown his support behind the Fight for Fifteen. Speaking at an event in Milwaukee, WI yesterday, the President mentioned the Fight for Fifteen campaign, noting that “America deserves a raise.”

The Fight for Fifteen’s escalation in tactics follows the National Labor Relations Board’s decision in late July to authorize a complaint against McDonald’s franchises and its franchisor, McDonald’s USA, LLC. As we reported earlier this summer, the Board’s General Counsel’s decision to issue a complaint against McDonald’s USA, LLC as a joint-employer respondent is at odds with decades of legal precedent.

Despite the radical nature of the charges, labor watchers were not surprised by the GC’s move. Earlier this year, the Board solicited amicus briefs in a case styled Browning-Ferris Industries concerning whether the NLRB should change its current “joint-employer” standard (which is now more than 30 years old). In that case, the GC’s brief argued that the Board should discard the existing standard, which asks whether two or more employers “share or co-determine matters governing essential terms and conditions of employment,” for a more amorphous and undefined standard, which would purportedly consider the “totality of the circumstances.” (McKenna Long & Aldridge also filed an amicus brief in that case on behalf of the Retail Litigation Center).

With the state of the law regarding joint-employer status hanging in the balance, both management side and employee side factions will be watching the Board’s path forward carefully. A decision blessing the General Counsel’s legal analysis that McDonald’s USA, LLC is a joint-employer with its franchises would likely give the Fight for Fifteen (and its SEIU backers) a huge leg up in the current wage row.

More troubling for employers outside of the fast-food context, however, is the thought that the Board will abandon over 30 years of precedent and change its joint-employer standard. The current standard gives employers a high degree of certainty when establishing business relations. But the GC’s proposed standard would throw that sense of stability out the window by asking whether two or more entities should be deemed joint-employers based on the “totality of the circumstances.”

In sum, labor watchers can expect some major decisions from the Board in the coming weeks and months. Stay tuned to @LRToday for updates.

FairPoint Communications Declares Impasse In Bargaining

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

FairPoint Communications has announced that it has declared impasse in its negotiations with the International Brotherhood of Electrical Workers (IBEW) after contract negotiations between the parties failed to produce an agreement.  Accordingly, FairPoint will now begin unilaterally implementing the terms of its most recent contract offer to the union. 

FairPoint will begin moving its current employees from a defined pension plan into a new 401K plan, which is already offered to management officials at the company.  The company is also planning to eliminate retiree medical benefits and change its employees’ health benefits plan. 

For its part, the union is angry.  Union members have authorized a strike action, although it remains to be seen whether employees will walk off the job.

U of Illinois Nurses Authorize Strike Action

Posted in Negotiations, Quick Hits, Unions

Late Tuesday night, over 1,000 registered nurses working for the University of Illinois overwhelmingly voted to authorize a labor strike.  While the nurses voted 93 percent in favor of the authorization, a second vote is still necessary to officially walk off the job.  A spokesperson for the Illinois Nurses Association (INA) stated that the second vote has not been scheduled as of now.

The nurses’ most recent collective bargaining agreement technically expired earlier this summer, although its terms have been extended until the end of September.  Negotiations are ongoing.

INA representatives have opined that the hospital is seeking steep concessions from its constituents.  In its defense, the hospital has blamed the need for belt-tightening on “a substantial decline in revenue.”

We will keep you posted as talks continue.  

 

Market Basket Hit With ULP Charges

Posted in NLRA, NLRB, Quick Hits

Last week, a Market Basket employee filed unfair labor practice charges against the company with the National Labor Relations Board, alleging that Market Basket violated its employees’ rights to “strike and picket.”  The complaint further alleges that employees have been threatened with discipline or discharge for protesting against the company’s recent decision to oust its CEO.

Market Basket’s problems began earlier this summer, when CEO Arthur T. Demoulas was discharged by the company’s Board of Directors.  The protests have drawn national attention, with both the Attorneys General of Massachusetts and New Hampshire warning Market Basket officials not to violate labor laws.

More on this story can be found here:

Employers Face High Hurdle To Show Employee Communications Concerning Labor Disputes Unprotected

Posted in NLRA, NLRB, Unfair Labor Practices, Unions

Last week, the National Labor Relations Board upheld an Administrative Law Judge’s decision that a Jimmy John’s franchisor violated the National Labor Relations Act for disciplining and discharging several employees who were engaged in protected and concerted activity. In MikLin Enterprises, Inc., 361 NLRB No. 27 (Aug. 21, 2014), the Board determined that Respondent MikLin Enterprises, Inc. unlawfully terminated six employees who posted posters implying that sick workers were making customers’ sandwiches, reasoning that the posters were sufficiently connected to a labor dispute and not so malicious or disparaging as to lose the protections of the Act.

The case arose from MikLin’s policy not to provide paid sick leave to its employees. Instead, the employees were required to find replacements for their shift if they were too sick to come in. Failure to do so could result in discipline. In protest against MikLin’s sick leave policy, the Industrial Workers of the World union (IWW) placed the below poster mocking the policy on bulletin boards inside MikLin’s stores in customer areas.

  

MikLin’s managers removed the posters whenever they found them. Not long after the posters began appearing in MikLin’s stores and in public places nearby, MikLin terminated six employees and issued written warnings to three others for hanging the posters.

The Board agreed with the ALJ that the discipline and discharges were unlawful despite the Respondent’s contention that the posters were disloyal and thus not protected activity. The decision explained that whether a particular communication is so disloyal as to lose the protections of the Act is governed by the Jefferson Standard test, which focuses on 1) whether the communication is related to a current labor dispute, and 2) whether the communication is so “disloyal, reckless, or maliciously untrue” that it would become unprotected. With regards to whether a particular communication is “disloyal,” the Board will consider whether the communication was made “at a critical time in the initiation of the company’s business,” or whether the communication could be considered to be “reasonably calculated to harm the company’s reputation and reduce its income.”

Ultimately, the Board determined that the posters were both clearly related to a labor dispute and not reckless or so maliciously untrue as to lose the protections of the Act. Communications will only be found to be “maliciously untrue” where they “are made with knowledge of their falsity or with reckless disregard for their truth or falsity.” The fact that a statement is false or misleading is not enough to cause it to become unprotected. Accordingly, despite the poster’s admonition that “WE CAN’T EVEN CALL IN SICK” was demonstrably untrue, the Board held that it was an accurate portrayal of the policy because employees would have to take the further step of finding their own replacement.

The posters were also determined not to be disloyal to the employer because they were linked to the labor dispute and “not maliciously motivated to harm the employer.” Even though a poster implying that employees were making sandwiches while sick could prejudice the employer, that prejudice alone was not enough because “were harm or potential harm to the employer to be the determining factor in the . . . protection analysis, it is doubtful that the legislative purposes of the Act would ever be realized.”

The Board also affirmed the ALJ’s determination that MikLin violated section 8(a)(1) of the Act when an assistant manager encouraged employees and supervisors to harass a union supporter via Facebook. The harassment, which included posting the supporter’s phone number online, was unlawful because it would reasonably intimidate both the supporter and other employees from supporting the union.

Member Johnson authored a strong dissent, arguing that the posters were disloyal communications and thus were unprotected.

Section 7 of the Act does not confer on employees an unlimited right to disparage the quality of their employer’s products with an intent to cause harm to their employer’s reputation, or reduce its income, or with reckless disregard for such consequences of their actions, even if their efforts can be linked to a legitimate labor dispute.

In effect, Member Johnson argued that the disparaging posters were totally out of proportion with the dispute regarding sick leave because the posters attacked both the reputation of MikLin and the Jimmy Johns franchise. The dissent also explained that the posters should have been unprotected communications because they were both false and maliciously motivated.

This decision should cause employers to sit back and take notice. The Board has signaled here that employers will face a very high hurdle when arguing that employee communications touching on labor disputes are unprotected activities. Accordingly, employers should tread carefully and consult counsel before issuing discipline in response to employee communications.

Prime Smacks SEIU With RICO Complaint

Posted in Federal Court Litigation, Quick Hits, Unions

Yesterday, Prime Healthcare Services, Inc. (Prime) filed a Complaint in the U.S. District Court for the Northern District of California, alleging that the Service Employees International Union (SEIU) and others conspired to force Prime to allow its employees to form a labor union.  The Complaint alleges in pertinent part that the SEIU has violated the Racketeering Influenced and Corrupt Organizations Act (RICO) by engaging in “textbook extortion.”

“Defendants entered into an agreement and conspired to target and to attack Prime with the ultimate objective of either unionizing Prime, thereby altering its cost structure and business model, or eliminating Prime from the market altogether; either result benefits defendants,” the suit says.

In particular, Prime claims that the SEIU issued damaging and misleading reports showing that its healthcare facilities were engaged in Medicare fraud.  We will keep you posted as this dispute moves forward.

UFCW Contract Talks With Food 4 Less Struggling

Posted in Negotiations, Quick Hits, Unions

Last week, it was reported that talks between the United Food and Commercial Workers (UFCW) and Food 4 Less officials were not bearing fruit, increasing the likelihood that Food 4 Less’ 6,500 union workers would go on strike.  The parties’ most recent collective bargaining agreement expired in early June.  While there are no indications from the union that a strike is imminent, the workers did authorize the union to call a strike if necessary in early July. 

The union is upset that Food 4 Less is looking to cut the number of FTEs at its stores while changing the number of hours guaranteed to workers from a weekly calculus to a monthly calculus.  Allegations have also been made that Food 4 Less officials are urging UFCW members to resign from the union so that their pay and benefits are not affected during a potential labor strike.

We will keep you posted as this dispute moves forward.  Stay tuned.

 

Federal District Court Begrudgingly Enforces “Overly Broad and Unfocused” NLRB Subpoenas

Posted in Federal Court Litigation, Subpoenas, Unfair Labor Practices

On August 22, 2014, United States District Court Judge Arthur J. Schwab granted the National Labor Relations Board’s application to enforce three subpoenas served on UPMC in an unfair labor practice case despite the fact that the subpoenas were overly “broad and unfocused.” The underlying unfair labor practice stemmed from a union organizing drive at UPMC Presbyterian Shadyside (“Presbyterian”) by the SEIU when certain unfair labor practices allegedly began to occur. The NLRB issued a complaint against both Presbyterian and UPMC alleging that they are a single-employer, and both the NLRB and the SEIU subpoenaed extensive information from Presbyterian and UPMC.

In describing the three subpoenas, Judge Schwab of the Western District of Pennsylvania pulled no punches:

The Court has never seen a document request/Subpoena Duces Tecum of such a massive nature. The Court does not see how these requests have any legitimate relationship to the underlying alleged unfair labor practices; instead, the requests seek highly confidential and proprietary information (except for a few public documents); the requests have no proportionality to the underlying charges; and, the requests seek information that a union would not be entitled to receive as part of a normal organization effort. Indeed, the scope and nature of the requests, coupled with the NLRB’s efforts to obtain said documents for, and on behalf of, the SEIU, arguably moves the NLRB from its investigatory function and enforcer of federal labor law, to serving as the litigation arm of the Union, and a co-participant in the ongoing organization effort of the Union.

Therefore, according to Judge Schwab, he would deny the three applications to enforce the subpoenas because the NLRB failed to satisfy the applicable test for enforcement of administrative subpoenas–i.e.:

1) its investigation has a legitimate purpose, 2) the inquiry is relevant to that purpose, 3) the agency does not already possess the information requested, 4) the agency has complied with relevant administrative requirements, and 5) the demand is not “‘unreasonably broad or burdensome.’”

However, the court felt compelled to enforce the subpoenas because of the Third Circuit’s decisions in EEOC v. Kronos Inc., 620 F.3d 287 (3d Cir. 2010) (Kronos I), and EEOC v. Kronos Inc., 694 F.2d 351 (3d Cir. 2012) (Kronos II). In the Kronos decisions, Judge Schwab had similar concerns about the breadth of an EEOC subpoena, but the Third Circuit rejected his concerns. As a result, Judge Schwab held that Kronos I & II compels him to enforce the subpoenas:

the practical effect of case law as to enforcement of subpoenas of federal government agencies is that this Court is constrained to essentially “rubber stamp” the enforcement of the Subpoenas at hand.

If the practical effect of this legal predicament is to be altered, it is not the District Court’s role to do so, but the role of the appellate court. The Court is at a loss of how to adequately address the above issues of whether the matter under investigation serves legitimate purposes, whether the inquiry is relevant to that purpose, and not unduly broad or burdensome, while still conforming to the extremely narrow and limited nature of the proceedings at hand.

This ruling is certainly troubling for anyone on the receiving end of an administrative subpoena, as it effectively states that agencies have no practical limitation on their subpoena power. However, Judge Schwab did stay implementation of his order to allow an appeal. Please continue to follow us on the blog, Twitter (@LRToday), and Flipboard for further developments in this matter.

Regional Director Orders Election at NYC Bike Share, Unit To Include Seasonal Employees And Purported Supervisors

Posted in NLRA, NLRB Decisions, Representation Elections

In a Decision and Direction of Election dated August 20, 2014, the Regional Director for Region 2 of the National Labor Relations Board in Manhattan directed an election to determine whether NYC Bike Share LLC employees will be represented by the Transportation Workers Union.  The employer operates Citi Bike in New York City, the nation’s largest bike sharing program.  The union petitioned for a unit all full-time and all regular part-time employees, including seasonal employees, at three facilities in Manhattan and Brooklyn, New York.  The employer protested the inclusion of several supervisory positions and seasonal employees, the latter of which comprises approximately 40 percent of the petitioned-for unit. 

The Regional Director disagreed.  He found 15 of the 17 purported “supervisors” to be employees eligible to vote under the Act because they failed to actually exercise real authority over the employees.  Moreover, he found that the seasonal employees were properly included in the bargaining unit because they had a “reasonable expectation of reemployment” with the employer in the future.

To assess whether challenged individuals are exempt supervisors, the Board considers whether they use independent judgment in the exercise of authority as set forth in Section 2(11) of the Act:

any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

In the Citi Bike case, the Regional Director expressly recognized the legislative intent that only supervisory personnel vested with “genuine management prerogatives” should be considered supervisors and not “straw bosses, leadmen, set-up men and other minor supervisory employees.”  In reviewing the facts at issue, he specifically noted that there was little evidence presented in the record to support the employer’s assertions that these individuals had the authority to hire, discipline, evaluate, assign and direct employees.  There was little, if any, documentary evidence (e.g., written disciplinary notices, evaluation forms, performance reviews, etc.) offered, and the verbal testimony was tentative.  Some of the purported supervisors apparently admitted never actually exercising the authority or even knowing they had it.  Ultimately, although the employer’s job descriptions showed an obvious intent to differentiate the purported supervisors and afford them authority over many employee functions, citing Golden Crest Healthcare, 348 NLRB 727, 731 (2006), the Regional Director saw this as “mere paper authority” insufficient to establish supervisory status.

Regarding inclusion of the seasonal employees in the unit, the Regional Director summarily found that they shared the requisite “community of interest” with the regular part-time and full-time employees.  He noted that seasonal and permanent employees worked alongside each other, earned the same wages, had the same shifts, reported to the same supervisors, received the same training, were covered by the same employee handbook, had the same probationary period, and had access to the same facilities.  Accordingly, per L&B Cooling, 267 NLRB 1 (1983), he turned to consider whether these seasonal employees had a reasonable expectation of future re-employment.  The record indicated that the past two seasonal periods, the employer hired and then laid-off approximately 100 workers each time; and, the employer testified it anticipated a need to hire seasonal employees for the same period next year.  Finally, relying on a small sample size, the Regional Director concluded that the 30% rate at which the employer rehired specific individuals as seasonal employees, further buttressed a “reasonable expectation of reemployment” in the future.  Accordingly, he found the seasonal employees properly included within the bargaining unit.

The time, date and place for the election will be set by the Regional Office in the near future. Subject to possible review by the Board, this Decision and Direction of Election still provides a helpful reminder to employers who seek to establish exempt status of supervisory personnel under the National Labor Relations Act.  It is not enough to intend supervisors to possess such authority. Prudent employers will ensure that intended supervisors understand, actually exercise and effectively document the extent of their authority over their subordinates’ terms and conditions of employment.

NCAA Asks 9th Circuit To Review O’Bannon Case

Posted in Federal Court Litigation, Negotiations, Quick Hits, Remedies

In an unsurprising move, the National Collegiate Athletic Association (the NCAA) asked the Ninth Circuit Court of Appeals on Wednesday to review Judge Wilken’s decision in the O’Bannon case.  The reader may recall that on August 8, U.S. District Court Judge Claudia Wilken determined that the NCAA was violating antitrust laws by barring college athletes from receiving compensation based on their likenesses.  Judge Wilken subsequently issued an injunction against the NCAA’s no-compensation rule, which after some post-ruling wrangling is set to take effect on August 1, 2015.

The NCAA disagrees that it has violated federal antitrust laws:

“In its decision, the court acknowledged that changes to the rules that govern college athletics would be better achieved outside the courtroom, and the NCAA continues to believe that the association and its members are best positioned to evolve its rules and processes to better serve student-athletes,” [NCAA Chief Legal Officer Donald] Remy said.

More on this story can be found here: