Today’s Labor Updates:
French Executives Won’t Face Jail Over Labor Rules
Ebola and potential labor relations issues
Kazakhstan, Chevron and the Oil Workers’ Plight
Summary of NLRB Decisions for Week of October 14 – 17, 2014
French Executives Won’t Face Jail Over Labor Rules
By Mark Deen – Oct 23, 2014
Executives representing companies in France will no longer face imprisonment for breaches of labor rules, Economy Minister Emmanuel Macron said.
The change is being made in response to concerns expressed by foreign investors and will come as part of an overhaul of French law intended to free up business and bolster growth. In future, breaches of France’s labor code will be punished with fines, similar to practices in other countries.
“We don’t want the strengths of France to be diminished by symbolic obstacles,” Macron said in a written response to Bloomberg questions on the matter.
President Francois Hollande is looking for ways to foster growth after three years of economic stagnation. With a deficit that is rising for the first time in half a decade, his government is also looking for ways to show France’s European partners that it is putting in place business-friendly reforms.
Macron’s economic law, to be presented formally in December, includes measures from easing restrictions on Sunday shopping to speeding settlement of disputes between companies and their employees. The 36-year-old minister has repeated pleaded that the changes be made in France’s own interest.
“These measures that I’ve announced are only the beginning, we’ll go much further,” Macron said on RTL radio Oct. 19. “This is what we need to do for our economy, to return confidence to the players in our economy and to give commitments to our European partners.”
The sought-after change in sentiment has yet to appear. French manufacturing and services shrank more than analysts’ forecasts this month, according to data published by Markit Economics today. The composite index for both industries fell to 48, the lowest in eight months, from 48.4, Markit said.
To contact the reporter on this story: Mark Deen in Paris at markdeen@bloomberg.net
Ebola and potential labor relations issues
Scott A Faust
USA October 19 2014
The Ebola panic presently sweeping the U.S. raises a host of potential issues for employers. We recently provided guidance to help employers ensure employee safety while also complying with legal obligations under the Americans with Disabilities Act and similar laws. In addition, the Occupational Health & Safety Administration (OSHA) recently released a comprehensive summary of requirements, recommendations and guidelines for employers and workers. The escalating concern over Ebola also raises potential labor relations issues. Many of the workplaces with the potential for employees to come into contact with infected persons or material – health care providers, cleaning services, waste disposal firms, ambulance and other transportation services, to name a few – are unionized, and unions have begun to seek greater protections for their members. Non-union employers may be affected as well, as at least one group of non-union employees has engaged in a strike to protest inadequate safety measures.
An important step all employers can take, whether unionized or not, is to share information disseminated by the Centers for Disease Control (CDC) and other public health agencies to educate their employees. Indeed, a recent Washington Post article highlighted the information gap that is fueling public fears. Sharing accurate, up to date information should help address employee concerns and avoid potential workplace disruptions based on unfounded fears.
Beyond the dissemination of information, in workplaces where employees may have some potential to come into contact with persons or material infected with the Ebola virus, employers must comply with applicable workplace health and safety laws and regulations, including making sure that effective protocols are in place, that protective equipment and clothing are available, and that employees receive appropriate training. Not surprisingly, healthcare workers – nurses in particular – have been at the forefront in demanding increased protection and training.
National Nurses United (NNU) has been especially outspoken. In addition to its criticism of the Texas Health Presbyterian Hospital, where two nurses caring for an Ebola patient became infected themselves, it has launched a multi-pronged campaign to achieve increased training and protection for nurses who may be called upon to treat Ebola patients. As part of their campaign, they have released an Ebola Toolkit that includes a guide to state and federal whistleblower laws and a comprehensive set of collective bargaining demands. Their demands include detailed proposals for Ebola-specific protocols, training and protective equipment, creation of a joint labor-management infectious disease task force, medical services for exposed or potentially exposed employees, and full paid time off for nurses exposed to an infectious disease. Healthcare employers should expect to be presented with comparable demands from the unions representing their employees, if they have not done so already.
Other unions are engaging in similar activities. As the largest union in the U.S. representing healthcare workers, cleaners, and other service employees who could potentially come into contact with a person or material infected by Ebola, the SEIU has been particularly active. Its public efforts to date have been focused largely on educating union members and training them to use protective equipment.
In addition to union advocacy and education, there has been at least one work stoppage arising from employees’ Ebola concerns. At LaGuardia airport, a group of more than 200 non-union aircraft cabin cleaners recently engaged in a one-day strike to protest what they claimed were inadequate protections from exposure to Ebola. In that case, the SEIU is attempting to organize the striking cleaners, but regardless of whether non-union employees are seeking union representation, they have the right under the National Labor Relations Act to engage in concerted activity for their mutual aid and protection, such as a strike to protest working conditions related to Ebola risks.
Education and communication are critical to addressing employees’ Ebola-related concerns and avoiding workplace disruptions based on unfounded fears. In unionized workplaces, union representatives should be included in the education and communication process. Of course, all employers must comply with applicable workplace safety and health laws and regulations. Depending upon the circumstances, unionized employers may have bargaining obligations with respect to additional measures they seek to implement in response to Ebola concerns. They may also be faced with bargaining demands by employees seeking greater protection. Finally, it is important for non-union employers to understand that their employees also have the right to act in concert for their mutual aid or protection.
Kazakhstan, Chevron and the Oil Workers’ Plight
A lack of culpability between company and state fuels workers’ rights suppression.
By Kirill Kovalenko October 22, 2014
Tony Blair, recently awarded “philanthropist of the year,” has also been in the news for providing services of a different kind to Kazakhstan’s President Nursultan Nazarbayev. A letter has surfaced in which the former U.K. prime minster offered the president advice on how to tackle the “Zhanaozen issue,” concerning the death of striking oil workers on Kazakhstan’s Independence Day in 2011. This event was another chapter in the history of resource industry development and its bitter relationship with social and political development in the post-Soviet state. Blair’s involvement is a typical example of a continued refusal to acknowledge that there are severe faults in the labor system TengizChevroil represents.
In 1993, shortly after the fall of the Soviet Union, Kazakhstan signed a deal with Chevron over the right to develop the sizable Tengiz oil field. There had never been a serious exploitation of Kazakh oil resources under the Soviet Union, and the newly independent government was eager to reap the potential economic benefits, eschewing the resource nationalism which characterized Russia’s approach. TengizChevroil was born and came to be seen as a model of East-West partnership in the new republics.
Despite the tremendous wealth of the oil field, the enterprise has been fundamentally at odds with the well-being of workers and local communities. There is a certain duality to TengizChevroil’s handling of labor disputes. While it has applied pressure to dissolve the oil workers union, leaving the 24,000 employees effectively without an organization to represent their interests, it has also distanced itself from responsibility regarding corruption and labor disputes, claiming that such matters were the concern of subcontractors. This is problematic when one considers that Kazakhstan, as a state, is essentially a creation of Soviet imperialism and since independence has pursued a strategy of suppression and economic growth to maintain national unity.
This can all be framed within the context of the “industrial colony,” a phrase used to describe enclaves that develop within resource-rich but potentially unstable countries. The nature of these colonies is one that cannot contribute to local development and will inevitably cause social tension, and is more complex than the conventional understanding of rent-seeking within petrostates:
“These enclaves, intended to divide the foreign oil companies from potentially unstable situations, actually promote the very social tensions and insurgencies against which they were initially erected.”
The history of oil workers in Kazakhstan seeking representation and improved conditions has been dismal. Since the early 2000s, following every round of public discontent the state has increased the force and efficiency with which it has struck back. Chevron, despite its supposed commitment to contributing to local development, ultimately did nothing. The industrial colony structure dis-incentivizes company action because responsibility for atrocities is diffused between the state and the network of subcontractors. There is little the workers can do against a system in which there is so little clarity over who is responsible for them and their interests. However, this does not stop them from trying.
On December 16, 2011, the simmering agitation boiled over once more. Possibly inspired by the Occupy Movement, a tent city was established in Zhanaozen and was subsequently brutally dispersed by police using live ammunition. A media blackout was enforced, and although the official death-toll stands at 16, sparse on-the-ground coverage places it closer to 70, with over 500 wounded. On top of this were mass arrests, brutal interrogations, and the torture of demonstrators. There is an interesting contrast, as Peter Salmon describes, between the congratulations the president of Kazakhstan was receiving from world leaders on his country’s independence day saluting his undemocratic 20-year reign, and the petitions from worker’s groups around the world which were largely ignored. Likewise, a group representing the U.K.’s largest unions officially condemned Tony Blair while he was consulting Nazarbayev, telling the president to keep a brave face and soldier on for the sake of progress and development.
There is no easy solution to the woes of Kazakhstan’s oil workers, just like there is no simple answer to the issue of corporate responsibility in general. However, as the Kazakhstan case shows, when the state is brutal and non-transparent, when worker organization is non-existent, the company abrogates responsibility and powerful figures in government and business respond with silence, the situation will only get worse.
Kirill Kovalenko is a Masters of International Relations graduate from the University of Melbourne interning with the Royal United Services Institute of Victoria.
Summary of NLRB Decisions for Week of October 14 – 17, 2014
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov (link sends e-mail) or 202‑273‑1991.
Summarized Board Decisions
No published Board Decisions issued.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
FedEx Freight, Inc. (04-RC-134614) Croydon, Pennsylvania, October 14, 2014.
The Board denied the Employer’s Request for Review as not raising substantial issues regarding whether the Regional Director erred in directing an election in a unit consisting of the Employer’s City and Road Drivers employed at the Employer’s East Philadelphia Terminal. The Employer contended that, because the petitioned-for drivers perform a substantial amount of dockwork and hostling work, the appropriate unit must include dockworkers. Member Johnson agreed that the petitioned-for unit limited to drivers is appropriate, but he would rely on the Board’s traditional community of interest analysis and found it unnecessary to express a view on the correctness of Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011)(subsequent history omitted). Petitioner— International Brotherhood of Teamsters Local 107. Chairman Pearce, and Members Johnson and Schiffer participated.
Berkeley Bowl Produce, Inc. (32-RC-103811) Berkeley, CA, October 15, 2014. Order denying the Petitioner’s appeal of the Regional Director’s Lufkin language (Lufkin Rule Co., 147 NLRB 341 (1964)) in the Stipulation to Set Aside Election (and in his Revised Stipulation), and his decision to hold the rerun election on the Employer’s premises. The Board noted that while the Regional Director’s treatment of the available facts and arguments regarding the election location and his application of the Board’s decision in 2 Sisters Food Group, 357 NLRB No. 168 (2011), was markedly brief, the Petitioner had not demonstrated that the Regional Director abused his discretion by deciding to hold the rerun election on the Employer’s premises. Petitioner—United Food and Commercial Workers, Local 5. Chairman Pearce, and Members Johnson and Schiffer participated.
Action Environmental Systems, LLC, Action Environmental Solutions, LLC and Action Carting Environmental Service, Inc. (02-RC-126999) Bronx and Brooklyn, NY, October 16, 2014. The Board adopted the hearing officer’s recommendation to overrule an objection by an incumbent union alleging that a rival union paid employees for their votes in an election resulting in the rival’s prevailing in the election. The hearing officer found no evidence that any payments had been made, and discredited testimony that a representative of the rival union had stated he was making such payments. Accordingly, the Board certified the Petitioner, Waste Material Recycling & General Industrial Laborers Local 108, LIUNA, as the exclusive collective-bargaining representative of the employees in the appropriate unit. Intervenor Union—Local 660, United Workers of America. Chairman Pearce, and Members Johnson and Schiffer participated.
C Cases
Calumet River Fleeting, Inc. (13-CA-127122) Chicago, IL, October 14, 2014. Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying the actions the Employer must take to comply with the National Labor Relations Act. Charge filed by International Longshoremen’s Association, Local 2070, GLDC-ACD, AFL-CIO. Chairman Pearce, and Members Johnson and Schiffer participated.
Fresh & Easy Neighborhood Market (31-CA-077074 and 080734) El Segundo, CA, October 15, 2014. A Board panel rejected the Charging Party Union’s Motion for Reconsideration of the Board’s decision in Fresh and Easy Neighborhood Market, 361 NLRB No. 8 (2014), finding that the Union had not identified any material error or shown “extraordinary circumstances” warranting reconsideration of the Board’s decision. The Union had requested that the Board reconsider its request for a broad order in light of the Board’s decision in Fresh and Easy Neighborhood Market, Inc., 361 NLRB No. 12 (2014), which involved the same Respondent. The Union argued that the unlawful confidentiality rule in that case was another incident of continuing violations by the Respondent. Member Johnson adhered to his dissent in the underlying decision, but agreed that the Union had not presented “extraordinary circumstances” warranting reconsideration of that decision. Charges filed by United Food and Commercial Workers International Union. Chairman Pearce, and Members Johnson and Schiffer participated.
Eastern Concrete Cutting Corp. (02-CA-128529, et al.) Bronx, NY, October 15, 2014. The Board denied the Employer’s petition to revoke a subpoena duces tecum. The Board found that the subpoena seeks information relevant to the matters under investigation and describes with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoena. Charges filed by individuals. Members Hirozawa, Johnson and Schiffer participated.
Covenant Care California, LLC and Covenant Care La Jolla, LLC (21-CA-090894) Aliso Viego, CA, October 15, 2014. The Board denied the Charging Party and the Respondents’ joint motion to remand the case to the Regional Director for the purpose of having the Regional Director approve the withdrawal of the charge in light of the non-Board settlement agreement reached by the Charging Party and the Respondents. In opposing the motion, Counsel for the General Counsel asserted that the Regional Director has reviewed the non-Board settlement and has determined that deferral to the settlement is not warranted. The Board found that, without reaching the merits of the underlying case, because the Regional Director would not approve a request to withdraw the charge, a remand of this matter would cause unnecessary delay and would not effectuate the purposes of the Act. Charge filed by an individual. Members Hirozawa, Johnson, and Schiffer participated.
Paragon Systems, Inc. (20-CA-128537) Sacramento, CA, October 16, 2014. Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying the actions the Employer must take to comply with the National Labor Relations Act. Charge filed by United Government Security Officers of America, Local 223. Members Hirozawa, Johnson, and Schiffer participated.
United States Postal Service (07-CA-099915) Algonac, Marine City, Mt. Clemens, and New Baltimore, Michigan, October 17, 2014. Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying the actions the Employer must take to comply with the National Labor Relations Act. Charge filed by Branch 654, National Association of Letter Carriers (NALC), AFL-CIO. Chairman Pearce, and Members Johnson and Schiffer participated.
AirServ Corp. (18-CA-118908 and 124492) Minneapolis, MN, October 17, 2014. The Board denied the Employer’s petition to revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. The Board evaluated the subpoena as modified by the Region’s agreement that documents protected by the Transportation Security Administration or otherwise protected by federal laws need not be produced. The Board also limited paragraphs 13 through 15 of the subpoena to the requested documents that are in effect currently and those that were in effect at any time within the 6 months preceding the Employer’s commencement of operations at MSP airport in October 2013. In addition, Member Johnson noted that the Employer’s reply brief raises some nonfrivolous concerns regarding the Board’s practice with regard to granting reasonable extensions of time for responding to discovery requests. In situations, such as that present here, where a party has represented to the Board that extenuating circumstances are interfering with its ability to compile information by a certain deadline, Member Johnson would urge the General Counsel to take a more lenient approach in granting reasonable extensions. Also, although Member Johnson found that the General Counsel had satisfied relevancy concerns over the issue here, given the extant precedent on NMB deferral, see United Parcel Service, 318 NLRB 778 (1995), in the event that the General Counsel seeks future information from the Employer in furtherance of some new deferral test, Member Johnson would also urge that the General Counsel clearly spell out to the Employer what that test is, so the Employer can adjudge whether or not a petition to revoke on relevance grounds is warranted. Charges filed by Service Employees International Union, Local 26. Chairman Pearce, and Members Johnson and Schiffer participated.
Little Rock Charity Care Center, Inc. d/b/a Lakeshore Healthcare-Woodward Campus (07-CA-127221) Detroit, MI, October 17, 2014. Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying actions the Employer must take to comply with the National Labor Relations Act. Charge filed by SEIU Healthcare Michigan. Members Hirozawa, Johnson, and Schiffer participated.
Cesco Plant, Cerco LLC (09-CA-132207) Crooksville, OH, October 17, 2014. The Board vacated its prior Order Transferring and Notice to Show Cause, and granted the General Counsel’s motion to withdraw his previously-filed motion for default judgment. Charge filed by Glass Molders Pottery Plastics & Allied Workers Local 207A.
***
Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
***
Administrative Law Judge Decisions
Angelica Textile Services, Inc. (12-CA-118367; JD(ATL)-28-14) Holly Hill, FL. Administrative Law Judge William Nelson Cates issued his decision on October 15, 2014. Charge filed by International Brotherhood of Teamsters, Local Union No. 385.
United States Postal Service (21-CA-120046(P); JD(NY)-42-14) Anaheim, CA. Administrative Law Judge Joel P. Biblowitz issued his decision on October 15, 2014. Charge filed by an individual.
Bristol Farms (21-CA-103030; JD(SF)-51-14) Los Angeles, CA. Administrative Law Judge Lisa Thompson issued her decision on October 17, 2014. Charge filed by an individual.
AWG Ambassador, LLC (28-CA-118801; JD(SF)-52-14) Las Vegas, NV. Administrative Law Judge Eleanor Laws issued her decision on October 17, 2014. Charge filed by an individual.