Posts Tagged ‘NLRB’
Thursday, January 29th, 2015
Conservatives in Congress this week launched a renewed effort to weaken the ability of workers to get justice in the workplace against anti-labor behavior by businesses.
Senate Majority Leader Mitch McConnell (R-Ky.) and Sen. Lamar Alexander (R-Tenn.) announced a bill Wednesday that would cripple the National Labor Relations Board (NLRB), an agency that is instrumental in solving labor disputes and helping workers who have been treated unfairly by their employers. It’s the same bill that was introduced last year by McConnell and Alexander but was held up in committee when the Senate was controlled by Democrats.
Among its recent actions, the NLRB has filed multiple complaints against McDonald’s and its franchisees for illegally punishing workers who were involved in protesting fast-food labor practices.
The board currently seats five members – three Democrats and two Republicans. The proposed “National Labor Relations Board Reform Act” would increase the number of sitting members to six and require that each party have equal representation. All decisions would require a four-vote agreement, essentially guaranteeing partisan gridlock.
Republican members would have no incentive to compromise with Democrats when it comes to resolving disputes that reach the NLRB. When no agreement is reached, big business wins and workers’ treatment is left to the wills of corporations. Sen. Alexander claims that this bill would turn the NLRB “from a partisan advocate to a neutral umpire.” But what’s an umpire with no ability to make calls, much less the right ones?
The bill furthers Republican goals in advancing business interests at a high cost to workers. Party officials dislike the board because, they claim, it advances union interests and is bad for business. In reality, the NLRB allows workers to file claims of unfair management tactics and holds businesses accountable for the treatment of their employees.
Unions oppose the bill, as should every worker in the country. The President of the Communications Workers of America, Larry Cohen, in reaction to the introduction of this bill in 2014, called it “the worst revisionism on an economic issue I’ve ever heard.” He cited the preamble to the National Labor Relations Act, which – far from being neutral – states that “we must promote collective bargaining.” He called on senators to enforce that law.
Partisan gridlock would worsen a backlog of cases, undermining workers’ ability to seek justice, returning the board to the state of near-paralysis it was left in at the end of the George W. Bush administration. If the GOP can’t compromise with Democrats in the legislature, what’s to say they will on the NLRB – given their persistent antipathy against unions and worker empowerment? Unless workers unite and demand that Congress reject this bill, this will end up being a huge win for business and yet another kick in the gut of hard-working Americans.
This blog originally appeared in ourfuture.org on January 29, 2015. Reprinted with permission.
About the Author: Meghan Byrd is a student at Bucknell University studying political science and Spanish. In 2015 she spent a semester at American University. She is originally from Palo Alto, California in the San Francisco Bay Area and center of Silicon Valley. She is interested in public policy and the intersection between government and technology.
Wednesday, December 17th, 2014
This week, the National Labor Relations Board (NLRB) issued a decision and a rule that could make organizing a union significantly easier for American workers.
First, yesterday the Board recognized that email is one of the primary ways that workers communicate, and that its case law and election rules needed to reflect this reality. The NLRB issued a landmark decision in Purple Communications which opens the door to allowing workers to use employers’ email systems for union purposes—and admitted that it had misunderstood in previous cases how email works. In doing so, it overturned a Bush-era Board decision, Register Guard, which allowed employers to prohibit use of company email for non-work related purposes, including organizing and union purposes, unless the employer can show special circumstances that justify specific restrictions.
In the 2007 decision, the Labor Board analogized email to other employer equipment—such as bulletin boards, telephones, photocopiers and televisions—and found that the employer had a “basic property right to regulate and restrict employee use of company property.” In dissent, Members Liebman and Walsh criticized the Board, stating that the decision “confirms that the NLRB has become the Rip Van Winkle of administrative agencies. Only a Board that has been asleep for the past 20 years could fail to recognize that e-mail has revolutionized communication both within and outside the workplace.”
Recognizing the changing nature of the workplace, Liebman and Walsh explained that email was becoming the new water cooler, and that the Board fundamentally misunderstood how email systems work. In a passage that reads almost as if written by a millennial to her out of touch grandparents, the two members explained in basic terms to the Board majority the difference between emails and more traditional communication media: “If a union notice is posted on a bulletin board, the amount of space available for the employer to post its messages is reduced. If an employee is using a telephone for Section 7 or other nonwork-related purposes, that telephone line is unavailable for others to use.”
Emails, they explained, were different, because many employees could use the system simultaneously, subject lines clue the employee into whether to read or dispose of the message, and the marginal cost for an email is almost zero.
Yesterday, the Board vindicated Liebman and Walsh’s dissent and held that the majority’s 2007 decision was “clearly incorrect,” and that it “undervalued employees’ core Section 7 [of the National Labor Relations Act] right to communicate in the workplace about their terms and conditions of employment, while giving too much weight to employers’ property rights.” Therefore, employees who have access to work email can use the email system on nonwork time to discuss the terms and conditions of their employment and engage in other organization activity.
In correcting itself yesterday, the Labor Board finally recognized the central place that digital communications has in workers’ lives. The Board recognized that email is different than other employee equipment, and that most employers tolerate the personal use of employer email. Furthermore, the number of employees that “telework” has grown exponentially, with an expected 63 million employees teleworking by 2016. Recent surveys have found that approximately one third of employees report that their employer expects them to stay in touch outside of working hours and 69% frequently or occasionally check their email outside of normal working hours.
Taking these new realities to heart, the Board concluded that email was less like a photocopy machine as it was a “new natural gathering place and a forum in which coworkers who share common interests will seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.” In shifting from an equipment analysis to an analysis that recognizes emails as a basic form of communication, the Board finally recognized the ubiquity of emails and the ways in which employer limitations effect workers’ associational rights.
And the Board doubled-down on recognizing the realities of modern communications this morning in a much-anticipated final rule that significantly changes union election procedures. The new rule includes a number of significant benefits for workers who are organizing, including postponing employer litigation over union election issues until after the election takes place to eliminating the waiting period between the time when an election is ordered and when it occurs (the time when many bosses carry out their union-busting campaigns through tactics like firings or threats of closing down a workplace).
But perhaps the most overdue change is the modernization of the “Excelsior List” rules. Prior to today’s rule, employers were required to turn over to the union an Excelsior List, which contained the names and home addresses of workers within seven days after a union election is ordered, so that the union can effectively communicate with all the workers it seeks to represent.
The new rule requires the employer to also turn over any employee email addresses and telephone numbers it possess, and shortens the amount of time management has to turn over the list to two days.
The week’s decisions are two long overdue correctives and will hopefully restore some of workers’ basic rights on the job. Given the bad news for workers from the Supreme Court earlier this week, the correctives are certainly welcome.
This blog originally appeared in Inthesetimes.com December 12,2014. Reprinted with permission. http://inthesetimes.com/working/entry/17442/company_email_union
About the author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.
Wednesday, June 4th, 2014
Yes. Yes to a union. Yes to a collective voice for adjunct faculty. Yes to a better education for students. Yes to forming the biggest adjunct union in Boston.
That’s what happened on May 15 in a small room filled with a lot of excitement at the National Labor Relations Board in Boston, as adjunct faculty from Northeastern University (NU) and representatives from the National Labor Relations board gathered to count the votes for Northeastern adjuncts’ union election. And the adjuncts won, a huge victory in the ongoing adjunct organizing campaigns in Boston and across the country.
After applause and hugs, Ted Murphy, an adjunct faculty member for 8 years at Northeastern, had one word to describe his feelings about the victory: “Ecstatic.”
“It’s been a long time coming,” Murphy added.
The adjuncts at Northeastern are now part of a group of more than 21,000 adjunct and contingent faculty who have organized under the banner of Adjunct Action/SEIU. Today’s vote count for Northeastern University, one of the largest private universities in the U.S., is the fourth time in a month adjuncts across the nation have voted to join SEIU and to improve conditions and draw attention to higher education’s increasing reliance on contingent faculty.
Adjunct Organizing Demonstrates Democracy In Action
On May 14, adjuncts at Mills College in Oakland, California voted to form a union with SEIU/Adjunct Action. In late April, adjuncts at the Maryland Institute College of Art in Baltimore, MD, and Howard University in Washington, D.C. voted to form a union and join SEIU Local 500.
It was a focused democracy in action as ballots were counted at the NLRB after a strong campaign by the adjunct faculty at NU, who worked tirelessly over the past several months to fight for some basic, but important changes: job security, more equitable pay, professional development opportunities, and the chance to give their students the best education they can.
The ballots are checked, the numbered ballots read off the names list. Ballots 451, 477, 146. “Is the ballot in the blue envelope?” “We’re still 45 minutes from the ballots being counted.” Quiet chatter, focused counting. Democracy in action. A group gathered around the table as the green ballots were counted in batches of 50. Yes. Yes. More yes votes.
Cal Ramsdell, an adjunct faculty member in School of Business who has taught for 15 years, watched closely as the count progressed. “I got involved because Northeastern University’s mission is student-centered education, and adjuncts are a major part of this mission,” said Ramsdell, who served on the organizing committee. “Adjuncts are a major part of the day in day out of the university; we’re working with students, and are devoted to our work, but at the same time make a lower salary and have higher course load than full-time faculty.”
And so it went. Months of passionate conversations, meetings, emails, and advocacy distilled into piles of simple paper ballots. And in the end, the yeas had it.
Ramsdell hugged her fellow adjunct faculty when victory was announced, tears in her eyes. “At first I was afraid, and then there was just one day when I decided this was a good fight,” she said. “Sometimes there are times in life when it’s just a good fight to fight. And I put my name out there, and that was the turning point.”
Bill Shimer, an adjunct in the School of Business said the campaign started as a series of individual stories and experiences that once strung together formed a powerful narrative and a force of change.
Talking to fellow adjuncts throughout the campaign Shimer said he began to realize “that my story is their story. My concerns were their concerns, and there was a sense of a solidarity building. We grew from a nucleus into an entire community.”
Troy Neves a sophomore at NU and the campus worker justice co-chair of the Progressive Student Alliance (PSA) came to the vote count to show his support for the adjunct faculty. The PSA and other students showed strong support for NU adjuncts throughout the campaign. “It’s been amazing to see this from the beginning of the year,” Neves said. “It has been truly inspiring, and I’m really excited to continue to working with our adjuncts.”
Many of the adjuncts emphasized how the union would benefit their students and the larger educational community at Northeastern. “The better adjunct faculty are treated, the better we can serve the students,” said Abby Machson-Carter, a contingent faculty who teaches writing at NU.
“I work at a couple of different schools, and this effort is going to raise standards for adjuncts all over the city. Instructors like me are going to work with dignity and feel like we’re part of the university and that our voice matters,” Machson-Carter added.
Part-time faculty at dozens of schools are working to unite with their colleagues in SEIU, and many are scheduled to vote soon or have filed for union elections, including adjuncts at the University of the District of Columbia (DC), the San Francisco Art Institute in the Bay Area, Laguna College of Art and Design in Los Angeles, Seattle University in Washington State, Marist College in New York State and Hamline University and Macalester College in Minnesota. The Northeastern adjunct faculty join their colleagues at Tufts University and Lesley University in forming a group of 2,000 adjuncts in Boston who are unionized with SEIU/Adjunct Action.
Ramsdell emphasized the sense of community the experience of forming a union has created, for the entire university. “A stable Northeastern adjunct faculty can only strengthen Northeastern, and benefit the entire community,” she said “It’s a win-win all around.”
Join the Adjunct Action Network
The Adjunct Action Network is an online platform and community for all adjuncts — union members or not — to organize and fight for improvements on campus and advocate for policies that raise standards in higher education.
Sign up here to join and help build a movement for educational justice across America.
Keep up with the Adjunct Action campaign by following them on Facebook and Twitter.
This article was originally printed on SEIU on May 27, 2014. Reprinted with permission.
Author: Mariah Quinn, Adjunct Action
Monday, March 24th, 2014
In a major victory for a long-running campaign, port truck drivers at Pacific 9 Transportation in California have won the right to be considered employees under the National Labor Relations Act, and to form a union.
That ruling, by Region 21 of the National Labor Relations Board, that the truckers had been misclassified as “independent contractors” comes after months of sustained actions, including strikes, by port truckers. It comes in an industry where union jobs were the standard until deregulation turned all workers into “free agents.” Free agency, they quickly found, didn’t come with much freedom, as they still had their hours and working conditions dictated by the company for whom they worked–but it came with a price tag. The cost of gas, truck maintenance and licenses landed on their shoulders instead of their employers’.
It’s in this context that I’m thinking about the “end of jobs as we know them.”
This Wednesday I attended a conference with that provocative title at the Open Society Foundation, and I’ve long been mulling the idea.
In 2011, I wrote at AlterNet that a future beyond jobs, where we all work less, used to be a major goal of the U.S. labor movement. More freedom, less production for its own sake, would actually create a more sustainable world. (Alyssa Battistoni compellingly made this argument recently at Jacobin.) Lowering the amount of hours worked by each person would help distribute jobs better among the people who still don’t have them, as economist Dean Baker has repeatedly argued.
But I noted that moving beyond jobs would necessitate tackling issues of inequality and concentration of power in the hands of the wealthy. At the moment, the “end of jobs” has meant sustained high unemployment and low wages, not more freedom. The disappearance of jobs in America has as much to do with the power of global capital to move where and when it wants and the ability, post-crisis, of businesses to squeeze more and more productivity out of the few workers they keep, as it does with technology making certain professions obsolete. And the rise of the “free agent” worker has at least as much to do with the desire of businesses to have an easy-hire, easy-fire, just-in-time workforce (as I wrote about in some detail recently) that absorbs—as the port truckers do—most of the labor costs, as it does with workers who simply enjoy the freedom of not having a boss. Power is as big or bigger a force as technology in shaping the labor landscape today.
Fast forward to 2014. The economy has improved only slightly. Unemployment remains high, and the jobs that do exist are often low-wage and part-time. Since 2011, we’ve seen not only Occupy but the rise of a movement of Walmart and fast-food workers demanding better wages and, often, more hours, so they can take home a full-time paycheck. A shorter hours movement has not materialized, nor has a meaningful jobs program, despite the promises of a bipartisan clutch of politicians. The minimum wage has risen in some states and cities, but workers are still struggling, and the long-term unemployed have seen their benefits cut off by a Congress that continues to squabble about whether or not they deserve to be able to pay bills.
Jobs have not yet ended or become obsolete. Yet, without question, they are changing. Research from Kelly Services (which, being a temporary agency, certainly has a vested interest in the subject) finds that 44 percent of workers in the U.S. classify themselves as “free agents.” According to the Freelancers Union, 42 million people are freelancers. The full-time job itself is only a fairly recent development in human history, spanning a couple hundred years or so, and the attendant expectation that a job be “good,” paying a living wage and providing healthcare and retirement benefits, with a union and some security, is a peculiar historical development of the New Deal era in the United States—an era that is almost without question over.
Power created that era—the power of organized workers in unions demanding better conditions. But the bosses, it’s worth noting, never stopped trying to dismantle the deal. Since the Taft-Hartley Labor Management Relations Act of 1947, conservatives have been pushing to limit the power workers were granted by the NLRA in 1935, and the conversion of decent jobs into no-security temp gigs should rightly be seen in that context. The port truck drivers at Pacific 9 and elsewhere realize that despite the promises of freedom and liberation, they have more power when their relationship with the boss is explicit and when they can come together as a union.
We should carefully consider what comes next, whether that be high-end freelancers hopping from gig to gig, disdaining a full-time job, or more likely, the further fragmentation into piecework that we see happening in digital spaces like Amazon’s Mechanical Turk, and the conversion of formerly full-time union jobs such as port trucking or auto manufacturing into low-security independent contracting or temp labor. Moshe Marvit wrote at The Nation of Amazon’s human “crowdworkers” who perform the tiny tasks that are “helping to power the parts of the Internet that most of us take for granted” and who are paid a pittance for their work.
Technology is often blamed for displacing workers and eliminating jobs. Those doing the blaming are sometimes correct, as when supermarkets move to automatic checkout or ports move to automated cargo hauling. And yet the story of the Mechanical Turkers is a good cautionary tale for those who assume that all jobs are disappearing into the mechanical ether. One doesn’t have to be a Luddite to point out that many jobs—including ones, like those done by Turkers, that we think are fully automated—are still being done by people, either because we don’t have the technology to do them yet, or because those people remain cheaper than machines. Whether jobs are disappearing for good reasons—because they simply aren’t socially necessary anymore—or because they are being fragmented, made temporary or shifted to freelancers, these are not processes that are happening outside of human control, but rather because of it.
Carl Benedikt Frey of the Oxford Martin Programme on the Impacts of Future Technology was a keynote speaker at Wednesday’s event. His recent study, with Michael Osborne, found that nearly half of U.S. jobs are “at risk of computerization.” These include positions in a wide variety of sectors, from transportation to the service industry.
The positions that are least likely to be automated, this study found, were those that relied on “creative and social intelligence”—for example, preschool teaching. It concludes, “For workers to win the race, however, they will have to acquire creative and social skills.”
What is social intelligence but another word for what sociologist Arlie Russell Hochschild called “emotional labor”? And that emotional labor has been devalued and indeed not considered a skill at all, largely because it has been done by women. One study found that “interactive service jobs,” which include care work and service work, get paid less even if you control for education levels, rate of unionization, cognitive and physical skill, and the amount of women doing the job.
If those social-skilled jobs are the only ones that will be left to us, will we learn to value them more? Or will this just be another excuse to pay workers less? The question, like the question of what is a skill in the first place, is one of power.
The end of jobs doesn’t have to be a dystopian nightmare. There is some truth to the rosy picture painted by Kelly Services about the “free agent” workforce. I once left a full-time job to be a freelancer, and I enjoyed the experience: writing for a variety of outlets, learning from new editors, sharpening different styles, working when I wanted. The pleasure came to a grinding halt, though, when a client who owed me what amounted to more than two months of my rent didn’t pay for several months, and I had few other financial options. I needed a way to pay the bills if the work didn’t come through, and our current so-called social safety net didn’t offer one. It remains designed, as Sara Horowitz of the Freelancers’ Union points out, for a workforce that has full-time jobs with benefits. And that was never everyone, to begin with.
Women, black workers and immigrants were mostly left out of that design in the first place; what’s happened is that the conditions in the sectors where they typically work (temporary work, no labor protections, informal workplaces) have caught up with the rest of us. This means instead of clinging to a safety net that was designed for white male breadwinners in manufacturing jobs, we need a system designed for workers who are doing less work, doing it from home or the neighborhood coffee shop, and where the human resource in demand is care as much as it is cognitive skill or brute strength.
The subject of a universal basic income is coming up a lot these days; former Labor Secretary Robert Reich endorsed it last week in a talk at San Francisco State University, calling it “almost inevitable” in the face of technologically-induced job loss. A basic income would serve as something more than a safety net in troubled times—it would be a firm line below which no one, employed or unemployed, skilled or unskilled, could fall. Perhaps most importantly, it would help workers who do retain jobs (or gigs) increase their bargaining power by giving them the option of leaving rather than clinging to a job out of desperation.
That’s a large redistribution of income, of course, and it will take a lot of political power to make such a thing a reality. Political power for working people has come in the past and will come in the future through worker organizing—particularly, as has been the case with the port truckers, organizing outside of the old NLRB framework. It took workers coming together to challenge their bosses’ idea of “freedom” to win fair pay at the ports, and it will take workers coming together on a massive scale to really get workers some freedom.
Along with that idea of freedom, it’s time to consider a call for shorter working hours—a redistribution of work and leisure to go along with the redistribution of wealth. There will always to be some work that cannot be automated away, and much of that work, as Frey and Osborne found, will likely rely on social skills that have been presumed to be women’s domain. If we don’t want a world where women do most or all of the work for little pay, we’ll have to start valuing those social skills more, and ensuring that the jobs that requires them are done by all.
But most importantly, we should be working to ensure that a future without jobs is a future where we all get to enjoy the benefits of free time.
This article was originally printed on Working in These Times on March 21, 2014. Reprinted with permission.
About the Author: Sarah Jaffe is a staff writer at In These Times and the co-host of Dissent magazine’s Belabored podcast. Her writings on labor, social movements, gender, media, and student debt have been published in The Atlantic, The Nation, The American Prospect, AlterNet, and many other publications, and she is a regular commentator for radio and television.
Tuesday, December 31st, 2013
For the past several Christmases, workers at Honeywell’s uranium plant in Metropolis, Ill., have had little to celebrate. Most of the workers at the plant have spent the best part of four years in a series of labor struggles with the company: first a tense 13-month lockout ending in 2011, then post-lockout disputes in which the union alleged that the company failed to abide by the new contract, and then, in July of 2012, a yearlong shuttering of the plant that led to temporary layoffs of almost the entire union workforce.
This holiday season, however, the workers are finally getting something to cheer about—all of their jobs back, two days before Christmas.
Earlier this month, Honeywell’s new plant manager Jim Pritchett recalled the final 11 of the nearly 200 laid-off union workers—including the union local president, Stephen Lech. The last of the workers restarted their jobs on Monday, December 23. The union, United Steelworkers (USW) Local 7-699, is hoping that the recalls may be a sign of improved relations with Honeywell.
That relationship grew even more strained this summer, after Honeywell reopened the renovated plant in May. While the company began bringing back laid-off union workers in an order determined by lists negotiated with the union, it stopped with 21 workers still left on the list. Local 7-699 alleges that this was an attempt to avoid rehiring Lech, who was next in line.
Out of solidarity with the laid-off workers, some union workers refused to work overtime, saying the plant was understaffed and that Honeywell was using overtime to avoid filling the needed positions. In turn, Pritchett (then the plant’s operating manager), sent a memo in July canceling summer vacations for all workers because not enough overtime shifts were being filled.
On October 25, Local 7-699 filed an unfair labor practice charge with the National Labor Relations Board, saying that Honeywell had “unlawfully, disparately, and discriminatorily failed and refused to reinstate from layoff, union president, Stephen Lech, because he engaged in protected, and concerted, and union activities.”
The NLRB was getting ready to hear the case when Honeywell settled. If the board had ruled in favor of the local and found that the refusal to reinstate was in retaliation for union action, Honeywell would have been legally liable for the back pay for the 21 workers who were not recalled during that six-month period. Lech estimates that the payment could have totaled more than a half a million dollars.
Some union activists say that the threat of legal action over the layoffs propelled Honeywell to finally readmit the last 21 workers to the plant. Honeywell did not return Working In These Times’ request for comment.
While Honeywell’s motives are unclear, what is clear is that this Christmas Eve, a lot of Honeywell workers in Metropolis, Ill., have reason to smile. The news of a victory gives union workers a much-needed morale boost as they head into what are expected to be contentious negotiations over their contract, which is set to expire this June.
“I’m excited about it,” says Lech of the rehirings. “We’ve fought hard against Honeywell for the last four years, and this is a huge victory for us.”
This article was originally printed on Working In These Times on December 23, 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.
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.