Employer May Eliminate Light Duty Job 2015-12-04T13:25:03-07:00

Posted on December 4, 2015

In Dunderdale v. United Airlines, the employee suffered from a back injury that prevented him from performing any heavy lifting. The employer assigned him to a light duty position – sitting at a computer scanning bags as they went by. Several years later, in response to employees’ requests, the employer included the position in the seniority bidding system under the applicable collective bargaining agreement. The disabled employee lost the light duty position through bidding based on seniority. Is that an ADA violation?

The court in this case held that an employer is not required to maintain positions it used in the past to provide reasonable accommodations. The employer may eliminate the job, for legitimate business reasons. Here, the employer legitimately included the position in its seniority bidding system, a system it had consistently and reliably applied under the CBA. The employer’s past practice of reserving the position for injured workers did not require them to continue doing so in perpetuity.

Kick Back(s) & Relax No More 2015-05-12T12:29:24-06:00

Posted on May 12, 2015

By Glenn Schlabs and Joe Hunt

Must federal construction contractors pay for employees’ lodging near a job site? In Weeks Marine, the Department of Labor took the position that a contractor’s failure to reimburse employees for lodging – where the employees travelled away from their homes and lived near the job site – was a de facto kick back of Davis-Bacon Act wages and was prohibited if the lodging primarily benefitted the contractor. Click here for the full advisory.

NLRB Subpoena Benchslap 2015-02-11T16:37:48-07:00

Posted on February 11, 2015

By Just John

A Circuit Court has un-tipped the NLRB’s scales in a refusal-to-bargain case. Ozark Auto. Distribs., Inc. v. NLRB, No. 11-1320 (D.C. Cir. February 10, 2015). An employer lost a tight union election and contested the election results, arguing that the campaign ringleaders engaged in severe misconduct that directly impacted the election. To prove its point, the employer subpoenaed the ringleaders and the union for phone records and other materials to show the ringleaders were acting at the union’s behest. The NLRB found the subpoenas invaded employee privacy, affirmed the election results, and ordered the employer to bargain.

The Court of Appeals vacated the bargaining order because the NLRB failed to balance the employee privacy implications against the employer’s need for the subpoenaed materials. So, is this just another case of the Board applying the wrong standard, or is it another instance of the Board going rogue on employers? In light of the powerful dissent of Member Hayes in the Board’s opinion, laying out the very same arguments and conclusions the Court later adopted, this has to be seen as an attempt to further tilt the playing field toward unions.

RLA: A Duty to Unionize? 2014-01-16T22:27:04-07:00

Posted on January 16, 2014

By Bill Wright

Aircraft service employees threatened to close Seattle’s airport. They were disgruntled about the suspension of a co-worker, and they banded together with a community organizer (not a union agent) to threaten a strike. The employer sought a federal injunction against a strike, arguing that, because the employees and employer were covered by the Railway Labor Act (“RLA”), the employees had a legal duty to bargain the dispute before trying to strike. The employer won, and prevented the strike. Now what?

According to the 9th Circuit, the RLA imposes a duty on all covered employees to make agreements concerning working conditions and to settle all disputes, while avoiding interruptions to the operation of a covered employer. Employees – even non-union employees – may not strike first and bargain later. Of course, under the RLA, the employees cannot make agreements or settle disputes individually with their employer. No, the employees have to appoint a representative to deal with the covered employer. Even if they do not join a union, the employees have to deal with the employer collectively. This leaves employees with a three tine fork in the road: give up the dispute, unionize, or break new ground by appointing a collective representation without the structure of a union. Aircraft Serv. Int’l., Inc. v. Int’l Bhd of Teamsters AFL CIO Local 117, No. 12-36026 (9th Cir. January 10, 2014).

Seventh Circuit Upholds Wisconsin’s Controversial Public Union Law 2013-01-23T21:38:10-07:00

Posted on January 23, 2013

By Mike Grubbs

A panel of the Seventh Circuit Court of Appeals upheld Wisconsin’s widely-discussed 2011 law that limits the collective bargaining rights of most public sector employees. Wisconsin Educ. Assoc. Counsil, et al. v. Walker, Nos. 12-1854, 12-2011 & 12-2058 (7th Cir. January 18, 2013).

The law, known as Act 10, applies to public sector employees and unions in Wisconsin. Act 10 limits public sector unions’ influence by, among other things, prohibiting public sector employers from deducting union dues from paychecks, requiring public sector employees to recertify their unions each year, and limiting collective bargaining for most public sector employees to issues of base wages. “Public safety employees,” such as firefighters and police officers, are not subject to Act 10’s restrictions. Several unions representing public sector employees argued that Act 10 violated freedom of speech and the equal protection clause of the United States Constitution. The Seventh Circuit rejected the unions’ arguments.

The court reasoned that states are under no obligation to aid the unions in their political activities by providing payroll deductions for union dues. The court also held that the legislature had a rational and valid reason for passing Act 10, stating that “Act 10 exhibits a rational belief that public sector unions are too costly for the state.” The court concluded that Wisconsin was free to impose any of Act 10’s restrictions on all public sector unions. The decision lifts the lower court’s injunction against those two provisions of Act 10, restoring them to active operation.

The NLRB Overturns 50 Year Precedent 2012-12-26T21:44:07-07:00

Posted on December 26, 2012

By Karla Sanchez

In WKYC-TV, 359 NLRB No. 30 (December 12, 2012), the National Labor Relations Board held that after a collective bargaining agreement expires, the employer must continue to check off union dues from employees’ wages. The obligation to forward dues payments continues until the employer and the union either reach a successor agreement or reach impasse. In reaching this decision, the Board overturned 50 years of precedent. Ever since Bethlehem Steel, 136 NLRB 1500 (1962), employers could stop forwarding the union the members’ dues when the contract expired. Now, saying that the Board “has never provided a coherent explanation for this [former] rule,” the Board is keeping the money flowing. We expect the unions to be able to prolong contract negotiations further, now that the members’ dues will continue to arrive every payday.

Employer Opens Can of Worms for Union 2012-12-11T16:19:50-07:00

Posted on December 11, 2012

By John Alan Doran

When must an employer turn over its highly confidential pricing and customer data to a union? When it opens its big trap during collective bargaining! A recent case provides an excellent example. During bargaining, the employer repeatedly asserted that it needed wage concessions from the union due to increased pressures from Asian competitors, increased production costs, and decreased productivity. In response, the union demanded seven broad categories of data to test the employer’s “competitiveness” rationale for its proposed wage concessions. The company refused to provide anything more than its projected wage savings from the proposed concessions. The union complained to the NLRB; the NLRB found that the employer’s refusal to produce the information was an unfair labor practice; and the employer appealed to a federal appeals court, where the employer resoundingly lost. Case Link

The D.C. Circuit Court of Appeals concluded that the employer’s broad and oft-repeated “competitiveness” rationale opened the door for the union to demand information related to that rationale. Because the “competitiveness” rationale was the employer’s primary justification for the concession demand, and because the union’s information requests were at least reasonably related to the employer’s competitiveness rationale, the employer was obligated to provide the data.

This case is a reminder to all who sit at the bargaining table to watch what they say. When an employer makes an assertion of fact as a rationale for a proposal, in many instances it will enable the union to demand proof, which may include confidential employer business data. (KLB Industries, Inc. v. NLRB, No. 11-1280 (D.C. Cir., December 4, 2012)

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