Appeals court upholds NLRB decision that makes it easier to organize a union

A US appeals court on June 2 upheld a National Labor Relations decision that makes it easier for workers to join a union.

The Fifth Circuit Court of Appeals in New Orleans ruled that the NLRB acted appropriately in 2014 when it approved a petition by fragrance and cosmetic staff at a Massachusetts Macy’s department store for a union representation election.

Macy’s challenged the NLRB decision arguing that the appropriate bargaining unit for the union election was all sales employees in the store, not just employees in the fragrance and cosmetics unit.

In addition to arguing that the NLRB erred in this particular case, Macy’s argued that the court should overturn the NLRB’s Specialty Healthcare ruling, a precedent-setting decision that clarified what constitutes an appropriate bargaining unit within the workplace.

According to Specialty Healthcare as long as workers share an identifiable community of interest on the job, they constitute an appropriate bargaining unit and can vote on whether to join a union.

The NLRB made the ruling in 2011 after a group of nursing assistants at Specialty Healthcare, a nursing home in Mobile, Alabama, petitioned the NLRB to form a union among themselves.

Specialty Healthcare management argued that the nursing assistants were too small of a group to constitute a collective bargaining unit and that the appropriate bargaining unit should be all non-management staff because they all shared a community of interest.

The NLRB rejected management’s argument and said that unless all workers at the nursing home share an “overwhelming” community of interest, they do not have to be included in the bargaining unit.

The Fifth Circuit Court in its Macy’s decision allowed Specialty Healthcare to stand. The court’s decision was the fourth time that a US appeals court has upheld the NLRB’s Specialty Healthcare decision.

The case that led to the Fifth Circuit Court’s Macy’s decision began four years ago when United Food and Commercial Workers Local 1445 petitioned the NLRB for a union election among 41 fragrance and cosmetics employees at a Macy’s department store in Saugus, Massachusetts.

Macy’s appealed the decision, and in 2014, the NLRB denied Macy’s appeal and ordered a union election.

A majority of workers voted for the union, but Macy’s refused to bargain with its new union.

The union filed an unfair labor practices charge against Macy’s for not bargaining. When the NLRB agreed with the union, Macy’s appealed the decision to the courts.

Macy’s was joined in its appeal by a number of business associations including the US Chamber of Commerce.

They contended that allowing workers to form what they call micro-unions would result in the formation of a large number of small bargaining units creating chaos in the workplace and an employee relations nightmare for business.

More likely, what they are really concerned about is that as non-union workers see their fellow workers benefit from joining a union, more non-union workers will want to join the union.

Despite the Macy’s ruling and the other appeals courts’ rulings upholding Specialty Healthcare, business have not stopped trying to overturn it.

The most recent example is unfolding at the Volkswagen auto plant in Chattanooga, Tennessee.

In 2015, 152 skilled trades workers at the plant voted to join the United Autoworkers (UAW) in an NLRB union representation election.

The vote came a year after a narrow majority of the 1450 plant’s workers voted not to join UAW. Prior to the vote, state officials and business leaders threatened that a yes vote for the union would result in the loss of jobs at the Chattanooga plant.

In both elections, Volkswagen publicly stated that it would remain neutral.

But after the skilled trades workers voted to unionize, Volkswagen balked at recognizing the union and refused to negotiate a first contract.

In April, the NLRB ruled that Volkswagen had violated US labor law by refusing to bargain with the skilled trades workers’ union. Shortly after the decision, Volkswagen announced that it would challenge the ruling in court.

The UAW has mounted a campaign to put pressure on Volkswagen to bargain with the union.

The union is asking supporters to email Volkswagen and urge the company to “stop dragging its feet and get to work negotiating with Chattanooga skilled trades workers to create a better workplace.”

Back in Massachusetts, UFCW Local 1445 is moving ahead with its plan to negotiate a first contract for the fragrance and cosmetics employees at Macy’s Saugus store.

It is well positioned to do so. It already represents Macy’s workers in six stores in Massachusetts and Rhode Island.

The union has represented fragrance and cosmetic employees as separate bargaining groups in other stores for decades and so far, there has been no chaos or employee relations nightmares envisioned by Macy’s and its supporters.

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Appeals court rules against FedEx in its attempt to avoid collective bargaining

A three-judge panel on the US Court of Appeals for the Eighth Circuit has told FedEx that it must engage in collective bargaining with company drivers in Charlotte, North Carolina and Croydon, Pennsylvania who voted to join Teamster locals.

The Croydon and Charlotte drivers voted in 2014 to join Teamsters Local 107 and Local 71 respectively.

Since the two votes, FedEx has refused to recognize and bargain with the workers’ unions.

FedEx contended that the NLRB erred when it recognized the drivers as a group of workers with a shared community interests and called for a union representation election among the drivers.

The judges, however, disagreed with FedEx.

In ruling in favor of the NLRB, the court upheld the NLRB’s Specialty Healthcare framework for determining an appropriate bargaining unit for a union representation election.

The Specialty Healthcare framework allows a group of workers who share a community of interests to form a union even if the group does not include all other workers on the job.

In 2011, the NLRB ruled that a group of certified nursing assistants working at a nursing home operated by Specialty Healthcare in Mobile, Alabama could form a union that did not include nurses and other nursing home workers.

That decision ignited an outcry from anti-union businesses, which contended that the Specialty Healthcare framework would allow the formation of “micro unions” that would create an unfair burden for businesses.

In 2013, the Sixth Circuit Court of Appeals rejected an appeal by one of these anti-union businesses seeking to overturn the Specialty Healthcare framework.

Like their cohorts on the Sixth Circuit Appeals Court, The three-judge panel of the Eighth Circuit Court also refused to overturn the Specialty Healthcare framework and noted that the NLRB acted within its authority.

FedEx argued that the appropriate bargaining unit at Croydon and Charlotte should have included dockworkers, most of whom were part-time temporary workers, who would have then been eligible to vote in the union representation election.

But the NLRB found that the work of drivers and dockworkers did not overlap enough to create an overwhelming community of interests; therefore, if the drivers wanted a union to represent them alone they had a right to vote for such a union.

The Eighth Circuit Court judges concurred.

Before the Eighth Circuit Court panel issued its ruling, the NLRB ruled that FedEx had to bargain with another group of who voted to join the Teamsters.

The NLRB in February ordered FedEx to cease and desist from refusing to bargain with its drivers at its terminal in Stockton, California. The drivers voted a year ago to join Teamsters Local 439.

“This is a huge victory for the drivers who voted to form their union with Local 439, and we will continue to fight on behalf of these workers until they ratify their first contract,” said Ken Guertin, Local 439 secretary-treasurer after the NLRB issued its ruling.

The FedEx workers at Stockton, Charlotte, and Croydon joined drivers in South Brunswick, New Jersey in voting to join the Teamsters, which has been trying to organize non-union FexEx in a terminal-by-terminal campaign.

The terminal-by-terminal approach has been tough going for the Teamsters. They’ve lost six out of ten terminal elections.

In trying to keep its workers from joining a union, FedEx has used a carrot and stick approach.

In Croydon when drivers filed a petition for a union representation election, FedEx gave them an $0.80 an hour raise and stopped using an overly punitive report card to grade workers’ performance.

In Stockton when the organizing effort got underway, FedEx used the stick. In one instance it took away work hours from Edgar Aguilar, an active union supporter. The company recently agreed to pay Aguilar $4,900 in back pay for hours it took away from him at the time of the election.

Despite a mixed record of union representation elections at FedEx, the Teamsters said that they are still committed to organizing FedEx.

“The International Union, working side-by-side with all the freight local unions, is committed to this campaign over the long-term,” said Tyson Johnson, director of the Teamsters National Freight Division. “We hope that the company will get serious and negotiate a fair contract for the workers.”

The recent victories at the Eighth Circuit Court and at the NLRB should help boost the organizing campaign.