Somali Workers Lose Jobs after Unlawful Strike over On-The-Job Prayer Time Dispute

Of the approximately 2,000 employees at Cargill Meat Solutions, Inc.’s Fort Morgan plant, 600 are Somali. Nearly 200 Somalis walked off the job in protest that they were deprived of on-the-job prayer time. This is a Teamster facility, and the Somalis were terminated for violating the no-strike clause of their collective bargaining agreement. The Union is seeking reinstatement of the workers (probably with back pay), while the Company does not want to give the appearance that the strike was successful thus implicitly encouraging copycat acts to occur in the future. But, what makes this an unusually interesting case is the religious discrimination element.

Religious discrimination claims are on a sharp increase and will continue to be a focal point of many government agencies like the EEOC and NLRB. Here, the Somalis may have been asking for more than “religious freedom,” and insisting on preferential treatment. According to the Company, the Somalis were provided adequate time away from their jobs to pray, but the demands of the workplace took precedent. All facility employees, including the Somalis, were given unpaid lunch breaks, which meant they could use that time to pray, as well.

This case is in its delicate infancy, so I don’t have many facts, an opinion, or result, yet. But, with the focus that the federal government is putting on thwarting religious discrimination, I anticipate this case will become mainstream in the near future.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Whole Foods’ No Cell Phone Recording Policy: The Devil is in the Details

Fellow Ohio attorney Jon Hyman, author of “Ohio Employer’s Law Blog” recently dove deep into the footnotes of the Whole Foods decision and resurfaced with an excellent, albeit frightening, analysis of the Board’s thought process. Footnotes 7 and 9 may provide a peek into the Board’s future desire to, as Jon says, “stretch the definition of ‘concerted’ to the point of non-existence.”

Fn 7. [W]e would not characterize recording or photography as a solitary nonconcerted act encompassing a “limited scope of protected activity.”…

Fn 9. [A]ny act of recording by a single employee that forms part of, or is undertaken in furtherance of, a course of group action constitutes concerted activity within the meaning of Sec. 7. Even in the absence of a group action, activity by one individual is deemed concerted if undertaken in an effort to enforce the provisions of a collective-bargaining agreement or in order to initiate or induce group action.

Now for Jon’s takeaway: This case has implications well beyond camera bans. Consider, for example, employee social media activity. If, as the Board suggests, employee intent is the measuring stick for whether a lone employee’s activity is concerted, then any employee’s solitary social media post can be considered concerted merely by the employee stating an intent to initiate or induce group action. And, since social media is inherently social (i.e., group in nature), doesn’t this test suggest that all such activity is concerted?

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

NLRB’s Ruling that Whole Foods’ No Cell Phone Recording Policy May Be Short Lived

A few weeks ago, the NLRB ruled that non-union Whole Foods’ workplace policy that prohibits employees from recording conversations or taking pictures with their phones was unlawful. The Board thought this policy stifled open conversation. Ironically, Whole Foods said the policy was, in fact, to encourage open conversation because people may be less frank if they are being recorded. Before companies change their handbook policies to comply with this ruling, let’s first allow the ruling to be found lawful by other agencies and courts.

For example, the Board’s ruling may not stand up when applied to healthcare related companies and those covered by HIPAA. Likewise, educational institutions governed by FERPA laws may be allowed to continue banning recordings and pictures at work. Individual state’s trade secrets laws may also have an impact on the legality of the Board’s decision. So will states whose laws ban nonconsensual recording of another person.

For companies that want to make an immediate change to their recording / photograph policies, the Whole Foods’ policy failed because it prohibited all recordings and all photographs, not just those left unprotected by Section 7 of the National Labor Relations Act. While some readers may think a “quick fix” would be to have a blanket ban with the caveat that the policy is not intended to interfere with an employee’s Section 7 rights, these types of catchall provisions have been found unlawful.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Union May Be On the Hook for Damages Caused By Unlawful Strikes and Slowdowns

The National Labor Relations Board ruled that the Longshoreman’s Union (ILWU) violated federal law with slowdowns and work stoppages at the Port of Portland in 2012 and 2013. The Union is now on the hook for millions of dollars of damages as they are being sued by the Port and the Company that runs Terminal 6 at the Port for over $30 million. Specifically, International Container Terminal Services, Inc. (ICTSI) operates Terminal 6, the only international container terminal. Two international carriers – Hanjin and Hapag-Lloyd – left and the overall work has decreased by 30% because of the labor issues. This is a direct loss of work to ICTSI and the Port, but more importantly, others may soon leave or decide not to go to the Port because of the union.

This case will be interesting to follow. Obviously, any economic damage caused by a lawful strike or other economic pressure techniques would immunize the union from this lawsuit. But here, the union will most likely be held accountable for its unlawful actions.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Home Healthcare Aides are Not Domestic Service Employees and May Unionize

Minnesota Home Healthcare workers are permitted to unionize. While this ruling does not have much impact for most of our readers, the backstory should resonate with you. Minnesota passed a law that allowed collective bargaining for home care providers for Medicaid recipients. The 2013 law called the Individual Providers of Direct Support Services Representation Act (IPRA) allowed home care providers for Medicaid recipients to seek union representation under the state’s labor relations act. Minnesota is one of about 10 states with a similar law.

That law was challenged as violating the U.S. Constitution by unlawfully preempting the National Labor Relations Act. Opponents of the law said, “By seeking to reclassify individual providers as state employees for the purpose of collective bargaining when the NLRA precludes domestic service employees entirely from collective bargaining, the IPRA is in direct conflict with the NLRA. The Eighth Circuit Court of Appeals decided that the Act was not preempted and states are free to regulate their workers as they see fit. Accordingly, home healthcare aids are not domestic service employees.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

National Labor Relations Board’s Unorthodox Treatment of McDonald’s Joint Employer Case

By now, if you’re remotely interested in what happening at the NLRB, you are familiar with the McDonald’s joint employer case. If you’ve just crawled out from under a rock, this case will determine whether McDonald’s and its franchisees are joint employers. Currently they are not, which benefits companies, but this Board is not shy about changing the current status of the law to benefit unions. In total, there are 61 unfair labor practice charges alleging 181 violations of the National Labor Relations Act against McDonald’s and 31 franchisees in six NLRB Regions.

The Board recently determined that it would hear evidence on the idea that McDonald’s is a joint employer with its franchisees before considering evidence about the underlying unfair labor practice charges. In essence, the Board decided to determine who is liable for any unfair labor practices before ruling whether any unfair labor practices exist in the first place. This is called putting the cart before the horse. Or is it counting your chickens before they hatch?

Also odd is the unprecedented consolidation of all the charges. The alleged violations involve circumstances specific to particular employees at a specific location owned by a unique company. No two cases are like. Each has its own nuances. By lumping them all together many franchisees will be denied due process rights and be subjected to delays and costs that otherwise would not have existed if their cases were heard in the traditional manner.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Buckeye Fans: Is a Red Shirt, Grey Pants Dress Code an Unlawful Anti-Union Policy?

In the early 2000’s the United Autoworkers (UAW) unions began trying to organize the Nissan plant in Canton, Mississippi. Nearly 15 years later, it’s still trying. According to the UAW, “many” Nissan employees recently began wearing pro-union t-shirts and hats to work. In response the company changed its almost anything goes dress code to one that required employees wear a red polo shirt and grey pants; and if they needed a jacket, it too must be grey.

According to Nissan, this new policy “helps achieve the highest standards of safety and quality in all manufacturing facilities.” Employees have been able, and will continue to be able, to wear the clothing of their choice so long as it complies with the dress code. The UAW filed an unfair labor practice charge over this modified uniform policy alleging that the change was done as a direct result of employees wearing pro-union t-shirts and hats. The Board bought the argument and issued a complaint against Nissan.

While most uniform / dress code cases deal with a company allowing employees to wear buttons, t-shirts, and hats with logos, just not union logos, this one is different. Here, the company has denied all logos, even all colors outside of red for shirts and grey for pants. Nissan’s new dress code appears to be content neutral, but according to the Board, that isn’t enough to escape an allegation that it was implemented with an unlawful, anti-union motive.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.