On Tuesday, four Massachusetts Teamsters union members were acquitted of charges that they tried to extort jobs from a “Top Chef” non-union production company using strong-arm tactics.  Prosecutors alleged that the Teamsters violated the Hobbs Act by using threats of economic harm and physical violence to get money for additional truck-driving services that “Top Chef” wasn’t in a position, and didn’t want, to fill. Prosecutors put on evidence of the union members using racial and sexists slurs, brandishing weapons, and slashing “Top Chef” crews’ tires. The Teamsters also allegedly swarmed “Top Chef” star Padma Lakshmi’s van when it arrived on set and one of the Teamsters threatened to “smash” her “pretty little face.”  Incredibly, despite all this, after deliberating for almost 19 hours, the jury returned a verdict of not guilty.

Marvin Kaplan Sworn in as NLRB Member

On August 10, 2017, Marvin Kaplan (“Kaplan”), one of President Trump’s nominees to the National Labor Relations Board (“NLRB”), was sworn in as a member. Kaplan’s term will run until August 27, 2020. As we previously reported here, business groups expressed their approval of the nomination, and it is expected that Trump’s NLRB (once his final nominee is confirmed and sworn in) will reverse many Obama-era rulings.

Judge Lydia Villareal Hears Motion for Summary Judgment Regarding AB 1513 “Safe Harbor”

On August 9, 2017, SLG Senior Labor Counsel Jennifer Schermerhorn attended oral argument on a summary judgment motion in the Murcia v. Tanimura & Antle matter pending in the Monterey Superior Court before Judge Lydia Villarreal. In that case, Plaintiff, on behalf of herself and a class of employees, is claiming she was not properly compensated for rest breaks from 2011 through 2015. The defendant employer asserted an AB 1513 “safe harbor” affirmative defense.  Under AB 1513, if an employer properly made AB 1513 safe harbor payments, it will have an affirmative defense to claims or causes of action based on the employer’s failure to timely pay compensation due for rest and recovery periods and other non-productive time “for time periods prior to and including December 31, 2015 . . . ”

On Wednesday August 9, 2017, employees at Premiere Raspberries, LLC (“Premiere Raspberries”) in Watsonville, California voted in favor of the United Farm Workers during a union representation election. The margin of victory for the UFW was 269 to 236. Assuming the election is certified by the Agricultural Labor Relations Board, the UFW will look to begin negotiations on a collective bargaining agreement for the approximately 500 employees at Premiere Raspberries.

On June 7, 2017, Secretary of Labor Alexander Acosta announced that the Department of Labor (“DOL”) was withdrawing two informal guidance letters that it previously issued on joint employment in 2015 and 2016 during the Obama administration. These guidance letters expanded the “joint employer” doctrine - which sets forth the conditions for when one company can be liable for employment and civil rights violations made by another company - stating that an employer who “indirectly” controls another employer’s workplace could be liable. This “indirect” standard significantly expanded an employer’s joint employer liability, and created confusion for employers as to what indirect control meant.

Last week, a federal appellate Court upheld a National Labor Relations Board (“NLRB”) ruling that a Burger King franchisee violated the National Labor Relations Act (“NLRA”) when it refused to hire an employee because the employee had previously engaged in union activity. The franchisee purchased a Burger King franchise in 2015 where employee Terrance Wise (“Wise”) had worked since 2012. During his employment at Burger King, Wise had taken a leadership position with the Worker’ Organizing Committee, which advocated for fast food workers to earn $15 per hour. Wise was also involved in unfair labor charges brought against the franchise at which he worked. After the sale was completed, Burger King rehired the general manager and several other employees but did not rehire Wise. Wise then filed charges with the NLRB.

An employer would normally be justified in firing an employee who, during a rest break, posted on Facebook that his supervisor was a “NASTY MOTHERF[@#$]ER,” “F[@#$] his mother and his entire f[@#$]ing family!!!! What a LOSER!!!!!” But what if the Facebook post at issue also included the following language, “Vote YES for the UNION!!!!!!!”?  Is the call to unionize sufficient to insulate the employee from termination?  Shockingly, the Second Circuit Court of Appeals, in NLRB v. Pier Sixty LLC, found that under the circumstances the employee’s termination violated the National Labor Relations Act (“NLRA”).

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