Articles Posted in Union organizing

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Edgar M. Rivera, Esq.

Arbitration between employees and employers favors employers’ interests at employees’ expense. Ostensibly, arbitration merely requires that any employment claims be litigated in a private forum; in reality, it discourages employees from suing their employers because, as compared to litigation, employees are less likely to win and generally recover lower damages. As such, many employers require their employees to sign arbitration agreements.

Indeed, a report from the Economic Policy Institute has found that, since the early 2000s, the number of workers subject to mandatory arbitration has more than doubled, covering 60 million U.S. private-sector non-union workers. These agreements prevent 55 percent of U.S. workers from accessing the courts to protect their employment rights.  This figure increases to 65.1 percent among large companies—those with 1,000 or more employees.  Of the employers who require mandatory arbitration, 30.1 percent also include class action waivers in their procedures—meaning that about 25 million employees also lose the right to address widespread employment rights violations through class action.  For large companies, the number of employees subject to class action waivers increases to 41.1 percent. In total, 23.1 percent of private-sector non-union employees no longer have the right to bring or participate in a class action against their employers.

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Lev Craig

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.”

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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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Jennifer Melendez, Edgar 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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In a February 3, 2015 Decision and Order, a three-member National Labor Relations Board (NLRB) panel reversed the prior decision of an administrative law judge, finding that the two respondents in Lederach Electric, Inc. constituted a single employer. The two entities, Lederach Electric, Inc. (LEI) and Morris Road Partners, LLC (MRP), thus share liability for $122,229.06 in backpay awarded to four complainants who were allegedly laid off, in violation of the National Labor Relations Act, in retaliation for union membership and activities.

In determining whether nominally separate entities constitute a single employer, the Board considers four factors: (1) interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership or financial control. Not all factors need be present, and no single factor is controlling. In the present case, the Administrative Law Judge who originally decided the case found that factors (2) and (4) weighed in favor of single-employer status, while (1) and (3) did not, and concluded that the two entities were not a single employer. Concerning (2), James and Judy Lederach both participated in managing the operations of the two entities, and concerning (4), they jointly owned 100% of both LEI’s and MRP’s shares. Nevertheless, he concluded, the two entities were not a single employer for purposes of this legal action, because of the other two factors. Concerning factor (1), he concluded that the two entities were not sufficiently interrelated because they “did not share a common business purpose”–LEI was an electrical contractor, while MRP was a management company, and concerning (3) he concluded that the two entities did not share centralized control of labor relations, since MRP never had employees.

The NLRB panel brushed aside these two arguments. First, they found “no merit in the judge’s finding that the absence of a common business purpose is fatal to finding an interrelationship of operations and single-employer status. The Board has found that, notwithstanding the different business purposes between two nominally separate entities, ‘a single employer relationship can be found, particularly where there is evidence of a lack of an arm’s-length relationship between the entities.” In this case, there was clearly not an arm’s-length relationship: the two entities shared a Post Office box, used one another’s equipment. Further, the joint owners of the two entities coordinated their respective financial operations; for example, MRP “forgave” more than $62,000 in rent payments from LEI in order to enable the latter to pay its expenses and employees. Since there was no arm’s-length relationship, the two entities’ different business purposes did not imply that there were not interrelated in the relevant sense.

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It is common knowledge that the sustained political activism of Martin Luther King, Jr. over the decade leading up to the passage of the Civil Rights Act of 1964 (CRA) were crucial to its passage . Perhaps somewhat less well-known is that the Act created the Equal Employment Opportunity Commission (EEOC), or that about 12,000 to 20,000 federal civil cases are filed each year alleging employment discrimination in violation of Title VII of the CRA.

These facts alone reveal why King left an indelible mark on our nation’s labor laws. With the passage of the CRA, it became illegal for employers to discriminate against employees on the basis of race, color, religion, sex, or (later) age.

Most people also do not know that Dr. King was extremely active in defense of a different law, the National Labor Relations Act (NLRA), which established the right of all workers to form unions and bargain collectively with their employers regarding their working conditions and wages. King spent much of his time joining, speaking to, and leading labor actions; in fact, this is what he was doing in Memphis when he was killed.

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In 2011 Washington University professor Michael Honey published a collection of Martin Luther King, Jr.’s speeches to labor unions and workers’ rights coalitions, entitled All Labor Has Dignity. King’s words in these speeches leave no room for doubt about his commitment to organized labor. His message to union organizers and activists was visionary and poetic, but not naive: “fighters for justice,” he would tell them, “will be met with fierce resistance from the economic and political power structure and they must remain firm. They will be called reds, troublemakers, and accused of interfering with property rights…” He knew these revolutionary changes were risky, and that they could only be accomplished through collective action, because the power structure would use all its resources against both of them.

King believed that the struggle for civil rights and racial equality was deeply intertwined with the simultaneous struggle for labor rights. “Our needs are identical with labor’s needs,” he said, “…decent wages, fair working conditions, livable housing, old-age security, health and welfare measures, conditions in which families can grow, have education for their children, and respect in the community.” In fact, King sometimes went further and suggested that civil rights victories would be hollow if not accompanied by economic actions designed to make good-paying jobs available to people. He understood that unionization was the most direct and effective way to generate those kinds of jobs. He also understood that the labor and anti-racism movements each had strong philosophical and pragmatic reasons to embrace each other’s causes as part of their own.

The union movement has been beaten down in recent decades, needless to say. But a society in which 1% of the people own more than 40% of the nation’s wealth, and most people see equality of opportunity as a utopian dream, seems destined for instability. And organized labor has indeed shown new signs of life recently. In fact it is quite easy to imagine Dr. King giving a speech today to the Service Employees International Union, to a packed house of fast food workers. Those in attendance would probably be mostly minorities and women–a fact that wouldn’t be lost on him–but perhaps he could have convinced another generation of us that it still makes sense to believe in, and fight for, the larger cause of economic justice. It is easy to imagine him savagely criticizing the forces that promote inequality and create a class of people who work hard but cannot afford necessities, arguing for progressive social programs.

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Each year, this country celebrates Martin Luther King, Jr.’s Birthday on or just after his birthday, January 15. Some iconic words from King’s “I have a Dream” speech are rehearsed in our churches, theaters, over the airwaves, and (if we are lucky) in our families’ living rooms and at our dinner tables. It is our official annual moment to reflect on some of the worst and most shameful events in our nation’s history, but also some of its greatest people and their contribution to the improvement of humanity.

We should keep in mind that the core of Dr. King’s message was a profound criticism of this country: we had not lived up to our founding creed, which is that our shared goal is to care about, improve, and maximize the well-being of every person because we have a right to expect this from ourselves and each other. That these ideals cannot be reconciled with slavery or Jim Crow laws now seems almost too obvious to be worth saying. While most of us try to take this moment to reflect, we can nevertheless also detect a certain disturbing self-satisfaction in America’s celebration of this holiday each year, as if the tension in the plot of our collective story was resolved and there was a happy ending.

We can be sure that, if he were still alive, Dr. King would be talking about all the work that remains to be done in our nation’s historic fight against the forces of oppression on the one side, and resignation on the other. Slavery in its original form has ended. Jim Crow laws now take the much weaker, or at least less visible, form of de facto forms of discrimination that systematically grant unearned privileges to some and undeserved disadvantages to others.

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Recently there has been a well-publicized wave of union organizing activity at fast food restaurants across the country. Owners of service industry franchises like fast-food restaurants have expressed their predictable opposition to these organization efforts by their employees, and the National Labor Relations Board (NLRB) has been increasingly involved in trying to protect workers’ rights under the National Labor Relations Act (“the Act”) to engage in union organizing activity.

As part of its intervention to protect these workers’ rights, the Board announced on July 29, 2014 that it intended to treat the franchisor McDonald’s, USA, LLC and its franchisees as joint employers–that is, as jointly liable for violations of the Act at the many McDonald’s franchises nationwide. This was an important decision, since the corporation now stands to lose large sums of money from lawsuits that have been filed across the country by employees at hundreds of its local franchises.

The Board wasted no time in putting this new policy into action, announcing on December 19, 2014 that it would file 13 Consolidated Complaints comprising 78 separate charges alleging many different alleged violations of the Act. Litigation is scheduled to commence on March 30, 2015, when the Board will hold its first wave of hearings on these cases in three regional locations.

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On December 11, 2014, the National Labor Relations Board (NLRB) issued its 3-2 decision in the case Purple Communications, Inc. and Communications Workers of America, AFL-CIO, reversing its reasoning in the 2007 Register Guard case. “We believe,” the majority explains, “that the Register Guard analysis was clearly incorrect. The consequences of that error are too serious to permit it to stand. By focusing too much on employers’ property rights and too little on the importance of email as a means of workplace communication, the Board failed to adequately protect employees’ rights under the (National Labor Relations) Act and abdicated its responsibility ‘to adapt the Act to the changing patterns of industrial life.'”

Respondent Purple Communications provides sign language interpretation services to deaf or hard-of-hearing individuals. The company’s employees are interpreters who work at 16 call centers nationwide, where they use the company’s communications and electronic equipment. Under company policy, employees are strictly prohibited from using any of the company’s systems “…to engage in activities on behalf of organizations or persons with no professional or business affiliation with the Company” or to send “uninvited email of a personal nature.” Noting the long-standing doctrine that the workplace is the “natural gathering place” where employees would normally exchange information about working conditions and discuss options for acting collectively to improve those conditions, the Board found that employees’ ability to communicate at work via email is one sector of this “natural gathering place.” The kernel of the Board’s reasoning is that an employer’s right to regulate the use of its property for communication among employees, whether the property in question is a corkboard or a computer, is outweighed by the rights of employees under Section 7 of the NLRA to communicate and organize.

An employer’s property rights do not imply that it can prohibit gathering or communication by employees on its land. There is substantial precedent for the limitation of an employer’s ability to control its property; as the Second Circuit explained in its Republic Aviation decision, “inconvenience or even some dislocation of property rights, may be necessary in order to safeguard the right to collective bargaining.” According to the Board in Purple Communications, employees’ use of email is more analogous to their use of their employers’ land and building space. To prohibit the use of either land or email systems by employees “to organize for mutual aid without employer interference” would be to deny them the use of the “natural gathering place” for exercising their rights under the NLRA, and would thus violate their legal rights.

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