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Today’s Labor Updates, May 11, 2018

Wells Fargo Owes California Bankers $97 Million for Rest Breaks.

By Edvard Pettersson

Wells Fargo & Co. must pay $97 million to home mortgage consultants and private mortgage bankers in California who didn’t get the breaks they were entitled to under the state’s stringent labor laws.

A federal judge in Los Angeles May 8 agreed with the bankers and consultants that the money they were entitled to should be based not just on their hourly pay but also on their commissions. That bumped the damages for the bank well above the $25 million it had argued it owed the employees.

The lawsuit alleging various California wage and hour labor violations was brought in 2017 by a Wells Fargo mortgage broker in Los Angeles. U.S. District Judge Percy Anderson threw out her claims other than the bank’s failure to provide rest breaks and one on unfair competition.

In January, the judge agreed with the broker that the bank was liable for the labor-law violation. The judgment covers mortgage bankers and consultants in California who worked for Wells Fargo from March 17, 2013, to Aug. 1, 2017.

Representatives of the San Francisco-based bank didn’t immediately respond to a request for comment on the decision.

©2018 Bloomberg L.P. All rights reserved. Used with permission

Contractor Can’t Deny Work to Union Rep Who Complained to Owner

By John McCoy

An electrical contractor from upstate New York improperly refused to hire a union president after he had complained to the company’s owner about one of its general foremen, the National Labor Relations Board ruled.

An individual voicing concerns can be considered protected activity under federal labor law if it’s about employment issues of other union employees.

That was the conclusion of the NLRB as it reversed an administrative law judge who earlier ruled that the comments by John Mosher, president of the Albany Chapter of the National Electrical Contractors Association and International Brotherhood of Electrical Workers Local 236, didn’t qualify as protected activity.

The finding presents a substantial victory for Mosher who, according to the NLRB order, will receive a job offer from Gross Electric Inc. to the position he applied for or to a similar job; compensation for lost wages and benefits; and the removal from company files of any negative remarks regarding “unlawful refusal to hire John Mosher.”

The matter involved a number of parties, but the main players were Mosher; Joe Gross, president of Gross Electric; and Robert Warrings, foreman on the Lafarge project, whose hiring practices arguably set in motion the events that brought about the NLRB ruling.

The board’s decision turned on whether Mosher’s criticism was protected union activity. Under the union’s collective bargaining agreement, grievances that can’t be resolved in 48 hours are automatically referred to a labor-management committee. At one such meeting, the discussion of a union member denied a job on the Lafarge project led to an exchange between Mosher and Gross that included criticism of the company’s hiring practices and Warrings’ management style. Mosher’s critique found its way back to Warrings and other supervisors on the Lafarge project, who thereafter declined to hire Mosher for any work on the project. In addition, Gross at a later meeting between labor and management said he had rejected Mosher because of the union president’s earlier comments.

Administrative Law Judge Ira Sandron ruled in May 2017 that because the union never filed a formal grievance against Warrings for his management style, or against Gross Electric for its hiring practices, the criticisms weren’t related to the bargaining agreement. The comments were therefore outside the scope of worker activities protected under the National Labor Relations Act.

Nearly a year later, a three-member board panel unanimously reversed that decision.

The board found that Mosher’s criticism was in fact protected union activity. The decision recognized that while Mosher wasn’t protected solely as a function of him being at the grievance hearing in his union capacity, the matters he raised did concern Warrings’ treatment of workers and GE’s hiring practices. Both of those issues were directly related to Mosher’s role as union president, making his criticisms union-related and therefore protected.

Mark Couch of Couch Dale Marshall P.C. represented Gross Electric Inc.

The case is Gross Electric, Inc., N.L.R.B., 03-CA-187577, 5/9/18.

NLRB To Consider Rulemaking For Joint Employer Test

By Benjamin I. Han & Ronald Meisburg on May 10, 2018 Posted in NLRB

Recently, the NLRB created significant uncertainty as to the joint employer test under the NLRA when it vacated a December 2017 decision that resurrected the standard that existed prior to 2015.  Such a standard determines the existence of a joint employer relationship by assessing whether one entity has “actually exercised joint control over essential employment terms (rather than merely having ‘reserved’ the right to exercise control)” and the control is “’direct and immediate’ (rather than indirect)” and exercised in a manner that is not “limited and routine.”

On May 9, 2018, the NLRB indicated that it is considering rulemaking to address the joint employer test under the NLRA through a submission contained in the Agency’s filing in the Unified Agenda of Federal Regulatory and Deregulatory Actions.  In a Board press release, Chairman John Ring stated that “[t]he current uncertainty over the  [joint employer] standard . . . undermines employers’ willingness to create jobs” and the “notice-and-comment rulemaking offers the best vehicle to fully consider all views on what the standard ought to be.”  The press release further provides that the NLRB has begun the internal process necessary to consider rulemaking on the joint employer standard and that the inclusion of the proposal in the regulatory agenda does not reflect the participation of Board Members Pearce and McFerran.

Considering that rulemaking is not typically how the Board shapes policy, and that rulemaking requires a long public comment process with the risk of immediate legal challenges, employers should continue to keep apprised of joint employer developments and carefully monitor their relevant business conduct.

Illegality of Union Resignation Rule Upheld by D.C. Circuit Court

10 May 2018 | National Labor Relations BoardUnions and Union Membership | Thomas Payne

The D.C. Circuit recently upheld the National Labor Relations Board’s (NLRB) finding that a union’s resignation rule violated the National Labor Relations Act (NLRA). Under the rule, employees who wanted to resign from the union or opt out of paying dues had to travel to the union hall with a picture ID and a written request. The NLRB held that it was inconvenient for workers to have to travel to the hall to resign and that the rule might discourage workers who wished to avoid a face-to-face encounter with a union representative over their decision.

Unions have freedom to make their own rules, a fact highlighted by Member Mark Gaston Pearce in his dissent. Unions also have an incentive to make burdensome resignation rules because their financial survival rests on their ability to retain dues paying members.

These rules often require employees to jump through hoops to resign or revoke their dues check-off authorization, and employees have been required to strictly comply with these rules. For example, in a case recently touched on in this blog, an employee did not properly revoke their dues check-offs because the revocation was sent via regular mail instead of certified mail.

Despite wide latitude to make their own rules, the D.C. Circuit agreed with the NLRB majority that the particular rule in this case crossed the line. The Board had found the rule to be invalid on its face because, while the union claimed the rule was enacted to prevent fraudulent resignations, it provided no evidence that any fraudulent resignations had occurred.

The decision is a positive development for employees wishing to exercise their right to choose whether to be in a union or not. Particularly in right to work states, like Michigan in this case, employees have the right to resign or stop paying dues, and this case shows than a union’s attempt to impede the exercise of those rights can be unlawful.

Select events and news from the world of organized labor April 2018


Georgetown University and the Georgetown Alliance of Graduate Employees reached a private agreement under which graduate students will be able to vote for or against union representation. The election will be held by the American Arbitration Association and will be outside of the scope of the National Labor Relations Board.

About 65 housekeepers, maintenance workers, front desk attendants, and food staff at the Hyatt Centric Waikiki Beach Hotel in Honolulu voted for representation by Unite Here Local 5 in advance of the hotel’s impending sale.

JetBlue flight attendants are now unionized. The Transport Workers Union represents the workers following a 2,661-1,387 vote.

In a 1,931 to 1,523 vote, research and teaching assistants at Harvard University voted to join the United Auto Workers (UAW). The union previously held an unsuccessful election in November 2016, which resulted in a protracted dispute and proceedings in front of the NLRB. The Board ultimately ruled that the university had kept almost 500 eligible assistants off of the voter rolls.

Following concerns about working conditions and potential outsourcing, more than 300 environmental services department workers at Foxwoods Resort Casino in Connecticut voted to unionize. The New England Joint Board of UNITE HERE represents four other departments at the casino.

25 fast food workers at Burgerville in Portland, Oregon, will be represented by the Burgerville Workers Union, an affiliate of Industrial Workers of the World (IWW).

In a 1,438-to-950 vote, graduate student research assistants at Pennsylvania State University voted against unionization. The Coalition of Graduate Students, a Pennsylvania State Education Association affiliate, sought to represent the students.

Dining hall employees at Tufts University overwhelmingly voted to be represented by UNITE Here Local 26 by a 127-18 margin.

According to data from Bloomberg BNA, the United Steelworkers lost nearly 10,000 members from 2016 to 2017, while the UAW and SEIU reported membership growth, in large part attributed to increased university organizing. In the public sector, resulting from right-to-work efforts across the country, the American Federation of State, County, and Municipal Employees (AFSCME) and smaller American Federation of Government Employees (AFGE) have lost 14,000 and 7,000 members, respectively.

Strikes & Labor Disputes

Approximately 350 full- and part-time non-tenure track faculty at Loyola University Chicago went on strike after the university introduced a management rights clause that would allow the administration the right to unilaterally amend the contract. Service Employees International Union (SEIU) Local 73, which represents the faculty, has been negotiating a contract with the university since it first organized two years ago.

International Association of Machinists and Aerospace Workers (IAM) Local 1285 workers at Gradall Industries Inc. in New Philadelphia, Ohio, ended a month-long strike after ratifying a new agreement. The three-year contract calls for incremental raises of 3 percent, 2.75 percent, and 2.5 percent and provides that the employee contribution percentage for health insurance costs will remain at 23 percent for the duration of the agreement.

Following a dispute over charge nurse patient assignments, and the announcement of plans for a one-day strike, Franklin Medical Center in Greenfield, Massachusetts, locked out nearly 300 nurses for the second time since last June.

Columbia University graduate students went on a six-day strike following the university’s refusal to bargain. The university intends to seek judicial relief with a federal appellate court about the students’ ability to organize. The Graduate Workers of Columbia-United Auto Workers represents the approximately 3,000 students.

Major Contract Settlements & Negotiations

An analysis of data compiled by Bloomberg BNA through April 22 showed an average first-year wage increase of 2.9 percent for 180 recently signed union contracts, compared with 2.6 percent for the same period in 2017. When ratification bonuses and other lump-sum payments were factored in, the average first-year wage increase to date in 2017 was 3.1 percent, compared with the 2.7 percent reported in the year-ago period. Manufacturing-sector union contracts showed an average first-year wage increase of 3.4 percent, compared with 3.3 percent for the same period in 2017. With lump-sum payments were factored in, the average first-year wage increase to date in 2017 was 3.8 percent, compared with the 2.8 percent reported in the year-ago period.

Alaska Airlines flight attendants ratified a three-year contract. The agreement, which will become amendable in December 2021, covers about 5,700 flight attendants, and calls for raises ranging from 4.5 to 26 percent, “work rule improvements,” and increased maternity leave. The flight attendants are represented by the Association of Flight Attendants-CWA.

After two years of negotiations, professors at Loyola University Chicago ratified an agreement providing increased job stability, wage increases, and course cancellation fees. SEIU Local 73, which represents the non-tenure-track faculty, also serves as the bargaining representative for professors at the University of Chicago. Professors at that university recently ratified a contract that provides raises up to 49 percent for certain professors, paid parental leave, increased job stability, and a 15-student limit.

Nurses at Kaiser Permanente facilities in California approved a five-year contract providing 12 percent raises, creating 100 job opportunities, and shifting the hospital’s internal patient classification system to a new one that will catalogue patients’ illnesses and treatment recommendations. The approximately 19,000 nurses are represented by the California Nurses Association/National Nurses United.

The Campaign Workers Guild reached a labor agreement with the campaign for Deb Haaland, a Democratic candidate for the U.S. House of Representatives in New Mexico. The contract, which covers four campaign workers, will run through November 30 or for approximately one month after the June 5 primary if Haaland loses. The contract calls for a 50 percent wage increase for field organizers, health insurance coverage including vision and dental, and a grievance process for claims of sexual harassment and discrimination.

After a three-year labor dispute, 3,000 Amtrak workers in Philadelphia are now covered by a collective bargaining agreement. The contract, which is retroactive to January 2, 2015, and expires December 31, 2021, provides a 4.3 percent pay increase and freezes health-care costs. The International Brotherhood of Teamsters (Teamsters) represents the workers.

Administrative, Court & Other Decisions

The U.S. Court of Appeals for the Eleventh Circuit upheld a NLRB decision holding that the Martha’s Vineyard transit system interfered with an election in violation of the National Labor Relations Act (NLRA or the Act) when it withheld bus drivers’ complete addresses from the union. Transit Connection, Inc. v. NLRB.

A three-member panel of the NLRB ruled that a California hospital policy prohibiting nurses from wearing pins and badge reels with union insignia on them violated federal labor law. Under the NLRA, health care facilities may enact certain rules restricting the wearing of union insignia due to concerns about the potential disruption to patient care. Such rules are presumptively valid in immediate patient care areas, but are presumed invalid in nonpatient care areas absent a showing that the policy is warranted by special circumstances. The Board found the two rules at issue to be presumptively invalid because they were not limited to direct patient care areas and the hospital failed to present “evidence showing that employees in any way disrupted healthcare operations or disturbed patients by wearing badge reels branded with union insignia.” Long Beach Memorial Medical Center, Inc.

The NLRB affirmed an Administrative Law Judge (ALJ) decision holding that a bus company unlawfully fired a bus driver for allegedly making threatening comments to employees while they waited to vote in a union election. The employee, who was a known union supporter and actively assisted with the union’s organizing campaign, was suspended one day after he had encouraged his co-workers to vote for the union in a first election and discharged a week later – two months prior to the second election. The Board concluded that under these circumstances, “it is far from virtually impossible” to determine that these adverse actions could have affected the election results and ordered that they be set aside. Taylor Motors Inc.

The Board held that four employees who were terminated after replying to a group email a former co-worker wrote complaining about wages, the tip policy, and management’s treatment of workers had engaged in concerted protected activity. The Board ruled that the replies were not “egregious” enough to lose protection under the Act, were private, and did not damage the company’s reputation. In so ruling, the Board rejected the restaurant’s objection that the ALJ’s order permitted employees to join together in insubordination. It is unclear how the restaurant will comply with the Board’s ruling, as the restaurant has since closed. Mexican Radio Corp.

The Board ruled that a New Jersey nursing home violated the Act when it excluded employees eligible to vote in an upcoming union election from receiving newly announced improved benefits and lower insurance premiums and co-payments. The nursing home offered a “bald assertion unaccompanied by any proof or offer of proof does not fulfill its obligation to ‘come forward with evidence of legitimate and substantial business justifications’ for its conduct.” The Board ordered that the nursing home grant the workers the benefit improvements retroactively and compensate them for any losses. Woodcrest Health Care Center.

The NLRB found that a New York cocktail bar wrongfully terminated a server for bringing forth complaints about wages, benefits, and working conditions at a staff meeting. The Board stated it was “uncontested” that the employee had engaged in protected activity and the suspicious timing of her firing – two days after she voiced her concerns – was evidence of animus. The bar must offer the employee reinstatement and make her whole for any earnings loss. Parkview Lounge LLC.

The NLRB Region 15 Director dismissed a charge against Nissan alleging that the car company illegally tracked workers’ union sympathies in an internal system called “penetration analysis.” The UAW alleged that the tracking system intimidated workers to vote against representation as the data collection practice suggested to workers that Nissan would use the information to make employment-related decisions. Finding for the company, the Director stated that the union’s allegations were unfounded, as an investigation uncovered no evidence that employees knew about the analysis. Further, the Director ruled that the practice did not violate the NLRA, as it is not unlawful for an employer to record workers’ union sentiments if the information was gathered legally. Nissan North America Inc., Nissan Canton Mississippi Vehicle Assembly Plant.

An ALJ ruled that a security provider for O’Hare International Airport violated the Act by implementing policies requiring workers to wear their badges on company-issued lanyards and prohibiting them from speaking with the press. The ALJ also ordered that the Company reinstate an employee terminated under the press policy, stating that the employee’s activities were protected. As to another terminated employee however, the ALJ ruled that the Company lawfully terminated her after she told media that she was under-trained, unarmed, and alone when at her post, as those statements were outside the protection of the Act. Universal Security Inc. v. Service Employees International Union, Local 1.

An ALJ ordered that Lowe’s Home Centers revise its employee confidentiality policy and finding that a “confidential information” provision violated the NLRA. The policy at issue required employees “to maintain the confidentiality of information entrusted to them” by the company, its suppliers, or customers, and defined confidential information to include “personnel, medical records and salary information.” Lowe’s argued that the policy was aimed at unethical business practices such as insider trading and did not prohibit employees from discussing their salaries. Rejecting this defense, the ALJ held that the Company’s “bare assertions” were insufficient under Boeing, which holds that it is unlawful for an employer to maintain rules that “prohibit or limit NLRA-protected conduct” unless the negative impact is outweighed by business justifications. Lowe’s Home Centers, LLC.

According to NLRB General Counsel Peter Robb, the Board erred when it decided on its own to disqualify Member William Emanuel (R) from participating in Hy-Brand. The Board vacated its decision in Hy-Brand, which overturned the joint employer test established in Browning-Ferris, after the NLRB Inspector General stated that Emanuel should have sat out because his former law firm represents a staffing company in Browning-Ferris. Robb stated that Board should reconsider its decision and give Emanuel the opportunity to recuse himself.

Legislation & Politics

In a 50-48 vote, the Senate confirmed John Ring (R), formerly with Morgan Lewis & Bockius LLP, as the newest member of the NLRB, and President Trump named him Board Chairman. The addition of Ring fully restores the Board and gives Republicans a 3-2 majority.

Peter Robb, NLRB General Counsel, recommended that the Board revise its so-called ambush election rule to extend the time between the filing of a union election petition and a hearing from eight to 12 days and give NLRB regional directors the authority to extend hearing dates an additional three days. Robb states that the proposed modifications would “streamline the process” and advance the goal of “employee choice in selecting their representatives in a timely fashion.”

Following the election of Pennsylvania representative Conor Lamb (D), labor unions hope to use the same strategies employed in support of Lamb to regain seats in the midterm elections in November. According to Rick Bloomingdale, president of the state’s AFL-CIO, unions had previously focused on voter registration and turnout but the priority has shifted to discussing issues that concern union members, as “[t]he best messenger for a union member is another union member.” In addition to making financial contributions, organized labor can support candidates with its human resources. It is expected that unions will continue to use grass-roots tactics such as the distribution of leaflets and organization of rallies. A spokesman for the Democratic Congressional Campaign Committee stated that Democrats will continue to stand side-by-side with labor.

Crime, Corruption & Other Misdeeds

In connection with the ongoing corruption investigation into executives at Fiat Chrysler and the UAW, Keith Mickers, a former administrative assistant to UAW Vice President General Holiefield, plead guilty to one count of conspiracy. According to his plea agreement, Mickers bought personal items with funds intended for union training. Mickers is the fifth person to plead guilty in the embezzlement scheme in which Fiat and UAW employees are alleged to have funneled millions of dollars from the UAW-Chrysler National Training Center in Detroit for personal use.


In a letter to the key leaders for the U.S., Canada, and Mexico in ongoing NAFTA negotiations, the railroad divisions of the Teamsters in the U.S. and Canada and the Railwaymen’s Union in Mexico are demanding contractual language in NAFTA that will ensure that freight trains stop at the border and immediately switch crews. The unions also request that each country invest 2 percent of its annual gross domestic product into building, repairing, and maintaining railway infrastructure.

Three union pension plans – Massillon, Ohio-based Sheet Metal Workers Local Pension Fund, Portland, Ore.-based Plasterers Local 82 Pension Plan, and New York-based Pressman Unions’ Pension Trust Fund – have requested approval from the U.S. Treasury Department to cut benefits under the Multiemployer Pension Reform Act. The Joint Select Committee on Solvency of Multiemployer Pension Plans has until November 30 to present a solution to Congress to save the pensions of more than 1 million workers.

UAW Secretary-Treasurer Gary Casteel announced that he will not be seeking reelection, but will retire when his term ends in June. Casteel’s decision is likely related to the ongoing federal corruption investigation into the UAW which has resulted in six indictments.

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