NLRB Case 19-CA-171338


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PostPosted: Sat Aug 06, 2016 5:16 am
Some of you may know, those of you that are able to access the Driver's Lounge, that I have been dealing with a number of issues at work, one of the issues I have been dealing with (addressing) is the issue of personal mobile phone use without reimbursement. Whether or not it is admitted (by our employers) it is a fact that our employers expect us to use our personal mobile phones for our employer's benefit. It is a fact that our employers benefit disproportionately from this condition.

I understand that some of you are of the opinion that using your personal mobile phone to effect deliveries is not an issue you wish to address, effectively you'll say "it's not that big of a deal." I disagree. It is an issue of wage. It is an issue of kick backs and rebates of wages. It is the same issue (although to a much smaller degree) that surrounds the issue of ruinous mileage reimbursement. I have now won, to some small degree, a victory by having the United States Government, in the entity of the National Labor Relations Board rule in my favor that this issue is an issue of "wages, hours, and working conditions"

Specifically I have reached a settlement with my employer, through the National Labor Relations Board that my employer:

WE WILL NOT threaten you with discipline or suspension if you engage in protected activities with other employees regarding wages, hours, and working conditions, including the condition of employees using their personal mobile phone for work purposes without Employer reimbursement.


See attached NOTICE TO EMPLOYEES:
19-CA-171338.pdf
.
This notice will be posted for 60 days at my work location starting no later than August 17th, 2016.

Background: I have been attempting to address this issue through education (of my coworkers) and protest (I refuse to use my personal mobile phone to effect deliveries). When an instance where I might have used my personal mobile to effect the completion of a delivery, I do not. I return to the store and inform management of the reason the delivery was not finalized. At that point I allow/expect management to manage and inform me of the next steps they wish to have performed. When/if I am required to return to the customer's location I demand additional mileage and say (to management) something to the effect of "You would not have to pay me this additional $1.50 in mileage if you would just reimburse me for using my personal mobile phone at a reasonable rate."

I have been doing this for approximately 3 years now. I am currently the only driver that refuses to use their personal mobile phone, but I have had many of my fellow delivery drivers ask for reimbursement for using their personal mobile phones. They've all been denied reimbursement. Also, I have made other requests of my co-workers in regards to documenting their personal mobile phone usage.

In February of this year (2016) I entered into a conversation with my General Manager about this issue, a conversation that we had had numerous times before. I expressed that she would not have to pay me additional mileage if she would just reimburse me for using my personal mobile phone. Her response, as she'd been coached by at least our Area Manager, was "We do not expect you to use your phone. We won't reimburse you for using your phone. If you do not stop bringing this up I will suspend you." (those were not her exact words, just the gist of what she said.)

When this was said to me I replied, emphatically "So you plan on retaliating against me for addressing an issue of wage? You can easily say that you do not expect us to use our personal mobile phones, but you accept the benefit and refuse to reimburse us for that benefit. Have you ever informed any of your drivers specifically NOT to use their personal mobile phones? No, you have not. You have not because you WANT to benefit from us using our personal mobile phones. You've already informed me that if you were to pay out reimbursement that your bonus would suffer, so you have a financial interest in accepting these kick backs from your employees. Our employer benefits from accepting these kick backs, in the form of unreimbursed business expenses, when they accept the benefit of the use of our property but deny us fair and reasonable reimbursement." (these were not my exact words, just the gist of what I had said)

My General Manager then basically told me that if I did not drop it now, at that moment, she would send me home, effectively suspending me. I told her I would drop it for now but I reserved the Right to broach this subject in the future with her or any other employee.
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PostPosted: Sat Aug 06, 2016 6:55 pm
I'm kinda surprised you didn't push it, specifically saying ahead of time that it would be construed as retaliation if she did send you home. It *IS* a legitimate complaint/conversation after all.

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PostPosted: Sun Aug 07, 2016 4:27 am
tompace wrote:I'm kinda surprised you didn't push it, specifically saying ahead of time that it would be construed as retaliation if she did send you home. It *IS* a legitimate complaint/conversation after all.

I did mention retaliation during the conversation that caused me to file the charges... well, other charges had been filed and then I amended to add these charges. The annoying thing about the situation is that the GM that made the threat was a a driver that had, on numerous occasions, come to me for help in addressing other illegal activities at another of our locations. On one of those occasions I assisted her in addressing an illegal activity that she was having with her then General Manager who is now my NEW General Manager.

It's fucking ridiculous the amount of illegal activities that goes on that no one is willing to address. Hell there's one going on right now at my store, an illegal tip pool, but because I do not participate in the tip pool (in any way) it's not my job to address it. I do tell my co-workers that what is happening is a violation of the law, but none of them want to address it for fear of not receiving any tips at all.
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PostPosted: Tue Aug 09, 2016 6:43 pm
elric92 wrote:
tompace wrote:I'm kinda surprised you didn't push it, specifically saying ahead of time that it would be construed as retaliation if she did send you home. It *IS* a legitimate complaint/conversation after all.

I did mention retaliation during the conversation that caused me to file the charges... well, other charges had been filed and then I amended to add these charges. The annoying thing about the situation is that the GM that made the threat was a a driver that had, on numerous occasions, come to me for help in addressing other illegal activities at another of our locations. On one of those occasions I assisted her in addressing an illegal activity that she was having with her then General Manager who is now my NEW General Manager.

It's fucking ridiculous the amount of illegal activities that goes on that no one is willing to address. Hell there's one going on right now at my store, an illegal tip pool, but because I do not participate in the tip pool (in any way) it's not my job to address it. I do tell my co-workers that what is happening is a violation of the law, but none of them want to address it for fear of not receiving any tips at all.


Do you have to be involved in it to bring it to the proper authority's attention? Or just don't wanna deal with the hassle?

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PostPosted: Tue Aug 09, 2016 9:22 pm
tompace wrote:
elric92 wrote:
tompace wrote:I'm kinda surprised you didn't push it, specifically saying ahead of time that it would be construed as retaliation if she did send you home. It *IS* a legitimate complaint/conversation after all.

I did mention retaliation during the conversation that caused me to file the charges... well, other charges had been filed and then I amended to add these charges. The annoying thing about the situation is that the GM that made the threat was a a driver that had, on numerous occasions, come to me for help in addressing other illegal activities at another of our locations. On one of those occasions I assisted her in addressing an illegal activity that she was having with her then General Manager who is now my NEW General Manager.

It's fucking ridiculous the amount of illegal activities that goes on that no one is willing to address. Hell there's one going on right now at my store, an illegal tip pool, but because I do not participate in the tip pool (in any way) it's not my job to address it. I do tell my co-workers that what is happening is a violation of the law, but none of them want to address it for fear of not receiving any tips at all.


Do you have to be involved in it to bring it to the proper authority's attention? Or just don't wanna deal with the hassle?


To file charges, with my State's Department of Labor, I am required to have a claim. I do not have a claim since I do not participate in that invalid tip pool. This is a tip pool for the in store staff that work the front register. Whenever I work the front register (I really try to minimize my involvement with the register) if I receive a tip I report it.

Here's my understanding of how this is expected to work

Tips received by in store staff are left for the manager/shift lead to deal with at the end of the evening.

Cash tips are left on the counter (within reach of anyone, including customers standing at the counter). These tips are put into an envelope in the manager's office on the window sill (where anyone can access them).

Credit card tips are reported at the end of the night to the register. The cash value of these tips are placed into an envelope in the manager's office on the window sill (where anyone can access them).

On some day (I think it is Monday) the manager (I think) disburses the tips between the in store staff in some way.

No records are kept on the amount of tips received or how they are disbursed. Tips are not reported by the manager or individual in store staff. No one knows the means in which the tips are divvied up. No one knows whether the tips are used to make up for cash shortages.

A few years ago company policy was implemented stating that in store staff are not allowed to accept tips. But immediately the Area Manager told shift leads to ignore that written policy. I am not aware that the policy has since been changed.

Really its a shit show and no one knows anything or wants to make an effort to to the tip pool correctly. I've tried to get one of the shifts leads to keep track of the tips he puts in the pool, but (and I really like this guy personally and professionally) he does not want to put in the effort. The other shift lead (who was at a few points in time a General Manager) does not care to put in the effort. None of the in store staff care enough to put in the effort.

But since I do not have an loss, I have no claim. I do not want to cause the in store staff to lose the ability to accept tips so I keep my mouth shut and don't broach the subject with higher management.
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PostPosted: Wed Aug 10, 2016 3:14 am
elric92 wrote:Some of you may know, those of you that are able to access the Driver's Lounge, that I have been dealing with a number of issues at work, one of the issues I have been dealing with (addressing) is the issue of personal mobile phone use without reimbursement. Whether or not it is admitted (by our employers) it is a fact that our employers expect us to use our personal mobile phones for our employer's benefit. It is a fact that our employers benefit disproportionately from this condition.

I understand that some of you are of the opinion that using your personal mobile phone to effect deliveries is not an issue you wish to address, effectively you'll say "it's not that big of a deal." I disagree. It is an issue of wage. It is an issue of kick backs and rebates of wages. It is the same issue (although to a much smaller degree) that surrounds the issue of ruinous mileage reimbursement. I have now won, to some small degree, a victory by having the United States Government, in the entity of the National Labor Relations Board rule in my favor that this issue is an issue of "wages, hours, and working conditions"

Specifically I have reached a settlement with my employer, through the National Labor Relations Board that my employer:

WE WILL NOT threaten you with discipline or suspension if you engage in protected activities with other employees regarding wages, hours, and working conditions, including the condition of employees using their personal mobile phone for work purposes without Employer reimbursement.


See attached NOTICE TO EMPLOYEES:
19-CA-171338.pdf
.
This notice will be posted for 60 days at my work location starting no later than August 17th, 2016.

Background: I have been attempting to address this issue through education (of my coworkers) and protest (I refuse to use my personal mobile phone to effect deliveries). When an instance where I might have used my personal mobile to effect the completion of a delivery, I do not. I return to the store and inform management of the reason the delivery was not finalized. At that point I allow/expect management to manage and inform me of the next steps they wish to have performed. When/if I am required to return to the customer's location I demand additional mileage and say (to management) something to the effect of "You would not have to pay me this additional $1.50 in mileage if you would just reimburse me for using my personal mobile phone at a reasonable rate."

I have been doing this for approximately 3 years now. I am currently the only driver that refuses to use their personal mobile phone, but I have had many of my fellow delivery drivers ask for reimbursement for using their personal mobile phones. They've all been denied reimbursement. Also, I have made other requests of my co-workers in regards to documenting their personal mobile phone usage.

In February of this year (2016) I entered into a conversation with my General Manager about this issue, a conversation that we had had numerous times before. I expressed that she would not have to pay me additional mileage if she would just reimburse me for using my personal mobile phone. Her response, as she'd been coached by at least our Area Manager, was "We do not expect you to use your phone. We won't reimburse you for using your phone. If you do not stop bringing this up I will suspend you." (those were not her exact words, just the gist of what she said.)

When this was said to me I replied, emphatically "So you plan on retaliating against me for addressing an issue of wage? You can easily say that you do not expect us to use our personal mobile phones, but you accept the benefit and refuse to reimburse us for that benefit. Have you ever informed any of your drivers specifically NOT to use their personal mobile phones? No, you have not. You have not because you WANT to benefit from us using our personal mobile phones. You've already informed me that if you were to pay out reimbursement that your bonus would suffer, so you have a financial interest in accepting these kick backs from your employees. Our employer benefits from accepting these kick backs, in the form of unreimbursed business expenses, when they accept the benefit of the use of our property but deny us fair and reasonable reimbursement." (these were not my exact words, just the gist of what I had said)

My General Manager then basically told me that if I did not drop it now, at that moment, she would send me home, effectively suspending me. I told her I would drop it for now but I reserved the Right to broach this subject in the future with her or any other employee.


Good for you and EXCEPTIONALLY well written! I'm very proud to say that you are now standing on my shoulders and accomplishing even more then I ever thought I might! Keep on doing the great work!
"If you ain't on the road, you ain't makin' money!" - gregster

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PostPosted: Fri Aug 19, 2016 2:17 am
And... I've called the NLRB and reported that my employer has violated the settlement. The Settlement requires my employer to post the Notice by August 17th. It is now August 18th and the Notice has not been posted.
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PostPosted: Mon Aug 22, 2016 10:46 am
Lol, good luck sir, seems like they are too busy shooting themselves in their feet to fight back.

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