On January 5, 2015, the U.S. Chamber of Commerce, the Coalition for a Democratic Workplace (CDW), the National Association of Manufacturers, the National Retail Federation, and the Society for Human Resource Management jointly filed a federal lawsuit to strike down the National Labor Relations Board’s re-issued “ambush” Election Rule. (NLRB Modernizes Procedures) The Chamber and CDW successfully challenged the 2011 version of the Rule, arguing that the NLRB lacked a quorum at that time. The new law suit attacks the substance of the Rule. The groups contend, among other things, that the virtual elimination of the pre-election hearing violates the National Labor Relations Act and deprives employers of Constitutional due process. They also argue that the Rule eliminates employer speech, protected by the Act, and that the issuance of the Rule is “arbitrary and capricious,” in violation of the Administrative Procedure Act. The suit requests that the Court enjoin the NLRB from implementing the Rule. Currently, the Rule is scheduled to go into effect on April 14th.
The NLRB has adopted comprehensive changes to the procedures for representation elections under the NLRA. Some changes, such as the ability to file documents electronically, clearly bring Board election procedures into this century. Unfortunately, a majority of the changes only speed up the election process itself. The adopted changes complicate election proceedings while reducing the time for compliance. As the dissenting Board Members thoroughly discussed, these changes disproportionately burden employers while simultaneously failing to provide sufficient time for employees to get information necessary to make an informed decision, the keystone of the Act. For example, pre-election hearings are not permitted in most cases—litigation at the pre-election hearing is limited to “those issues necessary to determine whether it is appropriate to conduct an election.” Even if a hearing is permitted, it must be held eight days after hearing notice is served. The employer must submit a Statement of Position within eight days (or the day before the hearing). This statement will bind the employer in all subsequent litigation. So, don’t forget anything! Employers must also provide a list of prospective voters to the Board agent and the Union at the same time it provides its Statement of Position, before the NLRB’s regional director directs an election or approves an election agreement. Once the NLRB’s regional director approves an election agreement or directs an election, the employer must provide an eligible voter list within two days and this list must now include personal email addresses and phone numbers of employees. In this rush to the election, the employees will likely hear only one voice—that of the union organizer.
By Bill Wright
Title VII says a union may not refuse to refer a person for work on discriminatory grounds. In a recent case, the plaintiff alleged that, because of her sex, her union never referred her to a job driving for movie production companies. The trial court dismissed the case, noting the plaintiff was “hoist by her own petard” by alleging she knew of the discriminatory conduct more than 300 days before filing. The 7th Circuit rejected the trial court’s reasoning—the plaintiff had alleged failure to refer her to available jobs within 300 days. On appeal, the union also argued that it never made a referral; the employers simply chose drivers from available resumes. But, according to the plaintiff, the union representative told her he did refer drivers for jobs when there were openings. The union might be the one hoist by an admission. The parties will have to ask questions and have depositions before the courts can tell whether the union violated the law. It just goes to show that, the right allegation will cause protracted litigation even without proof. Stuart v. Local 727, IBT, No. 14-1710 (7th Cir. Nov. 14, 2014).
By Just John
An employer’s bid to quash three ridiculously overbroad NLRB subpoenas fell short even though the trial court repeatedly said it disapproved of the NLRB’s tactics. The SEIU filed unfair labor practice charges against a hospital, claiming the hospital interfered with unionizing. After the NLRB issued a complaint on the charges, it hit the employer with three subpoenas. NLRB v. UPMC Presbyterian Shadyside, Nos. 14mc00109, 14mc00110, 14mc00111 (W.D. Pa. filed August 22, 2014). The employer refused to honor the subpoenas and the NLRB then filed a federal lawsuit to enforce them. The trial court described the subpoenas as “overly broad and unfocused.” The trial court lamented that it had “never seen a document request…of such a massive nature” and even noted that it did “not see how these requests have any legitimate relationship or relevance to the underlying alleged unfair labor practices….” Most disturbing, the trial court noted that “the scope and nature of the requests, coupled with the NLRB’s efforts to obtain said documents for, and on behalf of the SEIU, arguably moves the NLRB from its investigatory function and enforcer of federal labor law, to serving as the litigation arm of the Union, and a co-participant in the ongoing organization efforts of the Union.” Wow, we couldn’t have said it better ourselves.
Despite the NLRB’s obvious pro-union shenanigans, the trial court stated that it had no choice but to enforce the subpoenas. The trial court ruled that, given legal precedents, it had no choice but to “rubber stamp” the subpoenas.
This topsy-turvy result defies logic and fairness. Faced with the NRLB’s gross abuse of its legal authority, the trial court could do (and did) nothing. Perhaps it is time for Congress to examine the NLRB’s subpoena authority in addition to the many other abuses of power the agency currently practices.
In a peculiar spin on the old line “would Macy’s tell Gimbel’s,” the NLRB unanimously rejected a micro bargaining unit at retailer Bergdorf Goodman only a week after it approved a somewhat similar micro bargaining unit at Macy’s, also a retail establishment. In the Bergdorf case, the union sought to organize a women’s shoes sales team that consisted of workers in the Salon shoes department on one floor, and the Contemporary shoes department on a separate floor of the store. While all of the workers shared similar working conditions and terms, the Board nonetheless found that the two groups did not share a sufficiently strong “community of interest” to justify a combined micro bargaining unit. The rationale for the decision is a true head-scratcher, as the Board explained itself in ridiculously vague and conclusory terms, noting that the proposed combined unit did not fall neatly within any “administrative or operational lines” drawn by Bergdorf. In light of the Macy’s decision last week (read our blog discussion here), retailers can only guess what the Board will do with future micro bargaining units in light of the seeming contradictions between the Macy’s decision and this decision.
Yesterday, the Supreme Court took a swipe at public sector compulsory unionism. In doing so, the Court took a slice out of decades of Supreme Court jurisprudence and suggested a future re-thinking of agency fees in the public sector. In Harris v. Quinn, No. 11-681 (June 30, 2014), Illinois tried to facilitate home health care for those most in need and least able to afford it. The State created minimal guidelines for practitioners to qualify for the program, but otherwise the practitioners were hired, evaluated, and fired by their individual patients. Later, Illinois passed a law deeming the practitioners to be State employees for one purpose only: to have a single bargaining representative for matters related to the State. The practitioners sued, claiming that this compulsory unionism violated their Constitutional rights to association and free speech because it forced them to pay dues or agency fees to fund a union whose bargaining and political activities contradict their own beliefs and tenets. The Supreme Court struck down the Illinois statute, concluding that Illinois was not the practitioners’ true employer, and therefor could not force them to be members or pay agency fees to the union.
The issue is remarkably narrow and not likely to recur. However, most of the Supremes’ opinion addresses the larger issue of whether a public employer ever can require its employees to pay their “fair share” of union costs (often the equivalent of union dues) associated with collective bargaining and representation. According to the majority decision, the Supreme Court got it wrong forty years ago in Abood v. Detroit Board of Education, 431 U. S. 209 (1977) where it embraced agency fees for public sector unions. While the Court did not overturn Abood (because it did not need to do so in this case), the Court’s analysis signals the eventual demise of Abood and an end to compulsory agency fees in the public sector. This otherwise limited decision will produce a flurry of litigation as anti-union forces fashion the perfect case to finally undo Abood.
By Bill Wright
In 1945, an employer and unions created a pension plan that provided equal pensions to all workers retiring at age 65 but capped the employer’s contributions. The result was that workers who joined the plan later in life, e.g. at age 40, had to pay a greater percentage of their salary into the plan than those who joined early, e.g. at age 20. Over time, the employer and unions added other service-based retirement options, but never equalized the payments for older and younger beginning workers. The EEOC brought suit, claiming that the pension plan facially violated the ADEA. The defendants argued that the ADEA permitted employers to give subsidies for early retirement benefits, i.e. giving greater pension subsidies to workers who started young and retired early. The court disagreed and found a violation of the ADEA, even though both groups of workers could retire after 20 years of service.
The result is counterintuitive. The employer (and unions) will now have to (a) allow older workers to receive lower pensions at age 65, (b) subsidize older workers’ retirement at age 65, or (c) restrict all workers’ retirement options. Alternatively, workers might have to state their retirement age when they start work so the plan may determine their contribution rate. Um, thanks, EEOC. EEOC v. Baltimore County, No. 13-1106 (4th Cir. Mar. 31, 2014).
A recent decision on a Workers Compensation retaliation claim shows a hidden value for employer-union grievance processes. In Macon v. UPS, No. 12-3080 (10th Cir. February 19, 2014), the plaintiff claimed that when he returned from a Workers’ Comp. leave, his supervisors began to scrutinize his work, wrote him up repeatedly, and repeatedly attempted to fire him. The employer’s grievance process thwarted at least two termination attempts. Employees could protest any discipline and a local panel of employer and union representatives would review the decision. Appeals from the local panel went to a regional panel of employer and union representatives. Twice, after the plaintiff’s Workers’ Comp. leave, panels reduced termination decisions to suspensions. The third time, however, the supervisor recommended termination for an infraction of policy having to do with recording the number of stops the plaintiff had made on a delivery route. A grievance panel had previously warned the employee directly about the correct way to record this information, and when he made the same error again, a panel approved his termination. Although the plaintiff claimed the supervisor had a discriminatory animus against him, and acted on that animus, he had no evidence that the members of the panel held the Workers’ comp. leave against him or that the panel merely rubber stamped the supervisor’s decision. The court determined the grievance panel actually made the termination decision and threw the claim out on summary judgment.
Passing the buck can be an effective defense to discrimination and retaliation suits, when the decision-maker truly is independent.
On February 5, 2014, the National Labor Relations Board (“NLRB”), acting this time with a full quorum, reissued its highly controversial 2011 changes to representation election rules. The proposed changes are the same as those the NLRB presented in 2011. The rule changes would:
- radically speed the pace of representation elections,
- eliminate almost all pre-election challenges to voter eligibility, and
- effectively eliminate the ability of employers to communicate with employees prior to voting.
The proposed rules will be subject to a 60 day comment period, followed by a public hearing in April. The NLRB majority did not revisit the now stale, purported factual findings that led to the original proposed rule changes. These factual findings were extensively questioned in the prior comment period. Much of the purported employer “misconduct” cited was based not on the NLRB’s own case handling statistics, but on the reports of union organizers.
The NLRB claims that the new rules will stream-line the election process. On the contrary, these radical and unnecessary alterations to a process that has stood for over 75 years will likely result in extensive and costly litigation.