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.
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.
via Adjunct Law Prof Blog: NLRB Issues Major Decision Imposing Bargaining Obligation Over Discipline Before Union Reaches Conract.
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
- The district to fire or reduced the pay and benefits of tenured teachers for vague and undefined reasons;
- 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.
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.