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Discipline of Employee for Mass Union E-Mails to Co-Workers Violated NLRA

Discipline of Employee for Mass Union E-Mails to Co-Workers Violated NLRA

​The discipline of a T-Mobile call-center employee for sending e-mails to co-workers encouraging them to support the Communications Workers of America (CWA) violated the National Labor Relations Act (NLRA), the U.S. Court of Appeals for the District of Columbia Circuit ruled.T-Mobile operates a call center in Wichita, Kan., where it employs approximately 600 customer-service representatives who take calls from customers calling in for customer service. Groups of 15 employees report to a coach, and the coach is overseen by a team manager.Since 2009, the CWA—a union—has been trying to organize employees at the Wichita call center to unionize. When management learns of picketing or leafleting by union organizers in the call center’s parking lot, it generates a third-party activity report of the incident and forwards it to T-Mobile’s corporate headquarters. On May 29, 2015, a customer-service representative at the call center e-mailed her call-center workers on her work computer, using her work e-mail address, encouraging them to join union-organizing efforts. She tried to e-mail all 595 call-center workers at once, but the e-mail system sent her an automated response stating that she could e-mail no more than 100 people at a time. She then broke up the number of recipients into batches of less than 100 and sent the e-mails on breaks and after her shift. In the e-mail, she asked her co-workers to contact her with questions outside of work hours and invited them to join union organizers at a social gathering after work the next evening. A T-Mobile HR manager generated a third-party activity report after several employees notified management of the e-mail. The call-center director e-mailed all employees apologizing for the e-mail, and stated that T-Mobile does not allow mass communications for any nonbusiness purpose. The employee’s team manager met with the employee and her coach.According to the employee, the team manager told her that mass e-mails and anything union-related could not be sent while on the clock. The employee stated that she was not on the clock when she sent the e-mails. The team manager responded that the recipients were. She said that anything union-related could not be communicated by using the company’s e-mail system and could not be discussed within work areas. The team manager admitted she told the employee that she could not discuss the union while either she or a co-worker was talking to customers.In response, the union filed unfair labor practice charges. At a hearing before an administrative law judge (ALJ), the call-center manager stated that the e-mail violated T-Mobile’s Acceptable Use Policy, its No Solicitation or Distribution Policy, and its Enterprise User Standard. These policies restrict use of T-Mobile’s e-mail system to work-related communication, prohibit solicitation during work time and prohibit use of information systems except as permitted.The National Labor Relations Board (NLRB) general counsel, however, claimed that these policies were disparately enforced against the union because certain center-wide e-mails had previously been allowed. These included a facility-wide e-mail by an employee who had lost his phone charger and mass e-mails regarding personal …

Student Athletes Deemed Employees Under the NLRA

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Student Athletes Deemed Employees Under the NLRA

​Certain student athletes are employees entitled to all the protections of the National Labor Relations Act (NLRA), according to National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo in a Sept. 29 memo. We’ve gathered articles on the news from SHRM Online and other outlets.Right to Act Collectively”Players at academic institutions perform services for institutions in return for compensation and subject to their control,” Abruzzo said. “Thus, the broad language of Section 2(3) of the act, policies underlying the NLRA, board law and the common law fully support the conclusion that certain players at academic institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment.”(NLRB)Supreme Court Decision CitedAbruzzo cited a U.S. Supreme Court decision earlier this year that the NCAA can’t enforce certain rules on student-athlete pay that limit the education-related benefits players can receive. Such benefits include computers, equipment, postgraduate scholarships and paid internships.(SHRM Online)Full Breadth of RemediesAbruzzo recently has stated she will pursue the full breadth of possible remedies under the NLRA to deter violations. Her first memos included one on seeking full remedies and one on full remedies in settlement agreements. “Under the NLRA, the agency cannot mete out fines or penalties to violators of our statute, but it does have the broad discretionary power to provide make-whole remedies,” she said. “A make-whole remedy is one that aims to restore the worker’s situation prior to being subject to the unlawful conduct.”  (In These Times)Calls for Changes in Board AgendaOn Aug. 12, in her first memo as NLRB general counsel, Abruzzo presented an agenda full of recommended changes for the board. Abruzzo listed 11 board case areas under the Trump NLRB that she identified as doctrinal shifts away from previous board precedent. These include cases involving confidentiality provisions in separation agreements, defining the scope of protected concerted activity and union access.(SHRM Online)Decisions that May Be ReversedDecisions that are prime targets for reversal by a Biden NLRB, according to Derek Barella, an attorney with Schiff Hardin in Chicago, are:Caesars Entertainment. The Trump board overturned Purple Communications and held that employees do not generally have a protected right to use their employers’ e-mail systems for purposes of union-organizing activity.The Boeing Company. The Trump board issued a new standard for evaluating challenges to employee-handbook provisions and work rules, overturning a previous standard that held neutral rules were unlawful if an employee could reasonably construe them to interfere with protected rights.Johnson Controls. The Trump board upheld the employer’s right, within 90 days of labor contract expiration, to suspend bargaining and withdraw recognition from the incumbent union based on objective evidence that the union no longer has majority support.(SHRM Online) …

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Unionized Employees at AT&T Must Be Vaccinated

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Unionized Employees at AT&T Must Be Vaccinated

​On Sept. 29, AT&T announced that it will extend its COVID-19 vaccination requirement to its unionized employees, mandating full vaccination by Feb. 1, 2022, unless there is an approved accommodation. We’ve gathered articles on the news from SHRM Online and other media outlets.Thousands of Employees AffectedAT&T had about 230,000 employees as of Jan. 31, according to its most recent annual report. Thirty-seven percent are unionized. The Communications Workers of America union represents a majority of the company’s unionized employees. (The New York Times)     No Testing OptionUnlike the Biden administration’s expected emergency temporary standard (ETS) for employers with at least 100 employees, AT&T is not offering employees the option to take a weekly test instead of inoculation. The ETS will mandate employers with at least 100 employees to require vaccinations against COVID-19 or weekly testing for employees. AT&T’s policy applies to employees in stores and customers’ homes and people who are temporarily working from home.(AP via KOMO News) and (SHRM Online)Union OppositionThe American Federation of Government Employees, a 313,000-member union, criticized the administration’s additional mandate for federal employees that requires vaccination and does not give a testing option. “Changes like this should be negotiated with our bargaining units where appropriate,” said Everett Kelley, national president of the organization, which is headquartered in Washington, D.C. “We expect to bargain over this change prior to implementation.” The union membership rate of public-sector workers—34.8 percent—is more than five times the rate of private-sector workers—6.3 percent. (NBC News) and (Bureau of Labor Statistics)Labor SupportThere has been some union support for vaccinations, however. Three of the largest unions at United Airlines—the Association of Flight Attendants, the Air Line Pilots Association and the Teamsters—all issued statements suggesting the unions will accept the company’s vaccine mandate. On the other hand, the International Association of Machinists has criticized the mandate and some employees have sued.(SHRM Online) and (SHRM Online)Courts Uphold Vaccine MandatesThus far, courts have upheld employer vaccine mandates. On June 12, a judge dismissed a lawsuit some workers had filed against Houston Methodist regarding its vaccine mandate. In August, the U.S. Supreme Court denied review of Indiana University’s COVID-19 vaccine mandate for employees and students, leaving in place the rulings of lower courts in favor of the university’s requirements. A health care employer in the Cincinnati area lawfully required its employees to get vaccinated or be fired, a federal district court ruled on Sept. 24. On Sept. 27, a federal appeals court ruled in New York City’s favor on the vaccine mandate for public school employees. (SHRM Online) and (SHRM Online)Tyson Foods’ Unions Agreed to Vaccine Policy Earlier this month, Tyson Foods Inc. said that labor unions had agreed to support its requirement for U.S. employees to be vaccinated against COVID-19 by November. (Reuters via Yahoo!Finance)Unsure About Getting the Vaccine? More than 183 million people in the United States have been fully vaccinated against COVID-19 since mid-December last year and no long-term side effects have been detected, said Megan Ranney, an emergency physician and associate dean of strategy …

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Mexican Labor Laws Enforced Against US Companies

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Mexican Labor Laws Enforced Against US Companies

​Within the last few months, U.S. employers doing business in Mexico have felt the effects of the enforcement mechanisms of the U.S.-Mexico-Canada Agreement (USMCA). It is perhaps counterintuitive to many employers that the USMCA would result in labor enforcement actions against U.S. companies under Mexican law. But it does.Most readers—especially in Texas, whose largest trade partner is Mexico—will be aware that the USMCA:Went into effect on July 1, 2020.Is the result of President Donald Trump’s renegotiation of the North American Free Trade Agreement.Has a goal of enforcing the stronger labor laws that Mexico was required to enact as part of the USMCA.While the history of enforcement of labor laws in Mexico might lead some U.S. companies operating there to assume the same level of enforcement in the future, the USMCA also established an Interagency Labor Committee, which has the power to refer complaints of denials of labor rights in Mexican facilities to the U.S. trade representative, who, in turn, may take enforcement action.The first two such enforcement actions have been related to U.S. companies. This may be unsurprising—it makes sense that the U.S. trade representative has particularly good enforcement mechanisms with respect to U.S. companies that have facilities in Mexico. As a result of the first petition under the USMCA’s “Rapid Response Labor Mechanism,” General Motors entered into a comprehensive plan to address labor practices at its Silao, Mexico, facility in July.In August, the Mexican-based subsidiary of an American company, Cardone Industries, with operations in Matamoros, Mexico, entered into an action plan and agreed to pay damages, including back pay, to Mexican workers. The action plan was the result of a petition filed by the AFL-CIO and other unions.These action plans are agreements with the U.S. government and give the U.S. government power to enforce them. In effect, a U.S. government agency can now enforce Mexican labor law against the companies in these agreements. These first instances of success unions have had under the Rapid Response Labor Mechanism of the USMCA mean it is likely there will be more of these types of actions.Not only is the greater enforcement of Mexican labor laws important for U.S. companies to note, but also, as companies with cross-border operations develop environmental, social and governance (ESG) programs, they need to note how USMCA actions can impact the “S,” or social aspect, of their ESG disclosures. Due to the focus on ESG by investors and the Securities and Exchange Commission, now is the time for companies to evaluate compliance with Mexican labor standards, with respect to both their subsidiaries in Mexico and the companies in their supply chains.E. Phileda Tennant an attorney with Vinson & Elkins LLP in Houston. © 2021 Vinson & Elkins LLP. All rights reserved. Reposted with permission of Lexology. …

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