Articles Posted in NLRB

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The U.S. Court of Appeals for the Second Circuit recently affirmed the determination of the National Labor Relations Board (NLRB) in NLRB v. Pier Sixty, LLC, a case involving the boundaries of union-related activity protected under the National Labor Relations Act (NLRA). In its April 21, 2017 decision, the Second Circuit held that Pier Sixty, LLC, had violated the NLRA when it terminated an employee over his union-related Facebook post, even though the post used obscenities and disparaged the employee’s supervisor.

The NLRB is a federal agency tasked with the “prevention of statutorily defined unfair labor practices on the part of employers and labor organizations” and is authorized to investigate, prosecute, and adjudicate claims of unfair labor practices. The agency was created by the NLRA, a federal labor law passed in 1935 which protects the rights of employees to organize, engage in collective bargaining, and participate in other union-related activities. The NLRA prohibits an employer from terminating an employee based on “protected concerted activity,” a term referring to employees working together to improve the terms and conditions of their employment—for example, attempting to form a union, discussing pay and safety concerns with other workers, and making complaints about workplace conditions. However, there are exceptions if an employee’s behavior is found to be so “opprobrious” that it no longer falls within the NLRA’s protections. Though the NLRA generally protects union-related activity, “even an employee engaged in ostensibly protected activity may act ‘in such an abusive manner that he loses the protection’ of the NLRA.”

In NLRB v. Pier Sixty, employees at Pier Sixty, a New York­­–based catering company, began seeking union representation in 2011. In late October 2011, the employees ultimately voted to unionize after a contentious organizing campaign involving “threats from management that employees could be penalized or discharged for union activities” (which Pier Sixty did not contest violated the NLRA). A few days before the union election, Hernan Perez, a Pier Sixty server, posted an angry, derogatory message about his supervisor, Robert McSweeney, on his Facebook page after McSweeney spoke harshly to a group of Pier Sixty employees. Shortly afterward, Perez, viewing McSweeney’s behavior as “the latest instance of the management’s continuing disrespect for employees,” wrote the Facebook post, which read, “Bob is such a NASTY MOTHER F*CKER don’t know how to talk to people!!!!!! F*ck his mother and his entire f*cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”

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Owen H. Laird, Esq.

This should not come as a surprise: tomorrow is Election Day.   Coverage of the presidential race started over a year ago and has been inescapable for the last several months.  Putting aside the vitriol, nonsense, and mudslinging, the outcome of this election will have a significant impact on the employment of millions of Americans, and not just in terms of the candidates’ claims about job creation.  Should Hillary Clinton win the presidency, Americans will likely see a continuation of the worker-friendly policies instituted under President Obama.  However, should Donald Trump win, we will likely see a Republican administration roll back much of the progress of the past eight years, to the detriment of workers and the benefit of employers.

The Obama administration has influenced employment law policy through three main avenues: (1) executive order, (2) administrative agencies, and (3) appointment.

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Owen H. Laird, Esq.

Earlier this week, the National Labor Relations Board (NLRB) decided in favor of graduate students at Columbia University, allowing them the right to unionize. The question at the heart of the case was whether graduate students who work as research or teaching assistants were “employees” under the National Labor Relations Act (NLRA), the legislation that defines collective bargaining rights in the United States. Under the NLRA, employees are able to organize unions, while other groups, such as independent contractors and students, are not. The NLRB held that graduate students qualify as employees because they perform work at the discretion of the university, for which they are compensated by the university.

This decision reverses a prior decision by the NLRB that denied graduate students at Brown University the right to unionize. In that case, the NLRB came to the opposite conclusion: that graduate students were students first, and therefore not employees. The most significant difference between the Columbia and Brown decisions is not the nature of the relationships between the universities and their graduate students, but the political makeup of the NLRB.

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Owen H. Laird, Esq.

On July 26, 2016, the New York Times reported on allegations of improper employment practices concerning Bridgewater Associates, an organization commonly considered to be one of the largest hedge funds in the world, if not the single largest. The Times article refers to a complaint filed against Bridgewater by a Bridgewater employee with the Connecticut Commission on Human Rights and Opportunities, a complaint filed against Bridgewater by the National Labor Relations Board, and interviews with former Bridgewater employees.

The article describes a culture of surveillance and control at Bridgewater, with video and audio recordings, security patrols, and even some employees who are required to lock up their phones before heading to their desks. In and of itself, such allegations would not be surprising. Hedge funds are notoriously secretive and controlling over their internal goings-on and strive to protect any advantage they might have over the competition; policies and practices intended to protect internal information are the norm in the financial industry.

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Lucie Riviere and Owen H. Laird, Esq.

On February 16, 2016, U.S. District Judge William T. Lawrence of the Southern District of Indiana held that the Fair Labor Standards Act (“FLSA”), the federal labor law that prohibits employers from paying their employees less than minimum wage, did not cover college athletes.

In Berger v. National Collegiate Athletic Association, the three plaintiffs, members of the University of Pennsylvania (“Penn”) women’s track and field team, alleged that they were entitled to be paid at least the minimum wage for the work they performed as student athletes (e.g. practicing, playing in games, appearing at events, etc.). They argued that, by virtue of being on the team, they were Penn’s employees for purposes of the FLSA because they performed work for their universities for no academic credit, like students participants in work-study program. The plaintiffs sought an order from the Court allowing a collective action with a class of “[a]ll current and former National Collegiate Athletic Association (“NCAA”) Division I student athletes on NCAA women’s and men’s sports rosters for the [Defendant schools] . . . from academic year 2012-13 to the present” against Penn as well as the NCAA and the 123 NCAA Division I Member Schools.

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Lucie Riviere

On December 24, 2015, the National Labor Relations Board (“NLRB”) held that Whole Foods Market, Inc.’s policy of prohibiting employees from audio and video recording in the workplace violates the National Labor Relations Act (“NLRA”).

A Chicago-based union and the Workers Organizing Committee of Chicago (“WOCC”) challenged two rules found in Whole Foods’ General Information Guide (“GIG”). These rules prohibit employees from making any recording at work including conversations between employees, phone calls, images or company meetings unless prior approval is received from management. According to the GIG, the purpose of the rules is to “encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust” and “eliminate a chilling effect on the expression of views that may exist.”

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Yarelyn Mena and Edgar M. Rivera, Esq.

In Three D, LLC (Triple Play), the National Labor Relations Board (NLRB) ruled that Section 7 of the National Labor Relations Act protected employees from termination where they made disloyal social media speech while discussing the terms of their employment.  This decision gives clarity regarding how Facebook “likes” and thread comments are to be treated where the underlying post is protected by Section 7.

In this case, Triple Play Sports Bar and Grille (Triple Play) incorrectly calculated several of its employees state income tax withholdings, resulting in employees owing additional state taxes.  After employees complained, Triple Play’s owners organized a meeting to discuss the issue. Prior to the meeting, a former, though affected, employee, Jamie LaFrance, posted on her personal Facebook account, “[Triple Play] can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!” This posting led to current Triple Play employees discussing a plan to address the tax issues at the meeting.

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Yarelyn Mena and Owen H. Laird, Esq.

As President Barack Obama’s tenure nears an end, he and his administration have been pushing for far-reaching changes in employment laws that may benefit thousands of workers across the country.

At the beginning of his presidency, many workers—both Democrats and Republicans—did not support the President because he took and supported actions that appeared to be against workers’ interests.  For example, the President moved slowly to fill important employment agency positions, such as the National Labor Relations Board (NLRB), which resulted in the delay of Democratic appointees and caused proceedings at the NLRB to come to a halt.  Labor unions also were unhappy that the President failed to side with union members when legislation threatened to allow employers to hold secret ballot elections concerning leadership voting methods.

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Jennifer MelendezEdgar M. Rivera, Esq.Owen H. Laird, Esq. and Yarelyn Mena

Congress passed the National Labor Relations Act of 1935 (NLRA) to guarantee employees the right to form or join labor organizations. As a result, the National Labor Relations Board (NLRB) was created to enforce those rights. The NLRB guarantees democratic union elections, arbitrates deadlock labor-management disputes, and penalizes unfair labor practices. Some examples of unfair practices the NLRB handles are restraints in labor’s self-organizing rights, employer interference with the arrangement of labor unions, discouragement of union membership, and prohibitions against  collective bargaining. NLRA violations have been the center of a protracted dispute between Green Fleet Systems (GFS) and its drivers.

In early 2012, GFS drivers teamed up with the International Brotherhood of Teamsters Union to begin organizing. In early 2013, the Teamsters notified GFS management of their campaign, initiating a strike to, among things, force GFS to allow its drivers to unionize. In August and November 2013, the Teamsters organized two, brief strikes at the GHS’s facility in which approximately forty drivers participated.  At one of the strikes, GFS employee, Ramon Guadamuz, stated “This is the first time as port truck drivers that we are doing this, exercising our rights. We started in May last year, working together, exercising our right to form our union. We have been struggling against illegal tactics by GFS.” Among Guadamuz and the other drivers were Mateo Mares and Amilcar Cardena. During the same time of the strikes, they also filed wage claims alleging, among things, that GFS misclassified them as independent contractors. Consequently, on June 2014, GFS officials retaliated against Mares and Cardena by terminating their employment.

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By Owen H. Laird, Esq.

In a recent decision, the National Labor Relations Board (“NRLB”) expanded its definition of what constitutes a “joint employer.”  This seemingly innocuous change in policy could have significant ramifications for millions of American employees.

The case concerned California company Browning-Ferris Industries (“BFI”), which operates a recycling facility.  BFI employs workers outside of the facility to collect and prepare waste materials (“outside workers”) but uses employees provided by another company, Leadpoint Business Services (“Leadpoint”), to perform tasks inside BFI’s facility, such as sorting and cleaning (“inside workers”).  BFI’s outside workers are represented by a union, which sought to represent the inside workers as well.

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