National Labor Relations Board

NLRB excuses worker’s use of F-Bomb

If workers are continually provoked and goaded by managers, they may at some point respond emotionally. Some may cry. Some may swear. Where is the line between an excusable outburst and misconduct that is serious enough to justify termination?

This issue was recently addressed by the National Labor Relations Board (NLRB) in a case involving a car salesperson, Nick Aguirre, who was fired after an outburst directed at his boss, Tony Plaza, the owner of Plaza Car Center of Yuma, Arizona. In a split decision, the Board found that Plaza had violated the National Labor Relations Act (NLRA) and ordered Plaza to reinstate Aguirre with back pay. Section 8 of the act protects employees who are acting to improve their working conditions. Continue reading “NLRB excuses worker’s use of F-Bomb”

National Chamber Lobbies Federal Cts

When people think of lobbyists, they usually think of groups that work behind the scenes to influence legislators in the U.S. Congress.

The U.S. Chamber of Commerce, however, has had tremendous success “lobbying” federal courts through “friend of the court” briefs filed in lawsuits on behalf of its conservative corporate clients. For example, the Chamber routinely opposes any perceived expansion of worker rights and it usually prevails.

The Chamber, and its President Thomas Donahue, who earns a salary of $4.95 million a year, spend far more money to influence decision-makers than any other lobbying group.

The Center for Responsive Politics at Open Secrets.org estimated last year that the Chamber spent $1 billion from 1998 to 2013, which is three times the amount spent by the nearest runner up, General Electric, which spent about $294 million over the same period. No union, labor, consumer or environmental group was listed in the top 20 U.S. lobbying groups.

At present, the Chamber is a critical player in a lawsuit opposing President Barack Obama’s 2012 recess appointments to the National Labor Relations Board (NLRB) and the Consumer Finance Protection Bureau (CFPB). Obama was forced to resort to recess appointments during Congress’s Christmas vacation in 2012 after encountering a wall of Republican resistance to his proposed appointments.

To challenge the recess appointments, the Chamber joined in a lawsuit filed by Noel Canning Corp., a small bottling company in Yakima, Washington. Noel Canning was the subject of an adverse decision issued by the NLRB in an unfair labor practices dispute. The Chamber argued that the NLRB lacked the authority to issue the ruling because it was not comprised of constitutionally appointed board members.

The Court of Appeals for the D.C. Circuit ruled in the Chamber’s favor last year, holding that Obama’s appointments violated the Recess Appointments Clause of the U.S. Constitution. The appeals court said recess appointments may be made only during the recess that occurs between each session of Congress and not during breaks that occur while Congress is still in session. The Court also said recess appointments can only be made to fill positions that become vacant during the recess.

The NLRB filed an appeal with the U.S. Supreme Court, which has a strong pro-business majority. The Court heard the case in January and could, in its ruling, throw the NLRB into chaos and upset more than a thousand NLRB decisions issued during the past two years.

The Chamber also wants to “save” the CFPB by replacing its director with a bipartisan five-member commission and bring the CFPB under Congressional control. This would castrate the new agency, which was created after massive fraud on Wall Street led to a world-wide economic meltdown from which the world (including the U.S.) has yet to recover.

Other Cases

On another front, the Chamber is opposing a proposed rule by the Occupational Safety and Health Administration to publicize companies’ health and safety records.

Last year, the Chamber successfully opposed the so-called “poster rule” proposed by the NLRB to require employers to pose notices in the workplace informing workers of their right to work together to improve their working conditions.

The Chamber does not limit itself to “lobbying” the courts and the legislature. A Google search shows the Chamber in February inserted itself into a special election in Florida. According to Politico, the Chamber funded a TV commercial attacking Democratic Congressional candidate Alex Sink for supporting the Affordable Care Act which, the commercial states, will mean that 300,000 Floridians will “lose their current coverage because of Obamacare.”

The Chamber describes itself as “the world’s largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations.”

OSHA Rule Would Reveal Rogue Employers

The truth of the adage that knowledge is power is evident in backlash against the Occupational Safety and Health Administration’s proposed rule to publicize companies’ health and safety records.

OSHA wants to eventually create a public web site containing workplace health and safety information. Businesses already have to report this information to OSHA and this information already supposedly is public. In reality, however, the information is not accessible.

At present, an employee has to submit a formal information request to a government bureaucrat or an often reluctant and suspicious employer. Moreover, this needlessly arduous and time consuming process makes it is virtually impossible to compare workplaces and industries. (e.g., Is this mining company a callous rogue or simply a representative of a dangerous industry?)

Released in November 2013, the proposed rule requires electronic submission of workplace illness and injury data information. The agency will provide a secure website for data collection and insures that any data publicized will not include employee-identifying information. In a press release, OSHA argues that timely, establishment-specific injury and illness data “will help OSHA target its compliance assistance and enforcement resources more effectively by identifying workplaces where workers are at greater risk, and enable employers to compare their injury rates with others in the same industry.”

As usual, the opposition is led by the U.S. Chamber of Commerce, fresh from its victory in defeating a proposed rule by the National Labor Relations Board to require employers to post notices informing workers of their right to work together to improve their working conditions under the National Labor Relations Act (NLRA).

At a public meeting called by OSHA earlier this month, Baruch Fellner, a partner of Gibson, Dunn & Crutcher LLP, which represents the national chamber, argued that OSHA is not authorized by statute to create a new, publicly searchable database of workplace injury and illness records.”This is completely beyond OSHA’s mandate,” decried Fellner. (This was the chamber’s winning argument to defeat the NLRA posting rule.)

Opponents contend that making employers’ injury and illness data publicly available could unjustly harm an employer’s reputation because the data would not be put into context or include information about the employer workplace safety programs and improvements. They also expressed concern for the potential misuse of this data by business competitors or (gasp!) trial attorneys.

It is certainly understandable that businesses with inordinately high numbers of workplace casualties would want to keep this information under wraps. However, that same argument could be made by convicted felons and sex offenders. Which begs the question – why is the U.S. Chamber of Commerce choosing to align itself with rogue businesses that create or tolerate conditions that result in needless workplace injuries and deaths.

Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, says the reporting rule would permit employers, employees, the government and researchers to have better access to data that will encourage earlier abatement of hazards and result in improved programs to reduce workplace hazards and prevent injuries, illnesses and fatalities. He notes that the proposal does not add any new requirement to keep records; it only modifies an employer’s obligation to transmit these records to OSHA.

It seems obvious that true public disclosure of health and safety data could change the equation for employers that now consider employee injuries and deaths to be cheaper than spending money on best practices and workplace safety.

If this is not OSHA’s mandate, what is?

The public has until Feb. 6, 2014, to submit written comments on OSHA’s proposed rule.

Under the proposed rule, initially establishments with more than 250 employees are required to electronically submit the records on a quarterly basis to OSHA. Establishments with 20 or more employees, in certain industries with high injury and illness rates, are required to submit electronically only their summary of work-related injuries and illnesses to OSHA once a year.

Social Media Puts Wal-Mart on the Defensive

Social media appears to be playing a significant role in an epic battle between Wal-Mart Stores, the world’s largest retailer, and an American union that presumably would like to represent Wal-Mart workers, The United Food and Commercial Workers .

The union has channeled worker dissatisfaction with Wal-Mart’s wages, benefits and working conditions into an innovative social media campaign featuring web sites funded by the union called OURWalmart (Organization United for Respect at Walmart) and Making Change at Walmart. These sites include a fundraising arm for “striking” Wal-Mart associates, news about alleged poor labor practices by Wal-Mart, and slick videos of associates complaining about their treatment by Wal-Mart. On Tuesday, OURWalmart referred associates to information allegedly leaked by OccupyWallStreet.org on secret Wal-Mart power points that tell managers how to fend off unionization efforts.

OURWalmart has garnered national publicity for labor protests at Wal-Mart stores across the nation and appears to be making some gains, possibly because of Wal-Mart’s seeming overreaction to the protests of associates and the reality of Wal-Mart’s stingy pay and benefits.

The National Labor Relations Board (NLRB) Office of the General Counsel recently issued a consolidated complaint against Wal-Mart alleging that the company violated the rights of its employees as a result of activities surrounding employee protests in 14 states. The complaint involves more than 60 employees, 19 of whom were discharged allegedly as a result of their participation in activities protected by the National Labor Relations Act (NLRA). The NLRA guarantees the right of private sector employees to act together to try to improve their wages and working conditions with or without a union.

Wal-Mart contends that most of the associates were fired “for violating Walmart’s attendance policies that apply to all associates. Some of these individuals violated the attendance policy dozens of times in the last six months. In other cases, they were absent from work for more than eight days without letting anyone know when they would be returning to work. The facts present a very different story from what OUR Walmart/UFCW asserts.”

Wal-Mart has responded to the UCFW campaign with its own web site called, OURWalmartFactcheck.com , which states its purpose is “to examine claims and provide facts about the Organization United for Respect at Walmart (OUR Walmart) – a group funded by the United Food and Commercial Workers International Union. This site is sponsored and operated by Wal-Mart Stores, Inc.”

Fact checker

Ironically, Walmart’s OURFactcheck.com on Tuesday appeared to need a fact checker.

The web site incorrectly quotes a story in The Daily News Telegram of Worchester, Massachusetts, as reporting that the average the average Walmart associate earns $12.83 per hour, and less than 1/2 of 1% of associates earn minimum wage. Walmart provides a link to the The Telegram story, which quotes Kory Lundberg, a Walmart spokesman, as stating: “In Massachusetts … the average wage of a full-time hourly associate at Walmart is $13.86. He also noted that the majority of Walmart employees are full time. Mr. Lundberg said less than 1/2 of one percent of all Walmart associates earn minimum. Walmart’s pay is comparable to other retailers; it has to be to stay competitive, he said.”

There’s obviously a difference between the average pay of a Walmart associate and the average wage in Massachusetts of a full-time hourly Walmart associate.

NLRB Complaint

According to the NLRB, the consolidated complaint against Wal-Mart actually was authorized in November of 2013, but withheld until last week while the Office of the General Counsel engaged in failed settlement discussions with Wal-Mart. Additional charges are under investigation.

The NLRB states that Wal-Mart unlawfully threatened employees with reprisal if they engaged in strikes and protests during two national television news broadcasts and in statements to employees at Walmart stores in California and Texas. At stores in California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington, the NLRB says that Wal-Mart unlawfully threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests. At stores in California, Florida, Missouri and Texas, the NLRB says Wal-Mart unlawfully threatened, surveilled, disciplined, and/or terminated employees in anticipation of or in response to employees’ other protected concerted activities.

Note: OurWalmart includes a “legal disclaimer” stating that the UCFW is not trying to organize Wal-Mart workers but merely to “help Wal-Mart employees as individuals or groups” in their dealings with Wal-Mart.

NLRB Abandons Poster Rule

Given the hostile climate toward employee rights in federal courts, it is not surprising that the National Labor Relations Board (NLRB) has abandoned its efforts to require employers to post a notification informing workers of their rights to join together to improve their working conditions.

The NLRB announced this week that it will not file an appeal in the pro-business U.S. Supreme Court to overturn two federal court decisions rejecting the so-called poster rule.

The NLRB wanted private-sector employers to hang a poster in a conspicuous place (i.e. lunch room) informing workers of their rights under the 75-year-old National Labor Relations Act (NLRA).

Many American workers today, especially recent immigrants, are ignorant of their rights under the NLRA. The poster rule is also important for non-union workers who lack a designated bargaining representative. The NLRA can come into play in non-union workplaces when, for example, an employer fires a non-union worker for discussing a safety concern with a co-worker.

It is ironic that most private-sector employers already are required by federal law to post documents in the workplace informing workers of their rights under Fair Labor Standards Act, the Family and Medical Leave Act, equal employment opportunity laws, etc.

The poster rule elicited immediate opposition from a broad coalition of national business groups after it was approved by the NLRB in 2011.

Twenty-one Republican members of the U.S. House of Representatives joined with the U.S. Chamber of Commerce to oppose the poster rule, including John Kline (R-Minn.) chairman of the House Committee on Education and the Workforce.

The U.S. Court of Appeals for the Fourth Circuit in South Carolina ruled last summer that the NLRB lacks the authority to require employers to post notices either electronically or physically in a conspicuous place. The court said “ we find no indication in the plain language of the Act that Congress intended to grant the Board the authority to promulgate such a requirement.”

The U.S. Court of Appeals for the D.C. Circuit earlier ruled that the poster rule violate employers’ free speech rights.

Here are the rights that the U.S. Chamber of Commerce has worked so diligently to insure that American workers do not know they possess under the NLRA:

Workers can organize a union to negotiate with employers concerning wages, hours, and other terms and conditions of employment.

Workers can form, join or assist a union.

Workers can bargain collectively through representatives of employees’ own choosing for a contract setting wages, benefits, hours, and other working conditions.

Workers can discuss terms and conditions of employment or union organizing with co-workers or a union.

Workers can engage in protected concerted activities with one or more co-workers to improve wages, benefits and other working conditions.

Workers can choose not to do any of these activities, including joining or remaining a member of a union.