Posts Tagged ‘NLRB’
Tuesday, October 1st, 2013
In case you haven’t heard, as of 12:01 a.m. this morning, the federal government is closed. Your business will feel this shutdown in many ways, including in your interactions with the federal agencies that enforce the various labor and employment laws. Each has posted on its website a contingency plan for operations during the shutdown.
For example, the Equal Employment Opportunity Commission:
- Will accept and docket new charges, and examine if immediate injunctive relief is necessary.
- Will not conduct any investigations.
- Will not mediate any charges.
- Will not have staff available to answer questions or respond to correspondence.
- Will not litigate, unless a court denies a request for extension of time.
- Will not process any FOIA requests.
The Department of Labor and the National Labor Relations Board have each posted their own detailed shutdown plans. The bottom line, however, is that except for services that are absolutely essential, federal agencies will be closed until Congress works out its financial issues.
Federal courts, meanwhile, will remain open for business as usual for at least 10 business days, after which the Judiciary will reassess the situation.
Other federal services impacting employers that will be temporarily shuttered include e-Verify and the IRS.
While it difficult to predict how long this shutdown will last.The last shutdown of the federal government, spanning the end of 1995 to the beginning of 1996, lasted 28 days.
For now, if you have active matters with any federal agencies, expect for them to be on hold. Please remember is that while the EEOC and other agencies might be temporarily out of business, the laws that they enforce are not.
This article was originally printed on Ohio Employer’s Law Blog on October 1, 2013. Reprinted with permission.
About the Author: Jonathan Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz.
Wednesday, September 25th, 2013
In a closely watched case, the Fourth Circuit Court of Appeals held yesterday that a “Like” on Facebook is a form of speech that is protected under the First Amendment.
In doing so, it kept alive a lawsuit brought by an employee who claims he was fired for supporting an political candidate who was running against his boss. The WSJ Law Blog has some additional details and you can download the decision here.
The Court said that a “like” is the internet equivalent of a candidate yard sign:
In sum, liking a political candidate’s campaign pagecommunicates the user’s approval of the candidate and supportsthe campaign by associating the user with it. In this way, itis the Internet equivalent of displaying a political sign inone’s front yard, which the Supreme Court has held issubstantive speech
While the case arises in Virginia, it could have some important implications to employers in Connecticut, as I commented in a Law360 article (registration required) late yesterday:
The appeals court’s conclusion that former sheriff’s deputy Daniel Carter’s “like” of a candidate challenging the incumbent for a sheriff post in Virginia was protected by the First Amendment came as no great surprise to attorneys following the case and showed that courts will treat social media communications the same as more conventional modes of self-expression, lawyers told Law360 on Wednesday.
“The court’s decision is confirming what many of us have long suspected, which is that speech on Facebook may be protected under the First Amendment,” said Shipman & Goodwin LLP partner Daniel Schwartz.
The ruling will likely have an impact in some states, including Connecticut, that protect private employees from being disciplined for exercising First Amendment rights, Schwartz said. But the decision may also shed light on how the NLRB will tackle the question of whether an employee clicking the “like” button is protected by the National Labor Relations Act, an issue pending before the labor board in a case called Triple Play Sports Bar.
Of course, the decision leaves a lot of questions unanswered. Will a “like” always be protected? What if you are “liking” a page just to track it? How do you know when a “Like” is really for liking a page?
And of course, what about other similar actions on other social networks? Is an “endorsement” on LinkedIn really anendorsementof an employee’s views? Is a retweet on Twitter a supportive role? What about a “+1? on Google+? Or a Heart on Instagram?
It can go on and on. All these questions will continue to arise as long as social media continues its growth.
For employers, the decision confirms something I’ve preached about in our seminars: That online speech may be protected under state law or even the First Amendment under some circumstances. Before taking action on such speech, make sure you understand the laws in play and seek local counsel if you have any concerns as well.
And, of course, if you like this post, feel free to “like” it below. Though let’s agree that sometimes a “like” is really just something else entirely.
This article was originally printed on Connecticut Employment Law Blog on September 19, 2013. Reprinted with permission.
About the Author: Daniel Schwartz is an experienced employment law attorney, a Bar leader, an award-winning author, and a noted speaker. He is a partner at Shipman & Goodwin LLP.
Monday, August 5th, 2013
The 14-month-long strike at Palermo’s Pizza in Milwaukee produced a small slice of justice this week for the Mexican immigrant workers who have been fighting for higher wages, safer conditions and a union voice at the frozen-pizza maker.
Last Tuesday, Palermo’s finally agreed to comply with a finding by the National Labor Relations Board and re-hire eight workers with back pay, which will cost the pizza chain tens of thousands of dollars. The eight had been illegally fired for trying to unionize, the NLRB ruled.
Palermo’s has also agreed to post a notice announcing that the firm will no longer violate federal labor law. “This agreement confirms that Palermo’s used threats, intimidation, surveillance, discrimination, and retaliation to deny the freedom to choose a union voice,” says Raul de la Torre, an organizing committee member of the Palermo’s Workers Union. Fully 75 percent of the workers signed cards seeking union recognition prior to the strike, but Palermo’s management responded only with threats and other illegal tactics.
But Palermo’s decision to comply with the NLRB ruling does not reflect a softening of the intransigence that has driven about 125 workers, almost all immigrants from Mexico, out on strike for over a year. Palermo’s has refused for months to even engage in bargaining, said spokesperson Brian Rothgery of the United Steelworkers (USW) union, which has been assisting the Palermo’s strikers since they walked out on June 1, 2012.
Low pay, hazardous working conditions and arbitrary management decisions drove workers to form a union with the help of the immigrants-rights group Voces de la Frontera, which has been vocal and visible force in Wisconsin for the rights of immigrant workers.
Voces, the Palermo’s Workers Union and the USW are preparing to intensify their boycott of Palermo’s frozen pizzas at stores and institutions across the nation, said Rothgery. This escalation of the boycott will mean a focus on getting Palermo’s products removed from universities and on the Costco chain, which accounts for half of Palermo’s sales.
USW District 2 Director Mike Bolton called the settlement for the eight workers a positive development, but expressed exasperation with U.S. labor laws that allow a firm like Palermo’s to thwart the democratic choice of workers to form a union.
“It took much too long to get even this small bit of justice for these workers,” Bolton tells Working In These Times. “And unfortunately, they will be going back to jobs where union busters have created such an atmosphere of fear and intimidation that a democratic election is not possible.”
“The American system of labor laws has failed for most of the Palermo’s workers,” says Rothgery. “But that doesn’t mean we’re going to stop. The boycott is continuing, and we’ll keep fighting until there is justice for all the workers at Palermo’s.”
The workers and their allies will need to puncture the stone wall that has been Palermo’s response to the onslaught of community protests and legal challenges. Palermo’s refused to accept a letter from clergy and other community leaders following their 18-mile pilgrimage from Palermo’s plant to the palatial suburban home of Palermo’s co-owner Giacomo Falluci on June 1, 2013, the one-year anniversary of the strike.
Meanwhile, Palermo’s still faces various federal charges of both tolerating safety hazards and breaking labor-relations laws. Palermo’s is contesting seven “serious” charges filed May 7 by the Occupational Safety and Health Administration that its handling of nearly 30,000 pounds of anhydrous ammonia—used in freezing food—was unsafe and posed a severe safety hazard. Palermo’s faces $38,500 in fines from OSHA.
The penalties reflect the threat posed by a potential accident. The Environmental Protection Agency estimates that a one-minute accidental release of 1,000 pounds of ammonia would spread toxic fumes 1.2 miles in an urban area. A release of the full 29,500 pounds could travelsix miles. The Milwaukee Brewers’ major-league baseball stadium, with a seating capacity of 42,200, is just 1.3 miles west of the Palermo’s plant.
OSHA also requested that the frozen-pizza company turn over uncensored records of worker injuries and other safety problems, after Palermo’s submitted information with key information redacted.
Unfair labor charges
Until finally conceding on the one NLRB complaint, Palermo’s had refused to comply with the NLRB order issued last November. Palermo’s management and its advisors—which include the Chicago-based anti-union Jackson Lewis law firm and the PR firm of prominent local Democrat Evan Zeppos–seemingly want to project a message that the firm is impervious to any form of pressure, and thereby demoralize the workers and their supporters, say supporters of the strikers.
“They want to flaunt their impunity, “ explained Christine Neumann-Ortiz, director of Voces de la Frontera, the influential immigrants-rights group which has reinvigorated Milwaukee’s long tradition of May Day marches—dating back to 1886–by assembling tens of thousands of immigrant workers and supporters. Zeppos has attacked Neumann-Ortiz in harsh terms for supposedly discouraging business development: “I’ve talked to businesses who say, ‘Why should I move to the valley when that’s happening?’ She has hurt the city, she has hurt those workers, and she has hurt herself. She’s become toxic property.”
Palermo’s has managed to replace the striking workers with “scab” replacement workers. Many of these replacement workers were hired through the BG temporary agency, which faces its own set of charges issued by the NLRB—including a contingent of refugees from Myanmar (until recently, a nation wracked by dire poverty ruled by an extraordinarily brutal military dictatorship). A 21 year-old refugee suffered the loss of three fingers in an accident at the plant.
Big subsidies for low-wage jobs
Palermo’s stance has been reinforced by the overtly pro-corporate and anti-unionadministration of Gov. Scott Walker, especially the scandal-wracked Wisconsin Economic Development Agency, which has been willing to overlook the company’s failure to provide family-sustaining wages as promised in exchange for state grants. Wages at Palermo’s have fallen far short of the $12 an hour target set a full decade back in 2003 by the Menominee Valley Partners, a joint public-private initiative, when a plan was laid out for the area, which had been vacated by many large employers. One Palermo’s worker reported that she made just $9.30 an hour after 10 years at the plant.
Total taxpayer subsidies to Palermo’s—from city, state, and federal sources—have totaled $48 million, according to an updated version of an AFL-CIO report called “Too Much Pork in the Pepperoni.”
Allies and foes
Despite Palermo’s failure to meet its obligations to taxpayers, the company has found allies in the Milwaukee area’s top Democratic leaders. County Executive Chris Abele, who both gained office with labor support, openly aligned himself with Palermo’s in an op-ed shortly after the dispute started. For his part, Mayor Tom Barrett issued a deceptively neutral-sounding call for a “fair and timely” union representation election late last November, in a statement describing Palermo’s as “a valued corporate citizen.” But holding elections under the prevailing conditions would mean that the Palermo’s strikers would be shut out of the election while replacement workers would constitute the voters, noted Neumann Ortiz. “They [Palermo’s and Barrett] only want an election where the voters would be hand-picked,” she pointed out.
But has been extensive support for the workers around the state and in the local community—as exhibited by the clergy-led 18-mile walk to protest Palermo’s practices. At UW-Madison, students held a sit-in ON April 29 at the office of Chancellor David Ward and won a halt to the university’s licensing deal with Palermo’s, under which the UW receiveD about $200,000 for promoting Palermo’s pizzas with a “Bucky Badger” logo.
Some Wisconsin Democrats, like state Rep. Jon Richards, have been actively demanding records on Palermo’s failure to provide the quality jobs needed to comply with the terms of its subsidies. Several County Board and City Council members have also been outspoken in their support of the strikers.
Meanwhile, labor activists nationwide are pressuring chains like San Diego-based Costco to stop carrying Palermo’s pizzas until workers’ rights are honored. While Costco has marketed itself as a humane alternative to Wal-Mart’s infamous low-wage and unashamedly brutal disregard of worker suffering, as with victims of factory disasters in Bangladesh for whom Wal-Mart has denied any responsibility, Costco has thus far refused to budge on selling Palermo’s pizzas produced under harsh conditions closer to home.
With Palermo’s concession n the rehiring of the eight workers and acknowledgement of labor-law violations, the Palermo’s strikers and their allies see a small step forward. The boycott campaign gains ammunition at universities with strong policies on labor rights.
But until a breakthrough occurs to cut significantly into Palermo’s sales, Palermo’s seems intent on maintaining a hard line against the strikers. Image-conscious Costco, with 449 warehouse-style stores across the U.S., may prove to be the crucial target if Palermo’s workers are ever to win justice.
This article originally posted on Working In These Times on August 5th, 2013. Reprinted with permission.
About the Author:Roger Bybee is a Milwaukee-based freelance writer and University of Illinois visiting professor in Labor Education. Roger’s work has appeared in numerous national publications, including Zmagazine, Dollars & Sense, The Progressive, Progressive Populist, Huffington Post, The American Prospect, Yes! and Foreign Policy in Focus.
Tuesday, July 16th, 2013
A radical decision by Republican-appointed federal judges threatens to destabilize the National Labor Relations Board (NLRB) if the Board loses a quorum in August. The D.C. Circuit Court of Appeals ruled that two recess appointments made by President Barack Obama in January 2012 were invalid and now NLRB decisions made while those appointees served on the Board are being challenged based on the D.C. Circuit opinion and placed on hold pending resolution of this issue by the U.S. Supreme Court. This puts many workers across the country in dangerous and unfair situations that hurt them and their families. The Senate could go a long way towards fixing the problem by confirming five nominations the president has made to the Board, but Republicans continue to obstruct the process in an effort to disable the NLRB and prevent it from protecting the rights of American workers. Some, like Lindsey Graham (R-SC), have taken the extreme position that the NLRB should be “inoperable” and have vowed to block all nominations to the Board.
Here are ten examples—real stories from workers whose jobs and lives are negatively impacted by Republican obstruction—of why we need a functioning NLRB:
1. Dexter Wray, Alaska: Dexter worked as a maintenance engineer at a Sheraton in Anchorage. His manager pressured him and several of his co-workers to decertify their union and told them to lie to the NLRB. When they told the truth, Dexter and two of his co-workers were fired. The NLRB ruled that the firings and coercion were illegal, but the hotel has refused to rehire them. Dexter didn’t work for six months and incurred a large medical debt when he lost his health insurance.
2. Michelle Baricko, Connecticut: Michelle is a certified nursing assistant at West River Health Care. She and her co-workers were locked out for months during contract negotiations. The hospital’s owner, HealthBridge/CareOne, declared that negotiations were permanently stalled and implemented its own contract, which the employees did not agree to. The NLRB obtained a court injunction for the company to stop its unfair labor practices, but HealthBridge declared bankruptcy and was able to escape its obligations to the employees. The Board and the employees’ union have appealed the decision. Michelle was forced to sell her home and still struggles to provide for her three sons.
3. Kathleen Von Eitzen, Michigan: Kathleen is a baker at Panera Bread who organized 17 of her coworkers to form a union. The company fought back, firing one employee and cutting Kathleen’s pay, giving her a negative evaluation because of her organizing. The NLRB found that Panera violated the workers’ rights and ordered the company to pay back and compensate employees for cutting their hours. Panera appealed and the case is now stalled in federal court. Kathleen’s husband has had two heart attacks and can’t work full time. They can’t afford insurance because of her low pay and their home is now in foreclosure.
4. Susana Salgado Martinez, Nebraska: Susana was fired from Greater Omaha Packing Co., a meat packing plant, after she and fellow employees were accused of planning a strike. She and her co-workers complained that the production line was moving too fast for several new, inexperienced workers to keep up with and that they were not being paid adequately. A judge found that Susana and her co-workers were illegally fired and ordered that they be reinstated with back pay. The case is pending before the NLRB. Over the last year, she has been unable to find steady work and her family had to file for bankruptcy.
5. Juan Lopez, New Mexico: Juan worked as a janitor for Merchant Building Maintenance. He and several of his fellow employees complained about sexual harassment, disrespectful treatment by a supervisor and the failure to receive a promised pay raise. The company temporarily lost the contract that Juan was working on in the Santa Fe Public School District. When the company was rehired by the school district, Merchant refused to rehire the workers who complained. The NLRB found that failure to rehire those employees was illegal and that they should be reinstated and given back pay. The company has refused to comply with the ruling. Juan has been unable to find steady work since then and has had to skip paying some of his bills.
6. Clarence Adams, New York: Clarence is a Marine and Iraqi veteran who was fired by Cablevision for asking to meet with management, under the company’s “open-door” policy, to discuss stalled contract negotiations. Two regional offices of the NLRB issued complaints against the company for illegally firing workers and for failing to bargain in good faith. The company has filed suit in the U.S. Court of Appeals to prevent the complaints from being enforced. Meanwhile, Clarence is struggling to provide for his family.
7. Jack Conway, Ohio: Jack and 15 other workers at aluminum products company KLB Industries were locked out during union negotiations. Five years later, KLB has refused to reinstate the workers or give them back pay as the NLRB and U.S. Court of Appeals have ordered. Conway hasn’t found regular work since the lockout and has exhausted unemployment insurance. He barely survives on the $200 a week that the United Auto Workers (UAW) provides to him and the other locked-out workers.
8. Anonymous, Virginia: An employee at BaySys Technologies posted a comment on Facebook about not receiving paychecks on time. The company fired him or her and threatened to sue the employee for violating a non-disclosure agreement. The NLRB ruled the firing was illegal and ordered the company to reinstate him or her with back pay. An appeals court enforced the order, which couldn’t have happened without a functioning NLRB.
9. Richard Salinas, Washington: After Richard and his fellow employees at Oak Harbor Freight Lines went on strike in 2008, the company stopped paying into the workers’ pension and health care trust funds. The NLRB found this to be an illegal action and ordered the company to reimburse the funds for the missed payment and make up for personal losses the employees incurred when their health coverage lapsed. The Court of Appeals has delayed enforcing the decision because of the uncertainty about the NLRB. Richard said he’s close enough to retirement that the missed payments won’t affect him much, but he’s worried about how the loss will affect his younger co-workers.
10. Dave Preast, West Virginia: Dave was a miner at the Cannelton mine in Smithers, W.Va., when the mine was purchased by a new company. The new owner refused to give him a job because of his union membership. The NLRB has ruled twice that the refusal was illegal, but Dave and 84 other miners have not been rehired or given the back pay they deserve. Dave has a 16-year-old son who has needed several surgeries for a life-threatening heart condition. Luckily, he was able to cover the surgeries through the state’s CHIP program and Medicaid, otherwise the costs could have bankrupted the family. As of now, Dave is doing odd jobs to make ends meet, but without reinstatement he’ll be forced to live on $500 a month when he retires.
There are many more stories of workers whose lives and livelihoods are in crisis because of this NLRB fight.
This blog originally appeared in AFL-CIO NOW on July 11, 2013. Reprinted with permission.
About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist whose writings have appeared on AFL-CIO, Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.
Thursday, June 20th, 2013
The 4th U.S. Circuit Court of Appeals has affirmed an April 2012 decision of the U.S. District Court for the District of South Carolina (Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516, 4/13/12), striking down the National Labor Relations Board’s (NLRB) controversial notice posting rule. The rule would have required most U.S private-sector employers — including most of the 6 million small businesses in the U.S. — to post a written notice of employee rights regarding unionization, including specific language informing individuals of their rights not to unionize, with penalties attached for employers who failed to post the notice under the conditions required by the NLRB. Under the proposed regulation, the Notice would have been required whether or not an unfair labor practice charge had been filed against the employer. The regulation was proposed in 2010 and was published as a final rule in August 2011, set to become effective in November of that year. The effective date was postponed to January 31, 2012, then further postponed until April 30, 2012, and was effectively suspended by the federal court’s April 13, 2012 ruling, which now has been upheld. Chamber of Commerce of the United States v. NLRB, 4th Cir., No. 12-1757, 6/14/13.
Pointing out that the NLRB does not have authority to enforce the Act proactively, the 4th Circuit agreed with the lower court that “the rulemaking function provided for in the NLRA, by its express terms, only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practice [ULP] charges and conducting representation elections upon request.” The Court stressed that “[a]lthough the Board is specifically empowered to ‘prevent’ unfair labor practices, the Board may not act until an unfair labor practice charge is filed alleging a violation of the Act.” In a thorough and well-reasoned opinion, the Court reviewed the NLRA’s plain language, structure, and legislative history, along with the history of subsequent labor legislation, in holding that the Board was not empowered to promulgate the rule. “Had Congress intended to grant the NLRB the power to require the posting of employee rights notices, it could have amended the NLRA to do so.”
The 4th Circuit’s opinion is even more favorable for employers than the recent decision by the D.C. Circuit Court of Appeals,National Association of Manufacturers v. National Labor Relations Board (D.C. Cir. May 7, 2013), which struck down the notice posting rule on the grounds that it violated Section 8(c) “because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus,” when, in fact, Section 8 allows employer to express their views about unions and unionization, as long as the communications contained no threat or promise.
At this time, it looks as if the notice posting requirement is out of commission for the time being, with two federal appellate courts taking the position that the NLRB is without authority to require posting. However, it remains to be seen whether this phoenix will rise out of the ashes of these opinions and, if so, in what form it will return.
This article was originally printed on Employment Law Matters on June 14, 2013. Reprinted with permission.
About the Author: Maria Greco Danaher is a shareholder in Ogletree Deakins. She regularly represents and counsels companies in employment related matters. She specializes in representing management in labor relations and employment litigation, and in training, counseling, and advising human resource departments and corporate management on these topics. Maria has first chaired trials in both federal and state courts since 1986, and regularly instructs attorneys and students in issues related to trial tactics.
Tuesday, June 4th, 2013
This past Friday, the United State Supreme Court granted cert. in the case of Lawson v. FMR LLC. The case concerns whether the Sarbanes-Oxley Act (SOX), which protects employees of publicly traded companies from retaliation for reporting financial improprieties, also protects the employees of private contractors of those companies. In the case, two fund investment advisors blew the whistle on a publicly-traded mutual fund which contracted for their services. The First Circuit found that the fund advisors were not covered by SOX protections.
The Court had asked the U.S. Solicitor General’s views on the case, and the SG recommended that the Court bypass the case in order to allow the issue to percolate among more circuit courts. The case, however, was granted.
Among the issues to be decided: whether protecting the employees of contractors is mandated under the plain meaning of SOX and whether a finding of no coverage for such employees will discourage whistleblowers from bringing financial fraud allegations to the attention of the public. It should also be an interesting case because it is one of the first to examine the whistleblower protections of SOX and will likely provide guidance on how broadly or narrowly SOX should be interpreted to protect whistleblowers in the financial services industry.
This article was originally printed on Workplace Prof Blog on May 22, 2013. Reprinted with permission.
About the Author: Paul Secunda is an associate professor of law at Marquette University Law School. Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He co-authored the treatise Understanding Employment Law and the case book Global Issues in Employee Benefits Law. Professor Secunda is a frequent commentator on labor and employment law issues in the national media. He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country.
Friday, May 31st, 2013
Organizers tell The Nation that four food court outlets in a federal building initially refused to let employees return to work following a Tuesday strike, but relented following protests by supporters.
The four establishments—Subway, Bassett’s Original Turkey, Quick Pita and Kabuki Sushi—are located in the Ronald Reagan federal building, one of several Washington, DC, workplaces where employees with taxpayer-supported jobs went on strike as part of the Good Jobs Nation campaign, whose backers include the Service Employees International Union. As The Nation reported Tuesday, the strikers are demanding that President Obama take executive action to improve labor standards for workers who are employed by private companies to do jobs backed by public spending. According to organizers, the one-day strike involved hundreds of workers, and forced about half of the Reagan Building’s food court outlets to shut down at some point during the day. (The Reagan Building is owned by the federal government; many of its food outlets are franchisees of restaurant or fast food chains.)
Bassett’s employee Suyapa Moreno told The Nation in Spanish that three of her outlet’s four staff went on strike Tuesday, and that when they showed up to start their shift on Wednesday, “The owner told my co-worker she was fired. So I said, ‘If you’re going to fire her, I’m not coming back to work.’” She said her manager told them that “she didn’t want to see us again.” Moreno said she believes her co-worker was targeted because management saw her as the ringleader who convinced Moreno and a third Bassett’s worker to strike.
Moreno said the workers then waited at the food court until other workers, organizers and community supporters gathered to protest the terminations. According to the Good Jobs Nation campaign, about a hundred total supporters converged in the food court to protest ten total terminations by four outlets. Once there was a big enough group, said Moreno, “We went back to talk to the owner, and she accepted us back.” The Good Jobs Nation campaign told The Nation that managers or owners from Subway, Quick Pita and Kabuki Sushi also agreed to reverse the terminations once confronted by crowds of supporters.
The federal Office of Management and Budget did not respond to a request for comment Thursday afternoon regarding the allegations, or to The Nation’s prior inquiries this week regarding the Good Jobs Nation campaign. An employee who answered the phone at the Reagan Building Bassett’s Original Turkey location early Thursday evening said that no manager was on the property to comment. A call to the building’s Kabuki Sushi location went unanswered. The person who answered the phone at the building’s Subway location said he was too busy to comment; the Subway corporation did not immediately respond to an inquiry.
Reached on the Reagan Building Quick Pita location’s phone line, a person who identified himself as a manager there said that no strikers had been denied the chance to return to work, and charged that the campaign was making workers “victims for a bigger political agenda.” He declined to give his name, and said that he was not authorized to speak for the Quick Pita company or the franchisee’s owner.
The attempted terminations alleged by Good Jobs Nation could be violations of federal labor law. As I’ve noted previously, the law generally prohibits “firing” workers for striking, but often allows “permanently replacing” strikers by filling their positions during the strike and refusing to reinstate them. But strikes that the government finds to be motivated in part by prior labor law violations, as Good Jobs Nation says Tuesday’s was, receive greater legal protection; and striking for only one day may also provide a shield against “permanent replacement.”
However, labor advocates and activists have long charged that the National Labor Relations Board’s slow process and weak penalties do little to discourage companies from firing activists. In order to deter retaliation, organizers of recent fast food strikes have arranged for delegations of supporters, sometimes including local politicians and clergy, to accompany the strikers back to work the next day. As I reported for Salon in November, activists say that an indoor occupation and outdoor picket of a Wendy’s store led management to reverse the termination of one of the participants in New York’s first fast food strike. Organizers say the same approach worked yesterday in Washington.
“Before, when workers were treated badly or fired unjustly, nothing would happen,” said Moreno. “And so the bosses felt like they could keep doing it.” Following the strike and yesterday’s showdown, she said, “Now they treat us with a little more respect, because they’re afraid that if they keep doing what they’re doing, more of this will happen.”
This article was originally printed on The Nation on May 23, 2013. Reprinted with permission.
About the Author: Josh Eidelson is a Nation contributor and was a union organizer for five years. He covers labor for as a contributing writer at Salon and In These Times.
Tuesday, May 28th, 2013
On Thursday, 15 Cablevision workers who are also stockholders in the cable company were ejected from the annual shareholders’ meeting in Bethpage, New York. When the workers, members of the Communication Workers of America (CWA), spoke up during the meeting to question Cablevision CEO James Dolan about what they see as union-busting tactics, the company called the police to remove them.
“When the questions got too hard to answer, he asked his corporate security to kick us out,” says CWA District 1 Organizing Coordinator Tim Dubnau. “We told him that we had a right to be here but if a police officer told us to, we would leave. The police detained us for an hour outside pending an investigation, then released us.”
The workers’ main beef with Cablevision is the company’s refusal to come to a first contract deal with 282 Cablevision workers in Brooklyn who voted in January of 2012 to join CWA District 1. The local says that over the past year it has attempted to bargain with Cablevision for a first contract, but says the company has not engaged in good faith. The workers also accuse their employer of several acts of union-busting: In February, Cablevision fired 22 union members who were attempting to meet with management to discuss Cablevisions’ refusal to agree to a contract. (All of the workers have since been rehired). And, according to the union, earlier this winter the company gave a 17 percent raise to all of its 15,000 employees except the 282 District 1 members in Brooklyn.
In a statement to Working In These Times, Cablevision spokesperson Whit Clay disputed CWA’s version of Thursday’s events, saying, “It is a shareholder meeting with a clear set of rules. The CWA attempted to disrupt the meeting; they were asked to refrain and when they did not they were asked to leave. The matter is now in the hands of the authorities.”
Clay continued, “We believe our Brooklyn employees don’t want the CWA, and those employees have legally petitioned to hold a vote on whether or not to continue with CWA representation. The CWA is doing everything it can to block that vote.”
In fact, the CWA has blocked that vote, at least for now. It complained to the National Labor Relations Board about the firings and the stalling tactics, and on April 29, the NLRB issued a ruling agreeing with the CWA that Cablevision had engaged in bad-faith bargaining and imposing a number of sanctions on Cablevision. Among them is a 12-month extension of the one-year window after a union’s formation during which a decertification vote cannot be held.
In response, Cablevision contested the NLRB’s authority, citing a January ruling by a DC court that has left the board in a legal limbo. Representing Cablevision, Eugene Scalia, the son of Supreme Court Associate Justice Antonin Scalia, wrote in a letter to NLRB Acting General Counsel Lafe Solomon:
“We recognize that the Board has expressed the view that, despite the D.C. Circuit’s Noel Canning decision, the Board may continue to take action under the [National Labor Relations] Act. See, e.g., Bloomingdale’s, Inc., 359 NLRB No. 113 (2013). Notwithstanding that erroneous position, there is no reason why Regional Directors and other Board staff should be permitted to continue expending public resources in pursuing litigation that, under the law of the D.C. Circuit—in which CSC and Cablevision are entitled to seek review of any final Board ruling, see 29 U.S.C. § 1600—is ultra vires and will ultimately be adjudged a nullity. Subjecting private litigants to the massive, unjustified burdens of litigating these and many other cases nonetheless—which the Regional Directors had no valid authority to initiate, and in which the Board cannot issue a final order—is manifestly unfair, inefficient, and incompatible with core principles of equity.”
Union activists find it ironic that Cablevision claims that the labor board does not have the authority to stop a decertification election, but still has the authority to hold a decertification election.
“Cablevision doesn’t want the Board to have any jurisdiction [over their] illegal conduct, but they do want the labor board to have jurisdiction to help them kick the union out,” says Dubnau. “It’s an absolute contradiction.”
Labor advocates say that it is not uncommon for employers to challenge the legitimacy of the labor board, except when it helps them to fight unions. “When it comes to 8(a) complaints against the employer, they treat the law as merely suggestive, but when it comes to 8(b) complaints against the union, they treat the law as absolute,” says labor lawyer and Century Foundationfellow Moshe Marvit.
For now, CWA plans to continue organizing workers despite what they claim is Cablevision’s attempt to get workers to give up on the union by refusing to bargain with it. The union claims that the demonstration at Cablevision’s stockholder meeting was yet another battle in what will be a long war to win a union contract for Cablevision employees.
“We let them know at the shareholders meetings that we are never going to give up, we are never going to stop,” says Dubnau.
This article was originally printed on Working In These Times on May 28, 2013. Reprinted with permission.
About the Author: Mike Elk is an In These Times Staff Writer and a regular contributor to the labor blog Working In These Times.
Thursday, May 23rd, 2013
The fight over President Obama’s five nominees to the National Labor Relations Board (NLRB) is headed to the U.S. Senate floor after the Health, Education, Labor and Pension Committee voted today to send the five to the full Senate. Now the question is, will Senate Republicans filibuster?
The nominees—three Democrats and two Republicans—must be confirmed before August, when the term of one of the current NLRB members ends and the board will be without a quorum and unable to function.
In a recent column in The Hill, AFL-CIO President Richard Trumka wrote:
Extremist congressional Republicans and corporate lobbyists…want to weaken its power to protect workers who choose to organize and form unions on the job….South Carolina Republican Sen. Lindsey Graham, a key leader of the charge, said, ‘I will continue to block all nominations to the NLRB….The NLRB as inoperable could be considered progress.’
The five are current board members, Chairman Mark Pearce and members Sharon Block and Richard Griffin—and attorneys Philip Miscimarra and Harry Johnson, who represent management in labor-management relations.
The effort to block the nominations is part of a years-long campaign to cripple the NLRB that includes legislation to de-fund the board, to shut it down, to curtail its work and legal challenges that have stalled justice for many workers.
One of those workers is Illinois pressman Marcus Hedger who was illegally fired in 2010 and who the NLRB ordered reinstated with back pay. But Hedger is caught in the legal limbo generated by a recent court decision in favor of employers and anti-worker groups challenging the authority of the NLRB. He has since lost his home to foreclosure and is working at a job that pays only about one-third of what he previously earned.
This article was originally printed on AFL-CIO on May 22, 2013. Reprinted with permission.
About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. He came to the AFL-CIO in 1989 and have written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.
Friday, May 17th, 2013
Last month a few hundred retail and fast-food workers, from places like Sears, Dunkin’ Donuts, and McDonald’s, walked off their jobs for a rally in downtown Chicago. Carrying signs saying “Fight for 15” (or “Lucha Por 15”) and “We Are Worth More,” these workers make $9 or $10 an hour, at best, and they figure they’re worth at least $15.
A one-shift walk-out and protest by a few hundred out of the thousands of such workers in the Chicago Loop and along Michigan Avenue’s Magnificent Mile cannot have the economic impact of a traditional strike – one that shuts down an entire workplace or industry for an extended period of time and, therefore, can bend an employer’s will. And these workers’ chances of getting $15 an hour any time soon are worse than slim. This “job action,” bolstered by community supporters organized by Action Now and with help from Service Employees International Union organizers, is more in the nature of a public protest than a “real strike.” You could even call it “a public relations stunt,” but you’d be wrong to dismiss it as inconsequential.
“Public relations,” ironically, has a bad image. But think of it as workers witnessing their own plight, calling for others in similar situations to join them and appealing to those of us with decent incomes to support them. Witnessing, with its religious overtones, is not intended as an immediately practical action. It’s first about individuals summoning the courage to put themselves forward to make a public claim that they are one of thousands (millions nationally) who are being treated unjustly. In this case, it means taking the risk that they may be fired or otherwise disciplined for leaving work and going into the streets to proclaim “We are worth more.”
Witnessing is meant to make us think about justice as the witnesses simultaneously inspire and shame us with the courage of their individual actions. I was at one of the first draft-card burnings that protested the Vietnam War in 1965, and I remember saying something like, “I’d do that if I thought it would do any good,” while knowing in my heart of hearts that I didn’t have the guts to take that kind of risk then. But it inspired and shamed me – and thousands and then hundreds of thousands of others — to do many other things to fight against that war as we inspired and bolstered (and exerted peer pressure on) each other.
For the broader public, these initial job actions – in New York and Chicago among retail and fast-food workers; in California and Illinois among workers at Walmart warehouses; and all over the place amongWalmart retail workers – are “public relations” that raise awareness and pluck consciences. But for workers who watched workmates walk off the job to witness for them, there may be some of that inspiration and/or shame that is a particularly powerful call to action. That’s what organizers are counting on, in the hope that the numbers of such workers will grow helter-skelter across the retail industry, eventually initiating a contagion of worker direct action that can put these workers in a position to negotiate for “labor peace,” with or without the blessing of the National Labor Relations Board.
There’s another determined witness who couldn’t be more unlike these striking workers. He’s a retired law professor from the University of Texas, Charles Morris, who is a leading expert on the legislative and early administrative history of the National Labor Relations Act and the Board that enforces it. In a 2005 book,The Blue Eagle at Work, Morris makes the legal case that the Act defined a labor union as any group of two or more workers who act together (“in concert”) to seek redress of grievances from their employer. According to Morris, the “concerted activity protection” articulated in the Act means that employers cannot legally fire workers for forming a non-majority or “members-only” union (as few as two workers acting together), and what’s more, an employer is legally bound to “bargain in good faith” with that union.
Through meticulous legal research, Morris has shown that these worker rights were in the Act from the beginning but have been forgotten by the subsequent customary practice of defining a union as only that group of workers who have formally voted to be represented by a petitioning union. What’s more, other legal scholars have now signed on to Morris’s legal interpretation and are ready to bolster it before an NLRB that is willing to hear their case. There would be such an NLRB, what Morris calls “a friendly Board,”if Republican Senators would allow a vote on President Obama’s nominees for the Board.
A favorable NLRB ruling would be important for a variety of legally technical reasons that workers and organizers could use to their tactical and strategic advantage – none of which includes the expectation that employers will voluntarily obey the law just because it is the law. But equally important is that Morris’s reading of the Act’s history restores the original meaning of a labor union that is based on workers’ decisions to act together “in concert” with one another. That is, a labor union is not just an institution with a bureaucracy and a marble palace in Washington, D.C., though it may be that as well. It is any group of workers in any workplace, no matter how big or small, who decide to and then do act in concert to advance their own interests in their workplace.
In March Chicago Working-Class Studies helped organize a public forum that brought Charles Morris together with workers and organizers from Fight for 15, the Walmart retail and warehouse strikers, and two other groups who are already acting as unions under this definition. Though there were some disagreements between the elderly legal scholar and the mostly young workers and organizers — one emphasizing the importance of politics and administrative case law in the long run, the others focused on the potential of direct action in the here and now – they agreed that if and when the two come together, the possibilities for a worker-led upsurge of union organizing are great.
Nonetheless, through their actions these workers have already changed what a labor union is and is thought to be. It is now, and really always has been — even a century before the National Labor Relations Act was passed in 1935, even when it was an illegal “conspiracy” — simply a group of two or more workers acting in concert with one another. To be really effective there will need, of course, to be many, many more than the hundreds and thousands who have begun this process. But it starts with a few brave witnesses who take a risk and ask others to join them. The peer pressure is now on the rest of us.
This article was originally printed on Working-Class Perspectives on May 6, 2013. Reprinted with Permission.
About the Author: Jack Metzgar is a retired Professor of Humanities from Roosevelt University in Chicago, where he is a core member of the Chicago Center for Working-Class Studies. His research interests include labor politics, working-class voting patterns, working-class culture, and popular and political discourse about class.