Why didn’t management give us a clean shuttle settlement?

Win on shuttle pay and wages comes with strings attached

River Valley Co-op management agreed in late June to make shuttle time paid time starting in October, reversing its long and firmly held position. Although management refused back pay, this is big news. The turnabout comes after months of worker organizing to educate owners about the issue, followed by the launch of ItsOurCoop.org, where we collected more than 460 petition signatures in just two weeks. Workers, owners, other shoppers, and community members joined forces, and we got results

In addition, the agreement, which was arrived at following two days of closed-door mediation sessions between management and the union, gave the lowest-paid hourly workers in the store a 75-cent raise in advance of a 50-cent across-the-board raise already scheduled for October. This came as a surprise. While owners had also been giving management and the board of directors an earful about fair wages, this was not on the agenda for the mediation.

Unfortunately, these gains are undermined by the conditions management attached to them. (The full text of the agreement is at the bottom of this post.)

• First is the layoff of the shuttle drivers. The elimination of their jobs appears to be a cover for retaliation against shuttle driver Mark Heitman, who has been a leader in the public campaign for paid shuttle time. In addition, as far as we know he is the only worker to ever file a grievance directly against General Manager Rochelle Prunty, specifically for interfering with his and — by extension — all workers’ rights to engage in organizing.
• Second is an attempt to curtail workers’ federally guaranteed right to speak about their working conditions while on the job. This right is guaranteed by Section 7 of the National Labor Relations Act.

What could have been a fresh start for labor relations at the store has instead been handled in such a way as to reinforce workers’ mistrust of management and launch a whole new round of discord and confusion. This is the outcome of what our board of directors, in a July 3 letter, hails as “excellent systems … for resolving a conflict”?

Though both sides involved in the mediation did reach a precursory verbal agreement, the written settlement — as drafted by management — generated immediate objections from the two most senior union stewards. When denied the chance to formally review and propose changes to it, they ultimately refused to sign and endorse the final product. Notable too is the fact that the union rep signed off on the written agreement, which made it binding, before giving stewards the opportunity to review it.

If you think workers and owners deserve a clean settlement with no punitive conditions attached, please sign the petition.

“On the face of it, this looks like retaliation”

The store’s response to the past year’s organizing and public campaigning, and Heitman’s grievance against Prunty, was to ask the union to participate in the June mediation. These “mediations” aren’t as mild as the term suggests: as in the past, management flew in from Wisconsin Greg Leifer, a former union representative turned consultant to management.

As part of the resulting agreement, all three driving positions are being turned into non-union “supervisory” positions, and the shuttle drivers are losing their jobs. One of them learned about his fate from the newspaper. Management calls the move “reassignment,” but in a late August letter to the drivers, the store directly states that their positions “will be eliminated effective 01Oct2017.” While this amounts to a layoff, management is offering the drivers two choices: take one of the jobs being offered or “voluntarily resign.” Unlike a straightforward layoff, a resignation may leave them without unemployment compensation. [Update 12/4/17: Despite the pointed use of the “resignation” language, the store did not challenge filings for unemployment comp. Perhaps as a result of this story?]

Management has offered no convincing reason for this change.

One reason might be that the driving position’s broad, consistent contact with the staff happens to lend itself to organizing. Shuttle driver Mark Heitman, the worker liaison for ItsOurCoop.org, recognized this and campaigned actively and publicly for getting shuttle time on the clock. (He even appeared in a Daily Hampshire Gazette article.) Further, he filed a grievance directly against general manager Rochelle Prunty alleging  interference with his federal right to engage in that campaigning.

It’s important to understand that the June mediation process that resulted in Heitman’s “reassignment” was also deemed to have “successfully resolved” this grievance against Prunty, which alleged a violation of federal labor law. What are the implications of this? “In a nutshell,” says Heitman, “I filed a grievance against the general manager for violating our concerted activity rights, and I’m losing my job.”

“On the face of it, this looks like retaliation,” says Eve Weinbaum, an associate professor at UMass Amherst’s Labor Center. Weinbaum previously commented on labor issues at the store in a Hampshire Gazette article. “Punishing an activist employee for engaging in collective action is the definition of retaliation, which is illegal.” With regards to the UFCW’s role in allowing the reassignment, she says, “As a basic rule, you never give up bargaining unit positions.”

There is no clear justification for the reassignment, only the assertion that management has the “right” to supervise staff when they’re on the clock. Management is portraying this as a new development, but it’s always been the case that a mix of on- and off-the-clock employees were riding the shuttle. And of course the drivers themselves have always been on the clock. Perhaps more to the point, it’s just travel time. What kind of supervision do workers need when they’re outside the store and not performing any work-related tasks?

“Most people I’ve talked to feel that the reassignment is retaliatory,” says Connor Grogan, a cashier. “Drivers have always assisted employees who are on the clock without supervision, but management now dresses up this reassignment in the language of necessity. A lot of us have seen what Mark’s done for the public campaign. There’s little doubt to many of us that he has been the target of management due, in large part, to the wide access for organizing the staff afforded him by his position as shuttle driver.”

Union steward Justin Wentworth told the board of directors at their July meeting that while he continued to support the agreement overall, the driver reassignments were “needless” and “troubling.” He also said that it was very clear during the negotiations that management’s big issue was stopping the public campaign.

Why were these two very different issues — shuttle pay and Heitman’s grievance against Prunty — ever mediated together and resolved by the same agreement? Shuttle pay and wages are contractual issues. Heitman’s grievance alleging that Prunty interfered with his concerted activity rights is a matter of federal labor law.

The two senior stewards at the time, Tim Hanrahan and Kelsi Sleet, say that during day one of the shuttle pay mediation, Prunty said that shuttle pay depended on what happened with Heitman’s grievance the next day.

Really? The wages of the entire staff depended on whether the general manager liked the outcome of Heitman’s grievance against her?

If you agree that there’s no room for retaliation in our co-op, please sign the petition.

Co-op to drivers: take a job you don’t want, or “voluntarily resign”

While there is the appearance that Heitman is a target in this whole thing, obviously all three drivers are affected. The jobs they’ll be reassigned to aren’t specified in the agreement, but there is no job at the store remotely similar to shuttle driver. Several labor experts we’ve consulted were surprised that the agreement contains no specific protections that address the drivers’ pay level or seniority. Nor does it address what happens if they don’t want or aren’t suited for the jobs available. Two of the drivers, including Heitman, are over age 60.

Here’s what is happening: In late August, management gave each driver a letter that listed the currently available jobs. It reads in part, “Failure to complete this job offer form with a selected position by 30 September 2017 will be considered a voluntary resignation from employment with an effective date of 1 October.” A “voluntary resignation,” unlike a straightforward layoff, deprives the drivers of unemployment compensation.

What is the meaning of this maneuver? Is management trying to preserve some semblance of an ability to say that the drivers, two of whom have served the co-op well for over three years, weren’t laid off? Are they trying to save money on unemployment insurance?

Meanwhile, Heitman says that it’s not at all clear who or whether management is hiring to replace the drivers come October 1. What we do know is that the need to get staff to and from the satellite lot in an efficient way that leaves the store’s limited parking available to shoppers has not changed.

“Management hasn’t announced anything definitive, but there’s talk that they’re going to attempt to resurrect the system that was going so badly before the drivers were hired,” Heitman says. “Back then, supervisors were pulled from their responsibilities to move workers on and off the lot. It disrupted everyone’s productivity, and employee cars regularly got left on the parking lot. Management knows that every parking space shoppers can’t use represents a loss of revenue. How is it they haven’t thought this through? I’m far from the only employee who thinks this makes their intentions even more suspect.”

A compromise on the federal right to organize

The second concerning part of the agreement is the section that addresses Heitman’s grievance against Prunty. The language appears designed to restrict the very kinds of federally guaranteed organizing, known as “concerted activity,” that brought both shuttle and wage issues to owners’ attention. That activity, which included workers’ wearing buttons on their aprons, mobilized more than 460 people to sign the shuttle petition.

So, to be clear, Heitman’s grievance alleged that Prunty illegally tried to stop concerted activity in the workplace. And to resolve the grievance, management asked the union to voluntarily restrict workers’ right to that very activity — and for whatever reason, the union agreed.

“The right to concerted activity is the bedrock of US labor law,” says Weinbaum, “and if workers are penalized in any way for their collective action, it could have a chilling effect on the right to organize.”

No doubt management is worried about the store’s reputation. Is attempting to silence workers on the sales floor really the way to protect it? Wouldn’t giving them something good to say be a better strategy? This agreement could have been that.

“Everyone I’ve talked to is worried and confused about the concerted activity portion,” says Grogan, who voted against the agreement (and thereby his own raise). “We all look at the law and turn to each other and say, ‘This is illegal, right? It sounds very illegal.’ But we all know that hasn’t stopped them in the past. For me, it’s a fear that despite the injustice of this, the co-op’s just gonna do what they want regardless, and if they do something egregious they’ll just lie about it. So there’s a fear, as well, of not being heard or believed.”

The labor experts we’ve talked to say this portion of the agreement is most likely legal. Unions can bargain away certain worker rights in order to get things they want. In this case, money for our lowest paid workers. The union’s actions are for workers to pursue. For owners, this begs two questions. Why would management insist on this restriction as a condition of paying workers for their shuttle time or raising wages that were barely above state minimum? And is this in the best interest of workers, owners, and the co-op in general?

Transparency should begin, not end, inside the store. It’s only because workers had been wearing buttons about the shuttle and fair wages that many of us learned about the issues. Isn’t it in our interest as owners to hear directly from workers about their working conditions? It has clearly been in workers’ best interest.

Workers’ freedom to talk openly with owners is especially important when, in our board of directors’ interpretation of the co-op’s policy governance model, board members are forbidden to speak with our workers about their working conditions. Their sole source of information is the general manager.

If you feel that the co-op should respect workers’ rights in its actions as well as its words, please sign the petition.

A belated vote for a rock or a hard place

Another troubling aspect of this mediation is that management did not stick to the agreed agenda of shuttle time and Heitman’s grievance against Prunty. Management unexpectedly put raises for the lowest-paid workers on the table. The negotiations ended with all of the lowest-paid “level 2” workers moving up to “level 3.”

Yes, the wage bump is a victory for workers and further testament to the organizing by workers and pressure from owners. At the same time, it reflects badly on both management and the union. First, there is the bad faith inherent in throwing the agenda out the window. Both parties should have the opportunity to come into negotiations prepared. Second, such a fundamental change to the labor contract presumably required a vote of the workers.

Perhaps this did raise legal questions, or at the very least violate contract protocols, because a full month after management and the union jointly announced the agreement as a done deal, it was rushed to a vote of the bargaining unit with only a week’s notice. On August 4, workers approved the agreement 48 to 29 after limited but at times heated debate behind the scenes about the strings attached, as evidenced by the discussions taking place on a private Facebook page open by invitation to workers and a number of owners.

Management and the union had forced workers between a rock and a hard place. They could vote their survival, in the form of a much-needed pay raise sooner rather than later, or they could vote their conscience and reject what many believed to be retaliation against one of their own and the curtailment of their concerted activity rights.

“I voted in favor of the agreement despite its very serious problems,” says cashier Evan Delano, “because I didn’t want to vote down a raise that would really help some of my coworkers pay bills and survive day-to-day. I was torn about it until the very last minute, though, and I think I stand ideologically close to many folks who voted against it. It felt like a situation with no positive outcome.”

The fact that 29 workers voted down their own pay raises and/or paid shuttle time indicates just how unsavory they found the agreement to be.

Will you add your name to the call for a clean settlement to the shuttle-pay issue?

Please sign the petition.

The agreement: full text

Below is the full text of the agreement reached by management and the union, and voted up by the bargaining unit. Any typos, underlining, etc. are original to the document.

 

Letter of Understanding

On

Wages, Compensation and Benefits

Between

The UFCW, Union Local 1459 and River Valley Co-op

 

Whereas, this letter of understanding is meant to modify and replace the existing letter of understanding on parking in the current July 1, 2015 through June 30, 2018 Collective Bargaining Agreement (hereinafter, “CBA”). It is constructed and based on the following understanding of the parties:

• All members of the bargaining committee, both Union and the Co-op, will develop rules of communication that support and enhance trust. These rules will be adhered to based on Interest Based Problem Solving which is the foundation of the CBA.
• The Union and the Co-op will develop a forum for group discussion.
• Unit members will have a “voice option” through the Unions elected leadership, staff representatives and Union stewards who act as the collective voice for the employees within the bargaining unit.
• Al parties will value employee, community, as well as consultant(s) ideas/suggestions for improvements.

Whereas, the Union and the Co-op entered into mediation pursuant to Step 3 of the grievance  and arbitration procedures set for their CBA to address the issues raised in NLRB Case No.: 01-CA-186568, which was deferred by the  NLRB pursuant to Collyer Insulated Wire, 192 NLRB 837 (1971) and United Technologies Corp., 268 NLRB 557 (1984) on or about March 29, 2017 (hereinafter referred to as the “Concerted Activity Grievance Article XIII”), as well as to address issues of employee compensation involving shuttle time and employee pay rates that was brought forth pursuant to the interest based conflict resolution process set forth in the CBA.

Whereas, as an outcome of the mediation, the Union and the Co-op agree that the following matters are placed into this letter of understanding and have been agreed to by the parties in resolution of the issues presented and shall be added to the terms of the CBA:

A) Effective October 1, 2017, the paragraph labeled “Parking” in Appendix B, Letters of Understanding of the CBA shall be replaced with the following:

• Both the Union and the Co-op had every opportunity to bargain over the matter of employee parking and have agreed that employee parking polices and determining where employees park is a reasonable work rule to be established by the Co-op. The Co-op will maintain free employee parking off site and absent a substantive and material change the matter is considered resolved. Both the co-op and Union agree that if an employee has an emergency situation and needs to get to their vehicle, the MOD will act accordingly.  This issue shall not be revisited by the Parties during the term of the CBA.
• Time on the shuttle to and from off-site parking and the co-op is agreed to now be considered work time and will be compensated as such. As work time, employees who take the shuttle will be considered on the clock and the Co-op may direct employees while on the shuttle as on all paid work time.
• Time on the shuttle from off-site parking to the Co-op and from the Co-op to off-site parking will have a record keeping system.
• Supervisors will be assigned to drive the parking shuttle.
• Existing drivers within the bargaining unit will be offered positions within the bargaining unit.

B) The following modification will be made to wages:

• Wages schedule – Levels 2 and 3. At the start of the pay period on August 7, 2017 employees in level two (2) will be merged into level three (3).  Time in grade or step will carry forward into the new wage level and employees will progress on level three (3) accordingly. Therefore an employee will be placed in the corresponding grade or step from level two (2) to level three (3).

C) The parties agree to resolve the Concerted Activity Grievance Article XIII –as follows:

• – The Co-op and the Union will reaffirm the rights of bargaining unit employees of River Valley Market to engage in concerted activity as defined by the National Labor Relation Act as enforced by the National Labor Relations Board. The Parties agree that any concerted activity will occur off the retail sales floor on non-work time.
• The official National Labor Relations Board Employee Rights poster will be posted on the Union bulletin board. A copy of this poster is available at https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-3788/employeerightsposter-8-5×11.pdf.

The Co-op will educate supervisors on the provision of the CBA and the Union will educate stewards and members of the bargaining unit on the provisions  of the CBA.

• The Parties renew their agreement to the commitment that the Co-op and the Union will both act in good faith with regards to all provision of the CBA. Nothing herein will limit the legal rights of the Union or the Co-op.

D) Previously scheduled and negotiated across the board wage increase scheduled for October 2017 will be maintained as scheduled.

E) extra bullet point that is a typo: there is no point E

F) With these agreements both the Union and the Co-op are committed to the foundation of this CBA, Interest Based Problem Solving and all the provisions listed herein.

G) The Parties agree that they will notify the NLRB of the outcome of the grievance and arbitration procedure and that they will develop and issue a joint press release regarding the resolution to workplace issues addressed herein)

Both the Union and the Co-op had a full, unfettered and complete opportunity to put forth all concerns and to discuss and address all matters related to employee wages, compensation, benefits and terms and conditions of employment and the Parties have agreed that all such issues have been settled by mutual agreement of the Parties for the duration of the CBA. Neither the Union nor the Co-op have any obligation to discuss any matter related to employee compensation, wages benefits or other temrs and conditions of employment for the duration of the current existing CBA and if such discussion are to take place it will only be after agreement in writing as to such.

In good faith for the consideration and agreements made herein we the undersigned affix our collective agreement as attested to by our individual signature’s hereto on this _29th_day of June, 2017.

Photo: Thanks, Johnathan Nightingale (via Flickr)