KALAMAZOO, MI – Almost 20 months after Panera Bread bakers in Southwest Michigan voted to form the chain’s first union in the United States, they are expected to sit down with their employer at the bargaining table Thursday.
The journey to the first round of negotiations has been a drawn out, often-acrimonious one for the fledgling union and Bread of Life, owner of 63 Paneras in West Michigan and southern California.
The bakers, most of whom make $11 or less an hour, said they have faced wrongful discipline, intimidation and, at one store, surveillance. For its part, the company said the bargaining unit was inappropriate and has appealed the decision certifying the union.
“Twenty months later and we’re still here,” said Kathleen Von Eitzen, a baker at the Battle Creek Panera and one of two union stewards. “We’ve been recognized, certified and now we have provisional bargaining. They’re baby steps, but they’re steps.”
The labor dispute has been complicated by a pending Supreme Court case and the issue, unfolding against the backdrop of Michigan’s new right-to-work law, has sparked national headlines and protests. Over the past several months, the bakers have traveled from Lansing to Washington, D.C., to speak about their situation.
Their fight to form a new union also comes at a time when union membership in the U.S. has declined to a low of 11.3 percent, including 6.6 percent in the private sector.
Thursday’s scheduled meeting is the result of a September agreement settling a third round of unfair labor charges brought before the National Labor Relations Board by the union, part of the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union. The settlement includes a clause regarding provisional bargaining between the company and the union, something everyone interviewed described as a positive turn of events.
“I would like to really celebrate that the parties are sitting down and bargaining. I think that is a very, very good turn of events,” said Terry Morgan, regional director of the NLRB in Detroit, before cautioning, “They’re at the beginning of a very long process.”
For its part, a spokesman for Bread of Life also described the company as “encouraged” by events.
“We feel encouraged. We’ve worked very hard and pretty creatively to create a solution to meet everybody’s needs,” said Sandy McElfresh, director of sales and marketing for Manna Development in Encinitas, Calif., the parent company of Bread of Life, which is owned by Patrick Rogers and Paul Saber, a former McDonald’s executive.
The length of time between the vote and the first round of negotiations is outside the norm, and it is rare for restaurant workers to vote to unionize in the first place, said the NLRB’s Morgan. But otherwise, the legalities involved in the dispute are not inherently unusual, she said.
What’s complicated matters is a ruling by the D.C. Circuit Court of Appeals last January. In Noel Canning v. NLRB, the court ruled that President Obama’s recess appointments to the NLRB overreached his constitutional authority, leaving the board without a quorum and unable to hear cases for months. (The Senate held confirmation hearings July 31 and the board again has a quorum.) The administration has asked the U.S. Supreme Court to hear the case and arguments are set for January.
In an August 2012 settlement, the NLRB had certified the bakers’ union and ruled that the company violated the law by failing to recognize and bargain with the union. Bread of Life appealed the decision to the D.C. Circuit Court. The company has argued that the bargaining unit is inappropriate and should include bakers from all 19 of the Paneras in West Michigan — not just the six in Southwest Michigan. The labor dispute is one of an estimated 100 or so put on hold until the high court’s decision.
The prolonged wait has been stressful for both sides, said Morgan.
It’s easy for people to say, “Oh, look how long this is taking,” she said. “But when you’re living it every day … it’s very hard to have all this uncertainty pending for so long. I think it’s very stressful on everybody.”
Once the Canning case is decided, it’s unclear how the NLRB will decide to proceed in the wake of the ruling, said Morgan. In a 2007 case, New Process Steel v. NLRB, she said, the board elected to reevaluate prior labor decisions.
If the court upholds Canning, she said, “We will certainly be in a situation where all those decisions made in that period of time will be in question.”
Given the protracted uncertainties, the settlement allows both sides to move forward, pending the court’s decision, McElfresh said.
“In September we worked with the NLRB to come up with a creative resolution that allowed Bread of Life to maintain the status quo in its current operations, maintain its appeal to the D.C. Circuit, and use a framework to provisionally bargain with the union over any material changes to baker terms and conditions of employment,” he said. “We believe this is a win-win solution that creates the opportunity to break the cycle of unfair labor practice charges that developed while our appeal is stayed.”
The settlement, however, does not constitute any admission of wrongdoing by Bread of Life, McElfresh said, and it also does not mean that the company recognizes the union as an exclusive bargaining authority.
“Our agreement with the NLRB expressly states that Bread of Life is not recognizing the union as the exclusive representative of the bakers it claims to represent,” he said. “Likewise, Bread of Life’s agreement with the NLRB expressly states that the company does not admit that it violated the National Labor Relations Act.”
McElfresh said that Bread of Life intended to bargain in good faith while awaiting a decision on the appeal.
“We fully intend to engage the agreed to process in good faith, but still hope that the merits of our appeal will affirm that the appropriate unit for bargaining is all Bread of Life bakers in West Michigan,” McElfresh said.
For her part, Von Eitzen said she’d welcome a chance to talk to the Grand Rapids bakers about joining the union.
The bakers interviewed said they had modest expectations for Thursday’s initial round of negotiations.
“I don’t hold out a lot of hope for the meeting,” said Von Eitzen.
“I think it will be a disaster,” said Jared Miller, a baker at the Panera on West Main Street in Oshtemo Township and the other union steward.
But the two bakers, who often finished each other’s sentences during the interview, described themselves as re-energized by the terms of the September settlement, particularly regarding restitution for a former union member who was fired by the company in May.
As part of the settlement, all full-time bakers received 2 percent of their base salary, Von Eitzen said. According to the settlement, six bakers received hourly increases effective Sept. 1. Kyle Schilling, a former baker and union member who was fired in May and waived his right to reinstatement, received “out of pocket expenses he incurred while searching for a job and for any loss of earnings and other benefits he incurred because we fired him,” the settlement reads.
The settlement also expunges write-ups, written warnings and language in performance reviews relating to several of the bakers, including Schilling. It also specifies that the bakers can freely bring concerns and complaints to supervisors without interference and engage in union activities without fear of retaliation.
The bakers interviewed said that when they voted to form the union, they never thought it would take more than a year-and-a-half just to pull up a chair at the bargaining table.
They described the process as an exhausting war of attrition — pointing out that three of the 18 bakers who originally participated in the vote have since left the company. The low point, they said, came earlier this year with Schilling’s dismissal.
“Right before we settled, I think we were all weary,” said Von Eitzen.
Without the September settlement, “I think we’d all be looking for different jobs,” said Miller.
But none of those interviewed said that they were ready to give up. When asked if the vote had been worth it, a third baker, Mary Warren, was unequivocal: “More than worth it.”
Miller and Von Eitzen said the past year-and-a-half, while draining, also has strengthened the bakers — sometimes in unexpected ways. Miller pointed to bakers who had never voted before who are now registered to vote as well as Von Eitzen, who didn’t know how to use email before they unionized and now is on Youtube talking about the union.
“I’m not going to quit,” said Von Eitzen. “My mom was a union president. So, this has been a journey. It’s been a tribute to my mother and the values she taught me. I will fight until probably I join my mother.”
In some cases, she and Miller said, bakers who initially opposed the union have become “fervent supporters.”
“Every time they get rid of one of us, another one stands forward,” said Von Eitzen.
One of those is Warren, a baker in Battle Creek who voted against forming the union and said she used to clash with Von Eitzen.
“I don’t think anyone wants a union,” said Warren. “Wouldn’t you rather your company just do the right thing?”
When asked what changed her mind, Warren said she was disturbed by what she described as unpunished retaliation against Von Eitzen by another baker and unmet promises by her employer.
“They made so many promises that it was going to get so much better, and it never did,” she said.
Miller said he doesn’t regret the vote and said that the past months have solidified his resolve.
“It’s the David and Goliath story,” said Miller. “We’re getting pretty good with that slingshot.”
Wladyslaw Haniszewski — an uninsured and undocumented immigrant who had lived in the U.S. for about 30 years — was sent back to his homeland by a New Jersey hospital without ever giving his consent, supporters say.
Now Haniszewski is stuck in a hospital in the Polish town of Boleslawiec and furious diplomats are demanding answers from the Robert Wood Johnson University Hospital in New Brunswick.
“Imagine being carted around like a sack of potatoes,” said Consul General Ewa Junczyk-Ziomecka.
Junczyk-Ziomecka said she and other diplomats were trying to help the 69-year-old patient, who was identified by friends, when the hospital suddenly shipped him overseas without telling them.
They learned only last week that he was gone, she said.
Haniszewski is awake but unable to speak with doctors, the consul said. “He can smile from time to time, but he is unable to communicate,” she said.
Haniszewski, who suffers from a blood disease, lived for many years in Perth Amboy, N.J., before losing his job and his apartment and moving into a shelter, said his friend Jerzy Jedra.
Jedra took Haniszewski to the hospital earlier this month and it was there that he suffered a stroke. “This is a very good man who I saw on a daily basis for some 12 years,” said Jedra.
U.S. hospitals are legally bound to give emergency care to all, but can effectively deport stabilized undocumented patients through a little-known process called “medical repatriation.”
They must first get consent either from the patient, family or a court guardian. In Haniszewski’s case — first reported in the Polish-language paper Nowy Dziennik — consular officials say this did not happen.
He is estranged from his two daughters in Poland; the consulate said they were trying to secure him a court guardian when he was sent back.
“It’s an incredibly disturbing case,” said Lori Nessel, director of the Center for Social Justice at Seton Hall University School of Law. “This kind of action seems clearly illegal and also not ethical, but it’s hard to bring a legal action.”
A Robert Wood Johnson University Hospital spokesman said the hospital followed proper procedures — but declined to discuss case details, citing privacy law.
“The individual was informed regarding his discharge plan and care. As the hospital’s understanding of the facts differs from the published reports, we are conducting a thorough review of the procedures and communications surrounding this gentleman’s care,” said Peter Haigney.
He said the hospital only repatriates patients if they are satisfied a health care provider in the patient’s home country will give needed care.
U.S. Immigration and Customs Enforcement plays no role in these repatriations, which are paid for by hospitals themselves trying to unload patients that need costly, longterm care.
Patients are typically put on a chartered flight.
Haniszewski was flown by Air Escort Medical Flight, Nowy Dziennik reported. A receptionist with the company’s dispatch service could not immediately confirm this.
U.S. hospitals have sent or tried to send more than 800 immigrants back home since 2006, according to an analysis by the Center for Social Justice at Seton Hall University School of Law and the Health Justice Program at New York Lawyers for the Public Interest.
“It’s hard to document how often it happens because it happens in the shadows,” said Shena Elrington, director of the Health Justice Program.
“We have been doing some outreach to consulates and are hearing that it happens with increasing frequency.”
Hospitals bear a potential burden of millions of dollars in care if patients are unable to pay. Often domestic long-term care facilities or nursing homes are reluctant to take these patients, so hospitals find institutions in their homelands who will.
Advocates fear repatriations will become more common by 2014, when the federal government, under the Patient Protection and Affordable Care Act, begins to reduce payments to hospitals that care for a disproportionate number of the uninsured.
“A hospital should not be in the business of deporting patients,” said Elrington.
“It’s very concerning when a private actor decides to take it into its own hands and essentially deport the person just completely outside of the immigration process.”
By Jefferson Cowie Published: June 24, 2013 nytimes.com
ITHACA, N.Y. — SEVENTY-FIVE years ago today, President Franklin D. Roosevelt signed the Fair Labor Standards Act to give a policy backbone to his belief that goods that were not produced under “rudimentary standards of decency” should not be “allowed to pollute the channels of interstate trade.”
The act is the bedrock of modern employment law. It outlawed child labor, guaranteed a minimum wage, established the official length of the workweek at 40 hours, and required overtime pay for anything more. Capping the working week encouraged employers to hire more people rather than work the ones they had to exhaustion. All this came not from the magic of market equilibrium but from federal policy.
For decades afterward, Congress brought more people under the law’s purview and engaged in perennial struggles to maintain or increase the minimum wage. Fifty years ago this month, John F. Kennedy signed its most important amendment, the Equal Pay Act, which guaranteed women and others equal pay for equal work.
Despite this noble history, today the act faces an uncertain future, thanks to a series of disconcerting shifts in the way we think about work in America.
The problem is indicative of the moral and political slipperiness of our time. A large and growing number of employers willfully classify their employees as “exempt” from the law by shifting their jobs, but not their pay, to administrative, executive and professional categories. Being exempt allows employers to ignore pesky things like overtime or minimum wages, since these are salaried, not hourly workers. Lawsuits over back overtime pay resulting from misclassifications have gone through the roof.
If the line between exempt and nonexempt workers has become unfairly blurred, the line distinguishing employee and independent contractor has faded to near invisibility. We are moving toward the “1099 economy,” named after the tax form provided to independent contractors, a classification that often walks the line of legality.
For some workers, being a 1099’er means more flexibility, creativity and control over their work. However, there are many more reluctant 1099 workers who want regular jobs but find themselves locked out of the system by employers looking for an easy way to buck their responsibility to their employees.
And then there is the most infamous classification hustle: the internship. For bright, young (and typically affluent) interns at America’s top corporations there is no actual job, so there are no fair labor standards to apply. That means no minimum wage and no maximum hours. There is often no pay at all.
A recent decision by the Federal District Court in Manhattan declaring that the hard-working “interns” involved in making the 2010 film “Black Swan” for Fox Searchlight were really employees is encouraging, and may well have long-range implications. It’s a hopeful sign that we may yet be able to re-establish an idea that is as old-fashioned as it is good: work and you get paid.
And yet, countercurrents persist. When Obamacare goes into effect next year, businesses that have more than 50 full-time employees will have to start offering health insurance. This could produce a scramble among small companies to reclassify enough employees so as not to have to pay for health insurance.
In response, we need a new commitment from the federal government to buttress the Fair Labor Standards Act.
More money for enforcement is a must. Compliance actions from the Department of Labor’s Division of Wages and Hours fell by over a third between 1997 and 2007. This is partly a matter of resources: for this coming budget year, the Obama administration is seeking a modest increase of $15 million for enforcement of both the Fair Labor Standards Act and the Family Medical Leave Act. That’s not enough.
There are several other ways to improve the act. Because its enforcement scheme relies on employees to come forward, rather than on government-initiated supervision through audits and worksite visits, protection against retaliation needs to be more robust. We can also improve the law’s deterrence function, in the form of punitive damages for severe or pervasive violations.
It’s true that we are in the middle of a seismic shift in the way we structure our work lives. Both workers and employers want more flexibility. But that similarity of interests shouldn’t mask the fact that employers will always have more power than their employees, and that it’s in their interests to make those employees work as long and as cheaply as possible.
In Roosevelt’s day, the courts found most wages and hours legislation unconstitutional based on the doctrine of “liberty of contract.” The idea was as simple as it was pernicious: wages and hours legislation violated an individual’s freedom to make an independent (read: worse) deal with his employer.
We can’t afford to drift further back to the bad old days of liberty of contract. Americans are drastically overworked and underpaid compared to workers in other advanced countries, and our workers are trapped in a rigid pattern of inequality that has ended a historic claim to being the nation of upward mobility.
Roosevelt did not bother with economic arguments when it came to hours and wages. He offered a simple framework, both moral and patriotic. “A self-supporting and self-respecting democracy,” he proclaimed, “can plead no justification for the existence of child labor, no economic reason for chiseling workers’ wages or stretching workers’ hours.” That is as true today as it was then.
We here at Panera Bakers Unite just want to say A great big thanks to everyone who came out for the recent BCTGM Panera Bakers Solidarity Rally in Kalamazoo, MI. Thanks for all your hard work, help, and support. It was truly inspiring to see so many good people standing up for what they believe in. It means so much to us and we are humbled by the experience. We will continue to stay vigilant.
We had over 100 participants (who signed in) from many different Unions along with dozens of BCTGM members from 9 different Locals in Michigan. As well as one local from Cleveland Ohio. Also support from our BCTGM Brothers in Cucamonga,California.
Michigan AFL CIO
South Central MI Labor Council
Many Panera workers in Michigan voted over a year ago to form a collective bargaining unit as a part of the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, but Battle Creek Panera baker Kathleen Von Eitzen says the franchise owner is refusing to recognize them. Former employee Kyle Schilling says he was fired after refusing to sign a disciplinary write-up without being provided union representation in the matter.
The National Labor Relations Board says that the franchise owner refuses to recognize the union. In a filing with the board, the owner has claimed in their defense that the union certification is not valid because some board members making decisions in the process were appointed by President Obama while the Senate was in recess.
The franchisee has also issued a statement:
“We fully recognize the right to peaceful protest. However, we also feel that the truth should be part of public protest and we are concerned that a number of representations of our company by union supporters have not been truthful.
“Last year a small number of bakers at several of our cafes voted to be represented by the Bakery, Confectionary, Tobacco and Grain Millers union (BCTGM). Involved in the vote were just 18 people out of the hundreds of bakers and associates we employ in West Michigan. From the beginning Bread of Life, LLC has disagreed with the NLRB’s decision regarding who is eligible to vote. We believe that all of our West Michigan bakers should have voted in the election and the National Labor Relations Board has long established precedent against splintered bargaining units. We have asked the D.C. Circuit federal appellate court to review the NLRB’s decision in our case.
“The issue has been further complicated by the D.C. Circuit’s decision striking down the recess appointment of several NLRB members and calling into question the validity of the Board’s rulings in 2012 and 2013 – including its rulings involving this dispute. Based on its decision, the D.C. Circuit has put Bread of Life’s appeal on hold.”
The statement further added “Until the bargaining unit issue is resolved we cannot recognize or bargain with the union. This is the established procedure for undertaking a federal appellate review, and the union understands this process. Public protests to disrupt our business cannot change this legal process.”
June 19, 2013 at 1:05 PM, updated June 20, 2013 at 9:40 AM
KALAMAZOO, MI – Kalamazoo Panera Bread employees, who were the first Panera workers in the country to form a union, are planning a protest on Friday.
The employees have waited more than a year to begin meeting with their franchise employer to discuss wages and health insurance policies but have seen no such bargaining table because their case is on hold indefinitely.
In January, the D.C. Circuit Court of Appeals ruled that President Barack Obama overreached his constitutional authority when making recess appointments of three partisan candidates to the National Labor Relations Board in Noel Canning v. NLRB. Without the appointments, the NLRB lacks quorum to decide any cases.
The employees plan to protest “the hold up of nominations to the National Labor Relations Board,” which they say is resulting in workplace retaliation for people involved in the union at their workplace.
The employees will be joined by other the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCTGM) groups and allies at 10:30 a.m. on June 21 at Panera Bread, 5119 West Main Street, to protest.
Meanwhile, local employees issued a statement on Wednesday stating that one of the original Panera bakers, who has been vocal about his involvement, has been fired by the company for his union activity.
“I don’t want anyone else to have to go through what I am going through,” said Kyle Schilling, a union activist who was recently fired from a Kalamazoo Panera, said in a statement. “Justice delayed is justice denied. The Senate must confirm the NLRB’s nominations so workers like me can get the justice we deserve.”
Sandy McElfresh, director of sales for parent company Manna Development, LLC, said Schilling was not released because he was involved in the union, but instead he was fired for gross misconduct at the workplace.
“It was unrelated to this situation,” McElfresh said.
The National Labors Relations Board officially certified the union in a case settlement in August. The local franchise company, Bread of Life, is appealing the decision because owners said the union should represent all 45 bakers in West Michigan, not just 18.
Bread of Life’s appeal is one of at least 100 labor disputes pending indefinitely, as a result of the National Labor Relations Board v. Noel Canning decision in January. The NLRB announced March 13 that it would appeal the circuit court to the U.S. Supreme Court.
A quorum of at least three members is required for the panel to issue decisions.The Obama administration has asked the Supreme Court to hear the case, but no decision has been made. Obama has also asked the Senate to confirm the “bipartisan board,” but no confirmation has been granted.
In April, Obama announced his intent to nominate additional individuals to serve as Members of the National Labor Relations Board, bringing the number of pending nominations to five. If the Senate confirms those candidates, their placement would mark the first time the board has had five confirmed members since 2003, according to the Washington Post.