September 13, 2021
ICYMI ELON MUSK STILL A UNION-BUSTER
SSDS Attorneys Prevail Against Tesla at NLRB For a company that likes to present itself as the cutting edge—or “bleeding edge,” to use the jargon of Silicon Valley—Tesla turns out to use the same anti-union weapons of millions of other more old school employers. And, as it turns out, the tactics it has chosen are mostly illegal. In a unanimous opinion, the National Labor Relations Board has ruled that Tesla violated the National Labor Relations Act in response to the UAW’s organizing efforts at the Company’s Fremont, California auto manufacturing plant. In its decision, the NLRB found:
Tesla unlawfully fired and/or disciplined union supporters for engaging in union activity.
Tesla CEO Elon Musk unlawfully threatened employees via Twitter with the loss of their stock options if they selected the UAW as their union representative.
Tesla unlawfully interrogated employees regarding safety complaints.
Tesla unlawfully prohibited employees from speaking to the media about working conditions in the plant. The unlawful policy stated “It is never OK to communicate with the media or someone closely related to the media about Tesla.”
Hear Tesla worker Richard Ortiz’s story about how he was terminated after fighting for a union via A More Perfect Union.
NEW NLRB GENERAL COUNSEL JENNIFER ABRUZZO SIGNALS PIVOT FROM TRUMP-ERA PRECEDENT
General Counsel Abruzzo issued her first memorandum on August 12, 2021, which signaled her disagreement with eleven recent Board cases from the Trump era that overturned previous Board law. These cases involve employer handbook rules, confidentiality provisions in separation agreements, defining the scope of protected concerted activity, union access, and jurisdiction over religious institutions. All of these are areas where the new Board can correct the errors of the last four years. The memorandum also outlines other policy changes Abruzzo plans to examine, including:
Return of Joy Silk bargaining orders—an order to recognize and bargain with a union based on a card majority if the employer fails to establish good faith doubt of majority status. Joy Silk Mills, Inc., 85 NLRB 1263 (1949).
Narrowing the standard for lawful use of permanent replacements—seeking to overturn Hot Shoppes, 146 NLRB 802 (1964), which limited the examination of an employer’s motivation for hiring replacements.
10(j) recommendations in all cases involving discharges during an organizing drive and first contract bargaining
Tesla unlawfully prohibited employees from speaking to the media about working conditions in the Fremont, California plant.
Make-whole remedies for bad faith bargaining—seeking to overturn Ex-Cello Corp, 185 NLRB 107 (1970).
CAL/ OSHA ISSUES OVER $1 MILLION IN FINES TO SOUTHERN CALIFORNIA GROCERY STORES AND MEATPACKING PLANTS
Grocery and meatpacking workers have served our communities with essential food and products throughout this unrelenting pandemic. Unfortunately, these workers have experienced COVID-19 infections and deaths at a rate far higher than that of the general population. UFCW Local 770, a union serving these essential workers, pushed Cal/OSHA to take action to keep workers safe by ensuring employers adopted necessary crowd control, physical distancing, physical partitions, and/or PPE measures. This was hard work: not only did Cal/OSHA face a public health crisis of unprecedented proportions, but some employers resisted taking even the minimum appropriate steps to deal with the pandemic. Yet after a year of inspections, Cal/OSHA has, to date, issued over $1 million in fines to employers of essential workers at over 40 grocery and meatpacking worksites in Southern California.
STUDENT RESEARCHERS UNITED-UAW ORGANIZE 17,000 WORKERS AT UNIVERSITY OF CALIFORNIA
A super majority of 17,000 student researchers at UC campuses across the state signed authorization cards that were submitted to PERB in May 2021. PERB verified that majority existed on August 4, 2021. The student researcher card-check majority is a capstone in a decades-long organizing drive focusing on academic student and academic employees in the University of California system. Years of litigation in PERB paved the path for the University to recognize the UAW in 1998 as the bargaining representative for graduate student teaching assistants, readers and undergraduate tutors. However, graduate student researchers were denied bargaining rights under the existing law at that time. Subsequently, the UAW organized and won recognition for 11,000 Postdoctoral Scholars and Academic Researchers across all UC campuses, in 2008 and 2019, respectively. Recently, after much advocacy, the state legislature amended the law to provide the opportunity for graduate student researchers to finally organize. That change has led to thousands of such graduate researchers asking for a seat at the table today. Union membership in the country will actually increase by .1% as result of this year’s student researcher organizing campaign. SSDS has been counsel to the UAW at each step of this journey for bargaining rights and looks forward to seeing this unit of academic employees formally recognized by the University and achieving a contract… stay tuned.
ATTORNEY SPOTLIGHT KIRILL PENTESHIN
SSDS added Kirill Penteshin as a partner in its Los Angeles office in July 2019. Kirill brings ten years of experience as the General Counsel of UNITE HERE Local 11, which represents and organizes hotel employees in Southern California and Phoenix, AZ. “Kirill understands that a hard-fought victory requires a variety of legal tools combined with outside-the-box thinking,” said Margo Feinberg, his partner at SSDS. “He approaches the art of legal practice with the mind of an organizer as seen through his recent success assisting bike share workers win a union in Los Angeles.” From 2009 until 2019, he represented Local 11 and its members in various legal practice areas, including labor law practice before the NLRB, grievance and arbitration proceedings, DLSE and DFEH administrative investigations and hearings, and other types of employment litigation. Prior to his departure, Penteshin represented Local 11 as lead counsel in its 2018 Los Angeles area-wide contract negotiations with dozens of hotel employers, which resulted in historic increases in union members’ wages and benefits.” He continues to assist the union in various matters, including a recent victory at the National Labor Relations Board, Kava Holdings, LLC, et al. d/b/a Hotel Bel-Air and UNITE HERE Local 11, Case 31-CA-074675, in which the Hotel Bel-Air was ordered to pay millions in back wages and benefits and to reinstate over 150 former workers. Penteshin is defending the award on appeal before the Ninth Circuit. Kirill began his defense of workers’ rights at Yale Law School, where he participated in clinical advocacy representing low-wage restaurant workers and UAW Region 9A. He has taught a workers rights clinical course at UCLA Law School as an adjunct instructor, and a seminar on employment discrimination and sexual harassment for the LA Trade Tech Labor Studies program. And, of course, he dealt with these issues at Local 11, both in representing the Union’s members and addressing these issues internally. He currently represents private and public sector unions in civil litigation, matters before federal and state administrative agencies, and grievance and arbitration proceedings. He is fluent in Russian and Spanish. Penteshin is a proud new father, and when his nine-month-old son permits, enjoys hiking and strategic board games.