Hello Monday, the Feds are charging Walmart with workers’ rights violations in 14 states.

Damn fine way to start a week, but we’ll get back to our regularly scheduled depression inducing news tomorrow. Al Jazzera has an article written by Lucy Nicholson for Reuters, which was posted on Thursday (I try to blog in advance).  The national Labor relations Board (NLRB) issued complains on Wednesday alleging Walmart violated labor laws in 14 states through actions taken against striking workers. BOOM!

NLRB’s general counsel’s office issued a complaint related to Walmart representatives appearing on national news broadcasts threatening to retaliate against workers if they went on strike. Seriously? I kind of expected more from Walmart…getting sloppy. Additionally, they fired and disciplined workers for participating in the strikes. According to the complaint 19 employees were fired “allegedly as a result of their participation in activities protected by the National Labor Relations Act.”

Walmart has known about the impending complaints since November 2013. Spokewoman for Walmart, Brooke Buchanan said, “We believe that our actions were valid. We take out obligations very seriously. We look forward to sharing our side of the facts in these cases with a judge.”

Reminder that the NLRB is a federal agency; they investigate a lot of allegations made by employees. More than half are dismissed. I’m not saying this will be dismissed, just setting up the context.  The Walmart investigation looks like the allegations hold water, and settlements failed. Most of the allegations focused on Walmart’s management after the strikes in stores in California, Kentucky, Texas, Washington, etc. in May and June of 2013.

Employees received verbal and written warnings of formal reprimands and were disciplined after the strikes. [As you remember the strikes were for, heathcare, fair wages, and improved working conditions.] The complaints also allege that Walmart misclassified the workers’ absence as unexcused instead of participating in legally protected strikes. I’m not surprised by this allegation at all, but it is kind of a big deal, if employers can just decide your strike doesn’t have merit.

Walmart has until January 28^th to respond to the NLRB’s fining. Next step will be for an NLRB administrative law judge to oversee a trial and determine if any laws were violated. Then a five-member board will adopt or reject the judge’s findings. 

Note: Apparently, Walmart joined the Coalition of Immokalee Workers. 

Employers win one in the New Orleans Court of Appeals

US Court of Appeals in New Orleans issued a decision that permits employers to require workers, as a condition of their jobs to agree to arbitrate all workplace disputes and to do so as individuals standing against their employers. This ruling could be the end of employment class actions, which were so important in addressing barriers of race and sex discrimination after the 1964 Civil Rights Act, and of course are still important to enforcement of labor standards including minimum wage.

I read about this from a Politico post by Craig Becker.  The actual cases involved D.R. Horton, a home-builder which operates in 27 states with annual revenue of more than $6 billion. The company required all employees to sign an agreement providing that the employment disputes would be resolved by binding arbitration and that the arbitrator “may hear only Employee’s individual claims.” One employee attempted to pursue a claim the D.R. Horton misclassified an entire category of workers as exempt from the protection of federal overtime regulations, the company insisted each worker had to file an individual claim.

So what’s an employee to do? To the National Labor Relation Board (NLRB) Bat Signal. The NLRB found that the “agreement” to waive the right to join with co-workers for workplace claims violated federal labor law saying not only do employees have the right to join a union, but they can “engage in…converted activates for the purpose of…other mutual aid or protection.” The NLRB found that as employers can’t require employees not to join a union via a “yellow dog contract,” the employers can’t require employees to “agree” not to file class action suits.

The New Orleans Court of Appeals reversed the NLRB’s decision in a 2-1 vote. They found the Federal Arbitration Act (FAA) trumps the employee’s right to act collectively. The FAA doesn’t actually address class action suits. The court’s holding is in line with the Supreme Court’s decisions expanding their interpretation of FAA. If the court’s holding becomes governing rule, no employer will permit its employees to bring class action suits. Many employers already require these waivers such as J.P. Morgan and United Healthcare. However, all those represented by unions will have to yield their rights.

One federal judge said, “each employee would have to…undertake the person risk of litigation directly against his or her…employer. Many employees would likely be unable to bear such…risks.” Oh good, some states the reasons for all of this. It is perfect, employers can cheat employees they keep in poverty and there is nothing the poor can do about it, suckers. No one reading this blog would be surprised to hear me say workers in the US are vulnerable to a host of labor violations and it is just getting worse. This is particularly true of low-wage workers. We also have to remember that organized labor continues to weaken almost across the board, the only hope really is to organize unskilled service workers, which is very difficult because the Walmart business model where unionbusting is key.

Becker concludes by suggesting Congress might do something about this when it takes up the Arbitration Fairness Act this year.  I’m a far more cynical person. I worry that one Congress is alerted to this problem they will make it worse by banning unions or individual suits against employers, ok so I’m being a little tongue and cheek here, but the point remains. I don’t believe Congress will help especially the House of Representatives, remember who pays the bills here.

Publisher's First Amendment Rights Supersede Reporters

I stalk labor journalists on twitter, and I’m not ashamed. I’m harmless really, but following them usually incites rage so there is that…

According to Sam Hananel of the Associated Press a federal appeals court ruled on Tuesday with the publisher of the Santa Barbara News-Press in a labor dispute between the newspaper and reporters who were fired after they complained over editorial practices.

The US Court of Appeals for the D.C. Circuit ruled the publisher of the newspaper was protected by the First Amendment after it dismissed eight reporters and disciplined others who claimed the owner was interfering with coverage. However, the reporters claim they were wrongfully terminated for union activity and legitimate complaints about their terms of employment. This began in 2006 between Ampersand Publishing LLC and employees. Almost all the top editors at the paper quit because of the owner Wendy McCaw’s perceived meddling. Afterward, the newsroom employees voted in a union, and they have been fighting the paper ever since over bargaining rights.

Eight of the reporters were fired, six of them had hung a sign from a freeway pedestrian bridge in 2006 to protest encouraging people to cancel their subscriptions. Employees held a series of rallies and demonstrations.

Judge Stephen Williams, on behalf of a three judge panel, said: “The First Amendment affords a publisher—not a reporter—absolute authority to shape a newspaper’s content.

"The First Amendment affords a publisher—not a reporter—absolute authority to shape a newspaper's content," Judge Stephen Williams wrote for a three-judge panel.

Shenanigans!

The court’s ruling overturns a decision by the National Labor Relations Board (NLRB), which found the workers had been wrongfully terminated. However, the decision is consistent with a 2010 ruling from the 9^th Circuit Court of Appeals, which felt that forcing Ampersand to rehire employees a violation of the publisher’s First Amendment rights.

This is kind of dangerous for reporters moving forward. Essentially, publishers can meddle in reporting and perhaps shift focus for or against a subject. Additionally, the fact the NLRB found in favor of the union also says volumes. Owners shouldn’t be able to meddle in the news; this is one of the many things wrong with media now. No one hold people, the government specifically, accountable because everyone has an agenda.