Thursday, November 15, 2018

Labor Law in the Contemporary Workplace - new edition

Labor1Congratulations to Ken Dau-Schmidt, Marty Malin, Roberto Corrada Chris Cameron, and Catherine Fisk on the imminent publication of their casebook Labor Law in the Contemporary Workplace (3d ed. West, 2019).  Here are the publisher's notes:

Labor Law in the Contemporary Workplace prepares students for the practice of labor law by introducing them to the principles of American labor law and many of the issues that labor attorneys face. The book is organized around contemporary problems as a means of teaching the core principles of labor law. Although the primary focus of the book is the National Labor Relations Act, considerable attention is given to the Railway Labor Act and public-sector labor laws because of their growing importance in contemporary practice. The third edition takes account of changes in the law since the first edition and second editions were published and in particular new interpretations of the National Labor Relations Act by the National Labor Relations Board and recent state restrictions on public sector collective bargaining.

rb

November 15, 2018 in Book Club, Labor Law | Permalink | Comments (0)

Monday, November 12, 2018

Collective Bargaining After Janus Conference

The National Center for the Study of Collective Bargaining in Higher Education and the Professions announces its 46th annual conference, with Paul Krugman giving the keynote speech. See this link for conference information. As sign of how many presentations and speakers there are--there are too many for me to list here. Check out the link and see for yourself.  Deadline for early bird registration is Dec. 28.

-Jeff Hirsch

November 12, 2018 in Conferences & Colloquia, Labor Law | Permalink | Comments (0)

Wednesday, November 7, 2018

Chemerinsky & Fisk: Janus is Not Retroactive

Chem FiskErwin Chemerinsky & Catherine Fisk (both Berkeley) have posted on SSRN their essay (132 Harv. L. Rev. Forum 42, (2018)) Exaggerating the Effects of Janus: A Reply to Professors Baude and Volokh. The Baude/Volokh article is an apologia to the multiple cases filed post-Janus, ostensibly by public-sector former union dues-payers but in reality financed by employer-friendly organizations trying to break public-sector unions, to apply Janus retroactively. Here's an excerpt from the abstract of the Chemerinsky/Fisk article:

This essay responds to an article by William Baude and Eugene Volokh, who argue that unions are likely retroactively liable for the agency fees that union-represented workers previously paid. We explain that public employee unions, as private membership organizations, are not state actors liable under 42 U.S.C. § 1983.We then show that even if unions were found to be acting under color of law for purposes of section 1983, they would be entitled to qualified immunity as a defense because negotiating for fair share fees did not violate the constitution at the time unions negotiated fair share fee agreements and received fees. At the very least, unions are entitled to the separate defense of good faith immunity available to private actors who are sued under section 1983 for conduct undertaken in good faith in collaboration with government actors. Finally, we show that unions are not liable on state law theories. Qualified immunity is a defense only to claims for damages under federal law, and good faith immunity has likewise been applied only to claims for damages. For that reason, plaintiffs in the post-Janus fee recovery litigation have alleged state law claims and styled them as equitable. Some states (e.g., California) have eliminated such liability through legislation. Even in states that have not enacted such laws, however, we show that well-settled equitable principles foreclose liability. Finally, this essay responds to Baude and Volokh's argument that Janus endangers other mandatory fees imposed by the government, such as bar dues and public university student activity fees.

rb

November 7, 2018 in Labor Law | Permalink | Comments (1)

Wednesday, October 31, 2018

Australian State introduces Bill of [Labor, Education] Rights

QueenslandThanks to Paul Harpur (U. Queensland - Beirne Law) for sending word that today, the Australian State of Queensland introduced a new Human Rights Bill 2018 (Qld) before Parliament. As Queensland has only one House of Parliament, where the government currently has a majority, it is almost certain this bill will soon become law.

The Human Rights Bill 2018 (Qld) declares that Queenslanders have 21 Civil and political rights and two Economic, social, and cultural rights. Many of these rights are relevant to university students and workers/labour in Queensland. On the labor side, thee rights include:

  • Freedom of thought, conscience, religion and belief,
  • Freedom from forced work,
  • Freedom of expression, and
  • Peaceful assembly and freedom of association

On the education side, the right is extended, beyond K-12, to a right to “have access, based on the person’s abilities, to further vocational education and training that is equally accessible to all.” Ability equality is a concept that disability rights scholars across the globe have been arguing for. In Queensland, for example, Paul testified in 2018 to a Queensland Parliamentary Committee, arguing that the United Nations Convention on the Rights of Persons with Disabilities is the declaration of ability equality.

rb

October 31, 2018 in International & Comparative L.E.L., Labor and Employment News, Labor Law | Permalink | Comments (0)

Labor & Employment Roundup: Joint-Employers, Union Finances, and Duty of Fair Representation

Some recent labor and employment news:

  • Wages look like they're finally rising in a significant way. A DOL report showed an almost 3% increase in wages for this time last year, which outpaces inflation and is the highest increase in a decade.
  • A couple of joint-employer items. First, the NLRB has extended the time to comment on a proposed new rule to Dec. 13. Also, the tussle between Congressional Democrats and the Board over the proposed change continues. As this Bloomberg Law (subscription required) article details, the Democrats want evidence supporting the claim that the current, broader joint-employer test is causing the problems that critics claim. This touches on a broader area--the NLRB is really bad at using actual evidence to support its policy views. Some of this is the legacy of the ban on economic analysis (which is so stupid--why in the name of all that is rational can't we have a bipartisan agreement that analysis is useful for labor law, like, say, the rest of the government?). But some of this, frankly, is just lazy. There's nothing stopping the Board from citing others' studies, which it does far less that it could. And this is an equal-opportunity offense. Although some members have been better on this, Board from both parties tend to be woefully inadequate on this score.
  • As is the case when the White House changes parties, the DOL has been adjusting how it regulates union finance requirements. Unsurprisingly, they're ratcheting up the requirements by increasing the number of entities covered and expanding what covered entities need to provide. This is shades of the Bush II administration, where the changes were challenged in court. Expect the same here.
  • The General Counsel has announced that it's changing its approach to allegations of union negligence. In contrast to the long-standing deferential approach the Board has taken, the GC says he will now prosecute unions for negligence under Section 8(b)(1)(A) (for failure of the duty of fair representation) when it does things like lose a complaint or fails to return a call.

-Jeff Hirsch

October 31, 2018 in Labor and Employment News, Labor Law, Wage & Hour | Permalink | Comments (0)

Tuesday, October 2, 2018

The NLRB Joint Employer Test: Much Ado About Nothing?

Robert Iofalla at Bloomberg Law has an interesting article out today looking at the number of times the NLRB's new joint-employer test in Browning-Ferris has been applied. As readers know, there has been a lot of handwringing over this test. But according to the article, it's been applied in only 14 out of almost 1,100 ALJ and Regional Director cases since it was issued in 2015. But it's unclear what that figure means.

As the article points out, there are two ways to look at this. On one hand, it may mean that Browning-Ferris isn't that big of a deal and that employers easily adjusted to the new standard or, as was likely the case for the majority of businesses, the changed standard didn't affect them in the first place. On the other hand, the number of cases invoking Browning-Ferris doesn't capture its full impact, as businesses may have made significant changes to stay in compliance. I suspect there's truth to both views. For instance, the 14 cases almost certainly doesn't capture the new rule's full impact; it's impossible to believe that far more businesses didn't at least have Browning-Ferris as a consideration when making relevant decisions since 2015. However, this also reflects that the histrionics that followed Browning-Ferris--predicting the demise of franchising and the like--were grossly exaggerated. As the Board explained in Browning-Ferris, it was returning to an earlier version of the joint-employer rule and the changes it made from the immediately prior standard were not so great that it would fundamentally change business models like franchising.

Time may tell whether we'll see further evidence of Browning-Ferris' impact. Or not, if the tea leaves are correct that the NLRB will reverse it soon.

-Jeff Hirsch

 
 

October 2, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Amazon and the Fight for $15 Campaign

Two Fight for $15 stories today. The first is that Amazon has agreed to pay all of its U.S. workers at least $15 an hour. Notably, this includes part-time and temp workers. Effective November 1, this change is expected to apply to 350,000 workers (although I can't find a number on the number of those workers who currently make less than $15 an hour). Amazon is also raising pay in Britain. This follows other increases or promised increase by major companies like Target, but given Amazon's size and profile, it's unsurprising that this is making a bigger splash.

In related news, the Fight for $15 movement has organized a series of national walkouts, rallies, and protests from October 2-4. The aim of these actions are for higher pay and to help candidates that support labor rights. Its still early, but thus far some of the more notable actions seem to be focused in the Midwest, although there are certainly others as well.

-Jeff Hirsch

October 2, 2018 in Labor and Employment News, Labor Law, Wage & Hour | Permalink | Comments (0)

Thursday, September 27, 2018

The NLRB's Regulation of Email

As we noted earlier, the NLRB has signaled another flip in its approach to regulating employees' use of employer email systems for NLRA-protected communications. This pending case, Rio All-Suites Hotel & Casino, has also gotten entangled with the now-frequent battles over NLRB Member recusals. In Rio, several senators wrote to Chairman Ring expressing concern about the participation of Member Emanuel, whose former firm--Littler Mendelson--continues to represent the employer in Purple CommunicationsPurple is the case that the Board is threatening to reverse in Rio; indeed, Purple is still being litigated. Well, sort of. The Ninth Circuit just granted a motion to pause the appeal until the NLRB issues its Rio decision. Thus, the concern over recusal. Chairman Ring recently responded to the senators' letter and, without staking out a position, stressed both that the NLRB would follow its usual procedures on recusals and would keep an open mind on the issues in Rio.

With that open mind in mind, I have submitted an amicus brief in the case. As I stress in the brief, I think the legal precedents governing email usage are crystal clear, but I'm not holding my breath about the what the Board does.

-Jeff Hirsch

September 27, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Friday, September 21, 2018

Big Mac and Steel Strikes, with a Side of #MeToo, Taxes, & Tariffs

Currently, two big strike events are in the news. One has already occurred and the other may be on the horizon.

First was a nationwide strike on Tuesday by some McDonald's employees. This strike was unusual for numerous reasons. One is that we don't usually see low-wage retail workers striking, although the Fast Food 15, OUR Walmart, and other similar efforts have begun to change that norm in recent years. As a result, what stands out most to me was the object of the strike. It wasn't the traditional bread & butter workplace issues like pay, benefits, and hours. Instead, the workers were striking to protest sexual harassment and to demand that McDonald's do more to address the issue.  What this strike may be telling us is that there are new norms developing.  Norms in which retail workers are more willing to strike and willing to do so for issues that aren't necessarily traditional, but are still vitally important, especially in the current #MeToo environment.

The second, potential, strike is far more traditional. It involves the steel industry, where steelworkers are threatening to strike United States Steel and ArcelorMittal if contract negotiations don't result in raises and other benefits that reflect those company's improving financial footing. An interesting twist is that part of the steelworkers' argument is that after taking many years of wage freezes, they want to share in the improving fortunes brought on in part by the new tax cuts and steel tariffs. An entirely predictable situation, but one that I expect will get settled because those companies won't want production halted.

-Jeff Hirsch

 

September 21, 2018 in Employment Discrimination, Labor and Employment News, Labor Law | Permalink | Comments (0)

Thursday, September 13, 2018

New NLRB Joint-Employer Rule

In case all of the prior signals weren't enough, the NLRB has now formally announced a "new" proposed joint-employer standard. Although it won't be released until tomorrow, the Board's announcement makes clear that it intends to return to the pre-Browning-Ferris standard. The Board describes this new/old standard (which the Browning-Ferris Board argued was itself a change from an earlier standard) as follows:

Under the proposed rule, an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.

This is a substantial change from the Browning-Ferris standard, which would allow a joint employment finding if employers share governance of essential terms and conditions of employment. Among the factors used for this determination are whether an employer has exercised direct control over terms and conditions of employment indirectly or whether it has reserved the authority to exercise control.

Obviously, the NLRB has to go through the notice and comment period, but the chance of the current Board majority (Member McFerran is dissenting) changing its mind about going back to something like the pre-Browning Ferris standard is about the same chance as my computer spontaneously levitating.

On one level this is just part of the normal ebb and flow that we see with new administrations. What I find more interesting is that the current Board seems to be using rulemaking as a means to make its changes harder to reverse. There's nothing inherently wrong with this--that's what most agencies do, after all--but it represents a significant shift from the Board's usual practice of using decision-making for substantive rules. I'm actually ambivalent about this as a general matter, but I'll be curious to see whether concerns about courts reversing Board rules more frequently than case decisions plays out. 

-Jeff Hirsch

 

September 13, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Tuesday, September 11, 2018

NLRB To Change Construction-Industry Rule?

The NLRB announced today that it is inviting briefs in Loshaw Thermal Technology and Casale Industries.  Both cases involve a lesser-know rule under the NLRA (at least if you're not involved with construction union very often). Section 8(f), among other things, allows an employer and construction union to establish a bargaining relationship without a showing that the union has majority support (this reflects the reality that construction jobs are by their nature usually temporary).  This provision essentially establishes a presumption of majority support, albeit one that can be challenged by a valid decertification petition.

In its 2001 Staunton Fuel decision, the Board concluded that parties could transform their bargaining relationship from Section 8(f) to Section 9(a)--the more typical mean of recognition, which usually involves a showing of majority support and is harder to challenge--through a collective-bargaining agreement that clearly states that the union said that it could show that it had majority support. It is that rule that the Board is currently questioning in Loshaw Thermal.

In Casale, the Board is also questioning the time period during which a construction union's Staunton 9(a) recognition can be challenged. Casale stated that an employer only had six months after the collective-bargaining agreement to argue that the union actually lacks majority support.  

Unlike the recent Ceasars invitation dealing with use of email, there were no dissents to this invitation, which you can read in full here.

-Jeff Hirsch

September 11, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Wednesday, September 5, 2018

Yelnosky on "Labor Law Illiteracy"

Michael Yelnosky has just published on SSRN an new essay essay, "Labor Law Illiteracy.”  The abstract:

Labor law, both as an academic discipline and a subject of public consciousness, is in decline. The Supreme Court’s recent decisions in Epic Systems v. Lewis and Janus v. AFSCME reflect a notable consequence of this decline – what I am calling labor law illiteracy. The majority in Epic Systems seems to misunderstand one of the basic principles of the National Labor Relations Act, and the majority in Janus based its decision, in part, on a simplistic and one-sided view of the justifications for public sector labor law and collective bargaining.

I'm sure many readers will be nodding their heads along with this one. So check it out.

-Jeff Hirsch

September 5, 2018 in Labor Law, Scholarship | Permalink | Comments (0)

Wednesday, August 15, 2018

French Labor Reform

The NY Times has a story on Muriel Pénicaud, the French labor minister who has been leading the charge of reforming France's labor regulations. Macron, the French President, has been trying to get reforms through for a while but has been largely stymied by protests (you've got to hand it to the French, their capacity to protest may exceed even their cooking talent). As a result, Pénicaud has been embarking on a long series of negotiations with unions and businesses. Stay tuned for what the final results may be.

Also--shameless plug warning--if you want to compare France's legal and social welfare protections for dismissed workers, check out this article that I co-authored with Sam Estreicher, Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism, 92 North Carolina Law Review 343 (2014). We compared not only the laws as written, but also how they operate (e.g., average win rates, average/maximum/minimum awards) for twelve countries, including the U.S.

-Jeff Hirsch

August 15, 2018 in International & Comparative L.E.L., Labor and Employment News, Labor Law, Workplace Safety | Permalink | Comments (0)

Tuesday, August 7, 2018

Proposition A Wins in Missouri, Striking Down Right-To-Work Legislation

The AP has just called the Prop A vote in Missouri, with votes currently in favor 63%-37%. This ballot measure strikes down the legislature's attempt to make Missouri a right-to-work state. Especially so soon after Janus, this is a good night for organized labor.

-Jeff Hirsch

August 7, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Wednesday, August 1, 2018

NLRB Considering Overturning Purple Communications

It's appearing that e-mail is becoming yet another issue on which the NLRB's views flip-flop depending on the party in charge of the White House. Today, the Board announced that it was seeking input on whether to reverse Purple Communications, itself a reversal of the earlier Register-Guard, decision. I've written about the issue of employees' use of employer e-mail quite a bit and won't rehash it all here. However, I will note that the Court's recent interest in the First Amendment (see: Janus among other cases) adds an additional spin. As I recently noted, Member Johnson's dissent in Purple Communications made a First Amendment claim; I thought it very weak, but I wouldn't be surprised to see it resurface in a new opinion by the Board. That, and the return of Register-Guard's "I slept through my 1L Property class in law school" treatment of personal property law. Apparently, it's time to update my amicus brief from the Purple Communications litigation.

Stay tuned.

-Jeff Hirsch

August 1, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Thursday, July 19, 2018

Janus-Based Challenge to Workplace E-Mail

That didn't take long. A week after Janus came down, the Purple Communications firm is trying to use the decision (as well as Becerra) to overturn the NLRB's rule in Purple Communications that permits employees in some instances to use employer e-mail for NLRA-related communications. This argument reflects part of Member Johnson's dissent in Purple Communications.

As I've written previously, I think the argument that it violates the First Amendment to allow employees to communicate about labor matters through employer email is ridiculous. The best rejoinder to this argument was the majority's analogy in Purple Communications that no one would think that a message sent via gmail represents the views of Google. And I see nothing in Janus or Becerra that suggests otherwise. The closest related claim to pass the smell test is the idea that requiring an employer to allow speech hostile to the employer on its own e-mail system is improper. I say it's close to passing the smell test because one can see how an employer would see that as unfair. But that doesn't mean there's any legal basis for the argument. The Court has required employers to let employees use their property for hostile speech for decades (think Republic Aviation) without any constitutional or statutory issues. That said, I guess we can't totally count this argument out given how the Court has been treating labor issues lately. 

Stay tuned.

-Jeff Hirsch

Hat Tip: Charlotte Garden

July 19, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Wednesday, June 27, 2018

Court Rules Against Unions in Janus

The Supreme Court has just released its decision in Janus v. AFSCME. I’m not typically the best predictor of what the Court will do, but even I had this one called from the moment Justice Gorsuch was confirmed. The Court, in a 5-4 decision by Justice Alito, overruled its own Abood decision to hold that public-sector union fees are unconstitutional. I won’t repeat how we got to this point (although you can start at my earlier post on the Janus oral argument, which has links on the aborted Friedrichs case, as well as our coverage of 2014’s Harris v. Quinn, in which Alito made clear where he wanted to go on this issue), but the upshot is that public-sector unions nationwide must now operate on an opt-in basis for all union contributions—even contributions that go to core collective-representation services. In other words, the free rider issue that exists for the private sector in right-to-work states now exists for all public-sector workplaces.

The basis for the decision is that dissenting employees’ have a 1stAmendment right not to pay any funds to the union representing them—even for collective bargaining and other work that goes to the benefit of all unit employees. This follows the dicta in Harris, but is a clear departure from the Court’s public-sector employment jurisprudence, which does not look favorably on individual employees' 1st Amendment claims. In particular, if this case didn’t involve unions, you would expect the Court to hold that concerns about dues paid to a third party are not matters of public concern. This result, to my mind, is the culmination of several related factors:  in addition to the strong pro-business bent of this Court, we’ve seen public-sector unions becoming more powerful than their private-sector counterparts, while also becoming strongly aligned with one political party. This has occurred during a period of time in which political antagonism is on the rise and we’ve more jurists appear willing to join that battle. As a result, unions as a whole, but public-sector ones in particular, have been targeted both politically and legally. And they just took a massive loss at the Court today.

Janus, of course, is not the end (although some unions may feel like it right now). Here are some questions I have after the decision—please add more (or responses) in the comments:

  • Will courts try to apply Janus to the private sector? There has been some loose language by the Court in the past that raises the possibility that court enforcement of union fee agreements is enough for state action, particularly in more highly regulated areas. The Court since then has been moving towards a more narrow interpretation of state action, but as Janus shows, that doesn't mean they won't make an exception when unions are involved. Indeed, in Janus, the Court stated that the line between chargeable and uncharitable expenses is "unworkable" (it's certainly difficult at times, but this seems a stretch). On the other hand, in its defense of overruling Abood, the Court in Janus stressed the difference between public- and private-sector collective bargaining and footnote 24 the Court described this state action argument as "more questionable" now then when Abood was decided. This could be considered a minor win for unions. See Joe Slater’s helpful article on this topic in which he argues persuasively that this holding should not apply to the private sector.
  • Is this the beginning of the end for exclusivity? Up to now, American labor law has been built on the notion that unions act as the exclusive representative of all employees in a unit. I predict (see warning above) that Janus will usher in more challenges to exclusivity. This may include unions being more willing to explore members-only representation, as well as the NLRB at some point addressing whether the NLRA requires employers to bargain with minority unions. For instance, a bill has already been introduced in NY that would allow unions to decline to represent non-member employees for grievances and other matters, while also allowing them to provide insurance and other benefits only to members; other states (California and NJ) have recently enacted and/or are working on other pro-union measures. One limit to this, however, is that in Janus, the Court seemed to double-down on the notion that unions and public-sector employers cannot agreed to contracts that treat nonmember employees worse. That doesn't preclude members-only unionism, but it does serve as a reminder that there would be limitations to such representation.
  • Related to the exclusivity issue--is this also the end of fair representation? Even before the Janus decision was announced, unions filed suit in state courts challenging the idea that they have a duty to fairly represent all unit employees. Now that Court has held that the Constitution precludes dissenting employees from paying for union representation, unions will argue in turn that it is unconstitutional to force them to expend time and resources representing employees who pay nothing. Janus gives some mixed signals. In one direction, the Court stated that unions' "duty of fair representation is a necessary concomitant of the authority that a union seeks when it chooses to be the exclusive representative." Thus, unions may have to seek to be members-only to push this argument. In the other direction, the Court seems to approve of arrangements in which union charge nonmembers for using grievance or arbitration procedures. 
  • While exclusivity and fair representation are weakened, will Janus usher in a strengthening of public-sector employees’ 1st Amendment rights? The language in Janus suggests so, as it now states that public-sector working conditions are matters of public interest that warrant more 1st Amendment protections. Despite that, however, the answer I think is “no.” Although it’s not defensible, I believe the Court will limit its broad 1st Amendment interpretation to cases brought against unions. Individual employees, I predict, will continue to face steep challenges raises these claims. Indeed, in Janus, the Court made a point of stressing that union speech is a public concern and it distinguished Pickering by stressing the difference between a union pushing for a wage increase and an individual employee--all of which seems to be a to distinguish individual employees' free speech claims. In addition, I doubt the Court will be as concerned with the 1stAmendment when unions challenge Section 8(b) limitations on their right to protest, picket, and boycott. See Charlotte Garden’s article on this.
  • How badly will this hurt unions? We saw fairly steep declines in union membership following major changes in states like Wisconsin. Will Janus and its new opt-in requirement extend that affect nationwide? I suspect that, on average, public-sector unions will see a big hit, but that the effect will not be consistent everywhere. This is especially true given that some states have already made moves to add protections for public-sector collective bargaining in anticipation of Janus.
  • On a minor note, while discussing the difficulty in challenging what's chargeable and what's not under Abood, the Court in Janus stressed the "substantial" costs in bringing an arbitration case to make such a challenge. It wasn't central to either case, but that's one of the exact arguments in Epic Systems (and the earlier Italian Colors) that the Court didn't seem concerned about.
  • On a non-labor related note, the number of precedents overruled by the Court in the last couple of weeks is remarkable--and that's just the ones overruled explicitly. For whatever reasons, the Court this term has seemed more willing to break from its past to achieve the result it wants, and it will be interesting to see if that trend continues next term.

-Jeff Hirsch

June 27, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (1)

Friday, June 1, 2018

Labor & Employment Law Roundup: Boeing, Federal Union Lawsuit, & Casino Strike

Some recent labor and employment law issues in the news:

  • Well, it wasn't the big unit, but some employees at Boeing's South Carolina plant have voted to unionize. On Thursday, 178 technicians and inspectors voted (104-65) to be represented by the International Association of Machinists and Aerospace Workers union.
  • The largest federal employees union, American Federation of Government Employees, is suing to stop new rules put in place by recent executive orders. The central target of the dispute is a new 25% cap on "official time" that union officials can spend on union business; the other orders encourage more terminations of federal employees and restrict agencies' ability to negotiate collective-bargaining agreements. The official time challenge is based on the Civil Service Reform Act provision that permits official time and the First Amendment. This latter claim may be difficult given the Davenport decision, although the union is making more of a discrimination argument based on the executive orders application only to work done on other employees' behalf rather than work that a union official does on his or her won behalf.
  • Casino strike averted? Just hours ago, the Culinary Workers union reached a deal with Caesar's to avoid what was looking to be a massive strike in Las Vegas. Caesar's only employs about a quarter of the 50,000 workers who could potential strike, so nothings certain yet. But it does look like the strike threat is paying off for the union.

-Jeff Hirsch

June 1, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Wednesday, May 23, 2018

New NFL Policy on National Anthem Protests

NFLThe NFL has just adopted a new policy on national anthem protests, which raises some potential labor law issues. As I understand the new policy, it implements three new features. First, it allows each team to establish its own policy on national anthem protests. The second feature, however, limits the first as it gives the NFL the power to fine any team if one of its players protests during the national anthem. The third feature also limits teams' ability to establish their own policy by eliminating the previous league-wide requirement that players must stay on the field during the anthem.

So what does this all mean? It appears that players who do not want to stand for the national anthem have at least two choices: stay in the locker room or take a knee during the anthem (or other types of protest). What happens to a player who takes the latter option depends on his team. At a minimum, the NFL will fine the team. But whether the individual player is disciplined depends on whether the team has established a policy barring such protests.

Labor law aficionados will see the potential NLRA issues here. The NFL owners established this new policy without discussing it with the NFLPA (players union). This raises some potential labor law problems. First, the new policy could violate the existing collective-bargaining agreement; indeed, the union said it was reviewing whether such a conflict exists. Second, by establishing a new policy without discussing it with the union, the NFL may have violated Section 8(a)(5) of the NLRA, which prohibits an employer from unilaterally implementing changes in work conditions without first bargaining with the union. The NFL is likely to argue that this duty to bargain isn't implicated because players have the option to avoid any penalties (i.e., adverse work actions) by staying in the locker room. That's a plausible argument, but it's not obviously a winning one because the union could respond that there has been a change in the terms of work, namely that players were previously required to stand on the sidelines during the anthem and could take a knee without penalty, while under the new policy that's no longer an option.

Stay tuned . . . . 

-Jeff Hirsch

 

 

 

May 23, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Monday, May 21, 2018

Supreme Court Holds That NLRA Does Not Prohibit Class Action Arbitration Waivers

Supreme CourtThe Supreme Court today issued its decision in Epic Systems, ruling for employers who, as part of mandatory arbitration clauses, require their employees to waive their right to class actions. This should come as a surprise to no one, as the case pitted the Court's hatred of class actions against the NLRA. 

The 5-member majority decision followed a typical pattern in many respects, including a continuation of its ever-broadening reading of the Federal Arbitration Act's protection of arbitration agreements and a rejection of an argument to grant the NLRB Chevron deference. What's more surprising though was the majority's reading of the NLRA's Section 7. Although it was not required to do so, the Court essentially overruled long-standing NLRB precedent holding that Section 7 protected employees who join together in collective legal actions to advance their workplace conditions. The Court defended this conclusion by, among other things, saying that "Section 7 focuses on the right to organize unions and bargain collectively" and holding that Section 7's protection for "other concerted activities," "like the terms that precede it, serve to protect things employees 'just do' for themselves in the course of exercising their right to free association in the workplace, rather than 'the highly regulated, courtroom-bound ‘activities’ of class and joint litigation.'” I've taught labor law for many years and have never seen Section 7 described in this narrow of a fashion. Indeed, the Court oddly cites the famous Washington Aluminum case for the proposition that "§7 cases have generally involved efforts related to organizing and collective bargaining in the workplace, not the treatment of class or collective action procedures in court or arbitration." One may debate whether Section 7 was originally thought to encompass class actions, but describing Washington Aluminum as an "organizing and collective bargaining" case is nuts--that's the classic decision involving non-union collective action. It involved a walkout by non-union workers who were sick of severely cold conditions in their plant; there was no union on the scene, no attempt to organize a union, and no collective bargaining.

Justice Ginsburg's dissent does a thorough job of showing why Section 7 is much broader than the majority makes it out to be. Using history, the NLRA's text, and NLRB precedent she also emphasized that access to the legal enforcement was a key aspect of the new rights embodied in the NLRA. She finishes with this:

If these untoward consequences stemmed from legislative choices, I would be obliged to accede to them. But the edict that employees with wage and hours claims may seek relief only one-by-one does not come from Congress. It is the result of take-it-or-leave-it labor contracts harking back to the type called “yellow dog,” and of the readiness of this Court to enforce those unbargained-for agreements. The FAA demands no such suppression of the right of workers to take concerted action for their “mutual aid or protection.” 

Given that this case will likely be followed shortly by a loss for public-sector unions in the Janus case, this term looks to go down as one that brought a major constriction of labor rights.

-Jeff Hirsch

May 21, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (1)