Monday morning musings for workplace watchers.
Ian Kullgren: The first Apple Store union in Towson, Md., is getting ready to negotiate its first contract early next year—which could end up being its hardest fight yet.
The inaugural Apple Store contract will be felt far beyond Maryland, and will serve as the basis for subsequent contracts.
In other words, the stakes are high.
The union bargaining committee has been meeting twice a week to draft its proposals, and plans to start bargaining with the company sometime in January, said David DiMaria, an organizer with the International Association of Machinists who led the Towson campaign.
Pay will be a top issue, along with professional development and health and safety, DiMaria said.
“You’re writing everything from scratch, and Apple has a lot of policies,” he said.
Only two Apple retail locations in the US are unionized—Towson, under the International Association of Machinists, and a store in Oklahoma City under the Communications Workers of America. But workers at scores of other locations have been exploring the idea and complained about Apple’s conduct.
National Labor Relations Board prosecutors this month said that Apple broke federal law by interrogating and coercing employees at an Atlanta store that ultimately withdrew its petition for an election. Another labor board official in New York filed a complaint against Apple for allegedly intimidating workers trying form a union at the World Trade Center store. The company has denied wrongdoing.
Employers have the ability to stall first contracts, sometimes for years. It takes an average of 465 days for a newly recognized union to ratify a first contract, a recent Bloomberg Law analysis found.
“We hope for the best and prepare for the worst,” DiMaria said.
READ MORE:
- Apple’s Labor Tactics in Atlanta Deemed Illegal by the NLRB
- Apple Union Win Shows Labor Gains in Organizing-Resistant South
- Apple Adjusts Anti-Union Pitch as Labor Board Counsel Bears Down
- Apple Store Workers in Maryland Become First in US to Unionize
- ANALYSIS: Now It Takes 465 Days to Sign a Union’s First Contract
Rebecca Rainey: Federal judges appeared skeptical last week that restaurant industry groups would face harm from compliance costs if a rule limiting the use of the tip credit is allowed to remain in place.
The US Court of Appeals for the Fifth Circuit heard oral arguments Dec. 6 in the Restaurant Law Center and Texas Restaurant Association’s request for a preliminary injunction to block the rule, which has been in place since late last year.
The legal fight is over a DOL rule that requires employers to pay the full federal minimum wage of $7.25 an hour to tip-earning workers if they spend 20% of their hours a week or more than 30 minutes straight doing non-tip earning work, like rolling silverware. Employers can currently pay their workers as little as $2.13 an hour, so long as the worker earns at least $30 a month in tips and their wages reach the full minimum rate of $7.25 an hour at the end of the pay period.
The appellate court questioned whether a preliminary injunction would be a necessary remedy, given that the lower court overseeing the case has set a hearing in January on motions for summary judgment filed by both the agency and the restaurant groups. The panel of three judges also raised questions about the difference between a nearly identical “80/20" guidance document, which had been in place during the Obama administration, and the final rule codifying that guidance.
Arguing on behalf of the restaurant groups, Paul DeCamp of Epstein Becker & Green PC said the rulemaking included a new limitation, which requires employers to pay the full minimum wage to tip-earning workers if they are doing non-tip earning work for more than 30 minutes straight.
DeCamp noted that the regulation has never explicitly included a recordkeeping requirement, but if employers don’t keep records of when employees are doing side work, as opposed to tip-earning work, they leave themselves “exposed to massive litigation.”
“This regulation really forces employers to maintain these records, not because of a recordkeeping violation, because they’d get slaughtered in litigation if they don’t have records,” DeCamp said. “So it forces employers to change their practices significantly.”
But Jennifer Utrecht, who represented the Labor Department, disagreed that the new 30 minute requirement caused any additional costs to comply with the rule, and argued that the restaurant groups couldn’t show that “even one of their restaurants has in fact made these changes or has to make the sort of change.”
“30 minutes is a clear and discrete chunk of time,” Utrecht said. “It’s just a question of on or off. Am I taking the tip credit or am I not taking the credit for that period of time?”
The US District Court for the Western District of Texas in February rejected the industry groups’ request for a nationwide injunction, finding that they failed to prove they would be harmed. The restaurant groups then appealed to the Fifth Circuit.
But the odds may have changed for the restaurant groups, even if the Fifth Circuit denies their request for an injunction. The case has since been reassigned to a new judge in the Western District of Texas, David Ezra, a Reagan appointee.
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