Labor Relations Today

Labor Relations Today

Board ALJ Nixes Burger King Access Policy

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

National Labor Relations Board Administrative Law Judge Arthur Amchan determined this week that a Detroit-area Burger King franchisee violated the National Labor Relations Act by barring off-duty employees from its premises.  The franchisee also violated the Act by prohibiting union solicitations on its property.

The Burger King franchisee, known as EYM King of Michigan LLC, runs 22 separate Burger Kings in and around Detroit.  EYM’s employee handbook rules were struck down by Judge Amchan because they prohibited employees from being on company premises unless they were either 1) eating or 2) working.  

EYM contended that many of its restaurants operate in ”high-crime” areas, so the rules were designed to ensure security.  Judge Amchan summarily dismissed EYM’s explanation.

“To give credence to such an explanation would effectively deprive millions of the lowest-paid workers in the United States of the ability to assert their Section 7 rights. As I pointed out numerous times at trial, there is no material difference between security concerns in Detroit and those in every inner city in this country,” the decision said.

The decision also determined the franchisee violated the Act by issuing unlawful warnings and suspensions to employees, as well as by threatening to discharge an employee for discussing strike actions on the job.

Judge Amchan’s ruling comes at a critical time for the “Fight for Fifteen” campaign, which is seeking to institute a living wage for fast-food employees.  The campaign, backed by the Service Employees International Union, has been gaining steam and notoriety since its beginnings more than a year ago.  Workers will likely be emboldened by the decision, so fast food franchises should probably expect more unfair labor practice charges (and organizing activity) in the coming weeks and months.

The major take-away from this decision is that fast-food franchises should carefully review their employee handbooks, rules, and policies to ensure they comply with the National Labor Relations Act.  With the Board’s General Counsel telegraphing his intention to go after fast-food chains, a small violation of the Act could bring big consequences.

NLRB Postpones Creation Of Employee Right To Use Employer E-Mail For Union Activity

Posted in Bush Board Reversal, NLRA, NLRB Decisions, NLRB Rule-Making, Representation Elections

On April 30, 2014, the National Labor Relations Board invited submission of amicus briefs in the case of Purple Communications, Inc. (Cases 21-CA-095151; 21-RC-091531; and 21-RC-091584), as it considered whether to overrule precedent to create an employee right to use an employer’s electronic mail systems for union activity. The administrative law judge, relying on Register Guard, 351 NLRB 1110 (2007), dismissed the allegation that the employer violated Section 8(a)(1) of the National Labor Relations Act by prohibiting use of its electronic equipment and email systems for activity unrelated to the employer’s business purposes. The General Counsel and union excepted.

Last week, in Purple Communications, Inc., 361 NLRB No. 43 (Sept. 24, 2014), following thorough litigation by the parties, receipt of some twenty amicus and reply briefs, and at least one congressional hearing, the Board… punted:

consistent with our notice and invitation to file briefs issued on April 30, 2014, we sever and hold for further consideration the question whether Purple’s electronic communications policy was unlawful.

Essentially, because the Board otherwise found the employer to have committed unfair labor practices and objectionable conduct sufficient to order a re-run election, it chose not to reach the more controversial issue — at this time. From footnote 3 of the decision:

The judge found the electronic communications policy lawful based on Register Guard, 351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). The General Counsel argues that Register Guard should be overruled, and our April 30, 2014 notice and invitation to file briefs sought input from the parties and amici on that question. Ac- cordingly, today’s decision does not address Register Guard or Purple’s electronic communication policy on the merits.

Given the strenuous advocacy of the General Counsel, AFL-CIO, and other interested parties, this is surely not the final word on this issue. The Board could easily have simply upheld the ALJ’s application of existing precedent in this case, instead of “sever[ing] and hold[ing]” on the question. Rather it seems eager to create this new substantive right for employees given the right circumstances. A case with a cleaner fact pattern, reaching the Board after midterm elections, may well provide that opportunity.

Bravo Media Hit With ULP Charges

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

Yesterday, the International Alliance of Theatrical Stage Employees filed unfair labor practice charges against Bravo Media with the National Labor Relations Board.  In pertinent part, the charge alleges that Bravo threatened to fire the editorial crew of the hit television show “Shahs of Sunset” because crew members have been on strike since September 10. 

The Motion Picture Editors Guild has weighed in on the labor dispute, stating that contract negotiations between the editorial crew and Bravo had just gotten off the ground when Bravo announced that it was axing the editors.  

Bravo is not commenting on the current labor dispute.  More on this story can be found here:

RD Seeks Contempt Finding Against ILWU

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

Last week, National Labor Relations Board regional director Ronald Hooks filed a motion in federal court asking the judge to find the International Longshore and Warehouse Union in contempt for continuing an unlawful work slowdown at the Port of Portland.  The motion contends that the union has repeatedly ignored a 2012 court order directing the ILWU to end the work slowdowns at Terminal 6.  The motion also argues that the judge should fine the ILWU $25,000, as well as continuing fines until the slowdown stops.

The ILWU has been at odds with ICTSI Oregon, the terminal operator for the Port of Portland, since 2010.  The major dispute involves whether members of the electrical workers union or the longshoremen will be assigned the task of plugging and unpluggin power cords on “reefers.”  The ILWU was given the work last December, but productivity levels have declined markedly.  ILWU workers have reportedly showed up late for work, operated cranes slowly, and walked off the job.

A hearing with the judge will take place soon.  We will be watching this story closely, so stay tuned.

Ironworkers Plead Guilty To Arson, Other Charges

Posted in Federal Court Litigation, Quick Hits, Unions

This past Tuesday, two members of the Philadelphia Ironworkers Union pled guilty to using unlawful and violent methods in attempting to force businesses to hire union labor.  James Walsh copped to five arson-related charges, including two counts of maliciously damaging property by means of fire.  Walsh also pled guilty to RICO conspiracy charges.  Greg Sullivan pled guilty to extortion under the Hobbs Act, as well as conspiracy to damage property by fire.

Walsh and Sullivan were indicted back in February alongside eight of their cronies.  The ten union members were alleged to have created “goon squads” to assault employees, start fires, and damage property so that contractors would use union labor.

For his actions, Walsh is looking at up to 110 years in prison and over $1million in fines.  Sullivan could be in prison for as long as 40 years and may owe up to $500,000 in fines.  Both men will be sentenced in early 2015.

Two other defendants have already pled guilty to similar charges.

St. Rose Adjuncts Unionize

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

Yesterday, adjunct faculty members employed by the College of Saint Rose in Albany, New York elected to unionize under the banner of the Service Employees International Union (SEIU).  According to a press release, almost three quarters of the more than 200 faculty members voted “Yes,” with the remainder either voting “No” or abstaining entirely. 

For its part, the school is taking the vote in stride.  Shortly after the results were announced, University President Carolyn Stefanco released an open letter to the faculty and the SEIU:

“With the other College leaders, I will work collaboratively with the SEIU to address the issues that have been raised by the adjunct faculty, all while keeping in mind our mutual obligation to serve the best interests of the students and the College as a whole.”  

Major bargaining table priorities for the newly-formed union include pay raises, better benefits, and greater job security.  We will keep you posted as the union and university officials begin hammering out a collective bargaining agreement.

SEIU Looking To Unionize U Of MN Faculty

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

While much of the labor world has been keeping its eyes on the Fight for Fifteen campaign, the Service Employees International Union (SEIU) and Adjunct Action have been working hard to unionize faculty members and employees at U.S. colleges and universities.  Just last week, the SEIU authored a blast email to non-tenured faculty members at the University of Minnesota.  The email urged the faculty members to consider joining the SEIU’s Local 284 so that SEIU officials can represent those faculty in collective bargaining proceedings.

The email opined that tenure-track faculty positions are rapidly declining.  The loss of highly sought-after tenure-track positions has coincided with a loss of faculty rights, per the SEIU’s email.  The only solution?  Unionizing.

“At many schools, we’re facing less faculty inclusion in governance structures, erosion of academic freedom and fewer protections on our intellectual property,” the email read.

The SEIU and Adjunct Action have experienced mixed results in Minnesota.  About six months ago, both groups pushed hard to unionize faculty members across the Twin Cities.  The union’s only successful campaign finished in June, when adjunct professors at Hamline University voted to unionize.

CNN Appeals Board Reinstatement Order

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

Earlier this week, the National Labor Relations Board ruled that CNN must reinstate over 100 unionized workers who were laid off in a restructuring more than 10 years ago.  And CNN is also required to pay those workers for lost pay and benefits stemming from their unlawful termination.

The dispute in question arose in 2003, when CNN replaced a unionized subcontractor with in-house non-union employees.  The unionized employees, who worked for Team Video Services, filed unfair labor practice charges.  The Board found for the employees (a decade later), ruling that CNN had an obligation to bargain with the union regarding its decision to terminate the subcontract.  CNN also acted to avoid possible successorship bargaining obligations.

In a statement, the president of the union trumpeted the Board’s ruling.

“These workers have waited far too long for this measure of justice to finally be delivered and have suffered far too much as the result of these unlawful activities. CNN should finally do the right thing now and immediately comply with the orders of the National Labor Relations Board issued today,” [Jim] Joyce said.  

CNN recently announced that it would be laying off workers across the country in order to streamline its operations, and this Board ruling really throws a wrench into its plans.  So, CNN is now seeking review of the Board’s Order with the D.C. Circuit.  The petition for review does not lay out CNN’s grounds for appeal of the Board’s ruling.  A spokeswoman would only say that CNN “disagrees with the NLRB decision.” 

It is unclear how the Board’s ruling will affect CNN’s plans to reorganize going forward.  But the appeal at least gives CNN some breathing room.  The Board’s Order provided that CNN would have to send offers of reinstatement within 14 days of being issued, so for now CNN will avoid the proverbial fire drill.  With the original trial in front of the ALJ lasting 72 days, the appeals process could be lengthy.  We will make sure to keep you posted with any updates.

Senate HELP Committee Approves Block’s Board Nomination

Posted in NLRA, NLRB, Presidential Appointments, Quick Hits, Senate

Yesterday, the Senate Health Education Labor and Pensions Committee (HELP) approved the nomination of Sharon Block to the National Labor Relations Board.  Ms. Block is a former Board member whose recess appointment caused a great deal of controversy and was eventually found to be unconstitutional by the Supreme Court.  The HELP Committee split primarily on party lines, with 13 members approving her nomination and 9 members voting against it. 

While Republicans complained that Ms. Block had showed a “lack of respect” for the Constitution by continuing to serve in her post until the Supreme Court weighed in, Democrats took a more favorable view of her nomination.

“I continue to believe that Ms. Block is an exceptionally talented and dedicated public servant and that we’d be hard- pressed to find a more qualified nominee to serve on the National Labor Relations Board,” HELP Committee Chairman Tom Harkin, D-Iowa, said at the beginning of Wednesday’s executive session.

Senator Lamar Alexander (R-TN), who just yesterday introduced a bill designed to reign in the Board’s powers, offered a less flattering portrayal of Ms. Block:

“Ms. Block showed a troubling lack of respect for the Constitution, the separation of powers and the Senate’s constitutional role of advice and consent by continuing to serve on the board and participate in hundreds of decisions after the D.C. Circuit and then the Fourth Circuit found her appointment unconstitutional,” Alexander said. “In those decisions where she did participate, she aligned herself with a disturbing trend of the board becoming more of an advocate than an umpire.”

Despite clear Republican opposition, labor watchers expect the full Senate to confirm Ms. Block’s nomination.  With last year’s exercise of the “nuclear option” allowing the Senate to make up or down votes on presidential appointments, it is highly unlikely that any Senators could invoke procedural measures to slow the vote down.  Stay tuned to @LRToday, where we will be following this issue to its conclusion.

GOP Seeks To Reform NLRB

Posted in NLRB, Quick Hits, Senate, White House

Yesterday, Senator Lamar Alexander (R-TN) introduced a bill to curb what the Senator believes to be the Board’s “partisan” activities.  Co-sponsored by Senate Minority Leader Mitch McConnell (R-KY), the bill would add a sixth member to the Board so that the President’s party would never have a Board majority.  Currently styled NLRB Reform Act, the bill would also make sure that the Board delivers its decisions in a more timely fashion.

“The board is too partisan, swinging from one side to the other with each new administration — taking employers and employees on a wild ride,” Alexander said in a statement accompanying his speech on the Senate floor. “It’s time for the board to restore stability to workplaces in Tennessee and throughout the country — with nonpartisan decisions made more quickly, assisted by a neutral general counsel.”

The bill would also require that four members agree before a decision was issued.  More importantly for businesses, employers have the ability to challenge complaints issued by the Board’s General Counsel in federal court and would be able to seek discovery concerning the complaint. 

Labor watchers are likely aware that the bill has little chance of passing the Democratic-controlled Senate and White House.  However, we will be watching this debate closely, so stay tuned.

More on this story can be found here: