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

Let the politicians and the newspapers cite a new Second Circuit decision as being important for "saving jobs" in Connecticut. It makes for good press, but for employers, the decision is more important for a different reason than highlighted in the press: The Court has weakened one of the arguments that employers use to support their decisions -- the "Business Judgment Rule".

First, the background about the case, District Local 26 v. United Technologies Corp. (download here) in general from the Hartford Courant:

A federal appeals court on Thursday upheld a decision barring Pratt & Whitney from closing its Cheshire plant and a smaller East Hartford unit, preserving hundreds of Connecticut jobs at least through early December.

The 2nd Circuit Court of Appeals in New York said U.S. District Court Judge Janet Hall properly found that Pratt violated its existing contract with the Machinists union by failing to make "every reasonable effort" to keep the two plants open.

Ok, that's all well and good but it's the second part of the decision that things get interesting. The Company argued that it was entitled to look at the EBIT (Earnings Before Interest & Taxes) savings -- and only the EBIT-savings -- and that the Court needed to defer to the company's "business judgment". 

After all, the business judgment rule "is a presumption that in making a business decision the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company."

But in contracts relating to the business of a corporation -- including collective bargaining agreements -- the Court held that companies surrender part of their ability to act. 

Each party fully exercises its business judgment by voluntarily entering into an agreement, thereby surrendering, to some extent, its free exercise thereof thereafter. Pratt cannot, then, by invoking the business judgment rule, effectively insulate from review whether it engaged in a good faith pursuit of work preservation by requiring that we defer to its method of accounting for its measures.

The decision here has larger implications than just union contracts. One could see the same rationale perhaps being applied to employment contracts and other business-related contracts that a company may enter into.  

Will it be applied still further into employment discrimination claims where courts have been willing to give a "business judgment rule" jury instruction? All those types of questions remain to be seen, but after the decision here, employers should not assume that the "business judgment" rule is the panacea that some still think it is.

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How do you explain work issues for kids?

That was a question I posed two years ago in a post.  I didn't really answer it other than to point to a children's book "Click Clack Moo, Cows That Type" as a way to have a discussion about labor issues with kids from 3-8 or so.

But there's only so many times you can read the same book to your kids (although, no doubt, kids can often request the same book nightly for seemingly forever).  

In recent weeks, I've come across another book that I can recommend titled "Animal Strike at the Zoo".  The premise? Well, as you might expect, the animals at the zoo are unhappy with their living conditions (after all, the elephants are just paid peanuts) and decide to stop doing anything other than sleep.  After awhile, the zookeeper improves some of their conditions but refuses to give the zebras the root beer floats they've been asking for. 

Suddenly, a little girl Sue comes by the zoo (she's been waiting for her visit all year).  Will the animals decide to give their strike a break?  I won't ruin the ending, though I have heard rumors that the animals at the circus may be next.    

I'm sure, as with "Click, Clack, Moo", some will try to turn it into a symbol of a great union vs. management struggle. (In fact, there are labor unions who recommend that book during the "holiday season" for their members.) 

But for others looking just for a light-hearted tale with great pictures that introduces the concept of a "strike", this book will work.   Trust me: The younger set will love this one.  And you can use it to talk to your kids about strikes. A win-win.  

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In posts earlier this week, I've discussed what the NLRB's Connecticut Office is doing and what to expect for 2010. 

But as I continue to recap the breakfast I attended earlier in the week with NLRB (Region 34) Regional Director Jonathan Kreisberg, of particular importance to employers was the discussion about what issues the NLRB may see reoccur from time to time.  The NLRB recapped some of these in its January 2010 newsletter and its worth a read through (page 4).

Here are some highlights from our discussion:

• Kreisberg indicated that employer rules that have broad confidentiality provisions prohibiting employees from discussing wages, benefits and working conditions with co-workers are likely to be struck down. While protecting "trade secrets" is a legitimate concern, he indicated that many employer rules -- in his view -- go too far. 
• He also said that rules that prohibit employees from discussing non-confidential matters with the media are likely overbroad, though rules that restrict an employee from talking with the media as the company's "spokesman" may be more palatable. For more information, he pointed to a relatively new NLRB case which discusses this in more detail: Trump Marina Assocs., 354 NLRB 123 (2009).
• Kreisberg also noted that anti-solicitation rules may be properly drafted so long as the rule does not prohibit employees from distributing written materials during non-working time in non-working areas.  Kreisberg said however that employers often run into difficulties in the selective application of the rule. (And in this time of Girl Scout cookies, it's a good reminder.)
• He did note that employers can prohibit the use of employer's e-mail system for union solicitation but he again cautioned that selective enforcement of the rules could lead to issues with the NLRB down the road.  
• We also discussed "anti-harassment" policies. For the most part, if such policies are in the context of discrimination/hostile work environment discussions, he did not see much of an issue with it.  But he indicated that the NLRB will look to see if the application of the rule is showing an anti-union bias.  He also reminded everyone that during elections, the NLRB seems to allow behavior (particularly from union personnel) that might not otherwise be tolerated if in the context of daily working activities.
• Lastly,  Kreisberg indicated that the NLRB had produced a video designed to inform the public about the role of the Agency in conducting elections. It is also available on DVD upon request to employers and others.  (And he noted that if an employer uses this video during an election, it would pass muster as an neutral educational video.)

So what's the bottom line for employers? 

• Review your confidentiality, anti-solicitation and anti-harassment policies to ensure that they will pass muster under scrutiny.
• Perhaps more importantly, educate staff about the appropriate application of the policy to union activities.
• And finally, even if you do NOT yet have a union at the workplace, these rules (such as blanket prohibitions on employees' discussions of wages) may still apply, so if you're concerned, be sure to seek appropriate legal counsel.

 

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The big news in Connecticut this morning has to be the retirement of Senator Chris Dodd and the announcement by Attorney General Richard Blumenthal that he will seek that seat.

This is most definitely NOT a political blog so I'll leave it to others to figure out the political ramifications.

But what has yet to be explored is the impact that Blumenthal 's departure from the AG's office will have.  Whether a Democrat or Republican fills that seat will certainly determine the scope of that change. But, assume for a moment that a Democrat retains that seat, will it have any impact on employers in the state in the enforcement of labor & employment laws? 

The short answer is that it probably won't have a direct impact, but indirectly, it's hard to see of a future Attorney General taking as public a stand on issues as Blumenthal has for nearly twenty years.

So why no direct impact? As a practical matter, enforcement of the state's labor & employment laws actually resides primarily with the state Department of Labor and the Commission on Human Rights & Opportunities. While the office does get involved from time to time, it is mainly at the request of the state agencies and departments.

The AG's office does have an "Employment Rights Office" but that unit doesn't do what you might think it does. Rather, by its own description, it defends the state against discrimination claims:

This department defends state agencies and state officials in employment related litigation and administrative complaints and provides legal advice and guidance to state agencies on employment issues. We are currently defending the state in approximately 160 employment cases in the state and federal courts, as well as a similar number of complaints before the Connecticut Commission on Human Rights and Opportunities and the Equal Employment Opportunities Commission.

But indirectly, Blumenthal's departure has the potential to change the landscape for employers in Connecticut.  Blumenthal has made no secret of his strong support for labor unions, for example.  Indeed, on several occasions, he has filed "friend of the court" briefs in various cases where he thought the state's interests were at stake. (For example, his office filed a brief in the recent Pratt & Whitney plant closing dispute.) 

It remains to be seen if the next Attorney General has anywhere near the level of commitment that Blumenthal had to getting involved but even if a Democrat is elected, it will be big shoes to fill. 

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Busy end to the week so here's a quick recap of some of the stories I've been hoping to write further about but have run out of time.  There's also a link or two to other stories of interest in Connecticut.

• For those dealing with labor unions, the DC Employment Law Update notes that a new final rule from the government released yesterday revokes "the requirement that federal contractors inform employees of their rights regarding the payment of union dues or fees."

The blog also notes that it revokes another prior executive order from the Bush Administration that "had required that federal contractors post a notice to its employees informing them that: (1) they are not required to join or maintain membership in a labor union; and (2) that those who are not union members – but are nonetheless required to pay dues or fees pursuant to a union security agreement – can object to paying a portion of those dues or fees to support activities that are not related to collective bargaining, contract administration or grievance adjustment."

• The EEOC has outlined its regulatory agenda for early 2010. Workplace Prof has the details.
   
• The DOL has posted a few more nuggets of guidance about the COBRA subsidy now that it is starting to expire for some.  
   
• Intermittent leave is among the toughest parts of FMLA to oversee. HR Daily Advisor has some very helpful nuggets to try to make it a little easier.
   
• The Wait a Second blog (really one of the underrated blogs out there) provides a recap of a recent Second Circuit decision of Young v. Cooper Cameron Corp., in which the court ruled that the Fair Labor Standards Act does not exempt workers whose job skills are not customarily the product of advanced educational training.
   
• In case you missed it, there was a fun article in the Connecticut Law Tribune a few weeks back about two employment lawyers in the state who have found something in common besides the law. I know both David Rintoul and Mickey Busca and their new venture certainly allows them to "toot their own horn."  Kudos to the both of them.
   
• And finally, in light of the first night of Hanukkah tonight, let me extend warm holiday greetings and pass along two links to recipes for holiday treats that I've seen over the last week -- donuts and latkes.  The latke recipe is pretty close to my family's secret recipe so it's definitely worth a try.

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The New York Times this morning is reporting that a group of moderate Democratic Senators have been discussing a bill that would eliminate the "card check" provision from the Employee Free Choice Act legislation but would keep other aspects such as a speedy election.

According to the article:

Though some details remain to be worked out, under the expected revisions, union elections would have to be held within five or 10 days after 30 percent of workers signed cards favoring having a union. Currently, the campaigns often run two months.

To further address labor’s concerns that the election process is tilted in favor of employers, key senators are considering several measures. One would require employers to give union organizers access to company property. Another would bar employers from requiring workers to attend anti-union sessions that labor supporters deride as “captive audience meetings.”

Not surprisingly, the National Association of Manufacturers has derided this "compromise" because it still contains a binding arbitration provision.

Meanwhile, binding arbitration — a process that denies both employers and employees a voice — remains in the bill. Any labor bill that contains binding arbitration is unacceptable to employers, who need to actually run their companies in order to create products and pay employees.

This bill, if passed, would affect employers across the country, including those in Connecticut. 

This remains a fluid situation but with the votes as close as they are in the Senate, expect to hear more about it in the weeks to come. 

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The Connecticut Supreme Court, in a decision to be officially released next week, ruled Wednesday that several state workers can proceed with their claims that they were fired for political reasons in January 2003.

The decision in Conboy v. State of Connecticut (download here), arises from the state's decision in early 2003 to layoff over 2800 unionized workers. The employees claim that then-Governor Rowland targeted them (and their unions) because they did not support Gov. Rowland politically and because they were involved in a union.  They brought suit under Conn. Gen. Stat. 31-51q which applies constitutional protections to state workers in some instances.

While the case may have a big impact for this group of employees (and the class of workers that they intend to represent), for private employers that case will have a minimal impact. The issue the court was deciding was really the proper procedure for a lower court to use in deciding a motion to dismiss when certain basic jurisdictional facts are disputed by the parties. The Supreme Court said that it was inappropriate for the lower court to dismiss the case at this early stage because the employer's motivation for the layoffs was a fact in dispute (though nothing prevents the case from being dismissed once certain facts are known).  

While a news report on Wednesday suggested that the case will now be set for trial, the case is more likely to go through more motions and discovery as well as a request for class certification.  In short, this case is just beginning again.

For more feedback on the court's ruling (including an overture of settlement), the Associated Press has released this report.

 

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With the legislative session ending on Wednesday at midnight, there's a lot for employers to keep an eye out. Here's a quick summary of what's still alive and what's not, at the Connecticut General Assembly.

• Senate Bill 365 (S.B. 365) - A bill that would prohibit so-called captive audience meetings by employers (typically regarding a union campaign) passed the Senate on May 20th but is still awaiting a House vote. 
• Senate Bill 710 (S.B. 710) - A bill that instituted changes to the state FMLA laws was signed by the Governor on May 27th. It is effective immediately. 
• House Bill 5521 (H.B. 5521) - A bill that would prohibit employers from using credit reports as a basis for employment decisions is awaiting a possible senate vote after passage in the House on May 1th. 
• House Bill 6187 (H.B. 6187) - The so-called Paid Sick Leave bill passed on the House on May 28th and is still awaiting a vote in the Senate.  Time is running out for this bill.  There are 18 amendments that have been proposed for the Senate version of the bill and the CBIA released a statement this morning that said a vote could come at any time. 
• House Bill 6545 (H.B. 6545) - This bill is a late entry into the bills I've been watching regarding labor & employment law and just passed the House last night.  This bill provides collective bargaining rights to two groups of state employees who cannot collectively bargain under current law: (1) managers and (2) Legislative Branch employees of the State Capitol Police.

In addition to the above bills, I've previously covered House Bill 6185, which made changes to the state's personnel files laws and also changes to the gender discrimination law as well. 

Stay tuned....

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Since it is another snowy day here in Connecticut, it seems like another opportune time to post about some of the items worth reading and catching up on over the last few days.

• On Friday, President Obama announed three new executive orders that give broad power now to the Secretary of Labor.   These orders involve federal contractors and not the general workforce.  The World of Work blog has the details: 

• Economy in Government Contracting.  Denies federal contractors reimbursement for funds spent on activities designed to persuade employees to join or to not join a union, such as printed materials, consultants or meetings (activities sometimes known as "union busting"). 

• Notification of Employee Rights Under Federal Labor Laws.  Requires all federal contracts to require contractors to post a notice informing employees that they have a right either to join or  to not join a union. A prior order from President Bush, required contractors to post a notice informing employees that they had a right not to join a union.

• Nondisplacement of Qualified Workers Under Service Contracts.  Requires all federal contracts to include a provision requiring any contractor who assumes the contract from a previous contractor to retain that previous contractor's qualified employees.

• The Point of Law forum picks up on the recent story of Connecticut's Attorney General suggesting that AT&T be prohibited from laying off workers.  The real question is whether this is a unique situation or whether other employers could face similar action if they engaged in layoffs.  
   
• Despite the rhetoric surrounding the Employee Free Choice Act, union rolls in Connecticut actually grew from 15.6 to 16.9 percent of the workforce.  However, what is unclear from these statistics is the reasons WHY the rolls grew.  It is also too early to call this a trend but it is obvious that unions have at least stopped the constant drain. 
   
• The Florida Employment Law Blog discusses the new Ledbetter Fair Pay Act and suggests that one effect of the claim is to allow those receiving retirement benefits to sue.  It's an interesting theory and we'll have to see if courts interpret the law to allow for such claims. 

The Act also provides an avenue for retired employees to sue their former employers years after separation for their lost pensions. In theory, each time a former employee receives a pension check, the amount of which may have been determined as the result of past discriminatory pay practices, a new statute of limitations period begins to run. These potential plaintiffs would have the right to have their pension benefits recalculated if they were determined in a discriminatory fashion. Accordingly, companies may face the threat of litigation from former employees whose employment relationship ended years ago.

• Finally, the Ohio Employer's Law Blog has summarized various ways to avoid a lawsuit. As Jon is quick to note, "there is no sure-fire method to prevent a lawsuit from being filed", but these tips can provide a mental checklist for employers to consider to try to avoid litigation. 

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There's been some speculation this week that with the Republicans picking up an important 41st seat in the Senate in 2009 (thus having enough votes to filibuster theorhetically), the prospects for passage of the Employee Free Choice Act have gone down, at least in the short term.  I'd add to that notion that proponents will have a tough time passing a bill in this economic climate that its opponents will say will hurt U.S. jobs. 

Two other considerations: Today's unemployment numbers -- while not that unexpected if you've been reading the headlines -- still sound and look bad.  In additiion, there has been negative publicity for unions arising out of the U.S. car makers rescue plan (though an interesting counter to this is suggested by this article.) 

But employers are fooling themselves if they think that this bill (or some form of it) will disappear. It may end up being delayed, but it is certainly not dead. Indeed, it may be modified significantly, to make it more palatable to the Senate.

What this means for employers is that they may have some more time to prepare for EFCA's passage.  And employers who have not traditionally been targets of union organizing campaigns may find themselves unprepared.  Here are a few ideas to think about:

1.  Get HR Involved

• Bad economic times and uncertainty in the workplaces create situations that unions may seek to take advantage of.  Laying off staff -- particularly your front-line human resources employees -- may only make matters worse.  Thus, educating your HR staff now about the bill should be among the top priorities.  
• In doing so, review your current policies and practices to figure out where your vulnerabilities lay -- and your strengths as well.  Perhaps you have a weak anti-solicitiation provision or a policy that allow for unfettered e-mail distributions.  And perhaps, your company would welcome a union.  Either way, take a broad look at your situation to determine whether your company is positioned to handle a union organizing campaign. 

2. Emphasize Compliance and Fairness

• Make sure your HR staff AND your supervisors understand the importance of complying fully with applicable laws by treating employees fairly and in a non-discriminatory fashion.  Having prompt and effective communication is crucial in this process. In the absence of clear communications, employees will naturally insert rumor and speculation into it.   And don't forget to educate your supervisors about the do's and don'ts regarding unions.    Most importantly, make sure you aren't creating legal issues where they shouldn't exist; get outside counsel now to advise you on these types of issues and avoid potential pitfalls.

3. Develop a Strategy

• Once you've taken stock of your policies and procedures and worked with your HR staff to emphasize compliance, consider developing a business plan as to how you will respond to potential organizing campaign by the union.  Educating your employees about EFCA and the potential card check provision should obviously be part of that strategy.  And develop and use an open-door policy that gives employees a place to go to answer questions they might have (or even an internal webpage that might address FAQs). 
• Identify the people within the company who will be responsible for developing a quick-action response, if needed. Often times, employers learn about union organizing campaigns very late in the process.  Thus, develop a plan of action beforehand and work with outside counsel to be ready to go on a moment's notice one you learn of a campaign.

There are plenty of other sources on the topic this week, including the Labor and Employment Law Blog and EFCA Updates, (And for more on the provisions of EFCA itself, Walter Olson has added his thoughts).  Obviously, there is much more to this topic than can be summarized briefly in a post. But for employes who don't have unions, the time is now to start thinking about the effect that the bill's passage may have on their businesses. 

(H/T for some links, Ohio Employer's Law Blog)

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The Mashantucket Pequot Gaming Enterprise (more widely known as Foxwoods) and the UAW at Foxwoods have issued a joint press release moments ago that they have "reached a historic agreement to negotiate a union contract under Tribal Law, without either party waiving their rights under federal law."

The agreement comes after the parties agreed earlier this month to discuss the matter without waiving rights under federal law.  (For additional background, click here.)

As I indicated in an earlier post, an agreement by the UAW to negotiate under tribal law represents a major victory for Foxwoods in their quest to maintain tribal sovereignty and to have tribal law apply instead of federal law.  However, the agreement to negotiate a union contract still represents a solid victory for UAW because it will effectively end years of potential litigation (with no assurance of a victory at the end either).

According to the joint press release:

 

In resolutions passed Tuesday, the Mashantucket Pequot Tribal Council certified the UAW as the exclusive representative of a unit of table games, poker and dual-rate dealers and addressed other concerns raised by the union.

Both parties recognize the historic significance of this agreement and appreciate the fact that it could not have been accomplished without mutual respect for the legitimate concerns of all affected parties.

While today’s agreement is not a collective bargaining agreement, it permits the negotiations to start. Both parties are optimistic that it will result in a constructive dialogue leading to successful negotiations.

If the parties are unable to reach an agreement within five months, either of the parties has the right to have unresolved issues submitted to binding arbitration under the tribal system which provides for a final decision by a neutral party agreed to by the employer and the union.

I'll have more details soon as they become available, including expected press comment by Senators Dodd and Lieberman, Attorney General Blumenthal and the NLRB. 

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While most people are focusing on Connecticut's ruling legalizing same-sex marriages, word leaked out late today that the UAW and Foxwoods agreed to enter into discussions for a possible labor agreement.   (For background on the UAW/Foxwoods dispute, see prior blog coverage here.) 

The joint press release -- issued at 4:30 EST -- is brief but dramatic in its wording. 

Today - The UAW and the Mashantucket Pequot Gaming Enterprise agreed to enter into discussions for 30 days to determine if an agreement can be reached to bargain under tribal law without either party waiving any of their rights or legal positions under the National Labor Relations Act. 

The parties further agreed that they will not discuss the status of negotiations during this 30-day period.

If you blinked, you probably missed the biggest news contained here.  It's not that the parties agreed to enter into discussions; it is that the parties are working on an agreement under tribal law.  This is a major victory for Foxwoods and a major concession by the UAW, both of which have been fighting for nearly a year over tribal sovereignty and whether federal or tribal law should apply to UAW's efforts to organize workers at Foxwoods.

Foxwoods has long claimed that it is willing to negotiate -- but only if tribal law applied.  Why? Because Foxwoods believes that it has tribal sovereignty and that federal labor laws should not apply to it. 

The press release further notes that such discussions and negotiations are being done without "either party waiving any of their rights or legal positions" under federal law -- presumably referring to Foxwoods' appeals of various NLRB rulings. But it is likely that if the parties reach an agreement -- which is still a big if -- they will then agree to withdraw any further appeals.

Despite the apparent concession by the UAW, this announcement does have some potential to be a win-win situation for both. Foxwoods can avoid potentially damaging rulings by federal courts applying labor laws to it, and UAW can start representing workers -- albeit under tribal law.  

I'll have more analysis next week when I return from travels but in the meantime, feel free to post your comments below.

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While a generic post today about sick leave might be more appropriate today given my absence for a few days, there are some actual updates in the labor and employment law arena that need telling.

One such story is the ongoing saga in between the UAW and the Mashantucket Pequot Trial Nation, which runs the Foxwoods Resort Casino in Connecticut.

As readers will recall, in mid-July the NLRB issued a new Complaint against Foxwoods for its alleged refusal to bargain with the UAW over a new labor contract.

On late Friday, August 1st, Foxwoods issued its formal answer to the complaint, along with a press release. 

But as longtime readers should know, there really is nothing new in either.  Foxwoods continues to insist that it is willing to bargain with the workers under tribal law, just not under federal law.  Foxwoods continues to insist, as it has from the outset, that tribal sovereignty must apply to it.  And so, its answer was really a mere formality.

Both sides show no sign of deviating from the projected path; the next obvious step will be an appeal in the federal courts of appeal later this year.  Until then, both sides will likely to continue issuing press releases touting one occurrence or another. None of it matters much at this point until the appeal is decided. 

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Suppose you, as an employer, have union-backed employees. The union files a grievance on behalf of three employees alleging that they did not receive "premium" pay on three holidays.  Because the dipsute cannot be resolved, the matter is sent to arbitration. 

For some employers, defining the issue to be sent to arbitration may not seem that important; after all, the arbitrator will just hear evidence relating to the supposed issue and issue a decision consistent with that issue.

The Court Decision

But a case released by the Connecticut Supreme Court today (to be officially released August 5, 2008) demonstrates the importance of crafting language that specifies what the exact issue is and what remedies the arbitrator will have available to it.

In Office of Labor Relations v. New England Health Care Employees Union, District 1199 (download here), the parties submitted the above factual scenario to an arbitrator with the following issues listed:

Did the [s]tate violate [a]rticle [twenty-one] of the [agreement] in the [s]tate’s application of holiday designation and payment of holiday pay to the [g]rievants? If so, what shall be the appropriate remedy, consistent with the [agreement]?

The arbtirator rendered an award in favor of the union finding that the state did indeed violate the portion of the collective bargaining agreement.  In doing so, the arbtrator issued an decision that ordered that the employer had to change its holiday policy to give premium pay to all employees under the collective bargaining agreement on a going forward basis. 

The state appealed, first to the trial court, and then ultimately to the Connecticut Supreme Court, on the grounds that the arbtirator exceeded his authority when issuing the "remedy" because the arbitrator's decision applied to all employees, not the three employees on whose behalf the issue was grieved.

The Connecticut Supreme Court agreed with the state, finding that the question presented should be interpreted like any contract:

As we have stated previously herein, it is well settled that we read contracts of this nature in a way that will give effect to every provision and apply a common sense construction of the words used. Thus, the language of the submission and its internal structure indicate that the question of relief was intended to address the harm to the three individual grievants named in the first question.

In essence, the Supreme Court stated that it was common sense that the remedy could only address the three employees at issue; otherwise, the parties would have structured the request differently.

The Takeaway

So what's the takeaway from this case from an employer perspective (and indeed from a union perspective)? Take time to craft the issues for arbitration in as specific a fashion as possible.  While the Connecticut Supreme Court upheld the langauge that was used in this situation, the question presented to the arbitrator could have been more specific and the issue could have been avoided entirely.

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This should come as a surprise to no one, particuarly given my prior posts, but Foxwoods Casino (properly known as the Mashantucket Pequot Tribal Nation) today formally declined to bargain with the UAW over a contract for approximately 3000 table game dealers, setting up an appeal that will focus on sovereign immunity grounds. The Day first broke the story earlier this afternoon.

The Union's request for bargaining last week can be downloaded here. Foxwoods response today is available here. 

So, what's the general gist of the Tribe's argument declining bargaining?

In our view, the NLRB's effort to assert jurisdiction over Tribal gaming enterprises constitutes a serious breach by that agency of time-honored commitments made by the federal government to Indian Tribes in statutes and other laws that support and ecourage tribal self government and the building of strong tribal governmental institutions. 

The Tribe also goes on to note that the two presumptive nominees for President -- Senator Obama and Senator McCain -- have issued statements indicating their strong support for tribal sovereignty (though notably, not about this case). 

The Tribe included additional documents in support of its argument which are available here and here. 

Because the D.C. Circuit has already decided the San Manuel Casino case last year (which, in essence, allowed the NLRB to have jurisdiction over tribal casino workers), it is unlikely that the appeal will be filed there; instead, look for the Tribe to file in the Second Circuit where they will hope for a different outcome.   An appeal is not expected for at least several more weeks. 

Attorney General Richard Blumenthal issued a statement this afternoon "condeming" Foxwoods' decision.  Expect an amicus brief or intervenor brief from his office when the appeal is filed, as was done in the San Manuel case. 

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It's always interesting when the state agency responsible for enforcing discrimination claims is sued for discrimination itself. It's even more interesting when the agency takes a position that is opposite of the view of the EEOC.  But a case decided on July 7th by the Second Circuit Court of Appeals sets up that scenario. 

The case is Richardson v. CHRO (download here) and it resolves (at least in the Second Circuit) an important question for employers who have collective bargaining agreements with unions.  Namely, does Title VII (the federal anti-discrimination law on gender and race, among other protected categories) prohibit clauses that allow an employee to choose their remedy for discrimination complaints in a collective bargaining agreement or does such a clause constitute "discrimination". 

The Second Circuit, creating a split among the Courts of Appeals, agreed with the CHRO (and rejected the EEOC's interpretation).  In doing so, the Court said that such a clause is not prohibited by Title VII and is not discrimination.  

The Court's main holding is here:  

While there are limits on what a union may agree to in collective bargaining, Plaintiff’s union has not transgressed them by contracting to limit an employee’s legal recourse under certain circumstances. The collective bargaining agreement about which Plaintiff complains simply stipulates that an aggrieved employee may either arbitrate her grievance or file a charge with the CHRO describing that grievance.

Nor did the union discriminate against Plaintiff by adhering to the election-of-remedies provision after Plaintiff chose to file a charge with the CHRO. The union’s choice to adhere to its collective bargaining agreement in this case was indubitably non-discriminatory: the collective bargaining agreement does not constitute a waiver of any statutory rights under Gardner-Denver, and the defendants’ withdrawal from arbitration did not constitute retaliation because the forum-selection clause was a reasonable defensive measure to avoid duplicative proceedings in the two fora Richardson’s employer maintained for addressing discrimination complaints.

Here was the clause that the court approved of:

[D]isputes over claimed unlawful discrimination shall be subject to the grievance procedure but shall not be arbitrable if a complaint is filed with the Commission on Human Rights and Opportunities arising from the same common nucleus of operative fact.

In other words, the employee can aribtrate a discrimination complaint or file a charge with the state agency responsible for investigating discrimination complaints, but not both.  In so ruling, the Second Circuit upheld the lower court's granting of summary judgment to the CHRO and the union. 

As the Workplace Horizons blog is quick to note, (and as the decision acknowledges), this now creates a split in the circuits, meaning that at some point, the issue will be ripe for U.S. Supreme Court involvement.

In the short run, for employers this type of clause may be an important bargaining chip in negotiations with unions. Until now, some unions might balk at such a provision because they might believe it was unenforceable. This decision now gives both employers and unions some room to manuever in this area.  For employers looking to reduce costs, inserting such provisions may also help to avoid discrimination lawsuits by having employees use the grievance procedure instead.

Interesting footnote: The case was argued in February 2007 and decided in July 2008. Thus, for those that think the justice system always moves quickly, think again.

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The ongoing labor battles at Foxwoods took an interesting turn on Friday.  For the second time in a month, a group of workers at Foxwoods rejected efforts by a union to represent them.

This time, it was the off-track betting workers who decided that they did not want the United Auto Workers (UAW) to represent them.  It was a small group to be sure -- only 40 workers in the eligible group -- but the election was not that close: 13 voted in favor, 23 voted against (with 4 not voting).

Foxwoods was understandably pleased, as reported in The Day:

”We are very pleased that another group of employees has shown faith in Foxwoods management and their continued efforts to keep Foxwoods as a great place for employees and guests,” said Foxwoods President Barry Cregan in a prepared statement. “I am very pleased with the way our Race Book team members have conducted themselves.”

Given the UAW's victory in November to organize the poker and table game dealers (prior coverage here), it's loss here is a bit surprising.  Does this signal a shift in momentum? Much to early to tell, but it can't be a good sign for the unions that workers have rejected two efforts by unions to represent them in less than a month.

As for UAW's efforts to organize the poker and table game dealers, that efforts remains mired in appeals.  After the ALJ's decision, Foxwoods filed its exceptions to the decision in late March, which is available here. The union filed its response (not available online) and the parties are now awaiting a board decision.   Even after that decision, further appeals are likely. 

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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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Not unexpectedly, an Administrative Law Judge this week overruled Foxwoods' objections to the election of the UAW union as the representative for the table dealers (download ALJ decision here).  The Regional Director will certainly certify the election results.  At that point, Foxwoods is expected to refuse to bargain with the UAW which will set up further appeals.

As I said last fall, the tribe has already telegraphed its next move:

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.

Because I'm on trial, I'm only able to provide a quick summary of the decision.

Foxwoods had claimed that the ballots to the election should have been written in Chinese. That objection was overruled in a summary as follows:

Based on the totality of the evidence presented by the Employer and the Union, it is my opinion that the Employer has not established that any significant number of Chinese born unit employees had such difficulty with reading and understanding English that the failure to translate the ballot into Chinese could have affected the election. The employees presented by the employer did not represent a random sampling of the Chinese voters. And the evidence failed to convince me that any more than a few, at most, might have had any difficulty in understanding how to mark their ballots. (In a few of the cases, any difficulty they might have had could be attributable to their indifference). The Notices of the Election posted at the facility were in English and traditional Chinese. Both the Company and the Union communicated to the employees in English and Chinese by a wide variety of means. Additionally the Company held a series of meetings urging employees to vote “no” and explaining the election procedure. In some cases, meetings were conducted in English with a Chinese translator available to answer questions. In other cases, meetings were held where instructions about the balloting were given by a Chinese speaker. This was bolstered by mailed DVDs and pamphlets explaining the balloting procedure in various languages including Chinese.

Other objections, such as massed speeches, or intimidation, were also overturned.

As I have noted time and again, readers should not get too excited -- one way or the other -- on these types of decisions.  Foxwoods (and indeed, the UAW) is merely making a record for a likely appeal.  The real battles -- in the federal courts -- are still to come.

For a recap of ALL my prior Foxwoods coverage, click here.

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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 NLRB's hearing into Foxwoods' objections to the union election continues this week. The latest issue to resurface is one that has surfaced before -- tribal sovereignty.  As I've said previously, I believe this is the type of "big picture" issue that may ultimately take this case up to the U.S. Supreme Court. 

Because the case may ultimately end up in a higher court, I am certain that both sides are trying to lay the groundwork for such an appeal. For the tribe, that means raising the issue thoroughly and establishing a transcript and record that can be used later on. 

Reports of the hearing yesterday illustrate that this strategy was front and center is yesterday's hearing, with seemingly trivial issues over a subpoena becoming major issues. 

According to The Day (continuing its thorough coverage of the hearing):

Monday's arguments in the hearing, in which Foxwoods is disputing the results of a November vote by table-games dealers to unionize with the UAW, centered on whether the tribe's police department could or should respond to a National Labor Relations Board-issued subpoena.

Last week, a subpoena was served to the police department on behalf of the attorneys representing the UAW seeking a police report that was filed by a dealer at Foxwoods. ...

Elizabeth Conway, an attorney for the tribe, argued that the department was not subject to comply with the subpoena because it is “separate and distinct from the gaming enterprise.” The NLRB previously ruled that it has jurisdiction over the gaming enterprise.

...
[Raymond P. Green, an administrative law judge] asked why the police department doesn't just waive sovereign immunity and release the document.

Green said that without the document, it could be detrimental to the case, in that, he would discredit the witness' testimony. If the tribe's attorneys could produce the document, they should.

“The subpoena is almost a red herring,” Green said.

He continued by saying the tribe's attorneys used the witness as a sword, but when asked to back up her claims with the report, the tribe then held up a shield, using the sovereign immunity claim.

“There's no legitimate reason for it being held secret,” he said.

The judge is expected to rule on the issue in the next day or two. Meanwhile, the hearing continued with the Tribe resting its case and the union putting on several witnesses.  The hearing continues today.

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Are unions are dying breed? The answer to that question often depends on your perspective.  

As we've seen in Connecticut, if unions are "dying", they are not going down without a fight.

But statistics just released by the U.S. Department of Labor tell a more complete story.  The statistics show a leveling off of the decline in union membership that's been ongoing for the last two decades. 

The percentage of workers who belonged to a union in 2007 was 12.1 percentage, up slightly from the 12.0 percent in 2006.  (For comparison, union membership in 1983 was at approximately 20 percent.)

Indeed, unions can claim a 300,000+ union membership increase in 2007.  The full statistics are available from the U.S. Department of Labor on their website. 

The numbers for Connecticut also tell a noteworthy story:

• In 2006, 247,000 Connecticut workers belong to a union -- or 15.6 percent of the workforce.  This is higher than the national average.
• That number increased slightly in 2007 to 253,000 workers -- also 15.6 percent of the workforce.
• It is unclear from the survey whether this 6,000 worker increase includes the 2600 dealers who voted to unionize at Foxwoods last fall. As readers know, the election results are being appealed now.

For unions, the numbers in Connecticut show a relatively stable unionized workforce and should give them some solace that they are holding their own. And for employers, the numbers are a good reminder that unions still maintain sizable support in the state. 

Unions may be down overall from where they were decades ago, but they remain an important influence in today's workplace. Whether the numbers will decrease over time depends on so many factors -- including the possible passage of the Employee Free Choice Act -- that it would be irresponsible to predict what will happen.

But, the next time you read an article about how unions are going the way of the "horse and carriage", just remember that the statistics don't tell that story -- at least not yet.

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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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There's been a lot of good material this week and there just isn't time for full-fledged posts on each of them. But check these other posts for some additional information or background on various employment-law topics that may have an impact in Connecticut.

• The Word on Employment Law has a good alternative take on the Tribune Company's new employee handbook that I posted on yesterday.  Ultimately, I don't think John and I differ that much -- keeping handbooks readable to employees (and avoiding unnecessary legalese such as "whereas" or "notwithstanding the foregoing") is an important goal in any drafting exercise.  But making sure that your handbook doesn't confuse your employees or send your employees mixed messages is just as important as well.  The Ohio Employer's Blog has also added some insight too. 
  
• Overlawyered refers to a New York Times article over the weekend about the unintended consequences of the Americans with Disabilities Act.
• Ross' Employment Law Blog  talks about the decision late last week by U.S. Supreme Court' to take on three new employment law and ERISA cases this term.  The cases will address issues such as: "Is cooperating with internal investigation protected activity" and "Which party has burden of persuasion in establishing 'reasonable factors other than age.' under the ADEA."  It will also address the ERISA question of what standard of review should apply where a plan administrator both decides claims and pays claims.  Ohio Employer's Blog also chimes in on the subject as does the Workplace Prof. 
  
• Workplace Horizons reports on a potential new Microsoft program that would take employee monitoring to a whole new level.  A patent application by Microsoft describes a system of components that would use various "physiological or environmental sensors to detect at least one of heart rate, galvanic skin response, EMG, brain signals, respiration rate, body temperature, movement, facial movements, facial expressions, and blood pressure.”
• And finally, there was this amusing article from the BBC which asks the question: Why Do U.S. Pickets Walk in Circles? (H/T Workplace Prof.)  Apparently, union workers strike differently over the big pond.
  

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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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Readers of the blog will no doubt know that the battle for unionization at Foxwoods Resort Casino  is one of the most significant labor issues in Connecticut in many years.  A hearing on the tribe's objections to the election of UAW is scheduled to begin on Tuesday, Januay 15th, which I've discussed before.

In advance of that hearing, The Day (which has been on top of the election throughout) published a very interesting column today by Timothy "Quietbear" Walker entitled Work With Tribe, Avoid Turf War.  

Walker, a citizen of the Mashantucket Pequot Tribal Nation, shifts the discussion from the objections to the election -- which contests the way the election was run -- to larger issues of tribal sovereignty, which it has raised before to no avail so far.  As Walker notes, "the battle is over the NLRB reversing 30 years of federal policy because of the actions of one small tribal group in California."
 
Walker argues that the NLRB's recent decision to exercise jurisdiction over tribal enterprises in some situations (including a tribal casino in California) is unfair and flawed. He argues that Tribes have the legal right to govern labor relations on tribal lands:  "Each tribal nation has the inherent authority to pass its own laws, tax its citizens, and determine the structure and operation of its government."

In doing so, he points to statement which he says "the federal government acknowledges 'the sovereign status of federally recognized Indian tribes as domestic dependent nations'".  What is this document? A June 1, 1995 Memorandum on Indian Soveriegnty by the U.S. Attorney General, which can be found here.  Its worth reading to understand that the "tribal sovereignty" is among the most wide-ranging and important rules for federally-recognized Indian tribes.

Walker's column argues that public education does a poor job of explaining this and argues that  many American were probably not aware that Native Americans were still around until the "media buzz on Indian Gaming".  He thus suggests that "15 minutes of research on the Internet will provide anyone interested with a simple understanding of the major issues being debated."  With the advent of Google, such information is now at your fingertips.

There are also two museums that are, frankly, worth visiting as well to get a better understanding.  (My law school did a good job explaining it, but its a little more expensive.) In Connecticut, the Mashantucket Pequot Museum and Research Center is a sight to see. 

And In Washington, D.C., the National Museum of the American Indian has tons of information -- much of it from a different perspective than most have probably been taught.  I had the opportunity to visit it last month and would highly recommend adding it to your itenerary on your next visit. 

(Hat Tip to Workplace Horizons Blog, which covered this today; the lawfirm behind the blog, Kilpatrick Stockton, has been representing Foxwoods in the UAW/Foxwoods dispute.)

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On Friday afternoon -- conveniently right before a long holiday weekend -- the NLRB dropped a significant decision on an important issue -- whether an employer may set up a policy that, in turn, prohibits employees from using the employer's e-mail system for any "non-job-related solicitations." 

The NLRB answered "yes" in the case of The Guard Publishing Company d/b/a The Register-Guard,  351 NLRB No. 70.

The NLRB issued a lengthy press release discussing the case available here which also addressed some additional, and no less significant, issues:

The employer’s written policy prohibited the use of e-mail for “non-job-related solicitations.” In practice, the employer allowed a number of nonwork-related employee e-mails, but there was no evidence that it permitted e-mails urging support for groups or organizations. ... 

Addressing the maintenance of the policy, the Board majority of Chairman Battista and Members Schaumber and Kirsanow reasoned that under Board precedent, employees have no statutory right to use an employer’s equipment for Section 7 purposes. The majority found that Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), in which the Court held that a ban on solicitation during nonworking time was unlawful absent special circumstances, was inapplicable to the use of an employer’s e-mail system, because Republic Aviation involved only face-to-face solicitation, not the use of employer equipment. The majority noted that the use of e-mail “has not changed the pattern of industrial life at the Respondent’s facility to the extent that the forms of workplace communication sanctioned in Republic Aviation have been rendered useless . . . . Consequently, we find no basis in this case to refrain from applying the settled principle that, absent discrimination, employees have no statutory right to use an employer’s equipment or media for Section 7 communications.” Therefore, the majority concluded, the maintenance of the policy did not violate Section 8(a)(1).

With respect to the alleged discriminatory application of the policy to Prozanski’s e-mails, the majority clarified that “discrimination under the Act means drawing a distinction along Section 7 lines.” The majority adopted the reasoning of the United States Court of Appeals for the Seventh Circuit, noting that in two cases involving the use of employer bulletin boards, the court had distinguished between personal nonwork-related postings such as for-sale notices and wedding announcements, on the one hand, and “group” or “organizational” postings such as union materials on the other. See Fleming Companies v. NLRB, 349 F.3d 968, 975 (7th Cir. 2003), denying enf. to 336 NLRB 192 (2001); and Guardian Industries Corp. v. NLRB, 49 F.3d 317, 319-320 (7th Cir. 1995), denying enf. to 313 NLRB 1275 (1994). The Board majority found that the court’s analysis, “rather than existing Board precedent, better reflects the principle that discrimination means the unequal treatment of equals.” The majority overruled the Board’s decisions in Fleming, Guardian, and other similar cases to the extent they were inconsistent with its decision here.

The case has already been written about by The New York Times, and discussed at length by several blogs over the weekend, including Workplace Prof (which heavily criticizes the decision), Ross Runkel's NLRB Law Memo, Workplace Horizons, Eye on the NLRB, and Pennsylvania Employment Law Blog, so I won't repeat their thorough coverage here (plus I'm technically on "vacation").

But a few thoughts immediately come to mind:

1) Employers will need to consider revising their employment policies on use of electronic mail and intranets immediately to take advantage of the protections this case offers.  After the new year, I'll add more on this as the analysis of the case becomes clear.

2) For the non-labor lawyers or non-union employers, you may be wondering what the fuss is all about. After all, limiting employees' use of the e-mail system to work-related conduct is something that many employers preach. Some even go further with computer-aided limits on sites with personal e-mail accounts, etc.  For these employers, the decision may not seem as ground-breaking, but nevertheless, it allows the employer to create an employment policy that brings consistency and identifible limits. 

3) The case seems to distringuish between "solicitation" and general announcements.  You wonder, however, how this will apply in a practical sense. Will employees try to couch future e-mails as informational -- even when they may just be solicitations dressed up with "informational" language?

Of course, should the makeup of the NLRB change after the next election cycle, all bets are off on whether this case continues to be binding precedent.

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We all love surveys and rankings.  From Family Feud to U.S. News School Rankings to American Idol - we love to know who is up, who is down, who is the best and who is the worst.

But some surveys and rankings just don't add up.  Last week, a group calling itself the Alliance for Worker Freedom, ranked each state on an Index of "worker freedom".  (The group, according to its website, "was founded in 2004 to combat anti-worker, pro-union legislation and educate the public about the plight to protect workers rights.")  It contends that the "2007 Index of Worker Freedom (IWF) is the first state-by-state comparative study that measures the level of worker freedom by analyzing actual policy as well as quantitative state data."

And how does Connecticut rank, according to the survey? Survey says: Dead last, with a letter grade of "F". 

What does this mean? Beats me. I can't make any sense out of it.  For example, the state receives zero points because its minimum wage is above the federal minimum wage. Huh? Certainly, in Connecticut, where the cost of living is much higher -- it hardly seems "anti-worker" to have the minimum wage be $7.65.  And Ohio, which has a higher percentage of union workers than Connecticut, receives a "C+", so go figure.

And therein lies the tragedy with surveys like this. They do little to educate the public about the labor and employment facts of a particular state, relying only on an easy to remember "grade system".  

(Hat Tip: Workplace Horizons)

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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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