D.C. Circuit Strikes Down NLRB Notice Rule

In NAM v. NLRB, No. 12-5068 (D.C Cir. May 17, 2013), the D.C. Circuit Court of Appeals struck against the NRLB notice rule.

The background is as follows.  On August 30, 2011, the National Labor Relations Board (NLRB) published a final rule regarding notice posting.  76 Fed. Reg. 54,006.  That final rule provides:

All employees subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures…”

39 C.F.R. 104.202(a).  The final rule also declares that failure to post this notice is an unfair labor practice (ULP).   In other words, if an employer fails to put up a NLRB notice, the employer violates the National Labor Relations Act (NLRA).  This is essentially the focus for the Court of Appeals.

The court explained that under Section 8(e), the Board cannot find non-coercive employer speech to be an ULP or evidence of an ULP.  The Court of Appeals found that the NLRB’s final rule did both.  The court states,

Under the rule an employer’s failure to post the required notice constitutes an unfair labor practice.  See 29 C.F.R. 104.210, 104.201.  And the Board may consider an employer’s ‘knowing and willful’ noncompliance to be ‘evidence of antiunion animus in cases in which unlawful motive [i]s an element of an unfair labor practice.’ 76 Fed. Reg. at 54,035-36; see also 29 C.F.R. 104.214(b).

(as in original).

NLRB Overrules Anheuser-Busch, Favors Balancing Test on Witness Statements

The National Labor Relations Board (NLRB) on Piedmont Gardens, 359 NLRB No. 46, overruled a 36-year-old “bright-line rule” that denied labor organization representatives access to witness statements obtained by unionized employers, finding NLRB should balance the interests of unions and employers in assessing union requests for the names or statements of witnesses interviewed during a company investigation.

By overruling Anheuser-Busch, 237 NLRB 982 (1978), and applying instead the Detroit Edison balancing test, the NLRB found that respondents violated the NLRA by failing to provide the witness statements.  In the Detroit Edison balancing test, the board will balance the union’s need for relevant information against the legitimate and substantial employer’s interest in keeping information confidential.

via Adjunct Law Prof Blog: NLRB Overrules Anheuser-Busch Precedent, Favors Balancing Test on Witness Statements.

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.

Sup. Ct. March Calendar

Next month, the Supreme Court will be hearing high profile cases – including the gay marriage debate (California’s Proposition 8 and DOMA), as well as voter registration laws.  In addition, the Supreme Court will hear a variety of important issues, such as class arbitration waivers, generic pharmaceutical regulations, and reimbursement or payment under the Takings Clause.

The following are the oral arguments scheduled for March.

Monday March 18

Arizona v. Inter Tribal Council of Arizona:

1. Whether the 9th Circuit erred in creating a new, heightened preemption test under Art. 1, Sec. 4, Cl. 1 of the U.S. Constitution (“the Elections Clause”) that is contrary to the Supreme Court’s authority and conflicts with other circuit court decisions; and
2. Whether the 9th Circuit erred in holding that under that test the National Voter Registration Act preempts an Arizona law that requests persons who are registering to vote to show evidence that they are eligible to vote.

Bullock v. Bankchampaign

1. What degree of misconduct by a trustee constitute “defalcation” under Sec. 523(a)(4) of the Bankruptcy Code that disqualifies the errant trustee’s resulting debt from a bankruptcy discharge, and whether it includes actions that result in no loss of trust property.

Tuesday March 19

Sebelius v. Cloer

1. Whether a person whose petition under the National Vaccine Injury Compensation Program is dismissed as untimely may recover from the United States an award of attorney’s fees and costs.

Mutual Pharmaceutical Co. v. Bartlett

1. Whether the 1st Circuit erred when it created a circuit split and held – in clear conflict with this Court’s decisions in PLIVA v. Mensing, Riegel v. Medtronic, and Cipollone v. Ligget Group - that federal law does not preempt state law design-defect claims targeting generic pharmaceutical products because the conceded conflict between such claims and the federal laws governing generic pharmaceutical design allegedly can be avoided if the makers of generic pharmaceuticals simply stop making their products.

Wednesday March 20

Horne v. Dept. of Agriculture

1. Whether the 9th Circuit erred in holding, contrary to the decisions of 5 other circuit courts of appeals, that a party may not raise the Takings Clause as a defense to a “direct transfer of funds mandated by the Government,” E. Enterp. v. Apfel, but instead must pay the money and then bring a separate, later claim requesting reimbursement of the money under the Tucker Act in the Court of Federal Claims; and
2. Whether the 9th Circuit erred in holding, contrary to the decision of the Federal Circuit, that it lacked jurisdiction over petitioner’s takings defense, even though petitioners, as “handlers” of raisin under the Raisin Marketing Order, as statutory required under 7 USC 608c(15) to exhaust all claims and defenses in administrative proceedings before the United States Department of Agriculture, with exclusive jurisdiction for review in federal district court.

Dan’s City Used Cars v. Pelkey

1. Whether state statutory, common law negligence, and consumer protection act enforcement actions against two-motor carrier based on state law regulating the sale and disposal of a towed vehicle are related to a transportation service provided by the carrier and thus preempted by 49 USC 14501-c-1.

Monday March 25

Oxford Health Plans v. Sutter

1. Whether an arbitrator acts within his powers under the Federal Arbitration Act (as the 2nd and 3d Circuits have held) or exceeds those powers (as the 5th Circuit has held) by determining that parties affirmatively “agreed to authorize class arbitration,” Stolt-Nielsen S.A. v. Animalfeeds Int’l Corp., based solely on their use of broad contractual language precluding litigation and requiring arbitration of any dispute arising under their contract.

Federal Trade Commission v. Actavis

1. Whether reverse-payment agreements are per se lawful unless the underlying patent litigation was a sham or the patent was obtained by fraud (as the court below held), or instead are presumptively anticompetitive and unlawful (as the 3d Circuit has held).

Tuesday March 26

Hollingsworth v. Perry

1. Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and
2. Whether petitioners have standing under Art. III, Sec. 2 of the Constitution in this case.

Wednesday March 27

United States v. Windsor

1. Whether Section 3 of the Defense Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State; 
2. Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and
3. Whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

via New March argument calendar : SCOTUSblog.

Update on NYPD’s surveillance and infiltration of Muslim groupds

Are Muslim communities being unfairly targeted by law enforcement?  This is the conversation being raised after the New York Civil Liberties Union sought to revisit a 41-year old case.

You may have heard about news articles discussing NYPD’s surveillance and infiltration of New York-based Muslim groups.  Last year, the Associated Press confirmed the existence of a program, called the Assessment Program, formerly known as the Demographics Unit, which spied on Muslims.

As way of background, in 1985, a Manhattan federal judge ordered a consent decree (known as “Handschu guidelines”) whereby the police is barred from investigating political and religious organizations without “specific information” linking the group to a crime.  In that case, Handschu v. Special Services Division, the police had extensive dossiers on a large array of political groups, including the Black Panthers.

After 9-11, the judge loosened the Handschu guidelines to give police wider powers to investigate political groups in the war on terror.

The New York Civil Liberties Union released a memorandum, submitted to the court, seeking to end the NYPD’s Assessment Program.  In the memorandum there is testimony stating that an informant was paid as much as $1,500 a month to take part in the NYPD’s alleged “create and capture” program.  The informant stated,

This meant I was to pretend to be a devout Muslim and start an inflammatory conversation about jihad or terrorism and then capture the respond to sent to the NYPD.

I did this on numerous occasions with people I met at the mosques and other locations.

The question to be decided is – how much latitude law enforcement given when conducting surveillance of political and religious groups?

As a side note, you may have also come across the story regarding the FBI’s surveillance on Muslims groups, known as “Operation Flex.”  That story has been reported in many news circles, including the Business Insider here.

via Courthouse News Service.

NLRB charge alleging illegal picketing at Wal-Mart held in abeyance

The NLRB Office of General Counsel today announced that, based on specific commitments made by the United Food and Commercial Workers union, it is not necessary to decide the merits of an unfair labor practice charge filed by Wal-Mart against the UFCW.

In that charge, filed November 20, Wal-Mart alleged that the union violated the National Labor Relations Act by picketing at its stores for more than 30 days with the intent of seeking recognition for the union, without filing a petition for an election. The union, however, contended that the actions at the stores were not intended to gain union recognition, but to help employees in their efforts to have the employer commit to certain labor rights and standards.

The charge will be held in abeyance and dismissed in six months as long as the union complies with the commitments it has made. Under those commitments, described in an Advice Memorandum, the union disavowed any recognitional or organizational object and promised to maintain a disclaimer to that effect on Making Change for Wal-Mart and OUR Walmart websites. The union also promised, among other things, not to engage in any picketing or confrontational conduct which is the functional equivalent of picketing for 60 days.

via NLRB charge alleging illegal picketing at Wal-Mart held in abeyance | NLRB.

NLRB Recess Appointments Unconstitutional

Today, the D.C. Circuit Court of Appeals held that the NLRB recess appointments were unconstitutional.  It goes without saying that the possible ramifications of this decision, which may impact other NLRB decisions.

In Noel Canning, the NLRB held that the issue presented was mooted because the NLRB recess appointments were unconstitutional.  In its decision, the court essentially stated that the Senate wasn’t in recess.  The court reasoned that “recess” occurs when Congress is not in one of its regular two or three sessions.

via Workplace Prof Blog: D.C. Circuit Holds NLRB Recess Appointments Unconstitutional.

Unionization Rates Continue to Decline

On January 23, 2013, the BLS released its annual report on the rate of unionization. Overall, the rate of unionization feel from 11.8% to 11.3%. Public sector workers had a 35.8 percent membership rate while the rate on unionization in the private sector dropped to 6.6%.

Significantly, however, union members continue to earn more than there non-union counterparts. As the report states:

In 2012, among full-time wage and salary workers, union members had median usual weekly earnings of $943, while those who were not union members had median weekly earnings of $742.

In addition to coverage by a collective bargaining agreement, this earnings difference reflects a variety of influences, including variations in the distribution sof union members and nonunion employees by occupation, industry, firm size, or geographic region.

via Adjunct Law Prof Blog: Breaking News. Unionization Rates Continue to Decline.

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.

Wisconsin Act 10 (Budget bill) Upheld

Do you remember the Governor Walker’s Wisconsin anti-union bill?  Well, the 7th Circuit Court of Appeals just upheld it.

As background, Governor Walker signed Act 10 which made its strongest impact on collective bargaining, compensation, retiring, health insurance, and sick leave of public sector employees.

The most-talked about change was to collective bargaining rights.  The bill limited collective bargaining to wages.  As you may know, unions often bargain on a plethora of topics – such as sick leave, vacation, pension, health insurance, funeral leave, discipline, training, retirement, lay offs, and so on.  Further, the bill out-right prohibited employers from collecting union dues and bargaining units would not be required to pay union dues.  However, some units were exempted: local law enforcement, state troopers, and inspectors.

In Wisconsin Educational Council v. Walker, ____F.3d___ (7th Cir. Jan. 18, 2013), the main challenge was based on equal protection.  The bill basically created 2 classifications of public employees: (1) public safety employees, and (2) general employees.  According to the bill, as stated previously, the limitations of collective bargaining rights were applied only to the general employees.

In the 74-page decision, the 7th Circuit Court held that the bill was constitutional.  The court held that the bill did not create view-point discrimination. The court explained that the different treatment was justified on the greater consequences of public safety worker strikes.

 

via Adjunct Law Prof Blog: Breaking News! 7th Upholds The Constitutionality of Wisconsin Budget Repair Bill.