Labor Relations Today

Labor Relations Today

Board Dismisses Six ULP Charges Against Am. Apparel

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

Earlier this week, the National Labor Relations Board issued a statement announcing that it was dropping six unfair labor practice complaints filed against American Apparel, Inc.  The complaints were purportedly dismissed due to a “lack of cooperation” from the filers.

The attorney for the filing employees, Keith Fink, stated that the charges would be re-filed within the next six months, and that they were dismissed primarily on procedural grounds.  As an example, he cited to a claimant who missed a deadline due to a personal emergency.

American Apparel issued its own statement, blasting the charges as “meritless”:

“Each of these claims is rooted in the same exact agenda. These meritless claims serve as public relations opportunities now, but they will each fail the test when put before a judge,” the representative said.

“American Apparel’s new management is focused on restoring the financial health of the company and does not intend to waste time addressing each of these meritless claims in the court of public opinion. We are confident we will succeed on every one of these in the proper venue,” the representative added.

Keep checking back for updates, as we will be following this case as it makes its way through the Board’s processes.

 

 

Sherwin Lockout Legal

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

Last week, a regional director for the National Labor Relations Board dismissed charges alleging that Sherwin Alumina’s lockout of 450 employees violated the National Labor Relations Act.  The charges, filed by the United Steel Workers last October, complained that the company unlawfully locked out employees working at its Corpus Christi, TX facility in bad faith.

In a short statement, the union vowed to appeal the dismissal:

“The USW is bitterly disappointed with the regional director’s decision, and will appeal the decision to the (National Labor Relations Board) general counsel in Washington D.C.,” Herrera read from a statement. “The United Steel Workers remain committed to reaching a fair agreement with the company to end the current lockout.”

Not surprisingly, a company spokesperson praised the decision, and further noted that Sherwin is “committed to bargaining in good faith with the union.”

Unfortunately for all parties, the lockout shows no signs of being lifted anytime soon.  Union members, picketing since October 2014, just want to return to work, but likely will not be allowed to do so absent a new collective bargaining agreement.

Senators Grill Board Members On Requested Budget Increase

Posted in Legislation, NLRB, Quick Hits, Representation Elections, Senate

Yesterday, the Labor, Health and Human Services, Education and Related Agencies Subcommittee of the U.S. Senate Appropriations Committee held a hearing to discuss the National Labor Relations Board’s 2016 budget proposal.  The proposal, coming in a year where the Board has released several decisions that have angered Republicans, seeks a $3.8mm increase in funds in order to hire more case investigators.  The Board’s total budget request for 2016 comes in at a cool $278mm.

Per NLRB Chairman Mark Gaston Pearce, the need to hire more investigators (and the corresponding budget increase) stem from the Board’s increasingly complex case load.

“More staff would help to process cases faster … [to] deal with the complexities of case issues,” he said. There are thousands of cases with thousands of transcripts, and “applying the law to an ever-changing working environment … requires a lot of intensive analysis and investigation.”

But despite the complexity of cases coming through its doors, the Board Chairman also admitted that case filings have decreased.  And some Senators further posited in pointed questioning that the Board’s uptick in complex cases was of its own making.  As but one example, the Board has sought briefs on whether to change its long-standing “joint employer” standard to an amorphous “totality of the circumstances test,” to say nothing of the Board’s new “ambush election” rules.

Further, in a particularly heated exchange, Senator Lamar Alexander (R-TN) hammered Chairman Pearce about the Board’s call for amicus briefs to explore whether unions should be allowed to charge certain grievance-processing fees to non-members.

“Does that law sound permissible under the National Labor Relations Act?” Alexander asked.

“I believe so, yes,” Pearce responded. Alexander pressed the former union attorney on the call for briefs, which traditionally indicate that the board is attempting to revise existing precedent.

“Why would you ask those questions when the law has been settled for 47 years?” he asked.

“The case that is before us is one I can’t comment specifically on because it is pending,” Pearce said.

“It seems to me … that that’s undermining right-to-work laws,” Alexander said. “I cannot think of anything more damaging to middle income Tennesseans than to undermine the right-to-work law. … I’m very concerned.”

To be sure, the hearing was not all doom and gloom for the beleaguered Board, as Senator Patty Murray (D-Washington) voiced her support for the NLRB’s new “ambush election” rules, arguing that they will “reduce needless delays.”

So it remains to be seen whether a hostile Republican-controlled Senate will approve the Board’s requested budget increase when the proposal reaches the full appropriations committee.  But a gambler would predict that Senator Alexander and his colleagues in the GOP will fight any expansion of Board power tooth and nail, as they have throughout the Obama Board’s tenure.  We will be watching this budget fight closely, so keep checking back here for updates.

 

Board Fights Back Against Quickie Election Challenge

Posted in Federal Court Litigation, NLRA, NLRB, NLRB Rule-Making, Quick Hits, Representation Elections

The National Labor Relations Board filed a notice of supplemental authority with the D.C. Circuit in defense of the Board’s controversial “quickie election” rules, arguing that the court’s recent decision in Nam v. Perez should govern the instant matter:

“The [NAM v. Perez] decision … addresses and rejects arguments substantially identical to those raised by plaintiffs here in their motion for summary judgment,” the NLRB’s supplemental authority filing said. “The well-reasoned decision in NAM v. Perez is a pertinent authority that might assist the court in its resolution of the instant matter.”

[Filing of Supplemental Authority]  The Board’s argument, brought in the lawsuit filed against the “quickie election” rules by the U.S. Chamber of Commerce, seeks to torpedo the Chamber’s challenge on summary judgment.

The Board has argued from the get-go that the rules are consistent with the National Labor Relations Act.  But not surprisingly, the challengers disagree, opining that the rules violate the Administrative Procedure Act and “offend” the U.S. Constitution.  The Chamber has further argued that the rules go beyond the authority granted to the Board by the NLRA.

The instant matter is one of three challenges to the new rules.  We will be watching these cases closely, so keep checking @LRToday for news and analysis.

Webster Adjuncts Say No To Union

Posted in Uncategorized

Earlier this week, the National Labor Relations Board reported that adjunct faculty members working at Webster University in the greater St. Louis area voted against union representation.  Out of a 668 member voting unit, 542 adjunct faculty cast ballots.  268 faculty members voted against union representation, while 212 voted yes.

Interestingly, a separate 5 member voting unit of instructors cast ballots as well.  The results of that election are inconclusive, because 1 member voted for union representation, and four ballots have been challenged.

The University released a statement regarding the results:

While the union has seven days to file objections to the vote by the adjunct faculty, we are hopeful and confident this outcome will stand. With regard to the instructors, the NLRB will now proceed with investigating and determining which challenged ballots, if any, shall be opened and counted.

We will keep you posted on the results of the challenged ballots, so stay tuned.

Board Pushes For Enforcement of Controversial Facebook Decision

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

Late last week, the National Labor Relations Board asked the U.S. Court of Appeals for the D.C. Circuit to uphold the Board’s ruling that Bettie Page Clothing unlawfully terminated three employees for criticizing their manager on Facebook.  [Reply Brief].  In its April 2013 decision, the Board held that the terminated employees were engaged in protected and concerted activity when they complained online about having to work late in an unsafe neighborhood, and thus the employer committed an unfair labor practice by firing them.

“Employee discussion of such workplace [safety] concerns, whether that discussion occurs around a water cooler or over Facebook, is protected,” per the Board’s reply brief. “The company provides no basis for reversing the board’s findings that the employees engaged in protected, concerted activity and did not seek to entrap the company into firing them.”

The Board further argued in its brief that the company’s proffered reasons for terminating the employees were pretextual.  Specifically, Bettie Page originally contended that the employees were fired for insubordination, but then stated the employees were terminated for taking unapproved leave.  And under Board law, once the General Counsel establishes that the employees’ protected activity was a motivating factor in the employees’ discharge, the company must show that it would have fired the employees anyway:

“The company failed to make this showing.”

If the employer’s appeal is denied, the company will have to reinstate the three employees and provide them with back pay.  We will report on the Court’s decision here when it is rendered, so stay tuned.

Kellog Will Appeal Board Ruling Finding Lockout Unlawful

Posted in Uncategorized

A representative for Kellogg Co. announced that it will appeal a ruling from the National Labor Relations Board declaring the company’s lockout of employees at its Memphis, TN facility to be an unfair labor practice.  Issued late last week, the Board’s ruling reversed the administrative law judge’s decision holding that Kellogg’s lockout of its employees was legal.  In addition to being found guilty of an unfair labor practice, the company must also repay employees for any loss of earnings or benefits occurring as a result of the lockout.

In a short statement, the company vowed to appeal:

“Kellogg agrees with the August 2014 decision of the Administrative Law Judge that our proposals and lockout were lawful,” company spokeswoman Kris Charles said in a statement Friday. “As a result, we will be asking the Federal Court of Appeals to reverse yesterday’s decision.”

Stay tuned to @LRToday for updates as this case moves through the court of appeals.

 

Auto Workers Push For Works Council At VW

Posted in NLRB, Quick Hits, Representation Elections, Unions

Now that the United Auto Workers (UAW) have declared that they are supported by a majority of eligible employees at Volkswagen’s Chattanooga, TN plant, the UAW seeks to implement a German-style works council at the factory.

As we reported back in December 2014, the UAW has reached the highest level of recognition pursuant to VW’s labor policy.  Since that time, UAW representatives have been allowed to meet with VW management officials twice a week, and have also been given the freedom to hold meetings with employees and post notices.

During meetings with management officials, the parties apparently crafted a platform for a German-style works council, which is a group made up of both management and bargaining-unit employees that meets to discuss wages, hours, and terms and conditions of employment.

“UAW Local 42 is advancing a German-style works council concept that we jointly developed with Volkswagen Group of America in January 2014,” said Gary Casteel, UAW secretary-treasurer.

Interestingly, Casteel also noted that the UAW is not currently ready to file papers to hold a union election, nor is the union asking the National Labor Relations Board to accept authorization cards from UAW supporters.  This course of action seems inconsistent with the UAW’s make-or-break “Southern Strategy”, the goal of which is to organize as many deep-South facilities as possible.

And despite the UAW’s push for a works-council, VW stated that it would continue to work with the American Council of Employees (ACE), a rival union that is also seeking to organize VW’s employees.  ACE has previously referred to VW’s labor policy as “unfair” and has warned the company not to dole out improper benefits to the UAW.

So now the ball is in VW’s court.  The UAW’s strategy seems to be to wait for VW to begin to form a “works-council,” most likely so that the union does not have to risk losing another election in embarrassing fashion.  But as Tennessee politicos are staunchly anti-union, the union faces an uphill battle no matter what happens next.

Board Issues Complaint Against NJ Nursing Home Chain

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

Last week, the National Labor Relations Board issued a complaint against Alaris Health, a New Jersey-based nursing home chain.  The complaint, which accuses Alaris of a litany of unfair labor practices, stems from actions the company allegedly took against its employees during a labor strike.

Per the complaint, Alaris’ employees went on strike in September 2014 in protest against alleged unfair labor practices.  During the strike, Alaris allegedly interrogated employees about their motives for striking, unlawfully surveilled employees, threatened employees with termination, and eventually locked out its employees “in retaliation for striking.”

SEIU 1199, which represents the aggrieved nursing home employees, issued a short statement addressing the Board’s charges:

“As per the NLRB complaint, Alaris Health used threats and intimidation to prevent workers from engaging in a legally-protected unfair labor practice strike, and is further evidence of this company’s blatant disregard of the law,” Milly Silva, executive vice president of 1199SEIU, said in a press release.

Not surprisingly, the nursing home denied the allegations in the complaint.  A Board administrative law judge will hear the case next month.  Stay tuned.

 

Senate Tables Quickie Election Veto

Posted in NLRB, NLRB Rule-Making, Quick Hits, Representation Elections, Senate, White House

Yesterday, the United States Senate voted 96-3 to table President Obama’s veto of a Republican attempt to scupper the now-infamous “quickie-election” regulations.  The move to table the override vote effectively amounts to Republicans admitting defeat on the issue.

As we wrote back in March, President Obama vetoed a Congressional measure of disapproval, which would have blocked the implementation of the National Labor Relations Board’s quickie-election regulations.  The regulations have now been live since April 14, and in that time, more than 140 election petitions have been filed.

Senator Lamar Alexander (R-TN) blasted Senate Democrats after yesterday’s vote was completed:

“I voted with Senate Majority Leader Mitch McConnell to table the motion,” he said in a statement. “Otherwise Democrats would be able to further obstruct our ability to deal with important issues including Iran, trade agreements and fixing No Child Left Behind.”
Democrats, however, spoke out in favor of the veto:
 “Instead of attacking workers who just want a voice in the workplace, I hope my colleagues will support President Obama’s veto,” Sen. Patty Murray said Monday. She added that the NLRB rule will “make modest, but important, changes to modernize and streamline” union elections.
Because the Senate has chosen to table the veto vote, the only plausible way the quickie-election regulations could be nixed is through court intervention.  We are tracking several court cases here that seek to invalidate the rules.  Stay tuned for updates. More on this story can be found here: