E-Blasts

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”).

Last week, a United States Appeals Court heard oral arguments regarding the National Labor Relations Board’s (“NLRB”) expanded definition of joint employer in the Browning-Ferris case. In that case, the NLRB expanded its previous standard, which required “direct and immediate control” over terms and conditions of employment to be considered a joint employer, to a more lax rule of “indirect control.” You can read more about the NLRB’s joint employer rule here and here.

Right on the heels of our report last week that the workers at Mushroom Farms, Inc., in the Watsonville area had filed a decertification petition against the United Food and Commercial Workers, Local 5 (UFCW), the United Farm Workers of America (UFW) have now filed a petition to represent these workers.  These two petitions are now pending with the Agricultural Labor Relations Board (ALRB):

Thursday, February 16, 2017

• Mushroom Farms, Inc. (2017-RD-001-SAL) – Decertification of UFCW

On Thursday, February 23, 2017, the Agricultural Labor Relations Board (ALRB) in the Salinas region conducted the election for the following petitions regarding representation of the workers for Mushroom Farms, Inc., in the Watsonville area:

Thursday, February 16, 2017
• 2017-RD-001-SAL – Decertification of United Food and Commercial Workers, Local 5 (UFCW)

Tuesday, February 21, 2017
• 2017-RC-001-SAL – Certification of United Farm Workers of America (UFW)

The tally of ballots from the election was:

The first volley has been fired in the 2017 season.  Before unions have even begun filing Notices of Intent to Take Access (“NA”) with the ALRB, some workers in the Watsonville area have decided to try to rid themselves of the United Food and Commercial Workers, Local 5 (UFCW).  This decertification petition is the first major filing this year:

  Thursday, February 16, 2017
  • Mushroom Farms, Inc. (2017-RD-001-SAL)

The UFCW, Local 5 was only certified as the employees’ collective bargaining representative just over a year ago on January 19, 2016.  With no collective bargaining agreement in place even after Mushroom Farms – a subsidiary of Monterey Mushroom – was ordered to mandatory mediation and conciliation on August 17, 2016, it appears the workers already regret their decision last January.

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