NLRB issues significant decision on bargaining obligations

In Alan Ritchey, Inc., 359 NLRB No. 40 (December 14, 2012) (free download from the NLRB site) the Board has issued a significant decision expanding an employer's obligation to bargain over the imposition of discretionary discipline before imposing discipline on a bargaining unit employee. This obligation is met in the situation where a collective bargaining agreement which has a grievance and arbitration procedure in effect. The significance of this decision is the effect it will have on the period between a union becoming the bargaining representative, but before the union and employer have agreed to a first contract containing a grievance and arbitration mechanism.

Discretionary discipline which has "a material, substantial, and significant impact on the employees’ terms and conditions of employment" may not be imposed without first providing the union with notice and the opportunity to bargain in good faith. Money quote:

Not every unilateral change that affects terms and conditions of employment triggers the duty to bargain. Rather, the Board asks “whether the changes had a material, substantial, and significant impact on the employees’ terms and conditions of employment.” Toledo Blade Co., 343 NLRB 385, 387 (2004) (emphasis added). This test is a pragmatic one, designed to avoid imposing a bargaining requirement in situations where bargaining is unlikely to produce a different result and, correspondingly, where unilateral action is unlikely to suggest to employees that the union is ineffectual or to precipitate a labor dispute. We draw on this basic principle, adjusted to fit the present context, today. Disciplinary actions such as suspension, demotion, and discharge plainly have an inevitable and immediate impact on employees’ tenure, status, or earnings. Requiring bargaining before these sanctions are imposed is appropriate, as we will explain, because of this impact on the employee and because of the harm caused to the union’s effectiveness as the employees’ representative if bargaining is postponed. Just as plainly, however, other actions that may nevertheless be referred to as discipline and that are rightly viewed as bargainable, such as oral and written warnings, have a lesser impact on employees, viewed as of the time when action is taken and assuming that they do not themselves automatically result in additional discipline based on an employer’s progressive disciplinary system. Bargaining over these lesser sanctions—which is required insofar as they have a “material, substantial, and significant impact” on terms and conditions of employment— may properly be deferred until after they are imposed.

This is a big deal. The case conveys upon represented employees a palpable benefit of unionization even before a contract can be negotiated. Employees immediately receive the benefit of brakes being provided to a suspension or termination of employment. An employer's existing policy, which is subject to employer's discretion, may not be continued unilaterally once the union achieves representative status.

NLRB makes barring off duty employee access to company property exceedingly difficult

The NLRB has issued an interesting decision concerning an employer's ability to limit employee access to employer's facility when the employee is off duty. In Marriott International, 359 NLRB No. 8 (free download at the NLRB web site). The Board's opinion does a good job of explaining the Board's current position on access and use rules. Essentially it appears any rule which does not affirmatively and extensively advise employees of their right to engage in Section 7 activity in the otherwise restricted area of the facility either chills employee rights or intimidates employees from engaging in such rights at all. Also, any discretion reserved to management to permit off duty employees to return for company business invalidates the rule by virtue of creating an exception, subject to managment discretion.

Because the Board defines these infringements by reference to its imaginary "objective employee's" perception of the effect of the rule, the Board can freely find a violation. A rule that does not expressly, accurately and completely advise employees of their rights will be found to chill those rights even where it has never been enforced against an employee in violation of Section 7. Employers limiting access have a daunting task to craft rules which the Board would find acceptable.

Because Section 7 affords rights to all employees, not only those in a unionized employment environments, all employers should seek advice concerning any rules denying employee access to company property.

Michigan repercussions

Looks like Michigan's right to work push is ripe for push back. Gov. Snyder's popularity has plummeted since the right to work legislation was fast tracked. The polling numbers also indicate right to work is overwhelmingly unpopular in the state.

Employers dropping employee health coverage?

Despite all the uproar and anecdotal evidence of employers reacting to the Affordable Care Act by eliminating health insurance coverage for employees, a recent study suggests otherwise.

Michigan and politics

More on the politics of the surprising Michigan right to work campaign from Political Wire.

Right to work in Michigan

Right to work legislation passes Michigan's Republican controlled state legislature. If, as expected Michigan's republican governor signs the bill, Michigan will become the nation's 24th right to work state. This move definitely disadvantages unions by allowing workers to refuse to belong and pay dues to a union, despite the fact the union is obligated to represent those workers. While the current battle advantages opponents of labor (and not all employers fall into that group), it may give serious impetus to reforms advantageous to labor. Big labor should seriously reconsider the existing compulsory union model in favor of federal legislative reform permitting micro unions and voluntary unionism. Micro unions would permit small groups of employees to unionize, irrespective of the desires of a majority of employees in the entire enterprise. Voluntary unionism would permit dissenters to opt out of not only obligations to fund a union, but also representation by the union. Those dissenters would be free to bargain directly with their employer.

November jobs report brings more good news

The November jobs report released today by the Bureau of Labor Statistics (BLS) indicates the economy added 146,000 jobs. Unemployment dropped to 7.7%.

Michigan and right to work

Will Michigan become the nation's 24th right to work state? Maybe so.

Who took the big hit?

It does not take a study to prove the overwhelming brunt of the losses from the 2007-2010 "Great Recession" affected the middle class more profoundly than the wealthy or, for that matter the poor. But here is one that does. Simple take aways:

1. Middle class wealth has "collapsed" to a 40 year low.
2. Wealth is more concentrated in this country than income, because many people expend all of their income on living expenses, but those fortunate enough to have "a bit extra" benefit from  government policy favoring investment income over earned income.
3. The major asset for the middle 60% of households  is the family home, which constitutes 2/3rds of the wealth of that group of Americans.
4. For the top 1%, the family home represents less than 10%, and for the next 19%, about 30% of their wealth.
5. Debt, a lot of debt exacerbated the problem.

Respect, find out what it means to ee's

This guy nails it. All employees want self respect, and a good boss/leader knows how to give it and knows how *not* to take it away.

Which professions entice psychopaths?

Well, lawyers are right up there at number 2, just after CEO's and eight spots above chefs.

Immigration reform?

The Republican party seems to have awakened to addressing a reality based immigration policy. It took the crushing reality of an electorate increasingly unfavorable to hard line positions on immigration, but moderation on the issue now seems positively to warn the hearts of reasonable Republicans. Many economists have suggested immigration reform is good for the economy, if not necessary to ensure labor is available to fill the positions which will be created in the 21st century.

Election day

In representation elections an employer cannot poll the voters. Its an unfair labor practice. Every now and then the employer's attorney gets fooled and everyone is surprised at the loss the union puts on the employer. I've never had this type of embarrassment in a representation proceeding. Knock on wood.

Did union fight cost Romney?

Did Republican governors in picking a fight with unions in Ohio and Wisconsin cost Romney the election? The unions think so.

171,000 jobs gain beats expectations

The Bureau of Labor Statistics final jobs report of the 2012 election cycle is BTE. The 171,000 jobs created exceeds the ADP estimate released earlier in the week. The unemployment rate ticked up to 7.9% because more workers rejoined the ranks of job seekers. This is the 33rd consecutive month the economy has added jobs. In addition to the October jobs growth, the BLS raised the previously released numbers for August (+142,000 to +192,000) and September (+114,000 to +148,000)

Jobs report = growth 158k

The October jobs report, set for Friday release by the Bureau of Labor Statistics may be the most anticipated significant event remaining in the 2012 presidential campaign. ADP's private sector payroll report released today notes the private sector added 158,000 jobs during the month. Over half of the jobs creation was by large businesses having more than 1000 employees. The BLS report, which will include information on public and private sector jobs, has during the great recession, reflected a bit smaller jobs growth due to the inclusion of the public sector information. Interesting also it appears ADP has changed its methodology in advance of this latest report. That fact is certain to inspire partisan wrangling over the report's results.

Equal Pay a myth?

According to one labor economist, women in every state make a fraction of what males do. There are many causes but the bottom line remains the same. Utah (55¢/$1) tops the list for greatest disparity, followed by Wyoming (56¢/$1) and Louisiana (59¢/$1). State chart here. GOP senator Marco Rubio dismisses the Lilly Ledbetter Act as benefiting only trial lawyers. Now there are often explanations for pay disparity, and under the Equal Pay Act an employer need only prove there is a factor other than sex causing the disparity. Note, it is the employer's burden to do so once the claimant establishes a pay differential in circumstances where a female performs a job requiring the same skill, effort and responsibility, yet is paid less than males.

Union fines

Just finished discussing a labor organization's right to fine members with my labor law class. This link makes the points pretty effectively. A Union has the right to dictate certain conduct to a members, and members who fail to perform risk fines levied by the union. It also shows equally effectively that political trackers will say and do pretty much what has to be done to get the dirt.

October jobs report

Have the jobs statistics crossed the Rubicon? Or is it just a conspiracy to help President Obama's reelection? The statistics are compiled by the Bureau of Labor Statistics (BLS) which released its monthly report today. Unemployment dropped to 7.8% the lowest level since 2008. Although the job growth was modest (114,000) the numbers for prior months were also raised evidencing an incrementally improving jobs picture. Many on the right now claim the the BLS stats are cooked. And according to candidate Romney so is Big Bird.

NLRB decides first Facebook case

The NLRB has concluded that the firing of a car salesman occurred because he posted to Facebook photos about a dangerous accident which occurred at another dealership owned by his employer. The accident involved a Land Rover driven over a wall and into a pond after a test drive. The same day the salesman posted the accident photos he posted sarcastic comments about a "cheap" party given by his employer at a sales event announcing new BMW models. The latter photos were arguably protected concerted activity "because it involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions."

The NLRB affirmed the ALJ's conclusion that the Land Rover incident was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.

While the discharge was upheld, the employer's rule requiring "courtesy" in employee to employee communications was overly broad, leading to a finding of a violation and an order requiring the employer to remove the rule from its handbook.

Value of labor's experience and training

This post makes an especially poignant argument for training, experience and correlates both to hard work. Its got a pro-labor slant, but remove the politics and it makes a good case for not cutting corners when it comes to training and experience, whether the worker is a janitor or an NFL referee. The example of the NFL referees is the best argument favoring the labor theory of value to come around in a long time.

Cause/effect?

The lockout of the NFL referees has ended with the referees expected to be on the field tonight in Baltimore for the Ravens game with the Cleveland Browns. Not sure the NFL could take many more game ending calls like Monday's Green Bay-Seattle debacle.

That wern't no touchdown, scab!

Wisconsin Governor Scott Walker has now sided with labor against management in one specific context. After a bizarre ending to last night's Packers-Seahawks game and Seattle benefitting from a controversial call, Gov. Walker now wants the locked out union referees back.

NLRB and Social Media

The NLRB has issued a recent decision striking down an employer's overly broad social media policy on the grounds it might intimidate employees in the exercise of Section 7 rights. In Costco Wholesale Corporation, 34-CA-012421. The Board overturned an ALJ's decision upholding a

rule prohibiting employees from electronically posting statements that "damage the Company . . . or damage any person's reputation.

The Board concluded this policy would reasonably tend to chill section & activity. page 2 of the decision does a pretty good job of laying out the potential problems with social media policies. There are three potential problems: chilling effect, a rule promulgated in response to union activity and application of the rule to restrict Section 7 activities. Any one of the three could lead to a violation. The Board hinted that an employer providing examples of proscribed conduct, and a disclaimer of coverage of Section 7 activities might avoid a violation, but the ultimate analysis is going to be the ALJ/Board's view of whether the policy and its context indicates any one of the three problems exist.

Trumka tells Mass. vote for the woman

AFL-CIO president Richard Trumka made a hard pitch to vote for Elizabeth Warren over Sen. Scott Brown in the Massachusetts Senate race, even though she's not one of the boys.

Players support refs

The NFLPA has taken sides with the locked out referees. In a letter to owners the Players' Association denounces the Commissioner and the lockout as creating significant safety problems for the players.

Pensions, its about pensions?

The NFL referee strike revolves around pensions according to this analysis, and the issue is not whether the owners can afford them rather their belief they can eliminate a defined benefit plan because no one else has one.

Public sector jobs decline

Well, more job truthifying - Paul Krugman, informs Sen. Rand Paul that public sector jobs have declined since Obama took office.  In disbelief Sen. Paul retorts "the growth of government is enormous under President Obama." No, really, government employment is smaller now than before President Obama took office. That a United States senator is surprised at this important fact is discomforting. Krugman provides a dramatic chart here.

Woulda, coulda, shoulda?

ThinkProgress blames lackluster job growth on Republicans blocking passage of the American Jobs Act.

Middling jobs growth

The Bureau of Labor Statistics reported net job growth in August was shy of 100,000. Private sector jobs expanded by 103,000 and public sector jobs declined by 7,000. The unemployment rate dropped slightly to 8.1%.

Jobs, jobs and politics

The jobs report from the Bureau of Labor Statistics is due out Friday. It will likely have a higher than usual effect upon the political scene. A better than expected number good for the President, and a worse than expected number better for Gov. Romney. The jobs issue is a major one for the 2012 campaign. Talking Points Memo does a good job of "truthifying" the debate.

Hurricanes and exempt employees

What options exist for paying employees when a hurricane forces an employer to close?

• Non-exempt employees must be compensated only for hours actually worked. If the employer cannot, or does not provide work to those employees due to a natural disaster, it is not required to compensate them for hours not worked. An exception to this general rule exists where there are employees who receive fixed salaries for fluctuating workweeks. These are non-exempt employees who have agreed to work an unspecified number of hours for a specified salary. An employer must pay these employees their full weekly salary for any week in which any work was performed.

• As for other exempt employees, if they choose not to come to work due to transportation difficulties or other storm issues, but the employer is open for business, the employer may require the employee to use paid time off or vacation pay, or may choose to place the employee on unpaid leave. Any required use of PTO should be in full day increments., if the employee worked a partial day, then the exempt employee is entitled to full pay for that day.

• The employer will be required to pay an exempt employee’s full salary if the worksite is closed  or unable to reopen for less than the complete work week due to storm reasons. When the facility is closed for more than a complete work week, the employer is not required to pay exempt employees for any complete work week closure caused by the storm related closure.

It is also possible to require exempt employees to make up time missed. Issues regarding compensation are fact driven. Employers should consult with their employment attorney for specific advice.

College and economic security

The Georgetown Public Policy Institute for has released a report detailing how much better off college graduates fared in the economic downturn. Key points:

• unemployment rate for 4 year college graduates never exceeded 6.3% during the recession, compared with a peak unemployment rate of 13.4% in February 2010.
• unemployment rate for new high school graduates peaked at 30% in January 2010, and remained at 24% in May of 2012.
• during the recession (Dec. 2007-Jan 2010) there was modest job growth (187,000) for those with a bachelor's degree or better.
• During the recovery (January 2010-Feb. 2012) job losses for high school graduates or less education continued to decline (230,000) while job growth for those with some college (2,012,000) and Bachelor's degree or better (3,374,000) improved dramatically.
• Nearly 4 out of every 5 jobs lost in the recession were held by workers with a high school diploma or less.

There is a wealth of additional information.

Employer burden to justify ban on employees discussing ongoing investigation

In Banner Health Systems, 28 CA 023438, 348 NLRB No. 93, [Download here] the NLRB continues its aggressive expansion of protection for employee concerted discussions of workplace issues. In Banner, the employer had a blanket prohibition against discussion of its investigation of workers complaints. The Board rejected this approach as overbroad and required an individualized showing by the employer of its business justification for interfering with Section 7 rights. Money quote:

it was the Respondent’s burden “to first determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated,or there [was] a need to prevent a cover up.” Id. The Respondent’s blanket approach clearly failed to meet those requirements.

This result is unremarkable given the text of Section 7, yet the practical effect upon, and burden on employers during an ongoing investigation are potentially huge.

Unintended consequences?

Does Citizens United compel public sector employees to support corporate political campaigning? One Harvard professor thinks so. Most public sector employees are required to make contributions to a pension plan. Many public sector pension trustees make investment decisions in the private sector in corporate securities. The problem is Citizens United permits corporations to make political expenditures from the corporate treasury. Essentially public sector employees are compelled to finance private corporate political expenditures with no mechanism for opting out. Unions, of course, cannot use employee dues money for political expenditures if the dues payer objects. The professor suggests this compelled financing of corporate political speech violates the public sector pension contributors' First Amendment rights. Intereting argument.

Who hates unions?

Here is Rush on unions. Classic, but not playing real good with some sponsors.

Union decline

Union decline: the chart

Belmont in jeopardy?

Will a labor dispute prevent a triple crown?

Ruh Roh

The latest jobs report from the Bureau of Labor Statistics (BLS) notes a net job creation of only 69,000, and that the unemployment rate has risen to 8.2%. Also of note the jobs numbers for March and April were revised downward.

NLRB Member Flynn resigns

Over the holiday weekend, NLRB Member Terence Flynn resigned, effective July 24, 2012. Flynn has also recused himself from all agency business. Flynn has been accused by the Board's Inspector General of leaking non-public information.  Previous posts on accusations against Flynn are here.

Unionization rate by state

Today's Workplace blog has a post (with chart) showing the "unionization" rate on a state by state basis. Nationally the rate in 2011 was 13.3%. Top ten states: New York (26.4%). Alaska (24.3%) Hawaii (24.0 %) Washington (21.2%) Michigan (19.2%), New Jersey (18.8%), California (18.5%), Connecticut (17.6%), Oregon and Rhode Island (17.4%), and Nevada (17.3%). The "unionization" rate statistic is inflated a bit because it includes not only union members, but also those represented under a collective bargaining agreement. Louisiana is 46th (5.9%) and Mississippi is 41st (7.0).

EEOC Statistics

The EEOC has released a fascinating statistical chart depicting case filings on a state by state basis. Mississippi generated 1.8% of total charges and Louisiana 2.1%. Texas and Florida generated the most total charges, with California ranking third, despite a larger population. Of course California's state laws and state courts may provide a favorable environment for aggrieved employees thereby encouraging a bypass of the federal system.

Unionadelphia

In 2008 Philadelphia Magazine published an excellent piece on how big labor still dominates the City of Brotherly Love. Its a long piece but well worth a read as it pre-dates the Teaparty movement, but presages the anti-labor causes that fueled its rise.

NLRB Election rules suspended

The NLRB has "temporarily suspended" implementation of the new representation procedure rules in light of judicial decisions questioning the validity of the approval process. The Board has indicated it will process the petitions filed since the April 30, effective date under the new rule, and similarly indicated it is determined to reimplement the new procedures, and likely in short order.

Court strikes down NLRB election rules

A federal district court has struck down the NLRB's new election rules finding the NLRB lacked a quorum when they were promulgated. Apparently the fact that Member Hayes did not vote meant, in this case, he did not participate so the other two members who voted for the rule did not constitute a quorum.

Gimme your info or else

The Password Protection Act of 2012 was introduced yesterday. If passed the Act would severely restrict an employer's ability to compel or coerce employees into providing access to any information stored anywhere on the internet.

Whose been in office when the jobs grew?

Bloomberg reports a "who knew" moment. Since 1960, private sector job growth when Democrats resided in the White House almost doubles the growth occurring when Republicans resided there. This despite the Republicans holding the presidency 5 years longer than Democrats. The average number of jobs created during a Democrat's residency is 150,000, compared to 71,000 for Republicans.

Union pushes back for Saints players

The National Football League Players Association (NFLPA) has filed a grievance against the suspensions imposed by Commissioner Goodell. The union makes a procedural argument and a technical immunity argument. The union claims the discipline imposed by Goodell is outside his authority and that under the Collective Bargaining Agreement discipline of players can only be imposed by the System Arbitrator, not Goodell. The second argument relates to a provision of the new CBA that released players for conduct engaged in prior to its effective date (August 4, 2011). Of note, this is a challenge by the NFLPA, not the players, who have not yet appealed.

Job growth slows

Job growth slowed in April with only 115,000 new jobs created. unemployment dips to 8.1%.

GC Solomon issues "R" case guidance

NLRB Acting General Counsel Lafe Solomon issued a guidance memorandum concerning the NLRB's new procedures for handling representation elections. The new procedures take effect tomorrow, April 30th.

Criminal records and the EEOC

Employers who use criminal records checks as a part of an employee selection process should review their practices in light of the EEOC's new guidelines on use of criminal records. FAQ's here.

Blows

Louisiana has one of the weakest, and for employees most dangerous, whistleblower protection Acts in the country. Arguably no employee should want to run the risks they are exposed to for blowing the whistle on an employer. Not only is termination from employment possible, but the employee who unsuccessfully blows the whistle without winning the issue is exposed to liability for the employer's costs and attorney fees. Practically speaking there are few employees and fewer circumstances which warrant this type of risk. State Representative Walt Leger introduced House Bill 84 to correct the problem, but the bill stalled in committee on a 6-6 vote.

Employers use of social media as screening tool declines

A new CareerBuilder survey indicates that employer's use of social media to research job applicants has declined. In a 2009 survey 45% of the surveyed companies reported using social media. In the new survey only 37% did, and another 15% said they prohibited using social media as a screening tool. Maybe applicants ought to consider a dual site approach to social media, one for the real life and one for the perfect applicant.

DC Circuit enjoins NLRB Notice requirement

A federal court of appeals in Washington has issued an emergency injunction against the NLRB's employer notice posting requirements which were scheduled to go into effect on April 30th. Previous posts here.

Rejected! Federal Judge nixes NLRB notice requirement

A federal district court in South Carolina has ruled the NLRB lacks the authority to promulgate the rule which requires employers to post a notice advising employees of their rights under the National Labor Relations Act. The opinion is here. The opinion is by District Judge David C. Norton who was appointed by by President George H. W. Bush. At first blush this seems to be a rather extraordinary reigning in of the NLRB's rule making authority.

Deadline!

On April 30 two important new NLRB rules become effective. First, all employers subject to NLRB jurisdiction will be required to have posted a notice advising employees of their rights under the National Labor Relations Act. Previous posts here. The poster can be downloaded for free here. Second, the Board will begin operating under a new set of rules for conducting representation elections. Employers would be well served to perform a current vulnerability assessment, including taking affirmative steps to be prepared to respond promptly to any union organizing activity in their workforce.

Decline with nuance

While it is true that manufacturing jobs as a percentage of total employment has been declining for a long time, in absolute numbers, the decline began relatively recently.

Social media passwords protected in MD

Maryland becomes the first state to ban employers from requesting social media passwords from employees and applicants. As a practice I think asking employees for their Facebook or other social media password is just creepy. Particularly where the practice is not required of every employee or applicant in the same job classification, and there exists a rational basis for employer concern about the employees personal behavior.

Flynn hires former IG

NLRB Member Terrence Flynn has hired a former DoJ Inspector General to defend him against ethics charges lodged against him.

Wisconsin law challenged

A federal district judge has just struck down parts of Act 10's restrictions on public employee union rights.

Job growth signals strong economy in NOLA

Data released Friday by the Louisiana Workforce Commission confirmed anecdotal evidence that the New Orleans area economy is growing. The seven parish metro area added 8,800 jobs since February 2012. The unemployment rate also dropped from 7.4% in January to 7.0%. The state as a whole added 41,000 jobs in the last twelve months.

Leak, and it ain't St. David's day

It seems one of the recess appointments to the NLRB has been accused of doing things he should not have done. Republican Terence Flynn is accused of leaking confidential information to two former NLRB members one of whom works for the National Association of Manufacturers, and the other who is a labor advisor to Mitt Romney. Rep. John Kline (R-MN) says the problem is that Flynn's a recess appointment. You can't make this stuff up.

Chrysler success story

Well, I never watch 60 Minutes, but I sat down and caught their piece tonight on Chrysler's new (post meltdown) CEO Sergio Marchionne. He brought Chrysler back and the auto bailout helped. Chrysler has already repaid the federal government its 6 Billion Dollar loan, and is making $$$. Of incredible note is the fact that Marchionne blamed management, not workers for Chrysler's failures. And Marchionne gives credit to the hourly workers and engineers for the turnaround. There is also a priceless moment where he refuses to comment on the political criticism of the Eastwood Superbowl add but makes clear how much he disrespects the critics. Watch it here (air date 3/25/12).

Facebook stands up to employers

Facebook has announced it may sue employers who require applicants or employees to provide their Facebook password. Not so sure Facebook would win, but who wants the honor of being the test case?

Male Flight

Is it true that men leave a profession when women start entering it in numbers? Not exactly. But "male flight" is the name of the concept touted in this piece. When women enter in numbers, fewer men continue to enter the field. Is the future of law a "chick field"? 

Labors' Rx for the economy

Does labor have it right on these issues?

Orange? You're fired!

Sometimes employers do really silly things. Take this law firm that fired 17 employees for wearing orange. Now it did happen the Friday before St. Patrick's day, but there does not appear to be a sensitive Irish logic in the mix. It seems the employer thought the orange shirts were a protest. And as we all know at-will employees can be fired for any reason, even a silly one. The article even quotes an employment lawyer who says just that. But, isn't this protected concerted activity under the NLRA? Surely the employer thought it was, but more than that, if employees choose to dress alike, don't they have a protected right to do that? I think they do.

Member of L.L.C. not FLSA employer

The Fifth Circuit in Gray v. Powers becomes the first federal circuit to squarely address the liability of an individual member of an L.L.C. for FLSA wage claims of an employee of the L.L.C. The court rejected liability based solely on membership status and affirmed that operational control by the member is required to impose liability. The Court noted that it employs the economic reality standard for assessing operational control, and in this case, no reasonable jury could have concluded the Defendant possessed the power to hire and fire, ability to supervise, power to set wages, and/or maintained employment records.

Baseball gets it

There is nothing like an early spring to make you think baseball. And this is an early spring. The azaleas have just finished and the amaryllis and day lilies are a few days from busting out, but I digress. MLB has just issued a social media policy and it seems the most traditional of the professional sports leagues has gone progressive and actually encourages players to use social media to communicate directly with fans. The policy was embraced by the new collective bargaining agreement between MLB and the MLBPA. Bullet points courtesy of Greg Calcaterra at Hardball Talk:

• Players can’t make what can be construed as official club or league statements without permission;
• Players can’t use copyrighted team logos and stuff without permission or tweet confidential or private information about teams or players, their families, etc.;
• Players can’t link to any MLB website or platform from social media without permission; (i don't get this)
• No tweets condoning or appearing to condone the use of substances on the MLB banned drug list 
• No ripping umpires or questioning their integrity;
• No racial, sexist, homophobic, anti-religious, etc. etc. content;
• No harassment or threats of violence;
• Nothing sexually explicit;
• Nothing otherwise illegal.

The list is pretty straight forward except for that weird prohibition on linking to MLB sites. Hey owners, WTF, don't you want that? The list also avoids common issues the NLRB has with overbroad social media policies that would chill employees section 7 rights. In a follow up post Calcaterra discusses the NLRA and protected concerted activity, and I think he gets it right. I have a feeling the NLRB would  not find two players publicly criticizing an umpire protected activity. Think product disparagement.

Mitt - "Eliminate the NLRB"

Does a Republican presidential candidate really want to eliminate the National Labor Relations Board? Be careful what you ask for. Does he intend to repeal the NLRA, or just shift enforcement to federal courts? As we have noted before, plenty in the labor movement might welcome the ability to use economic coercion which the NLRA prohibits.

Diversity training ineffective

Just read a fairly interesting article dissing diversity training. No, its not an assault on political correctness, rather it says its not effective. Money quote after the jump

Horton appealed

The NLRB's decision in D. R. Horton has been appealed to the Fifth Circuit. This is the case where the NLRB found an arbitration policy waiving class or collective relief on employment law claims interferes with employees rights under the NLRA. Our prior post is here.

Citizens United did what?

Did Citizens United open the door for broader union efforts for Democrats in 2012? The answer appears to be yes. The evidence is the Ohio referendum repealing anti-union legislation passed by Republicans.

"At will" policy violates NLRA

Can an employer's "at will" statement and handbook acknowledgement form violate the NLRA? One administrative law judge has ruled it can. In American Red Cross Arizona Blood Services Region, Case No. 28-CA-23443 downloadable here (February 1, 2012) the ALJ found an Employers acknowledgement form, which employees are required to sign, and which states “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way” violated the Act by maintaining and requiring employees to sign an acknowledgement form which is overly-broad and discriminatory. It is reasonable to expect the current NLRB to affirm this decision. If so, a whole lot of employers will be changing their at-will language. ALJ's money quote after the jump.

Jobs grow while February unemployment remains constant

The Bureau of Labor Statistics (BLS) issued its report on February jobs creation today. The nonfarm payroll employment added a net gain of 227,000  jobs in Frebruary. The unemployment rate remained at 8.3% due to more persons reentering the workforce. December's report also was revised upward from +203,000 to +223,000, and the change for January was revised upward from +243,000 to +284,000.

Public support of unions higher than thought

A new Bloomberg National Poll finds unions with more support than one might suspect.

Sixty-four percent of respondents, including a plurality of Republicans, say public employees should have the right to bargain collectively for their wages. Sixty-three percent, including 55 percent of Republicans, say states without enough money to pay for all the pension benefits they have promised to current retirees shouldn’t be able to break those obligations.

Indigestion

Radaronline reports on a discrimination complaint filed against Celebrity Chef Paula Deen and her brother by a former manager alleging harassment. The allegations of the 123 paragraph Complaint are remarkable.

Court (mostly) upholds Notice posting requirement

A federal district court judge has ruled the NLRB lawfully implemented a rule requiring employers to post a notice of NLRB rights. The court noted, however, the failure to post a notice could not be a per se violation of Section 8(a)(1). The Board must employ a case by case analysis which should include a finding of interference or infringement upon rights protected by the Act. As a practical matter this provides wide leeway to find a violation in almost all circumstances. The court also rejected the rule's provision that a failure to post could toll the 10(b) limitations period because it conflicted with the statutory mandated period. The requirements become effective April 30.

Secondary boycotts are effective

Business advocates who would do away with the National Labor Relations Board should think about what happens if effective collective actions by unions, like secondary boycotts, were no longer prohibited.  After all, other advocacy groups find secondary pressure extremely effective.

Boeing and Lafe

The Seattle Times has an interesting story on Lafe Solomon and the Boeing case, some of the political aspects and pressures, and background on Solomon himself.

Empire State union density declines

Union membership density in New York declined (incremental) for the second year in a row to 24.1%. The recorded high point is 1991 (29.1%). This decline is dramatic for a state with significant union membership, the decline is significantly smaller than the decline recorded nationwide.

Rustbelt Right to Work challenged

A union has sued to block implementation of Indiana's new Right to Work law.

$$$$$$$

Just how much will unions spend this election cycle? A lot.

NLRB nominations

The White House has formally sent the nominations of Terence F. Flynn, Sharon Block, and Richard F. Griffin, Jr. to the Senate for confirmation as National Labor Relations Board members. The three received recess appointments in January. These recess appointments are controversial, subject of a congressional hearing, and being challenged in court.

Incrementalism

Mike Elk has a post at In These Times about rebuilding the labor movement. What he gets right is big initiatives by big labor don't work. Organizing workers is a long hard slog. One that requires localizing union solutions for uniquely local problems. This requires hard work, but yields success, albeit in small increments.

Motivating factor

Missouri lawmakers have passed a bill in the House which would amend the standard of proof of discrimination claims to more closely mirror a more restrictive burden of proof under the federal anti-discrimination laws. The bill would require plaintiffs to prove discrimination was a “motivating factor” – not simply a contributing factor – in the employer’s action. Several lawmakers are quoted as to their reasoning.

Really? No Really!

Federal Judge Lynn N. Hughes in the Southern District of Texas has granted summary judgement against the EEOC in a case where the Commission claimed an employee was fired because she wanted to pump breast milk for her new born at work. Title VII prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. In EEOC v. Houston Funding II, Ltd, Judge Hughes joins several other district courts in finding "[f]iring someone because of lactation or breast pumping is not sex discrimination . . . the law does not punish lactation discrimination." One can understand the logic that lactation discrimination is not pregnancy or child birth discrimination, but isn't a a medical condition related thereto?

Hill does Lafe

The Hill has an interesting piece on NLRB General Counsel Lafe Solomon and his handling of the Boeing case.

Lockouts more common

DailyKos has a post on lockouts, they are different from strikes because they are a direct management decision, despite that, management often can avoid public blame.

Arbitration rejected

In Carey v. 24 Hour Fitness USA, Inc., the Fifth Circuit affirmed a trial court refusal to order arbitration of a FLSA claim because the employer retained the right to modify the arbitration agreement retroactively.

Unemployment drops to 8.3%

The Bureau of Labor Statistics (BLS) released its January jobs report this morning, and the news is BTE. Private sector jobs grew by 257,000 but declines in public sector employment reduced the non-farm payroll employment gain to 243,000. The report also adjusted upward the gains reported for November and December 2011. The 8.3% rate is the lowest in three years.

IBEW wins at GE

Daily Kos has an interesting piece from the union perspective about the IBEW's first win at a General Electric plant in 10 years. Short take - broken promises.

Indiana passes right to work

Indiana is now a right to work state. The real question is "what does that mean?"

EEOC reports FY 2011 activity

The Equal Employment Opportunity Commission (EEOC) has released its 2011 activity report. Highlights: Record number of charges filed (99,947), resolutions (112,499) and almost a half billion dollars in financial relief. Detailed statistics can be found here.

AZ to WS public sector bargaining

Will Arizona become the next public sector collective bargaining hot spot.

Rats, coffins and Grim Reapers

The Tampa Bay Times has a good overview of union "signage" used to protest employers not using union construction.

Union density static

The Bureau of Labor Statistics (BLS) has released its 2011 union members summary which indicates 11.8% of wage and salary workers are union members. This is down slightly from 2010's 11.9% rate. Louisiana is one of 7 states with union membership under 5%. How concentrated is union membership? Note this quote

Over half of the 14.8 million union members in the U.S. lived in just seven states (California, 2.4 million; New York, 1.9 million; Illinois, 0.9 million; Pennsylvania, 0.8 million; Michigan 0.7 million; and New Jersey and Ohio, 0.6 million each), though these states accounted for only about one-third of wage and salary employment nationally.

Changing the rules

Look for the NLRB to press forward on changes in the rules governing union organizing and elections. It will be a question of when, not of whether.

NLRB GC updates social media report

Acting NLRB General Counsel Lafe Soloman has updated his report on Social Media (January 24, 2012). The report can be accessed here. Our previous post is here.

Louisiana job growth

Good news on state and local unemployment and job creation. The Bureau of Labor statistics (BLS) reported that the state's seasonally adjusted jobless rate dropped to 6.8% in December. Thats down from 7.7% in December 2010. The Louisiana Workforce Commission announced December marked the 15th consecutive month the state added private sector jobs. Statewide job growth in 2011 was 48,300.

Jobs and Job creators

Job creation in 2011 stacks up favorably to job creation since 2001. From ThinkProgress:

• Since the last SOTU, the economy has created 1.9 million private sector jobs. 
• Private sector job creation under Obama in 2011 was larger than seven out of the eight years Bush was president. 

When lawyers sue lawyers

Well, this one is interesting. According to the Boston Business Journal, two attorneys have sued their former employer's managing partner because he had an affair with one of the partner's wives (who is also a firm partner). The second plaintiff sued because he had to leave the firm because he lost clients that were inextricably linked to the other departing partner. The law suit claims breach of fiduciary duty.

Priapus

A woman working for a frozen snack food company was considering a sex change and wore a fake penis to work. She told her co-workers. She was fired, and now claims in a discrimination law suit it was for wearing the fake penis.

Locked Out!

The New York Times has a good article about why employers are using lockouts more aggressively. This once rare tactic is gaining favor and its not because the NFL and NBA used it.

NLRB strikes down presumption of wall to wall bargaining units

The National Labor Relations Board has extended its Specialty Healthcare (download here) bargaining unit rationale to a non-healthcare setting. In DTG Operations, Inc. (download here) the union petitioned for a unit of 31 rental service agents (RSA's) and lead agents (LRSA's) at an airport rental car facility. The Regional Director found the smallest appropriate unit was a "wall-to-wall" unit of "all 109 of employer's hourly employees." Because the union refused to go forward in the smaller unit, the RD dismissed the petition. In reversing the RD, the Board found the RSA's and the LRSA's shared a community of interests among themselves, but do not share an "overwhelming community of interests with the other hourly employees. This decision likely means the current Board will permit elections in small units which historically would not have been appropriate for collective bargaining. A labor organization can engage in piece-meal organizing, picking and choosing small groups of employees rather than undertaking an overall facility-wide effort. Advantage organized labor.

His "O-ness" sings

Is it just me, or does it seem like President Obama, after shouting out to his "great friends in organized labor," disses them  singing Aretha Franklin?

SOPA support crosses political divide

Its hard to find something the United States Chamber of Commerce and major unions both endorse. But The STOP Online Piracy Act (SOPA) is it. It still does not make the legislation a good idea.

Review your policies!

January is an excellent time for employers to review their handbooks for compliance with changes in the law, changes to employee benefits plans and workplace changes (including technology) that may require some policy tweaking. A few suggestions: social media policies, computer/smart phone use policies, brush up on no access rules under the NLRA as well as review policies to ensure  they do not constitute per se violations (Think protected concerted activity under the NLRA).

NLRB activism

Remember AT&T Mobility v. Concepcion?  Many thought the decision would lead many employers to adopt arbitration requirements that would prevent employees from pursuing class or collective employment claims. Last June we posted on the NLRB's request for briefs concerning compelled waiver of class arbitrations. The NLRB has ruled and its good news for employees. Employers who try to compel employees to waive all rights to a judicial forum for employment disputes violate the NLRA if the arbitration agreement also prohibits group, collective or class arbitrations.  The NLRB finds collective pursuit of such claims to be protected concerted activity. While employers may impose a requirement that individual claims must be arbitrated as individual claims, they may not also prevent employees from pursuing group claims in a judicial forum. The decision, D.R. Horton, Inc. may be downloaded here.

Economy gains 200,000 jobs

The Bureau of Labor Statistics (BLS) issued its report on December jobs creation today. The nonfarm payroll employment added a net gain of 200,000 jobs. The unemployment rate fell to 8.5% (from 8.7% in November).

Appointed

The White House has announced three recess appointments to the National Labor relations Board.

Rumor has it

President Obama will make recess appointments to the NLRB. As a preemptive comment on the political fall out of this decision, we note that the President's Republican predecessor made 7 recess appointments to the NLRB.

It can get weirder

Seems some South Carolina Boeing employees have filed a "retaliation" charge against the Machinists' union because they used the NLRB process to bully Boeing into locating the 737 Max production line in Washington State. Through collective bargaining Boeing and the union reached a 4 year agreement which included assurances that the 737 Max line would be built in Washington, and also included a resolution of the 787 Dreamliner case which ensured that contested work relocation would remain in South Carolina. The employees were assisted by the National Right to Work Legal Defense Foundation. I wouldn't bet the farm on a complaint issuing on this charge.