Category Archives: labor unions

About That NLRB Ruling

In a divided opinion yesterday, the National Labor Relations Board ruled that employees can use their company’s email system for the purpose of Section 7  union-organizing activities. The case was brought to the NLRB’s attention by the AFL/CIO, which brought a lawsuit against California-based Purple Communications over its policy banning employees from using company email for activities related to union organizing.

In ruling 3-2 in favor of the plaintiffs, the NLRB overturned its 2007 Register Guard decision, in which it gave companies the right to restrict employees’ use of company email for organizing purposes without eliminating their right to use work email for other personal purposes. The latest ruling is “responsive to the enormous technological changes that are taking place in our society,” the board wrote. The NLRB said its ruling is “carefully limited” and applies only to employees who have already been granted access to company systems for their own work. Employers are not required to let employees use work email for Section 7 activities, the Board wrote — indeed, it can ban work email from being used for these purposes during work- and non-work hours so long as it’s part of a total ban on non-work use of its email system.

However, Philip Miscimarra, one of the two board members who voted against the majority, said that technological advances mean that employees have plenty of electronic options other than company email for the purposes of union-related communication. “National uprisings have resulted from the use of social media sites like Facebook and Twitter,” he said.

Jeffery Meyer, a labor and employment attorney with Kaufman Dolowich & Voluck, says the ruling “opens the floodgates for a full attack on employer property rights.”

“What this decision does is to provide unions and employees with a legal foundation to argue that Section 7 rights now trump an employer’s property right in almost any circumstance,” Meyer writes in a brief on the ruling.

Employers should review and, if necessary, revise their policies on electronic devices and instruments to take advantage of the “caveats delineated in the Board’s decision,” he writes. Although it’s a drastic move, “strict yet clear prohibitions and/or controls on personal use of company email systems could prove to be the difference in an organizing campaign where the union might not otherwise be able to contact the entire workforce.”

A company’s failure to revise its policies “could provide unions with a very useful tool to organize their employees,” writes Meyer. “Purple Communications serves as concrete evidence that a union will not think twice to use an unlawful handbook policy to its advantage in order to seek a new election should the employer win the first go-round.”

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Getting Out the Vote

Business groups are looking to make a difference in November’s midterm elections.

As a recent piece on the The Hill website reports, “Heavyweight groups such as the National Retail Federation, the National Federation of Independent Business, the National Association of Manufacturers, the Associated General Contractors of America and BIPAC are among those seeking to increase engagement in the political process this year.”

According to The Hill, more than 90 companies and industry groups are taking part in the Employee Voter Registration Week (which ends today), including the American Forest & Paper Association, Anadarko Petroleum, Caterpillar, eBay and a slew of state-level organizations.  Their hope is to break the gridlock and get employees registered and involved.

About 54 percent of American voters went to the polls two years ago, compared to around 38 percent in the 2010 midterms.

David French, the senior vice president of government relations at the National Retail Federation who discussed the initiative at a press conference the other day (see video), notes that …

“Any of these races could be decided by a few hundred votes, so a strong turnout from the business community could make the difference between a candidate who understands our concerns and a candidate who’s tuned to other voters’ interests.”

As The Hill piece explains, “trade groups and corporations will not be instructing their members and employees how to vote or who to vote for … but will be providing information about deadlines, how to register and where to vote.”

I asked Littler Shareholder Michael Lotito (who is based in San Francisco, but always keeps a watchful eye on what policymakers are up to in Washington) to share his thoughts on the significance of this effort.

Lotito sees it as a counter weight to what the American Federation of Labor does in getting out the vote through registration drives and email solicitations.

“Businesses have been largely quiet in this regard,” he says. “But often, the employees would benefit from hearing from their employer as to how the positions of candidates and state and local propositions may impact the company and, either directly or indirectly, the employees who depend on the company.  Many companies are not engaged in this process, not even encouraging their people to register and vote, let alone modify work schedules on election day to make sure people can vote.”

Lotito also suggests that HR might want to be more than just a bystander in this regard. “Let HR be the leader for the identification of issues, how those items will impact the company, which candidates (regardless of party) advances those interests, and then advising how a person can register to vote, obtain absentee ballots and go to the polls on election day.”

At the end of the day, it’s probably going to be tough to know how much of an impact any of this will have, but with voter turnout for the midterms being as pitiful as it is, it would seem to me that any effort to get citizens more engaged (if I can borrow a word from the HR lexicon) in our electoral system should be viewed as a good thing.

In case you’re wondering, the midterms are November 4—so, if you haven’t yet, mark it down.

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New Rulings Affect Labor Landscape

Mcdonalds rulingLabor unions saw a setback today with the just-announced ruling from the Wisconsin Supreme Court upholding that state’s law that effectively bans collective bargaining by state government employees. Unions nationwide have poured resources into contesting the law, which ignited a firestorm in Wisconsin when it was signed by Gov. Scott Walker three years ago.

But on a national scale, unions should be much happier about the recent ruling from the National Labor Relations Board’s general counsel, Richard F. Griffin Jr., that McDonald’s Corp. could be held jointly liable for labor and wage violations by its franchisees. Workers at various McDonald’s locations have alleged they were retaliated against after participating in strikes and demonstrations demanding higher wages. Griffin’s ruling, which will probably go before the five-member NLRB board and could possibly go as far as the U.S. Supreme Court, says McDonald’s is a joint employer along with its franchisees and therefore shares responsibility for the retaliatory measures allegedly taken against the employees. The NLRB found that of 181 cases filed against McDonald’s since late 2012, 43 cases have been found to have merit and that the Oak Brook, Ill.-based fast-food giant and its franchisees will be named as respondents if the parties cannot reach settlement, while 68 of the cases have been dismissed and 64 remain under investigation.

The ruling has the business community hopping mad — and that’s no surprise, considering that it has the potential to significantly alter the longstanding franchisor-franchisee business model and could make it easier for unions to organize hourly workers at national retail and restaurant establishments.

The following statement from Angelo Amador, vice president of labor and workplace policy at the National Restaurant Association, reflects what many others in the business community are saying about the ruling:

The ruling … asserting that McDonald’s Corp. is a ‘joint employer’ of its franchisees’ employees overturns 30 years of established law regarding the franchise model in the United States, erodes the proven franchisor/franchisee relationship and jeopardizes the success of 90 percent of America’s restaurants who are independent operators or franchisees.”

Heather Smedstad, senior VP of human resources for McDonald’s USA, said in a statement that “this decision to allow unfair labor practice complaints to allege that McDonald’s is a joint employer with its franchisees is wrong. McDonald’s will contest this allegation in the appropriate forum.”

But proponents of the ruling say McDonald’s actually exercises significant control over its franchisees’ employees, requiring them to abide by an extensive list of rules and regulations and even providing the franchisees with software that helps them determine staffing levels for specific times of the day. Here’s what Micah Wissinger, an attorney who represents McDonald’s workers in New York, told the Society for Human Resource Management:

McDonald’s can try to hide behind its franchisees, but today’s determination by the NLRB shows there’s no two ways about it: The Golden Arches is an employer, plain and simple. The reality is that McDonald’s requires franchisees to adhere to such regimented rules and regulations that there’s no doubt who’s really in charge.”

Former NLRB chairwoman Wilma Liebman told the New York Times that the decision “could give fast-food workers and labor unions leverage to get McDonald’s to negotiate about steps that would make it easier to organize McDonald’s restaurants.”

It’s clear we now have yet another NLRB action that’s once again galvanized the business community in opposition. Considering the sheer number of employees who work for franchisees, along with the record number of temps and contractors in the U.S. workforce today, the ultimate fate of this ruling will be very closely watched .

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Legislation to Counter ‘Ambush Election’ Rule

Last week, House and Senate Republicans announced the introduction of legislation intended to counter the National Labor Relations Board’s controversial
“ambush election rule,” the law firm Ballard Spahr recently noted in a legal alert.

(Eagle-eyed readers will remember we recently covered the topic in a news analysis piece titled “Are Employers Being Ambushed?”)

The NLRB’s proposed rule, which was re-issued on Feb. 5, would significantly
reduce the time in which a union election can take place after the filing of an
election petition. Under the proposed rule, elections could take place in as few as 10
days after the filing of a petition. This would constitute a significant change
in the timing of union elections as they currently take place under the
existing regulations

In its alert, Ballard Spahr says “many employers oppose the proposed ambush election rule and believe that it undermines the rights of both workers and employers,” and to that end, Congressional Republicans have introduced two bills aimed at changing the proposed rule:

The Workforce Democracy and Fairness Act (H.R. 4320) requires at least a 35-day window between the filing of an election petition and the union election. This bill would preserve an s ability to litigate challenges to the petition and proposed unit in  pre-election hearings and would provide the NLRB adequate time to rule on any  outstanding issues.

The Employee Privacy Protection Act (H.R. 4321) would enable employees to choose in writing what type of personal contact information the employer is required to provide to the union after the processing of a representation petition. This package of legislation would nullify the NLRB’s proposed ambush election rule.

Stay tuned as this legal picture continues to develop…

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College Football Team Wants to Unionize

football playersCollege athletics are a multi-billion dollar business — with most of that revenue generated by college football players. The players are, of course, unpaid — but that isn’t stopping the football team at Northwestern University from trying to form a union.

As reported on, Ramogi Huma, president of the College Athletes Players Association, filed a petition at the Chicago office of the National Labor Relations Board on behalf of the Northwestern University Wildcats football team. Northwestern U. is located in the Chicago suburb of Evanston, Ill. “This is about finally giving college athletes a seat at the table,” Huma told ESPN. “Athletes deserve an equal voice when it comes to their physical, academic and financial protections.”

Concussions, and the alleged lack of attention devoted to preventing them by the NCAA, represent one of the chief concerns of the Northwestern players and is a big reason why they’re trying to form a union, Huma said:

It’s become clear that relying on NCAA policymakers won’t work, that they are never going to protect college athletes, and you can see that with their actions over the past decade. Look at their position on concussions. They say they have no legal obligation to protect players.”

Wildcats quarterback Kain Colter, who reached out to Huma last spring for help in getting the players representation, told ESPN that “we love Northwestern” and that the players have no issue with their treatment by the university, but that the NCAA has failed to adequately address safety issues such as concussions and that they’re seeking to organize on behalf of all college players: “Right now the NCAA is like a dictatorship. No one represents us in negotiations. The only way things are going to change is if players have a union.”

In a statement, Northwestern said it supports having a dialogue around the issues and the right of the football team to have a voice in that dialogue, but that it does not support the players organizing through a labor union.

The NCAA issued a statement from chief legal officer Donald Remy:

This union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education. Student-athletes are not employees, and their participation in college sports is voluntary. We stand for all student-athletes, not just those the unions want to professionalize.”

Huma and the Wildcats football team are being backed in their efforts by the United Steelworkers union, which will pay CAPA’s legal expenses.

The unionization effort isn’t aimed at getting salaries for the football players, although Huma didn’t specifically rule that out as a long-term goal in the ESPN interview. Instead, the focus is on getting guaranteed coverage for sports-related medical expenses for current and former athletes, and compensation for sponsorships. The group also plans to establish a trust fund to help former players complete their degrees and push for an increase in athletic scholarships.

Jeff Kessler, a Winston & Strawn partner who helped bring free agency to the NFL, told Bloomberg News that the petition will likely be appealed past the NLRB to the courts. Last fall Kessler said he was starting the first college-focused division at a major law firm to represent players, coaches, schools and conferences against the NCAA.

“This proceeding will present the fundamental issue as to whether or not students athletes should be considered employees who can unionize for purposes of the national labor relations act,” Kessler told Bloomberg News.

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No Notice Required

courtroomYou’re always welcome to remind employees of their right to form a union, but it looks like you won’t have to if you don’t want to.

According to a statement issued by the National Labor Relations Board this week, the organization has chosen not to seek Supreme Court review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post notifications in the workplace reminding employees of their right to unionize.

In August 2011, the National Labor Relations Board approved a rule obliging employers to display a poster informing workers of the rights afforded to them by the National Labor Relations Act, including the right of employees to organize and bargain collectively with their employers. A three-judge panel for the U.S. Court of Appeals for the D.C. Circuit struck down the rule in May 2013, with another panel for the Fourth Circuit doing the same the following month. The NLRB had until last week to file an appeal to the U.S. Supreme Court, which the agency ultimately decided against doing.

That decision was “not unexpected,” says Ronald Meisburg, the Washington, D.C.-based co-head of Proskauer’s labor management relations group and former NLRB general counsel.

“The chance of obtaining Supreme Court review—much less reversal—was very small,” says Meisburg, “and carried the risk of a ruling placing even greater restrictions on the NLRB’s rulemaking authority.”

This development figures to go down well with many business groups, some of which had accused the NLRB of overstepping its bounds in its efforts to make posting the notifications mandatory. Associated Builders and Contractors Inc., for example, had previously described the posting rule as “a perfect example of how the pro-union board has abandoned its role as a neutral enforcer and arbiter of labor law.”

The National Association of Manufacturers, meanwhile, quickly issued its own statement on the heels of the NLRB’s announcement that it wouldn’t seek Supreme Court review in the posting requirement rule case. In a press release, the organization states the NLRB “has acknowledged its overreach in the case, permanently validating the NAM’s victory.”

“This is the culmination of the NAM’s aggressive legal pursuit against a government-imposed regulation that would create a hostile work environment while injecting politics into manufacturers’ day-to-day business operations,” said Jay Timmons, NAM president and CEO.

Nevertheless, the NLRB appears to remain undaunted in its effort to make employees aware of their right to unionize.

In the aforementioned statement, the agency reiterated its commitment to “ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act. Therefore, the NLRB will continue its national outreach program to educate the American public about the statute.”

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Good Reads About Work

The Department of Labor is seeking comments. No, not about some new wage-hour or workplace-safety rule. It wants your book recommendations!

In case you missed it, the DOL, in partnership with the Center for the Book in the Library of Congress, has launched a project called “Books that Shaped Work in America.”  (It was inspired by the Library of Congress’ “Books That Shaped America” exhibition, which explores the impact of books on American life and culture.)

Labor Secretary Thomas Perez describes the initiative this way ….

Think of this effort as an online book club where people from all walks of life can share books that informed them about occupations and careers, molded their views about work and helped elevate the discourse about work, workers and workplaces. At the same time, the site provides a unique way for people to learn about the mission and resources of the U.S. Department of Labor.”

imgresTo get the list started, the DOL invited 24 individuals, including Perez, eight former secretaries of labor, department staff members, civil-rights leaders, critics, authors, media personalities and staff from the Library of Congress to submit their suggestions.

Classics featured on the DOL website currently range from Upton Sinclair’s Oil and Ann Rand’s Atlas Shrugged to William Whyte’s The Organization Man and Arthur Miller’s Death of a Salesman.

All great recommendations for the list, which could also include a few titles offered up by members of our editorial team: Wayne Oates’ Confessions of a Workaholic, Spencer Johnson’s Who Moved My Cheese, Ayn Rand’s The Fountainhead, Joshua Ferris’ Then We Came to the End and Martin Mayer’s Madison Avenue, U.S.A.

Have a few of your own? If so, I’m sure the DOL would welcome hearing from you.


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Fast-Food Workers Strike Again

Even on a normal day, you’re not likely to find me frequenting a fast-food restaurant. But yesterday seemed like a particularly good day to stay away.

By now, you’ve no doubt heard that workers at fast-food restaurants such as McDonald’s, KFC and Burger King in nearly 60 cities (ranging from Atlanta and Kansas City to Springfield, Ill., and San Lorenzo, Calif.) walked out of their establishments in protest over low pay. The workers are seeking a boost in their hourly wages to $15 an hour. (According to the Service Employees International Union, the average pay of these workers is around $8.94 an hour—though many earn the federal minimum wage of $7.25.)

148115569Though similar walkouts by fast-food workers occurred over the past year, this is reportedly the largest. (In case you’re wondering, the Bureau of Labor Statistics reports there were 19 major strikes and lockouts involving 1,000 or more workers lasting at least one shift in 2012, unchanged from 2011.)

USA Today reports that, in Detroit, a dozen workers didn’t show up for their shift at a McDonald’s on 8 Mile Road, forcing the closure of the dining room there, while another protest took place at a McDonald’s on West Grand Boulevard. About 30 workers in Raleigh, N.C., meanwhile, picketed outside a Little Caesars.

In New York and Chicago, Bloomberg reports, “passersby demonstrated little support for the workers and there were comments about $15 an hour being too high for entry-level jobs. Moments after protesters left a Wendy’s in downtown Manhattan, about 20 people piled into the store for lunch. When chanting strikers entered the Chicago McDonald’s, workers continued to pour coffee and bag food for a throng of customers.”

If one of the strikers’ goals is to have their voices heard, they definitely succeeded. Pretty much every mainstream news outlet in the universe picked up on the story. Still, few expect these workers are going to see $15 an hour wages anytime soon. “This is a more widespread [action] and involves more cities,” says Sonya Madison, an attorney with Counsel on Call based in Atlanta. “But I do think the results may be similar to before, in that you’re dealing with franchises, which aren’t making millions of dollars. It’s going to be difficult for them to raise wages.”

If there’s a change, Madison adds, “it’s going to occur on the legislative level.”

As most of you know, President Obama pushed to raise the federal minimum wage to $9 an hour (the last time the minimum wage was increased was in 2009). But with stiff resistance in Congress, that probably won’t happen anytime soon as well.

Happy Labor Day, BTW.

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There’s A Lot Goin on With Labor This Labor Day

On the heels of Michael J. O’Brien’s blog post below on the growing numbers of over-connected workers celebrating Labor Day this coming Monday, I thought it would also be fitting to call labor union - 164548731attention to the current state of flux — for lack of a better word — involving labor unions as well.

Indeed, there is much to keep your eyes on — this Labor Day and beyond. Here are three developments I thought worthiest, from most recent to least, though they’re all pretty recent and they seem to keep coming:

1) On Aug. 15, the U.S. Court of Appeals for the Sixth Circuit upheld the National Labor Relations Board’s decision in Specialty Healthcare and Rehabilitation Center of Mobile, affirming that the NLRB has broad discretion to determine appropriate bargaining units for union representation elections, including narrow so-called “micro-units.” (Paul Salvatore, our legal columnist, mentioned such micro-units in this recent column.)

This alert from Littler lays it out pretty completely and spells out toward the end what should be of concern to employers:

Targeting smaller groups within an employer’s workforce provides labor unions with a great deal of flexibility. Such groups may be more susceptible to organizing activity than the larger, traditional employee complement that would have been included in a proposed bargaining unit under the [NLRB’s] prior standard.  While it is expected that the board and courts will continue to refine the application of Specialty Healthcare in the coming years, employers should be aware that a finding of an appropriate “micro-unit” will be very difficult to avoid in most employer operations.

2) On Aug. 13, U.S. District Court Judge Benjamin H. Settle entered a ruling in favor of an employer based, in part, on what he deemed to be an invalid appointment of the NLRB’s acting general counsel, Rafe Solomon. Specifically, he granted an employer’s motion to dismiss a lawsuit in which the NLRB sought an injunction against the employer based on accusations that the employer was terminating its employees for engaging in protected activity.

In its motion to dismiss, the employer argued (1) only the NLRB has the authority, after issuing an unfair labor practice complaint, to petition a federal court for injunctive relief, and the NLRB did not at that time have a quorum of three lawfully appointed members; and (2) the NLRB could not lawfully delegate its authority to Solomon because Solomon’s own appointment was also invalid.

This rundown, also from Littler, spells out what the impact and ramifications of this may be, including the fact that the decision “will likely prompt a strong response among employers currently facing unfair labor-practice litigation before the NLRB. The validity, or lack thereof, of Solomon’s appointment will provide an additional affirmative defense for employers.”

3) Lastly, we’re all keeping our eyes on the development I blogged about last month, involving the growing swell of discontent unions seems to be having over the Affordable Care Act. Specifically, three sizeable unions — the Teamsters, UNITE-HERE and the United Food and Commercial Workers — sent a joint letter in mid-July to Democratic congressional leaders blasting the very same healthcare-reform plan they once lauded.

The main gripe — directed to Senate Majority Leader Harry Reid and Minority House Leader Nancy Pelosi by Teamsters President James P. Hoffa, UFCW International President Joseph Hansen and UNITE-HERE President Donald “D” Taylor — is that no one on Capitol Hill seems to be listening to the unions’ fears that the massive reform bill could put an end to nonprofit health-insurance plans “like the ones in which most of our members participate,” as the letter states.

Again, much to mull and keep abreast of. We’ll be addressing these and many more aspects of the state of unions today in an upcoming news analysis on our HREOnline website, so watch for that as well.

And Happy (or at least a highly interesting) Labor Day!




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Doing ‘Things Differently’ at the AFL-CIO

Looks like the AFL-CIO is considering a new approach to help stem the loss of members, according to a report last week in the Wall Street Journal (subscription required).

In its annual membership report released earlier this year, the AFL-CIO stated it lost 152,500 members (among its affiliated unions) in 2012. Factoring in 82,183 new members, the net decrease came to 70,317 members, compared with 2011.

In all, 16 affiliated unions increased their membership while 25 unions reported losses. (Today, just 11.3 percent of American workers belong AFL-CIOto unions.)

In light of these troubling figures, it’s no surprise to read that AFL-CIO President Richard Trumka is looking to unveil a new strategy at its annual meeting in September that involves “partnering” more closely with groups such as the Sierra Club and NAACP. He noted that details about how these relationships will be structured are still being formulated.

Asked during an interview posted yesterday on Capital Download if these grassroots’ organizations would be part of the union affiliation, Trumka responded,  “Hopefully …” Some, he said, may pay dues while others may not.

Trumka pointed out that the AFL-CIO’s approach over the past 30 years hasn’t worked and “we need to do things differently,” adding that the hope going forward is to integrate with the community in way that’s reminiscent of the early days of the union movement.

There’s no denying the AFL-CIO needs to do “things differently.” I’d be hard pressed to find someone who doesn’t think that’s the case. But whether this plan—which is expected to be unveiled at the AFL-CIO’s convention in September—is the answer to the AFL-CIO’s woes is certainly open to debate.

A story posted on USA Today’s website yesterday identifies some of the potential conflicts that could arise. “For instance,” the article said, “the Building Trades, which represents construction workers, supports the controversial Keystone XL Pipeline as a project that will generate jobs; the Sierra Club opposes it as a threat to the environment.”


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