Articles Posted in Labor Law/Union Representation

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In an unsurprising, yet disheartening, ruling, the United States Supreme Court held in NLRB v. Noel Canning that President Obama’s recess appointments to the National Labor Relations Board (NLRB) were invalid because the United States Senate was still “in session.” In the broad sense, this will severely limit President Obama’s or any future president’s ability to evade a Senate filibuster and appoint individuals to fill government agency positions. In the more narrow sense, it not only invalidates President Obama’s NLRB recess appointments but also potentially the decisions those members made that affect workers across the country.

u-s--supreme-court-roof-and-columns-658253-m.jpgThe situation began back in 2012, when President Obama used the recess appointment power to appoint members to the understaffed NLRB. These members had already been nominated, but Senate Republicans refused to permit a Senate-wide vote, instead opting to filibuster the nominees. At the time, a filibuster of presidential appointments required a 60-vote threshold to overcome, a tough challenge in the sharply divided Senate. Since that time, the rule has been changed so that only a simple majority is required for approval of recess appointments. During the winter break, Senate Republicans held pro forma sessions every three days to prevent the body from truly going into recess in order to prevent President Obama recess appointments.

The Supreme Court justices were unanimous in their view that the recess appointments were not valid in this case, but they differed in terms of how they would have applied the recess appointment power correctly. The majority, consisting of Justice Breyer, Justice Kennedy, Justice Ginsburg, Justice Sotomayor, and Justice Kagan, stated that the President had the right to make recess appointments, but not when the Senate considered itself to be “in session.” The Senate had the right to determine when it was still in session. The remaining justices, Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito, agreed with the opinion, but stated that they would have gone further, banning all recess appointments except for when vacancies arose during the recess.
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A recent Seventh Circuit case involving Wisconsin could have implications for Indiana collective bargaining agreements. In Laborers Local 236 v. Walker, the Seventh Circuit rejected a constitutional challenge to a controversial law that restricted the collective bargaining rights of public employee unions.

peace-3-128318-m.jpgWisconsin’s Act 10, also known as the Wisconsin Budget Repair Bill, was passed in 2011, purportedly to address an expected $3.6 billion budget deficit. The Act impacted public sector employees’ collective bargaining rights, along with compensation, retirement, health insurance, and sick leave. Notably, it prevented the state from even recognizing unions unless 51 percent of all potential members, not just those voting, supported the union in annual elections. Only police and fire department employees were exempted. Public sector employees charged the legislature and Governor Scott Walker with using Act 10 as a ruse to weaken their union protection, and that Act 10 was no meaningful budget solution.

The Act went through a series of legal challenges, including that it infringed upon federal constitutional protections, violating the Equal Protection Clause of the Fourteenth Amendment and the First Amendment. In September 2013, a district court judge rejected this argument, claiming that it did not violate the free association clause of the First Amendment because the First Amendment did not require an affirmative response from government entities, simply the absence of a negative restriction. Nor did the law impermissibly disadvantage represented employees — or those who chose to express their grievances by joining a union. The judge claimed that because union representation is not a suspect classification, it is only entitled to a rational basis review, the lowest standard required. Under that low standard, the state of Wisconsin had a rational basis for passing Act 10.
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A recent decision by the National Labor Relations Board (NLRB) could dramatically alter the current college football system in Kentucky, Indiana, and across the United States. Among other things, it might pave the way for athletes in college programs to be paid.

football-1-645083-m.jpgThe NLRB ruled in favor of the College Athletes Players Association (CAPA), finding that college football players are employees rather than student athletes, and have the right to form a union. At present, this right belongs only to athletes at private colleges, whereas athletes at public institutions would need to petition their state’s labor board. Northwestern, the university that lost the case, has vowed to appeal the NLRB’s ruling.

The case began in February, when college football players at Northwestern petitioned their coaches and university to form a union. When the petition was refused, one of the athletes, Kain Colter, took the lead in seeking a legal appeal, aided by the United Steelworkers. They filed their case with the local Chicago NLRB, explaining that while college football players were treated as “student athletes,” their labor and the profits they brought to their schools made them more akin to employees. Northwestern alone enjoyed revenues from its football program in the amount of $235 million between 2003 and 2012.
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Indiana steel workers were on the losing end of a recent United States Supreme Court decision in the case Sandifer v. U.S. Steel. In a unanimous decision, the Supreme Court ruled that employers were not required to pay for time the employees spent “donning and doffing” — or putting on and removing — their workplace outfits if the union representing them had already bargained away the right for such pay. The ruling affects 800 steel workers who were part of a class action lawsuit, and promises to make it harder for unionized workers in general to seek compensation for work not addressed during labor negotiations.

protection-helmet-203723-m.jpgDonning and doffing provisions typically refer to putting on and removing workplace clothing. However, the 800 steel workers at U.S. Steel’s plant in Gary, Indiana had argued that the protective gear that they were forced to put on each day for their jobs — which included flame-retardant jackets and pants, work gloves, hard hats, safety glasses, and respirators — were not clothing, but “personal protective equipment.”

Justice Scalia, who wrote the opinion for the court, disagreed. He stated that time spent putting on such gear was not markedly different from time spent changing clothes, and that pants, leggings, and hardhats would typically be considered articles of dress. He did concede that items such as safety glasses, respirators, and earplugs were not examples of clothing, but stated that a ruling that separated those items from the rest would create problems for the lower court judges who dealt with similar cases in the future.
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Back in December, this blog discussed how the National Labor Relations Board (NLRB) found Wal-Mart’s employee intimidation practices illegal. This includes firing and harassing employees who spoke against its exploitation and went on strike. As a result, the NLRB planned to go ahead and prosecute the company’s actions, which affected 117 workers across the country.

immigration-rally-1-520992-m.jpgRecently the NLRB took further action, issuing a complaint against Wal-Mart in 14 states for violating labor laws by taking actions against workers who went on strike. Wal-Mart representatives reportedly appeared on television and other media, threatening retaliation for the workers’ actions, and then disciplining or firing workers for striking, despite it being a legally protected activity. The complaint specifically cites more than 60 Wal-Mart supervisors, as well as a corporate officer.

The complaint was filed after an initial NLRB investigation found that the charges against Wal-Mart had merit. The parties involved attempted a settlement, but it fell apart, prompting one of the NLRB’s regional directors to file. The states involved in the complaint include Kentucky, as well as California, Texas, and Washington.
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Indiana’s Attorney General Greg Zoeller has requested that the Indiana Supreme Court reverse a trial court decision that nullified part of the state’s right-to-work law. Zoeller also requested that the Indiana Supreme Court affirm the Lake County Superior Court’s rulings on three other grounds that did not involve constitutional questions.

immigration-rally-1-520992-m.jpg“Right-to-work” does not refer to whether all able-bodied people have the right to a job. Instead, “right-to-work” laws allow employees who are not part of unions to be able to enjoy the benefits that union employees won through collective bargaining — without having to pay union dues or be bound by the collective bargaining agreement like union employees. “Right-to-work” laws are typically meant to weaken unions’ power, on the basis that fewer employees will want to join a union if they can get the same benefits without any sacrifices. Twenty-four states have enacted “right-to-work” legislation, including Indiana in February 2012.

However, in September 2013, a Lake County Superior Court judge found that the “right-to-work” law was unconstitutional. The case began in February 2013, when it was filed on behalf of members of the International Union of Operating Engineers Local 150 AFL-CIO. The case had originally been brought in federal court, with the instigators claiming that the “right-to-work” law violated the United States Constitution and the state constitution. The federal court dismissed it on the grounds that the case should be brought in state court. After the case was filed in state court, the Lake County Superior Court judge found the law to be unconstitutional because the Indiana constitution called for just compensation for services, and permitting non-union members to enjoy the benefits of union victories was not just compensation.
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A Sixth Circuit Court of Appeals decision represents a victory for employees looking to unionize in Kentucky and other states in its jurisdiction.

nurseii-4-1158337-m.jpgIn Specialty Healthcare and Rehabilitation Center of Mobile v. NLRB, the Sixth Circuit upheld a National Labor Relations Board decision allowing unions to organize in small units of employees. This is significant because if individual units of employees can be recognized as unionized, it will be easier to unionize a workplace than if all employees were required to vote.

Kindred Nursing Centers East, LLC operated a nursing home in Mobile, Alabama, which had no history of employee collective bargaining. The employees worked in eight separate departments, including nursing, nutritional services, resident activity, administration medical records, maintenance, central supply, and social services. In the nursing department were 53 Certified Nursing Assistants (CNAs), as well as Registered Nurses (RNs) and Licensed Practical Nurses (LPNs).
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Right before the series of Black Friday protests conducted by Wal-Mart employees across the country, the National Labor Relations Board (NLRB) found that the retailer had broken the law when it fired and harassed employees who spoke up against company exploitation and went on strike. As a result, the NLRB will prosecute Wal-Mart’s actions, involving 117 workers, which include the workers who went out on strike this past June. It is expected that the NLRB’s ruling will increase the likelihood of strikes in the future, given that Wal-Mart employees by and large still must contend with low pay, few benefits, and unpredictable work schedules.

immigration-rally-1-520992-m.jpgThe NLRB ruling may require Wal-Mart to reinstate the dismissed workers and provide them with back pay, as well as to inform employees of their full legal rights. However, the NLRB cannot impose fines on companies that violate these rights. Among those who have already been reinstated are Aaron Lawson of Kentucky, who was initially fired for distributing flyers and protesting Wal-Mart’s efforts to silence employees who sought better wages and hours. Wal-Mart finally reached a settlement with Lawson, where the retailer agreed to rehire him with full back wages representing the time he was out of work. The NLRB had also previously decided to prosecute Wal-Mart for violating federal labor laws 11 times in California, when managers made threats to employees around Black Friday.

The above intimidation is just part of a long pattern of Wal-Mart indifference toward worker protections and hostility toward worker activism, which includes breaking the law by retaliating against protest activities, paying female employees less for doing the same work as male employees, violating environmental laws, and exploiting immigrant labor.
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National and international unions are composed of countless local branches containing collective bargaining units. Collective bargaining unit formation and procedure are governed by the National Labor Relations Act of 1935 (NLRA). First, employees in a workplace must file a petition with the National Labor Relations Board (NLRB) showing that at least 30% are interested in union representation. This is usually done through the use of authorization cards. Next, if employees meet the threshold and the petition is otherwise deemed valid, an election for union representation is held. While an employer can challenge the initial petition, he or she cannot legally interfere with an election. Third, if the employees vote to unionize, and the election is upheld, the unit of employees represented will be certified as a collective bargaining unit. The employees would then have the right to bargain collectively with the employer over wages, hours, and other conditions of employment. All union employees are bound by these collective bargaining agreements.

fragile-parcel-1279274-m.jpgNeedless to say, collective bargaining agreements will differ from workplace to workplace, and in some cases, local units may clash with the national union. Such is the case with United Parcel Service (UPS) (login required), whose members are represented by Teamsters. While the Teamsters leadership approved a national contract, local units — including Local 89 in Louisville, Kentucky, representing 10,000 members — are still dissatisfied with areas like restricting overtime, wages for part-time workers, and healthcare. Since UPS must negotiate with the local bargaining units, issues that were supposed to be resolved in June have resulted in delayed agreements.

It is unclear how far apart the parties are over the new labor agreements. A Teamsters official spokesperson declared that the master contract was the “best private-sector labor contract in the country,” raising wages by $4 an hour, creating 2,500 jobs, and adding several employee protections. At the very least, the national leadership and the local units are far enough apart that Local 89 in Louisville has urged its members to vote no on the latest proposal. Now everyone awaits to see whether the separation will result in a strike.
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Until recently, Indiana was known as a “right-to-work” state. “Right-to-work” does not mean that all willing and able-bodied people have the right to a job. Rather, it means that employees who are not part of unions should be able to enjoy the benefits that union employees won through collective bargaining — without having to pay union dues or be bound by the collective bargaining agreement like union employees. “Right-to-work” is designed to weaken unions’ power, on the basis that fewer employees will want to join a union if they can get the same benefits without any sacrifices. Twenty-four states have enacted “right-to-work” legislation, including Indiana in February 2012.

immigration-rally-1-520992-m.jpgHowever, recently a Lake County Superior Court judge ruled that Indiana’s “right-to-work” law was unconstitutional. Judge John Sedia stated that the reason was because Indiana’s constitution calls for just compensation for services. Permitting non-union members to enjoy the benefits of union victories was not just compensation.

The case against Indiana’s “right-to-work” law was originally filed in February 2013 on behalf of members of the International Union of Operating Engineers Local 150 AFL-CIO. It was not the first time that unions challenged the law after Indiana became the twenty-third “right-to-work” state. The ones who brought the most recent case had previously brought the case in federal court, claiming that the “right-to-work” law violated the United States Constitution and the state constitution. However, the federal court dismissed it without prejudice, claiming that the case should be brought in state court.
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