Friday, March 7, 2014
- The NLRB will hold public meetings on its new election rules proposals. Requests to speak are due March 10 and the meetings are scheduled for April 10 & 11. The transcripts from the previous set of meetings, while containing a lot of the usual suspects, actually had some useful testimony, so it's not just a pro forma procedural hurdle.
- Here we go again. Apropos to the above entry, after the NLRB proposed again its original set of election rules, Republicans in Congress attack. This time a House hearing. The main objection appears to be faster elections (what they call "ambush elections"), although the claim that they could be held in as little as 10 days doesn't look accurate to me.
- I'm late on this one, but the NLRB is relocating. HQ is moving from the 14th & L location that I new so well to a building on the Capitol riverfront. At least they'll be able to catch more Nationals games.
- After the Scott Walker e-mail release, it became known that a state doctor was fired for having modeled thongs in the past. Jason Walta asks whether she might have a claim under the Wisconsin statute that protects the "use or nonuse of lawful products off the employer's
premises during nonworking hours." See the lengths we'll go to try to tease Paul, our emeritus Wisconsinite, back onto the blog?
Hat Tip: Patrick Kavanagh.
Monday, February 24, 2014
Given the amount of attention leading up to the VW-Chattanooga vote, it's no surprise that the aftermath has been heated as well. Following the UAW's narrow loss, the biggest news is the union's filing of eletcion objections with the NLRB. The actual objections petition is well worth a read. I followed the election pretty closely, but was still amazed at some of the statements by Tennessee politicians, especially Sen. Corker who might feel especially charged given his role in bringing VW to Chattanooga while he was mayor. In any event, there's a plausible third-party interference claim here, especially given Corker's repeated statements that he heard from VW itself that it would decide against expanding production at the plant if the union won. It'll be interesting to see if VW takes any position before the Board.
In related news, Steven Greenhouse has a good recap on the events as of last week,primarily from the UAW's viewpoint. Also, Cesar Rosado Marzan (Chicago-Kent) takes the glass-half-full view by stressing the possibility of filing ILO charges and VW bargaining with the UAW as a minority union. Given the outcry leading up to the vote, could you imaging the reaction if VW started dealing with the union after it lost a vote?
Hat Tip: Tom Cochrane
Thursday, February 20, 2014
The Departments of Labor, Treasury, and Health and Human Services have announced the publication of final regulations implementing a 90-day limit on waiting periods for employer provided health coverage.
The final regulations require that no group health plan or group health insurance issuer impose a waiting period longer than 90 days after an employee is otherwise eligible for coverage. The rules do not require coverage be offered to any particular individual or class of individuals, and it doesn't affect non-time-period conditions for eligibility, such as meeting certain sales goals, earning a certain level of commission, or successfully completing an orientation period. Requiring employees to complete a certain number of hours before becoming eligible for coverage is generally allowed as long as the requirement is capped at 1200 hours. The rules also address situations in which it cannot be determined that a new employee will be working full-time.
The departments are issuing a companion proposed rule for comment. That rule would limit the maximum duration of an otherwise permissible orientation period to one month. This proposal will be open for public comment. Comments must be filed by April 25, 2014.
Both the final and proposed rule are scheduled to be published on Monday, February 24, 2014.
Wednesday, February 19, 2014
Faculty members at the University of Illinois at Chicago have called a 2-day strike, to last today and tomorrow, to help raise awareness of the contract negotiation issues with the trustees. See here for a general description, here for what many of the issues are, here for an opinion piece about the role of public higher education in a city with serious income inequality, and here and here for a description by some faculty members about why they are striking.
The issues sound very similar to issues at lots of universities, although somewhat magnified by the student population UIC serves: lack of sufficient numbers of faculty to serve a group of students at the lower end of the socioeconomic scale, many of whom are immigrants, may be first-generation college students, and may be working their way through school; lack of status, job protection, and sufficient pay for a good chunk of faculty; salary compression, stagnant pay, and a lack of other support for tenured faculty. On the other side are state budgetary pressures and a lack of public support for higher education.
These issues seem inseparable from other employment and wealth trends and whether there are such things any more as public goods. Has higher education always been this much of a mess, and I just didn't know because I didn't work there?
Friday, February 14, 2014
The votes are in, and VW-Chattanooga employees have voted 712-626 against representation by the UAW (participation was 89%). As has been frequently noted in the news, this could have been a ground-breaking vote in many ways. One of the most obvious is that it would have represented a breakthrough as the UAW finally gains a foothold in the foreign-owned Southern automaking industry. Moreover, the labor-management relationship was to model itself on a German-style works council.
Although important, I found the "foothold" point to be the less important one. In many ways, this situation is unique to a German company with long ties to one of the more powerful unions in the world (IG Metal). Even if the vote had gone the other way, there was no reason to assume that unionization would've spread to other plants in the South.
More interesting was that the proposed relationship between VW and the UAW looked extremely promising. Many commentators (including yours truly) have argued in favor of more cooperative labor-management relationships and it would've been really interesting to see how it developed. But it was not to be.
Matthew Dimick (Buffalo-Law) and Neel Rao (Buffalo-Economics) have just posted on SSRN their paper, Wage-Setting Institutions and Corporate Governance, which examines how wage-setting institutions influence the concentration of ownership and investor=protector legislation. The abstract:
Looks really interesting, so check it out!
Monday, February 10, 2014
In another sign that the 5-member NLRB is ready for business, the Board has put out two separate calls for briefs on three separate issues: deferral to arbitration awards, faculty status as employees, and jurisdiction over religous universities. All of these are perennial issues that have been hard fought over the years. The announcements (links above) contain more info on filing briefs.
The announcement for the deferral issues states, in part:
The National Labor Relations Board (NLRB) invites interested parties to file briefs . . . to determine whether or not the Board should continue, modify or abandon the Olin/Spielbergstandard for deferral to arbitration awards.
Under the existing standard, the Board defers to an arbitration award when (1) the arbitration proceedings are fair and regular; (2) all parties agree to be bound; and (3) the arbitral decision is not repugnant to the purposes and policies of the Act. Spielberg Mfg. Co., 112 NLRB 1080 (1955). Further, the arbitral forum must have considered the unfair labor practice issue. The Board deems the unfair labor practice issue adequately considered if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice issue. Olin Corp., 268 NLRB 573 (1984). The burden of proof rests with the party opposing deferral.
The NLRB General Counsel has asked the Board to adopt a different standard. Under his proposal, the party urging deferral would bear the burden of demonstrating that (1) the collective-bargaining agreement incorporates the statutory right, or the statutory issue was presented to the arbitrator, and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue. If the party urging deferral makes that showing, the Board would defer unless the award was clearly repugnant to the Act.
The announcement for the regious university jurisdiction and faculty status states, in part:
The National Labor Relations Board is inviting briefs from interested parties on two questions: whether a religiously-affiliated university is subject to the Board’s jurisdiction, and whether certain university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded managerial employees.
The case is Pacific Lutheran University (19-RC-102521). . . . In its invitation, the Board listed three questions to be addressed concerning jurisdiction, including what test the Board should apply under NLRB v. Catholic Bishop, 440 U.S. 490 (1979), to determine whether self-identified “religiously affiliated educational institutions” are exempt from the Board’s jurisdiction, and what factors the Board should consider in determining the appropriate standard for evaluating jurisdiction under that case. The Board listed nine questions that the briefs should address concerning the standard under NLRB v. Yeshiva University, 444 U.S. 672 (1980).
It appears that there is going to be a lot of important things coming from the Board, so it looks to be an interesting year.
Wednesday, February 5, 2014
The NLRB has just announced that it is proposing new election rules. To be more accurate, it is proposing the identical set of reforms that it proposed on June 11, 2011. We described those proposals here, which were ultimately watered down when the Boar finalized its election rules. Of course, as readers well know, the NLRB faced many challenges to those rules, particularly based on procedural objections, which led it recently to withdraw the rules. As we have noted, opponents to these reforms should've been careful what they ask for, as the challenges gave the Board a good excuse to go back to the drawing board and come out with more robust changes, which it is now doing. For those disappointed by the watering down of the June 2011 proposals, this is a possible silver lining to the entire issue.
From the NLRB's announcement:
The National Labor Relations Board announced today that it is issuing proposed amendments to its rules and regulations governing representation-case procedures. In substance, the proposed amendments are identical to the representation procedure changes first proposed in June of 2011. A Notice of Proposed Rulemaking (NPRM) will appear in the Federal Register tomorrow. The proposals are intended to enable the Board to more effectively administer the National Labor Relations Act. Specifically, the NPRM presents a number of changes to the Board’s representation case procedures aimed at modernizing processes, enhancing transparency and eliminating unnecessary litigation and delay. Issuance of the proposed rule was approved by Board Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer. Board Members Philip A. Miscimarra and Harry I. Johnson III dissented. . . .
“I believe that the NPRM first proposed in June of 2011 continues to best frame the issues and raises the appropriate concerns for public comment,” Pearce said. He stressed that the Board is reviewing the proposed changes with an open mind: “No final decisions have been made. We will review all of the comments filed in response to the original proposals, so the public will not have to duplicate its prior efforts in order to have those earlier comments considered. Re-issuing the 2011 proposals is the most efficient and effective rulemaking process at this time.”
“Unnecessary delay and inefficiencies hurt both employees and employers. These proposals are intended to improve the process for all parties, in all cases, whether non-union employees are seeking a union to represent them or unionized employees are seeking to decertify a union,” Pearce said. “We look forward to further exchanges of ideas to improve the processes in a way that will benefit workers, employers and all of the American people.”
The reforms the Board will propose would:
- allow for electronic filing and transmission of election petitions and other documents;
- ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process;
- streamline pre- and post-election procedures to facilitate agreement and eliminate unnecessary litigation;
- include telephone numbers and email addresses in voter lists to enable parties to the election to be able to communicate with voters using modern technology; and
- consolidate all election-related appeals to the Board into a single post-election appeals process.
Tuesday, January 28, 2014
ESPN this morning reported that a group of college football players at Northwestern have filed a representation petition with the NLRB, seeking to be recognized for bargaining purposes. More stories here and here. Northwestern's response here, and the NCAA's here. Mike McCann (New Hampshire) weighs in here. The biggest hurdle for the players will be in demonstrating that they are employees for purposes of the NLRA, which ties into debates about whether college athletes in revenue generating sports should be paid and others.
Friday, January 24, 2014
The Fourth Circuit issued an opinion yesterday on an issue of first impression under the ADA as it's been amended by the ADAAA. In Summers v. Altarum Institute Corp, the court held that a temporary disability can be a disability for purposes of the Americans with Disabilities Act, reversing a dismissal and remanding the case for further proceedings.
The plaintiff was a government contractor who was assigned to a workplace he had to travel some distance to get to. One day, on the way to work, he fell getting off of his train and seriously injured both legs. Without surgery, pain medication, and physical therapy, it would likely be a year before he would be able to walk, and with that treatment, it would likely be seven months. Almost immediately after the injury, the plaintiff suggested to his employer ways that he could work remotely and then work up to working again on site for the client, but instead of working on a plan, his employer encouraged him to take short term disability and then later terminated him. The plaintiff sued, alleging that he was discharged because of his disability.
The district court dismissed his claim, holding that "a temporary condition, even up to a year, does not fall within the purview of the [A]ct,” so the plaintiff failed to allege that he was disabled within the meaning of the ADA. The court also suggested that the plaintiff was not disabled because he could have worked with the assistance of a wheelchair.
The court of appeals held that the plaintiff was substantially limited in the major life activity of walking even though he would eventually be able to walk again. The court acknowledged that under pre-ADAAA precedent, namely Toyota v. Williams, 534 U.S. 184 (2002), that temporary disabilities were not covered. In the ADAAA, though, Congress explicitly expanded the definition of disability and explained it was doing so to reverse the effects of narrowing Supreme Court decisions including Toyota.
Moreover, Congress directed the EEOC to revise its regulations to broaden the definition, and the EEOC did so after notice and comment. The revised regulations provide that effects of an impairment lasting even less than six months can be substantially limiting enough to constitute a disability. Duration of the impairment is one factor to consider, but severity of the impairment is also important. The more severe the impairment, the shorter the duration needed for the impairment to substantially limit a major life activity. Finally, the court held that the cause of the impairment was not relevant, at least between whether an impairment was caused by a long-term or permanent disability or an injury because the EEOC's regulations use impairment and injury interchangeably in several places in the regulations. The court gave all of these regulations Chevron deference finding that they were highly reasonable interpretations of the amended statute.
Regarding the possibility that the impairments might last less time with surgery, pain medication, and physical therapy, and that the plaintiff could be mobile enough to get to the workplace with a wheelchair, the court noted that those factors could not be considered in deciding whether the plaintiff had a disability. Doing so may have been appropriate under pre-amendment Supreme Court precedent, namely Sutton v. United Airlines, 527 U.S. 471 (1999), although the court did not cite to that case. Again, Congress specifically abrogated that case along with the other cases that narrowed the definition of disability. The court of appeals noted that the EEOC regulations prohibited considering mitigating measures, and even more importantly, that to consider an accommodation which would allow the plaintiff to work before considering whether he was an individual with a disability turned the proper inquiry on its head in a way that would eviscerate the ADA.
The plaintiff had also raised a failure to accommodate claim at the district court level, but did not raise it on appeal, and so the court of appeals did not analyze that claim.
This case is a very important one for a number of reasons. It is the first court of appeals case to consider whether a person who suffers a temporary impairment can be considered disabled under the ADA. The decision also confirmed that the disability question is not going to be, in many cases, a big hurdle for a plaintiff, and that the EEOC regulations should be afforded deference. It also provides a context-specific test for determining whether a person is disabled that sticks to the statutory language of whether the impairment at issue substantially limits a major life activity. Substantiality is to be considered both as a question of duration, but also as a question of quantity and quality.
The case will obviously impact many situations in which worker injuries cause relatively serious and relatively long-lasting impairments, and may impact whether employers can continue to distinguish in accommodations between on-the-job and off-the-job injuries. It also may influence whether at least some limitations caused by pregnancy have to be accommodated. Thus, this is a decision with potentially far-reaching consequences.
h/t Jonathan Harkavy
Tuesday, January 21, 2014
The Supreme Court heard oral arguments to day in Harris v. Quinn. According to SCOTUSblog, the expected attack by conservatives against union mandatory dues occurred. The surprise is the Justice Scalia apparently exhibited less enthusiasm for reversing Abood than his conservative colleagues. In contrast, the liberal Justices apparently showed real concern that the Court would outlaw public unions ability to seek dues from all employees they represent.
To the extent that there's a silver lining (and I'm not sure there's one at this point), the argument seemed to focus on the uniqueness of public sector collective-bargaining. In particular, several Justices (with the apparent exception of Scalia) seemed receptive to the argument that public-sector unionism is more about affecting public policy than typical collective bargaining. I don't buy that argument and, even if I did, I'm not convinced that under the Court's precedent, it would mean that mandatory dues is prohibited by the First Amendment. But that appears to be where several Justices are headed. Whether there a 5 of them is the question. Even if there are, the tenor of this argument suggests that the ruling will not affect the private sector. For now at least. Which is not to say that eliminating mandatory dues in the public sector won't be a significant harm to the labor movement.
Hat Tip: Patrick Kavanagh
Monday, January 20, 2014
We've been following the talks between the UAW and VW's Chattanooga plant for a while now, especially the possibility that the parties will end up with a works council-style system (e.g., see here and here). As expected, groups such as the National Right to Work Lega Defense Foundation are already attacking the possible relationship--arguing, among other things, that they would violate Section 8(a)(2). Matt Finkin (Illinois) and Thomas Kochan (MIT) just published an op-ed in the LA Times, arguing that a works council arrangement would be legal in the U.S. An excerpt:
For years, labor law, labor economics and labor-management researchers like us have urged experimentation with works councils in the United States. Volkswagen and the United Auto Workers are proposing to do just that at Volkswagen's Tennessee plant. This could be a watershed in American labor relations, one that rejects the outmoded adversarial doctrines that have built up in U.S. labor law and practice. And it signals management and labor support for a new model of cooperation and partnership.
Unfortunately, the National Right to Work Legal Defense Foundation and others are opposing this effort by arguing that such cooperation would violate U.S. labor law's 1935 ban on sham or "company" dominated unions.
A comparison of German and American labor law makes it clear they are dead wrong. . . .
For what it's worth, I've been researching this and related issues for some time, and completely agree that there is no Section 8(a)(2) issue with a well-designed bargaining relationship. But before we find that out VW, the UAW, and the employees will have to finally make all this speculation come to fruition. So stay tuned.
Hat Tip: Wilma Liebman
Friday, January 17, 2014
- Steven Greenhouse (NY Times) has an interesting article today on business groups going after worker groups. A main thrust of the criticism has got a serious "pot calling the kettle black" side, as the business groups don't seem to like the fact that unions are giving to support to worker groups. A more serious argument is that these worker groups should be regulated like unions. In most cases, I don't think there's much to this argument on the substance (much of the activity is pure speech). A bigger question though is that I still believe that unions should be doing more to fight some of the legal restrictions on their activity. As the Supreme Court has lowered the "economic speech" bar, unions need to also take advantage. The business groups may, ironically, force the issue if the keep up these attacks.
- Also in the NY Times, earlier in the month, was an op-ed from writer Will Blythe (who wrote a fantastic book on the Carolina-Duke basketball rivalry) on his refusal to sign an anti-disparagement agreement in exchange for two weeks severance pay when he was laid off. As Blythe notes, his role as a writer makes such a clause particularly offensive, but it's nice to see someone bring this out in the open. The growth of these clauses, as well as non-compete agreements, shows the limits of the neoclassical economic model and its theory that "bad" employers will pay for their behavior because employees will avoid them. If employees can't say their employee was bad--or even leave to get another job--that economic model falls apart. Finally, as Michael Duff noted, these clauses raise possible issues under Costco and Flex Frac, although being part of a severance agreement probably means that they're lawful.
- Matt Bodie notes the 9th Circuit's recent decision in Hariharan v. Adobe. The court affirmed class certification for about 60,000 Silicon Valley employees, which allege that Apple, Google, Adobe, and other employers violated antitrust law by conspiring to supress pay by not recruiting each others' workers. A case worth monitoring.
Monday, January 13, 2014
The Supreme Court heard arguments in Noel Canning today. I don't have the transcript yet, but based on several reports, the NLRB recess appointments are looking like they will be struck down. That's not a big surprise. What's really in question is how the Court will strike them down. I still hold out hope that they will limit themselves to the pro forma recess issue, and SCOTUSBlog's summary gives some reasons to think that could happen. However, it also notes reasons to think that the Court might go further and adopt some or all of the D.C. Circuit's broad, textualist approach.
One thing I haven't heard being discussed was the possibility of declining jurisdiction under the political question doctrine. I've raised this as a possibility, but I haven't seen anything suggesting it's gained any traction, much less got any mention today. Let me know if you've heard otherwise.
Hat Tip: Patrick Kavanagh
Monday, January 6, 2014
Today, the NLRB announced that it will not seek Supreme Court cert. for its notice posting rule. Two circuit courts had struck down the rule, one of which was largely on extremely broad First Amendment grounds, so there was a chance that, even if not a full victory, the NLRB could have narrowed its loss. For whatever reason, the NLRB blinked. From the announcement:
The National Labor Relations Board (NLRB) has decided not to seek Supreme Court review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post a notice of employee rights in the workplace.
The NLRB remains committed to ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act. Therefore, the NLRB will continue its national outreach program to educate the American public about the statute.
The U.S. Court of Appeals for the District of Columbia Circuit stated: “[I]t is also without question that the Board is free to post the same message [that is on the poster at issue] on its website.” The workplace poster remains available on the NLRB website. It may be viewed, displayed and disseminated voluntarily. In addition, the NLRB has established a free NLRB mobile app for iPhone and Android users to provide the public with information about the National Labor Relations Act.
I'm not going to lie: I'm disappointed that the NLRB didn't bring this to the Supreme Court. I understand that they thought their chances of winning is slim. However, I do think there was value in challenging the D.C. Circuit's incredibly broad rule. Of course, that's easy for me to say . . . .
Thursday, January 2, 2014
Today, Fiat announced that it was buying Chrysler. Under the deal, which followed signficant negotiations, Fiat will pay $4.35 billion to the UAW retiree health care fund, which had owned part of Chrysler since it left bankruptcy under the bailout of the auto industry in 2009. This amount is far less than Daimler-Benz spent in 1988 ($36 billion) and Cerberus in 2007 ($7.4 billion).
No word on the extent, if any, that the new ownership will affect labor relations, so stay tuned.
Friday, December 13, 2013
Early yesterday morning, Chai Feldblum was re-confirmed to another 5-year term at the EEOC. Congratulations, and great news for the EEOC, which will remain fully staffed. Chai has been a great resource for the Commission, having been instrumental in negotiating the ADA and ADAAA, an expert on ENDA, and a voice for cooperation and public outreach with Commissioner Lipnic.
Tuesday, December 10, 2013
Today, the NLRB agreed to voluntarily dismiss its D.C. Circuit appeal of a district court's dimissal of its election rules. As former NLRB General Counsel, Ronald Meisburg, wrote about the dismissal, this is probably an indication that the NLRB is planning on re-doing the election rules.
The district court opinion relied on the objecting NLRB member's refusal to participate in the promulgation process which, according to the court, denied the NLRB a quorum (there were a total of three memebrs at the time). This issue, plus the Noel Canning dispute, has put many NLRB actions under a procedural cloud for a while. I completely agree with Meisburg that taking another look at the election rules and promulgating them with a Board that is free of doubt is the best path. Indeed, opponents of the new rule may find themselves with reforms they like even less, with fewer procedural objections.
Hat Tip: Patrick Kavanagh
Today, the Supreme Court dismissed the Mulhall case (see here, here, and here) as improvidently granted. There was a dissent by Justice Breyer (joined by Justices Kagan and Sotomayor). The dissent noted that the Court was concerned about the possibility that the case was moot (because the agreement in question expired) or that the plaintiff lacked standing (because he lived in a right-to-work state). The dissent would have preferred that the Court rule on these questions and, if either apply, vacate the Eleventh Circuit's decision to remove any precedential value.
The dissent also raised another possible procedural hurdle: whether Section 302 grants a private right of action. You can file this argument under "what's good for the goose, is good for the gander." The dissent noted that the Court long ago said such a right of action existed, but then noted that the Court's jursidprudence has since become much more restrictive against recognizing private rights of action.
For a case that ultimately had no decision, Mulhall has been extraordinarily interesting. Expect to see many of these questions raised again soon.
Monday, December 9, 2013
As we recently noted, Boeing employees rejected a proposal that was offered by Boeing, and seemingly supported by IAM union officials, to give job guarantees for current employees in exchange for significant cutbacks for newer and future employees. Today, the Washington Post's Wonkblog examines recent challenges to the current IAM officials and gives some more background to the Boeing offer.
Apparently, the Department of Labor is forcing IAM to re-run its leadership elections for failure to adequately notify members--the only re-run for union top officials in 2012. The disagreements between the challengers and incumbents reflect many other internal union discussions in this difficult environment, so this issues will likely be more familiar to readers of this blog than average readers of the Post. That said, the internal strife at IAM seems serious--serious enough to help prompt Boeing workers spurn the offer. There also appears to be open resentment against the union's spending and salaries of top officials. Again, not a new issue, but one that we might expect to surface more as unions struggle to keep members. This is where the democracy issue seems most relevant. Although, at times, LMRDA union requirements can appear harassing more than anything else, the need to maintain some level of union democracy is important for unions themselves. Obtaining buy-in from members and allowing for new officials, and the ideas they bring, are but a few of the benefits that democracy can bring to unions. It's not surprising that some unions--just like other organizations, as the article notes--have entrenched officials, but the fewer instances of this, the better the labor movement will be.