Category Archives: Workers Rights

Judge considers Dismissing Nicaraguan Banana Workers’ case against Dole.

The Associated Press reports on the bizarre litigation involving banana workers and Dole.

A filmmaker whose interviews are a critical part of hearings about the validity of a multimillion dollar judgment against Dole Food Co. insists he “wasn’t here to be a yes man” for either side in the dispute over damage to Nicaraguan banana workers.

Jason Glaser acknowledged he was being paid by lawyers representing the workers who claim pesticides made them sterile. But he said his tapes of mysterious “John Doe” witnesses, one of which was played in court Friday, may have helped or harmed either side in the lawsuit.

Glaser told Judge Victoria Chaney he is concerned about his safety as a result of testifying.

“Nobody likes the guy who shows both sides,” he said.

Chaney presided over the 2007 trial in which jurors awarded six plaintiffs $2.3 million. She held three days of hearings this week to consider whether to throw out the verdict after Dole investigators uncovered evidence that some of the workers suing the company had lied.

The “Law Blog” at the Wall Street Journal also covered the story.

Just when we thought the litigation involving Nicaraguan banana workers and Dole Foods couldn’t get any stranger, it has. (Note to self: Never again think that the Dole banana case can’t get any stranger). The case, which involves numerous alleged shady tactics by plaintiffs lawyers (as well as some shady behavior decades ago by Dole) (click here for an LB overview from last year), took a weird turn on Thursday when a filmmaker who went to Nicaragua to make a documentary said he became an undercover worker for a plaintiffs’ firm that was suing Dole on behalf of banana plantation workers.

Wal-Mart Fighting $7K OSHA fine in Trampling Death

The New York Times reports that “Wal-Mart Stores has spent a year and more than a million dollars in legal fees battling a $7,000 fine that federal safety officials assessed after shoppers trampled a Wal-Mart employee to death at a store on Long Island on the day after Thanksgiving in 2008.” The company’s “all-out battle against the relatively minor penalty has mystified and even angered some federal officials,” but Wal-Mart “says that regulators are trying to enforce a vague standard of protection when there was no previous OSHA or retail industry guidance on how to prevent what it views as an ‘unforeseeable incident.'” Wal-Mart spokesman David Tovar said, “The citation has far-reaching implications for the retail industry that could subject retailers to unfairly harsh penalties and restrictions on future sales promotions.”

ABC Show Honors Westin Boycott

Over thirty cast and crew members working on the new Body of Evidence ABC TV pilot had moved out of Westin Providence Hotel in solidarity with the Westin workers’ boycott.

The stars of the pilot, Dana Delany (Katherine Mayfair on Desperate Housewives) and Jeri Ryan (Borg Seven of Nine on Star Trek: Voyager), were among those who switched their accommodations to the Providence Biltmore Hotel.  The cast and crew, members of IATSE Locals 600, 52, 798, 161, 481 and American Federation of Television and Radio Artists (AFTRA), said that they will not be staying at the Westin Providence Hotel as long as the boycott remains in place.  Additionally members of Teamsters from Locals 251 and 817 working on the production respected the Westin Providence workers’ picket line.

Westin Providence workers, UNITE HERE, and Rhode Island Jobs with Justice commended the cast and crew for their actions.

“We’re pleased that Body of Evidence’s cast and crew took a stand to support workplace justice and moved to the Biltmore hotel. In our current economic situation, it is more important than ever to patronize employers who respect workers and provide good jobs for our communities” said Camilo Viveiros, executive director of Rhode Island Jobs with Justice.

Workers and community members have held pickets mornings and afternoons in the sun and in the rain, since the Westin Providence Hotel workers authorized a boycott of the hotel by a 138-2 vote on March 18, 2010.  The vote was taken in response to a series of unfair labor practices at the hotel, culminating in the abrupt imposition of 20% pay cuts, harsh increases in housekeeper workloads and new unaffordable health insurance rates by The Procaccianti Group management at the Westin. The Union has filed charges with the National Labor Relations Board over The Procaccianti Group’s conduct.

Pete Kuttner, of IATSE, stated “When the men and women I work with heard about the cuts in wages and benefits our sisters and brothers of UNITE HERE 217 were dealt there was no way we could continue staying at the Westin. The unions who represent the workers on ‘Body of Evidence’ support the boycott.”

“It’s an outrage that the Procaccianti management has unilaterally changed my wages and health insurance right in the middle of contract negotiations,” said Chris Cook, a Purchasing and Receiving Agent at the Westin and an Executive Board member of UNITE HERE Local 217, the Union at the hotel.  “The Procacciantis are making me choose between putting food on the table and keeping health insurance for my wife and five-year-old son.”

The boycott means that the employees of the Westin Providence are officially asking visitors and conventions not to patronize the hotel.  Some people and organizations have already decided cancel events they had planned at the hotel or book at another hotel because of the dispute.

Westin Providence workers say they will reconsider their boycott if The Procaccianti Group management resolves the unfair labor practice charges, including payment to the workers for the money they have lost in the cuts.

NLRB Rules Against Rhode Island Head Start Workers

In October 2009, District 1199 SEIU filed Unfair Labor Practice (ULP) charges with the National Labor Relations Board against Children’s Friend & Service, on behalf of the approximately 200 Head Start employees who were stripped of their union voice when Children’s Friend began managing the Head Start program for Providence & Blackstone Valley.

The charges were based on the union’s allegations of the following:

  • In its Head Start grant application, Children’s Friend promised to hire all existing qualified Head Start employees and to work with staff to meet the federal 2011 and 2013 educational goals, but it reneged on these commitments after it learned that the employees were unionized and it needed a pretext to justify ending their employment.
  • Out of 193 former employees that applied for jobs with Children’s Friend, only 79 were re-hired – even though they all met or exceeded the federal requirements for Head Start employment. The employer is essentially claiming that it decided that a majority of the former Head Start staff were not qualified to continue their employment, despite having never observed their work with children and families.
  • Children’s Friend did not hire a single member of the union’s negotiating committee, despite the fact that these workers possessed equal or greater qualifications and experience as workers who were in fact hired.
  • Children’s Friend did not follow the federal Head Start regulations that clearly require that hiring preference be given to current or former Head Start parents. Many of the displaced Head Start workers – including those on the negotiating committee – were Head Start parents before they became staff members.
  • Children’s Friend has refused at every turn to meet with the union – whether it was to discuss the transition plan when it took over the grant, or to negotiate a collective bargaining agreement with the Head Start employees.

The NLRB has now formally declined to bring a complaint against Children’s Friend.

The NLRB regional director said that “there was no evidence that [Children’s Friend] had purposely refused to hire employees of a predecessor employer in order to avoid its obligation to bargain with the union.”

“Rather, it appeared from the evidence that in narrowing its field of qualified candidates from 180 to 168, union membership or active participation was not considered a factor,” Pye, the regional director, said in a letter dated Jan. 22.

Pye also said there was insufficient evidence to support the union’s allegations that Children’s Friend engaged in an anti-union campaign to “interfere with, restrain and coerce employees in their exercise of protected concerted activities.”

For their part, the displaced Head Start workers vow to continue their fight.

“We plan on appealing this decision and working to ensure that Children’s Friend & Service is held accountable for the violations of our rights and the Head Start laws,” said Tina Heyder, a leader from the union’s negotiating committee and former Head Start employee of 19 years. “We’re qualified, experienced, and committed to our children – and it is a shame that this company has used federal tax dollars to displace over one hundred child care workers out of our chosen careers.”

Wal-Mart settles Massachusetts Wage Class-Action for $40 Million

Great news for workers rights.  The Boston Globe reports that the world’s largest retailer – Wal-Mart – has agreed to pay $40 million to as many as 87,500 current and former employees in Massachusetts, the largest wage-and-hour class-action settlement in the state’s history.

The class-action lawsuit, filed in 2001, accused the retailer of denying workers rest and meal breaks, refusing to pay overtime, and manipulating time cards to lower employees’ pay. Under terms of the agreement, which was filed in Middlesex Superior Court yesterday by the employees’ attorneys, any person who worked for Wal-Mart between August 1995 and the settlement date will receive a payment of between $400 and $2,500, depending on the number of years worked, with the average worker receiving a check for $734.

“The magnitude is large – it’s bigger than most settlements paid in wage-and-hour cases,’’ said Justin M. Swartz of New York-based law firm Outten & Golden LLP, who has handled similar cases, including a pending case against Wal-Mart. “But you would expect it to be bigger since Wal-Mart is the biggest retailer.’’

Under the terms of the settlement, neither side is allowed to comment. But in an affidavit filed with the settlement, the lead counsel for the employees, Philip Gordon of Boston’s Gordon Law Group, said the accord “dwarfs settlements of similar class actions against Wal-Mart across the country.’’

“For many employers, this settlement will serve as a reminder to take the payment of earned wages and benefits seriously. For many other employers, it will provide comfort that all Massachusetts businesses must operate on a level playing field,’’ Gordon wrote in the affidavit. “But most importantly, for employees of Wal-Mart, it finally pays them their earned wages and it puts in place systems and processes to ensure that abuses like those alleged never happen again.’’

The article notes that prior to the latest Wal-Mart settlement, the biggest wage-and-hour case payout in Massachusetts was $14.5 million last year by Canyon Ranch.

Convention Center Sues over Worker Protection Ordinance

Unsurprisingly, the anti-union, Carcieri-led Rhode Island Convention Center Authority has filed a federal lawsuit seeking to declare a recently-passed worker retention and protection ordinance as unconstitutional.

The ordinance, styled on model legislation from other cities, seeks to protect hotel workers from arbitrary layoffs and to ensure stability in the important city-based tourism economy.  The ordinance is more important than ever with Rhode Island’s unemployment rate inching north of 13%.   It was introduced by Councilman Michael Solomon and received near unanimous support from other Providence City Council members. The Council passed the ordinance twice and the measure became law when Providence Mayor David Cicilline neither signed it or vetoed it.

The lawsuit, filed by Adler, Pollock and Sheehan, argues that the ordinance is preempted by the National Labor Relations Act as well as state labor law.  In addition, the corporation argues that the ordinance violates the Constitution’s equal protection clause by including some employers and not others and that the city overreached its authority in attempting to regulate state-owned facilities.

The Court will likely uphold the constitutionality of the ordinance since ordinances such as this have been litigated in many other cities and they have passed constitutional muster.  See e.g. Washington Service Contractors Coalition v. District of Columbia, 54 F.3d 811, 817-818 (D.C.Cir. 1995).  In addition, the General Assembly has never made labor relations a subject of exclusive state preemption, as it has for education, elections, and taxation. See e.g. Providence City Council v. Cianci, 650 A.2d 499 (R.I. 1994)

Attorney General Patrick Lynch Joins AG Letter to FedEx

Rhode Island Attorney General Patrick Lynch has joined 7 other state’s Attorneys General in writing to Fed Ex and urging them to properly classify their workers as employees rather than independent contractors.

Thirty states are investigating FedEx Ground to determine if the company is misclassifying FedEx drivers as independent contractors through its owner-operator model. And more than 45 class-action lawsuits have been filed in state and federal courts against the company’s classification of drivers.

In a joint letter Thursday to FedEx, the eight attorneys general cited shared concerns about workers’ compensation and unemployment insurance, wage-and-hour laws and protection of workers’ civil rights.

“Each of our states has a responsibility under our respective laws to protect a broad range of interests associated with the employment status of an individual,” said the letter sent jointly by Montana’s Attorney General Steve Bullock and attorneys general from Iowa, Kentucky, Missouri, New Jersey, Ohio, Rhode Island and Vermont.

The letter said the eight states have formed a working group to address changes in FedEx Ground’s business model to ensure proper classification of workers.

A FedEx spokesman in Memphis, Tenn., did not immediately return a phone call seeking comment.

Obviously, if these employees are properly labeled as employees, then they will have collective bargaining rights.