TRO issued in headquarters demonstration

But a Benton County, Arkansas, Circuit Court Judge struck a blow to the group that same day when he issued a temporary restraining order against the UFCW, OUR Walmart, and other individuals. The order prohibited the defendants, their officers, employees, agents, affiliates, and all other persons or entities who act in concert with them (except for current Wal-Mart employees) from entering Wal-Mart’s private property in Arkansas without the retail giant’s permission for any reason other than shopping or purchasing merchandise. The order expressly prohibited the defendants from entering Wal-Mart’s private property to engage in picketing, patrolling, parading, demonstrating, “flash mobs,” handbilling, solicitation, manager confrontations, and other similar activities.

The workers’ group is demanding a raise in wages and increased access to full-time hours so that no Wal-Mart worker will make less than $25,000 per year. “Walmart is among the most profitable companies in the US and is owned by the Walton Family, the richest family in America, yet workers at Walmart must rely on food stamps and even go hungry because of lack of hours and low wages,” according to Our Walmart.

House Committee report. On May 30, Democrats on the House Committee on Education & the Workforce released a report that credits Wal-Mart with a “leading role” in the nation’s current narrative on rising income inequality and wage stagnation threatening the future of the middle class. The report, The Low-Wage Drag on Our Economy: Wal-Mart’s Low Wages and Their Effect on Taxpayers and Economic Growth, points to Wal-Mart’s business model, which “has long relied upon strictly controlled labor costs: low wages, inconsiderable benefits and aggressive avoidance of collective bargaining with its employees.”

The retail giant’s low wages and benefits at just one 300-person Wal-Mart Supercenter store in Wisconsin, however, likely cost taxpayers at least $904,542 and up to $1,744,590 per year — about $5,815 per employee. Why? Wal-Mart employees and their dependents have a higher usage of public-assistance programs.

“Wal-Mart is the nation’s largest private-sector employer, yet they pay such low wages that many of its workers are unable to provide their families with the necessities of life,” said Representative George Miller (D-Cal), the senior Democrat on the committee. “The labor policies of Wal-Mart, and those of companies that emulate its low-road approach, end up leaving taxpayers holding the bag.”

Call center’s policies improperly stifled off-site workers’ Sec. 7 rights; region urged to take on Register Guard

By Lisa Milam-Perez, J.D.

A call center employer violated the NLRA by maintaining usage policies for its computer and email systems that restrained off-site workers’ Section 7 activity, according to a June 2012 NLRB advice memo released Friday, August 23. The Division of Advice urged the regional director to issue a complaint, in hopes of using this “virtual workplace” case to test the NLRB’s Register Guard decision holding employers need not open their computer systems to protected employee communications — a ruling that the acting general counsel continues to maintain was incorrectly decided.

The employer’s nondisclosure agreement and overbroad confidentiality and media relations policies were also improper, according to the memo. Moreover, the employer unlawfully promulgated a discriminatory work rule and disabled the employees’ private chat capabilities in response to an employee’s union activities. The employer also engaged in improper surveillance and created the impression of surveillance by instructing employees to report any communications from their union-adherent coworker. However, the employer did not unlawfully alter its internal email capabilities to prohibit employees from sending email to outside accounts; the employer had a legitimate business reason for doing so after it received word that an employee had improperly shared a client’s confidential information.

Alpine Access, a Denver-based company, provides virtual call-center services around the clock to businesses in several different industries. It employs 4,000 “customer care professionals” in 40 states. The CCPs work from home and have no face-to-face interaction with each other. So when one of the employees set out to organize this virtual workplace, he did so by communicating with his coworkers through the employer’s email and chat system, the means by which he regularly interacted with fellow employees. His supervisor responded by urging employees not to open his emails and to notify him if they received communications from the employee. While the employer tried to correct this clear violation by reversing the supervisor’s directive, HR told the employee he could only engage in such communications when both he and the intended recipients of his message were on down time. The employer also cut off access to the internal chat room, contending the “Xbox” group in which the employee worked had productivity lapses.

The employees had a Section 7 right to use the employer’s electronic communications system even under current Board law as set forth under Register Guard, the advice memo concluded. These employees were unable to communicate with each other by traditional means and so would be deprived of their protected rights were they not allowed to communicate through the employer’s systems. As such, the case offers precisely the scenario that the NLRB described and distinguished from the facts before it in Register Guard. (In that case, employees still communicated largely face to face, and email had not so “changed the pattern of industrial life” that traditional modes of interaction were rendered useless.) Moreover, here the employer violated the Act, even under Register Guard standards, because its restriction on employee use of its electronic communications was motivated by antiunion bias, coming on the heels of an employee’s union activity and specifically calling out his union-related communications. Still, the Division of Advice urged the regional director also to use this case as a vehicle to argue for the reversal of Register Guard.

According to the memo, the employer’s email rule also was problematic because it required both the sender and recipient of the email to be off-duty when the communication was sent. This requirement unreasonably infringed upon protected activities. The call-center workers’ “down time” (the time in which they were on duty but not actually responding to calls) varied greatly during the day — as did their work schedules, given the 24-hour work cycle — and employees had no way of knowing when their fellow employers were on down time. “Unlike a face-to-face communication, an email does not need to be reviewed or responded to until the recipient is between calls or on official break time,” the memo noted. So there was no valid reason for the employer to insist that both sender and recipient be on break before exchanging emails. This was especially true given that employees were regularly allowed to surf the internet or communicate with each other about personal matters during their down time, the memo noted.

In its correspondence with the employee setting out its restriction that email can only be sent and received while on down time, the employer stated that it would not enforce its work rules in a manner that would infringe upon “certain rights” provided under the NLRA. This “savings clause” did not protect the employer from Board scrutiny when such a statement was made alongside an unlawful directive that restricts Section 7 rights. It was settled law, the memo observed, that such a provision does “not render an otherwise unlawful rule lawful.”

The Division of Advice also concluded the employer improperly disabled the private chat function in its software for only those employees working on the X-Box account (including the union proponent). While the employer cited productivity concerns, there were numerous factors establishing that this justification was pretextual, including the fact that there was no evidence of a productivity lapse. Also, the employer initially disabled only the union proponent’s chat feature (and although it intentionally did so, it told him that his inability to use the function must be due to a connectivity problem on his end). Finally, the service was disabled just two or three days after the employee used the chat system to communicate with coworkers about unionizing.

The employer also promulgated an unlawful nondisclosure agreement and threatened to take legal action against current and former workers for violating the provision after they discussed terms and conditions of employment on a Facebook page called “Alpine Access Sucks.” A media relations policy barring any discussions of company-related matters with anyone outside the company, and requiring employees to refer all media questions to the marketing department, was unlawfully overbroad, as it could easily be construed as restricting employees’ right to talk to reporters about terms and conditions of employment. A confidentiality rule was unlawful for similar reasons.

On Monday, August 26, the NLRB introduced each of the individuals named by newly confirmed Board Members to serve as their respective Chief Counsel:

By Lisa Milam-Perez, J.D.

Wal-Mart did not violate the NLRA by ousting a demonstration by worker advocacy group “OUR Walmart” from the parking lot of one of its Illinois stores, according to an NLRB advice memorandum released Friday. The fact that a Wal-Mart employee was among the organizers of the demonstration did not matter, the Division of Advice concluded, because the presence of a van emblazoned with the “OUR Walmart” logo reasonably led the retailer to believe the protest was staged by non-employee organizers, who may lawfully be excluded from employer property.

On a day off from work, a Wal-Mart employee drove to the store in a minivan owned by “OUR Walmart” (Organization United for Respect at Walmart), a labor advocacy group that has been protesting wage and work conditions at the retail chain since 2012. The employee was accompanied by an organizer for the group (along with a small crowd of members), and the van was emblazoned with OUR Walmart logos and other graphic images across the entire vehicle. It also was equipped with a video projection system and stadium-style speakers. The employee began to play very loud music, including the song “We’re Not Gonna Take It” and various old union songs, and projected video clips onto the store’s façade from an earlier protest at Wal-Mart headquarters in Bentonville, Arkansas.

Two police officers showed up and informed the demonstrators that the music violated a noise ordinance. After consulting with store management, the officers told the demonstrators to pack up and leave because they were on private property and the store wanted them to leave. The officer also said the demonstrators could move to the (public) shoulder of the road that runs adjacent to the parking lot. Concluding they had already made their point, though, the demonstrators dispersed. However, the store employee was allowed to remain on the premises, and did so for a short time, continuing to try to engage other employees. He was never issued a citation by the police and was never disciplined by Wal-Mart for his involvement in the demonstration.

Wal-Mart did not violate Sec. 8(a)(1) of the Act by requesting that the police remove non-employee organizers from its parking lot. It was reasonable for the employer to conclude that this was a non-employee demonstration, according to the memo, and by advising the police that it did not permit outside groups to solicit on its property without prior approval, Wal-Mart was merely enforcing its lawful solicitation and distribution policy. Also, the employee had been allowed to remain in the parking lot. While the action of the police deprived the employee of the use of the van, Wal-Mart reasonably concluded that the van was owned by OUR Walmart and was an instrument of non-employee solicitation.

“In the circumstances, where the van was covered with the OUR Walmart logo and other graphic images, and where the participants in the demonstration — save the one identified employee allowed to stay on the property — were non-employee organizers, we cannot conclude that the Employer’s conduct interfered with employees’ section 7 rights,” the memo stated, advising that the charge against Wal-Mart should be dismissed.

Amid historic anniversary celebration, agency reaching out during National Labor Rights Week with special focus on Mexican workers

By Pamela Wolf, J.D.

During National Labor Rights Week (August 25 through August 31), NLRB staff members in its regional offices across the country are meeting with immigrant workers, community groups, employees, and employers to discuss the rights guaranteed by the National Labor Relations Act.

Indeed, this is a very busy week in the world of labor and employment. President Barack Obama declared August 28 the official 50th anniversary of the historic March on Washington demanding jobs and freedom. “Today, we remember that the March on Washington was a demonstration for jobs as well as freedom,” the president said in his proclamation. “The coalition that brought about civil rights understood that racial equality and fairness for workers are bound together; when one American gets a raw deal, it jeopardizes justice for everyone. These are lessons we carry forward -- that we cannot march alone, that America flourishes best when we acknowledge our common humanity, that our future is linked to the destiny of every soul on earth.

Many groups have brought the battle for better wages to the nation’s capital during the ongoing anniversary commemorations. Elsewhere, fast food workers and other low-wage workers are holding a one-day strike today in three dozen-plus cities across the nation, calling for a $15 minimum wage and the right organize free from retaliation.

President Obama also designated August 26 as Women Equality Day, commemorating the struggle that on that same day in 1926 finally gave women the right to vote. “As we reflect with pride on decades of progress toward gender equality, we must also resolve to make progress in our time,” the president remarked. “Today, we honor the pioneers of women's equality by doing our part to realize that great American dream — the dream of a Nation where all things are possible for all people.”

About National Labor Relations Week, NLRB Chairman Mark Gaston Pearce said. “We are placing a particular emphasis on educating Mexican workers employed in the United States by partnering with Mexican consulates in many communities.” The NLRB, along with other federal agencies including the DOL and the EEOC, is participating in events aimed at ensuring that Mexican employers and workers in the United States understand their rights and obligations under American law, according to Pearce.

Among the events slated for the week-long agency commemoration are the following:

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  In California, NLRB Regional Directors attend the Los Angeles and San Francisco Mexican Consulates’ opening celebration for Labor Rights Week, representatives hold briefings on the NLRB for the Los Angeles consulate’s professional staff, and attorneys participate in a telethon designed to provide callers with information on their rights and the agencies best suited for assisting them; in San Francisco, staff participate in outreach programs hosted by the consulate.
  
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  In Illinois, the Regional Director signs a Local Agreement with the Consul General of Mexico in Chicago as part of the opening ceremonies for Labor Rights Week, while Regional staff participate in numerous events throughout the week at the consulate and throughout the community;
  
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  In New Jersey, the Regional office participates in the Mexican Consulate’s New Brunswick Labor Week events, scheduled for August 27 and 29;
  
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  In Raleigh, North Carolina, attorneys from the Regional office participate in a presentation at the Mexican Consulate, including an overview of employer and employee rights under the NLRA;
  
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  In Oregon, NLRB staff pass out literature and meet with the public at booths in The Dalles, Portland, and Woodburn;
  
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  In Philadelphia, Pennsylvania, attorneys from the Regional office participate in a briefing sponsored by the Mexican Consulate, highlighting the work of the NLRB and responding to questions;
  
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  In Texas, Regional staff participate in events planned in Dallas, Houston, and San Antonio;
  
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  In Washington State, representatives from the NLRB Seattle office discuss employee and employer rights and obligations at a booth located in Centro de la Raza.
  

“Since its passage in 1935, the National Labor Relations Act has promised generations of workers the right to join together, with or without a union, to seek improvements and a voice in their working lives,” Solomon noted. “But that promise can only be fulfilled if individuals understand and are able to exercise their rights under the law.”

By Ronald Miller, J.D.

A pension fund was properly dismissed from a suit by real estate developers alleging that a union and the fund orchestrated 14 separate legal challenges against their real estate projects in order to force them to terminate their relationship with a non-unionized supermarket, ruled the Fourth Circuit (Waugh Chapel South, LLC v United Food and Commercial Workers Union Local 27, August 26, 2013, Diaz, A). In affirming the dismissal of the complaint against the pension fund, the appeals court agreed the fund was not a “labor organization” under the NLRA. However, it vacated the dismissal of the developers’ complaint as to the union defendants, reasoning that the Noerr-Pennington doctrine did not insulate their litigation activity from liability based on their First Amendment right to petition the courts. The case was remanded for a determination of whether the unions waged a secondary boycott through the alleged “sham litigation.”

Legal challenges. The real estate developers were building shopping centers and planned to lease storefront units to Wegmans Food Markets. Because the Wegmans supermarket chain does not employ organized labor, the unions opposed both projects. The campaign opposing Wegmans included a union executive’s threat to the developers that if the supermarket did not unionize, “we will fight every project you develop where Wegmans is a tenant.” Thereafter, the unions directed and funded a barrage of legal challenges at every stage of the projects’ development. After 14 challenges, the developers sued the unions under the LMRA, alleging unlawful secondary boycott activity. Specifically, the developers alleged that the unions directed a series of adverse lawsuits in order to wage a secondary boycott. A district court dismissed the action. The developers appealed.

Dismissal of fund. The court first considered the district court’s decision to dismiss the claim against the fund on the basis that it was not a “labor organization” under the NLRA subject to the secondary boycott prohibitions of the LMRA. An employee entity may be a “labor organization” if its purpose or activity involves “dealing with” employers. The fund satisfied neither of these criteria. In fact, the developers’ own complaint alleged that the fund was prohibited from “participating directly or indirectly in union collective activities.” Moreover, the only fact suggesting any interactions between the fund and an employer concerned the alleged secondary boycott. Plainly, there was no “bilateral mechanism” when the only alleged contact between an employee entity and management was an unfair labor practice directed against an employer.

Further, the fact that the fund had designated itself as a “labor organization” for purposes of tax liability, this was not sufficient to render it a “labor organization” for purposes of labor law. Here, the Fourth Circuit agreed with the First Circuit that the Internal Revenue Code and the NLRA have very different objectives. Thus, the Fourth Circuit declined “to import definitions from statutes with unrelated or cross-purposes.” Consequently, because the developers failed to allege that the fund had engaged in a pattern or practice of “dealing with” employers, it was not a “labor organization” under the NLRA and was not subject to the conditions of the LMRA.