Tag Archives: firing

Targeting Union Employees For Layoffs Violates The First Amendment

The Second Circuit Court of Appeals brings an interesting labor decision.  In State Employee Bargaining Coalitation v. Roland, ___F.3d___( 2d Cir. May 31, 2013), the court found that targeting Union employees for layoffs violates the First Amendment (freedom of association).

In this case, the employer employed around 50,000 people.  75% of these employees were members of the Union, and 25% were not.  In December 2002, the employer fired only Union employees.  No non-Union employees were fired.

It is important to note that an employer can manage the size of their work force.  However, the employer cannot target a protected group (here, employees who associated themselves with the Union).  The reason for this is because by targeting a protected group, the effect is to inhibit employees from their freedom to associate.

Under the Constitution, in order for the employer to not violate the Constitution it must show that they used the less restrictive means to accomplish their interest and must be narrowly tailored to achieve their goals.

The following are the pivotal facts of this case.  The employer’s interest was to manage their economical situation.  However, the laying off those Union employees had a minimal effect on their budget.  In fact, these Union-only lay offs were not included in the Balanced Budget Plan.  Further, the facts showed that because both Union and non-Union employees had the same health care and pension benefits there was no reason why only the Union employees were targeted.

via Adjunct Law Prof Blog: Targeting Union Employees For Layoffs Violates The First Amendment.

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Fifth Circuit Holds Lactation Discrimination is Unlawful Sex Discrimination

The E.E.O.C. (Equal Employment Opportunity Commission) issued a press release about an important decision coming from the Fifth Circuit Court of Appeals.

In this decision, the court held that the company unlawfully discriminated against a female employee when they fired her.  In this case, the female employee was lactating or expressing milk.  The female employee asked her employer if she would be able to pump breast milk at work.  The company then fired the employee.

The court relied on the Title VII of Civil Rights Act, which was amended by the Pregnancy Discrimination Act of 1987.  The Pregnancy Discrimination Act provided that a company could not discriminate against a female worker on the basis of pregnancy, childbirth, or a related medical condition.

The Fifth Circuit Court of Appeals dismissed the argument that “pregnancy-related conditions” ended on the day the mother gave birth.  In its decision, the court explained that lactation was a physiological condition distinct to women who have undergone a pregnancy.  In other words, women, not men, lactate or express milk.  Therefore, a company discriminates based on sex when it fires a woman for lactating.

via Fifth Circuit Holds Lactation Discrimination is Unlawful Sex Discrimination.

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NBA Union Executive Director Dismissed

The last couple of days, I have been reading about the possible ousting of NBA Union Executive Director.  Yesterday (Saturday), the union representatives voted unanimously to dismiss him.

After a 469-page audit report conducted a law firm, the report charged former executive director Billy Hunter with nepotism, poor management, and abuse of union resources.  The audit did not find any criminal wrongdoing.  Nevertheless, the report concluded that Hunter had put his own interests ahead of the union’s and recommended that the players reconsider his employment.

The move to dismiss the former NBA union Executive Director Billy Hunter was announced by the union president Derek Fisher.  Hunter’s business practices had drawn the scrutiny of three government agencies.

In his blog, Hunter announced, “During the days and weeks ahead, my legal team and I will begin carefully reviewing the actions taken and statements made against me in the meeting room in my absence.”

via N.B.A. Players Dismiss Union Leader – NYTimes.com.

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NLRB Issues Major Decision Imposing Bargaining Obligation Over Discipline Before Union Reaches Contract

Alan Ritchey Inc., 359 N.L.R.B. No. 40, 12/14/12 [released 12/19/12], is a major NLRB decision. The time after a union is certified until it reaches its first contract is often long and difficult.

This decision holds, for the first time, that an employer MUST bargain with the union BEFORE imposes major discipline on unit employees notwithstanding the fact that a CBA has not been reached. As the NLRB stated:

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 emphasized.

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.

(emphasis added).

via Adjunct Law Prof Blog: NLRB Issues Major Decision Imposing Bargaining Obligation Over Discipline Before Union Reaches Conract.

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Wisconsin labor fight heats up

Public school teachers filed a class action against a public school district that claims it can cut their pay at will and fine them up to $2,500 if they don’t sign their contracts on time.

The class action, which has a putative class size of 230 teachers, alleges that the school district’s contracts have illegal and unenforceable provisions.  For example, the contract allows

  1. The district to fire or reduced the pay and benefits of tenured teachers for vague and undefined reasons;
  2. The district can fine tenured teachers $1,000 to $2,500 if they don’t sign the contract by the time the school district wants it, or seek release from the contract.

The class action further claims:

  • The 2012-13 contracts illegally allow the district to “make salary adjustments ‘due to disciplinary action and/or changes in full-time equivalency warranted by the district,’” in violation of Wis. Stat. § 118.21;
  • The contracts illegally allow the district to cut salary and benefits “if in the sole discretion of the district, the educator fails to meet the expectations referenced in the contract, acts in a manner that is not in the best interests of the district’s students, fails to abide by the terms of the Employee Handbook, fails to carry out the duties and responsibilities of the job description, or if the district decides to reduce the professional staff for financial or other lawful reasons,” in violation of Wis. Stat. § 118.21, § 118.21, and state contract law; and
  • The contracts illegally set up “a liquidated damages schedule that begins assessing damages on June 1,” with fines beginning at $1,000, escalating to 2,500, for failing to sign contracts by June 15, or seeking release from contract; this “unlawfully assesses damages to teachers seeking release from their contracts prior to the statutory date for acceptance.”

The contracts state “that failure to return a signed contract … would result in non-renewal of the teacher’s contract,” the teachers say: “A stigma is attached to being non-renewed by a school district, as it suggests that a teacher’s employment was not continued for performance reasons or misconduct.”

The class cites violation of Wisconsin Statute 118.21, under which the school district must fix teachers’ wages, violation of Wisconsin Statute 118.22, under which the school district must set the contract acceptance date at June 15, and violation of Wisconsin Statute 118.23, under which it can terminate permanent only employees for good cause.

via Courthouse News Service.

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NLRB recent decisions

This is the list of the most recent and significant decisions decided by the NLRB:

Hispanics United of BuffaloThe Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.

Alan Ritchey, Inc. – In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.

Latino Express In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.

Chicago Mathematics & Science Academy – Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.

United Nurses & Allied Professionals (Kent Hospital) – The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.

WKYC-TV, Gannet Co. Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented.

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Virginia Sup Ct Holds Supervisor Can Be Personally Liable

A divided Virginia Supreme Court recently held 4-3 that a state law claim of wrongful discharge in violation of public policy may be pursued against an individual supervisor or manager who participated in the wrongful firing but was not the workers actual employer VanBuren v. Grubb, Va., No. 120348, 11/1/12.

Writing for the majority to answer a question certified by the Fourth Circuit, Justice Millette says the purpose of Virginias wrongful discharge tort is to deter firings in violation of public policy. That purpose “is best served if individual employees in a position of power are held personally liable for their tortious conduct.”

By contrast, the dissent would find “[o]nly an employer can breach that duty because only an employer has the ability to hire and fire.”

via Adjunct Law Prof Blog: Virginia Supremes Hold That Supervisor Can Be Personally Liable In Public Policy Exception Case.

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