Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

It's been a little while since we last checked in with the unionization efforts at Foxwoods.  The appeal process of the election of UAW has begun its slow arduous process so don't expect to hear much on this for weeks or months at a time.

But in the meantime, various other groups have been vying to try to unionize other workers at Foxwoods. Yesterday,  engineering department workers cast ballots about possible union representation by the International Union of Operating Engineers.

The workers overwhelmingly rejected such representation by a vote of 215-67. 

The Day has this report from late Thursday evening:

The election results were hailed as a major victory by Foxwoods, which has recently received intense pressure as several unions have filed petitions seeking to unionize workers at the casino.

”We are very pleased with the vote of confidence that employees have given Foxwoods management today,” said Foxwoods President Barry Cregan in the release issued shortly after 7 p.m. “Those team members displayed outstanding professionalism through the entire process and clearly agreed that having an intermediary come between us wasn't necessary.”

What's interesting about this is that the tribe had also complained to the NLRB that the election shouldn't go forward citing its sovereign immunity, as it has done on other elections. The Regional Director -- as it has done before -- rejected those claims in a decision found here.  But this time, Foxwoods prevailed in the union election so unless the union raises exceptions to the election, it is unlikely that the immunity argument will be tested again here.

Foxwoods still has several more union petitions from other worker groups to face in the upcoming months.  You can find my prior coverage of the Foxwoods unionization efforts here.

Because of Foxwoods' status as one of the largest employers in Connecticut, and the novelty of unionization of its employees, this remains a topic worth following in the upcoming months.

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One of the bills in Congress this year that is expected to be heavily debated is the Employee Free Choice Act. 

What is it? Workplace Horizons has this take on it: "The Employee Free Choice Act (H.R. 800; S. 1041) would amend the National Labor Relations Act to make it significantly easier for unions to organize employees, to require binding arbitration of first contracts after 120 days, and to stiffen penalties for certain unfair labor practices."

The AFL-CIO has an alternative take on it: "The Employee Free Choice Act (H.R. 800, S. 1041), supported by a bipartisan coalition in Congress, would level the playing field for workers and employers and help rebuild America’s middle class. It would restore workers’ freedom to choose a union by: Establishing stronger penalties for violation of employee rights when workers seek to form a union and during first-contract negotiations; Providing mediation and arbitration for first-contract disputes; Allowing employees to form unions by signing cards authorizing union representation."

Obviously, how you feel about the proposal depends on whether you think the current system of union elections is broken.

One Connecticut Congressman, Joe Courtney, spoke this morning with the My Left Nutmeg blog with his thoughts on it. During a very interesting and insightful interview with Ken Krayeske, he voiced his strong support for the bill.

The Employee Free Choice Act is critical to make sure people can organize without recourse. It was one of my first speeches on the House floor. ...

If you go back to NLRA [the National Labor Relations Act, passed in 1937], a card check was supposed to be the method towards getting union recognition. It was down the road that employers were given the option of requesting an election, moderated by the NLRB.

The law we voted on in the House would say that a union would be recognized with a majority of signature cards signed by members of the bargaining unit. If even a third, thirty-three percent,  The law changed so that employers don't have the opportunity to mandate an election. Otherwise, these hired guns, consultants come in where there is strong support for union with cards, and they end up turning the election in to a long drawn out process that defeats the election.

Rep. Courtney -- who represents District 2, which includes many towns in Eastern Connecticut including where the casinos are located -- had particularly strong words about the Foxwoods election.  As readers of this blog will recall, there has also been a heated battle going on with a union election at Foxwoods, including a multi-day hearing that we've covered here in many posts. 

The Foxwoods case is classic as to why this needs to pass. The UAW won that vote 60-40, with a healthy margin.

Then management is coming in there with a big hired gun [in front of the National Labor Relations Board].  They put on days of testimony about what the ballot said, "Do you support this union?"

Management was bringing in employees who claimed they couldn't read it, and said they had difficulties with the language.. The testimony was comical. The translators that management brought in were at the hearing. Inadvertently, someone would ask a question in English, and they would answer it before the translators could.

These were all card dealers, of course they understand English. But it is a textbook example of how they abuse the system to delay union victories. If you get unions to get the cards, we don't have to go through these hearings.

Rep. Courtney is a decent fellow and, by all accounts, is doing well representing a difficult district..  But is Rep. Courtney referring to the lawyers who defended Foxwoods as mere "hired guns" that ought to be criticized for defending their clients?

If that's the implication -- and its a bit unclear from the statement -- that seems particularly harsh and unnecessary.  Whatever one thinks about Foxwoods (and if you ask 100 people, you'll get 100 opinions), it's unfair to challenge the attorneys merely for representing their client.  Our system of justice demands that each party -- no matter how disliked -- be given a full and fair opportunity.  Foxwoods should be no exception.

Moreover, it's not like the Foxwoods' appeal on the language issue was frivolous.  Indeed here, even the Hearing Officer stated that he would've handled the election differently and translated the ballots at issue.  Given the high burden of proof necessary to overturn an election, it's probably not enough to carry the day but we'll have to wait a few more weeks until the decision on the election is issued.

In the meantime, Rep. Courtney is obviously willing to keep pushing the Employee Free Choice Act.  How far will that battle take him? We'll just have to wait to find out.  However, even he suggests some excitement ahead: "The Card Check Act, that is the battle to be watching."

(H/T My Left Nutmeg)

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The hearing by the NLRB into objections raised by Foxwoods resumed Wednesday with new details about alleged harassment experienced by dealers in the course of the election last fall.  (For background on the objections and the elections, click here.) 

As usual, The Day is quick with the details this morning.  According to the report, one employee testified that after telling co-workers she would be voting "no" in the upcoming election, other dealers harassed her:

On the floor, one blackjack dealer said, “If you were a man I'd kick your (expletive).”

Another dealer told her she was a “backstabber” and was told, “You'll get what you deserve.”

Another claim that has not surfaced in much detail before (other than in the Tribe's opening statement) is the claim that there may have been improper campaigning going on.  The Day reports:

Many of the dealers, both men and women, testified that unidentified individuals were polling people in the restroom across from the Sunset Ballroom, where the election was held on Nov. 24.

The individuals, according to several witnesses, were holding a piece of paper and either a pen or pencil. Because some of the dealers were wearing their name tags, they believed the unidentified individuals were recording their name along with their vote.

They presumed the individuals were writing down names of people who did not support the union.

The Tribe is expected to rest their case sometime today at which point the UAW will have an opportunity to call their own witness to refute the testimony presented.  Obviously, as lawyers are apt to say, there's often two (or three or four) sides to every story so expect to hear some balance to these claims over the next few day. 

For a better idea on what the tribe is claiming in the objections as a whole, I'd also suggest reviewing the Tribe's opening statement available here. 

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NLRB Hearings are best left to those who have lots of patience and time, two things I'm missing this week. Thus, unless there are major developments that occur, I'll only briefly recap where things stand, on occasion, on the ongoing Foxwoods/UAW saga.

• Yesterday, the NLRB (also called "The Board") denied Foxwoods' Request for Review, which was discussed here.  It did so with little comment other than to note that the request "raises no substantial issues warranting review."  UAW indicated that it was a "major victory", according to The Day, and yet, given prior Board decisions on the subject, the result is not surprising.  As I indicated previously, the Tribe is likely not focusing on the Board, but establishing a record for an appeal to the Circuit Courts and perhaps the U.S. Supreme Court someday.
  
  
• The Hearing has continued with the Tribe making a little -- but not much -- progress in its argument that the election ballots should have been printed in two Chinese dialects.  The Day has a thorough report on Day 2 with an update on the goings on during Day 3.  Apparently, the judge had a few reservations about the ballots used.

At one point, after the third dealer testified, the judge presiding over the hearing, Raymond P. Green said a lot of the confusion could have been avoided if the ballots were printed in multiple languages.

“If it was me, I would have translated the ballot,” Green said, but added that more evidence is needed to overturn the election.

• A decision on the objections that the hearing is focusing on will likely come down within the next few weeks -- though it could be longer given the scope of the testimony.

UPDATE: The Day, has a more thorough report of Day 3 of the hearing available here now.  The attorneys representing the regional NLRB challenged the Tribe's arguments a bit more.

William O'Conner, an attorney representing the regional NLRB, said no written complaints from any employees about the lack of a multilingual ballot were provided to the board, despite a subpoena requesting such documents.

There was “not one iota of evidence” that any one was affected or disturbed by the ballot, O'Conner said.

Richard Hankins, an attorney for the tribe, responded after the hearing concluded for the day.

“That's grandstanding by Mr. O'Conner,” Hankins said. “Because he's trying to cover for the fact that the region didn't do its job.”

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While the mainstream press has been reporting on the upcoming hearing tomorrow on some of Foxwoods' objections to the election, Foxwoods has also been challenging the Regional Director's decision on December 21, 2007 rejecting the other objections raised by Foxwoods.  Thus, readers should be aware that reporting on the hearing tomorrow is only one front in the battle over unionization at Foxwoods. 

Earlier this month, Foxwoods filed a lengthy "Request for Review" of that December 21st decision, which can be downloaded here. While it repeats some of the same arguments made earlier, when read in conjunction with yesterday's column in The Day, it highlights the strongest argument that the Tribe has -- that tribal sovereignty and Indian law trump the "normal" rules of construction.

For instance, on pages 16-18, it notes that although federal agencies are generally afforded some deference to their rules, that deference should not be afforded when the rule is construed towards Indian tribes.

In line with that canon, the Board is consequently duty bound to interpret the NLRA's jurisdictional reach in a manner which furthers tribal interests.  Here, that inexorably leads to a conclusion that tribes, including [Foxwoods/Mashantucket Pequot Tribal Nation] fall outside the NLRA's scope..."

Foxwoods also argues that the effect of a potential strike on the tribe's ability to provide governmental services was not considered properly by the Regional Director.  Foxwoods' brief attaches multiple exhibits, which can be downloaded here, here and here, including its prior briefs which can give the reader additional insight into the tribal sovereignty argument. 

Notably, the State of Connecticut filed a brief in opposition on Friday, January 11th.  The State has taken a very aggressive approach to this matter and has again challenged the tribe's arguments -- saying they essentially nothing but a retread and dismissing the remaining arguments.   The  State's brief can be downloaded here.   It's also worth reading (its much smaller in scope) to understand the counter to the arguments raised by the Tribe. 

UPDATE: Jeff Hirsch, at the Workplace Prof blog, also has his thoughts on the arguments that are worth taking a look at. 

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As predicted, Foxwoods casino has filed its formal objections this week to a union vote of table game dealers last month.  Thus begins what I would expect to be a protracted period of waiting. Sure, there will be the flare-up in the press here and there, but until the NLRB rules on the objections -- which could take many months, even over a year or two in some instances -- nothing will happen with this particular issue.

Indeed, even if the NLRB rules against Foxwoods on the objections, hat still does not end the appeal process. Foxwoods could refuse to bargain with the UAW setting up an appeal to a federal appellate court. 

According to the Hartford Courant, that is exactly what the tribe intends to do:

Leaders of the Mashantucket Pequot Tribe, which owns and operates Foxwoods, indicated the issue is probably headed in that direction.

"In light of what is at stake for all of Indian country, we must pursue this and it will require an appeal to the federal courts," said Tribal Chairman Michael J. Thomas in a letter circulated by the tribe.

Foxwoods statement is telling; as I indicated back in September, this case seemed destined to be an epic battle -- not just about Foxwoods but all the tribal casinos. Foxwoods' reference to what is "at stake for all of Indian country" enforces that notion.  There's simply too much riding on the decision here.

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Lost in the shuffle of the election at Foxwoods last Saturday, was the one-paragraph concurrence issued last week denying Foxwoods' Request for Review of the Regional Director's decision mandating an election.

That concurrence by Member Peter Schaumber (who I met earlier this month), can be found in the Daily Labor Reports (subscription required).  It paints a dismal picture for Foxwoods as it continues to challenge the NLRB's decision on jurisdictional grounds.

By way of background, I noted last month that:

In February 2007, in the San Manuel Indian v. NLRB case, the D.C. Circuit Court of Appeals affirmed the National Labor Relations Board’s (NLRB) ruling that the National Labor Relations Act (NLRA) applied to tribal enterprises, such as casinos.

Given that precedent, in a concurring one-paragraph decision, Schaumber noted that San Manuel Indian Bingo & Casino is current board law and there "is not at present a three-member majority of the board prepared to overrule it." Schaumber dissented in that 3-1 decision that scrapped the board's former position that the location of a business--whether on or off an Indian reservation--is key to whether the NLRB will assert jurisdiction.

Because Schaumber did not HAVE to issue a decision, it is noteworthy that he did so. In my view, he was sending a message to the parties that it is unlikely the San Manual Indian case will be overturned at this time and that further reviews by Foxwoods would face an uphill battle, at best. Of course, Foxwoods may attempt a different argument or appeal through a different judicial district, but this case precedent will carry some weight.

Either way, Schaumber's decision is sign that Foxwoods' continued challenges on jurisdictional grounds may be doomed from the start -- at least with the current makeup of the Board.

There are, of course, other avenues and grounds for Foxwoods to challenge the election so don't expect Foxwoods to simply roll over on this one. But the knockout punch of an argument based on jurisdictional grounds seems a long-shot for now.

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Many times, clients and acquaintances call looking for the "basics" of various materials. Although I'm happy to oblige, some of the "basics" materials are already out there on the Internet. In fact, the government typically has a good summaries of various laws prepared for everyday use. While these documents should not be relied upon entirely, they provide a good foundation for being able to conduct "issue-spotting" -- an important trait to have for both attorneys and HR professionals.

Here are four documents or websites that are among the more helpful I've seen to understand the basics of various state and federal employment laws.

• Basic Guide to the National Labor Relations Act (NLRA) -  The Office of General Counsel for the NLRB has put together a fairly comprehensive 38 page summary of the "basics" of NLRA. What does this mean? Essentially, for the non-lawyers out there, it is a good nuts and bolts document about various U.S. labor laws.  You can download it clicking here, or go to the NLRB website directly. 
  
• The Basics of Background Checks - The Federal Trade Commission has put together a short description of what employers should know about the Fair Credit Reporting Act (FCRA).  The FTC also has a variety of other links about FCRA on a webpage devoted to the act. 
  
• The Basics of Whether an Employee is Exempt or Non-Exempt - The Connecticut Department of Labor has a noteworthy worksheet for employers to use to determine whether certain employees should be classified as exempt or non-exempt (in other words, determining the employee's eligibility for overtime).  The worksheet notes that an employee must satisfy the duties and salary tests and cautions that the form should not be used as a substitute for legal advice, which is sound advice indeed.  The CTDOL website also has a summary of wage and hour laws for employers as well. 
  
• The Basics of the State and Federal Family and Medical Leave Act - Employers in Connecticut should be familiar with the fact that state FMLA laws differ in some notable ways from the federal laws. Figuring out which law applies when is a challenging issue.  The Connecticut Department of Labor, however, has put out a comparison of the two laws with answers to some frequently asked questions about it.   For many employers, understanding Connecticut's rule of providing 16 weeks of leave over a 2 year period and its interaction with the federal rule of 12 weeks in a one year period is crucial to avoiding issues down the road.

 Feel free to comment or add your own favorites on various "basics" documents.

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It's no secret that the National Labor Relations Act scares human resources personnel at non-union companies. Not that the possibility of a union is scary; rather, the rules under the NLRA can seem so foreign at times.  Indeed, many of the policies, procedures or practices that an employer may have huge implications, even in a union-free environment.

Fellow blogger Michael Moore, of the Pennsylvania Employment Law Blog has a great post today about Five Things Every HR Generalist Should Know about the NLRA.  Since the NLRA has been around forever, much of what Michael advises isn't necessarily "new" but it's neatly encapsulated with overall topic highlights.  Among two of the "issues" to spot:

• Section 7 Rights: Nonunion employees may be protected from discipline or discharge by the NLRA. Section 7 of the NLRA gives all employees (union and nonunion) the right to engage in protected concerted activities which are usually group activities (two or more employees acting together) attempting to improve working conditions, such as wages and benefits. ....
• Handbook Nonsolicitation Clauses: An employer may adopt a policy prohibiting solicitation and distribution of literature during working time and in work areas so long as the rule is (a) unambiguous with regard to the definitions of work time and work areas, (b) promulgated in advance of organizing activities, (c) not applied for the first time to known union adherent, and (d) uniformly applied to union and nonunion solicitations....

Why do I highlight these? Because the most common misperception among HR Generalists is that if there isn't already an union at the employer, they don't have to worry about the NLRA. But as the above recap shows, there are still plenty of NLRA issues to spot in such circumstances.

Still skeptical? Here's one example:

• Employees at Company X regularly ask their fellow co-workers to buy Girl Scout cookies and wrapping paper to support their children's activities.   A few months later, Company X learns that some employees are handing out leaflets about improving working conditions and the availability of bathroom breaks for their workers.  The leaflets ask the employees to come to a meeting during lunch.  Company X now wants to tell its employees to stop the solicitation. What's the result?  Should be fairly obvious from the issues discussed above;  The employer is going to have some issues regarding its non-solitication policies and interfering with employees' Section 7 rights. 
  

The lesson from this example is not to stop buying Girl Scout cookies; but it's to think about the implications of decisions made now for the future. if an employer is not consistently enforcing its rules for all employees, it will have a difficult time trying to enforce those rules when they might implicate the NLRA.

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