Working Hard For Working People

Supervisory "Speculation" About Layoffs Constitutes Unfair Labor Practice

In Trump Marina Associates v. NLRB (October 14, 2011), the D.C. Circuit upheld the Board's decision that the employer committed unfair labor practices in a hotly contested election that the Union lost by a narrow margin. Among the actions that the Board held to constitute a ULP was a supervisory comment that the employer would not negotiate with the union and supervisory 'speculation' about layoffs or other matters as the result of unionization that were not based on objective fact.

Interrogation of Union Supporters Violates Act

In Acme Bus Corporation, (August 26, 2011), the National Labor Relations Board reviewed a number of unfair labor practices committed by a bus company during a union organizing campaign.  The Board found that the employer violated Section 8(a)(1) of the Act by interrogating employees about union activities, orally promulgating and maintaining a rule prohibiting employees from discussing the Union at work, orally promulgating, maintaining, and disparately enforcing an overly broad solicitation/distribution rule, creating the impression that employees’ protected activities were under surveillance, and subjecting employees to closer scrutiny in retaliation for their support of the Union.

Previant Legal Show: Falling on Ice

On October 23, 2011, on the Previant Legal Show, Attorneys Lyris Medrano and David McCormick discussed what to do when you are out shopping and slip and fall on ice:

Faling on Ice

Cancellation of Group Health Insurance During Bargaining Violates Act

In Uwanta Linen Supply, Inc., (August 17, 2011), the National Labor Relations Board ruled that an employer violated Sections 8(a)(5) and (1) of the National Labor Relations Act where it failed to bargain about group health insurance benefits and failed to continue benefits while bargaining took place.  Notably, the employer failed to file a timely answer to the Board issued complaint and, when they did answer, indicated that “we did not believe it would take very long to either reinstate coverage or find another provider.”  The Board found that even assuming that the Respondent demonstrated good cause for its untimely answer, the answer did not deny the substance of the complaint’s factual allegations. The Board ordered the Respondent to restore the employees’ health insurance and reimburse them for expenses ensuing from the unilateral discontinuance of their health insurance.

Board Creates New Rule Preventing Financing of Litigation During “Critical Period”

In Stericycle, Inc., (August 23, 2011), the Board created a new rule “that a union engages in objectionable conduct warranting a second election by financing a lawsuit filed during the narrow time period—known as the “critical period”—between the date of the filing of the representation petition and the date of the election, which states claims under Federal or State wage and hour laws or other similar employment law claims on behalf of employees in the unit.”  The rule overturns existing Board law governing union-sponsored lawsuits filed during the critical period.  See Novotel New York, 321 NLRB 624 (1996).  During early stages of the organizing efforts, drivers “voiced concern that they were not being paid for meal times, break times, and overtime work.”  During the critical period, the union financed a lawsuit on behalf of the employees under federal and state law.  Based on the lawsuit, and the Board’s new policy, the Board found that the lawsuit was a benefit granted to employees during the critical period, thereby tainting the election.  Notably, the decision occurred prior to the expiration of Wilma Liebman’s term on the Board. Liebman dissented from the majority opinion, on the basis that the Board’s approach “burdens activity protected by the NLRA and the First Amendment more than is necessary to preserve the integrity of Board elections.”

Failure to Raise Racial Allegation in Grievance Hearing Does Not Constitute Racial Discrimination

In Wesley v. Teamsters’ Local 745, (5^th Cir., Oct 5, 2011), the Court of Appeals for the Fifth Circuit determined that a union does not engage in race discrimination by failing to argue during a grievance hearing that a grievant was terminated for a racially discriminatory reason.  The court stated that a grievant could state a claim for racial discrimination for failing to raise such issues only where the union refused to pursue “race-related grievances” or where the grievant could show that “his own experiences with the union were tainted by racial discrimination.”  In this case, the grievant admitted that the union had fairly represented him and failed to establish any evidence that the union refused to pursue race related grievances.  Under those circumstances, the case was dismissed.

Previant Legal Show: More on Concealed Carry

Most Saturday at Noons, attorneys from Previant Goldberg answer questions on the Previant Legal Show on 620 A.M. WTMJ (in Milwaukee).  On October 8th, Attorney Tom Flanagan discussed Wisconsin's new concealed carry law on the Show:

 PLS: Concealed Carry - Part I

Tom also discussed concealed carry on the September 3rd show.
 

Employer Violates Act by Prematurely Declaring Impass and Implementing Offer

In Daycon Products Company, Inc., (Sept. 21, 2011), the NLRB determined that a union demonstrated "flexibility" in considering a Company's bargaining proposals and the parties had not reached a bargaining impasse.  Therefore, the Company violated §8(a)(1)(5) of the National Labor Relations Act by leaving negotiations and declaring impasse. By leaving the negotiations "without notifying the Union or the mediator," the Company "foreclosed any further movement in negotiations."   Additionally, where the union engaged in a strike caused by the implementation of the last bargaining offer, such strike was a protected unfair labor practice strike

Unilateral Change in Dues-Checkoff in Right-to-Work State Violates Act

Employers are prohibited from unilaterally changing terms of an agreement upon expiration until the parties have reached impasse. However, for several years, the NLRB has attempted to create an exception to that rule by allowing employers in right to work states to unilaterally cease dues-checkoff following expiration but without reaching impasse. In Local Joint Executive Board of Las Vegas (Hacienda Hotel), (9th. Cir., Sept. 13, 2011), the U.S. Court of Appeals for the Ninth Circuit determined that an employer violates the NLRA where it ceases dues-checkoff following the expiration of an agreement in a right-to-work state.  On the case's third trip to the Court of Appeals, the Ninth Circuit found that the Board had failed to provide a reasoned explanation for creating the exception. The Court determined that "in a right to work state, where dues-checkoff does not exist to implement union security, dues-checkoff is akin to any other term of employment that is a mandatory subject of bargaining," and may not be unilaterally terminated after contract expiration