Working Hard For Working People

Judge Refuses to Stay Earlier Act 10 Decision, Except for Decertified Bargaining Units



On Friday April 27^th, United States District Judge William Conley denied a request to stay pending appeal his earlier decision in Wisconsin Education Association Council v. Walker. On March 30^th, the Judge ruled unconstitutional key portions of Wisconsin’s anti-collective bargaining statute (2011 Wis. Act. 10).  The new ruling holds that such provisions remain unenforceable, except for those public sector unions that had already been decertified.  A copy of the decision is available here.

In the new decision, Judge Conley reaffirmed that Act 10 was unconstitutional where it required general employees’ public unions to annually recertify and prohibit dues checkoff for such unions.  He found that the Defendants’ “utterly failed to articulate” how they are harmed by enforcement of the earlier decision. In contrast, he found that unions affected by the Act would suffer irreparable harm if his decision was stayed since “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” 

Unfortunately, the Judge stayed the decision as it would impact bargaining units decertified pursuant to Act 10 before March 30, 2012.  This means that unions who chose not to undertake the initial recertification vote or lost the initial recertification vote will remain decertified until the decision is addressed by the Seventh Circuit Court of Appeals. 

Court Upholds NLRB Notice Posting Requirement

In National Association of Manufacturers v. NLRB, 102 LRRM 2999 (D.D.C. 2012), issued on March 2, 2012, a federal District Court for the District of Columbia held that the NLRB had authority to promulgate a rule requiring employers to post a notice informing employees of their rights under the NLRA.      The Court rejected the plaintiffs’ claim that the statute did not specifically authorize a notice posting requirement where there was no preceding finding that an unfair labor practice had been committed, finding instead that the notice fell with the broad rule-making authority granted to the Board under the Act.  The Court, however, struck down that portion of the rule which deemed an employer’s failure to post the notice an automatic unfair labor practice.  The Court held that its decision would not prevent the Board from making an individual determination that the failure to post violated 8(a)(1), rather, it was the blanket advance determination of an unfair labor practice that the Court found invalid.

 

Judge Enjoins Wisconsin Act 10 Provisions Regarding Annual Recertification and Dues Deductions

Earlier today, United States District Judge William Conley issued a written decision enjoining portions of 2011 Wisconsin Act 10.  A copy of the decision in Wisconsin Education Association Council, et al. v. Walker is available here.  The decision enjoins the State from enforcing the annual recertification requirements of Act 10 or from enforcing the prohibition on dues checkoff for unions representing “general” employees.  No later than May 31, 2012 the State is required to return to automatic dues deductions for all members of public unions.

The injunction is a direct result of the Legislature and Governor’s decision to favor unions that supported Republican candidates and harm unions that support Democratic candidates.  As the decision points out, Act 10 makes stark distinctions between “public safety” and “general” employees.  Act 10 only had a limited impact on the bargaining rights of public safety employees, and did not require that they undergo annual recertification elections nor prohibit dues deductions for such unions.  However, all unions which endorsed Governor Walker in his 2010 election were classified as “public safety” employees.  For example, the decision points out that the Act exempted state vehicle inspectors while including Capital Police. The union representing the vehicle inspectors endorsed Walker while the union representing the Capital Police did not.  Thus, political endorsements greatly shaped who was exempted from Act 10’s onerous restrictions and who was not.

Despite the political overtones of the law, the Court did not determine that the restrictions on bargaining rights were unconstitutional.  Given the status of the law in this area, the Court found that the fact that only unions representing public safety employees endorsed Governor Walker did not undermine the rational basis for treating such employees differently.  Since the State could totally eliminate bargaining rights for all unions, if it chose to do so, it could make the “public safety” exception.

In contrast, the Judge found “no obvious relationship to the government’s supported concern with disruptions by public safety employees” and the Act’s recertification requirements and prohibition on dues checkoff for general unions.  With respect to annual recertification, the Judge pointed out that that the State was unable to point out a single example of similar recertification requirements, and found that there was no precedent for annual recertification by an absolute majority.  He found that no rational basis could be served by the Act’s “unprecedented burden on a voluntary union’s right to continue to exist from year to year.”

It Violates the NLRA to Exclude Union Agent from Employer’s Premises After Hitting Him With Car

At a labor dispute between Nielmed Products and the Teamsters/Change to Win, Supervisor Jonathan Herdita approached a picket line with his car. When the picketers blocked his entrance, Herdita continued to move forward with his car until he hit the legs of employee/union steward Elmer Cisneros.  Getting hit caused Cisneros to fall on the hood of the car.  Rather than stopping, Herdita kept moving!  This led Cisneros to hit Herdita’s windshield with his right fist, breaking the glass.  Thereafter, Nielmed fired Cisneros for the allegedly violent act.  However, Cisneros continued serving on the picket line and was ultimately appointed as business agent for his union.  Afterwards, the Company refused to allow Cisneros onto its property, arguing that its duty to provide a safe workplace required that Cisneros be denied access to its facility due to his “violent” actions on the picket line.

Evaluating this claim, the NLRB found that the employer violated the Act by refusing to allow Cisneros on its property to discuss grievances.  In Nielmed Products, 358 NLRB No. 8 (February 29, 2012), the Board reiterated its position that “each party to a collective bargaining relationship has the right to select its representative for bargaining and negotiations and the duty to deal with the chosen representative of the other party.”  The Board found “unconvincing” arguments about workplace safety,.  It found that Cisneros “hit the windshield with his fist due to the provocation of the vehicle continued to move forward while he was lying on the vehicle hood.”  It was not a violent act, but rather, “a defensive act taken in order to call the driver’s attention to his perilous position on the hood of the car.”  Moreover, it found that Cisneros’ actions did not create ill will and make good-faith bargaining impossible where Herdita was no longer employed by the Company and the incident did not involve any current member of management.  Such actions violated Section 8(a)(1) and (5) of the NLRA.

NLRB Region 30 in Milwaukee Seeks 10(j) Relief Against Piggly Wiggly Midwest

In a Februrary 14, 2012 filing in the United States District Court for the Eastern District of Wisconsin, NLRB Region 30 Regional Director Irving Gottschalk asked the Court for 10(j) injunctive relief against Piggly Wiggly Midwest pending the final disposition of a pending complaint against the employer.  On December 28, 2011, Region 30 issued a Complaint and Notice of Hearing against Piggly Wiggly alleging numerous violations of Sections 8(a)(1), (3) and (5) of the Act.  The Complaint stems from Piggly Wiggly’s unilateral reduction of 19 full-time employees to part-time status in the bargaining unit represented by UFCW Local 1473 at its Sheboygan, Wisconsin store. The reductions resulted in the employees losing their hours and certain contractual benefits, including health insurance, and had the effect of forcing four of the reduced employees to quit their employment.  The Board’s Petition before the Eastern District Court asserts that 10(j) relief is appropriate because they have demonstrated a strong likelihood of prevailing before the Board on the merits against Piggly Wiggly, in part because there is no dispute that the Employer failed or refused to provide the Union with prior notice and opportunity to bargain over the reductions.  The Board also asserts that 10(j) relief is justified because without the requested relief irreparable harm will result to employees by loss of their health insurance, and further is necessary to curb the significant loss of employee support for the Union because of the unilateral changes which cannot be remedied by a future Board order.

Is the Ryan Braun story about drug testing, arbitration, or both?

What does the situation of Milwaukee Brewer and National League MVP Ryan Braun say about drug testing and labor arbitration?  Last October 1, Braun “failed” a drug test by scoring elevated levels of synthetic testosterone, an indicator used by Major League Baseball of use of performance enhancing drugs.  He was suspended for 50 games.

Braun was covered by a collective bargaining agreement which required, among other things, a strict protocol for collection of drug testing samples.  It also required arbitration of any disputes over the results of testing.  His case went before a panel of three arbitrators, including a neutral party, Shyam Das.  On February 23, 2012, media sources reported that the panel ruled 2-1 that the chain of custody of the sample was broken for two days – reports suggest that the collector took the sample home and left it in his home refrigerator, rather than shipping it immediately to the doping lab—and that Braun therefore need not serve his suspension.  We say, “media sources” because the award has not been published.  It has been assumed that Das broke the tie between union-appointed and management-appointed arbitrators.  MLB has said publicly it “vehemently” disagrees with the decision.

Media speculation turned almost at once to whether MLB would “appeal” the award to federal court under the Federal Arbitration Act.  This reporting is a misnomer – there is no appeal from arbitration – and the Act cited is only one of two that apply.  Because the contract here is a collective bargaining agreement, the substantive law applied is federal labor law developed under the Labor Management Relations Act – the same law that governs arbitration under most other union contracts in the private sector outside of the railway and airline industries, which have their own law.  It’s the connection to collective bargaining that makes this case literally a federal case.  The Federal Arbitration Act is merely a procedural vehicle.

We know very little about the facts, other than what has been leaked to the media.  If it is true that the chain of custody was broken, the decision to overturn the suspension would not be unusual.  For forty years, arbitrators have been overturning alcohol and drug tests because samples were taken home by a supervisor, see Holliston Mills, 60 LA 1030 (Simon 1973)(alcohol testing sample), or the security of the sample may otherwise have been compromised.  See Day & Zimmermann, 88 LA 1001 (Heinsz 1987)(discharge for a positive drug test reversed because there was “scant” evidence of collection and chain of custody).  Of course, this result is how the system is supposed to work:  Federal regulations used in transportation and nuclear power facilities have comparable requirements, and the parties inserted a strict chain of custody into their CBA.  The point of such a procedure is that if it is not followed, then the results are not trustworthy.  If they’re not trustworthy, they can’t be a just basis for punishment.

The case may not mean anything anyway.  The typical drug testing case in private industry is about one or more illegal drugs.  These drugs have specific by-products, called metabolites, which are associated only with the illegal substance.  Find the metabolite in a valid test, and a very strong presumption is raised that the employee must have used the illegal drug.  Testosterone is a hormone found at some level in all humans.  Elevated levels might be explained in any number of ways.  We can’t really know what Braun might have said was the reason for his test result, assuming it really was his test result.  MLB didn’t get to first base in this case.

The threat to try to overturn the arbitration award in court would then be hollow:  The U. S. Supreme Court has held as a matter of federal labor law that an arbitrator’s decision is final unless there is some corruption or fraud, or the arbitrator was not truly neutral, or the decision was not grounded in the agreement.  That the arbitrator made an incorrect decision on the facts or the law, however, is not a basis for overturning an award.  So long as the arbitrator was trying to render a decision based upon the contract, it doesn’t matter that he made a complete hash out of the job.  In Paperworkers v. Misco Inc., 484 U.S. 29 (1987), the Supreme Court said that "Courts thus do not sit to hear claims of factual or legal error by an arbitrator” and  “as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.”  So the Das award will stand if the only challenge to it is that the arbitrator misconstrued the chain of custody provisions. 

That brings us back to the question we posed at the outset:  Is this story about performance drugs, or arbitration?  The answer is neither, based upon what we can glean from the media leaks.  The Das award is equally valid whether Braun is guilty or not.  Chain of custody provisions are designed to protect employees from arbitrary action by management, by requiring that a career-damaging or –ending verdict of drug abuse is not based on a spoiled or tampered sample.  Inherent in this requirement is the possibility that a guilty person might be exonerated because the collector screws up the process.  The award does not attempt to resolve the question of guilt or innocence.

The story is also not about arbitration.  The Misco case we quoted above is nothing new.  The standard for review of arbitration awards has been basically unchanged since 1960, when deference to an arbitrator was announced in three cases now known as “the Steelworkers Trilogy.”  The loser is always disappointed, and although it is bad form, a little grumbling that the loser will “appeal” a non-appealable case is quite common.  In other words, it’s not news.

Why then all the hubbub about Ryan Braun?  It’s because he’s a celebrity.  Celebrities make the front page for doing ordinary things that don’t make headlines for ordinary people.  Stories of workers who flunk tests and beat the test because there was an error in the testing process are old news.  They’re just not headline news.  So move along from Ryan Braun:  There’s nothing to see here.

Department of Labor Proposes Wage Protections for In-Home Care Workers

The U.S. Department of Labor recently announced plans to update minimum wage and overtime regulations covering certain in-home health care workers. Since 1975, casual babysitters and companions for the aged and infirm have been exempt from coverage under the federal Fair Labor Standards Act (FLSA), and live-in domestic workers have been exempt from its overtime protections. "[T]he in-home care industry has undergone a dramatic transformation..." and "the earnings of in-home care employees remain among the lowest in the service industry, impeding efforts to improve both jobs and care." For this reason, the DOL has issued a notice of proposed rulemaking to clarify and limit the scope of the companionship exemption. Comments to the proposed rules are due by February 27, 2012.

Board Holds That Mandatory Arbitration Agreements Restrict Protected Rights

The National Labor Relations Board recently determined that an employer violates the National Labor Relations Act when it requires employees to sign an agreement that precludes them from filing joint, class, or collective claims addressing their wages, hours or other working conditions. In D.R. Horton,357 NLRB No. 184 (January 3, 2012), the Board determined that such agreements unlawfully restrict employees' Section 7 rights to engage in concerted action.  The Board reached its holding despite recent court cases enforcing employment-related arbitration agreements are judicially enforceable under the Federal Arbitration Act.

New Board Members Sworn In

Following their recess appointments by President Obama, the three new members of the National Labor Relations Board were sworn in this week.  Sharon Block, Terence F. Flynn and Richard F. Griffin join Chairman Mark Gaston Pearce and Member Brian Hayes on the Board.  This is the first time there have been a full compliment of Board members since August 2010.

 

President Appoints Three to National Labor Relations Board

President Obama announced yesterday his intent to make recess appointments to the Board.  The three individuals are Sharon Block, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor, Terence F. Flynn, currently Chief Counsel to NLRB Board Member Brian Hayes, and Richard Griffin, General Counsel for International Union of Operating Engineers (IUOE).  Biographies of all three individuals are available on the Board's website.

Absent these recess appointments, the Board would lack the ability to enforce the National Labor Relations Act in a meaningful way.  In his statement, the President said  "The American people deserve to have qualified public servants fighting for them every day - whether it is to enforce new consumer protections or uphold the rights of working Americans. We can't wait to act to strengthen the economy and restore security for our middle class and those trying to get in it, and that's why I am proud to appoint these fine individuals to get to work for the American people."