Retailer that had Non-Union Workers Distribute Anti …by reducing liability), and what to do when...
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A n employer that, during a union organizing campaign, requires its non-union workers to hand out fliers that reasonably could be perceived as part of an anti-union campaign may be found in violation of the National Labor Relations Act, the National Labor Relations Board has ruled. Tesco PLC d/b/a Fresh & Easy Neighborhood Market, Inc., 358 NLRB 65 (June 25, 2012). The United Food and Commercial Workers International Union had conducted an organizing campaign at the employer’s Eagle Rock store in Los Angeles. The employer operates a chain of grocery stores. The Union presented the employer with a petition signed by a majority of employees, indicating their support for the Union and requesting the employer volun- tarily recognize the Union as their collec- tive-bargaining representative. The employer declined and stated it would not recognize the Union without an election. Thereafter, in continuation of the organizing campaign, off-duty employees of the Eagle Rock store and union representatives distributed pro-union fliers in front of the store. Some customers were angry about the distribution and complained to store management. The employer began distributing its own flier, which included a $5 merchandise coupon, apologizing to customers “for any inconvenience union protesters may have caused.” The coupon flier also stated the following: • The protesters are not our employees and have been hired by the United Food & Commercial Workers (UFCW) union. • The UFCW wants fresh&easy [sic] to unionize. • We’ve told the UFCW this is a decision only our employees can make. They have not made this choice. • We take pride in being a great place to work. Consistent with standard practice at the Eagle Rock store pertaining to coupons, the store manager instructed employees to personally hand the coupon flier to customers. Two employees complained to the manager. One refused to hand the flier to customers, telling the manager that the flier lied to customers and infringed on his right to support the Union. The other ultimately acquiesced in handing out the flier, but expressed displeasure because he supported the Union and was involved in the organizing campaign. Neither employee was disciplined. The Union filed an unfair labor practice (ULP) charge, alleging the employer had violated the NLRA by requiring employees to make an observable choice against the union organizing campaign. The administrative law judge ruled there was no ULP because she found the flier did not “express a position on unionization.” The Union appealed. The Board held there was a ULP and said the “key inquiry is whether employees would understand the material to be a component of the employer’s campaign.” It explained, “[L]iterature or other material need not contain an explicitly antiunion message in order to be part of an employ- er’s campaign or otherwise implicate the employee’s right to decide whether to express an opinion or remain silent.” The Board found the employees in this case “reasonably would have perceived” the flier was a component of the employ- er’s anti-union campaign. “[J]ust as the Union’s distribution of handbills to cus- tomers was intended to promote communi- ty support for their organizing effort,” the Board found the employer’s flier “sought to generate community opposition to the organizing effort.” Moreover, the Board found the flier made two misleading statement to put the Union in a “negative light.” In fact, contrary to INSIDE: Summer 2012 Retailer that had Non-Union Workers Distribute Anti-Union Fliers Violated Labor Law Importance of U.S. Immigration Laws for Unwary Retailer End of Frivolous ADA Accessibility Lawsuits? Jackson Lewis Attorneys are “Leaders in Their Field” 2 3 4 [ 1 ]
Transcript of Retailer that had Non-Union Workers Distribute Anti …by reducing liability), and what to do when...
An employer that, during a unionorganizing campaign, requires itsnon-union workers to hand out fliers
that reasonably could be perceived as partof an anti-union campaign may be found inviolation of the National Labor RelationsAct, the National Labor Relations Board has ruled. Tesco PLC d/b/a Fresh & EasyNeighborhood Market, Inc., 358 NLRB 65(June 25, 2012).
The United Food and Commercial WorkersInternational Union had conducted anorganizing campaign at the employer’sEagle Rock store in Los Angeles. Theemployer operates a chain of grocerystores. The Union presented the employerwith a petition signed by a majority ofemployees, indicating their support for theUnion and requesting the employer volun-tarily recognize the Union as their collec-tive-bargaining representative. Theemployer declined and stated it would notrecognize the Union without an election.
Thereafter, in continuation of the organizingcampaign, off-duty employees of the Eagle Rock store and union representativesdistributed pro-union fliers in front of thestore. Some customers were angry aboutthe distribution and complained to storemanagement. The employer began distributing its own flier, which included a$5 merchandise coupon, apologizing tocustomers “for any inconvenience unionprotesters may have caused.” The couponflier also stated the following:
• The protesters are not our employees andhave been hired by the United Food &Commercial Workers (UFCW) union.
• The UFCW wants fresh&easy [sic] tounionize.
• We’ve told the UFCW this is a decisiononly our employees can make. They havenot made this choice.
• We take pride in being a great place towork.
Consistent with standard practice at theEagle Rock store pertaining to coupons,the store manager instructed employees to personally hand the coupon flier to customers. Two employees complained tothe manager. One refused to hand the flierto customers, telling the manager that theflier lied to customers and infringed on his right to support the Union. The otherultimately acquiesced in handing out theflier, but expressed displeasure because he supported the Union and was involvedin the organizing campaign. Neitheremployee was disciplined. The Union filed an unfair labor practice (ULP) charge,alleging the employer had violated theNLRA by requiring employees to make an observable choice against the unionorganizing campaign.
The administrative law judge ruled therewas no ULP because she found the flier didnot “express a position on unionization.”The Union appealed.
The Board held there was a ULP and saidthe “key inquiry is whether employeeswould understand the material to be acomponent of the employer’s campaign.”It explained, “[L]iterature or other materialneed not contain an explicitly antiunionmessage in order to be part of an employ-er’s campaign or otherwise implicate theemployee’s right to decide whether toexpress an opinion or remain silent.”
The Board found the employees in thiscase “reasonably would have perceived”the flier was a component of the employ-er’s anti-union campaign. “[J]ust as theUnion’s distribution of handbills to cus-tomers was intended to promote communi-ty support for their organizing effort,” the Board found the employer’s flier“sought to generate community oppositionto the organizing effort.”
Moreover, the Board found the flier madetwo misleading statement to put the Unionin a “negative light.” In fact, contrary to
INSIDE:
Summer 2012
Retailer that had Non-Union WorkersDistribute Anti-Union Fliers Violated Labor Law
Importance of U.S. ImmigrationLaws for Unwary Retailer
End of Frivolous ADA AccessibilityLawsuits?
Jackson Lewis Attorneys are“Leaders in Their Field”
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the employer’s flier, employees voluntarily distrib-uted the pro-union handbills along with paid representatives of the Union, and, again contraryto the flier, a majority of employees had signedthe petition authorizing the Union to representthem. Thus, the Board called the employer’sstatement in the flier “misleading, at best.”
Significantly, because at least two employeesobjected to distributing the flier, employees “reasonably would have perceived the couponflyer as campaign material….” Therefore, theemployer’s requirement that employees person-ally hand the flier to customers “coerced employ-ees in their choice whether to ‘participate in thedebate concerning representation,’” the Boardsaid. This infringed the employee’s “right to
choose, free from any employer coercion, thedegree to which he or she will participate in thedebate concerning representation.” The Boardheld the employer violated the NLRB by com-pelling the employees to participate publicly inmaking the employer’s statement criticizing theUnion’s handbilling and organizing campaign.
Employers should consider carefully anyresponse to pro-union activity during a unionorganizing campaign. Please contact BradleyKampas, at [email protected], orJonathan Siegel, at [email protected], if you have any questions about this NLRB decision.
Federal law requires employers to verify theidentity and work authorization of everynew hire through the use of the Form I-9.
Though the Form is only one page long, thereare many legal complexities inherent in complet-ing it that may result in hefty penalties for mis-takes made by the unwary employer. This articlewill describe the agency charged with enforcingU.S. immigration laws against employers, high-light enforcement trends as they pertain to theretail industry, and discuss ways retailers can protect themselves against government penaltiesfor Form I-9 violations.
Immigration and Customs enforcement (ICE), the enforcement arm of the Department ofHomeland Security (DHS), is charged with con-ducting Form I-9 inspections and other worksiteenforcements (commonly known as “worksiteaudits”). These involve physical inspections of an employer’s work location and an examinationof records. Fines for errors committed during theI-9 verification process range from $110-$1,100per I-9 form. Criminal prosecutions can occur if facts support such actions.
Statistics spanning the last three years revealthat the Obama Administration has taken a muchtougher stance on employers who hire illegalimmigrants than any administration in decades.Enforcement agents have subjected businessesacross the country to much greater scrutiny,using tactics that were almost unheard of fouryears ago. Federal officials continue to announcerecord numbers of investigations and fines. As ofSeptember 17, 2011, ICE instituted 3,015 adminis-trative/criminal investigations — a 54% increaseover FY2008. In FY2010, ICE arrested and crimi-
nally prosecuted 196 owners, HR managers, andexecutives — a 45% increase over FY2008. ICErefused to release statistics on those employerssubject to potential criminal prosecution whonegotiated deferred prosecution agreementswith ICE or U.S. Attorneys. A careful look at theDHS’s Budget Proposal for FY2013 reveals thatenforcement of U.S. immigration laws is one ofthe Agency’s top priorities. Form I-9 worksiteaudits, as numerous as they have become,remain especially attractive for the Agency froman economics perspective. DHS pulled in over$10 million in fines alone for FY2011 and visitedmore than 2,500 worksites as part of theirenforcement efforts. Yet, many employers continue to operate on the mistaken assumptionthat I-9 audits conducted by ICE happen to others, and not them.
The retail industry is one of the nation’s largestemployers of immigrants. Out of about 14.4 mil-lion workers in the retail industry (in various retailoccupations), an estimated 3.9 million — bothlegal and illegal immigrants — are foreign-born,according to the Bureau of Labor Statistics. ThePew Hispanic Center estimates that about 12 percent of the nearly 3.9 million retail industryemployees are illegal immigrants. These statistics,coupled with the attractiveness of targeting a$4.7-trillion industry, make the retail industryhighly susceptible to immigration enforcement.While retail is not the only industry to feel theglare of the government’s searchlight, it appearsto be among the most targeted. Although immi-gration enforcement was notoriously lax in theearly 2000s, with a kind of universal wink atundocumented employees, the mounting num-ber of investigations and penalties being sought
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Importance of U.S. Immigration Laws for theUnwary Retailer
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against retail establishments show that this tidehas turned.
One of the largest fines ever issued was against aretailer in 2010. On September 28, 2010, ICEannounced that it had reached a $1,047,110 “finesettlement” with a nationwide clothing retailerfor violations of the Immigration and NationalityAct relating to its obligation to verify theemployment eligibility of its workers. The ICEannouncement revealed the settlement was theresult of a November 2008 worksite inspectionof stores in Michigan. The massive fine wasissued despite the full cooperation of the retailerduring the investigation and despite the investi-gation failing to reveal any instances of knowing-ly hiring unauthorized aliens.
While many retailers comply with the law, gov-ernment officials claim labor economists sayimmigrants are highly appealing hires becausethey tend to be especially loyal, stable, anddependable. They also are more likely thanUnited States citizens to work for lower wages,and without health insurance, sick days, paidvacations or paid breaks.
Faced with complex immigration law, targetingby ICE, and the bankrupting potential of fines forimmigration violations, employers in the retailindustry should consider the following steps toreduce their compliance risks:
• Hire competent compliance counsel to conductan internal I-9 audit. Although it is tempting toconduct an I-9 audit without legal assistance,the law often is misunderstood by HR person-nel. Attempting to remediate incorrect I-9’swithout training could result in ICE suspectingdocument tampering or claiming that the I-9
should be disregarded altogether becausethere is no adequate forensics trail for theremediation. Legal counsel can show how tomake the corrections in a way that is legallysound.
• Train, train, train. Government agencies recom-mend that employers hire an auditing law firmto train personnel to fill out I-9 forms properly.In addition to completing I-9s, HR can betrained to detect fraudulent documents, topurge I-9s that are no longer necessary (there-by reducing liability), and what to do when thegovernment comes knocking.
• Implement policies and procedures that explainand foster I-9 compliance. The governmentoften requests to see an employer’s policiesand procedures in an I-9 audit. If you havenone, this could signal a lackadaisical attitudetoward this responsibility and raise the specterof widespread problems.
• Consider E-Verify. A growing number of statesnow require employers to use E-Verify, a gov-ernment-run online system that instantly deter-mines the eligibility of job applicants to work inthe United States. Even in states where the sys-tem is not required, more retailers are choosingE-Verify. Government officials also recommendconsulting legal counsel to assist in navigatingthe E-Verify process.
Jackson Lewis attorneys are available to assist retailers with immigration enforcementissues and other workplace requirements. Please contact Amy L. Peck, [email protected], and Melina V. Villalobos, [email protected].
Retailers know there is a cottage industry ofplaintiffs’ lawyers that sues for minimal vio-lations of the Americans with Disabilities
Act’s public accommodations provision. The typ-ical multi-defendant lawsuits are brought by“professional” plaintiffs who claim they wereinjured because they were denied access to afacility or facilities (e.g., a shopping mall with pri-vate and public spaces shared by retail tenants).Relief from these lawsuits may be on its way. Abill under consideration in Congress, H.R. 3356,the ADA Compliance for Customer Entry toStores and Services (ACCESS) Act of 2011, wouldprovide employers with an opportunity to correctany claimed accessibility issues before facing liti-gation.
The ACCESS Act of 2011 would amend the ADAto give retailers and other business owners 60
days from notice of a potential violation toaddress a claim of some specific barrier at theirfacility that prevents a covered disabled personfrom enjoying access to the facility. As part ofthe proposed meet-and-confer process, retailerswould have to outline how they intend to remedi-ate the issues. They would then have 120 days toresolve the issue. No lawsuit would be permittedduring this period. Thus, as a prerequisite to filinga lawsuit, plaintiffs’ attorneys would have to showthe retailer had notice of the violation and didnot correct it.
The ACCESS Act of 2011 is a commonsense andfair approach to what has become a predatorysituation. We will keep you advised of develop-ments.
End of Frivolous ADA Accessibility Lawsuits?
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The articles in this Update are designed to give general and timely information on the subjects covered. They are not intended as advice or assistance with respect to individual problems. This Update is provided with the understanding that the publisher, editor or authors are not engaged in rendering legal or other professional services. Readers should consult competent counsel orother professional services of their own choosing as to how the matters discussed relate to their own affairs or to resolve specificproblems or questions. This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome. © 2012 Jackson Lewis LLP
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