A Two-Edged Sword

by | Aug 25, 2022 | NLRB, Unions

The United Mine Workers discovered that make-whole remedies for unfair labor practice charges can cut both ways. The National Labor Relations Board ordered the union to pay $13.3 million to Warrior Met Coal Mining for costs incurred during a lengthy strike. These costs included increased security, damage repair and lost revenues from unmined coal, and individuals were due almost $30,000, mostly for damage to vehicles. The union is challenging the computation of damages (which includes interest) and depending on the NLRB Regional Office’s final tally, the parties may litigate before an administrative law judge.

On the other side of the coin, Chipotle ran afoul of New York City labor laws and will have to cough up $20 million to current and former employees. The 13,000 employees who worked for New York City outlets from 2017 to current are eligible for compensation based on the chains failure to comply with the city’s requirements to post work schedules 14 days in advance, pay a premium for schedule changes, and offer available shifts to current employees before hiring new employees.

In the recent Sanitary Truck Drivers decision, the D.C. Circuit Court opened the door for the NLRB to move joint employer standards back to the Browning-Ferris standard, allowing indirect control to be included as a determinant of joint-employer status. The Board recently announced that joint-employer is near the top of their list to address. Though not defining a timeline, the Board committed to “engage” in rulemaking on the standard for determining whether two employers, as defined in section 2(2) of the [NLRA,] are a joint employer under the Act.”

NLRB General Counsel, Jennifer Abruzzo, is taking some heat from an unexpected source: the Starbucks workers union. Although Abruzzo has committed to put an end to captive audience meetings, implement card check recognition, and has filed 19 complaints against Starbucks accusing the company of 81 unfair labor practices, Richard Bensinger, one of the Starbucks union’s lead organizers, complains that Abruzzo has not been aggressive enough in going after Starbucks. The main source of contention is the company’s announcement that it would give raises and improved benefits to employees at its non-union stores, but not to workers at stores that have already unionized or petitioned for a union election.

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