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.

2016labordayWhy do we celebrate Labor Day?

And should it be celebrated on a Tuesday instead?

It’s one of those holidays that we celebrate, but my guess is that most people have no idea on the answer.  But several (many?) years ago, I touched on this on the blog and I thought it would be fun to resurrect some of those facts.

Indeed, Slate magazine had a good explainer way back in 2010 on the subject.  Turns out Grover Cleveland has a lot to do with it but its origins go back even further than that.

Though President Grover Cleveland declared Labor Day a national holiday in 1894, the occasion was first observed on Sept. 5, 1882, in New York City. A parade was organized by the city’s Central Labor Union, a branch of the Noble Order of the Knights of Labor, a secretive labor union founded in 1869 by a clique of Philadelphia tailors. Historians still debate over whom, specifically, to credit with the idea of a holiday dedicated to the workingman. Some say that Labor Day was the brainchild of Peter J. McGuire, co-founder of the American Federation of Labor. Others argue that Matthew Maguire, the CLU’s secretary, was the holiday’s mastermind and that he doesn’t receive proper credit because he ticked off the mainstream labor movement by running for vice president on the National Socialist Labor Party ticket in 1896.

According to Ted Watt’s The First Labor Day Parade, the September date was chosen because it coincided with a Knights of Labor conference in New York, thus guaranteeing a sizable turnout for the festivities. Though the event wasn’t particularly festive, at least by today’s standards: It resembled a protest far more than a parade, with CLU members required to march in support of the eight-hour workday. (Those who ditched faced fines.)

The U.S. Department of Labor’s website delves into the controversy over how the holiday started as well with this background explainer page too.

More than 100 years after the first Labor Day observance, there is still some doubt as to who first proposed the holiday for workers.

The most fascinating part to me was that it was first celebrated on a Tuesday!

But now, every year, the USDOL devotes new webpages to this day.  And it even posted a video about the work it is doing on the subject. 

And how did such a holiday then become the traditional end to the summer season? Well, I’ll leave that to the experts. But in the meantime, enjoy this list of top 10 workplace songs (plus some alternates).  And be sure to check out the comments on the post where my labor law friends post a “union-friendly” list too including “Bread and Roses”.  

nevermindThe Supreme Court today issued a decision in one of the most anticipated cases of the session on whether public employees could be forced to pay fees to a union that they didn’t want to belong to.

And in doing so, the court showed what happens in 4-4 splits: Nothing.

Well, that’s not entirely accurate: The court did issue a one sentence “per curiam” ruling in Freidrichs v. California Teachers Association: “The judgment is affirmed by an equally divided Court.”

And because the lower court ruling affirmed the use of these fees, public unions live to see another day.

That’s it? Yep.  We’ll have to wait until the court is back to a full contingent and hears a similar case.

It reminds me of that old routine by the glorious Gilda Radner: Never Mind!

 

Next week, I will be speaking at the CBIA Annual HR Conference along with my colleague Jarad Lucan about why you should care about the NLRB.

Unfortunately, if you don’t already have tickets, it’s sold out. It’s being held at the Radisson in Cromwell, Connecticut and features some great topics for consideration. 

But the basic gist of our presentation will be a continuation of some of the themes I’ve talked about before on the blog (here, here and here, for example) — namely that the NLRB is continuing to expand its sphere of influence.

Naturally, our presentation is entitled: “The NLRB in 2016: Why it May Be Your Biggest Headache — Particularly If You Don’t Have a Union.”

For employers that are used to dealing with unions in their workplace, many of these issues won’t be a surprise.

But as I’ve talked about before, the NLRB has been critical of even those employers without unions.  The Triple Play case regarding discipline of employees for comments on Facebook is a perfect example.

For employers then, it’s important to understand the concept of “protected concerted activities” and the fact that any employee — whether a union member or not — may be protected by federal law for his or her actions.

If you’re attending the CBIA’s HR Conference next week, feel free to say “hi”.  Should be a great event.

Two women strikers from Ladies Tailors union on picket line during the garment workers strike, 1910, New York City - Library of Congress
Two women strikers from Ladies Tailors union on picket line during the garment workers strike, 1910, New York City – Library of Congress

The death of unions has been predicted time and again.

Each time a new round of statistics come out, we (me included) try to make some sense of it.

Just check out some of my posts from the last several years.

So, a few weeks back, a new round of statistics was released.

And once again, the latest numbers show big gains for unions in the state.  In 2013, union representation stood at just 220,000 people (or 14.3 percent of the workforce).  By 2015, that number jumped to 277,000 (or 17.4 percent of the workforce).

That represents an increase of nearly 25 percent over the last two years.

Last year, the agency cautioned that the change may not be as large as it appears because “Connecticut has a small sample size in the survey” (according to a Hartford Courant report).

Indeed, Connecticut private businesses expanded employment across all sectors in 2015 by adding 22,600 jobs.  So, the statistics make it seem that nearly all of that gain (and the loss of 400 jobs from the public sector) went to unions.

Something doesn’t add up.

Nevertheless, I think it’s fair to conclude that the unions in the state are more than holding their own in Connecticut.

Nationally, union membership rate stands at 11.1 percent — unchanged from 2014, but down from 20.1 percent since 1983.

 

 

 

robertsFirst things first. My favorite David Bowie song is “Heroes” (though I remember really being struck by its use in the 2001 movie, Moulin Rouge).

But the Bowie song that comes to mind today for various reasons is “Changes” and how it ties into another big story of the day — an oral argument before the U.S. Supreme Court in a case involving public employers.

At issue is whether public employees who do not want to be part of a union can still be required to pay an “agency fee”, which is typically the equivalent of the dues that union members pay as well.

The case is revisiting a 1977 case (the Abood case if you’re interested) which that requiring non-union members to pay fees for collective bargaining was constitutional.

The SCOTUSBlog sets up the argument on behalf of the non-union members like this:

Here is their logic: because unions cannot charge non-members for political activity and since non-members argue that everything a public-sector union does — even bargaining — is political in nature, it follows that any fees violate their First Amendment right not to pay for activity to which they object. Their target, in union parlance, is the “agency fee.”

The State of Connecticut has come out firmly on the side of upholding the current law.  In November 2015, it joined an amicus brief from New York urging the court to not change the current law and leave it to the state to determine the full scope.

It noted that 23 states permit these “agency fees” (also known as “fair share” fees) to “provide a mechanism for ensuring that represented employees contribute to  union costs germane to collective bargaining. The majority of these statutes make agency-fee requirements a permissible subject of bargaining and  authorize (but do not require) agency-fee provisions as part of public-sector collective-bargaining agreements.”
In the amicus brief, New York (and Connecticut) argue that the court should uphold the current scheme “recognizing that the government must have flexibility to manage its own internal operations, especially with respect to
matters affecting the delivery of government services.”

Why is this important, according to the states? A few things:

A lack of adequate funding can reduce a union’s ability to maintain the staff expertise necessary to perform collective-bargaining functions. Eliminating agency fees as a secure funding mechanism may require unions to focus disproportionate effort on recruiting members and collecting fees, thereby diverting attention from bargaining and contract-administration responsibilities. Moreover, the absence of secure funding may create skewed incentives for unions to make excessive bargaining demands or disparage management as antagonistic to labor, in order to encourage employees to give financial support.

Notably, a separate amicus brief filed by 18 other states argue the opposite.

It is time to abandon the meaningless distinction between collective bargaining and other political activity.  In the public sector, core collective bargaining topics such as wages, pensions, and benefits inherently implicate public policy, and in ways that matter.

Like lobbyists, public sector unions obtain binding agreements from the government that have enormous public impact — all without the natural counterweight of a financial market that exists in the private sector. In the public sector, it is taxpayers, not business owners and consumers, who foot the bill — and the bill is often steep.

Some pundits predict that the court will strike down agency fees.  Consistent with my post lack week, I won’t make any such predictions, but this case has significant implications obviously for public employers and it’ll be interesting to watch whether there will be any impact on private employers as well.

In any event, stay tuned and be sure to listen to some David Bowie in the meantime.

The U.S. Department of Labor has released their annual statistics on labor union membership.  Nationwide, union membership is down slightly by .2 percent. In total, about 11 percent of the workforce belongs to a union.  Compared to 2008, when I reported on these statistics, the number is down by a full percentage point.

The numbers for Connecticut tell a slightly different story.  Back in 2006, 246,000 people belonged to a union or 15.6 of the workforce.  But the percentage went up during the recession as unemployment rates skyrocketed.  By 2010, the percentage of union represented employees was up to 17.4 percent, even though the raw numbers of people represented by unions decreased markedly.

Where do things stand now? Unions seem to be making a comeback in the state last year.  Union representation for 2013 stood at just 220,000 people, or 14.3 percent of the workforce. Last year, in 2014, however, that number skyrocketed to 245,000, or 15.7 percent of the workforce.

We can put the statistics in another way: In 2014, union representation in Connecticut last year increased by over 10 percent. That’s a big gain by any measure.  But it still just gets the unions back to where they stood in 2006.

Before we draw too many conclusions, however, I’m still having a hard time having faith in the numbers.  Connecticut released its own private sector employment numbers (without regard to union membership.)

For 2014, approximately 25,700 jobs were created in the private sector (almost the same number projected for union growth by the USDOL.) Are we to assume that only union jobs were created? Or that unions took over previously non-represented individuals in droves? If not, how do we reconcile the big increase from the USDOL?

So, take the statistics with a few grains of salt.

In any event, the statistics continue to show that unions still have a big role to play in the state. Having experienced labor counsel at your side still seems like a good bet for the foreseeable future.

Late yesterday, Twitter lit up with news that collegiate student athletes are really “employees”.  But beyond the headline, my colleague Jarad Lucan explains what REALLY happened in plain English. Suffice to say, even though it’s March Madness, you might not want to bet on that result just yet.

Many of you may remember a few weeks ago when I joyously reported on an advice memorandum issued by the NLRB’s Office of the General Counsel that was favorable to an employer.

Well, that was February. Welcome to March Madness.

 In a decision that calls for one of Dick Vitale’s signature “Are you serious?!” sound bites, the NLRB’s Regional Director in Chicago determined that the grant-in-aid scholarship football players at Northwestern University are employees of the University.

According to the Regional Director, these football players generate tens of millions of dollars per year for the University (approximately $235 million in nine year period between 2003 and 2012). In return, the receive “compensation” from the University in the form of scholarships.

That the scholarships are a transfer of economic value is evident from the fact that the Employer pays for players’ tuition, fees, room, board, and books for up to five years. Indeed the monetary value of these scholarships totals as much as $76,000 per calendar year and results in each player receiving total compensation in excess of one quarter of a million dollars throughout the four or five years they perform football duties for the Employer.

Now, I know what some of you are thinking, well that’s great for those football players, but they are getting an education for free in return for the scholarship. After all they are “student-athletes,” right?

Not according to the Regional Director.

Based on the evidence presented, the Regional Director stated that the grant-in-aid scholarship football players are not “primarily students.”

Can you imagine that? In reaching that conclusion, the Regional Director distinguished the football players from graduate students who according to the NLRB’s 2004 Brown University case were not employees of the University.

Also important to the Regional Director’s decision was the fact that the grant-in-aid football players are subject to the control of the University. The players signed “tender” agreements upon acceptance of a scholarship that sets the duration and conditions under which their “compensation” will be provided to them. They are subjected to rigorous practice, travel and competition schedules and are limited (by NCAA and University rules) in their ability to make their own living arrangements, apply for outside employment, drive personal vehicles, travel off campus, post items on the internet, or speak to the media.

In that regard, the Regional Director determined that walk-on players were not employees because they are not tied to the same restrictions as scholarship players. They are students who simply love football.

It is too early to determine what impact of this decision will have on employers in the future. Arguably, the case was decided based on the specific set of facts presented (i.e., a University football program that generates millions of dollars and places highly restrictive conditions on its players). Also, it may not have much applicability outside of the private university and college setting (other than being one of the most fascinating decisions rendered in a long time).

But perhaps more importantly, this is certainly not going to be the last word on this issue. The University has until April 9, 2014 to seek review of this decision with the NLRB in Washington, D.C.  And Northwestern still has various other options (i.e., stop giving scholarships as the Ivy League schools did, agree they are employees and bargain hard, possible lockout).

And even if the University does seek review, the grant-in-aid scholarship football players will still have an opportunity to vote on whether they would like to be represented by the College Athletes Players Associations (CAPA) for purposes of dealing with the University concerning grievance, labor disputes, wages, rates of pay, hours of employment, and conditions of work.

So, despite the stories you read yesterday, the Regional Director’s decision is not the last word on this.  It’s just the opening (or, as the NCAA would say, the “first”) round.

You might wonder why certain employers aren’t unionized.  There are many factors, of course, but one of them is a keen awareness by the employer of the risks that are out there.

Target is one of those employers.

Earlier this week, Gawker acquired one of the videos that Target uses to educate its workforce on what it thinks about unionization.  It’s pretty slick.

There are many aspects to the video that show its sophistication in today’s workforce.  For example, it highlights the benefits of its own open door policy while also suggesting that if a union were to come in, it may have to change.

Indeed, if you watch the video, there are a lot of “mays” in it.  Why? Because the company — like all other companies that engage in such strong union avoidance strategies — wants to be sure that its messages don’t run afoul of the strict rules enforced by the NLRB.  By suggesting that some things might happen if a union comes in, the company plants the seed of something happening without committing to it.

Jon Hyman at the Ohio Employer’s Law Blog (who tipped me off to this), has accurately noted that while the video is nice, your company doesn’t need something similar. He suggests that “TEAM approach to union avoidance:

  • Train supervisors
  • Educate employees
  • Accessibility
  • Modernize policies

As Jon goes on to note, “understanding that union avoidance starts as soon as an employee walks in your door about applying for a job, and not as soon as a labor union approaches your employees about signing authorization cards, is the first step in honing the right strategy that will keep your company union free.”

If you are wondering if this approach is right for your company, be sure to consult with your preferred counsel who has experience in both union and non-union work environments.

And if you want to watch the 2011 version of the same video (the sound may be an issue), check out the video below.

Last Friday, lawyers representing two government officials petitioned the U.S. Supreme Court to hear arguments over whether former a 2002 state decision to layoff only union personnel violated those employee’s constitutional rights.

Back in June 2013, you may recall that the Second Circuit ruled that such layoffs did violate the right of association.  I’ve discussed the background of the case (and my very early involvement in it) in several prior posts.

In asking the Supreme Court to review the case, the officials state that there are two questions for the court to consider:

1. Are a governor’s subjective motives for exercising a state’s inherent power and contractual right to reduce the size of its unionized workforce legally relevant when a court is asked to determine the constitutionality of that legislative act?

2. Did the Second Circuit err in requiring strict scrutiny of a governor’s decision to reduce the size of a state’s unionized workforce by falsely analogizing that decision to firing state employees based on their political party affiliation?

You can download the filing here.

Part of the officials’ argument is that there should be a difference between an executive order to eliminate positions (a “legislative” act, according to the officials) versus a directive to fire specific employees.  Moreover, the motive of state officials performing such legislative acts should be irrelevant as well, says the petition, arguing — in likely a direct appeal to the court’s more conservative wing — that “The growth in motive-based constitutional torts must be reined in.”

The state has filed a separate petition as well.

The court is expected to rule on the petitions by December or January.

Despite the meatiness of the issues presented, the petitions still face a significant uphill battle for two reasons. One is pure numbers.  The court refuses to hear the overwhelming majority of cases that it is asked to hear.  But second, the brief fails to highlight any significant split of authorities that exists in the lower courts. Without such a split, the Court typically rejects such challenges unless the issues presented are of such significance that it cannot wait for that split to develop.

What happens if the petitions are rejected? Well, the petition does suggest that the fight may not be over for the government officials since the case will be sent back to a lower court.  In a footnote, the officials state that they remain free to assert an “absolute legislative immunity defense” if the claims are ultimately remanded to the district court for trial.

The case continues on.