Today’s Labor Updates:
Nigeria oil union strike not affecting exports-Shell
Summary of NLRB Decisions for Week of September 8 – 12, 2014
Canada: U.S. Company Wants to Discard 75% of Workers Following Strike
Recent NLRB decisions condone workplace profanity and insubordination
Nigeria oil union strike not affecting exports-Shell
Thu Sep 18, 2014 2:27pm GMT
LAGOS (Reuters) – A strike by Nigeria’s oil unions is not having any immediate impact on crude oil exports from Africa’s top exporter, despite moving into a third day, spokesmen for leading operator Shell and Nigeria LNG said. Nigerian oil unions say the strike could affect exports if no agreement is reached with the government.
The spokesman for NLNG, the gas exporter which is run jointly by Shell and the government, said he did not foresee any impact from the strike, which began on Tuesday. The dispute is over pensions and a lack of crude supplied to refineries. Also indicating that the strike has yet to have any impact, the Qua Iboe grade of crude oil for November export came to market on Thursday, on schedule.
Oil traded slightly lower below $99 a barrel, pressured by ample supply and concern over the weakening of demand growth in major consumer nations, as well as a rise in the U.S. dollar. The employees on strike work for the state-owned oil firm the Nigeria National Petroleum Corporation (NNPC), not the international oil majors, which operate the oil blocks and export terminals.
Summary of NLRB Decisions for Week of September 8 – 12, 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
Labriola Baking Company (13-RD-089891; 361 NLRB No. 41) Alsip, IL, September 8, 2014.
Decision and Direction of Second Election. A majority of the full Board, reversing the hearing officer, found merit to the Union’s Objection 1 to the decertification election.
Objection 1 involved a statement made one week before the election by the Chief Operating Officer (“COO”) to employees at a captive audience speech, and the translation of that statement to the predominately Spanish-speaking audience. According to the COO’s scripted remarks, he said, “If you chose Union Representation, we believe the Union will push you toward a strike. Should this occurs [sic], we will exercise our legal right to hire replacement workers for the drivers who strike.” The hearing officer found that the translated version ended with the statement that the Employer would replace the workers with “legal workers” or a “legal workforce.” The hearing officer held that the evidence was insufficient to sustain Objection 1 because the translated version did not threaten that the Employer would report employees to immigration authorities if they supported the Union.
The majority held that the hearing officer erred by analyzing Objection 1 only in terms of whether the COO’s translated statement threatened to report employees to immigration authorities. The Board majority found that it was not precluded from considering whether the statement amounted to a more generalized threat. The majority then found that the translation was objectionable because the import of the reference in the translation to “legal workers” was that the Employer would use immigration, i.e., “legal” status, to take action against employees in the event of the strike that the Employer claimed the Union all but inevitably would cause. The majority further stated that the objectionable statement was highly coercive and widely disseminated at a captive audience meeting held shortly before a close election. Thus, the majority concluded that the threat interfered with employees’ freedom of choice, and warranted setting aside the election and holding a second election.
Members Miscimarra and Johnson, dissenting, would find that even under the majority’s interpretation of the language of Objection 1, there was no support for finding objectionable conduct based on the record or any reasonable interpretation of the Act.
Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and Schiffer participated.
***
Don Chavas, LLC d/b/a Tortillas Don Chavas (28-CA-063550 and 067394; 361 NLRB No. 10) Tucson, AZ, September 10, 2014. Correction to August 8, 2014 decision.
***
United Food & Commercial Workers International Union, Local 700 (Kroger Limited Partnership) (25-CB-008896; 361 NLRB No. 39) Crawfordsville, IN, September 10, 2014.
The full Board revisited the appropriate timing of a union’s notification to employees (subject to a union-security clause) of the specific amount of reduced fees and dues they would pay if they became nonmembers and objected to paying for union activities not germane to its duties as their collective-bargaining representative. A Board majority, consisting of Chairman Pearce and Members Hirozawa and Schiffer, observed that established Board precedent holds that a union is not required to calculate and provide such detailed information until an employee elects nonmember status and then takes the additional step of objecting to paying for nonrepresentational expenses. The majority held that the Union properly relied on that precedent when it advised the Charging Party of the specific amount of the reduced dues and fees applicable to nonmember objectors only after she resigned her membership and requested objector status. The General Counsel and the Charging Party conceded that the Union complied with extant Board law, but argued that the Board should overrule that precedent. They urged the Board to hold that the duty of fair representation requires every union to provide each one of its represented employees with specific reduced payment information when the union first informs the employee of her obligations to pay dues under a union-security clause, even in the absence of an employee request for information about or objection to the union’s regular fees and dues. The majority held, however, that the Board’s established rule is not only permissible, but also that it strikes the most reasonable balance between the competing interests at stake. Accordingly, the majority adhered to precedent. Members Miscimarra and Johnson dissented. In their view, the Board’s established rule is inconsistent with cases decided by the Federal courts, including the Supreme Court, and, in any event, the balance of interests favors pre-choice notice.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Sutter Central Valley hospital d/b/a Memorial Medical Center (32-RC-128843) Modesto, CA, September 8, 2014. No exceptions having been filed to the Regional Director’s disposition of objections to an election held June 26 and 27, 2014, the Board remanded the proceeding to the Regional Director for further appropriate action consistent with his report. Petitioner – California Nurses Association/National Nurses United (CAN/NNU).
Watkins Security Agency of D.C. and Covenant Security Services, Ltd. (05-RC-104853) Washington, D.C., September 8, 2014. No exceptions having been filed to the Regional Director’s disposition of objections to an election held July 22, 2014, the Board certified that a majority of the valid ballots were cast for International Union, Security, Police & Fire Professionals of America (SPFPA) and that it is the exclusive collective-bargaining representative of the employees in the appropriate unit. Petitioner – International Union, Security, Police & Fire Professionals of America (SPFPA).
Jack Cooper Transport Company, Inc. (14-RC-132667) Wentzille, MO, September 8, 2014. Order denying 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 dispatch supervisors, yard supervisors, loading supervisor, safety supervisor, payroll supervisor, and clerical. Member Johnson would grant review on the issues of whether the loading/yard supervisor and safety supervisor possess the authority to discipline under Sec. 2(11) of the Act. Petitioner – Automobile Transport Chauffeurs, Demonstrators, Helpers, Teamsters Local 604. Members Hirozawa, Johnson, and Schiffer participated.
Tri-County Refuse Services, Inc. d/b/a Republic Services of Pinconning (07-RC-122650) Pinconning, MI, September 9, 2014. The Board adopted the Regional Director’s findings and recommendations to overrule the Employer’s objection to an election held April 3, 2014, and certified the Petitioner – International Brotherhood of Teamsters, Local 406, as the representative of the employees in the appropriate unit. The objection concerned the Regional Director’s denial of the Employer’s emergency appeal to stay or reschedule the election to permit an eligible employee away on military leave to participate in the election. Members Hirozawa, Johnson, and Schiffer participated.
C Cases
Lansing-Louisiana, LLC (15-CA-117585) Delhi, LA, September 8, 2014. No exceptions having been filed to the July 25, 2014 decision of Administrative Law Judge Robert A. Ringler finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted his findings and dismissed the complaint. Charge filed by an individual.
The Conklin Group LLC, d/b/a Massage Envy (15-CA-117947 and 119538) Panama City, FL, September 9, 2014. No exceptions having been filed to the July 28, 2014 decision of Administrative Law Judge Michael A. Rosas finding that Respondent had engaged in certain unfair labor practices, the Board adopted his Decision and ordered The Conklin Group LLC, d/b/a Massage Envy to take the action set forth in his Order. Charges filed by individuals.
Oregon School Employees Association Chapter 204, American Federation of Teachers, Local 6732 (First Student, Inc.) (19-CB-106045) Gresham, OR, September 9, 2014. No exceptions having been filed to the July 28, 2014 decision of Administrative Law Judge Eleanor Laws finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted her findings and dismissed the complaint. Charge filed by an individual.
Waterworks Plumbing & Backflow, Inc.; Comfortworks Heating & Cooling, Inc., single employer; DGR of WNY, Inc. d/b/a The Plumber and 72 Degrees, alter ego/single employer (02-CA-027665 and 064979) Tonawanda, NY, September 12, 2014. Following a May 14, 2012 Board Decision and Order and September 25, 2012 enforcement by the United States Court of Appeals for the Second Circuit, the Region issued a compliance specification and notice of hearing on July 31, 2013. Upon the basis of the Stipulation, the Board ordered the Respondent within 14 day of this order to pay the initial installment of the amount owed, and for the following 28 months to pay monthly installments. Charge filed by an individual and United Association, Plumbers & Steamfitters Local Union No. 22.
International Longshore and Warehouse Union, AFL-CIO (19-CC-082533, et al. and 19-CC-100903) Portland, OR, September 12, 2014. The Board denied Respondents’ motion to consolidate related cases as it neither effectuates the purpose of the Act nor is it necessary to avoid unnecessary costs and delays.
AC Specialists, Inc. (12-CA-076395) Tampa, FL, September 12, 2014. On September 11, 2014 having granted the joint motion to withdraw exceptions and cross-exceptions to Administrative Law Judge George Carson II October 12, 2014 decision, the Board has now adopted his findings and conclusions and ordered Respondent to take the action set forth in the Order. Charge filed by United Association of Plumbers, Pipefitters & HVAC Refrigeration Mechanics, Local Union 123, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO.
Mi Pueblo Foods (32-CA-064836) Northern California, September 12, 2014. The Board denied the Charging Party’s motion for reconsideration requesting additional remedies. The Board rejected the Charging Party’s argument that delay, employee turnover in its retail stores, and the Respondent’s bankruptcy warranted a broad order and extended posting period because the Board had previously rejected a request for such remedies in the underlying case and the Charging Party cited no circumstance that would justify a different result at this stage of the case. In addition, the Board rejected the Charging Party’s request that the Board mail the decision and notice to employees, because the Charging Party failed to proffer any evidence showing that this remedy is warranted or that it could not have been requested in the earlier proceedings. Charges filed by United Food and Commercial Workers Union, Local 5. Administrative Law Judge Mary Miller Cracraft issued her decision on June 21, 2012 and the Board adopted the judge’s decision on May 28, 2014. 360 NLRB No. 121. Chairman Pearce, Members Hirozawa, and Johnson participated.
Novelis Corporation (03-CA-121293, et al.; 03-RC-120447) Oswego, NY, September 12, 2014. Order denying the General Counsel’s request for special permission to appeal a ruling of the ALJ granting a motion to intervene. The Board found that the judge’s limited grant of the motion to intervene was not an abuse of discretion. Charges filed by United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers, International Union, AFL-CIO. Members Miscimarra, Hirozawa, and Johnson participated
Multiband EC, Inc. (25-CA-018828) New Hope, MN, September 12, 2014. The Board granted the joint motion of Respondent and the General Counsel to waive a hearing and decision by an administrative law judge and transfer the proceeding to the Board for decision. The parties have 21 days to file initial briefs. Charges filed by Chauffeurs, Teamsters, Warehousemen and Helpers, Local 135.
United States Postal Service (10-CA-120885) Roswell, GA, September 12, 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. Charges filed by National Association of Letter Carriers Branch 4862. American Postal Workers Union, Boston Metro Area Local 100. Members Miscimarra, Hirozawa, and Johnson participated.
TGF Management Group Holdco, Inc. (22-CA-123003) Carteret, NJ, September 12, 2014. Order denying Respondent’s motion for summary judgment. Charge filed by International Brotherhood of Teamsters, Local 469. Members Miscimarra, Hirozawa, and Johnson participated.
***
Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
***
Administrative Law Judge Decisions
Tri-State Wholesale Building Supplies, Inc. (09-CA-125950; JD-51-14) Cincinnati, OH. Errata #2 to the September 2, 2014 decision of Administrative Law Judge Arthur J. Amchan. Charge filed by an individual.
Muse School CA (31-CA-108671; JD(SF)-43-14) Calabasas, CA. Administrative Law Judge Lisa D. Thompson issued his decision on September 8, 2014. Charge filed by an individual.
Edro Corporation d/b/a Dynawash (01-CA-116211 and 116225; JD(NY)-37-14) East Berlin, CT. Administrative Law Judge Raymond P. Green issued his decision on September 9, 2014. Charges filed by an individual and International Association of Machinists & Aerospace Workers, AFL-CIO.
United States Postal Service (05-CA-122166; JD-53-14) Washington, DC. Administrative Law Judge Arthur J. Amchan issued his decision on September 10, 2014. Charges filed by American Postal Workers Union, AFL-CIO.
Business Resource Security Services, USA, Inc. (BRSS) (05-CA-119728; JD-54-14) Washington, DC. Administrative Law Judge Eric M. Fine issued his decision on September 11, 2014. Charge filed by an individual.
Canada: U.S. Company Wants to Discard 75% of Workers Following Strike
TORONTO, Sept. 18, 2014 /CNW/ – American multinational Crown Holdings wants to replace three-quarters of its unionized Toronto workers even if they settle a year-long labour dispute.
Crown Holdings’ actions have prompted the Toronto employees’ union, the United Steelworkers (USW) to file a complaint of bad faith bargaining and unfair labour practices with the Ontario Labour Relations Board.
One of the world’s largest manufacturers of food and beverage cans, Crown provoked the strike at its Toronto factory on Sept. 6, 2013, by demanding massive concessions despite doubling its profits and giving the plant its top award in North America for productivity, safety and efficiency.
“In my entire career, I have never seen a company make such a demand – to dump workers even if they agree to end the strike,” said Marty Warren, USW Director for Ontario and Atlantic Canada.
“If this brutal behaviour is upheld, it sets a dangerous precedent. It threatens to undermine the right to strike in Ontario and embolden employers to engage in permanent replacement of strikers, as is widely practised in the United States,” Warren said.
The USW’s complaint alleges Crown purposefully engaged in surface bargaining to prevent an agreement and the proposal to replace most employees makes it impossible for workers to agree to it.
“We believe Crown is out to bust the union and is not interested in negotiating an end to this dispute,” said USW International Vice-President Fred Redmond who has been handling the negotiations.
In March, workers rejected the company’s demands by a vote of 117 to 1 after Crown offered few assurances that workers could return to their jobs. In its most recent proposal, Crown said it wants to cut the wages of most workers by as much as one-third.
“Why any company would want to get rid of its top employees is beyond me,” said Redmond.
The USW is escalating its campaign to end the strike and is calling the attention of the public and the Ontario government to Crown’s destructive actions.
“We need the government of Ontario to step forward to prevent this union-busting precedent,” Warren added.
SOURCE United Steelworkers (USW)
Recent NLRB decisions condone workplace profanity and insubordination
Loren Lee Forrest Jr. and Frederick D. Braid
September 15 2014
Employers Need to Know What Is Considered Protected Behavior for Employees Before Disciplinary Action
HIGHLIGHTS:
- The NLRB’s recent decisions have given broad protections to employees who are discussing or complaining – even in a vulgar manner – about the terms and conditions of their employment to their co-workers or managers. This follows a disturbing trend in the Board’s decisions that attack sensible, long-standing management standards of conduct.
- Before taking normal disciplinary action in circumstances where employees may be engaged in protected activity, employers will need to carefully consider the employees’ rights.
- Employers will either have to reword general statements with more precision as to the specific activity or activities targeted or remove general normative statements capable of misinterpretation in their employee handbooks.
An administrative law judge (ALJ) of the National Labor Relations Board (the “Board”) recently found that a Hooters employee who cursed at her co-worker during an employee bikini contest was wrongfully terminated by her employer because of her protected activity. The Board also found Hooters’ employee handbook rules prohibiting behavior, such as insubordination to managers and disrespect to guests, were unlawful. While ALJ decisions are subject to review by the Board, if appealed, this decision follows a disturbing trend in Board decisions that attack sensible, long-standing management standards of conduct.
The Board’s recent decisions have given broad protections to employees who are discussing or complaining – even in a vulgar manner – about the terms and conditions of their employment to their co-workers or managers. Clearly, employees are free to discuss, and even complain about, their terms and conditions of employment; this is a core right protected by federal law, whether or not the employees are represented by a union. However, the Board is now frequently condoning incredibly objectionable behavior that is combined with an alleged exercise of protected activity. The Board’s recent decisions require careful consideration by employers before taking normal disciplinary action in such circumstances where employees may be simultaneously engaged in protected activity.
Insubordination, Profanity and Disrespect
In the Hooters case, two female employees participating in a mandatory bikini contest complained to managers and other employees that the contest was rigged because another participant, a marketing coordinator, had selected her best friend and her boyfriend to act as judges. Both workers also made complaints about what they perceived were inappropriate comments about other Hooters waitresses made at a bartenders’ meeting.
When the marketing coordinator was awarded the $300 first prize, both complaining employees accused her of cheating. One loudly remarked, “You’re a f***ing b**ch,” and the other continued to yell obscenities at the marketing coordinator in the Hooters parking lot. Both employees were terminated for cursing at their co-worker in front of guests, and one was also terminated for her negative social media posts and tweets.
An unfair labor practice charge alleged that Hooters violated the National Labor Relations Act (the “Act”) by disciplining and terminating an employee for protected concerted activity when she complained to Hooters management about the bikini competition and a manager’s comment that some of the waitresses were fat. The ALJ rejected Hooters’ stated reason for dismissal, which was for, in part, cursing at her co-worker, and found instead that the termination was for engaging in protected concerted activity about the allegedly rigged bikini contest.
Similarly, in a case sent back to the Board from the U.S. Court of Appeals for the Ninth Circuit, Plaza Auto Center, Inc., the Board confirmed its original finding that an employer violated the Act when it fired an employee who cursed out his employer in a meeting about his pay. During the meeting with his employer, the employee called his manager a “f***ing crook” and an “a**hole” and also told the owner of the company that he was “stupid” and that nobody liked him. In addition, the angry employee shoved his chair aside and told his employer that if the company fired him, they would regret it.
Atlantic Steel Co. Decision: Four Factors Test
The board held that it considers the four factors in its Atlantic Steel Co. decision when deciding whether an employee’s behavior is so egregious as to lose the protection of the Act:
- the place of the discussion
- the subject matter of the discussion
- the nature of the employee’s outburst
- whether the outburst was, in any way, provoked by the employer’s unfair labor practices
The Board’s first decision in this case ruled that the employee’s conduct was not so egregious to lose the protections of the Act, citing Atlantic Steel. However, the Ninth Circuit disagreed, finding that the Board erred in failing to give due consideration to the nature-of-the-outburst factor. On remand, the Board found that the employee’s behavior was neither “belligerent” nor “menacing,” but agreed with the Ninth Circuit’s finding that the nature-of-the-outburst factor weighed against protection. Still, the Board found the other three Atlantic Steel factors controlling, finding the employee to be protected because his outburst occurred in a closed-door meeting in the owner’s office in which the owner was criticizing the employee’s protected activity of discussing his working conditions with fellow employees, and that the employee’s conduct was provoked by the employer’s unfair labor practice of telling the employee that he could quit if he did not like working for the employer.
Starbucks Coffee Company Decision: Employee Discharge Violated the NLRA
In yet another case, Starbucks Coffee Company, the Board again reinstated an employee who engaged in profanity laced tirades against his manager. The first tirade occurred when the employee felt that his manager was slow to assist him during a busy day at Starbucks. Instead of thanking his manager for the requested assistance, which the manager provided, the employee said, “about damn time,” “this is bulls**t” and “do everything your damn self.” The employee was suspended for this behavior and given a final warning. Six months later, during a heated argument with another Starbuck’s manager in the middle of a union organizing campaign, the same employee, in front of several customers, told this Starbucks manager, “you can go f**k yourself, if you want to f**k me up, go ahead, I’m here.” Apparently, the manager also used profanity during the confrontation.
While the Board first held that the employee’s discharge violated the Act, the Court of Appeals for the Second Circuit ordered the Board to reconsider its holding in light of the fact that the employee’s outburst occurred in front of customers and to reconsider Atlantic Steel’s four factor test. The Board again found that the employee discharge violated the Act because the employee was a known union supporter, and the Board believed that his discharge was partially based on his strong support for the union during the campaign and his strong union affiliations. Notably, the Board found that other Starbucks employees, including the employee’s manager, had been treated very leniently by Starbucks for similar transgressions and that the employee’s manager was not terminated for his use of profanity.
Hooters’ Employee Handbook Violated Employees’ Rights
Returning to the Hooters case, the ALJ also found that the employee handbook contained unlawful rules. The ALJ found that Hooters’ employee handbook rules prohibiting the following violated the Act:
- Discussing tips with fellow employees.
- Insubordination toward managers and lack of respect toward fellow employees or guests declared “overly broad” because it prohibited all disrespectful conduct and did not define “insubordination,” “lack of respect,” or cooperation – all of which the ALJ found to be “subjective” terms that could have a chilling effect on employees in the exercise of protected concerted activity.
- Rule prohibiting insubordination toward managers and lack of respect toward fellow employees or guests was also unlawful because it did not have a sufficient limiting clause, such as limiting the rule to behavior or conduct that does not support the “company’s goals or objectives,” and, therefore, could chill protected activity.
- Disclosure of company information because employees would reasonably believe it prohibited them from discussing wages and other terms and conditions of employment with nonemployees, such as union representatives.
- “Any other action or activity which Hooters reasonably believes represents a threat to the smooth operation, goodwill or profitability of its business” because it could be viewed as interfering with protected concerted activity.
- “Off-duty conduct” policy deemed unlawful as employees could reasonably believe it prohibits protected concerted activity.
- Discussing “business or legal affairs” outside the company because its broad general proscription could be viewed by employees as prohibiting engaging in protected concerted activity.
- Hooters’ social networking policy and its policy requiring employees to be “respectful to the company and other employees” were also deemed to be violations for the same reason.
Hooters was ordered to reinstate Hanson to her former job with back pay and benefits. The ALJ also ordered Hooters to compensate Hanson for any adverse tax consequences from her expected lump sum back pay award and to file a report with the Social Security Administration allocating the back pay awards to the appropriate calendar quarters for Hanson. Hooters was also ordered to rescind all of the above handbook policies.
Handbook Provisions May Not Curtail Protected Concerted Activities
With respect to the potential problems caused by the Board’s suspicious view of present day generally acceptable statements of uncontroversial behavioral norms, there does not appear to be an easy antidote. General disclaimers asserting noninterference with protected rights have typically been found not to save ambiguous statements that could possibly be read as infringing upon protected activity. Therefore, employers will either have to reword general statements with more precision regarding the specific activity or activities targeted, or remove general normative statements capable of misinterpretation of the right for employees to engage in protected concerted activity.v