starrMy colleague Gary Starr returns today with a decision from the Second Circuit (which covers Connecticut) that may just surprise you. Then again, if you’ve been following this line of reasoning, perhaps not.

There are outer limits to insulting speech, but a recent decision seems to indicate that it is really really far out there.

The questions up for consideration: When can an employer fire an employee for profanity during a union organizing drive?  When does the employee who stoops to insult not only his supervisor, but his mother, lost the protection of the National Labor Relations Act?

The Second Circuit faced these questions and provided a glimmer of hope for employers.

During the course of a nasty union organizing drive at a catering company, an employee became very upset at what he considered the employer’s continued disrespect for the employees.

In response, Perez used his iPhone during a work break to post the following:  “Bob [his supervisor] is such a NASTY MOTHER F****R don’t know how to talk to people!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!”

Perez had about ten other employees as friends on Facebook, but the post was also available to the public. Management learned of the post, investigated, and then fired Perez, just days before the election.

An administrative law judge found that the firing violated the law as Perez was engaged in protected, concerted activities.  This decision was upheld by the NLRB.  The case was then appealed to the Second Circuit.

At the court, the question was whether the post exceeded the bounds of protection by using profanity and insulting the supervisor’s mother.

While the Court in NLRB v. Pier Sixty was disturbed by the language and by the Labor Board’s failure to adequately take into account the employer’s interests in assessing how to evaluate a social media posts, it nonetheless, found a violation of labor law by the employer.

The Court noted that the employer had not disciplined many others for profanity in the past, even though profanity was a common occurrence in the kitchen,  that the language was not used at a catered event or in front of customers, that the message focused on matters that are protected, concerns about respect, that the message concluded by urging readers to vote for the union, and that the discharge occurred two days before the voting.

While the Second Circuit upheld the Labor Board’s decision, it sent a message that these facts are on the “outer-bounds of protected, union-related comments.”   It cautioned the Labor Board that it needed to be sensitive to employers’ legitimate disciplinary interests and to properly balance the competing interests of employees, unions and employers.

The facts in this case presented the court with hurdles it could not get over.  Profanity was common in the workplace, employees had not been disciplined for using profanity in the past, and the incident was almost on the eve of the union vote.  The employer was unable to show that the posting online had harmed its business.  But in another context, using union organizing as a shield to insult supervisors’ mothers may not work.

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 thcourtesy morgue file "factory" - NOT public domaine 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)

Just days after the UAW suffered a defeat in trying to organize off-track betting workers at courtesy morgue file "slot"Foxwoods, the UAW has decided to withdraw its petition to represent a group of about 80-120 slot technicians.  The decision also came just hours before a hearing was to be held on the subject.  The withdrawal allows the UAW to re-file a petition again, though none is expected anytime soon. 

The Day continues its excellent coverage of the ongoing labor battles at Foxwoods with an article about the election in today’s paper.

As you will see, although I am not involved in the matter, I have provided some observations for the article.  There may be several reasons why the union withdrew its petition, but with neither side commenting on it, the most likely reason is that the UAW believed that it did not have support among the slot technicians and would likely lose the election. 

If that occurred, there would be a one-year bar to trying to re-organize.  Moreover, it would have been the third straight defeat for union organizing efforts at Foxwoods — not a pattern that the unions would like to have publicized.

Perhaps the observation by The Day is correct:

The withdrawal signals a slowing in the momentum that labor unions appeared to have been gaining at Foxwoods ever since the UAW won the right to represent nearly 3,000 poker and table-game dealers in November.

I’ll repeat what I said last fall when the organizing efforts first became public: This event is likely to take several years with lots of ups and downs between now and then.  Right now, both Foxwoods and UAW can claim some victories but the ultimate battles still lie ahead.

With a union election set for this Saturday, Foxwoods has asked the NLRB to stay the election in a motion filed today. 

In its Motion to Stay (download here), and perhaps recognizing the uphill battle it faces in getting the election stayed, Foxwoods has pointed out time and again the unique nature of its arguments. (In many election matters where there is an issue, the vote would occur with the ballots impounded).  Essentially, Foxwoods is claiming that the very act of performing an election on tribal lands is the most troubling aspect of the NLRB’s decision to hold an election and therefore the election should be postponed until its request can be heard.

Foxwoods argues as follows:

Unlike most circumstances encountered by the Board, impounding the ballots would not “preserve all contested issues for Board determination” because the appropriateness of conducting an election is the most significant contested issue. And the mere act of conducting an election is arguably more offensive to Tribal sovereignty than counting the ballots.

Few acts would offend a government’s sovereignty more than for another government to send a team of agents inside its boundaries to conduct an official election. That is especially true where, as here, the Nation has its own labor laws and its own election procedures.  If the Regional Director for Region 34 were to conduct an election within the Nation’s boundaries while the Board’s jurisdiction is still an open question, it would unnecessarily and prematurely cast a cloud over the Nation’s laws and over the Nation’s sovereignty. The United States’ policy of government to government consultation would be transformed to a policy of “act first, consult later.”

Foxwoods also today filed a motion to consolidate several different matters pending before the NLRB into one for convenience and judicial economy. 

We’ve previously posted about the election here and here, and noted that this case is likely to be a battle because of the issues at stake.  The decision and the request to review the decision are noteworthy for the unique issues that they raise:

  • The decision ordering the election can be downloaded here
  • Foxwoods’ original request for review, which is still pending with the NLRB, and was filed earlier this month can be downloaded here
  • The union’s brief in opposition can be downloaded here. 

The NLRB is not known for its promptness in reaching decisions but given the high-profile nature of this case, it will be interesting to see what they do.  Because the NLRB does not like postponing elections, as a general rule, I suspect that they will allow the election to go forward and impound the ballots but given the nature of this case, all bets are off.

11/25/07 Update: Dealers voted in favor of UAW. Details can be found here.

As I noted nearly a month ago, the historic battle for recognition by UAW at Foxwoods Casino was likely to be a long drawn-out affair.  As with any boxing match, it can be foolish to to draw any conclusions by what happens when the first few punches are thrown. 

The UAW landed a soft punch first with the decision this afternoon of NLRB Regional Director Peter Hoffman that Foxwoods must hold an election and that the NLRB has the authority to oversee the vote. 

The decision, however, cannot come as a surprise at all based on recent NLRB and court decisions.  Specifically, 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.  It would’ve been highly unlikely that a Regional Director would go against such precedent here. 

The Day, of New London reports this evening that Foxwoods has issued a statement strongly disagreeing with the decision.  In doing so, the tribe signaled a possibility that an appeal to the NLRB would follow in the next 14 days:

“We strongly disagree with the regional director’s decision.  The UAW would like people to believe that this issue is about the right to organize; this is not the case. The issue is one of respecting the Tribe as a government. The Tribe has enacted a Tribal Labor Relations Law which gives employees the right to organize and bargain collectively if they choose. Tribal employees are government employees, in the same way that State employees are government employees and the Tribal law was modeled after other government’s labor laws, including Connecticut’s.

“We strongly believe that the NLRB does not have jurisdiction as the Tribe is the governing body which has the inherent authority to regulate employment on its reservation and it has historically done so. The UAW would like people to believe that the Tribe is not being fair-in fact it is the Union that is not being fair. There is a simple way to respect the Tribe as a government and at the same time address any organizing interests of our employees. That would be to file the petition pursuant to Tribal law. The UAW would prefer to litigate this for years to come in their attempt to undermine Tribal government, instead of respecting what they claim are employee concerns and addressing their issues in the tribal forum.”

The Day, went on to report that UAW representatives were "ecstatic" when they learned of the news. 

While Union officials can certainly be pleased that they made it through this straightforward first step, it is worth noting that union officials in the San Manuel case were probably happy when they first filed their papers…in 1999.  Yes, you read that correctly; it took nearly eight years for the San Manuel case to make its way through the NLRB and then the courts.  The Tribe’s reference for litigation "for years to come" is certainly on the mark. 

Will this case move more quickly? Probably. But not THAT quickly. That’s not how the NLRB typically works. Indeed, given the snail’s pace that the NLRB often seems to work at, its unlikely that either side will see a quick resolution to this issue  — certainly not in the next few months.

What to expect next? Expect to hear that an appeal has been filed and then expect to wait much longer than that to find out the results of such an appeal.  Absent some major changes or developments, the battle is just beginning.

USA Today reports that the United Auto Workers (who are dominating the headlines this week with their strike and settlement with General Motors) filed formal petition papers with the National Labor Relations Board this morning to form a union of approximately 3000 dealers at Foxwoods Casino in Connecticut.

Conventional wisdom is that unions do not file for petitions for elections until and unless they get a wide majority of employees to sign cards to force a vote (even though the threshold is a mere 30%).  Union officials, according to the article, confirmed that they have such a "supermajority". 

Of course, whether those employees will ultimately vote for the union during a closed-ballot election remains unknown.  Certainly, the casino — as with other employers who may not believe a union is in the best interests of its employees — will likely use the time before the election to try to convince its employees to vote against unionization.

Because Foxwoods is the largest casino in the world (an amazing concept when you think about it), and because casino workers at tribal casinos are largely non-unionized, this case may have tremendous symbolism going forward.  (Indeed, Attorney General Richard Blumenthal recognized this earlier today.)

Unions, in general, have suffered drops in their ranks, while tribal casinos have been going through unparalleled growth.  In fact, this union organization drive is likely to be one of the largest that Connecticut has seen in decades.

For employers in Connecticut, the case is a simple reminder that unions still have tremendous influence and drive in certain industries.  They may be down, but they are certainly not "out".   Well-run unions (and there certainly are those out there) should not be underestimated.

Unions have always thrived in situations where (rightly or wrongly) employees are perceived as being mistreated or not heard.  (It should also be noted that unions have also peacefully co-existed with plenty of other well-run companies too.)  Because the tribal casinos in Connecticut have been perceived as being run without much government oversight, the situation was ripe for unions to attempt to enter them.

Expect to hear about this case for many months to come.  Will this be a stinging defeat for unions or the start of something much larger at the casinos? Its honestly to early to tell. But there is one thing that you can bet on  — its going to be an epic battle.