Friday, July 1, 2011
The NLRB recently eliminated a Bush-Board era rule on make-whole relief. The traditional rule had been to give employees make-whole relief after an employer made unlawful unilateral changes, even if the union doesn't demand a return to the status quo. In Brooklyn Hospital, the Bush Board reversed that decades-old precedent. However, the current Board returned to the traditional rule in its recent Goya Foods of Florida decision. The case involved changes to a health insurance plan, and the Board concluded that in Brooklyn Hospital, it had "abruptly departed from  well-established precedent [and] did so without acknowledging the change in remedial policy or providing any rationale for it."
What's notable is that all four members agreed to reverse Brooklyn Hospital. Member Hayes concurred, but stated that he would allow employers to limit the amount of damages by showing that any costs incurred by an individual employee after losing the old plan was offset by savings under the new plan (although he wouldn't make an employee reimburse an employer is the savings exceeded the costs).
Hat Tip: Dennis Walsh (and others)
Thursday, June 30, 2011
Update (PS): David Doorey (York - Canada) did a post on the NBA lockout from the Toronto Raptors perspective. He suspects the NBA is violating Ontario labour laws when it locks out the Raptors.
It's a hard time to be a professional sports fan. First the NFL lockout, and now the NBA. NBA owners have just decided to lock out the players today. The bottom line, as usual, is money. There's a ton of revenue, but the owners claim that a majority of teams are losing money and therefore need more money from the players. Currently, the first $600 million in revenues goes to the teams, then the remainder is divided so that the players get 57% and the owners 43%. The owners are asking for the first $900 million and a 50-50 split after that. They also want a stronger salary cap.
The players respond that the problem is bad spending by owners and that they shouldn't be penalized. They oppose a stronger salary cap The players have offered to give the owners an extra $100 million a year for five years. But their proposal, at least according to the owners, would have raised the average salary from $5 million to $7 million and prevented team profitability.
The prospect for a settlement coming soon seems low, as the Commissioner describes the "huge philosophical divide" between owners and players. Essentially, the NBA wants fundamental changes to its business structure, but they haven't found a change that the players are willing to go along with. So, this could be a long one.
Wednesday, June 29, 2011
As you may know the National Labor Relations Board recently issued proposed rule changes for representation election processes and is now in the open comment period.
Ellen Dannin (Penn State), EPRN Labor and Employment Law Topic Coordinator, has written a very good introductory blog on the proposed rules and has started the comment process.
Please log on to EPRN, see Ellen's blog by scrolling down the left side of the home page, read the Board's summary of the proposed changes that can be found at http://www.nlrb.gov/node/525 and contribute your analysis.
Ellen and I will summarize the comments received on our site and forward them to the NLRB during the public commentary period so that our collective expertise is reflected in the process.
It is really important for us to show we can respond to these requests for comments in a timely manner (public hearings are scheduled for July 18-19; we need your input well before then) so I hope you will contribute your views and if possible indicate the research base from which your analysis springs.
This is obviously a very important legal issue in front of the NLRB right now, so the more insightful comments, the better.
As we noted, the NLRB is accepting comments on its proposed election rules. Tom Kochan (MIT) and Ellen Dannin (Penn. State) are offering to accept comments and provide a summary of all them to the NLRB--a great way to present academic views on the proposals in a manageable form. They are accepting comments on the Employment Policy Research Network website: just look for Ellen's blog (or click here) to post comments (it's also a good source for more info on the proposals). Tom notes that "It is really important for us to show we can respond to policy/rule proposals in a timely manner (public hearings are scheduled for July 18-19; we need your input well before then) so I hope you will contribute your views and indicate the research base from which your analysis is drawn."
Monday, June 27, 2011
The Volokh Conspiracy reports that the Supreme Court has granted certiorari in a case raising the issue of whether it is constitutional for a state to condition employment on the payment of a special union assessment intended for political purposes without providing notice and an opportunity for an employee to object. The case is Knox v. Service Employees Int’l Union, Local 1000.
Hat tip: Dennis Nolan.
[Update]: I wanted to add something to Rick's quick post. The question cited above is from the petitioner's cert. petition (represented by frequent commentator on this blog, James Young of the National Right To Work Foundation). It may be just me, but I was puzzled at the first read of the excerpt of the question that the SCOTUS blog used (which is what the Volokh Conspiracy also used) because it sounded like a no-brainer given well-established case law clearly prohibits requiring employees to pay dues for political expenditures with no ability to object. But that's not exactly what's going on here. As the Ninth Circuit describes its opinion's intro:
This appeal presents the question of whether a union is required, pursuant to Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986), in addition to an annual fee notice to members, to send a second notice when adopting a temporary, mid-term fee increase.
In other words, a Hudson notice and opportunity to object was provided in this case, as it was every June. The twist was a special assessment (equal to 0.25% of salary) imposed by the union in September one year to raise money to fight political anti-union measures. The union argued that some expenses from the assessments would be chargeable and others non-chargeable. The majority in the Ninth Circuit basically held that a Hudson notice does not have to provide an exact determination of what will be spent in the subsequent year--a good prediction is enough, which the assessment in June complied with. So, very basically, what the petitioners are asking for is for unions to have to issue a new Hudson notice for mid-year increases in non-chargeable fees. The full cert. petition does make all of this clear, so this is just a clarification of an edited portion of it.
The other issue presented is an interesting one, as its directed at the overlap between political activity and activity related to collective bargaining. The easiest example is the Wisconsin anti-public collective bargaining bill. If unions spent money fighting its passage, that's undoubtably "political." But that spending is also directly related to their ability to represent workers. It's unclear whether this question or the other one is what piqued the Court's interest--and it might very well not be this one because the Ninth Circuit didn't discuss it--but I think it's a toss-up what the Court will do on the chargeability issue if it addresses it. The Court hasn't always gone against unions on this issue, so it's not clear to me that the grant of cert. here is necessarily a bad sign for these fees. But it couldn't certainly go the other way.
The NLRB has just announced an open meeting on their new proposed election rules. It will also cover other recommendations for other ways to improve representation procedures. The meeting will be on June 18 and possibly extend to July 19. Those interested in attending or speaking at the meeting must contact the Board by 4om on July 1. See the announcement for details.
Word has been circulating that one of the Wisonsin Supreme Court Justices got violent with another during an argument about the collective-bargaining case. Justice David Prosser--who almost lost reelection because of the opposition to the new anti-union measure--is alleged to have grabbed Justice Ann Bradley around the neck. There doesn't seem to be agreement as to exactly what happened and whether it was provoked (one report says that Justice Bradley "charged" Justice Prosser, but either way this is a sad statement about the current state of the Wisconsin Supreme Court. It might also feed into arguments against elected judiciaries. Not that this couldn't happen on any court, but the hyper-politicized nature of many judicial campaigns certainly doesn't help.
Hat Tip: Michael Duff