Category Archives: labor

Approval of Labor Unions

This was very interesting.  Americans’ approval of labor unions has jumped five percentage points to 58% over the past year, and is now at its highest point since 2008, when 59% approved. In the interim, the image of organized labor had suffered, sinking to an all-time low of 48% in 2009.

 

Source: Adjunct Law Prof Blog

Leave a comment

Filed under labor, union

Obama Vetoes rule that would have negative impact on union elections

President Barack Obama vetoed a measure passed by the Republican-led Congress that would have stopped the National Labor Relations Board from streamlining the process of unionizing workers.

The new rules, drafted by the NLRB last year would, shorten the amount of time between when a union election is called and when it is held to as little as 14 days.

They also require employers to supply union organizers with workers’ email addresses and telephone numbers, and delay legal challenges by employers until after workers have voted on a proposal to unionize.

They are now set to take effect on April 14.

Earlier this month, Republicans in the House and Senate approved a bill that would have stopped their enactment.

But on Tuesday, Obama vetoed the measure, while stating that he say the NLRB’s approach as “modest” and a reflection of “common sense.”

“”Unions have played a vital role in giving workers that voice, allowing workers to organize together for higher wages, better working conditions, and the benefits and protections that most workers take for granted today.,” the president said. ” Workers deserve a level playing field that lets them freely choose to make their voices heard, and this requires fair and streamlined procedures for determining whether to have unions as their bargaining representative..”

” Because this resolution seeks to undermine a streamlined democratic process that allows American workers to freely choose to make their voices heard, I cannot support it,” Obama added.

via Courthouse News Service.

Leave a comment

Filed under civil rights, federal, labor, NLRA, NLRB, union

Surviving Right to Work States

This is an interesting article published by the Washington Post. It discusses some key points that Unions can follow to survive in the tough anti-union atmosphere. This article bases its arguments on scholarly published articles.

The problem that I see is that Unions must represent all employees, regardless of membership.  Any changes would have to occur at the legislative level, which means: it will just not happen.

The underfunding of Unions continues to be a big struggle.  How can you get enough staff to represent members when there is no money to pay them? RTW laws are a slippery slope.

via Laws that decimate unions may be inevitable. Here’s how labor can survive. – The Washington Post.

Leave a comment

Filed under employment, labor, union

Is Attendance An Essential Function Of The Job?

In E.E.O.C. v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 2014), the Sixth Circuit Court of Appeals weighed on the issue of essential functions of a job under the American Disabilities Act.  Specifically, whether physical presence was one of these.  The Sixth Circuit remanded the summary judgment decision because it found that there is a genuine issue of whether this was the case.  The Court noted that courts should consider that while physical presence is required for some jobs, it is not required for all positions.

In this case, the plaintiff suffered of irritable bowel syndrome, which often made her unable to control her bowel. The plaintiff requested accommodations by allowing to telecommute. Since this was denied, the plaintiff had to take FMLA leave, which caused her to miss work and her work suffered.  Consequently, she was terminated.

It reasoned:

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question.

Id. at *6 (emphasis added).

The reach of the opinion is unclear.  The Court also noted:

It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. See, e.g., Melange, 482 F. App’x at 84 (custodian). We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” Vande Zande, 44 F.3d at 545; Smith, 129 F.3d at 867–68. When we decided Smith in 1997, we responded to the world as it then existed; however, in the intervening years, communications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.”

Id. at *11 (emphasis added).

This decision is interesting in many different levels.  First, the use of technology is being considered as a reasonable accommodation. Second, it adds to the trail of cases focusing on electronic communications.

Leave a comment

Filed under ADAAAA, civil rights, courts, Disability, discrimination, employment, federal, labor, legal decision, technology, Title VII

E-Mails and NRLB: Do Employees Have Rights?

On April 30, 2014, the NLRB announced that it is considering overturning Register Guard, 351 NLRB 110 (2007), enfd. in relevant part and remanded sub nom, Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009).

The issue resolves around the current existing law that states:

Employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.

The NLRB is requesting amici briefs that address the following questions:

  1. Should the Board reconsider the conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communication systems) for Section 7 purposes?
  2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communication systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?
  3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?
  4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to the be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?
  5. Identify any other technological issues concerning email or other electronic communication systems that the Board should reconsider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?

 

The briefs are due on or before June 16, 2014 and cannot exceed 25 pages.

Leave a comment

Filed under attorneys, briefs, civil rights, electronic discovery, employment, federal, labor, legal decision, NLRA, NLRB, rules, Section 7, union

SCOTUS considers whether union neutrality agreements violate Labor Law

The U.S. Supreme Court considered whether “neutrality agreements” between unions and employers violate federal labor law.  Neutrality agreements are contracts between labor unions and employers under which the employers agree to support a union’s attempt to organize its workforce.

In Unite Here Local 355 v. Muhall, the Supreme Court will decide whether these agreements are a “thing of value.”  This definition matters because under Labor Law the exchange of things of value between a labor union and an employer are a felony.  Further, it is a crime for a union to request, demand, receive or accept or agree to receive or accept, any payment, loan, or delivery of any money or other thing of value prohibited by the statute.

Under the agreements, businesses help labor unions in organization efforts in exchange for labor peace, the New York Times reports. The Washington Post offers some examples: An employer might grant access to employee lists or agree to remain neutral in exchange for union concessions, such as giving up the right to strike.

The 11th Circuit Court of Appeals held that it was a “thing of value” because it includes tangibles and intangibles.  In other words, while the employer and the union can agree on the ground rules, the assistance in this case would constitute payment.

The assistance the 11th Circuit Court of Appeals referred to was as follows.  The casino (employer) agreed to allow union access to worker information and casino grounds, and to allow a unionization vote by cards collected from workers, rather than a secret ballot. The union agreed to refrain from picketing or striking during the union drive.

It is important to note that the 11th Circuit Court of Appeals failed to take into consideration whether there was monetary value.

What is mind boggling is the fact that neutrality agreements are not only common, but they help avoid conflict and encourages the practice and procedure of collective bargaining.  The preamble of the National Labor Relations Act supports labor peace and the encouragement of the practice and procedure of collective bargaining.

The outcome of this contentious and heavily litigated case remains unknown.  The Supreme Court, specifically Justice Roberts, focused on the card-check portion of the neutrality agreement.  Justice Kagan focused on how the benefits bargained by the union benefit employees and unions.

via SCOTUS considers whether union neutrality agreements are improper ‘thing of value’.

Leave a comment

Filed under Appellate, civil rights, courts, discrimination, employment, federal, labor, legal decision, NLRB, union

Government Shut Down and the NLRB

When the shut down occurred, the NLRB closed its doors.  What is interesting is that the NLRB’s website is also down.

There are several notes that need to be pointed down.  Even though the NLRB is shut down, unfair labor practice charges’ statute of limitations of 6 months keeps running.  The statute of limitations is the time that a person/organization/company has to enforce their rights.  After that period, they may lose their right to do so.

The federal register provides:

Extensions for time of filing cannot apply to the 6-month period provided by Section 10(b) of the Act for filing charges, 29 U.S.C. 169(b), or to Applications for awards of fees and other expenses under the Equal Access to Justice Act, 5 U.S.C. 504.

….

(emphasis added).

The federal register also cautions persons to file the charge via fax and to serve the charges themselves.  The federal register states:

Notwithstanding the foregoing, persons wishing to file a charge pursuant to Section 10(b) of the Act, and for whom the 6-month period of Section 10(b) may expire during the interruption in the Board’s normal operations, are cautioned that the operation of Section 10(b) during an interruption in the Board’s normal operation is uncertain.

Consequently, it would be prudent to file the charge during the interruption in the Board’s operations by faxing a copy of the charge to the appropriate Regional Office.

…..

Moreover, persons filing a charge are reminded that it is their responsibility… to serve a copy of the charge upon the person against whom the charge is made.  While Regional Directors ordinarily serve a copy of the charge on a person against whom the charge is made as a matter of courtesy, they do not assume responsibility for such service, and it is unlikely that the Agency will be able to serve the charges during any period of shutdown due to a lapse in appropriated funds.

(emphasis added).

In summary, you must do as follows:

  1. Serve the unfair labor practice charge and the applications of fees and other expenses via fax.
  2. Serve the papers to the person against whom the charge is made.

Regarding other issues, the federal register explains that they are postponed.  These include hearings in front of Administrative Law Judges, pre and post election hearings, and filing or serving of documents (including briefs and appeals).

via NLRB |.

Leave a comment

Filed under federal, labor, Minnesota, NLRB, Pending Legislation, rules, union

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.

2 Comments

Filed under Appellate, civil rights, courts, discrimination, District Court, employment, federal, labor, legal decision, union

Sup. Ct. allows Class Action Arbitration under FAA

In Oxford Health Plans LLC v. Sutter, No. 12-125 (2013), the Supreme Court ruled that an arbitrator can require a class action arbitration.

The gist of the case is that Sutter, a pediatrician, had a fee-for-services contract, which required arbitration for all contractual disputes.  When Oxford failed to promptly pay him and other physicians, Sutter filed a class action in New Jersey.  After filing, the court compelled arbitration.  The arbitrator concluded that the contract called for class action arbitration.  Sutter appealed to higher courts, but these appeals were denied.

The Supreme Court explained its decision as follows.  First, the parties agreed to go to arbitration in their contract.  Second, an arbitrator looks at the contract, makes a decision based on the contractual language, and this decision is binding.  Thirdly, and most importantly, the Supreme Court explained that judicial review is limited to whether the arbitrator interpreted the contract, not whether the court agreed with the decision.  Consequently, because the arbitrator considered the contract, the arbitrator’s decision stands.  They only way to vacate an arbitral decision is when an arbitrator strayed from his task of interpreting the contract.  In other words, not when he performed his task poorly.

As a note: In prior decisions (Steelworkers Trilogy/Misco) in the labor context under the Labor Management Relations Act (LMRA), the Supreme Court had ruled that a contractual language had to explicitly allow class actions in the arbitration clause.  Here, the arbitration clause did not do so.

This raises the question of how the Federal Arbitration Act (FAA) reconciles with LMRA arbitrations when they are both present.  In this case, only the FAA was involved.

via Workplace Prof Blog: SCOTUS OKs Class Arbitration.

Leave a comment

Filed under Appellate, courts, employment, labor, legal decision, Supreme Court, union, waiver

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).

Leave a comment

Filed under courts, labor, legal decision, NLRB, rules, union