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Today’s Labor Updates, November 30, 2017

Have Union Strikes Gone By the Wayside?
Barnes & Thornburg LLPDavid Pryzbylski

USA November 28 2017

Bloomberg BNA published an article on Nov. 27 examining the ever declining amount of union-sponsored strikes in America. According to the report, “The number of strikes held in 1990 was 793, and that dropped to 102 in 2015.” Various factors may be affecting this, including the ongoing decline in the number of American private sector union members (only 6.4 percent of all such workers belong to a union now) and the fact many workers these days are not willing to forgo getting a paycheck. The Bloomberg article describes some of the hardships workers currently on strike in New York and New Jersey are facing: “Striking is a bedrock of union power, [a union member currently on strike] said, but it can take a toll on workers. He paints a picture of single mothers struggling to feed their children and union members who are forced to sleep in their cars because of paltry subsistence strike wages.”

While the number of strikes as a whole is on the decline, companies too can face hardships during work stoppages in the event they occur – from struggles to meet customer demands to decreased quality when using replacement workers (at least at first when they are getting trained). Accordingly, companies facing a labor agreement expiration should consider careful contingency planning to help safeguard the company in the event of a strike, as they remain a possibility even if their volume is dwindling.

Chevron employees targeted in layoffs given notice today, will keep jobs until after the holidays


Roughly 100 Chevron employees working for the San Joaquin Valley Business Unit received layoff notices Thursday, but won’t be let go until after the holidays, the company announced.

Those layoffs — which will impact about 300 employees — were first announced in October in reaction to depressed crude oil prices that dropped by half in 2014 and have still not recovered. The decision was made after a months-long review of the company’s West Coast operations.

In Bakersfield, the layoffs affect 53 employees who will be eliminated from Chevron’s office at 1546 China Grade Loop, according to a letter Chevron spokeswoman Carla Musser sent to Assistant County Administrative Officer Teresa Hitchcock Thursday.

The earliest layoffs will occur Jan. 29, 2018, the letter states.

The remaining 200 employees will be phased out between now and the end of 2018, Chevron spokeswoman Abby Auffant said in an email.

“Eligible employees may receive severance pay, educational assistance and career transition services,” Auffant wrote.

She added that Chevron has “recently” placed about 100 employees in positions at other company locations, however it’s unclear whether Chevron planned to lay-off those employees.

When the workforce reduction was first announced, Chevron officials said they were encouraging employees to apply for opportunities throughout Chevron.

Employees in San Joaquin Valley Business Unit take part in “upstream” energy exploration and production. The regional division includes employees of all disciplines, ranging from engineers to business support staff.

That division posted losses totaling more than $6 billion for two straight years after crude oil prices plummeted in 2014, according to the company’s annual report filed in February.

Harold Pierce covers education and health for The Californian. He can be reached at 661-395-7404. Follow him on Twitter @RoldyPierce

Refinery Workers’ Pre-Shift Wait Time Not Compensable, Fifth Circuit Holds
Jackson Lewis PCJustin R. Barnes

USA November 27 2017

Concluding that the unstructured time spent by the plaintiffs between arriving at the oil refinery and the beginning of their shifts was not “integral and indispensable” to their duties erecting scaffolds at the refinery, the Fifth Circuit held that this time was not compensable under the FLSA. Bridges v. Empire Scaffold, LLC, 2017 U.S. App. LEXIS 22520 (5th Cir. Nov. 9, 2017).

As part of a major expansion of the Port Arthur oil refinery, Empire Scaffold was hired to erect scaffolding at the refinery for a period of about 18 months. To control traffic and maintain security at the refinery, each morning Empire’s employees were required to ride buses from a remote parking lot to inside the refinery grounds and were dropped off a few hundred yards from the location of their scaffolding duties. Based on the run times of the buses, employees would arrive on the grounds anywhere from 15 to 90 minutes before their shift began at 7:00 a.m. Other than signing in upon arrival, the employees were free to do whatever they chose between arrival at the site and the beginning of the shift. In fact, the plaintiffs testified that they typically would spend this time smoking, socializing with co-workers or simply doing nothing. The plaintiffs undisputedly were paid for all of their time once the shift commenced but filed suit claiming, among other things, that their pre-shift wait time likewise was compensable. The district court granted summary judgment to Empire on this claim and the employees appealed.

Affirming the trial court’s determination, the Fifth Circuit noted that, since enactment of the Portal to Portal Act of 1947, two primary groups of activities are considered exempt from pay claims under the FLSA: (1) walking, riding or traveling to and from the actual place of performance of an employee’s principal activity or activities; and (2) activities which are “preliminary to or postliminary to” such principal activities. “Principal activities,” added the Court of Appeals, includes those that are an “integral and indispensable part” of those activities (quoting Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 516-17 (2014). In this case, the principal activities of the employees were erecting and dismantling scaffolding and these activities, as well as those activities “integral and indispensable” to these tasks. The Court held the he time spent waiting was not compensable because it was neither “tied to nor necessary to the erection and dismantling of scaffolding – the work that the [plaintiffs] were employed to perform.”

Summary of NLRB Decisions for Week of November 20 – 24, 2017

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 the Executive Secretary at 202‑273‑1940.

Summarized Board Decisions

HMR3-7141 LLC d/b/a Carl’s Jr.  (31-CA-192343, et al.; 365 NLRB No. 148)  Los Angeles, CA, November 21, 2017.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the consolidated complaint and compliance specification.  The Board found that the Respondent violated Section 8(a)(1) by prohibiting employees from speaking with union representatives, interrogating employees about their protected concerted activities, prohibiting employees from speaking with other coworkers about their terms and conditions of employment, threatening employees with job loss for engaging in protected concerted activities, soliciting grievances from employees, and instructing employees to speak with the Respondent’s owner concerning complaints about their terms and conditions of employment rather than speaking with others.  The Board also found that the Respondent violated Section 8(a)(3) by reducing the scheduled hours of an employee because he engaged in union activity, and to discourage employees from engaging in these activities.

Charges filed by Los Angeles Workers Organizing Committee.  Members McFerran, Kaplan, and Emanuel participated.


Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Schuylkill Medical Center South Jackson Street d/b/a Lehigh Valley Hospital – Schuylkill South Jackson Street  (04-UC-200537 and 04-UC-200541)  Pottstown, PA, November 24, 2017.  The Board denied the Employer’s Request to Stay the decision in which the Regional Director found the employees at issue constitute an accretion to the existing unit.  Petitioner – SEIU Healthcare Pennsylvania.  Members Pearce, McFerran, and Kaplan participated.

C Cases

Kauai Veterans Express Co.  (20-CA-193339)  Lihue, HI, November 21, 2017.  The Board denied the Respondent’s Motion for Partial Summary Judgment, finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to partial summary judgment as a matter of law.  Charge filed by Operating Engineers Local Union No. 3.  Members McFerran, Kaplan, and Emanuel participated.


Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.


Administrative Law Judge Decisions

Colorado Symphony Association  (27-CA-195026; JD(SF)-49-17)  Denver, CO.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on November 20, 2017.  Charge filed by Denver Musicians Association, Local 20-623, American Federation of Musicians.

National Indemnity Company  (14-CA-182175; JD-90-17)  Omaha, NE.  Administrative Law Judge Elizabeth M. Tafe issued her decision on November 20, 2017.  Charge filed by an individual.

Communication Workers of America, AFL-CIO, Local 1101  (02-CB-176719; JD(NY)-18-17New York, NY.  Administrative Law Judge Mindy E. Landow issued her decision on November 21, 2017.  Charge filed by an individual.

CBRE, Inc.  (21-CA-182368; JD(SF)-50-17)  Los Angeles, CA.  Administrative Law Judge John T. Giannopoulos issued his decision on November 24, 2017.  Charge filed by an individual.

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