Labor Relations Today : Labor & Employment Lawyers & Attorneys : Contract Administration, Collective Bargaining

Board Seeks Injunction to Force Hospital Back to Bargaining Table: R.J. Ignelzi of the San Diego Union-Tribune reports that the National Labor Relations Board will be heading to federal court to seek an injunction that would force Fallbrook Hospital back to the bargaining table. Fallbrook has been negotiating with its nurses off and on since the nurses voted to be represented by the California Nurses Association last year.

In a 24-page decision outlining Fallbrook's failings, an Administrative Law Judge found that Fallbrook had engaged in a pattern of "intransigence" with regards to CBA negotiations. Moreover, the ALJ also held that Fallbrook had illegally fired several nurses without first negotiating with the union. We will keep you posted as this injunction action moves through the legal process.

AFSCME Patient-Care Workers Set to Strike: ABC10News reports that as of this morning thousands of patient care technical workers at University of California hospitals are set to walk off the job in a concerted push for a new contract. The employees, represented by the American Federation of State, County and Municipal Employees (AFSCME), plan to return to work on Thursday after two days of protests.

The hospital, in a short statement, expressed regret that the employees would be going on strike, particularly due to the effect it would have on patient care. We will keep you updated with any further developments.

Childcare Union Bill Set for Governor Dayton's Signature: Megan Boldt of the Pioneer Press reports that, after two days of tense and emotional debate, a bill that would allow Minnesota childcare providers and personal care attendants to unionize passed the House and is headed to the Governor's desk for a signature. The bill passed the House by a 68-66 vote and had earlier passed in the Senate by a 35-32 margin.

The bill received strong opposition from Republicans in both the House and Senate, while Democrats overwhelmingly supported the legislation. Once Governor Dayton signs the bill, which is expected before the end of the week, expect both the SEIU and AFSCME to descend upon the State in order to begin organizing efforts. We will certainly keep you posted.

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UMW Student Protests Shut Down Palermo's Pizza: Milwaukee Business News reports that student sit-ins and protests concerning a Palermo's Pizza stand on campus at the University of Milwaukee-Wisconsin (UMW) have led to the stand's closure. This past Tuesday, about 40-50 students gathered outside the stand, yelling, "No justice, no pizza," in support of Palermo's workers, who the students believe have been treated unfairly by the pizza company. The students dispersed when a UMW official announced that the stand would be shut down.

Palermo's has been in the news a good deal recently, with the National Labor Relations Board clearing the company of all major charges on April 29 after a union representing workers at Palermo's had filed unfair labor practice charges against the company.

Board Settles ULP Charges With Trojan Labor: Bobby Allyn of the Tennessean writes that this past Monday, the National Labor Relations Board finalized a settlement with Trojan Labor. Trojan had been in hot water for the past few months after an employee filed unfair labor practice charges with the Board, alleging that Trojan had engaged in illegal surveillance by sending management officials to union organizing meetings.

The settlement document does not identify any individuals, nor does it state whether any illegal activity actually took place. Trojan will most likely remain in the news for the foreseeable future, particularly because its employees are also in the process of filing a federal suit for unpaid regular and overtime wages. We will certainly keep you posted.

Columbia Adjunct Professors on Verge of Striking: Kari Lydersen of In These Times reports that adjunct faculty at Columbia College in Chicago, Illinois are teetering on the edge of striking. While an authorization vote has yet to take place, informal polling among union members shows that between 80-90% of adjunct faculty would support such a strike. The adjuncts are hoping to avoid a strike, but are looking for a greater share of wages and benefits. The union president has taken the view that, if a strike is what gets the administration's attention, then the strike will have to go forward. We will keep you posted as to whether the adjuncts actually vote to authorize the strike.

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Board ALJ Nixes UPMC Social Media Policy: Matt Fair of Law360 ($$) writes that a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) held in a decision issued last week that University of Pittsburgh Medical Center (UPMC) was maintaining a social media policy that violated Section 7 of the National Labor Relations Act. In pertinent part, the policy at issue effectively prevented employees from using social media or company computers to discuss union activity.

“The prohibition ‘on describing any affiliation with UPMC’ is reasonably read to prohibit employees (who, are using Facebook, Twitter, etc., which the employer’s rule permits) from telling anyone where they work, a restriction that severely inhibits discussion with others about the terms and conditions and pluses and minuses of their work experience,” he said. “Such ambiguity and overbreadth is unlawful precisely because it chills Section 7 activity —an employee will reasonably avoid all Section 7 activity precisely out of concern that the employer may apply the rule in a manner that impermissibly singles out Section 7 activity.”

Interestingly, the ALJ did uphold UPMC's policy forbidding union solicitation of employees via company email. The UPMC declined comment for the story.

While the Board has thus far issued few decisions regarding social media policies, it appears that the NLRB has begun to aggressively target company policies that could be read to "chill" employees' Section 7 rights. As such, employers need to tread carefully when crafting employee social media policies. We will keep you updated if this case is appealed to the full Board.

Strongsville Teachers' Strike Nears End: Jen Steer of NewsNet5.com reports that last Friday, the Strongsville Education Association and the Strongsville Board of Education reached a tentative deal that should end the eight-week long teachers' strike in Strongsville, Ohio. Interestingly, both sides have stated that no details will be released until the proposed agreement is ratified. Once the deal is solidified, we here at @LRToday will break down the specifics for you. Stay tuned.

Union, Caterpillar Reach Tentative Agreement: Katie DeLong of Fox6NewsNow.com writes that members of Local 1343 of the United Steelworkers Union have reached a tentative agreement with Caterpillar regarding a new contract. The employees, located in South Milwaukee, Wisconsin, are expected to vote on ratification this coming Tuesday. No details of the proposed deal have been released, but we will certainly keep you posted as to the vote's results.
 

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Challenge to "Right-to-Work" Law Lives Another Day: Abigail Rubenstein of Law360 ($$) reports that yesterday a Michigan judge refused the state's request to have a lawsuit challenging the legality of Michigan's new Right to Work law thrown out. The challengers are contending that the legislation was passed in violation of the state's open-meetings law.

“Regardless of how you feel about right-to-work laws, everyone has a stake in seeing that our government conducts business in a democratic and transparent way,” Karla Swift, president of the Michigan State AFL-CIO, said when the amended complaint was filed. “Any law passed while citizens were locked out of their capitol building should be struck down.”

The AFL-CIO has also filed suit in Federal Court, claiming that the law is preempted by the National Labor Relations Act. Interestingly, Michigan Governor Rick Snyder has asked the Michigan Supreme Court to draft an advisory opinion regarding the law's legality in a sure sign that he is wary of legal challenges to the law. We will certainly keep you posted as this litigation moves forward.

NYC Fast Food Workers Plan Walk-Off: Steven Greenhouse of the New York Times writes that up to 400 fast food workers in New York City plan to walk off the job today to protest what they believe to be substandard wages and other unfair working conditions. The strike, sponsored by a labor coalition calling itself "Fast Food Forward", is the first major labor action aimed at fast food in the city since last November's walkout. Fast Food Forward's stated goal is to raise the average wage of fast food workers in the city to an even $15.00 per hour.

Gregory Reynoso, a driver for a Domino’s in Brooklyn, complains that he is making $7.25 an hour after a year and a half on the job. “It’s impossible to support a family on $7.25 an hour,” said Mr. Reynoso, 26, who lives with his 3-year-old daughter and his wife, a part-time employee at Macy’s. “We’re just surviving.”

Most restaurants declined comment for the story, although Burger King defended its labor practices, stating that it provides entry-level work for thousands of city workers annually. This will certainly not be the last we hear from Fast Food Forward and its affiliates and we will keep you posted when they pop back up.

NFLPA Talks Up Collusion Claims: Mike Florio of NBCSports writes that DeMaurice Smith, the head of the NFL Players' Association (NFLPA), has sent a letter to his constituents requesting that players report any suspicion of collusion among owners regarding market prices for players. The NFLPA has been careful to not explicitly accuse league owners of malfeasance, but it is clear that Mr. Smith is actively looking for evidence of the same. The NFL has denied any allegations of impropriety.

“Player signings in 2013 have been characterized by robust spending and intense competition,” NFL spokesman Greg Aiello told NFL Network’s Albert Breer.  “Anyone seeing collusion in this market is seeing ghosts.”

It is important to emphasize again that no evidence of impropriety on the part of NFL teams or owners has been revealed at this point. However, it is also clear that the union is actively looking for anything that doesn't smell right. Smith's letter was very likely a Machiavellian means to serve his constituents by compelling NFL teams to pay premium prices for his players in order to avoid collusion charges. We will keep you posted if this story reappears.

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SEIU Sues Gov. Corbett Over Health Center Closures: Matt Fair of Law360 ($$) reports that the Service Employees Industrial Union (SEIU) has filed a lawsuit against Pennsylvania Governor Tom Corbett in an effort to stop the shuttering of 26 community health centers in the state. SEIU claims that the planned closures will cause at least 73 workers to lose their jobs, while another 20 nurses would be subject to furloughs.

“Neither the governor, acting [DOH] Secretary [Michael] Wolf, the DOH, nor any other executive branch official has the legal authority to close state health centers, reduce the current number of state health centers, or reduce the level and scope of public health services,” the complaint said.

A spokesperson for the Governors office was unavailable for comment. Interestingly, several PA state Senators have signed their names to the lawsuit as well, making this situation somewhat reminiscent of the Executive/Legislative showdown we saw in the Noel Canning decision in January. We will keep you posted as this lawsuit moves forward.

Union Members Sue IAMAW Over Fines: Alejandra Cancino of the Chicago Tribune reports that almost thirty workers have joined together to file charges with the National Labor Relations Board against their representative union, the International Association of Machinists and Aerospace Workers (IAMAW). The unfair labor practice charges allege that the union illegally fined the workers for crossing the pickets during a strike at Caterpillar, Inc. last summer. In a seemingly particularly egregious case, member Jon Butler is alleging that he was fined almost $15,000.00, despite only being paid a little less than $13.00 per hour.

"It made me lose more respect for the union," said Butler, 23, who returned to work almost three weeks after the strike began on May 1. "I could have stayed longer in the picket line and file for bankruptcy, but being young as I am I was not going to risk my wife's future over a contract like this."

A Union spokesperson was unavailable for comment. The workers, currently being represented by the National Right to Work Defense Fund, expect to file more charges against the Union in the coming weeks. We will certainly keep you posted.

Striking OH Teachers Start Fighting PR Battle: Cory Shaffer of the Cleveland Plain Dealer writes that striking teachers in Strongsville, Ohio have issued a press release arguing that their current salaries are nothing short of a "bargain" for Ohio taxpayers. The striking teachers, now off the job for the fifth week, stated that their salaries are the third-lowest out of ten schools in the region that received a rating of "Excellent with Distinction" from the Ohio Department of Education.

"The Strongsville teachers clearly go the extra mile for their students and give residents bang for their buck," said SEA President Tracy Linscott in the release. "The time has come to debunk the myth that Strongsville teachers are overpaid, when in fact the truth may be just the opposite."

Both sides are expected to meet this morning in an attempt to resolve their differences and get the strikers back to work. We have been following this story since the strike began and will certainly keep the updates coming.
 

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On March 8, 2013, a three-Member panel of the National Labor Relations Board found, contrary to the Regional Director’s preliminary decision, that a nonprofit corporation employing a public charter school’s teachers, was not a political subdivision of the State of Illinois. Therefore, the entity providing management services to the school was deemed an “employer” within the meaning of Section 2(2) of the National Labor Relations Act, and subject to the jurisdiction of the Board.  The Board called its analysis in this case, Pilsen Wellness Center, 359 NLRB No. 72 (Mar. 8, 2013), “one step removed” from its December 2012 decision in Chicago Mathematics & Science Academy Charter School, Inc., 359 NLRB No. 41 (Chicago Mathematics).

In Chicago Mathematics, the Board ruled that a Chicago charter school was an "employer" pursuant to the National Labor Relations Act. In so doing, the Board  analyzed the question under the standard set forth by the Supreme Court in NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971). Under that test, an employer may be an exempt political subdivision if it is:

created directly by the state so as to constitute a department or administrative arm of the government, or

administered by individuals who are responsible to public officials or to the general electorate.

In Pilsen, there was no dispute that the employer was not a political subdivision under the first prong of the Hawkins County/Chicago Mathematics standard.  The Board’s decision was instead driven by its analysis of the second factor:

Our sole focus is on the composition of Pilsen’s board of directors and to whom the directors are accountable. This is the “critical and determinative factor in a second-prong analysis.” Id., slip op. at 9. There is no dispute that the members of Pilsen’s board of directors are appointed and subject to removal only by sitting members of the board, and not by public officials. The method of selection of Pilsen’s board members is dictated by its bylaws, and not by any State law, statute, or governmental regulation. Given these undisputed facts, we find that Pilsen’s directors are not responsible to public officials in their capacity as board members, and therefore that Pilsen is not administered by individuals who are responsible to public officials or the general electorate. Accordingly, “our analysis properly ends”...

Thus, the Board has now employed as brief and determinative an analysis under the second prong as it foreshadowed in Chicago Mathematics.

The decision and its reasoning are instructive – subject to a number of caveats. Like all other actions of this Board, the long term viability of this decision and Chicago Mathematics depends somewhat on resolution of legal challenges which question whether the Board has a quorum. Two of the three members participating in the decision were recess appointed by the President under circumstances challenged by the Circuit Court decision in Noel Canning, a Division of the Noel Corporation v. NLRB, No. 12-1115 (D.C. Cir. Jan. 25, 2013). The Board is currently seeking review.  Whether or not these specific Board decisions survive, they clearly spell out the current Board's rationale. Ultimately, any Board properly seated during President Obama's term is likely to have a similar legal philosophy. Finally, notwithstanding its concise and definitive analysis in these decisions, in Chicago Mathematics, the Board expressly left open the issues of cession, deferral, or even alternate findings on different facts. In any event, parties responsible for crafting authorizing legislation or establishing charter schools thereunder must consider the Board decision in Pilsen and Chicago Mathematics in their efforts to do so.

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Panera and Union Fight Over Appropriate Bargaining Unit: Ursula Zerilli of MLive.com writes that bakers represented by the Bakery, Confectionery, Tobacco Workers and Grain Millers Union (the Union) have been locked in a battle with Panera Bread over whether Panera has a duty to bargain with the newly-formed union. The workers argue that the 17 employees currently being represented by the union constitute an appropriate bargaining unit, while Panera argues that all 45 local bakers should be included in the unit.

The National Labor Relations Board originally certified the 17 bakers as an appropriate unit in August, which the company has appealed. The case promises to drag on, mainly because of the D.C. Circuit's recent Noel Canning ruling, which has cast a great deal of uncertainty over the legality of the Board's decisions.

Pay Cuts Prompt New NYC Bus Driver Strike Threat: NY1 News reports that a new wage scale released by the companies employing New York City's school bus drivers includes an across-the-board 7.5% wage decrease beginning April 15 of this year. In response to the news, the union representing the bus drivers has stated that "all options are on the table," which could include another drivers' strike. 

"As always in private industry we do have the right to strike, it is one of the options, but we will explore again, as I had said previous to the last strike, we really try to do everything we can in our power to get the result that we need without having to impact anyone with a strike," said ATU 1181 President Michael Cordiello.

The last drivers' strike lasted a little over a month and threw school-aged families' lives into chaos as they scrambled to find alternate transportation for their children. We will keep you posted as this situation develops further.

Strongsville Teachers' Strike Continues: Cory Shaffer of the Cleveland Plain Dealer reports that the now month-old Strongsville, Ohio teachers' strike shows no signs of abating anytime soon. Last Friday, the union asked an Ohio court to intervene in the dispute, while the school board has filed unfair labor practice charges with the State Employment Relations Board.

The strikers have recently begun picketing businesses where the board members work, adding an extra level of hostility to an already tense atmosphere. The two sides are currently scheduled to meet tomorrow with a federal mediator to attempt to resolve their issues. We will certainly keep you posted.

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NFL Retirees Spar Over Settlement: Matthew Heller of Law360 ($$) reports that a group of six former NFL players filed a motion yesterday in the U.S. District Court for the district of Minnesota, asking the court to deny preliminary approval to a $42million settlement between the NFL and the retirees. The splinter group claims that the settlement is patently unfair because the retirees will not receive any direct benefits.

“Because direct distributions of benefits to class members are strongly preferred to cy pres distributions, and this case has no justification for a cy pres distribution, the proposed settlement is unfair on its face,” the group protested.

NFL Commissioner Roger Goodell disagreed with the group's characterization of the settlement terms, calling it an "excellent result" for the proposed class. We will be following this litigation closely, because it is most likely just the tip of the iceberg. Lawsuits against the NFL have been coming thick and fast, particularly in light of new concerns being raised over repeated concussions. We will keep you posted.

Sequester Continues to Threaten NLRB Administration: Neil Resnikoff of MSNBC.com writes that expected furloughs at the National Labor Relations Board (NLRB) will most likely slow the Board's administrative functions down to a snails' pace. The Board has already mailed out an advisory to its employees stating that they should be prepared for up to 22 days of furloughs before September.

“I think the National Labor Relations Board is going to have to implement some furloughs,” said Paul Secunda, law professor at Marquette University. “Some of the other agencies within the Department of Labor are also considering furloughs.”

The Board's adjudicatory functions had already been thrown into chaos due to January's Noel Canning ruling out of the D.C. Circuit, which held that the recess-appointments of several Board members were constitutionally invalid. Combined with the sequestration cuts, there is no telling how long it will take a case to move through the Board's procedures. We will be watching this issue closely and will keep you updated.

Ohio Teachers' Strike Trudges Along: The San Francisco Chronical writes that the Strongsville, Ohio teachers' strike has entered its third week and shows no sign of abating any time soon. Strongsville's mayor asked the school board and the teachers' union to meet in order to continue negotiations, but both sides refused, believing any further talks to be futile. As of now, it will be up to a federal mediator to bring the two sides towards a workable resolution.

The strike began three weeks ago when negotiations covering the teachers' 400-member bargaining unit broke down. More than 6,000 students and families have been thrown for a loop by the current unrest.
 

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Washington Times Rips "Zombie" NLRB: The Washington Times published an editorial ripping the National Labor Relations Board's continued operation in light of the D.C. Circuit's January Noel Canning decision. Calling the current iteration of the board "the bureaucratic equivalent of...The Walking Dead," the Times wrote that the Board's continued operation while under a cloud of constitutional uncertainty does not do businesses or workers any favors.

In the interest of lifting the cloud of uncertainty, the president ought to send the Senate three replacement nominees not beholden to the unions.

The editorial further chastises President Obama for making his Board picks under constitutionally-suspect circumstances, which has caused this whole mess. Ideally, the Supreme Court will grant certiorari and sort everything out. However, in the interim businesses and labor unions continue to operate under the "Zombie Board," which is certainly an unsettling proposition.

Union Deduction Bill Clears Kansas Senate: John Milburn of Bloomberg Business Week reports that the Kansas Senate approved a Bill that would effectively bar unions from deducting money from employee's paychecks for political purposes. The Bill will now go back to the House to be reconciled with the Senate's amendments. Democrats, the party traditionally benefiting from union contributions, are crying foul at the measure's passage.

"I think the Legislature has crossed the line when we have a bill like this on the floor," said Sen. Tom Holland, a Baldwin City Democrat. "I'm flabbergasted. Just because you can technically do this doesn't make it right."

Public-sector unions have also argued that the Bill is an end-around to weaken their power. However, supporters countered that the Bill instead gives workers a choice as to how their hard-earned dollars are being spent. There is no prohibition on political donations; the worker simply must make an affirmative choice to donate herself.

Patriot Coal and UMW Face Off in Bankruptcy Court: The Logan Banner writes that Patriot Coal has asked a Bankruptcy Court judge to nullify the terms of its collective bargaining agreement with the United Mine Workers (UMW). The details of the terms of the CBA are currently unknown, as Patriot has submitted them to the court under seal. The UMW has called Patriot's proposal "unacceptable and unnecessary." We will keep you posted as this litigation moves forward.
 

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Wisc. Bargaining Law Remains Unenforceable Pending Appeals: Sindhu Sundar of Law360 ($$) reports that yesterday, a Wisconsin appeals court held that it would preserve a lower court's ruling invalidating portions of Wisconsin's controversial law that limits the collective-bargaining rights of public sector employees pending an appeal. The ruling strikes a blow to the efforts of Governor Scott Walker to rein in public-sector unions amid burgeoning deficits.

“Because the ultimate weighing of such factors was within the [Judge Colas’s] discretion, we see no basis to set aside [his] decision that a stay was not warranted,” the panel said Tuesday.

The lower court had found that limiting public-sector raises to "cost-of-living" increases only was unconstitutional. The state is certain to appeal and we will keep you posted as the matter moves towards a resolution.

Teachers and Students at Odds in Strongsville Strike: Cory Shaffer of the Cleveland Plain Dealer writes that the Strongsville, Ohio teachers' strike, now in its second week, has generated strong responses both supporting and lambasting the teachers' union. Last week, hundreds of teachers staged a march to raise awareness of their cause. However, along the way, they encountered angry students and parents who just want the teachers to go back to work.

“There’s a lot of bad behavior and bullying going on right now, and I feel like the parents need to speak,” said Laura Phillips, Strongsville High School’s cheer leading adviser. “In today’s economy, people should be happy to have a job, period. Teachers need to get back to work because we need some normalcy in this town.”

Students also stated that they feel betrayed and "abandoned" because of the strike and just want things to get back to normal. Currently, no further negotiations are planned, so the strike is set to continue through the weekend at least.

Exchange Students Strike at PA McDonalds: David Macary of the Huffington Post writes that last week a group of student guest workers staged an impromptu strike to protest their working conditions at a central Pennsylvania McDonalds franchise. Specifically, the students alleged that McDonalds had promised them full-time employment, but are currently staffing them only a few hours a week. The students also complained that they have not received overtime to which they are entitled.
 

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Bankruptcy Court OKs Dewey WARN Class-Action: Maria Chutchian of Law360 ($$) reports that last Friday, a New York bankruptcy court signed a proposed consent order that would allow former Dewey and LeBoeuf employees to proceed with a collective WARN action. The Federal WARN statute provides that employers must provide workers with at least sixty-days' notice prior to any mass layoffs.

The class includes Dewey employees who worked at the firm’s New York and Washington, D.C., offices and were laid off about May 15, 2012. The workers claim they were not given the required notice for layoffs under state and federal law.

The suit seeks back pay for the late layoff notice, as well as attorneys' fees and costs. Interestingly, the notice of class action specifically states that there is currently no money to pay putative class members should they prevail.

MO Senate Gives Green Light to Union Paycheck Bill: Jordan Shapiro of the Kansas City Star writes that as of this morning, the Missouri Senate has given preliminary approval to a bill that would require public employees to sign consent forms before union fees could be deducted from their paychecks. The bill's current language is the result of tense negotiations between Republicans and Democrats in the chamber. Some Democrats, however, remain miffed.

“Hope someday people in this chamber will stop bullying labor and cherish them like I do,” Sen. Ryan McKenna, D-Crystal City, said.

The bill would also require annual consent forms before unions could spend public employee money on political campaigns. The current iteration of the bill excludes firefighters and police officers from its coverage, but that exemption will likely disappear when the bill is reconciled with the House.

TSA Screeners Union Opposes Knives at Checkpoints: Steve Strunsky of the New Jersey Star-Ledger reports that representatives of the Transportation Security Agency Screeners' Union have come out against the TSA's new ruling that would allow small pocket knives and golf clubs on airplanes.

"We believe it will be a very bad idea to allow knives at checkpoints," Jacqueline Simon, policy director for the screeners union, said in an exclusive interview last night.

Interestingly, the head of the TSA will defend the new ruling Thursday during a Homeland Security transportation subcommittee hearing. We will certainly keep you posted.

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Lackawanna College Union Protests Claim of Impasse: Sarah Hofius Hall of the Scranton Times-Tribune writes that Lackawanna College has imposed its last best offer on the Professors' union, sparking ire among Lackawanna faculty members. The faculty has been working without a contract since June of 2011 and has been engaged in negotiations with administrators for almost two years.

"This approach does not reflect an effort stemming from a high-mindedness that we espouse as one of this great college's mission criteria," union leaders wrote in a letter to their membership. "It is the epitome of a cruel irony that such a strategy would be exercised by a few individuals given great access to power over Lackawanna's operation, and thus its future."

The union plans to take its complaint to the National Labor Relations Board, but has stressed that it is still willing to engage in good-faith negotiations with the college. Lackawanna administrators  declined to comment on the story.

Kansas Legislature Ponders Trimming Teachers Unions' Rights: Brad Cooper of the Kansas City Star reports that lawmakers in Kansas are in the process of debating several pieces of legislation that would have the effect of limiting the collective-bargaining rights of Kansas' Teachers Unions. Another bill being debated would bar teachers' unions from using voluntary paycheck deductions for political purposes.

“We are seeing a lot of things that appear to be a direct attack on teachers,” said Kansas National Education Association President Karen Godfrey.

Last weekend, more than 300 teachers and supporters showed up at a legislative forum in Wichita in order to protest Kansas' attempts to limit the teachers' bargaining rights. Furthermore, several school boards have come out against the law, saying it is not the right way to reform the educational system in Kansas. 

LA Mayoral Candidate Greul Gets Key Labor Backing: Seema Mehta of the Los Angeles Times reports that yesterday, Los Angeles Mayoral candidate Wendy Greuel accepted the endorsement of the Service Employees International Union, Local 721 (SEIU). The SEIU represents over 10,000 city workers and has become a powerful influence in city politics.

“I am so grateful to the workers who every single day provide the services to our residents. Let’s not demonize them, let’s not divide our city. Let’s support our city,” Greuel said, ... “Let’s support our workers, let’s support business and let’s support a brighter future because each of us can make a difference. It means the world to me to stand here today with all of you because you make us proud.”

The announcement occurred at SEIU headquarters in downtown LA, where workers surrounded Greuel and held signs saying, "Wendy for Mayor." The runoff election is set to take place on May 21, 2013, and is expected to be a very tight race.

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Longshoremen File ULP Charges Against United Grain: Erik Siemers of the Portland Business Journal reports that this past Monday the International Longshore and Warehouse Union (ILWU) filed unfair labor practices charge with the National Labor Relations Board against United Grain. The ILWU alleges that United Grain's lockout of ILWU Local 4 employees stems from union animus.

"This constituted loss of employment based on anti-union animus, and a sweeping unilateral change of terms and conditions of employment,” ILWU International President Robert McEllrath, a longshoremen based in Vancouver, said in a news release.

United Grain contends that it locked out Local 4 members in order to avoid further damage to its industrial equipment. United Grain has been negotiating with the ILWU over a new contract for months. In December, ILWU members overwhelmingly rejected United Grain's last offer, causing United Grain to implement the deal unilaterally.

Strongsville Students Protest Teachers' Strike: The San Francisco Chronicle carried an Associated Press article reporting that students affected by the Strongsville, Ohio teachers' strike have themselves began protesting outside of the local Board of Education offices. The students gathered together last night, with some stating that they did not feel safe with the current crop of replacement teachers. Others, however, expressed their displeasure over the high school principal's alleged warning to not post about the strike on social media fora.

The strike, now entering its third day, has affected over 6,000 students in the district. With no new talks scheduled, it's very likely we will not see a resolution before the weekend.

Bakers' Union Opposes Hostess Sell-Off: Jessica Hall of the Portland Press Herald writes that the union that represented bakers at Hostess before its bankruptcy has objected to the company's sale of its bread brands to Flowers Foods, Inc. The union contends that the sale terms do not offer any protections to its members.

"Flowers has not committed to preserve a single job, and in fact has affirmatively disclaimed any obligation even to 'consider' employing a single worker," the bakery union and pension fund said in a Feb. 25 court filing. "Thus, while debtors' secured lenders may view Flowers' bids as the 'best' for getting themselves paid, Flowers' bids provide zero assurances that the rights of the debtors' workers will be protected."

Interestingly, the U.S. attorney in Manhattan also objects to the sale, purportedly because the buyers would be able to shirk their obligations to comply with environmental laws. We have been following the Hostess debacle for some time here and will certainly keep you posted with any further developments.

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District Court Declares Convergys' Class-Action Waivers Unenforceable: Bill Donahue of Law360 ($$) reports that last Friday, a U.S. District Court Judge in Missouri invalidated Convergys Corporation's employee class-action waivers. Judge Carol Jackson, in finding the waivers to be unenforceable, wrote that enforcing the waivers would violate the National Labor Relations Act.

“Collective and class litigation, through which employees band together to challenge employers’ policies on wages and hours, is concerted activity engaged in for the purposes of mutual aid and protection within the meaning of the NLRA,” the judge wrote.

Interestingly, Convergys is engaged in parallel litigation with the National Labor Relations Board. Last fall, an Administrative Law Judge invalidated the company's class-action waivers and the employer appealed the ruling to the full Board, which has yet to make a decision.

Former Chairman Schaumber Says It's Time to Scrap NLRB: Roll Call is carrying an editorial from former National Labor Relations Board Chairman Peter Schaumber, wherein he calls on Congress to scrap the NLRB. In particular, Schaumber argues that the current Board is partisan, acts in defiance of Federal law, and does not act as a collective. Schaumber's solution? Transfer the Board's power to the judiciary.

Transferring the board’s authority to the federal judiciary will give business confidence in its balanced application and the public the assurance that the protection of employee free choice on the question of unionization will be the central focus of this important American labor law.

Schaumber's harsh words will most likely fall on deaf ears, however, particularly because current Chairman Mark Gaston Pearce has already stated that the Board will continue to operate until further notice, which is ostensibly in violation of the D.C. Circuit's recent Noel Canning decision. Schaumber's voice just adds to the growing Conservative consternation surrounding the Board's continued operations. We will keep you posted with any further developments.

Chaos Reigns As Strongsville Teachers Go On Strike: Patrick O'Donnell of the Plain Dealer reports that teachers in Strongsville, OH made good on their threat to go on strike, hitting the picket lines yesterday. Students and parents stated that classrooms were packed to capacity as substitute teachers taught double or triple classes. By midday, the student parking lot was more or less completely empty, although approximately two-thirds of the student body had reported for school.

"There was some chaos in the beginning, lots of challenges," said school board President David Frazee, stressing that the district plans to hire more substitutes every day. "But we believe that every day it's going to get better and better."

Negotiations between the teachers' union and school board officials broke down earlier this month over the calculation of "step raises," although the union has already consented to a static wage scale. Teachers maintain that they deserve raises since the wage scale has not been increased since 2008. Currently, the average Strongsville teacher takes home approximately $65,000 per year.

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5th Circuit Refuses to Enforce Board's Election Order: Scott Flaherty of Law360 ($$) reports that last Thursday, the 5th Circuit Court of Appeals held that Arkema Inc. had not actually interfered in a decertification campaign. Therefore, the National Labor Relations Board's ruling throwing out the results of the related decertification election was erroneous. The court ruled that it was not enforcing a Board order invalidating a 2008 decertification election because the Board's reasoning was not supported by the facts of the case.

Prior to the 2008 election, the company had disciplined an employee who allegedly had threatened a coworker in an attempt to drum up union support. However, the court held that the nature of the conversation took it outside the bounds of protected activity.

“Even if the incident began as protected activity, Saltibus escalated the encounter, thus losing the protection of the act,” the Fifth Circuit said. “Harassment and intimidation are not protected union activities; offensive, hostile language and threats are not protected even if under the guise of union activity.”

Neither party had responded to a request for comment as of Friday afternoon.

NLRB Employees Could be Furloughed As Result of Sequestration: Eric Yoder of the Washington post writes that the effects of sequestration will be felt by employees of the National Labor Relations Board. Apparently, the Board has provided its employees with a memorandum outlining the probable effects of the sequestration cuts. In particular, Board employees will most likely be furloughed for up to 22 days this year. The furloughs could begin as soon as late March. As this development could have a direct effect on the Board's administrative functions, we will be following the situation closely.

Striking HealthBridge Nursing Home Employees Return to Work: Nicholas Rondinone and Mara Lee of the Hartford Courant write that more than 600 nursing home employees at five different HealthBridge nursing homes returned to work this past weekend. The strike began more than eight months ago as a result of rising pension and health care costs. The employees, represented by the Service Employees International Union (SEIU), returned to work approximately three months after a judge ordered HealthBridge to take the workers back and restore their pensions and health care benefits.

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IL State Workers, Governor Reach Tentative Deal: John O'Connor and Sophia Tareen of the Associate press report that yesterday, the American Federation of State, County and Municipal Employees (AFSCME) reached a tentative deal with Illinois Governor Pat Quinn that will narrowly avert the first-ever public workers' strike in the state of Illinois. An AFSCME spokesperson said the deal will include a pay raise. However, employees will also take on increased health care costs.

“AFSCME is very pleased that we were able to reach an agreement that protects our members’ standard of living, and is fair to them and all Illinois citizens, even in these very challenging economic times,” Council 31 Executive Director Henry Bayer said in a statement.

The Governor's office had been negotiating with AFSCME officials for more than a year before last night's deal was struck. Illinois' unfunded pension, liability, the worst in the country, currently stands at $96 billion. As such, it is probably safe to assume that this will not be the last bit of labor unrest in Illinois.

Vegas Taxi Drivers Announce Plans to Strike: Tim O'Reilly of the Las Vegas Review-Journal writes that taxi drivers working for Yellow Checker Star Transportation plan to walk off the job at midnight Sunday after the company unilaterally implemented its last best contractual offer at the beginning of February. The drivers, represented by the Industrial Technical Professional Employees Union (ITPEU), account for a full quarter of Las Vegas' taxi fleet.

"The strike date could change if the employer comes back with a better offer, but that is doubtful," union spokeswoman Nicole Korkolis said.

The Nevada Taxicab Authority, the agency responsible for licensing cab drivers in the city, already has plans in place to distribute licenses to replacement cab drivers if and when ITPEU drivers begin to strike. We will keep you posted as this situation develops further.

Providence Hospital Workers Deliver Strike Notice: Rolf Boone of the NewsTribune reports that hospital workers at Providence St. Peter Hospital in Washington state have delivered notice to hospital administrators of their plan to strike from March 11 to March 16, 2013. The workers, represented by the Service Employees International Union, have grown increasingly frustrated by the hospital's refusal to expand its health care plans.

“If Providence still won’t make a commitment to affordable care, the strike will grow with 150 RNs, social workers, licensed practical nurses, and support staff from SoundHomeCare and Hospice joining the strike for three days starting March 13,” the SEIU said in a news release.

A hospital spokeswoman told reporters yesterday that the hospital already has contingency plans in place in case the strike goes forward. Furthermore, the hospital emphasized in a statement that it is prepared to resume negotiations at the bargaining table.

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Cleaning Crews at Target Stores Threaten to Strike: Josh Eidelson at The Nation writes that non-union janitors at Target stores in Minnesota are threatening to strike unless their employers agree to meet with them to discuss alleged unfair labor practices by Sunday at noon. The workers, employed by one of three contractors and working at Target stores in the Minneapolis/St. Paul metro area, have filed charges with the National Labor Relations Board alleging retaliation for attempting to organize.

“I guess I’d say I’m not scared,” Diversified employee and CTUL activist Alejandro Quirino told The Nation in Spanish. “Because I’m fed up and sick and tired of how they’ve treated us, and how our demands have been ignored. And that’s why I’m going to go on strike. If I get fired, I know I was fighting for what’s right, and putting in what I could to fight for what’s fair.”

A Target spokesperson declined comment, stating that any inquiries should be directed to the employees' actual employers, who happen to be outside contractors.

Board Rules Employee Fired For Discussing Salary Deserves Backpay: Matt Dunning of BusinessInsurance.com reports that Houston, TX-based Jones and Carter, an engineering firm, agreed to pay a former employee over $100,000 for firing her after she discussed her salary with other employees. The National Labor Relations Board had ruled a week prior that her conduct was protected activity under the National Labor Relations Act and that her discharge constituted an unfair labor practice.

According to court documents, Jones & Carter executives testified during an administrative hearing that Ms. Teare had been fired for “harassing” other employees about their salaries, and not merely discussing them. An administrative law judge ruled in Ms. Teare's favor on Nov. 26, 2012, declaring that the company's policy regarding salary discussions among employees constituted an unfair labor practice under federal law.

The Board affirmed the ALJ's ruling on February 8, 2013. While Jones and Carter offered to reinstate the employee, she has declined the offer of renewed employment.

UC Irvine Symposium to Discuss World Without Unions: Matt Coker of the OC Weekly writes that UC Irvine has kicked off a two-day symposium discussing the possibility of a post-union society. In particular, academics and labor lawyers from across the nation have been asked to consider viable alternatives to collective bargaining or improvements that could be made to the Wagner Act. UC Irvine described the panels as follows:

The panelists present a range of ideas and approaches to the challenge. They propose to increase the voice of workers without unions and to increase transparency about workplace standards; they describe and generalize from alliances between labor and environmental groups to change local law regarding independent contractor status; they propose reforms of immigration law, changes in the structure of bargaining and union elections and changes the legal rights and obligations of unions in right to work states. 

The symposium promises to be a fascinating exercise for academics. However, it will be interesting to see whether any viable proposals come out of the two-day event. We will be following the developments and will keep you posted if any ideas of note come out of UC Irvine this weekend.
 

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Texas Legislature Introduces Secret Ballot Bills: Jess Davis of Law360 ($$) reports that identical bills have been introduced in the Texas House and Senate that would require labor union elections to be conducted by secret ballot. Furthermore, a majority of those who would be affected by union representation would have to sign on in order to approve union representation, as opposed to the current rule that only requires a simple majority of those voting. Texas Attorney General Greg Abbott heaped praise upon the legislation.

“By enhancing our existing protections for Texas workers and developing a Workers Bill of Rights, the initiatives announced today can help ensure that the state of Texas continues to be a national leader in job creation and economic prosperity,” Abbott said.

Labor leaders in the state decried the bill, saying it would have a negative impact on police and firefighters in particular. We here at @LRToday will keep you updated as this legislation moves forward.

MI Woman Files ULP Over Facebook Firing: Jonathan Lowe of WNEM.com reports that a woman in Saginaw, MI has filed unfair labor practice charges with the National Labor Relations Board against her former employer after being fired for comments she posted on Facebook. While the exact details are unclear at the moment, it appears that the former employee had made several disparaging comments about her employer on the popular social-networking site. When management discovered her postings, she was discharged.

If this case moves forward and is prosecuted by AGC Lafe Solomon, it could provide more needed-guidance regarding the Board's social media policies, which at the moment are unclear to say the least. We will be watching this case closely as it develops.

Labor Group in CA Pushing Immigration Reform: Andrew Galvin of the Orange County Register writes that members of the Orange County Labor Federation (OCLF) rallied in front of Anaheim City Hall yesterday in an effort to help stir up support for comprehensive immigration reform. The OCLF, in particular, is pushing for a path to citizenship for America's more than 11 million undocumented workers.

Tefere Gebre, executive director of the Orange County Labor Federation, which organized the event, said labor representatives will be "visiting every congressional office multiple times," activating a "heavy letter writing campaign" and running phone banks in a "good old grass roots campaign to do the right thing."

The OCLF has indicated that the rally was not a "press conference," but instead marked the beginning of a long and loud campaign advocating for reforms.

In related news, members of the AFL-CIO have been meeting with U.S. Chamber of Commerce advocates in order to come to an agreement regarding temporary visas for low-skilled workers. Thus far, little progress has been made. As any change in immigration policy will have a ripple-effect through the world of labor law, we will be following this story closely.

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St. Paul Orchestra Files Unfair Labor Practice Charges Against Management: Euan Kerr of Minnesota Public Radio reports that the American Federation of Musicians (AMF) has filed unfair labor practice charges against the St. Paul Chamber Orchestra's (SPCO) management. In particular, the charges allege that SPCO management has failed to adequately respond to an AMF information request regarding SPCO works being published online.

"To understand their proposal we need to know what those recording are, we need to know who was involved in the making of those recordings, we need to know who the guest artists were, and we have been asking for that information since September," [AMF President Ray] Hair said.

SPCO management responded in kind, alleging that the AMF has thus far refused to negotiate the issue in good-faith. Moreover, the SPCO management team expects the Board to vindicate its position.

MI Panera Bakers Working to Unionize: E.B. Solomont of the St. Louis Business Journal reports that bakers at a Panera bread franchise in Michigan are fighting against their employer in an attempt to unionize. The bakers have been working towards collective representation by the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (the Union) for over a year. Dan Wood, a baker leading the effort, had this to say:

 “I don’t want to hurt the company,” Wood told the Huffington Post. “I just want us to be recognized for what we are: the engine. You can’t buy anything from a Panera that we don’t touch.”

Officials at Panera's headquarters have issued a statement, saying that the company's goal is to treat all workers with respect. We will keep you posted as the situation unfolds.

NYC Drivers' Strike Called Off By Union: The Associated Press reports that the New York City school bus drivers' strike, which began over a month ago and has left more than 150,000 students stranded, has been called off by the Amalgamated Transit Union, Local 1181. Regular service is expected to resume this morning.

Driver Philip Pan proudly displayed a hand-written "welcome back" card on the dashboard of his bus. Pan says he and the people he serves are "like a family."

The strike was purportedly abandoned because New York City's leading mayoral candidates have promised to address drivers' job security concerns if elected. Interestingly, Mayor Michael Bloomberg had said previously that the drivers' requests for increased job protections were illegal under New York law.

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Saline Plant Workers File Charges Against UAW: Ben Freed of AnnArbor.com reports that automotive workers at the Faurecia plant in Saline, MI have filed unfair labor practice charges against the United Auto Workers. In pertinent part, the complaint states as follows: 

“The Union through its agents and representatives, has restrained and coerced employees of ACH by: 1. Since about October 1, 2012, misrepresenting to them the consequences of surrendering their ACH employment to take jobs with Devon Alpha Services; 2. On or about December 1, 2012, requiring ACH employees who accepted employment with DAS to execute membership applications and/or dues checkoff authorizations in order to collect their first paycheck with DAS.”

A spokesman for the UAW stated that the union was reviewing the charges and would not comment further.

Bozeman Nurses to Hit the Picket Lines: Lauren Maschmedt of NBCMontana.com reports that represented nurses at Bozeman Deaconness Hospital in Bozeman, MT are planning to picket this week to put pressure on the hospital during pivotal contract negotiations. The nurses, represented by the Montana Nurses Association (MNA), said their demands are simple.

"One of the issues that we really want to talk about is respect in the workplace" Johnson said. "We want some wording in our contract that would cover bullying and any intimidation."

Both sides, however, stress that the negotiations are happening in good faith and are working hard towards an amicable resolution. Further, the nurses have made it clear that they are not going on strike. New bargaining sessions are scheduled for this week.

VWR Employees Vote for Union Representation: The PR Newswire reports that workers at VWR in Visalia, CA have voted overwhelmingly in favor of representation by the Teamsters, Local 948. The now-unionized workers have expressed hope that collective bargaining will raise their wages up to industry standards.

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El Paso Nurses Choose NNOC as Bargaining Agent: Vic Kolenc of the El-Paso Times reports that nurses at Sierra Medical Center in El Paso, TX have voted to select the National Nurses Organizing Committee (NNOC) as their exclusive bargaining representative. The nurses voted Tuesday, with the union winning by about 40 votes (113-74).  A Sierra spokesperson expressed her disappointment with the union's victory, but promised to negotiate in good faith with the newly-minted union.

"Sierra Medical Center believes what's best for employees and management is working together without the involvement of a third party," Garcia said. "It has always been our position that the hospital offers competitive wages and benefits, and management promotes a positive work environment."

A union spokeswoman, however, expressed her excitement with the victory, claiming that El Paso is now a "union town" for nurses.

NYC Accepting Driver Bids Even Though Strike Continues: Phil Corso of the Queens Times-Ledger reports that the New York City Department of Education (DOE) has begun the process of reviewing bids from several bus companies over the more than 1,100 bus routes that went out in late December, even though the city is still dealing with the Amalgamated Transit Union (ATU) school bus drivers' strike, which is now almost a month old.

The city is hoping that the new round of bids would save millions of dollars in the long term because any new bids will not include driver job protections, which has become a major sticking point in negotiations between the city and the ATU. The union has asked the mayor to suspend bidding and put ATU employees back on the job.

“The mayor has the power to put our drivers and matrons back to work,” said Michael Cordiello, president of ATU Local 1181. “All we ask is that he suspend the bids and is willing to discuss ways to reduce costs within the school bus transportation industry, which the union has shown has nothing to do with keeping the most experienced school bus crews on the road.”

Workers Push Back Against Activist Union: Ira Kantor of the Boston Herald reports that workers at Complete Cleaning, Inc. in Lynn, MA have won a settlement after filing a complaint with the National Labor Relations Board against the Services Employees International Union (SEIU), Local 615. The complaint alleged that SEIU officials had attempted to claim a monopoly over Complete Cleaning employees' bargaining rights.

“Massachusetts needs a Right to Work law to make it less difficult for workers to keep predatory union bosses in check,” said Mark Mix, president of the National Right to Work Legal Defense Foundation.

The settlement also requires the SEIU to stop attempting to claim bargaining power until it can affirmatively show that it has the support of a majority of employees at Complete Cleaning.
 

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Bronx Car Wash Employees End Three-Month Strike: Jennifer Cunningham of the New York Daily News  reports that car wash workers at Sunny Day Car Wash in the Bronx, NY, have returned to work after three months of striking. The workers walked off the job in early November after not receiving wages for several weeks.

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It was going to be hard to top 2011 in terms of unique and dynamic labor law developments. But 2012 may just have lived up to the task.

Seeking to ensure that the Board would have a quorum to operate during the year, on January 4, 2012, President Obama attempted the "recess" appointment of three members.  Despite the controversy swirling about these appointments, the Board continued apace to expand the rights of employees and unions under the National Labor Relations Act.  Among the more notable results were the invalidation of class waivers and mandatory arbitration agreements; the further diminution of the facility-wide presumption in organizing cases; and a number of decisions tilting the balance in collective-bargaining negotiations.  At the same time, the Acting General Counsel continued to pursue an expansive agenda -- issuing numerous new complaints and explanatory memoranda in social media cases.

The courts, however, dealt the Board a series of blows throughout the year, dismissing the Board's challenge to Arizona's secret ballot amendment; and invalidating the Board's rule-making on required notice-posting and "quickie elections".  But no court action carried as much import as the January 2013 Noel Canning decision by the Circuit Court of Appeals for D.C. which declared the President's "recess" appointments unconstitutional, and found that the Board lacked a quorum to act throughout 2012.

The labor attorneys here at Labor Relations Today have been following these significant developments every step of the way. Today we are publishing "Labor Law in 2012: A Year in Review." This brief summary highlights some of the most noteworthy developments in 2012. We hope you find it a helpful resource as we head into what is certain to be one of the most interesting years in labor law in some time.

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The National Labor Relations Board Office of General Counsel announced last week that a strike by union bus operators against a group of New York school bus companies does not violate the National Labor Relations Act. The Division of Advice opined Local 1181-1061 of the Amalgamated Transit Union has a primary labor dispute with the employers.

The charge alleged the strike was unlawful secondary activity because the union’s primary dispute was with the New York Department of Education, which contracts with the bus companies on behalf of New York City schools. In a February 1, 2013 Advice Memorandum, however, the General Counsel found that the bus companies were, in fact, the primary employers in the labor dispute.

The designation was not mutually exclusive, as the Memorandum suggested the Department of Education might also be an employer:

...the Union also has a primary labor dispute with DOE, a point on which both the Charging Party Employers and the Union agree. They do not contradict or undermine the Union’s primary labor dispute with the Charging Party Employers as to whether a condition of employment (the EPPs) will be included in the parties' new collective-bargaining agreement. In this regard, it is well established that more than one employer may be a primary employer under Section 8(b)(4), particularly where, as here, one of the employers (DOE) has inserted itself in a “basic area” of the other employer’s labor relations, i.e., the provision of EPPs covering the Charging Party Employers’ employees.

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5th Circuit Poised to Hear Class-Waiver Appeal: Abigail Rubenstein of Law360 ($$) reports that the Fifth Circuit Court of Appeals will hear oral arguments on Tuesday in the appeal of the National Labor Relations Board's decision in D.R. Horton, 357 NLRB No. 184 (3 Jan. 2012). In D.R. Horton, the Board controversially held that the company's workers could not be compelled as a condition of employment to sign an arbitration agreement containing a class-action waiver. The ruling seemed to fly in the face of the Supreme Court's ruling in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011).

Furthermore, the court will also entertain whether the Board constituted a quorum when it made its ruling in 2010. Recently, the D.C. Circuit held that the Board had fallen below a quorum because President Obama's purported intra-session recess appointments of Board members was an invalid exercise of executive power.

“It's a big case that has gotten bigger because of this constitutional issue,” said Ronald Meisburg of Proskauer Rose LLP, a former NLRB general counsel and board member.

We here at @LRToday will be watching this decision closely because of the major implications it could have on the world of labor law. We will keep you posted as developments occur.

Board Approves of NYC Bus Drivers' Strike: Deborah Young of the Staten Island Advance reports that the National Labor Relations Board on Friday dismissed a request for an injunction filed by the New York City School Bus Contractors' Coalition that would have put a stop to the now several-weeks old New York City school bus drivers' strike.

"The bus companies will continue to do everything we can to get the buses rolling so we can get New York City's school children back to school safely," said Jeffrey Pollack, the chief labor attorney for the New York City School Bus Contractors Coalition, which filed the action. "We believe the NLRB's decision is incorrect and plan an immediate appeal.

Union leaders, however, expressed hope that the Board's ruling would incentivize the Coalition and the City to seek ways to end the strike. Now in its third week, the bus drivers' strike has affected over 150,000 school children, with disabled students feeling the brunt of the impact. We will keep you posted as this situation develops further.

Republican Senators Urge Board Members to Resign: Political News has published a letter from Senator Orrin Hatch (R-Utah) and signed by 39 other Republican Senators insisting that National Labor Relations Board Members Sharon Block and Richard Griffin resign immediately from the Board.

In the letter, Senator Hatch makes reference to the D.C. Circuit's recent ruling in Noel Canning, which held that President Obama's intra-session recess appointments to the Board were unconstitutional. As such, Members Block and Griffin are not valid Board appointments and should “withdraw from all Board activities and stop drawing salaries and other benefits associated with the positions you purport to hold.”

The Board will most likely appeal the Noel Canning decision, so this is certainly not the last we've heard regarding President Obama's recess appointments. We will keep you posted as new issues develop.

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Union Settles With Board Over Wal-mart Protests: Bill Donahue of Law360 ($$) reports that the United Food and Commercial Workers International Union (the UFCW) has settled a complaint filed against it by Wal-mart relating to last year's Black Friday protests. Under the terms of the agreement, the UFCW agreed to suspend all picketing for sixty days. Further, "Our Wal-mart", a subsidiary of the UFCW, agreed not to attempt to further organize Wal-mart workers.

“Our Wal-Mart is an organization of Wal-Mart workers from across the country who, along with many supporting organizations, calling on Wal-Mart to improve labor rights and standards for its employees,” the union said in letter outlining its commitments. “Our Walmart has no intent to have Wal-Mart recognize or bargain with it as a representative of Wal-Mart employees.”

A spokesman for the National Labor Relations Board was pleased that the case settled, but noted that proceedings would remain open in order to ensure compliance with the terms of the settlement.

Vegas Cab Company, Drivers Reach Impasse in Negotiations: The Las Vegas Review-Journal reports that Yellow Checker Star Corporation, Las Vegas' second-biggest cab company, has imposed its last best offer on the city's cab drivers. The drivers, represented by the Industrial Technical Professional Employees Union, did not substantively respond other than to state that they were in the process of weighing their options.

The new contractual terms are scheduled to go into effect on Sunday. Drivers will receive more unpaid leave days, as well as increased pension contributions. Further, the drivers' bonus pools will also be increased.

NFLPA Head Says Player Safety Top Priority: Steve Ginsburg at Reuters reports that the National Football League Players' Association (NFLPA) has stated that it has a number of issues it wishes to address with the NFL regarding player safety. NFLPA President DeMaurice Smith, in announcing a $100 million grant to Harvard University, said that the players are demanding that the NFL create the position of "chief safety officer" that would be tasked with overseeing league safety protocols.

"If we ... see eight, 10, 12 players who have suffered a concussive event on the sideline and we know that the sideline concussion protocol takes at least seven minutes, if we then see that player put back in the game 45 seconds later, we know that the sideline doctors have failed to employ the very protocol that we agreed to use," he said.

Smith also demanded that the league perform background checks on its medical personnel to determine whether they have ever been subjected to malpractice litigation, but so far the league has resisted.

"It is time for us to seriously contemplate what are our players rights at work," said Smith. "I believe our players are entitled to the best medical care in the country.

The league and the Players' Union signed a new collective bargaining agreement in the fall of 2011, which averted a potential season-ending shutdown. The union is hoping that its new proposals will be inserted into the CBA as amendments. We will keep you posted as these issues move forward.

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Right-To-Work Amendment Fails in VA Senate: Natalie Rodriguez of Law360 ($$) reports that a proposed amendment to the Virginia state constitution has failed in the Senate. The amendment, proposed by Sen. Richard Black (Republican), would have made Virginia a "Right to Work" state. The amendment would have prohibited a labor union from denying a non-member the right to work alongside that union.

“In a victory for Virginia's working families, a 'right to work' for less measure has failed in the state senate on a 20-20 tie vote ... Adding right-to-work to the constitution would have further entrenched a harmful policy already existing in Virginia state law,” the Virginia chapter of the AFL-CIO said in a statement on Monday.

The attempted Virginia amendment follows similar successful efforts in Michigan and Indiana. Further, similar right-to-work legislation is currently working its way through the Pennsylvania legislature. We will keep you updated as this legislation moves forward.

Outrage on NY Bus Driver Picket Line: Eyewitness News 7 reports that heated protests are occurring this morning on the picket line set up by New York City school bus drivers who are on strike over job protection issues. Yesterday, union officials and bus company management met at Gracie Mansion in an effort to end the nine-day strike. Furthermore, the National Labor Relations Board is currently examining the legality of the labor strike. A decision from the Board is expected in the coming days.

N.M. Hospital Staffing Issue to be Heard by NLRB: Phaedra Haywood of the Santa Fe New Mexican writes that an Administrative Law Judge will today entertain unfair labor practice allegations filed against Christus St. Vincent Regional Medical Center. The allegations stem from a dispute last summer wherein the Hospital refused to provide the National Union of Hospital and Health Care Employees (the Union) with certain information the union had requested regarding Hospital staffing needs.

Union officials and the Hospital have repeatedly been at odds in recent years over staffing levels, with the Union maintaining that the Hospital is dangerously understaffed. The two parties are currently in settlement talks which, if successful, would void the need for a Board hearing.

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Philly Firefighters Allege CBA Violation in Lawsuit: Ama Sarfo of Law360 ($$) reports that Philadelphia firefighters, Local 22 filed a lawsuit against the city last Friday alleging breach of the collective bargaining agreement governing the parties' relationship. The Union complains that the city failed to provide adequate notice of the upcoming fire battalion chief exams and four candidates missed the chance to seek a promotion as a result.

 “Local 22 and its bargaining unit members are offended by the city’s outright repudiation of its agreement and related practice, which demonstrates and reinforces the city’s unqualified contempt and disrespect for the union as an employee organization, and the rights and interests of its affected members,” the complaint says.

The lawsuit is seeking an injunction that would prevent the city of Philadelphia from proceeding with the exam in dispute. The city was asked for comment, but a spokesman said it was the city's policy not to comment on pending litigation.

Sen. Johanns Calls on Board Members to Resign: The Norfolk Daily News reports that Senator Mike Johanns, a Nebraska Republican, has called on Sharon Block and Richard Griffin, the two National Labor Relations Board members appointed under President Obama's now-invalidated recess appointments, to resign. Sen. Johanns has also written a letter to the Government Accountability Office in an attempt to unwind all new regulations that the Board has promulgated since the appointments were rendered.

"This isn’t about politics or the qualifications of the individuals involved,” Johanns said. “It’s about upholding the checks and balances enshrined in our Constitution. The only way to lift this cloud is for these appointees to immediately resign the posts they have unconstitutionally held for more than a year.”

The fallout from last Friday's ruling, discussed in blog posts below, will continue in the following weeks and months as the mess is sorted out. We will keep you posted as the situation unfolds.

Bus Drivers and Company Officials Plan to Meet: NY1 News reports that representatives of the striking New York City school bus drivers and company officials are set to meet today at Gracie Mansion in an attempt to settle the drivers' strike. The strike is beginning its' third week and has affected over 150,000 students who rely on public transportation to get to school. The talks are not expected to be productive, however, because the Union has insisted that the strike will continue until the city provides the drivers with greater job protections. The city, in turn, has responded by stating that such job protections would be illegal.

The National Labor Relations Board held a hearing last week to determine the validity of the drivers' strike. A ruling is expected in the coming days. We will certainly keep you posted as the case develops.

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Former Head of SEIU Allegedly Embezzled Dues: Ciaran McEvoy of Law360 ($$) writes that a federal prosecutor in California told jurors in the trial of former Service Employees International Union (SEIU) chief Tyrone Ricky Freeman that Freeman had embezzled union-members' dues by taking trips and committing other fraudulent acts. Freeman, indicted in July of 2012, is charged with 14 criminal counts, including mail fraud, making false statements, and embezzlement. Freeman's lawyer urged the jury in his closing statement to find reasonable doubt.

“There's not remotely enough [evidence] here to conclude that Mr. Freeman embezzled union funds beyond a reasonable doubt,” [Mr.] Kramer said, adding that Freeman was entitled to an acquittal if he acted in good faith while spending the money as Local 6434 president.

Freeman's wife, Pilar Planells-Freeman, has already pleaded guilty to a misdemeanor count of failure to file an income tax return and was sentenced to three-years' probation.

Union Membership at 70-Year Low: Tom Tillison of the BizPac Review writes that despite a pro-Union president and a very pro-labor National Labor Relations Board, union membership has reached a 70-year low. Citing a Detroit News study, Tillison reports that unions have lost 400,000 members in the past year. The current percentage of U.S. workers in a union is down to 11.3%, which is the lowest level since the 1930s.

Union Officials Pushing Bloomberg to Negotiate With Striking Bus Drivers: Lindsey Christ of NY1 reports that elected officials and union advocates held a demonstration near New York City Hall yesterday, demanding that Mayor Michael Bloomberg meet with officials representing New York City's school bus drivers in order to settle the current drivers' strike. The Amalgamated Transit Union, Local 1181  has been on strike since last Wednesday and is currently holding picket lines in various locations across the five boroughs.

"We're conducting a civil strike," said Jimmy Hedge of the executive board of Local 1181. "We move away from the driveways when the buses move out. They're told, 'Please do not get arrested, please do not do anything that you're going to be sorry for later, or make us look bad in the long run.'"

The National Labor Relations Board is also currently hearing arguments related to the strike and could enter an injunction to end the labor dispute and put drivers back to work. We will keep you posted as this case develops further.
 

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Board to Hear Challenge to Bus Strike: Ben Chapman of the New York Daily News reports that the National Labor Relations Board will hear the New York bus companies' challenge to a labor strike by New York City school bus drivers today. After the Board hears from both sides, it will rule on the legality of the strike, which began last week and has affected over 150,000 children.

The Amalgamated Transit Union, Local 1181 called the strike last Wednesday in protest over a lack of job protections for its drivers.

New York Times Weighs in on "Social Net Speech": Steven Greenhouse of the New York Times has written an interesting analysis concerning several recent National Labor Relations Board decisions regarding protected online speech. Greenhouse examines numerous Board decisions and concludes that, per the Board, workers are now able to freely discuss working conditions online without threat of retribution.

“Many view social media as the new water cooler,” said Mark G. Pearce, the board’s chairman, noting that federal law has long protected the right of employees to discuss work-related matters. “All we’re doing is applying traditional rules to a new technology.”

Other commentators, however, argue that the Board's new policies regarding social media are difficult to apply.

“The board is using new legal theories to expand its power in the workplace,” said Randel K. Johnson, senior vice president for labor policy at the United States Chamber of Commerce. “It’s causing concern and confusion.”

This area of law will continue to evolve as new cases are decided. We will certainly keep you posted.

SEIU-Affiliated Security Guards to March in Protest of ULPs: WTNH Connecticut reports that private security guards represented by 32 BJ, an affiliate of the Service Employees International Union (SEIU), are planning a march through downtown Hartford to protest alleged union surveillance by SOS Security, a company based in New Jersey. The guards filed a complaint with the National Labor Relations Board last month, complaining that the company engaged in illegal surveillance after an employee was threatened for supposedly engaging in union-organizing activities.

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Board Ruling Could End Bus Drivers' Strike: NY1 news reports that bus company owners involved in the New York City school bus drivers' strike have filed a complaint with the National Labor Relations Board over the legality of the drivers' strike. The Board will hear testimony on Tuesday and could end the strike as early as Wednesday, if the strike is in fact declared illegal. The strikers have been picketing for almost a week, with their major demand being increased job protections for senior drivers. The City's current position is that it would be illegal for the bus companies to grant such protections. We will keep you updated as this case proceeds before the Board.

Chicago Tribune Praises Board Ruling on Charter Schools: The Editorial Board of the Chicago Tribune has heaped praise on the National Labor Relations Board's ruling that the Chicago Math and Science Academy (CMSA) should be considered a private institution subject to the Board's jurisdiction. The ruling essentially means that CMSA teachers can still unionize, but must do so under the Board's strict requirements instead of under state law proceedings.

This decision is an important victory for charter freedom and flexibility. It should help attract more quality charters to Illinois. Those schools are desperately needed. Ask the parents of 19,000 children who are on long waiting lists for a charter seat.

CMSA's 50 teachers have not yet held a vote as to whether to unionize. A representative of the teachers stated that they were examining their options.

Labor Unions Donate to Obama's Inauguration Fund: Fredreka Schouten of USA Today reports that several major labor unions have contributed sums to President Obama's inauguration fund. Those unions include the International Brotherhood of Electric Workers and the American Federation of Government Employees. While the Presidential Inauguration Committee was required to release its list of donors, it does not have to release any amounts received until April.

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Should Charter Schools be Treated as Private Entities?: Adam Emerson of the Fordham Institute has published an interesting article outlining whether it is really appropriate for the National Labor Relations Board to treat Charter Schools as private schools subject to federal labor regulations. Recently, the Board held that the Chicago Mathematics and Science Academy was essentially a private entity and was subject to the Board's jurisdiction. The State of Illinois had argued that the Academy was, for all intents and purposes, a public entity and could be regulated under state law.

You can’t have it both ways—and there is no third option (even if American society might benefit from such a thing). You cannot, on the one hand, argue that charter schools are not governmental subdivisions for purposes of escaping hostile state labor laws and sundry public regulations and then turn around and urge the IRS to stick with its assumption that charters are “agencies or instrumentalities of the state” to assure that charter employees can benefit from government retirement plans.

While the Board's decision was limited to one school in Chicago, this case could have major implications regarding charter schools in general. We will certainly keep you posted as this issue will certainly come up again as teachers continue to organize.

Need for Cost Controls at Nation's Ports Causing Labor Disputes: Ernest Scheyder at Reuters reports that the recent increase in labor disputes at various ports across the country has resulted from the need for employers to cut costs and reduce their workforce. U.S. productivity levels lag badly behind those of other countries, with Scheyder projecting that it takes 20 U.S. workers to do the work of 5 or fewer workers in other parts of the world.

"Everyone wants to reduce their cost and that means lower wages or fewer people," said a senior executive at a major West Coast container terminal operator who spoke on the condition of anonymity so as not to affect future negotiations with labor unions.

Earlier this year, dock workers in Los Angeles and Long Beach struck for 8 days. While the actual work-stoppage was relatively short, its ripple-effect across the economy cost several billion dollars. Employers are looking to increase productivity, while dock workers are striving for increased benefits. We will be following these issues as they develop further.

School Bus Drivers' Strike Continues: NY1 news reports that the New York City school bus drivers' strike has entered a second day. Neither side has made any indication that they are willing to budge, and no talks are currently scheduled. The Mayor's office has reported that school attendance was slightly below average yesterday. However, among special needs children, attendance was down almost 30 percent.

The bus companies are in the process of hiring replacement drivers and have also filed a complaint with the National Labor Relations Board in an attempt to end the work-stoppage. Mayor Bloomberg's office stated that the Mayor hoped the strike would end soon and that the city could not meet the union's demands for increased job protections because doing so would be illegal.

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Retail Groups File Brief With Board Arguing Against "Micro-Unions": Stewart Bishop of Law360 ($$) reports that two retail groups have filed a brief with the National Labor Relations Board in support of a challenge by Macy's, Inc. to a Board Regional Director's recognition of a "micro-union" at one of its Massachusetts stores. The Retail Industry Leaders' Association (RILA) and the Retail Litigation Center (RLC) argue that the NLRB should return to its former presumption favoring whole-store collective bargaining units.

Such a change in favor of micro-unions “would serve to balkanize the structure of the employer’s business, adversely affecting amici’s members and their businesses, complicating labor relations and collective bargaining, threatening to embroil customers and other members of the public in labor disputes, and building in delay and increased costs in the board’s currently fair and efficient representation process,” the brief said.

A retail store composed of multiple independent bargaining units would have an adverse effect on morale, as well as on business, the parties continued. Further, it would arguably undermine the Board's preference for "stable labor conditions."

Case Against Hyatt Regency Goes to Hearing: Jamie Smith Hopkins of the Baltimore Sun reports that the NLRB has begun making its case against the Hyatt Regency Baltimore, alleging multiple unfair labor practices in response to a union organizing campaign. The complaint, filed last November, contends that the hotel began interrogating employees and "invoking harsh discipline" upon learning of the potential organizing campaign. 

"It's a classic nip-in-the-bud case," said Sean R. Marshall, a senior trial attorney for the board.

However, the hotel said in a statement that it believed it would ultimately prevail over the charges. We will certainly keep you updated as the case moves forward.

Union States School Bus Drivers Strike to Begin Tomorrow: Courtney Gross of NY1 reports that the President of the Amalgamated Transit Union Local 1181 (ATU) has stated that New York City school bus drivers will go on strike as of Wednesday morning. The strikers are demanding that the City include certain employee protection clauses in its contracts with bus drivers. Mayor Bloomberg released a statement of his own upon learning of the ATU's decision to strike.

"The union is abandoning 152,000 students and their families who rely on school bus service each day. We hope that the union will reconsider its irresponsible and misguided decision to jeopardize our students' education."

Fortunately for parents and students, the City has come up with a contingency plan. Metro Cards will be distributed to regular bus riders during the school day, which will hopefully result in minimal disruption for the students and the schools. Parents and students, however, are somewhat skeptical.

"If we can't go on the school bus, how are we going to get to school?" asked a student.

We here at @LRToday have been following this story closely and will keep you updated as it unfolds further.

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Pacific Beach Hotel, Workers Reach Deal to End 10 Years of Labor Unrest: Howard Dicus of Hawaii News Now reports management officials at the Pacific Beach Hotel in Honolulu, HI and its workers have reached an agreement to end 10 years of labor strife. The contract, which the ILWU stated was ratified by 99 percent of workers, is for four years and guarantees a 13% raise for employees over the term of the agreement. The negotiations were often tense, with union officials filing unfair labor practice complaints with the National Labor Relations Board on several occasions.

"We thank the many people and organizations from Hawaii and around the world who came forward to support this struggle," said ILWU International Vice President Wesley Furtado in a statement.

Worries Over Potential School Bus Drivers' Strike in NYC: NY1 news reports that parents of school-aged children in New York City are gearing up for a potential school bus drivers' strike. The possible labor protest is apparently in response to the drivers' employers' failure to meet increased demands for job protection.

Schools Chancellor Dennis Walcott says the state's highest court ruled the city can't give those protections. "This is a strike against our children. It is illegal as far as what they're asking us to do and they are hurting our most vulnerable children and it is totally unacceptable," Walcott said.

While parents' concerns are certainly justified, the union has stated that it will provide the companies with at least 24 hours notice before walking off the job. We will certainly keep you posted with any new developments.

Palermo Pizza Organization Efforts Receive Cash Injection from United Steelworkers: Jeff Engel of the Business Journal of Greater Milwaukee reports that United Steelworkers Local 675 out of Carson, CA has been donating $500 a month to the union organizing effort currently occurring at Palermo Pizza. Dozens of Palermo workers have been striking since June in protest against allegedly unsafe working conditions. The strikers are also seeking pay raises and other unspecified management concessions.

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Lawsuit Alleges Member Griffin Complicit in Embezzlement Cover-Up: Lachlan Markey at the Washington Free Beacon reports that a lawsuit filed in California federal court accuses National Labor Relations Board member Richard Griffin of being complicit in a plot to cover up acts of embezzlement at the International Union of Operating Engineers (IUOE). The lengthy complaint, which can be found HERE, also alleges violations of the Racketeer Influenced and Corrupt Organizations Act (RICO Act).

The suit seeks over $5million in damages for a number of RICO Act violations, as well as violations of the Labor Management and Disclosure Act. A Board spokesman referred requests for comment to Griffin's attorney, who has called the allegations "preposterous." 

This is not the first time that Griffin has been in some hot water. Back in July of 2012, Senator Orrin Hatch (R-Utah) sent Griffin a letter requesting information regarding any ties Griffin may have had with IUOE members who have been convicted of crimes. We will certainly keep you posted on any developments in this case.

Hockey is (Almost) Back: The X's and O's of the New Collective Bargaining Agreement: Donnie Tasser of the Pitt News has laid out the major terms that the National Hockey League and the Players' Association have agreed to in order to end the current lockout. Pucks are tentatively set to drop on January 19, 2013 on a 48-game season. While players and owners still need to ratify the deal, at this point signing the agreement seems to be nothing more than a formality.

Both sides made several major concessions in bargaining in order to reach an agreement. In particular, the division of revenue between players and owners has dropped from 57/43 to an even 50/50 split. The NHL also agreed with the Players' Association that player salary variances would be capped at 35%.

Local Alro Steel Union Members to Vote on De-Unionizing: Jeff Engel of the Milwaukee Business Journal reports that production employees at Local Alro Steel in Wauwatosa, WI will vote this Thursday on whether or not they wish to remain represented by the United Steelworkers, AFL-CIO. The 34 employees voting had filed a petition with the National Labor Relations Board on December 7, 2012, seeking a decertification vote. The current collective bargaining unit governing the employees expires in November of this year, so there is a possibility that the employees could shop around for new representation.

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District Court Judge Frederick J. Martone yesterday issued an Order granting summary judgment to the State of Arizona in the National Labor Relations Board's lawsuit challenging an amendment to the state's constitution. Back in May of last year, the NLRB filed suit against Arizona seeking a Declaratory Judgment proclaiming that Arizona Constitution Article 2 § 37 is pre-empted by the National Labor Relations Act. Article 2 § 37 of the Arizona Constitution, approved by voter referendum on November 2, 2010, states:

[t]he right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.

The Court analyzed the Board's claim under the general rules of preemption originally set forth in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 79 S. Ct. 773 (1959). Garmon held:

[w]hen it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the [NLRA], or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield.

The Court here, however, asserted that it was unable to conduct the required balancing test due to the wide variety of possible factual circumstances in which Arizona Constitution's requirements might or might not overlap with § 9 of the NLRA, which pertains to the designation and selection of a bargaining representative; and, subsequently with enforcement of § 7 or 8 rights.
The Order reads:

On its face, Article 2 § 37 does not address who must hold secret ballot elections, who must ensure that these are conducted appropriately, and when in the course of union organizing these must occur. It guarantees the right to election by secret ballot, a process that the NLRB itself must follow when it determines an election is needed. See 29 U.S.C. § 159(c)(1) ("If the [NLRB] finds. . . that such a question of representation exists, it shall an election by secret ballot direct ") (emphasis added). It is possible that state litigation invoking Article 2 § 37 may impermissibly clash with the NLRB's jurisdiction to resolve disputes over employee recognition, conduct secret ballot elections, and address unfair labor practices. But because we are presented with a facial challenge to a law for which there "is a basic uncertainty about. . . how it will be enforced," it "would be inappropriate" for us to assume that Arizona courts will construe, and enforce, Article 2 § 37 "in a way that creates a conflict" with the NLRA. See Arizona , 132 S. Ct. at 2510. Thus, we cannot conclude as a matter of law that Article 2 § 37, on its face, is preempted by the NLRA. Our ruling today, however, should not be construed to foreclose as-applied challenges if and when they materialize.

In other words, this will not likely be the last word on the issue. One might certainly expect a test case pushed by a labor union seeking voluntary recognition. The NLRB was quick to issue a statement today suggesting the Court recognized that federal law contemplates alternative methods of union designation, but did not have the facts before it upon which to rule:

“Our objective from the beginning was to ensure that employees protected by our law continue to have the same options for choosing representation that they have always had,” said NLRB Chairman Mark Gaston Pearce. “Although we continue to believe that a preemption finding should have been made, we are very pleased that the court recognized that these choices are guaranteed to employees by federal law and cannot be taken away by the states.”

On the other hand, the Goldwater Institute, which authored the secret ballot language on which the Arizona amendment was based, highlighted the Judge's indication that even once the state authority is invoked in an actual case, the courts will need to perform the balancing test to determine if the federal scheme should trump state interests:

“Today’s ruling is a huge victory for federalism and the authority of states to protect the rights of their citizens,” declared Clint Bolick, Goldwater Institute Vice President for Litigation. “In the backdrop of continued power grabs by federal agencies like the NLRB, this ruling affirms that vital protections such as the right to secret ballot can remain in place.”

Depending on the outcomes of November's elections, we might also see a renewed legislative push for amendment of the NLRA to clarify the role of the secret ballot one way or another. During 2011, Senator Jim DeMint (R-SC) and Rep. Phil Roe (R-TN) both introduced the Secret Ballot Protection Act -- federal legislation similar to the state amendments at issue here.

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The Georgia State Senate Insurance and Labor Committee voted unanimously in favor of a bill that would prohibit mass and targeted picketing of private residences and require employers to post notices informing employees of their right to work without joining a labor union.

Picketing of Residences

Georgia Senate Bill 469 proposes to amend the Georgia code section relating to labor organizations and labor relations, which already prohibits mass picketing "at any place." The amendments would clarify that the prohibition on mass picketing includes private residences, and would prohibit any individual or organization from picketing a private residence:

that has or intends the effect of interfering with the resident's right to quiet enjoyment, or when such targeted picketing has or intends the effect of violence or intimidation.

The proposed prohibition comes on the heels of last year's well-publicized picketing by the Communications Workers of America of the residence of Verizon CEO Lowell McAdam (slide show here), as well as the Occupy movement's picketing outside the residences of General Electric's and Wells Fargo's CEOs. Fourteen Fortune 500 companies are headquartered in Georgia, and 32 Fortune 1000 businesses make Georgia their home base. Moreover, Atlanta is second only to New York and Houston in the number of Fortune 500 headquarters.

The bill would not apply to private residences that are also places of employment "when targeted picketing relates to or is targeted at such employment."

Notice of "Right to Work" Rights

In addition, perhaps inspired by the National Labor Relations Board's impending notice-posting rule, Senate Bill 469 also seeks to require private employers to:

post adequate notice informing employees of the rights under this Code section [i.e., the right to work without having to join a union or pay union dues and the right to decertify a union] at locations where notices are normally posted or, if no such normal location for posting exists, physically disseminate such notice to employees. A private employer may also, at its discretion, post such notices on the company's intranet or disseminate them via other electronic means of communication.

Finally, Senate Bill 469 would not allow employers to deduct union dues from an employee's wages unless the employee provides annual written authorization.

Potential Challenges

If Senate Bill 469 is ultimately enacted, it is likely to be challenged on constitutional and preemption grounds. However, it appears that the prohibition on targeted picketing of residences is likely to survive any constitutional challenge based on the First Amendment. The Supreme Court has held that municipalities can prohibit targeted picketing of residences without violating the First Amendment because "[e]ven protected speech is not equally permissible in all places and at all times." Frisby v. Schultz, 487 U.S. 474, 479 (1988). While opponents of the bill might claim that it is preempted by the National Labor Relations Act, the validity of that claim is questionable as it is well established that states can enact "right to work" laws, so it is doubtful that an ordinance requiring employers to notify employees of their "right to work" under state law is preempted by the Act.

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Regular readers of this blog have followed our coverage of the National Labor Relations Board's efforts to expand the protections afforded to employee use of social media.  Following the Acting General Counsel's recent issuance of a second report on social media cases, many of our co-contributors to “Think Before You Click: Strategies for Managing Social Media in the Workplace” weighed in, expressing various degrees of concern about the scope of that expansion.  There seems to be consensus, however, that the Board has been more inclined to protect employee social media posts -- even if they disparage or impugn the employer and/or its operations.

Well, perhaps observers hadn't actually seen anything yet...

In a February 1, 2012 decision, a New York state court judge ordered reinstatement of a teacher who had posted Facebook messages wishing that her fifth grade students -- "the devils spawn" -- would drown.  On June 22, 2010, a New York City public school student from a different school fatally drowned during a field trip to the beach.  The next day, from home, the teacher in question posted on her Facebook page: "After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!"  After one of her Facebook friends declared: "oh you would let little Kwame float away!" she responded: "Yes, I wld (sic) not throw a life jacket in for a million!!"

Following a complaint about the Facebook postings, a Special Commissioner conducted an investigation -- during which the teacher also was found to orchestrated an alibi, convincing a friend to lie and take responsibility for the postings.  The Department of Education sought her termination, which a hearing officer upheld following twelve days of hearing.  The teacher commenced litigation pursuant to N.Y. C.P.L.R. Article 78, asserting that the agency's determination was "without sound basis in reason and . . . without regard to the facts."  While the Court found the determination was not "arbitrary and capricious" under the applicable standards, it nevertheless held that petitioner's termination was "so disproportionate to her offense as to shock one's sense of fairness." 

While public sector employers may have long ago accepted the substantially higher standards to which they will be held by tribunals, some of the judge's reasoning could well find its way into broader application as the National Labor Relations Board and reviewing courts address these issues further. Even private employers and practitioners ought to consider how to address the issues questioned in this decision. One particular passage of note reads:

Indeed, with Facebook, as with social media in general, one may express oneself as freely and rapidly as when conversing on the telephone with a friend. Thus, even though petitioner should have known that her postings could become public more easily than if she had uttered them during a telephone call or over dinner, given the illusion that Facebook postings reach only Facebook friends and the fleeting nature of social media, her expectation that only her friends, all of whom are adults, would see the postings is not only apparent, but reasonable. While her reference to a child's death is repulsive, there is no evidence that her postings are part of a pattern of conduct or anything other than an isolated incident of intemperance.

The City recently vowed to appeal the decision, and keep the teacher out of the classroom pending further proceedings.

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Yesterday, the Supreme Court declined to hear a challenge to Los Angeles' Grocery Worker Retention Ordinance that imposes a 90 day transition period on grocery stores when ownership changes. The California Grocers Association ("Grocers") filed a lawsuit challenging the ordinance on various grounds, including the claim that the ordinance is preempted by the National Labor Relations Act.

The ordinance provides that during the transition period, purchasers of grocery stores 15,00 square feet or larger must hire the predecessor's employees with at least six months tenure. Moreover, the owner can only terminate those employees for cause during the 90 day transition period. 

The Grocers claim that the ordinance is preempted by the NLRA because it interferes with negotiations between employees and employers, deprives employers of the freedom to choose their own employees, and forces employers to become successor employers under the NLRA when the predecessor employees are represented by a union. Typically, an employer becomes a successor employer under the Act when the new employer hires a majority of the predecessor's represented employees. Successor employers must then recognize the union and either accept any existing collective bargaining agreement or bargain with the union for a reasonable period of time. However, employers that do not hire a majority of the predecessor's employees are not successor employers and thus do not have to recognize and bargain with the union. Accordingly, the Grocers asserted that by forcing new grocery store owners to automatically have the obligation to recognize and bargain with the union, the ordinance is preempted by the NLRA.

In July 2011, the California Supreme Court disagreed, and held that the NLRA does not preempt the ordinance:

On the subject of employee hiring and firing, the text of the NLRA is, with one notable exception, resoundingly silent. It neither guarantees nor prohibits the retention of employees; it does not affirmatively protect new employers‘ latitude to hire and fire whomever they please, nor does it address in any way the power of states and localities to regulate the subject....

This silence leaves unrebutted the initial presumption that Congress did not intend preemption. The NLRA‘s statutory text does not disturb state and local authority to address, as these entities see fit, matters of hiring and firing, authority traditionally recognized as a core incident of their police power.

It also rejected the Grocers' claim that the ordinance impermissibly intrudes upon federal successor employer determinations: 

Additionally, we can discern in the NLRA no clear and manifest congressional intent to foreclose indirect impacts on successorship. As with any preemption question, "'"[t]he purpose of Congress is the ultimate touchstone"'" (Metropolitan Life, supra, 471 U.S. at p. 747), and on this point we find neither textual nor historical support. Successorship is a question of federal common law because "[n]o provision of the [NLRA] even mentions successorship."

The United States Supreme Court's refusal to review the California Supreme Court's decision has implications beyond the grocers in Los Angeles. Shortly after taking office, President Obama issued Executive Order 13495 requiring federal contractors and subcontractors that are successors to certain government contracts to offer employment on a "first right of refusal" to employees (not including managerial or supervisory employees) employed under the predecessor contract whose employment would be otherwise terminated at the end of the predecessor contract. Many commentators have asserted that the executive order is preempted by the NLRA on the same grounds asserted by the Grocers in its unsuccessful challenge to the Los Angeles ordinance.

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On June 9, 2011, the nonprofit organization Save Our Secret Ballot and 34 individuals moved to intervene as defendants in the National Labor Relations Board’s lawsuit against the State of Arizona challenging Article 2 § 37 of the Arizona Constitution.  That state constitutional provision, passed by voter referendum last year, requires a guarantee of a secret ballot in any election for union representation. Save Our Secret Ballot is a nonprofit organization whose stated purpose is to educate the public on the continued need for a secret ballot for union recognition. Almost all of the individual intervenors are Arizona residents employed in the non-unionized, private construction industry.

In the lawsuit, the Board claims that Arizona Constitution Article 2 § 37 is pre-empted by the National Labor Relations Act. Article 2 § 37, approved by voter referendum on November 2, 2010, states: 

[t]he right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.

The Board's Complaint asserts that “[t]he NLRA permits but does not require secret ballot elections for the designation, selection, or authorization of a collective bargaining representative…” Accordingly, the Board argues that Arizona Constitution Article 2 § 37 ought to be preempted "insofar as it creates a parallel state enforcement mechanism for protecting employee representation rights that Congress assigned to the National Labor Relations Board."

Save Our Secret Ballot argues in its motion that it is entitled to intervene because it has acquired particular knowledge of legal and factual issues implicated by the Board’s lawsuit through its development of the ballot measure in Arizona and in other states. It also claims that Arizona’s interests are not identical to its own “because Save Our Secret Ballot’s interests include expanding the secret ballot protection in states beyond Arizona.” The motion further explains that the individuals should be allowed to intervene because:

the individual applicants will assert their personal rights under the First Amendment and the National Labor Relations Act…. Although the State has standing to defend individual rights established by its laws, see, e.g., Virginia ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d 598, 605 (E.D. Va. 2010); Florida ex rel. McCollum v. U.S. Dept. of Health & Human Services, 716 F. Supp. 2d 1120 (N.D. Fla. 2010), it does not have standing to assert individual federal constitutional or statutory rights. Those critical affirmative defenses may only be raised by the individual applicants.  

Save Our Secret Ballot and the individuals claim that amicus status is insufficient because it does not allow them to raise issues or arguments formally and gives them no right to appeal an adverse decision.  According to the motion, the State of Arizona will not oppose their request to intervene.

Several former Board officials, including one former Republican General Counsel who testified at a February 11, 2011 hearing before the House Committee on Education and the Workforce, have suggested that the Board's preemption theory has significant merit under these circumstances.  Other witnesses at that hearing encouraged that this dispute be resolved by Congressional action on the Secret Ballot Protection Act.  That Act, which would require secret ballot elections in federal union representation proceedings, was introduced by Senator Jim DeMint (R-SC) on January 27, 2011 and Rep. Phil Roe (R-TN) on March 15, 2011.

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Yesterday, Senator Lamar Alexander (R-TN) took to the floor of the Senate to introduce the "Jobs Protection Act" (S. 964).  The bill, co-sponsored by Senators Jim DeMint (R-SC) and Lindsay Graham (R-SC) and thirty-one other Republican Senators, would by Sen. Alexander's description:

• clarify that the NLRB would not be able to order an employer to relocate jobs from one location to another.

• guarantee an employer the right to decide where to do business within the United States.

• protect an employer’s free speech regarding the costs associated with having a unionized workforce without fear of such communication being used as evidence in an anti-union discrimination claim

The text of the bill, currently identified as "A bill to amend the National Labor Relations Act to clarify the applicability of such Act with respect to States that have right to work laws in effect" is not yet available online.  Senator Alexander last week, however, submitted a proposed amendment to a small business bill intended to accomplish the same stated intentions.  The Senator's comments today suggest that the stand-alone legislation may contain additional or broader language than the amendment previously submitted.  We should know shortly.

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The National Labor Relations Board this afternoon filed suit against the State of Arizona in the federal District Court for the District of Arizona.  Consistent with its previous announcement of its intent to do so, the Board is seeking a Declaratory Judgment proclaiming Arizona Constitution Article 2 § 37 pre-empted by the National Labor Relations Act. 

Article 2 § 37 of the Arizona Constitution, approved by voter referendum on November 2, 2010, states: 

[t]he right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.

After citing sections of the NLRA which pertain to the designation or recognition of a union representative, the Board's Complaint asserts:

The NLRA permits but does not require secret ballot elections for the designation, selection, or authorization of a collective bargaining representative where, for example, employees successfully petition their employer to voluntarily recognize their designated representative on the basis of reliable evidence of majority support, in accordance with Sections 7 and 9 of the NLRA, 29 U.S.C. §§ 157 and 159, or where a construction union seeks recognition from a construction employer in accordance with Section 8(f) of the NLRA, 29 U.S.C. § 158(f).

Moreover, argues the Board, the provision ought to be preempted "insofar as it creates a parallel state enforcement mechanism for protecting employee representation rights that Congress assigned to the National Labor Relations Board."

Following an earlier exchange of positions between the Board and four states on this issue, several witnesses at a February 11, 2011 hearing before the House Committee on Education and the Workforce encouraged that this dispute be resolved by Congressional action on the Secret Ballot Protection Act.  That Act, which would require secret ballot elections in federal union representation proceedings, was introduced by Senator Jim DeMint (R-SC) on January 27, 2011 and Rep. Phil Roe (R-TN) on March 15, 2011.

The State Attorneys General responsible for enforcing their states' secret ballot protection measures responded strongly to the initial threats by the Acting General Counsel to initiate litigation.  In the face of politically charged reactions to other recent choices, the Acting General Counsel is showing no signs of embracing a less aggressive approach going forward.

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Steven Greenhouse writes in the New York Times that the National Labor Relations Board plans to proceed with lawsuits against two of the four states it threatened earlier this year over state constitutional amendments to ban union recognition by card-check.  On January 14, 2011, Acting General Counsel Lafe Solomon advised the Attorneys General of Arizona, South Carolina, South Dakota and Utah that the National Labor Relations Act preempts constitutional amendments to require the use of secret ballots in union representation elections.  In response the states argued that the amendments support the current federal law and did not disrupt the federal regulatory scheme.  

In February, the Acting General Counsel replied to the states indicating that the Board would refrain from bringing suit while they discussed whether they could resolve the issue "without the necessity of costly litigation."  Now, Greenhouse reports the Board has indicated it will soon file federal lawsuits against Arizona and South Dakota seeking to invalidate the amendments: 

In a letter sent on Friday, the labor board told those states that it would invoke the United States Constitution’s supremacy clause in asserting that the state constitutional amendments conflict with federal laws and are pre-empted by those laws. One federal official said the lawsuits would be filed in the next few days.

The Board has suggested it might proceed against the other two states at a later date.  Greenhouse includes reaction from Arizona and South Dakota to the announcement: 

In an interview, Tom Horne, Arizona’s attorney general, criticized the board’s planned suit, saying, “I find it shocking that they do not believe in the fundamental principle of democracy that people have a right to a secret ballot.” He said that while federal pre-emption might apply to laws passed by Congress, it should not apply to the labor board’s decision allowing card check to be used in some unionization campaigns.

South Dakota’s attorney general, Marty J. Jackley, said he respectfully disagreed with the board’s analysis, adding that he did not believe the agency “has the authority under circumstances like this to sue a state.”

At a February 11, 2011 hearing before the House Committee on Education and the Workforce, several witnesses indicated that any preemption dispute over this issue could be resolved by Congressional action on the Secret Ballot Protection Act.  That Act, which would require secret ballot elections in federal union representation proceedings, was introduced by Senator Jim DeMint (R-SC) on January 27, 2011 and Rep. Phil Roe (R-TN) on March 15, 2011.

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Early last month, Politico's Ben Stein noted on his blog that recent events in Wisconsin had mobilized the labor movement in a way likely to have greater impact in the 2012 electoral cycle than previously anticipated.  They may have more immediate, direct impact on union activity in the state -- involving both public and private employers -- long before that. 

Today in Madison, Labor Notes is conducting a "Troublemakers School."   Its goal is described thus:

How do we build on the protests, protect what we have—and lay the foundation to fight for more? Led by experienced labor activists, our workshops will explore strategies to fight back and give you the hands-on skills to make it happen.

The idea is not just to talk about problems for a day and then go home, but to come up with specific plans in some areas, so that we can go out Monday morning and get to work organizing to build on what we've done. There will be ample time to assess what we've gained through our unprecedented activism of the last month.

A flier announcing the event describes course offerings further, including:

• Public Sector Workers and How to Fight Back (twice)
• Organizing Contract Campaigns in the Great Recession
• Labor-Campus-Community Solidarity
• Organizing: Nontraditional Approaches
• Immigration, Racism, Labor Movement History
• Art for Mobilization
• Media Engagement and Your Local
• Econ 101: Is Capitalism Working for Workers?
• Workers: Know Your Rights!
• Labor’s Electoral Strategy: Are We Getting What We Paid For?

Before the event began on Friday, April 1st, the Labor Notes website had already announced that the Saturday sessions were booked full, and encouraged people to attend earlier events.

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As Ohio's SB5 proceeds toward likely passage, and the protests continue in Madison, Wisconsin, the National Journal's Reid Wilson examines Labor's "precarious position in the political arena." 

After discussing the considerable power of unions in the Democrats' experiences during Pennsylvania's 2002 state elections, and early in Governor Howard Dean's 2004 presidential run, Wilson observes:

Then came 2008, when Obama, an upstart with little connection to the Democratic establishment, and labor specifically, was competing against two established brands.

Most major unions lined up behind then-Sen. Hillary Rodham Clinton, D-N.Y., or former Sen. John Edwards, D-N.C.; the first national union to endorse Obama, the plumbers and pipefitters union, did so on January 9, 2008, after Iowa and New Hampshire had already allocated their delegates. Obama won the Democratic primary with virtually no union help.

The lesson Obama’s team learned, according to Democrats close to the campaign, was that labor’s organizing methods on behalf of Clinton and Edwards were less effective than the organization Obama put together.

Politico's Ben Smith adds these thoughts on his blog:

This is certainly part of what drives Obama's refusal to do any lifting on the Employee Free Choice Act, the top union priority, and his reluctance to make concessions to labor in the health care legislation. 

I'd frame it a bit differently: He did wind up with quite a bit of union support, beginning with the backing of the key Culinary Workers union in Nevada, and particularly including the flood of cash from Andrew Stern's SEIU. But they only came on board after Iowa, and he'd barely courted most unions, and made none of the specific promises and commitments to them that Clinton and Edwards did.

Yet, he notes that the events in Wisconsin have mobilized the labor movement in a way likely to have greater impact in the 2012 electoral cycle than previously anticipated.

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The Acting General Counsel of the National Labor Relations Board has responded to the joint letter by the Attorneys General of Arizona, South Carolina, South Dakota and Utah proclaiming their intent to defend their state constitutions against any NLRB litigation to invalidate recent secret ballot amendments.

On Friday, January 14, 2011, the Acting GC advised the Attorneys General of these four states that he believed the National Labor Relations Act preempted their states' constitutional amendments to require the use of secret ballots in union representation elections.  He requested a response from the states within two weeks, and threatened a federal lawsuit unless the states stipulated that their secret ballot provisions were unconstitutional.

Last week, the states sent a letter back rejecting the Board's assertion and refusing to "stipulate to the unconstitutionality" of the state amendments.  The AGs' letter defended the significance of secret ballots in union representation elections, and urged the Board to reconsider its threat to litigate.

By letter yesterday, the Acting GC advised the four states:

As you have unanimously expressed the opinion that the State Amendments can all be construed in a manner consistent with federal law, I believe your letter may provide a basis upon which this matter can be resolved without the necessity of costly litigation.  My staff will shortly be in contact with the staff members you have designated to explore this issue further.

Employers in all fifty states should continue to follow these developments.  The results of these discussions should reveal a bit more about the extent to which the Board will seek to elevate alternative methods of designating a union representative.

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Last week, the California Court of Appeal for the Fifth Appellate District reversed a lower court's ruling and declared two state statutes protecting labor handbilling and picketing on private property to be unconstitutional when similar protections are not allowed for other speech.  In Ralph's Grocery Company v. UFCW Local 8, F058716, Sup. Ct. No. 09CECG00349 (Jan. 27, 2011), the lower court had denied the employer's request to enjoin the union from informational picketing in front of one of its stores.  In denying Ralph's request, the lower court relied upon Section 527.3 of the California Code of Civil Procedure (the Moscone Act), which limits the jurisdiction of state courts in addressing "labor disputes," and California Labor Code Section 1138.1(a), which expressly and strictly limits the ability of a court to issue preliminary injunctions arising out of labor disputes.

In appealing the denial, the employer argued that these statutes constituted "impermissible content-based discrimination" prohibited by the First Amendment of the U.S. Constitution. 

In last week's decision, the Court of Appeal agreed:

The actual impact of the statutes is to discriminate:  to provide a forum on both public and private property . . . for speech related to labor disputes . . . while not providing the same forum (for example) for speech . . . relating to the right not to be discriminated against based on race, sex, ethnicity, or sexual orientation; or for speech relating to the collection of signatures to generate change through the initiative, referendum, and recall process; or for speech relating to the exercise of the freedom of religion, each of which is also of significant importance to the public discourse of a free society.  It is that issue that concerns us:  The statutes select which views the state is willing to have discussed or debated.

More commentary and resources:

• "State statutes forbidding injunction of peaceful labor picketing are unconstitutional" -- Ross Runkel's LawMemo
• "Court Holds Labor Picketing Laws Unconstitutional" -- Metropolitan News-Enterprise
• "Calif. appeals court sides with grocery store in picketing dispute" -- LegalNewsline

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In case you missed the reference by Senator DeMint (D-SC) included in our post yesterday, the Attorneys General of Arizona, South Carolina, South Dakota and Utah have filed a joint letter in response to NLRB Acting General Counsel Lafe Solomon's recent invitation to address the constitutionality of the states' secret ballot amendments. 

The letter from the AG's begins:

Your Office wrote to each of us on January 13, threatening to file lawsuits challenging our States' constitutional provisions guaranteeing the secret ballot in elections for determination of employee representation. We reject your demand to "stipulate to the unconstitutionality" of these amendments. These state laws protect long existing federal rights, and we will vigorously defend any legal attack upon them. That the NLRB would use its resources to sue our States for constitutionally guaranteeing the right to vote by a secret ballot is extraordinary, and we urge you to reconsider your decision.

The voters of our States overwhelmingly support the laws that you threaten to challenge. Indeed, 86% of South Carolina's voters approved the amendment supporting secret ballots. Likewise, the voters in Utah, South Dakota, and Arizona approved constitutional amendments protecting secret ballots by votes of 60%, 79% and 61% respectively.

The states argue that the amendments support the current federal law that guarantees an election with secret ballots "if the voluntary recognition option is not chosen," and do not disrupt the federal regulatory scheme in any way.  The Attorneys General pledge to defend the provisions against lawsuits by the federal government and urge the Board to respect the decision of the States' voters. 

It would appear to be the Board's move.

More commentary and resources:

• "4 State Attorneys General Respond to NLRB Threat" -- Daily Herald (UT)
• "Union Card-Check Fight Escalates" -- Wall Street Journal
• "States Rebuff Federal Threat Over Union Laws" -- BusinessWeek

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Senator Jim DeMint (R-South Carolina) today introduced the Secret Ballot Protection Act (SBPA), a bill intended to "guarantee the right of every American worker to have a secret ballot election on whether to unionize."  While the full text is not yet available, versions of this bill introduced in earlier sessions of Congress would have made it unlawful for an employer to recognize or bargain with a union unless a majority of employees had voted for union representation in an NLRB-conducted secret ballot election.  The bill has been introduced repeatedly in previous Congresses during legislative battles over the Employee Free Choice Act.  Seventeen Republican cosponsors have joined DeMint to introduce the bill.

In an introductory press release, Sen. DeMint referenced EFCA directly:

“Last Congress, union bosses and their Democrat allies tried their best to deny workers their basic American right to a guaranteed secret ballot election....  Secret ballot voting is a basic American value that we must protect. This bill ensures every American worker gets to cast a secret ballot vote without pressure and fear of retribution from union organizers and coworkers looking over their shoulder. No American should be forced to join or pay dues to a union just to have the opportunity to work and provide for their family.”

The Senator's release also makes express reference to the recent letter sent by the Acting General Counsel of the NLRB to four states – South Carolina, Arizona, South Dakota and Utah -- regarding their state constitutional amendments making secret ballot elections mandatory:

The threatening letter was written by acting NLRB general counsel, Lafe Solomon, who has not been confirmed by the Senate. Today, the states responded to the board in a letter stating: “These state laws protect long existing federal rights and we will vigorously defend any legal attack upon them. That the NLRB would use its resources to sue our States for constitutionally guaranteeing the right to vote by a secret ballot is extraordinary, and we urge you to reconsider your decision.”

In a Washington Post piece earlier this month, I predicted that passage of either the Employee Free Choice Act or the Secret Ballot Protection Act would be nearly impossible in this Congress.  It isn't hard to see why.  While the SBPA would likely sail through the House, finding the thirteen Democratic Senators to break party ranks to pass a cloture motion on this will be difficult.   To be sure there were Democrats who opposed EFCA, but few of them staked a vocal, public position -- and some of them are no longer serving.  

Still, this bill may be an important contribution to a debate certain to continue, if not by legislation, certainly via the Board's administrative processes and the Courts -- namely, to what extent are alternative means of union recognition lawful, tolerated, inferior, encouraged or prohibited?

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Excerpt from today's Bloomberg.com, "Public-Worker Unions Confront U.S. Governors Over Benefits in Role Switch":

Pension Rollback

In New Jersey, with a projected $54 billion gap between assets in its pension and payments promised retirees, Republican Governor Chris Christie wants to roll back a 9 percent benefits increase enacted in 2001 and raise the retirement age to 65 from 62.

“Benefits are too rich and contributions are too small,” Christie said in his Jan. 11 State of the State speech. “The system is on a path to bankruptcy.”

Christie, 48, has also clashed with teachers. He’s sought to cap school-superintendent pay and wants salaries and tenure linked to student performance. The governor’s chiding of a teacher about union unwillingness to accept a one-year pay freeze became a popular Internet video.

In New York, Democratic Governor Andrew Cuomo, 53, with a $10 billion projected budget gap, has called for a one-year state-wage freeze and is mobilizing business for a media campaign supporting his agenda. California’s Brown, 72, confronting a $25.4 billion deficit over the next 18 months, wants to cut employment costs by as much as 10 percent in part with the unpaid days off.

Bargaining Rights

The strongest challenges to unions come from newly elected Republicans such as Wisconsin’s Walker, 43, and Ohio’s Kasich, 58. They were part of a November election wave that now puts their party in control of 25 legislatures and 29 governorships. In addition to proposals to cut wages and benefits, both are seeking to curb workers’ collective-bargaining rights.

“The scope of these attacks is unprecedented,” said Naomi Walker, the Washington-based director of state-government relations at the AFL-CIO, the nation’s largest union organization.

While labor unions haven’t said they will withhold campaign money from Democratic candidates who have been traditional allies, actions such as those of Brown and Cuomo could temper the enthusiasm of union voters, Walker said.

“These things will certainly impact whether working families get involved in their political campaigns,” she said.

Unions should use teachers, firefighters and active-duty police as spokesmen so there is “a sympathetic face attached to the issue,” said Chris Lehane, a California-based Democratic strategist who worked on the 2000 Al Gore presidential campaign.

Read the entire piece here.

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This past Friday, January 14, 2011, the National Labor Relations Board advised the Attorneys General of four states – Arizona, South Carolina, South Dakota and Utah – that the National Labor Relations Act preempts constitutional amendments to require the use of secret ballots in union representation elections. Letters sent by Acting General Counsel Lafe Solomon assert that these amendments, approved by voters in each of these states last November, conflict with Section 7 of the National Labor Relations Act.

In the letters, Acting GC Solomon cites Linden Lumber Division v. NLRB, 419 U.S. 301 (1974) and NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) for the proposition that federal law provides employees two different paths to pursue the Section 7 right to choose a representative: a secret ballot election or voluntary recognition. The state constitutional amendments, however, require only secret ballot elections to select union representation according to the Acting GC’s letters. Accordingly, the letters assert these conflicting amendments are preempted by operation of the Supremacy Clause set forth in Article VI of the U.S. Constitution.

Acting GC Solomon requested responses from the states within two weeks. If the states refuse to acknowledge that these provisions are unconstitutional, the Board has indicated it will initiate civil actions in federal court to have them invalidated.  When we reported on similar efforts by states in early 2009, we noted that federal preemption principles would likely pose significant legal challenge to the enforcement of these state provisions.  It seems we will soon find out.

More commentary, resources:

• "State Constitutional Amendments Conflict with NLRA" -- NLRB Fact Sheet
• "NLRB: Federal Law Pre-Empts State Secret-Ballot Amendments" -- AFL-CIO Now blog
• "NLRB: State Secret Ballot Measures Are Pre-Empted" -- Workplace Prof Blog
• "Obama Admin Bullies States Over Card Check Rules" -- Washington Examiner "Beltway Confidential"

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On January 10, 2011, the National Labor Relations Board invited briefs from interested parties in a case which considers whether the Board has jurisdiction over a charter school in Illinois. In Chicago Mathematics & Science Academy Charter School, Inc. (13- RM-1768), the Chicago Alliance of Charter Teachers and Staff filed a petition for a representation election with a state labor agency, the Illinois Educational Labor Relations Board. Seeking to represent a unit of teachers, social workers and counselors, the union asserted that the state board filing was proper because the school is a “political subdivision” of the state. Such political subdivisions are exempt from the federal jurisdiction of the NLRB under Section 2(2) of the National Labor Relations Act.

The Charter School, however, maintains it is not a political subdivision of the state, and that the NLRB should conduct any election. In NLRB v. Natural Gas Utility District of Hawkins County, Tenn., 402 U.S. 600 (1971), the Supreme Court set forth a test for assessing whether entities are exempt “political subdivisions”. Entities are so exempt if they are “either (1) created directly by the state, so as to constitute departments or administrative arms of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate.”

The state laws establishing charter school laws vary from state to state. Applying the facts of various cases, NLRB Regional Directors have come to differing conclusions -- asserting jurisdiction in some cases and declining in others. The Board has indicated that the “decision in this case could provide further guidance as to when charter schools fall under NLRB jurisdiction."

Briefs are due by March 11, 2011, with responsive filings by March 25, 2011.

More commentary, resources:

• "NLRB Considers Jurisdiction Over Charter Schools" -- Workplace Prof Blog
  
• "NLRB invites briefs regarding charter school jurisdiction" -- LawMemo
• Chicago ACTS website
• Chicago Math & Science Academy website

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On the first day of the new Congress, Rep. Jason Chaffetz (R-UT) introduced a House Resolution:

Expressing the sense of the House of Representatives that the Federal Government should not bail out State and local government employee pension plans or other plans that provide post-employment benefits to State and local government retirees.

The Resolution lays out a litany of financial challenges facing the federal government, state and local governments, Social Security and related trust funds, and various government employee pension funds.  Most critically, the Resolution asserts:

numerous State and local government employee pension plans have offered overly generous retirement benefits to its employees and are in dire financial situations with combined unfunded liabilities up to $3 trillion...

Substantively, the Resolution declares:

(1) the Federal Government should not bailout State and local government employee pension plans and other post-employment benefit plans; and

(2) State and local governments should immediately institute reforms to their employee pensions plans, including replacing defined benefit plans with defined contribution plans.

As this is a simple Resolution, it will not advance toward promulgation as an actual law.  The result of a House vote on this, however, may very well impact how state and local government approach what has become an extremely pressing issue.

More Resources and Commentary:

• "Chaffetz Introduces Legislation Opposing Bailout of State/Local Government Employee Pension Funds" -- Rep. Chaffetz press release
• "Chaffetz takes aim at unfunded pensions" -- Salt Lake Tribune
• "Unionized public employees being used as scapegoats for financial crisis" -- SEIU blog
• "The Texas Omen" -- Paul Krugman in New York Times
• "Another Union Created Bailout?" -- LRI Online
• "Robert Creamer: Time to Stand Up For The Public Sector" -- Huffington Post

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In a 4-3 decision handed down earlier today, the New York State Court of Appeals reversed the order of the New York Supreme Court directing a number of charter schools to disclose the full names of teachers in their employ.  In the Matter of New York State United Teachers vs. Brighter Choice Charter School et al.held that an exception to New York's Freedom of Information Law (FOIL) applied, protecting the information from disclosure.

The New York State United Teachers (NYSUT) made a FOIL request for the names, job titles, salaries and home addresses of all teachers employed by the schools. The charter schools withheld the names of the individuals asserting that disclosure would be an unwarranted invasion of privacy. After the union dropped its request for the home addresses, the trial court ordered production of the names and the Appellate Division affirmed.

In reversing, the Court of Appeals noted the application of an exception to FOIL requirements under Public Officers Law Section 89. Under that provision, an entity may deny access to records, disclosure of which would be an “unwarranted invasion of privacy,” including the “release of names and addresses if such lists would be used for commercial or fund-raising purposes.” During argument, NYSUT conceded that its intent in requesting the information was to organize the teachers and expand its membership. The majority held that the exception applied under these facts.

Interestingly, since the commencement of suit in this case, Section 89 of the Public Officers Law has been amended to replace “commercial” with the word “solicitation.” It would seem that amendment would only strengthen the Court’s reasoning in future cases such as this one.

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Amid the various Election 2010 returns, NAM's Shopfloor.org reports on the passage of ballot initiatives in four states to require secret ballots in union representation elections:

In a multistate rebuke to organized labor, voters in four states are approving measures to reaffirm the sanctity of the secret ballot. No Employee Free Choice Act for us, they say.

South Carolina, AP, “SC voters OK right to secret ballot in union votes”

South Dakota, Constitutional Amendment K: “An Amendment to Article VI of the South Dakota Constitution relating to the right of individuals to vote by secret ballot. Precincts: 578/791
Yes 78.46%
No 21.52%

In Utah, Constitutional Amendment A is leading in early balloting, 58-42 percent.

And in Arizona, Proposition 113 is winning 61-39 percent.

We reported on similar efforts here in early 2009, noting that federal preemption principles likely pose significant legal challenge to the enforcement of state provisions such as these.  Based on these election results, we may soon find out if that assessment is correct or not.

More information and commentary:

• "Ballot measures guaranteeing secret ballot in union elections pass in four states" -- Greenberg Traurig's LE Blog
• "State Secret Ballot Measures" -- Workplace Prof Blog
• "Corporate-Backed Anti-Union 'Secret Ballot' Measures Pass in Four States" -- AFL-CIO NOW Blog

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Last week, amid a flurry of late-session proposals, Rep. Brad Sherman (D-CA) introduced H.R. 6384, "To repeal a limitation in the Labor-Management Relations Act regarding requirement of labor organization membership as a condition of employment."  Put more simply, the bill would nullify the right of states to enforce "right to work" statutes. 

The 1947 Taft-Hartley amendments to the National Labor Relations Act added subsection 14(b), allowing states to pass these "right to work" laws to prohibit unions and employers from agreeing to "union security" clauses -- contract provisions which require union membership as a condition of employment.  There are currently 22 so-called "right to work" states in the U.S.

The text of Rep. Sherman's bill is unavailable at the GPO at this time, but he introduced a similar bill in the 110th Congress.  H.R. 6477, introduced in July 2008, states only:

Section 14(b) of the Labor Management Relations Act (29 U.S.C. 164) is amended by striking subsection (b) and redesignating subsection (c) as subsection (b). 

We might safely assume that H.R. 6384 will be similarly pithy.  Regarding the introduction of this measure, the Congressman issued a statement including the following explanation:

“I do not believe that there should be a right to be treated unfairly or to endure unnecessary restrictions. Right-to-work laws strip unions of their legitimate ability to collect dues, even when the worker is covered by a union-negotiated collective bargaining agreement. This forces unions to use their time and members’ dues to provide benefits to free riders who are exempt from paying their fair share....  These laws are harmful to states like California, which allows labor unions to organize, because now we have to compete with the race to the bottom as our companies have to compete with those where the workers would like better wages, working conditions and benefits but are unable to organize to get them.”

At the time of this posting, there were 17 Democrat co-sponsors of Rep. Sherman's bill -- up from 8 co-sponsors for his 2008 effort.

More commentary:

• "BREAKING: Democrat Introduces Legislation to End Right-To-Work States" -- LaborUnionReport at RedState.com
  
• "U.S. House Representatives Attempting to Repeal Right to Work Laws" -- National Right to Work Committee
• "Right to Work for Less" -- AFL-CIO Legislative Action Center

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Workplace Prof Blog today highlights a piece by professor/blogger Paul Secunda in CCH Employment Law Daily regarding a state “captive audience speech law.”  While these bills have been proposed in various states, the particular object of Professor Secunda’s presdcritique is 2009 Wisconsin Act 290, enacted on May 12, 2010.  The Act amended Wisconsin’s employment discrimination laws to add protections against discrimination on the basis of an employee’s

…declining to attend a meeting or to participate in any communication about religious matters or political matters.

Earlier this month, the Metropolitan Milwaukee Chamber of Commerce filed suit in federal court seeking to have the law declared unconstitutional.  According to his blog’s excerpt of the CCH piece, Professor Secunda believes the law should be upheld:

A finding of NLRA preemption in this case would be both inconsistent with Congress’ purposes in enacting the NLRA and with principles of federalism which give the states and federal government shared authority over the employment relationship….”   Indeed, a number of well-known exceptions exist to the Machinists preemption doctrine, in the area of state police powers and the regulation of property rights. Under this line of cases, traditional areas of state concern are within the states' power to regulate and, therefore, not within the scope of NLRA preemption.

There are two sources of applicable authority here: (1) the state can place property restrictions on the bundle of property rights that the state grants to its property owners and (2) the state can provide for minimum conditions in the workplace under its police powers. Consistent with Section 8(c) of the NLRA, employers can still inform employees of their views of unionization, but may not force employees into mandatory meetings to hear those views under Wisconsin’s Act 290.

We have previously identified arguments by proponents of labor law reform that the law should allow greater union access to private employer property, or to restrict employers' exclusive use to address union representation.  These state statutes and the attendant litigation are the current front lines of that debate.

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NMB agrees to delay implementation of Election Rule:  Two weeks ago, the National Mediation Board (NMB) announced a change in the way votes would be tallied in future union representation elections under the Railway Labor Act.  Last week, an association of airlines filed suit in federal court seeking injunctive relief against the implementation of the Rule.  At a status conference in court this week, the NMB agreed to hold implementation of the Rule at least until June 30, 2010.

Reid Public Safety Employee Amendment to Supplemental Withdrawn:  Tuesday, Senate Majority Leader Harry Reid (D-NV) proposed to attach the Public Safety Employer-Employee Cooperation Act of 2009 to the pending Emergency Appropriations Supplemental.  The Public Safety Employer-Employee Cooperation Act, introduced with bipartisan support earlier in the Congress by Sen. Judd Gregg (R-NH) would ensure the extension of collective-bargaining rights to public safety employees employed by all states and localities.   Senator Reid's move prompted CQ Today to predict that "the amendment would be considered 'non-germane' and would no longer be in order if the Senate votes Thursday in favor of Reid’s motion to limit debate on the bill."  Last night, the Amendment was indeed withdrawn and the Supplemental was passed 67 to 28.  The stand-alone version of the bargaining bill remains pending, however, in both the House and Senate.

NLRB Would Assert Jurisdiction Over New York Racino:   The Board this week issued an Advisory Opinion requested by the New York State Employment Relations Board (NYSERB) in Yonkers Racing Corp. d/b/a Empire City at Yonkers Raceway, 355 NLRB No. 35 (May 24, 2010).  From 1899 until 2008, the employer operated a horse racetrack in Yonkers, New York.  In 2008, like many other racetracks are doing nowadays, the employer opened a casino on its premises.  Two unions filed petitions with NYSERB seeking to represent particular units of employees.  They did so because traditionally the NLRB asserts jurisdiction over casinos which meet the appropriate commerce threshholds, but declines to assert jurisdiction over racetracks -- leaving the issues to state agency resolution.  NYSERB sought the Board's advice on the issue, and the Board held:

We agree with the Employer that, as a result of the changes resulting from the addition of its casino gambling operations, the enterprise is no longer primarily a racetrack, and that the Board’s policy of declining jurisdiction over racetracks no longer applies to it.  In two recent published cases, the Board considered combined casino and racetrack operations with histories similar to that of the Employer’s enterprise. In each case, the Board found that although the enterprise began life as a racetrack and added casino operations later, the revenue and employment generated by the casino so overshadowed those generated by the horseracing operations the enterprise was no longer “essentially a racetrack,” Prairie Meadows Racetrack & Casino, 324 NLRB 550, 551 (1997), and “the racetrack was dependent on the casino, not the other way around.” Delaware Park, 325 NLRB 156, 156 (1997). 

Racing employers accustomed to state agency jurisdiction in addressing labor relations matters should take note of these developments as they embark upon consideration of casino expansion.

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Last night, Senate Majority Leader Harry Reid (D-NV) proposed an amendment (S. Amdt. 4174) to an Emergency Supplemental Appropriations bill that would extend collective-bargaining rights to all public safety workers employed by states or localities.  In its findings, the language includes:

    (4) The absence of adequate cooperation between public safety employers and employees has implications for the security of employees and can affect interstate and intrastate commerce. The lack of such labor-management cooperation can detrimentally impact the upgrading of police and fire services of local communities, the health and well-being of public safety officers, and the morale of the fire and police departments. Additionally, these factors could have significant commercial repercussions. Moreover, providing minimal standards for collective bargaining negotiations in the public safety sector can prevent industrial strife between labor and management that interferes with the normal flow of commerce.

    (5) Many States and localities already provide public safety officers with collective bargaining rights comparable to or greater than the rights and responsibilities set forth in this title, and such State and local laws should be respected.

The amendment language is identical to the Public Safety Employer-Employee Cooperation Act of 2009 (S. 1611) introduced in March 2009 by Sen. Judd Gregg (R-NH). This bill had been introduced in successive congressional sessions since the 1990’s, including the 110th Congress, where it had strong bipartisan support before faltering. As reported earlier this year in The Hill:

In 2007, the bill passed the House with more than 300 votes and was in a strong position to clear the Senate. But President George W. Bush issued a veto threat and the Senate bill’s lead Democratic sponsor, the late Sen. Edward Kennedy (D-Mass.), fell ill. The legislation then became overrun with amendments and subsequently fizzled on the Senate floor.

On March 10, 2010, the House Education and Labor Committee held hearings on the bill, transcripts of which are available here.  Seeing as there were at least five GOP co-sponsors to Sen. Gregg’s similar bill, it is highly likely that this amendment will pass and become part of the Supplemental. Deliberation on the Amendment and Supplemental is scheduled to resume today.

More coverage:

• "Unclear if war supplemental will steer clear of add-ons" -- GovExec.com
• "Hearing Held on Bargaining Bill" -- IAFF website 
• "Collective Bargain Vote Today?" -- Greensboro (NC) News-Record

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