Union Misses Target In New York Election

Posted by Charles E. Feuss on June 23, 2011

Blog Pic - Missed TargetIn a highly publicized election conducted by the National Labor Relations Board on Friday, June 17, the UFCW Union failed to win employee support at a Target store in Valley Stream New York.  Approximately 60% of employees at the store voted against union representation.  While the union has vowed to file objections to the election in an effort to gain a rerun of the vote, the chances for such action seem remote based on the reported grounds for the objections.

The election loss is a serious setback for the union in its effort to organize Target employees.  We recently reported on the union’s apparent shift of focus from Wal-Mart to Target in its quest to organize workers at a major retail chain.  Although the union has vowed to continue its efforts among Target employees, losing the election in Valley Stream has to be a serious disappointment.

Only time will tell if the UFCW can change the nature of labor relations in the retail industry by organizing workers at major retail chains.  At this point the only heavily unionized retail employers are in the supermarket industry.  That situation may change over time but for now the union pitch seems to be a little off-Target.

Supreme Court Rules That a Class Action Can Be Too Big

Posted by Sara Gullickson McGrane on June 21, 2011

Blog Pic - GavelAs we previously reported, the Supreme Court was going to decide if a sex discrimination lawsuit potentially impacting 1.5 million former and current Wal-Mart employees was too big.  Yesterday, in Dukes v. Wal-Mart Stores, Inc., the Court ruled that the class of employees suing the retail giant was too large and that the claims were too diverse.

The employees and their lawyers argued that despite their differences in compensation, position and circumstance, the 500,000 female employees shared the burden of facing a company-wide pattern of discrimination against women.  They claimed that this allowed them to be certified as a class for the purpose of pursuing their unified class action against the company.

The Supreme Court disagreed in an opinion, authored by Justice Scalia, that was split 5-4 on some aspects of the case, and unanimous on others.  From the ruling, this much is clear:

  • The Court unanimously agreed that the group of people suing the company should not have been certified for a "class" action under Federal Rule 23(b)(2).  This rule requires that a class action not be one where the ruling on claims by individual class members would dispose of, impede or interfere with the interests of non-class members.

  • A majority of the Court (5-4) ruled that the plaintiffs also failed to satisfy Rule 23(a)(2), which requires "questions of law or fact common to the class."  Justice Scalia specifically noted that the workers "provide no convincing proof of a company wide discriminatory pay and promotion policy."

  • Justice Ginsburg, joined by Justices Breyer, Sotomayor and Kagan, filed an opinion concurring in part, dissenting in part.  While those judges agreed the class should not have been granted under Rule 23(b)(2), they criticized the majority opinion for "disqualify[ing] the class at the starting gate."

Bottom Line

This case was one of the most closely watched cases in a long time, as the Court had not addressed the standards for class certification in over ten years. The case is expected to have far reaching implications, both in discrimination cases, as well as wage and hour and other class/collective cases, and may result in a dramatic reduction of class-based claims in those areas.

State Shutdown Looms Ahead

Posted by Dennis J. Merley on June 14, 2011

Blog Pic - Empty DeskAs Governor Dayton and the state legislature continue to wrangle over a new state budget, the possibility of a mass shutdown of government services (except for those deemed “essential”) seems very real and immediate.  If this happens, what impact might this have on those of us who operate in the human resources arena in the private sector? 

Judging by Attorney General Lori Swanson's recent filing with Ramsey County District Court, the impact could be huge.  In her petition to keep "essential" services of the government running, Swanson made virtually no mention of the various offices comprising the Department of Employment and Economic Development (DEED), the Department of Labor and Industry (DLI) or the Department of Human Rights (DHR), or the Bureau of Mediation Services (BMS).  The lone exception was for the services of DEED's unemployment insurance office, whose services Swanson called "protected by the procedural due process requirements of the fourteenth amendment."

Swanson did ask the court to appoint a "special master," as happened during a partial state government shutdown in 2005.  The special master is a judge whose sole job is to hear legal arguments over which state services should be essential and then issue rulings.  The judge may determine that portions of DEED, DLI, MDHR and BMS are essential, but it is likely that significant portions of these departments will be shuttered.  For example:

  • DEED: Job placement, training and other related services will likely cease.  Claim and appeal processing for unemployment benefits will almost certainly be affected.

  • DLI: Qualified Rehabilitation Counselors (QRC’s) in the Vocational Rehabilitation Division presumably will likely be laid off, as will those who work with people seeking to become licensed or re-licensed as boiler operators.  Services in the licensing and inspection areas for construction will be curtailed, which will certainly affect work in that industry.

  • DHR: Compliance audits and approvals necessary to bid on or receive awards of government contracts will have to wait and case investigations will almost certainly be suspended.

  • BMS: Mediation and arbitration proceedings will likely be postponed, as well as petitions to certify or decertify bargaining representatives.

No doubt there are many more issues lurking ahead if the budget impasse continues.  We will continue to monitor these developments and keep you apprised.

Department of Human Rights

UFCW Seeks Easier "Target"?

Posted by Charles E. Feuss on June 02, 2011

Blog Pic - ProtestersFor several years, the UFCW union, the nation’s fifth largest labor organization and certainly one of the most active when it comes to organizing, has sought to organize Wal-Mart employees in a number of different states.   In spite of this all-out effort, highlighted on the UFCW website as “Making Change at Wal-Mart”, the union has met with almost no success. As of today, not one of Wal-Mart’s 2 million employees is represented by the union.

Now, the UFCW seems to be turning its attention to another non-union retail powerhouse: Minneapolis-based Target Corporation.   With 350,000 employees in the U.S., Target does not represent quite as large a prize as Wal-Mart, but the union would love to represent even a small percentage of their workers.  The union has filed a petition for an election at a Target store in Valley Stream, New York, claiming to possess signed union authorization cards from over half the employees in that store.  According to reports, the union is focusing on 27 additional stores in that portion of Long Island, and hopes to bring a large number of their employees into the fold.   Target has publically announced its opposition to the union, noting that its employees are well-treated and do not need union representation.

Only time will tell if the UFCW is successful in organizing any Target workers, but the shift in focus from Wal-Mart to Target is interesting.   It could be that the union simply found a willing group of Target employees in Long Island and is happy to capitalize on that opportunity.  It may also mean the UFCW is hoping that Target’s corporate culture and self-portrayal as more chic and with-it than Wal-Mart, along with their desire to be a giving and responsible corporate citizen, will smooth the road to union organizing.  While the UFCW would doubtless like to represent employees at both companies, Target may represent an easier, um . . . objective, at this time.

Bottom Line

The retail industry represents one of the largest and fastest growing segments of the U.S. workforce. Today unions represent only about 5% of retail workers.  The ability of the UFCW and other unions to organize employees at Wal-Mart, Target and other national retail chains is a critical element of labor’s efforts to remain vital in the private sector.  Stay tuned as we watch this struggle play out at a retail store near you!