Recently in Labor Law/Union Representation Category

June 18, 2014

United States Supreme Court Invalidates President's NLRB Recess Appointments in NLRB v. Noel Canning

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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May 9, 2014

Seventh Circuit Upholds Weakening of Collective Bargaining Rights in Laborers Local 236 v. Walker

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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April 9, 2014

NLRB Rules That College Football Athletes At Private Universities Can Form Unions

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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February 7, 2014

U.S. Supreme Court Rules That Indiana Steel Mill Employees Cannot Be Paid for Time Spent Donning and Doffing Equipment in Sandifer v. U.S. Steel

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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January 24, 2014

National Labor Relations Board Files Its Largest Complaint Ever Against Wal-Mart

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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January 10, 2014

Indiana Attorney General Submits Written Arguments to State Supreme Court Regarding "Right-to-Work" Law

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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December 27, 2013

Sixth Circuit Confirms That Smaller Employment Units Can Be Separate Bargaining Units in Specialty Healthcare and Rehabilitation Center of Mobile v. NLRB

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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December 4, 2013

National Labor Relations Board Rules That Wal-Mart's Efforts to Intimidate Workers Are Illegal

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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October 9, 2013

National Teamsters Leadership at Odds With Local Branches Over Contract With UPS

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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September 17, 2013

Indiana Superior Court Judge Rules That Indiana's "Right-to-Work" Law is Unconstitutional

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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September 12, 2013

Walmart Workers Across the Nation Go On Strike to Protest Wages, Unfair Labor Practices

Recently, in an effort similar to the fast food workers' one-day strike, Walmart employees in 15 different cities protested the company's disciplinary actions toward 80 employees who were part of a previous protest. While Walmart officials claim that the disciplinary actions had nothing to do with the protest, Walmart employees claim otherwise, and were illegal, given that the protest was over unfair labor practices. Employer acts that punish employees for striking over unfair labor practices violate the federal National Labor Relations Act (NLRA).

Until recently, strikes protesting Walmart's treatment of employees were rare. Those who makin-change-680711-m.jpgdid protest faced stiff consequences, such as 60 Walmart employees in California who were fired after protesting outside of a shareholders meeting. Employees who dared to strike often received little support. This time, however, Walmart employees received support from an advocacy group intended to organize them, called OUR Walmart. The goals of OUR Walmart include instituting minimum pay of $13 per hour, full-time jobs available to those who want them, predictable work schedules and health care that is affordable. Some common complaints about Walmart are that it provides jobs that are less than full time in order to circumvent federal health care law, yet has unpredictable shifts that prevent employees from taking on second jobs to make ends meet.

While Walmart officials argue that hourly workers earn close to $13 an hour anyway, other groups place the average at less than $9 per hour, barely enough to cover gas, food, and rent. Meanwhile, Walmart continues to profit even in an uncertain economy, churning out $444 billion in sales in 2012, and with higher profits in the first two quarters of 2013.

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August 21, 2013

Fast Food Employees in Kentucky and Other States Hold a One-Day Strike to Raise the Minimum Wage

In Kentucky, the current minimum wage is $7.25 per hour, the same as the federal minimum wage. Yet it is estimated that $17.18 per hour, full time, is necessary to support a Kentucky family of two adults and two children. That means countless families are living on the edge of poverty, even if both parents have full-time jobs. Minimum wage food service employees across the country are hoping to change that.

Screen Shot 2013-08-09 at 3.04.22 PM.pngRecently, thousands of employees in Kentucky and other states walked out on their jobs at various fast food restaurants, hoping to increase their wages from $7.25 to $15 per hour. One employee noted that even with two jobs, he did not have enough money to buy shoes for his children or insure his car. The protest lasted one day and took place at a time when even members of Congress are calling for a minimum wage increase.

While the federal Fair Labor Standards Act (FLSA) provides numerous protections for hourly workers, including a minimum wage, additional pay for work over eight hours in a day (or 40 in a week), and time for breaks and meals, it does not mandate that the minimum wage be tied to the cost of living. Therefore, the minimum wage has tended to lag behind. While some states have higher minimum wages to bridge the gap, Kentucky -- as noted above -- is not one of them. Many have called for some sort of wage boost: President Obama has advocated for an increase to $9 an hour, while 100 economists recently supported a bill that would have raised the minimum wage to $10.50 an hour.

Those who seek an increase have traditionally run up against industry claims that more money means fewer jobs. This time is no exception. The restaurant industry argues that if workers get $15 an hour, restaurants will close and there will be fewer jobs all around. Yet given the restaurant industry's profits, many employees view such arguments with skepticism.

Although the fast food employees participated in a strike, they do not belong to a union. However, their willingness to strike suggests that parts of the food industry may one day be unionized. Fast food employees have traditionally been tough to organize because it is such a high-turnover industry whose workers are thought to be "easily expendable." Yet for this latest protest, the Service Employees International Union has provided funding and staff to help organize.

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August 7, 2013

The Sixth Circuit Finds That Registered Nurses Are Supervisors Under the National Labor Relations Act in GGNSC Springfield v. NLRB

The National Labor Relations Act (NLRA) of 1935 gives certain employees the right to form a union and participate in "protected concerted activities." The question is which employees have that right. NLRA Section 2 specifically prohibits supervisors from organizing, but an employee's role is not always so clear-cut. As a result, many cases before courts or the National Labor Relations Board (NLRB) involve whether certain employees are supervisors, or part of another group exempt from NLRA protections.

Screen Shot 2013-08-09 at 2.39.43 PM.pngRecently, in GGNSC Springfield v. NLRB, the Sixth Circuit Court of Appeals held that registered nurses were considered "supervisors" under the NLRA, and therefore had no right to organize.

The case involved 12 RNs, 10 licensed practical nurses (LPNs), and 46 certified nursing assistants (CNAs) at Golden Living Center, a nursing home in Springfield Tennessee. The nursing home had 100 employees and provided short and long-term care for 120 residents in two different wings of the facility. Two to six RNs and/or LPNs were assigned to a wing. Each RN reported to the director of nursing, who oversaw patient care along with two assistant directors.

In October 2011, the International Association of Machinists and Aerospace Workers sought to represent the Golden Living Center RNs in collective bargaining. The union petitioned the NLRB, but the Golden Living Center opposed the petition, claiming that the RNs were "supervisors" under the NLRA. After a hearing, the NLRB ruled in November 2011 that the RNs were not supervisors and certified them as a bargaining unit. The RNs held an election and elected the union as its bargaining representative.

However, the Golden Living Center refused to bargain with the union, and the union submitted a complaint to the NLRB that the nursing home had committed unfair labor practices. The NLRB sustained the complaint and ordered the Golden Living Center to bargain with the union. The Golden Living Center then appealed to the Sixth Circuit.

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January 3, 2013

Kentucky Union Workers to Be Reinstated in Jobs after Collusion Ruling

According to The People's Law Dictionary, collusion is "where two persons (or business entities through their officers or other employees) enter into a deceitful agreement, usually secret, to defraud and/or gain an unfair advantage over a third party, competitors, consumers or those with whom they are negotiating." Allegedly this is what occurred recently in Louisville, Kentucky between a carhauling company, the Ford Louisville Assembly Plant, and the United Auto Workers (UAW). Earlier in 2012, Jack Cooper Transport, the company that had hauled new vehicles from the Ford plant since the early 1950s, was replaced by Voith Industrial Services. While hiring a new contractor to provide services is not illegal by any means, the way in which it occurred in this case appears to be questionable.

Teamsters 89, the union for the Jack Cooper Transport employees, claimed that 166 of their members were replaced by the new contract with other employees who were not with the Teamsters and were paid much less. The National Labor Relations Board (NLRB) determined that the new carhauling company - Voith - joined forces with the UAW to keep the higher-paid Teamsters from obtaining jobs under the new contract. On December 21, 2012, Voith was ordered to hire 85 of the displaced workers at their original pay rate, pay them lost wages, and nullify the deal with the UAW while a new contract is drawn up.

The National Labor Relations Act (NLRA) was originally passed in 1935 and was called the Wagner Act. It not only allowed employees to unionize, but also protected employees who participated in a union from discrimination. In 1947, the Taft-Hartley Act was passed. It set some boundaries for unions and established some regulations. Today's statute - The Labor Management Relations Act (LMRA) - is a combination of the NLRA and the Taft-Hartley Act, and is enforced by the Nation Labor Relations Board. Under the NLRA, employees can file a petition to unionize if 30 percent of employees support it. An election is then held, but actual unionization can be delayed by objections filed by the company or those wishing to unionize if either group thinks the election was unfair.

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March 23, 2012

Plumbers Union Settles Racial Discrimination Lawsuit

Unions were created to protect the rights of American workers from those higher up who may not have their best interests in mind. Sometimes, however, the unions themselves can make bad decisions that end up negatively affecting a worker they are supposed to protect.

In 2008, Jon Stokes, who is African-American, was allegedly wrongfully terminated his job as shop steward at a construction site. He was immediately replaced with a white employee who had been on the job for only two months by the local plumber and pipefitters union. Stokes allegedly contacted union leaders regarding his termination being fueled by racism, but an investigation was never done. Because of this, the Division of Civil Rights filed a lawsuit.

An agent for the union said Stokes was terminated because people had complained he was too slow in filling their requests for materials, but the workers who had supposedly complained were never identified. Also, Stokes noted that he was never made aware of any issues before his termination.

Earlier this month, the union agreed to settle this matter with the Civil Rights Division. Several changes will be implemented because of this settlement. Union leaders will be required to attend training regarding civil rights law at the state and federal level. Policies that were previously lacking will be established, including how discrimination complaints should be reported and investigated. Anti-discrimination and harassment policies will be created and given to all union members.

While this settlement does not mean the union admitted any wrongdoing, the director of the Civil Rights Division was satisfied, saying "This is a fair resolution of some troubling allegations...It is vital that all employers strive to create a healthy workplace climate, and that every employee -- from the home office to the job site -- knows and understands the law."

Jon Stokes has filed a personal lawsuit against the union and it is still pending.

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