NLRB excuses worker’s use of F-Bomb

NLRBIf 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. [Read more…]

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 earnclaim_source 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.

 

NLRB Poster Rule Down for the Count

 Employers  may have won the battle to keep American workers ignorant of rights they have held for 70 years ago under the National Labor Relations Act (NLRA).

The U.S. Court of Appeals for the Fourth Circuit in South Carolina recently ruled  the National Labor Relations Board lacks the authority to require employers to post notices either electronically or  physically “in a conspicuous place” informing workers of their rights under the NLRA.   

This holding follows an earlier ruling by the U.S. Court of Appeals for the D.C. Circuit that the poster rule violated employers free speech rights.

The NLRB contends that American workers are largely ignorant of their rights under the NLRA, adding that the poster rule is particularly important for non-union workers who lack a designated bargaining representative. The NLRA can come into play for non-union employees when, for example, an employer fires a non-union worker for discussing a safety concern or other concerns about working conditions. 

 The poster informed employees that they have a  right to form and join unions, collectively bargain with representation, discuss the terms of their employment and take action to improve working conditions.  

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

 Interestingly, 21 Republican members of the U.S. House of Representatives joined with the chamber to oppose the poster rule, including John Kline (R-Minn.), chairman of the House Committee on Education and the Workforce

 The  South Carolina appeals court ruled the NLRB is not charged with informing employees of their rights under the NLRA and “ 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.”

 Earlier, the  U.S. Court of Appeals for the D.C. Circuit  held  the notice-posting rule violated Section 8(c) of the NLRA, which prohibits the board from finding employer speech that is not coercive to be an unfair labor practice.   

In addition to Kline, the following members of the U.S. Congress House of Representatives signed on to an amicus brief opposing the NLRB  rule requiring that employers post a notice  advising workers of their rights: 

  • JOE WILSON, R-SC.;
  •  RODNEY ALEXANDER, R- LA;
  • STEVE PEARCE, R-NM;
  •  GREGG HARPER, R-MS;
  •  PHIL ROE, R-TN;
  • GLENN THOMPSON, R-PA;
  • TIM WALBERG, R-MI;
  • LOU BARLETTA, R-PA;
  •  LARRY BUCSHON, R-IN;
  • SCOTT DESJARLAIS, R-TN;
  • TREY GOWDY, R-SC;
  • JOE HECK, R-NV;
  •  BILL HUIZENGA, R-MI;
  •  MIKE KELLY, R-PA;
  • JAMES LANKFORD, R-OK;
  • ; KRISTI NOEM, R-SD;
  • ; ALAN NUNNELEE, R-Miss;
  • ; REID RIBBLE, R-WS; 
  • TODD ROKITA, R-IN;
  • and DANIEL WEBSTER, R-FL.