Round Ball too

NBA lockout.

Politickin'

Why all the furor over the NLRB issuing a complaint in Boeing? Political opportunity. More political opportunity.

Rathke on organizing

Acorn founder Wade Rathke has posted three interesting and insightful posts about the new NLRB election rules, here, here, and here. In his first post he correctly sets out the passage to approval and predicts accurately the legal challenges and time table (years). Although he understates the effect of quicker elections, I think he's close predicting that the time for elections will be reduced from 40 plus days to 15-20. I think he also underestimates the benefit of the changes for labor. In the second post he assesses the new rules in the context of large units, very interesting read for employers. He is correct about the proper response of management, more effort at the initial discovery of union activity, less assessment before acting and a rush to an all out war strategy. This will be the new face of union avoidance - at least by those who understand effective strategy. In an interesting take, Rathke argues unions will have to work hard on pre-election stipulations in order to avoid post election challenges that may delay certification. As this post-election problem sinks in, Rathke in his final post talks about the union maintaining its support by engaging in organizational and protected concerted activities to allow a prolonged post election process to diminish its appeal. This later concern faces the reality that unlike EFCA, which would have forced first contracts, there is nothing the NLRB can do by rule making to change the NLRA to force an employer to agree to specific terms in contract negotiation.

Activist Board considering class action issue

What an activist the NLRB has become. It seems ready to consider finding a ban on class action claims enforced by a mandatory arbitration agreement violates the NLRA. It has solicited briefs on the following:

Did the Respondent violate Section 8(a)(1) of the Act by maintaining and enforcing its Mutual Arbitration Agreement, under which employees are required, as a condition of employment, to agree to submit all employment disputes to individual arbitration, waiving all rights to a judicial forum, where the arbitration agreement further provides that arbitrators will have no authority to consolidate claims or to fashion a proceeding as a class or collective action?

Pending case D. R. HORTON, INC. 12-CA-25764. Searchable here.

Boeing NLRB filing

The NLRB has filed its response to Boeing's motion to dismiss the complaint concerning the opening of a second Dreamliner production line in South Carolina.

Details (and the devil in them)

The NLRB has issued a fact sheet and resources links to provide guidance regarding the dramatic changes in the NLRB's election process. This is a bigger change than anything the current NLRB has done since the 2008 elections. Before a union may represent a group of employees it must establish it is the chosen representative of an un-coerced majority of those employees. Where the issue is contested, the NLRB conducts a secret ballot election. Under the old rules an election is normally conducted between 45 and 60 days from the filing of a petition. The new rules are designed to streamline the process, eliminate an employer's ability to obtain a decision on voter eligibility before the election, and shorten the time between the filing of a petition and the conduction of the election. While this is not EFCA, it certainly advances some of the goals of the failed legislation, primarily very quick elections. Details after the jump

New union election procedures

The NLRB has issued its proposed changes to representation procedures that will dramatically affect the representation election process by shortening the time between petition and election, by creating administrative traps to prevent employers effectively to investigate issues before they are precluded and by creating union access to employees for communication. For example, the Excelsior list requirement is expanded to include known e-mail addresses of employees, and the information must be provided to the labor organization within 2 days of a direction or stipulation for an election. This together with the new persuader rules for attorneys and consultants finally provides substance to the claim the NLRB is changing the game to help unions organize. There is so much here to digest you can expect much disinformation and a lot of teeth gnashing. We will provide an objective analysis soon.

Wal-Mart wins

The Supreme Court in Wal-Mart v.Dukes reversed the Ninth Circuit's certification of a class of aggrieved females claiming sex discrimination by Wal-Mart. The court unanimously rejected certification under Rule 23(b)(2) finding individual backpay claims were not incidental to any requested injunctive or declaratory relief. By a 5-4 majority the court also rejected certification under Rule 23(a)(2) because the many claims did not involve common questions of law or fact. This decision likely means certification of discrimination claims for class actions will be significantly reduced to those fitting within this narrow interpretation of the Rule. Very good news for large employers.

Labor Consultant Rules

The Department of Labor has just published its long anticipated new rule governing disclosure of "persuader activity." The rule is designed to require law firms and other consultants to detail the fact of any agreement to undertake certain activities to persuade employees concerning their collective bargaining or organizing rights. As expected the terms are broadly construed to require disclosure.
There will doubtless be significant challenges to enforcement. The new rules require broad disclosure of financial matters for law firms, including arguable economic activity not logically related to persuading employees concerning union representation.

Off Target

Labor has targeted Target for organizing efforts. None of its 1700+ stores is organized. But a petition was filed at a New York store, and the election results are in. By a vote of 137 - 85 the employees rejected the United Food and Commercial Workers (UFCW) as their representative for purposes of collective bargaining.

Round one to Governor Walker

In a 4-3 decision, the Supreme Court of Wisconsin has given the Governor a win in his war on public sector unions. The decision overturns the trial court invalidation of the legislation. Previous post here.

OUR Wal-Mart

The New York Times has an interesting article about a non-union employee group organizing Wal-Mart workers. The Group, OUR Wal-Mart, does not intend to negotiate collective bargaining agreements, but does intend on assisting workers by using the protections afforded organizing and collective action. It also charges $5 a month in dues. The group is supported by the United Food and Commercial Workers (UFCW). Wal-Mart spokesperson claims this group is a stalking horse for a union. I think its more than that. Sounds like a labor organization.

Using employer's e-mail waives privilege

The BP oil spill litigation has provided an interesting decision concerning the affect an employer's e-mail policy has on the spousal privilege (and arguably the attorney/client, doctor patient, and religious privilege claims). Communications between an employee and his spouse, also a BP employee, were made through BP e-mail accounts. The employee argued BP permitted personal use of the accounts, third parties could not access the accounts, and the employers notifications (that e-mail was not private) were not sufficient to overcome spousal privilege. Rejecting the employee's argument, the court found, the accounts were not private, they could be monitored by the employer, and they could be subpoenaed. Of course this latter assessment begs the question of privilege.

Shaw v SEIU

Randy Shaw takes on the SEIU and its strategy of non-workplace organizing.

Illinois jury awards $95 million to employee

A national retail employer Aaron Rents, Inc. recently lost a suit (complaint here) involving allegations of assault, battery, negligent hiring, negligent retention, negligent supervision, negligent investigation of a sexual harassment claim, negligent repair, intentional infliction of emotional distress, retaliation, sexual harassment. The allegations of the complaint provide an excellent checklist of what to consider and avoid in responding to employee harassment complaints. The allegations are enough to outrage a lot of potential jurors. Seems the 20 year old female plaintiff was subjected to months of unwanted attention from her store manager and gifts that were accompanied by inappropriate requests, one allegation involves the store manager. One alleged incident involved the manager sneaking up behind her as she was sitting on the floor and banging his penis on her head. Another allegation involved the manager grabbing her, throwing her to the floor, pulling up her shirt to expose her chest and masturbating to ejaculation on her chest. When plaintiff complained her complaints were not adequately investigated and she was retaliated against according to the allegations of the suit. Various legal caps may reduce the jury award to $43 million.

Muddle, Meddle, Boing, Boeing

South Carolina's Attorney General has along with 14 other state's AG's filed a horribly muddled amicus brief in the Boeing case. While there are excellent arguments against the NLRB complaint, particularly the remedy sought requiring the work to be relocated, this brief only exposes the AG's utter lack of understanding of the National Labor Relations Act. Too much Chicken Little, too little understanding that the statute was designed to reign in managerial decision making.  More explained in our previous posts.

Updating representation

Here is a good piece from a pro-labor perspective on unions taking different approaches to address declining membership and clout.

SCOTUS Reverses Fee Award to Defendant

The Supreme Court has unanimously reversed and remanded an attorney fee award to defendant under 42 U.S.C. § 1988. The district court had dismissed meritless federal claims and remanded non-frivolous state law claims to state court. Defendant asked the federal court for attorney’s fees under §1988, for time spent on the entire suit, without differentiating between time spent on the dismissed federal claims and on the remaining state claims. After finding the federal claims were frivolous the district court awarded defendant for all work the attorneys had performed in the suit. The Fifth Circuit affirmed (2-1, Southwick, J. dissenting). The High Court opinion written by Justice Kagan holds:

In a suit of this kind, involving both frivolous and non-frivolous claims, a defendant may re- cover the reasonable attorney’s fees he expended solely because of the frivolous allegations. And that is all. Consistent with the policy underlying §1988, the defendant may not receive compensation for any fees that he would have paid in the absence of the frivolous claims.

I've got a secret (and then again maybe not)

In this information age, employers need to guard their secrets and proprietary information. Many employers think having an "off the shelf" internet and computer use policy is all they need. Far too often employers fail to consider the more serious problem of data theft, unfair competition and the machinations of disloyal employees. Non-compete and confidentiality agreements are one further step in the right direction, and clear policies about non-distribution of stored electronic data. And don't forget the requirements of e-discovery. Most employers are ill prepared for the emerging worst case scenarios. A complete audit of data security issues and systems is in order for most employers not wanting all of their information in the public domain.

Help from OSHA

OSHA has posted a record keeping advisor to assist employers with record keeping compliance. From the post

The OSHA Recordkeeping Advisor is intended to help determine:

Whether an injury or illness (or related event) is work-related 

Whether an event or exposure at home or on travel is work-related

Whether an exception applies to the injury or illness

Whether a work-related injury or illness needs to be recorded

Which provisions of the regulations apply when recording a work-related case

Brady argument

There is a terrific post on the oral argument in the Brady case at Prawfsblawg, including a link to an audio of the argument. I'm not sure that it matters whether the union is decertified or not for purposes of the Norris-LaGuardia Act coverage of a labor dispute. A labor dispute can exist without a union. The players should have an unfettered right to disavow their union. Even if it is a tactic used to gain advantage, the National Labor Relations Act affords employees the right to decertify, and the union thereafter has no legal status as employee representative. Once done, the basis for the anti-trust exemption in labor relations no longer exists. I am surely an outsider to the dispute, but lots does not make sense to me. It seems like the owners are incurring huge potential risk with a lockout. All the bad possibilities of a strike exist, lost season, economic devastation, etc., and the real risk of blame for the outcome being placed on the shoulders of the owners, not players. Add to that anti-trust exposure, well, YIKES!

NFL lockout

The NFL and the players are in court today for oral argument on the lockout injunction case.

Jobs report shows little growth

The Bureau of Labor Statistics (BLS) has issued its May jobs/unemployment report. Little has changed from April. Unemployment 9.1%, 54,000 jobs created.

FMLA info required

How often is it an employer is concerned about whether a FMLA leave request is warranted and does not receive adequate "medical facts" to evaluate the request. A bit of good news comes from this opinion of the 9th Circuit. The employee submitted a Form WH-380 certification, but it lacked the underlying facts for the diagnosed serious health condition. The court held an employees refusal to provide additional information rendered the certification deficient, and upheld her "removal from employment."

Reich on the middle class

Former Labor Secretary Robert Reich pens a 2 minute overview of the American economy over the last 75 years. The past was rosy, the present not so.