Finger Lakes School of Massage charged for labor violations

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What used to be a trusted local business is in hot water, again, for possible violations of the National Labor Relations Act. Last September around 10 teachers at the Finger Lakes School of Massage (FLSM) were fired en masse and seven of them have filed complaints at the federal level that were investigated by the National Labor Relations Board (NLRB). Those claims were found to have merit and the NLRB has since officially charged the school, and its CEO David Merwin, based on these complaints.


On Sept. 10, 2018, Jeannie O’Neill, National Education Director for TruMantra Schools, of which FLSM is one campus, was fired by Merwin, but things at the campus had been heating up for months before O’Neill’s dismissal. Former staff members say that among the many issues they wanted to address with the administration were that their break room had been taken away, their workload had increased but they had also taken a pay cut, and they had concerns that the school was not giving the students what it had promised. Overall, they wanted more transparency from the school and to be more involved in the decision-making process.


O’Neill’s dismissal was something of a catalyst for many of the remaining teachers to organize. They sent a list of demands to Merwin and upper management.


“The messages that we kept getting from the upper management seemed superficial and – in the sense that they sounded conciliatory but they had no real substance, no real ‘I commit to doing this’ or ‘I’ll meet you halfway’ or anything like that,” said one of the NLRB charging parties, Gabriel Hoff.
Merwin sent two emails to staff that week that make up the basis for the NLRB complaints. The first was sent Wednesday and instructed the staff that had sent the list of demands to tell upper management that they wanted to keep their job. “If you did not communicate that you would like to retain a position within 24 hours it will be considered a voluntary resignation from FLSM,” according to the email.


The second was sent Friday and incorrectly told staff that because FLSN is an at-will workplace, they could be fired at any time for any reason. “Further insistence of any demands whatsoever, correspondence in a group email, or lack of a reply by the required time today is grounds for immediate and final termination,” the email further stated.


Several terminated employees of FLSM consulted with the Tompkins County Worker’s Center, a local organization that can advise people on labor issues but does not practice law. From there, the employees were referred to the Cornell Labor Law Clinic which helped them draft and submit a position statement to the local NLRB office.


“The employees at the Finger Lakes School of Massage were engaging in something called concerted, protected activity, which comes from the National Labor Relations Act,” said Anthony Wassef of the Cornell Labor Law Clinic. “Section seven outlines that concerted activity as being a protected right, and then section eight says that a violation of section seven represents something that people can act on legally.”


Organizing and presenting FLSM a list of demands in good faith is a protected concerted activity. By threatening (and enacting) termination of the staff for organizing to present the demands, the charges from the NLRB argue that FLSM violated the National Labor Relations Act. The charges state “by its officers, agents, and representatives, the Employer retaliated against [charging party] due to participation in concerted group activity meant to improve the conditions of employment.”


An official hearing with an administrative judge has been set for May. It’s unlikely that the Cornell Labor Law Clinic will continue to be involved with the case. A lawyer from the NLRB will be arguing the claims at the May hearing. In the meantime, it is possible that the two parties could settle but Angela Cornell, the charging parties representative up to this point and a Clinical Professor of Law at Cornell University, said that Merwin’s legal representatives have made no indication so far that they are interested in that option.


“We’re hoping that upper management, the institution, whoever, is held responsible for their actions, according to which the law can protect us and help us in addressing this situation,” said Kate Goldswer, a former teacher at FLSM and one of the seven charging parties. “So, hopefully this kind of thing doesn’t happen in the future.”


Goldswer and Hoff both moved to the Ithaca area to attend FLSM as students and eventually became faculty. They were married last summer, just a few weeks before they were fired. The five other charging parties along with them are Dana Shoemaker, Emily Richards, Dusti-Lee Provencher, Brittany Kline, and Dawn Eller.


The sense of community and integrity that the school once held is what made Goldswer and Hoff choose to study at FLSM in the first place. Now, they say they just want to see that kind of community, as well as some justice, return.


“I wish everyone could be reinstated. But if that kind of community atmosphere could come back that would be wonderful,” Hoff said.


Jeannie O’Neill’s firing, said Hoff, was a short-term impetus for the staff to organize because she was often who the Ithaca staff would go to while navigating issues with upper management. Before being promoted to National Education Director, O’Neill was the Director of Education for the Ithaca and Mount Kisco campuses of the TruMantra schools, both of which fall under the FLSM brand. O’Neill argues that she was fired when she started making noise about discrepancies between the number of students actually enrolled at each campus, and the number of students the school was claiming were enrolled for budgeting purposes.


This is not the only questionable budget claim being made against the school. While working an average of 30 to 40 hours a week, Hoff said that he was instructed by middle management to put his overtime hours into the next pay period so that he was always clocking less than 40 hours a week. Overtime, Hoff said, had to be pre-approved, but he was told would never actually be approved. He does not believe he was the only teacher asked to make these pay adjustments.


Merwin and his legal representative did not return a request for comment for this story.

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