Monthly Archives: January 2013

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.

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More on NLRB Recess Appointments

There is much talk on the D.C. Circuit Court of Appeals’ ruling that the President’s NLRB recess appointments was unconstitutional.

Shortly thereafter, the NLRB released a press release stating:

The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld.  It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other court of appeals.

Below is a compilation of pending cases, as put together by SCOTUS Blog by Lyle Denniston:

  • D.C. Circuit — fifteen other challenges pending, most if not all of which will be decided on the basis of last Friday’s ruling.  The cases are either in the briefing stage, or awaiting a briefing schedule.
  • Second Circuit — one case, in briefing.
  • Third Circuit — three cases, one set for argument March 19 NLRB v. New Vista Nursing, docket 11-3440; one case being held for that case, another in briefing.
  • Fourth Circuit — four cases, one set for argument March 22 NLRB v. Enterprise Leasing Co. SE, docket 12-1514; others in briefing.
  • Fifth Circuit — one case, in briefing.Sixth Circuit — one case, in briefing.
  • Seventh Circuit — two cases: one decided, but not on the merits of the appointments power; one in briefing.Ninth Circuit — one case, in briefing.
  • Eleventh Circuit — one case, in briefing.
  • The only federal appeals courts in which no such cases are pending are the First, Eighth, and Tenth.

via Spreading challenge to appointment power UPDATED : SCOTUSblog.

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Campaigners Can’t Lie in MN

Minnesota can prohibit political campaign workers from swaying an election by intentionally lying about a candidate or ballot question, a federal judge ruled.

The Minnesota Fair Campaign Act makes it a gross misdemeanor for anyone “who intentionally participates in the preparation, dissemination, or broadcast of paid political advertising or campaign material with respect to the personal or political character or acts of a candidate, or with respect to the effect of a ballot question, that is designed or tends to elect, injure, promote, or defeat a candidate for nomination or election to a public office or to promote or defeat a ballot question, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false.”

It drew a challenge in 2008 from the 281 CARE Committee and the Citizens for Quality Education, which campaign against ballot initiatives that seek increased funding for school districts through bond increases and tax levies.  The groups claimed that the law violated their right to free speech and chills their ability to participate in rigorous political debate.  A federal judge in Minneapolis dismissed the complaint for lack of standing, but the 8th Circuit reversed in May 2011.

On remand, U.S. District Judge Ann Montgomery granted summary judgment to the defendants, who consisted of two county attorneys and the state attorney general.

“Plaintiffs correctly note that our countrys forefathers used rancourous[sic], sometimes false statements to influence voters or even gain material benefits for themselves,” Montgomery wrote.

“But whats past is not always prologue. Over a century ago, the Minnesota legislature implemented minimal, narrow restrictions against knowingly false speech about political candidates in an effort to protect the debates between honestly held beliefs that are at the core of the First Amendment. For nearly a quarter of a century, these restrictions have also applied to statements regarding ballot initiatives. The ballot provisions in Minn. Stat. § 211B.06 reflect a legislative judgment on behalf of Minnesotan citizens to guard against the malicious manipulation of the political process. The court finds that the provisions at issue are narrowly tailored to serve this compelling interest.”

Though Minnesota Attorney General Lori Swanson had sought dismissal on the basis of qualified immunity, Montgomery deemed this question moot.

via Courthouse News Service.

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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.

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Judge refuses to dismiss Ten Commandments case

The District Court for the Western District of Pennsylvania allowed a case challenging the Ten Commandments monument to proceed.

This case arises from the installation of a large stone monument in front of the Valley High School.  Plaintiffs argue that this is a violation of the First Amendment’s prohibiting the government from endorsing a religion.  The district court refused to remove the Ten Commandments monument.  The district’s argument is that the Ten Commandments monument is a historical landmark.

The district asked the federal court to dismiss the lawsuit.  The District Court denied the motion, stating that the case has “sufficient merit” to proceed to the discovery phase.

 

via Judge refuses to dismiss Ten Commandments case | TribLIVE.

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Sup. Ct. will hear retaliation mixed motives case

On Friday, the Supreme Court granted certiorari in the University of Texas Southwestern Medical Center v. Nassar to address mixed motives in retaliation cases.

The question the Supreme Court will address is:

Whether the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).

(emphasis added).

Plainly, the Supreme Court will opine about who has the burden of proof (who has to prove that retaliation was/or-is-not improper).

  • If the worker has to prove that the retaliation was improper, the worker has to show that the employer retaliated only due to the improper motive/reason (i.e. filing a lawsuit, making a complaint with HR, having a disability, due to race, gender, religion, etc.).
  • If the employer has to prove that the tangible employment action (i.e. discipline, firing, transfer, demotion) was not retaliation, the employer has to show that the improper motive/reason was part of many reasons.

The SCOTUSblog file with links to documents is here.

via Workplace Prof Blog: SCOTUS grants cert in retaliation mixed motives case.

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Dayton’s budget includes a legal services tax

Like Governor Pawlenty, Governor Dayton now wants to create a legal services tax.  The effect of such a bill would mean that the next time you or your client wants to seek a lawyer’s aid, in addition to paying the attorney’s fees, the client will need to pay a burdensome tax on legal services.

To reduce the budget deficit, this is what Governor Dayton proposed:

  • Reducing corporate income tax from 9.8% to 8.4%.  A huge drop of 1.4%.
  • Governor Dayton stated that he wants to tax clothing that costs more than $100.
  • Governor Dayton wants to tax the following services: legal, accounting, architecture, specialized design, computer, management consulting, advertising, employment and business support services.

Taxing legal services is a bad idea, which would significantly impact a population that cannot afford to get hit.  And why is that?  The legal services tax will be paid by the client.

So say, you are trying to fight foreclosure.  The owner of the home will have to pay that tax.  Or say, you are trying to fight a custody battle.  The parent will have to pay that tax.

Imposing such a severe burden on the middle-class, as well as the lower-class, will inevitably have a chilling effect.  In other words, the vast majority of Americans will no longer have a viable resource when exercising their constitutional rights.

The Minnesota State Bar Association shares this same viewpoint.  In addition, the MSBA has also stated that the tax would be next to impossible to administer.

via Dayton unveils a legal services tax to fill budget deficit – MinnLawyer Blog.

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Filed under civil rights, fees, Minnesota, Pending Legislation

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.

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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 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.

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Filed under Appellate, employment, labor, legal decision, union, wage