Dana done

In 2007 the NLRB decided Dana Corporation, a thoughtful decision about how to safeguard employees' rights to select their bargaining representative. In Lamons Gasket Co., (download here) the Board returns to its pre-Dana law which does not allow a challenge to voluntary recognition by dissident employees. There is always potential for collusive or abusive action in a voluntary recognition scenario (where an employer agrees to recognize a union without an election to determine majority status support for the labor organization). Dana provided a mechanism for a significant number of employees to challenge voluntary recognition by petitioning the NLRB to conduct a secret ballot election to determine whether the union actually represented an un-coerced majority of the employees. This was a pro-employee decision and a prototype for labor reform that avoids the EFCA albatross of eliminating secret ballot elections. Our previous posts are here and here. Essentially card check majorities would be valid, unless 30 percent of the affected employees petitioned for a secret ballot election within 45 days of being notified of voluntary recognition. While many Bush Board decisions altered labor law in ways that advanced employer interests to the detriment of labor, Dana was an enlightened attempt to protect employee rights.

Two Member NLRB Strategy

With Chairman Liebman leaving the NLRB, and Member Becker's recess appointment running out at the end of the year, some anti-union advocates are now urging Republican Member Bryan Hayes to resign. Why? In order to incapacitate the NLRB by reducing it to two members. In New Process Steel last year the Supreme Court held a two member Board lacks a quorum and cannot lawfully function. To me this is not a strategy, rather it would cynically exploit the ability to create temporary dysfunction, for questionable short term political objectives. But of course the real problem is many on the right don't like the National Labor Relations Act, believe it is unconstitutional (despite a Supreme Court case to the contrary) and want it gone. Although I teach labor law, my practice is one that represent's management interests and has been for 35+ years. Those who call for repeal of the NLRA think they would remove a regulatory barrier. In truth, many on labor's side might join in repeal because repeal would unleash economic weapons favoring labor that could reinvigorate certain strikes and secondary boycotts now made unlawful by the NLRA. Be careful about what you ask for.

Phyrric victories

What a Phyrric victory! City spends $407,000 investigating whether an ethics complaint against a school board member whose son took a $400 high school course for free. Ultimate result: ethics violation established by a 3-2 vote. School board member pays the $400.  Another public sector excess, yes, but this type of decsion-making afflicts the private sector too. Far too often we hear of enormous expenditures made by employers defending employment law cases. I know one example where a defendant spent into 7 figures on defense of an individual discrimination claim before the plaintiff won less than six figures, and had been willing to settle for about what the jury awarded. I often tell my defense clients liability is not the real issue in employment law cases, most of them can be won in Louisiana and Mississippi. Its the cost of defending the claim in court that is the economic adverse effect. Is there a duty to seek early settlement, in even limited liability cases. Yes.  A lot of times that suits the client's interests. But who determines the client's interests? Its one thing if the decider is the owner. But in most other situations a real issue occurs when the "decider" for settlement is not the owner, but the "decider" accused of the wrongdoing. Should shareholders and boards demand an impartial assessment? Perhaps they should, particularly where the cost of defense of a five figure claim is north of seven figures.

New Chairman at NLRB

NLRB Chairman Wilma B. Liebman leaves the Board as her third term ends. She is replaced as Chairman by Member Mark Gaston Pearce.

That and a cup of coffee will get you . . .

New Orleans' own community organizer and ACORN founder, Wade Rathke, has a new venture. Rathke is going into the coffee house business and the Times Picayune has a feature on the new venture.

NLRB Notice Posting Requirements obligates all private sector employers covered by NLRB Jurisdiction

On August 25, 2011, the National Labor Relations Board (NLRB) issued final regulations (194 pages!) concerning required notifications an employer must give to employees concerning their rights under the National Labor Relations Act. This requirement applies to all covered employers, not just those with a union. The requirements will take effect 75 days from the posting of the final rule in the Federal Register. The target deadline is November 15, 2011. If your company is subject to NLRA jurisdiction posting of the Notice is required. This is similar to the posting requirement imposed on federal contractors by executive order.
The NLRB will provide downloadable versions of the poster for free. Failure to post the notice will be considered an unfair labor practice. Willful failure to post the notice may be considered evidence of improper motivation for other acts alleged to be unfair labor practices. In appropriate situations the NLRB may extend the statute of limitations for the filing of other unfair labor practices where an employer fails to post the notice. Although there are no fines for non-posting the consequences can be substantial.
The posting must be “wherever notices to employees regarding personnel rules and policies are customarily posted and are readily seen by employees, not simply where other legally mandated notices are posted.” If the employer posts personnel rules on the internet or on a company intranet, the notice must also be posted there electronically.
Employers with 20% of their workforce not proficient in English must also post notices in the appropriate languages.

Damn unions!

U.S. unions disrupt Lybian liberation.

How long must an ADA leave be?

Employers are having a difficult time complying with the new Americans with Disability Act leave requirements.  Employers who cap leave time at a maximum number of days, or cap it at 12 weeks mistakenly believing the FMLA maximum is all ADA requires' have found out the EEOC and the Courts see the requirements differently. An individual assessment is required for each leave request. While it is conceivable an across the board capped among of time may establish an employer's hardship, its not an easy burden to meet and individual assessment, even in that context is required. Some cases of note are discussed in this on line post.

Caution urged to plaintiffs

Remember the employee who claimed she was gang raped in Iraq? Privious posts about the case are here. Last month she lost on all claims that were permitted to go before a jury. Now the defendants are suing her for their attorneys fees claiming her suit was "frivolous, unreasonable and groundless." Before you pass judgment on this one read the defendants' request for attorney fees. If the allegations are true, then fees may well be appropriate.

Jury verdict hits Mississippi casino

A Jewish manager has won a discrimination claim against a Tunica Mississippi casino. The Clarion-Ledger reports " two former casino employees testified they heard the general manager refer to Silverberg as a "G.D. Jewish slug." The jury awarded the former food and beverage director $102,000 in back pay, $76,500 for mental anxiety and $400,000 in punitive damages.

Car Wars - again

I recently received a broadcast forward of an e-mail forwarded to me. It was a great, old and sentimental advertisement for the Ford Mustang. But the feel good message was obscured by the original senders words "THANK GOD WE HAVE ONE AMERICAN CAR COMPANY LEFT. THE OTHER 2 ARE RUN BY OBAMA HENCHMEN. Yes, all caps and big, bright blue letters shouting a political message. Of course this is "Car Wars as proxy for politics, a subject we have discussed before.  Yes, many people blame unions for the troubles of the domestic automakers, and blame President Obama for anything union. But that is a simplistic blame.  The auto bailout saved the American auto industry (yes, Ford too) and resulted in restructured companies and saved jobs. I fail to see how that is a bad result, even if a collateral benefit favors the United Auto Workers or any other union.

Social media policies and the NLRA

Acting NLRB General Counsel Lafe Solomon has issued a report on social media cases. Anyone who fails to consider the NLRA in general and the concept of protected concerted activity in particular when crafting and enforcing social media policies for employers is missing a major issue. This report (downloadable here) does a good job of defining the area. The U.S. Chamber of Commerce has also released a report on social media and the NLRA.

Solidarity!

Interesting set of "resources" for showing support for striking Verizon workers.

Location, location, location

Unions have heartburn over the location of the 2012 Democratic Convention in Charlotte, NC. North Carolina has the lowest union density in the country.

Effective today . . . .

Among the several new laws passed by the Louisiana Legislature are HB 342 and HB 646, which effective today impose upon employers certain duties concerning employment. HB 646 amends RS 23:995 to impose civil penalties on "persons" who "for himself or on behalf of others shall employ, hire, recruit or refer . . . an alien who is not entitled to lawfully reside or work in the United States." Penalties include civil fines for the first and second violation, and for subsequent violations, suspension of the employer's license to do business in the state. Except for healthcare facilities, enforcement is by the Louisiana Workforce Commission, which can seek fines, injunctive relief, and if judicial enforcement is required, seek attorney fees and judicial interest on the civil fines assessed.

The second new law, HB 342, prohibits private employers from bidding on or contracting with a public entity for services to be performed in the State of Louisiana unless it verifies by affidavit that it uses, and will continue to use during the term of the contract, the federal E-Verify program. The requirement applies to all of the employer's employees working in Louisiana, not just employees on the public project. The employer must require its subcontractors to agree to do the same. Non-compliance can lead to cancellation of any existing contract and debarment for up to three years from the date of discovery of the violation. HB 342 applies to contracts entered into, or bids offered on or after January 1, 2012.

Both of theses statutes create an intended safe harbor for an employer relying upon the federal E-verify program. The public contracts law requires it. The broader law, HB 646 permits not only E-Verify, but reliance upon the documents acceptable in the I-9 verification process. Both verification processes can result in error and the employment of "illegals." But an employer benefits from the safe harbor if it has complied with the verification process, even if the result is flawed.

No FLSA retaliation claim available to prospective employees

The Fourth Circuit, in a divided opinion, holds the retaliation protections of the Fair Labor Standards Act apply only to current and former employees of an employer, not prospective employees. In Dellinger v. Science Applications International the majority finds this result compelled by the statutory language. Relying on Robinson v. Shell Oil Co., 519 U.S. 337 (1997) which held a former employee can state a retaliation claim under Title VII for conduct occurring after termination of the employment relationship, the dissent argues the Plaintiff states a claim. Money quote after the jump.

30 years ago . . .

Michael Moore makes the case that the middle class began its economic descent with the PATCO strikers losing their jobs.

And today is . . .

A written work schedule given to a 44 year old office manager by her employer's owner which included "Wet T-Shirt Wednesday" and "No Bra Thursday", and some other pretty egregious conduct, has landed an employer in federal court.

Recalls fall short

Looks like the Republicans will hold control of the Wisconsin Senate, losing only 2 of the three seats the Democrats needed to take over. This proxy war over public sector collective bargaining rights has been bruising and expensive.

Wisconsin recalls

Fueled by public sector collective bargaining issues, the Wisconsin recall elections continue today. The AFL-CIO is "getting out" the vote. See the races handicapped here.

House Committee subpoena issues for Boeing information

The Republican controlled House Oversight Committee has issued a subpoena to the NLRB and its General Counsel, Lafe Solomon, for documents relating to the Boeing case. This is a remarkable occurrence given the fact the case is still pending. One interesting aspect about unfair labor practice proceedings is the absence of pre-trial discovery. The broad subpoena certainly covers factual matters which are relevant in the trial of the matter.

Labor in the Magnolia State

The Clarion-Ledger online has a pretty good overview piece on the state of labor in Mississippi.

Strike Replacements, Inc.

This piece is a brief profile on a company that supplies replacement workers in labor disputes.

Can you hear me now?

45,000 Verizon employees on the east coast are on strike. Verizon intends to continue operations with management personnel and others.

Ratification

The NFLPA ratified the collective bargaining agreement with the team owners.

Economy up - unemployment, Dow down

The Bureau of Labor Statistics (BLS) released the July jobs report today. Private sector employment increased by 154,000 jobs, but that gain was partially offset by continuing loss of public sector jobs. Unemployment declined marginally to 9.1%. Dow drops 500, worst day since 2008 financial crisis.

NBA v. NBPA

Now that the NFL has resolved its spat with the players with a long term deal, its time for the National Basketball Association (NBA) to take center stage on the sports/labor dispute front. The NBA presses two claims against the Players' Association (NBPA). The first is an unfair labor practice charge claiming the NBPA is refusing to bargain in good faith by threatening a sham decertification. The second is a federal court suit to declare the NBA does not violate the anti-trust laws if it voids all existing player contracts if the decertification is held lawful. I understand the former, and its a text book move given the judicial treatment of the issues in the NFL/NFLPA dispute. But the latter seems a public relations mistake, and probably preempted.

Whats that about?

The Federal Aviation Administration (FAA) has been shut down due to Congressional inaction. And one of the reasons is a technical labor issue. Republicans view the changes to the election process for selection of union representation to be too friendly to labor. The issue is detailed in this previous post.

Union decline causes wage inequality

Mother says so.