Right to strike

Joe Burns has a pro-labor comment posted at In These Times on the Boeing issue. His point, the opposition to the NLRB's issuance of a complaint is part of the continuing assault on labor's right to strike.

Distracted

Posting has been a bit slow the last few days, attributable to the wind down and season-ending tournaments for the youth sports league to which I volunteer time, Carrollton Boosters. Our season ends Saturday. More on labor and employment law after that.

Keep your family close

The Fifth Circuit has ruled, to be eligible for FMLA leave to care for an injured child, an employee must be in close physical proximity to provide physical or psychological care required for the leave.

Unemployment rises in June

Bureau of Labor Statistics (BLS) reports a slight uptick in unemployment 9.1 to 9.2%.

Employers must verify immigrant legality

Governor Jindal has signed two bills relating to employers obligations to verify aliens may lawfully work for them. The first, HB 342, requires contractors seeking contracts from state and other governmental entities to use the federal E-Verify system. The second bill, HB 646, requires suspension of a business license or permit for the third violation for hiring an illegal immigrant. Under this HB 646 the employer could use E-Verify or the traditional I-9 method of verification. First offense $500 fine per illegal immigrant, second offense $1,000, third offense $2,500.

GINA and ADA record keeping

Title I of the ADA and Title II of GINA limit employer access to medical information. Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files, it must ensure that personal health information about applicants or employees cannot be accessed, except under the circumstances permitted by the statutes. The EEOC has issued an informal opinion letter providing some guidance.

Who is the one city employee with an unsatisfactory 2010 performance evaluation?

Jarvis Deberry has an interesting op ed in the July 3rd Times Picayune. It seems that despite there being more than a few marginal employees working for the City of New Orleans, only 31 of the 4,315 city employees evaluated in 2010 were found to "need improvement." I'm not kidding, 31! And just one received an "unsatisfactory."

I'm not a big fan of employee performance evaluations. I think most employers do a lousy job of the evaluation process. I also think its implausible to believe that a supervisor is going to give a frank evaluation of an employee he/she does not yet want to fire. As long as a supervisor's department or job is dependent on the performance of subordinates, there is an inherent conflict in the evaluation process that plays against fair evaluations. And no, I don't mean unfavorably towards the employee. Only after a supervisor has made a decision to "get rid" of a subordinate can you expect a full accounting of job deficiencies, and sometimes not even then.

Things go bump day or night

Mayor Mitch Landrieu wants to eliminate bumping rights for laid off workers. Under current rules and employee laid off in one department can "bump" an employee with less seniority in a similar position in another post in city government. Private sector employers have long rejected straight seniority as a basis for layoff decisions. Moreover, outside of the context of collective bargaining, bumping rights are rejected as counter-productinve and disruptive.

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.

NBA lockout?

First the NFL, and now maybe the NBA? Professional basketball has only just recovered from the last labor dispute (1998-1999) and is being rewarded with full houses and on court excitement. But the collective bargaining agreement expires in 2011, and that could mean an aggressive play by the billionaire owners against the millionaire players - a lockout.

Use of Scabby Rat - i -fied

We have previously posted about the inflatable rat, Scabby. The NLRB has issued a new opinion (Sheet Metal Workers Local #15 (Brandon Regional Hospital) 356 NLRB No. 162) , clarifying a broader lawful use of the giant critter in secondary contexts. The Board has concluded a stationary version of Scabby posted near a secondary employer is not picketing prohibited by the provisions of the NLRA protecting secondary employers from coercive pressure. Carpenters Local 15006 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (2010). The Board also concluded

We similarly find no evidence here to support a finding that the display of the inflatable rat or Holly’s leaflet display constituted nonpicketing conduct that was unlaw- fully coercive. Only six union agents were involved in the rat display, while Holly acted alone, and there is no evidence that their conduct was other than orderly. Like those who held the banners in Eliason, neither Holly nor the rat balloon attendants moved, shouted, impeded access, or otherwise interfered with the hospital’s operations. The rat balloon itself was symbolic speech. It certainly drew attention to the Union’s grievance and cast aspersions on WTS, but we perceive nothing in the location, size or features of the balloon that were likely to frighten those entering the hospital, disturb patients or their families, or otherwise interfere with the business of the hospital in a manner analogous to the conduct in the cases cited above or otherwise proscribed by Section 8(b)(4)(ii)(B)6.

NLRB social media issues

I think I'm getting a clearer picture of the NLRB's direction on employee off duty use of social media (blogs, tweets, etc.). There are two areas of concern. The first is overbroad policies which chill employees exercise of section 7 rights. Essentially the Board will assume intimidation occurs if the policy arguably discourages employee discussion of otherwise protected issues. Employers with overbroad social media policies will likely find the NLRB believes such a policy, even if not enforced is a basis for objecting to an employer won representation election. Its pretty clear that this is a major new problem in an organizing drive. The second point is whether the medium actually changes the analysis of what conduct is protected. It really shouldn't. The Board in refusing to issue a complaint is a recent case involving a reporter is illustrative. The reporter's tweets in issue can be found here. The NLRB refused to issue a complaint because the reporter's comments were not protected. Even though the newspaper had no social media policy, the reporter's discharge was lawful because it was based on comments entitled to no protection. The bottom line is there is danger for an employer which has a social media policy, and it will be closely scrutinized by the NLRB for its chilling effect. But, even in the absence of such a policy, an employer would remain able to discipline employees for statements which are unprotected either because they do not relate to an exercise of a section 7 right, or because they were not concerted.

Wisconsin law voided by Court

A state circuit court in Wisconsin has voided the controversial law repealing collective bargaining for public employees -  because the legislature allegedly violated the state's open meetings law. This issue will ultimately make it to the Wisconsin Supreme Court. The Journal-Sentinel has a good article giving context to the ruling.

Another NLRB Complaint issued over Facebook firing

The Chicago Regional Office of the NLRB has issued a complaint against a luxury car company for firing an employee who posted a "concerted" protest about a promotional event which could adversely affect compensation for sales employees. Our previous posts on this issue are here. This is one area of law that has evolved rapidly. Employers should seek legal advice before making employment decisions about computer use/social media or blog postings. It isn't as simple as conventional wisdom may suggest.

Labor's last stand

AFL-CIO President Richard Trumka declared labor would distance itself from Democrats unsupportive of labor's agenda. This pronouncement was treated as news by some, but it isn't really a new position. Just ask former Arkansas senator Blanche Lincoln. But Meyerson's WaPO opinion piece places the move in proper context, and the context is a bleak one for labor.

GE, the same as Boeing?

Over the past few weeks I have been in a vigorous e-mail and phone debate with a fellow management lawyer concerning the meaning and effect of the issuance of a complaint in the Boeing case. Previous posts here. Contrary to many gloomy management predictions, I think Boeing is a fairly garden variety application of long established labor law. My friend believes it is a fundamental assault on employer free speech and employer right to determine facility location.

Now we have General Electric announcing the opening of a non-union locomotive factory in Texas. At the same time it is bargaining with union workers at at its existing locomotive factory in Pennsylvania. Assuming GE executives do not articulate an anti-union motivation for their actions, as is alleged that the Boeing executives did, this sets up an ideal scenario for testing the limits of the NLRB's interpretation of a Boeing style violation. Can the announcement of the location of a new facility in a right to work state during contract negotiations ever be viewed as an unfair labor practice? The correct conclusion is obvious, it cannot, without more, be a violation. Management has the right to determine where it locates facilities, as long as the decision is not tainted with anti-union motivation. The difference in Boeing is the NLRB believes the company's actions and statements establish an anti-union motivation for its decision and issued a complaint so that the issue will be tried before an administrative law judge. Boeing may still prevail, but it will have to show the relocation to South Carolina was motivated by lawful factors.

Gould on Boeing

Former Clinton era NLRB Chairman William Gould says the NLRB complaint issued against Boeing is "unprecedented".

Dwarf denied stool accommodation

In a suit filed against Starbucks by the EEOC, the allegations are after hiring a dwarf, Starbucks refused to provide her a stool or stepladder so that she could fulfill her customer service duties. The EEOC claims the failure to provide an accommodation violates the Americans with Disabilities Act.

Unemployment and underemployment

Twin problems for the new college graduate are unemployment and underemployment.

Facebook as protected concerted activity II.

A Facebook post by an employee of a non-profit employer criticized the staff for not doing enough to help the clients served by the organization. The post drew comments from five other employees who defended their job performances and criticized terms and conditions of employment. The employer discharged the five for harassing the original poster. The NLRB issued a complaint alleging the activity discussing workplace terms and conditions was protected concerted activity. A trial is set for June 22. A previous case against a different employer settled.

Gloomy forcast

This labor professor's post is pessimistic not only about the ultimate outcome of the players suit against the NFL, but also seems to see chronic perversion of progressive legislation to the detriment of labor's interests.

First strikers replaced, now decertification

Workers at Omnova's plant in Columbus, MS have been on strike for over a year. Now the replacement workers have filed a decertification petition with the NLRB. The union has indicated it will aggressively contest the decertification. Previous posts here.

Save Avondale

The AFL-CIO blog has a post about efforts to save Avondale despite Northrop-Grumman's decision to close the facility.

Lockout again

The Eighth Circuit has handed the NFL owners an encouraging win by granting a stay of the injunction of the owner's lockout. In so doing the court does a pretty good job of explaining how the Norris-LaGuardia Act prohibits injunctions of labor disputes. A labor dispute can occur even in the absence of a certified union, thus the player's decertification, in the court's view, did not make the Norris-LaGuardia Act's prohibitions on injunctions inapplicable.

Public sector labor decline tied to private sector decline

Joe Burns at In These Times (pro labor) has posted an insightful analysis of public sector unions core problem - the weakness of private sector unionism. Seizing on that weakness, Burns notes, is a well-funded network of conservative forces which has mounted an all out assault on labor rights. While he has correctly diagnosed labor's problem, his projected cure, more solidarity of purpose and a return to collective actions may not be achievable in an environment determined to suppress it.

Right to Work vetoed in N.H.

Right to work legislation passed the legislature in New Hampshire only to be vetoed by Governor John Lynch (D). Eighteen states are considering legislation to join the ranks of the 22 existing right to work states.