When Union Contracts And Overtime Law Conflict: Court Provides Balance For Employers

The 9th Circuit recently handed down an opinion that helps provide guidance to those employers trying to comply with collective bargaining agreements while simultaneously being challenged to apply potentially inconsistent definitions in California’s overtime law, writes Rebecca King for a Fisher & Phillips website post.

The case involved an offshore oil worker whose contract called for 12-hour shifts for a week and required him to be on the off platform between shifts. He wanted to be paid for the hours he was required to be on site.

Read the article.



Negotiating a Labor Contract: Finding the Style that Suits You

A post on Foley & Lardner’s Labor & Employment Law Perspectives blog discusses negotiation styles for employers when the time comes for a new labor contract.

“There isn’t a one-size-fits-all answer as to what works best,” writes Thomas C. Pence. “Some people yell a lot and are very effective with it. Others try yelling and come off sounding cartoonish (never a good thing in negotiations). The best advice is to be true to yourself.”

Pence advises contract negotiators to be self-assured and determined in arguing their positions.

Read the article.



United Airlines Loses Challenge to Union Drive

Bloomberg reports that a vote on unionization by 2,700 United Airlines in-flight catering workers can proceed over the company’s objections, the general counsel of the National Mediation Board ruled.

The hospitality union Unite Here had filed a petition, with support from three-quarters of United’s kitchen workforce, seeking a vote, but the airline filed a complaint alleging fraud and misrepresentation by the union before the petition was filed, contending that Unite Here organizers had shown up at workers’ homes claiming to be representatives of the airline conducting a poll, reports Josh Eidelson.

Eidelson reports that “NMB General Counsel Mary Johnson wrote that after interviewing employees, the agency’s investigators had determined that ‘there is no evidence that employees did not understand that Unite Here was a union and was not a representative of United.'”

Read the Bloomberg article.



3 Ways Trump’s Supreme Court Pick Could Transform U.S. Labor Law

The Washington Post reports that  President Trump’s nominee for the Supreme Court may prove a crucial conservative vote in cases defining protections for gay and lesbian workers, the scope of union organizing and the rights of workers to take their grievances to court, according to labor law experts.

The president selected Brett M. Kavanaugh, a federal judge on the U.S. Court of Appeals for the District of Columbia Circuit.

Reporter Jeff Stein quotes Benjamin Sachs, a labor law expert at Harvard University: “This last term was horrendous for workers. If you are to have imagined a nightmare scenario for workers and workers rights, this would be it. But in those cases, the ruling justices also planted seeds that could lead to further damage against workers.”

Read the Washington Post article.



Supreme Court Deals Big Setback to Public Unions

Conservatives on the Supreme Court said Wednesday that it was unconstitutional to allow public employee unions to require collective bargaining fees from workers who choose not to join the union, a major blow for the U.S. labor movement, reports The Washington Post.

Reporter Robert Barnes writes that the 5-to-4 decision overturned a 40-year-old precedent and said that compelling such fees was a violation of workers’ free speech rights. The old rule could force the workers to give financial support to public policy positions they oppose, the court said.

“States and public-sector unions may no longer extract agency fees from nonconsenting employees,” Justice Samuel A. Alito Jr. wrote for the majority. “This procedure violates the First Amendment and cannot continue.”

Read the Post article.



Supreme Court Poised to Rule on Trump Travel Ban, Union Fees, Other Cases

The U.S. Supreme Court, winding down its nine-month term, will issue rulings this week in its few remaining cases including a major one on the legality of President Donald Trump’s ban on people from five Muslim-majority nations entering the country, reports Reuters.

“The nine justices are due to decide other politically sensitive cases on whether non-union workers have to pay fees to unions representing certain public-sector workers such as police and teachers, and the legality of California regulations on clinics that steer women with unplanned pregnancies away from abortion,” write Lawrence Hurley and Andrew Chung.

On the subject of collecting fees for union from non-members, the court’s conservatives indicated opposition during arguments on Feb. 26 to so-called agency fees that some states require non-members to pay to public-sector unions.

Read the Reuters article.




Collective Bargaining Agreements Must be Interpreted According to ‘Ordinary Principles of Contract Law’

The U.S. Supreme Court has emphatically reaffirmed the requirement that collective bargaining agreements must be interpreted according to “ordinary principles of contract law” when deciding whether retired employees are entitled to health care benefits, according to a post by Foster Swift Collins & Smith PC.

Richard C. Kraus and Mindi M. Johnson discuss CNH Industrial N.V. v. Reese

“The case involved a dispute over union retiree health benefits. In 1998, CNH entered into a CBA which provided group health care benefits to certain employees set to retire under the company’s pension plan. After the CBA expired, a class of CNH retirees and surviving spouses initiated a lawsuit in federal court asking for declaratory judgment that they were entitled to health care benefits for life and seeking to enjoin CNH from modifying those benefits.”

Read the article.




Ruling on Union Pensions Could Affect Hundreds of Companies

The Washington Post reports that the U.S. Court of Appeals for the Fourth Circuit ruled that Just Born Quality Confections, the firm that makes the candy known as Peeps, could not unilaterally stop enrolling new employees in a pension without paying a penalty, something it had tried to do since 2015.

Reporter Damien Paletta explains possible consequences: “The appeals court decision could have a major effect on hundreds of other companies that are trying to determine whether to continue making payments to their own multi-employer pension plans. A number of multi-employer plans have weak balance sheets, exacerbated by a wave of aging workers and new retirees. This dynamic has forced some firms to pay higher premiums to their pensions in an effort to boost solvency.”

The case arose when Just Born announced three years ago that it would no longer enroll new employees in the multi-employer pension it had participated in for decades and would instead divert money into a 401(k) plan for those workers.

Read the Post article.




Trump Labor Board Member Forgot About Conflict of Interest, Watchdog Says

National Labor Relations Board member William Emanuel violated a White House ethics pledge by participating in a closely watched case involving his former law firm, the NLRB’s inspector general concluded in a report obtained by Bloomberg Law.

Bloomberg reporters Chris Opfer and Hassan A. Kanu write that Emanuel told Inspector General David Berry that he didn’t realize former firm Littler Mendelson represented a business in the seminal Browning-Ferris Industries case, although he previously flagged the litigation for lawmakers as one that he might need to sit out, according to Berry’s report. Emanuel then joined the rest of the five-member board in directing its top attorney to ask an appeals court to drop the case.

They report that Berry said the inconsistency in Emanuel’s statements to Congress and the IG “is not sufficient to show that” Emanuel “intentionally lied.”

Read the Bloomberg article.



Tackett Redux: Ordinary Principles of Contract Interpretation Mean No Inference of Vesting

The U.S. Supreme Court recently reaffirmed that collective bargaining agreements (CBAs) must be interpreted according to “ordinary principles of contract law,” according to a post in the  Proskauer Rose Employee Benefits & Executive Compensation Blog.

The ruling again rejected the Sixth Circuit’s inference from silence that CBAs vested retiree benefits for life.

Three years ago, the Supreme Court held in M&G Polymers USA, LLC v. Tackett that CBAs must be interpreted according to ordinary principles of contract law, and the court rejected the Sixth Circuit’s so-called “Yard-Man” inference that if a CBA did not specify that retiree medical and other welfare benefits had a limited duration, the benefits were presumed to be vested.

The article’s authors explain: “The Supreme Court unanimously reversed the Sixth Circuit, holding that the Sixth Circuit’s inference of vesting could not be squared with Tackett because it did not comply with Tackett’s direction to apply ordinary contract principles.”

Read the article.



Conflict of Interest Causes NLRB to Vacate Pro-Corporation Ruling

The National Labor Relations Board threw out its most important ruling of 2017 — a 3-2 victory for major U.S. corporations — following an internal agency report that found that a potential conflict-of-interest had tainted the vote, reports Bloomberg, via the Chicago Tribune.

Bloomberg reporter explains that the discarded ruling, called Hy-Brand, had reversed a controversial Obama-era “joint employer” decision empowering workers to pursue claims against, or seek collective bargaining with, major corporations that don’t sign their paychecks, such as franchisors or clients of contractors.

“The vote overturning that 2015 case included support from Trump-appointed William Emanuel, whose former law firm had represented one of the companies in the original case, Browning-Ferris,” Eidelson reports.

Read the Tribune article.



For the Third Time, Supreme Court to Hear Mandatory Union Dues Arguments

Next week the Supreme Court will hear oral argument on whether to reverse a 41-year-old ruling that allows states to require government employees to pay union dues even though they don’t want to be union members.

“It’s a familiar question for eight of the nine justices, who have already heard oral argument on the issue twice,” writes Amy Howe in SCOTUSblog. “The court did not resolve the issue the first time; the second time, in the wake of the death of Justice Antonin Scalia, they deadlocked. This means that the outcome in [petitioner Mark] Janus’ case could hinge on the vote of the court’s newest justice, Neil Gorsuch.”

The case, appealed by Janus, an employee of the state of Illinois, comes after the U.S. Court of Appeals for the 7th Circuit rejected his argument that the agency fee violated his rights under the First Amendment.

Read the SCOTUSblog article.




Attempting to Insert New Term into Collective Bargaining Agreement Not Agreed to in Negotiations Violates the Law

A case heard by the National Labor Relations Board discusses the law concerning the legal duty to reduce a collective bargaining agreement to writing, and then sign it, according to a post on the Proskauer Labor Relations Update.

Partner Mark Theodore explains:

“Among other things, a signed agreement serves as an absolute bar to employees filing a decertification petition during the term of the agreement (with some timing limitations), while an unsigned agreement does not bar such a petition. A signed agreement also, obviously, is more easily enforced as it signifies to the entire world that this is the deal, and that the parties signed it after evaluation of its terms.”

Read the article.



Will the Supreme Court Deal a Blow to Trade Unions?

U.S. Supreme CourtOf all the blockbuster cases at the Supreme Court this year, Janus v American Federation of State, County and Municipal Employees (AFSCME) is expected to hold the fewest surprises, according to The Economist.

Janus, which is due to be argued on Feb. 26, asks whether public employees who choose not to join their designated union may nevertheless be charged “agency fees” to support collective bargaining. Non-members of a union may be required to subsidize contract negotiations over salary, benefits and working conditions. But those workers can’t be charged fees for a union’s political efforts, such as lobbying.

The Economist explains: “Janus is at bottom a bid to undermine America’s labour movement. The case is not presented that way; it arrives at the Supreme Court in First Amendment wrapping by express invitation from Justice Samuel Alito in a pair of recent cases.”

Read The Economist‘s article.




Tech Start-Up Fires Engineers Amid Union Organizing Effort

Bloomberg is reporting that a group of Lanetix Inc. software engineers in San Francisco and Washington, D.C., were laid off for trying to join a union, according to organizers working with the group and a complaint obtained by Bloomberg Law.

“The move came less than two weeks after the workers filed a petition to join a CWA unit and days before a union election hearing scheduled for Jan 31,” according to the report by Hassan A. Kanu and Josh Eidelson. “The workers said the company told them the layoffs were due to lackluster fourth quarter performance last year, Fiedler said.”

A CWA executive director told the reporters the company said it was “looking at moving their engineering operations overseas.”

Read the Bloomberg article.



New Labor Board GC’s Restructuring Plan Worries Senior Officials

Senior officials with the National Labor Relations Board have expressed concern over a plan outlined by the board’s new general counsel to demote the senior civil servants who resolve most labor cases, reports The New York Times.

Peter B. Robb, the agency’s general counsel and a Trump appointee, outlined the proposal this month in a conference call with the civil servants

“Under the proposal, those civil servants — considered by many conservatives and employers to be biased toward labor — would answer to a small cadre of officials installed above them in the National Labor Relations Board’s hierarchy,” explains Noam Scheiber.

The result could be result in a system friendlier to employers named in complaints of unfair labor practices or facing unionization drives.

Read the Times article.




Labor Board Burns Through Obama-Era Rules

The Hill reports that the National Labor Relations Board is delivering a flurry of wins to businesses now that it has a Republican majority under President Trump.

In recent days, the independent board tasked with enforcing fair labor practices and collective bargaining rights overruled three Obama-era rules in a series of 3-2 rulings, writes reporter Lydia Wheeler.

One of the rules, which employers had opposed for years, was a controversial NLRB decision that changed the definition of a joint-employer. That rule could have put employers on the hook for labor law violations committed by their subcontractors in some cases.

Read The Hill article.



Can You Really Shut Down Your Company a Week After Your Workers Unionize?

American labor laws normally protect workers from retaliation for unionizing, but billionaire CEO Joe Ricketts seems to have used a dramatic exception when he closed his news websites after some workers voted to unionize: A business may always close its operations entirely.

Francie Diep, a reporter for the Pacific Standard, writes that all of the publcations’ offices — including those in San Francisco, Los Angeles, Chicago and Washington, which had not voted to unionize — are now closed.

“If lawyers decide to pursue a case charging that Ricketts acted illegally, they’ll have to prove that some part of the business is still operating — say, if Ricketts were tied to another media company somehow — or that, after the shutdown, Ricketts opened up a similar business elsewhere,” Diep writes.

Read the Pacific Standard article.




Billionaire CEO Shuts Down Publications After Vote to Unionize

The CEO of a group of digital local news sites shut down the publications a week after reporters and editors in the combined newsroom of DNAinfo and Gothamist voted to join a union, reports The New York Times.

Joe Ricketts, the billionaire founder of TD Ameritrade, owned the sites.

“For DNAinfo and Gothamist, the staff’s vote to join the Writers Guild of America East was just part of the decision to close the company, write Andy Newman and John Leland.

“The decision by the editorial team to unionize is simply another competitive obstacle making it harder for the business to be financially successful,” said  a spokeswoman for DNAinfo.

Read the NYT article.



NFL Players May Have an Ally in Their Protests: Labor Law

The New York Times reports that, as National Football League team owners consider President Trump’s call to fire players who refuse to stand for the national anthem, they have stumbled into one of the most consequential debates in today’s workplace: How far can workers go in banding together to address problems related to their employment?

Reporter Noam Scheiber writes that, since Trump’s call for firing players, their demonstrations now could constitute labor activity that’s federally protected, explains Matthew Bodie, a law professor at St. Louis University who is a former attorney for the labor board.

“If they’re standing up for other players’ rights to kneel in the context of their job and keep their job, it seems to me to be protected concerted activity,” Bodie said.

Read the NYT article.


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