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.
The National Labor Relations Board today made public a webpage that describes the rights of employees to act together for their mutual aid and protection, even if they are not in a union.
The page, at http://www.nlrb.gov/concerted-activity, tells the stories of more than a dozen recent cases involving protected concerted activity, which can be viewed by clicking points on a map. Among the cases: A construction crew fired after refusing to work in the rain near exposed electrical wires; a customer service representative who lost her job after discussing her wages with a coworker; an engineer at a vegetable packing plant fired after reporting safety concerns affecting other employees; a paramedic fired after posting work-related grievances on Facebook; and poultry workers fired after discussing their grievances with a newspaper reporter.
Some cases were quickly settled after charges were filed, while others progressed to a Board decision or to federal appellate courts. They were selected to show a variety of situations, but they have in common a finding at some point in the NLRB process that the activity that the employees undertook was protected under federal labor law.
The right to engage in certain types of concerted activity was written into the original 1935 National Labor Relations Act’s Section 7, which states that: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”
That right has been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court over the years. Non-union concerted activity accounts for more than 5% of the agency’s recent caseload.
via NLRB launches webpage describing Protected Concerted Activity | NLRB.