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National Labor Relations Board

Labor roundup

by Walter Olson on July 11, 2014

  • California tenure lawsuit exposes rift between Democratic establishment and teachers’ union [Sean Higgins, Washington Examiner]
  • NLRB pushing new interpretation to sweep much outsourcing into “joint employment” for labor law purposes [Marilyn Pearson, Inside Counsel]
  • Restaurant “worker centers” campaign against tipping. Perhaps a sign their interests not fully aligned with waitstaffs’? [Ryan Williams, DC]
  • NLRB’s edict against non-union employers’ confidentiality policies emblematic of its activist stance lately [Karen Michael, Times-Dispatch]
  • Three public sector unions spent $4.3 million on Connecticut state political activities in 2011-2013 cycle [Suzanne Bates, Raising Hale]
  • Sen. Lindsey Graham prepares funding rider to block NLRB “micro-union” recognition [Fred Wszolek, background]
  • “Table Dance Manager” glitch alleged: “Exotic dancers + allegedly malfunctioning software = Fair Labor lawsuit” [Texas Lawyer]

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In not just one recent case, but two:

* “During a meeting about commissions, minimum wage, and employee breaks [at a Yuma, Ariz. car dealership], an employee lost his temper, angrily calling his supervisors words such as [obscenities omitted]. He also stood up, shoved his chair aside, and told them they would regret it if they fired him. Unsurprisingly, that tirade resulted in the employee’s termination. Astoundingly, in Plaza Auto Center (5/28/14), the NLRB concluded that the termination was an unlawful violation of the employee’s rights to engage in the protected concerted activity.” [Jon Hyman, Ohio Employer's Law Blog; Brennan Bolt, Labor Relations Today]

* “Starbucks cannot fire a union activist employee who cursed at a manager in front of customers, the National Labor Relations Board has ruled for the second time. Joseph Agins was active in trying to unionize four Manhattan Starbucks coffee shops between 2004 and 2007.” His repeated imprecations, sometimes in the presence of customers, included “this is [BS],” “do everything your damn self,” “about damn time” when the manager arrived to help, and “go … yourself”. A protected pattern of behavior under federal labor law, the NLRB ruled. “The board ordered Starbucks to offer Agins his old job or a substantially equivalent position, compensate him for any loss of earnings and other benefits, and remove from its files any references to the unlawful firing.” [Seattle Post-Intelligencer]

Compare the separately developed field of “hostile-environment” law, in which the employer may be held liable for years’ worth of back pay if it does not separate from the workplace an employee who repeatedly confronts a co-worker with belligerent and profane abuse (& Scott Greenfield).

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Labor roundup

by Walter Olson on June 13, 2014

  • “Coming to Your Workplace Soon? Union Organizing Efforts Via the Company’s Email System” [Daniel Kaplan, Foley & Lardner]
  • “Pennsylvania Unions Still Exempt from Harassment [Law], Continue Harassing with Impunity” [Trey Kovacs, Workplace Choice, earlier here, here, here]
  • Music production gravitates to right to work states attract in part because union musicians less afraid of discipline for taking gigs there [Variety on union's dispute with videogame-composer member]
  • New definition of “nationwide strike”: protesters show up at a few Wal-Marts, few workers pay attention [On Labor]
  • Presently constituted NLRB and U.S. Department of Labor are zealous union partisans, not impartial arbiters [Alex Bolt]
  • “Workers filing wage-and-hour lawsuits under Labor Act at record pace” [Crain's Detroit Business]
  • “Despite repeated failures, Card Check still top Big Labor priority” [Sean Higgins, Washington Examiner]

In an April decision, the National Labor Relations Board found largely unlawful a hospital’s employee handbook policy as follows:

…11. We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.

16. We will represent [the hospital] in the community in a positive and professional manner in every opportunity.

21. We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.

The reason? Under NLRB doctrine, in both non-union and union workplaces, negative discussion of managers and other co-workers could count as “protected activities” linked to the potential for concerted labor action.

[Jon Hyman, Ohio Employer's Law Blog, on the April case of Hills & Dales General Hospital (PDF)]

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Washington, D.C. intern hit with NLRB subpoena over blogging work for policy group critical of unions [Tucker Nelson, National Review]

  • “Will ‘Microaggressions’ Make Their Way Into Employment Discrimination Cases? Have They Already?” [Daniel Schwartz]
  • More phone and pen: Obama executive orders will forbid federal contractors from retaliating against employees who discuss pay with colleagues, direct DoL to require compensation data from contractors based on sex, race [AP, White House]
  • List of best and worst states for employee lawsuits (from employer’s perspective) includes some surprises, although California’s status as worst isn’t one of them [Insurance Journal] $20K to fend off suit “for harassment and intimidation by her manager — when the manager was her sister” [Coyote; sequel to "Ventura County blues," on which earlier here and here]
  • Wage/hour activists step up pressure for federal enforcement, more detailed pay stubs to combat off-clock work, alleged misclassification [ABA Journal]
  • “A National Minimum Wage Is a Bad Fit for Low-Cost Communities” [Andrew Biggs and Mark Perry, The American] “Immigration, Eugenics, and the Minimum Wage” [Matt Zwolinski, Bleeding Heart Libertarians]
  • Court decision may amount to end run enactment of something like ENDA minus the legislative compromises and exceptions [Tamara Tabo, and thanks for link to "good reasons" for opposition; a second view from Jon Hyman]
  • “DOL (Department of Labor) Persuader Rule Undermines Attorney-Client Privilege, Attorney Generals Say” [Howard Bloom and Philip Rosen (Jackson Lewis), National Law Review, earlier]

Not so smart?

by Walter Olson on April 5, 2014

Northwestern athletes’ “college football participation = paid work to be governed by labor laws” argument may boomerang with a whopping tax bill [TaxProf, Bleacher Report on NLRB giving nod to idea]

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  • If you imagine the primary goal of occupational licensure is to protect consumers, think again [Donald Boudreaux, Ramesh Ponnuru]
  • “U.S. Civil Rights Commissioners Take EEOC to Task on Background Checks” [Nick Fishman, Employee Screen; Seyfarth Shaw]
  • Pennsylvania lawmakers consider ending union exemption from stalking laws; Illinois, Nevada and California also shelter them from liability [Washington Examiner]
  • “How Disruptive Can an Aggressive NLRB Be in a Non-Union Setting? More Than You Might Think” [Michael Fox]
  • “A call for the DOL to fix what is wrong with our wage-and-hour laws” [Jon Hyman]
  • Restaurant Opportunities Center, known for staging employee protests, bars own employees from same privilege [Florida Watchdog via Sean Higgins]
  • Conference honoring assassinated professor Marco Biagi showcases classical liberal labor law scholarship (or so one would hope) [my comment at Workplace Prof, related call for papers, earlier]

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  • Nomination of David Weil as Labor Department wage/hour chief could be flashpoint in overtime furor [Terence Smith, Hill] Another reaction to President’s scheme [Don Boudreaux, Cafe Hayek, earlier here and here]
  • Oregon: longshoreman’s union says NLRB charges of blinding, threatened rape meant “to distract” [Oregonian]
  • Who thinks hiking the minimum wage would kill jobs? Company chief financial officers, to name one group [Steve Hanke, Cato]
  • Tourists’ casual naivete about union politics at NYC hotel made for tension, hilarity [How May We Hate You via @tedfrank]
  • Just for fun: Wichita business’s creative responses to union’s “Shame On…” signs reach Round 2 [Volokh on first round, Subaru of Wichita on second round]
  • Workers’ comp claims at government agencies in Maryland can be odd [Baltimore Sun via Jeff Quinton]
  • Are unions losing their grip on the California Democratic Party? [Dan Walters]

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Free speech roundup

by Walter Olson on January 15, 2014

  • Setback for climate scientist Michael Mann in defamation suit against critics [Jonathan Adler, Mark Steyn, earlier here and here; update, Mann wins a round] Reporters Committee for Freedom of the Press has taken interest on defendants’ side [Steyn] “Blogger’s Incarceration Raises First Amendment Questions” [NYT on Shuler case in Alabama, on which earlier; more]
  • Religious liberty: “When thought is a crime, no other freedom can long survive.” [Doug Bandow]
  • Nigeria’s new jail-the-gays law is brutally repressive toward speech and association. Oil-rich country gets upwards of $500 million in US foreign aid a year [Reuters, AP and followup, Al-Jazeera]
  • Members of Ramapough tribe in New Jersey sue Hollywood over “Out of the Furnace” depiction [AP]
  • “California’s New Law Shows It’s Not Easy To Regulate Revenge Porn” [Eric Goldman]
  • Catching up on the Ampersand case, where the NLRB got slapped down trying to restrict newspaper owner’s First Amendment rights [Harry G. Hutchison]
  • Video interview with noted civil libertarian Harvey Silverglate [Cato]

Labor and employment roundup

by Walter Olson on November 12, 2013

  • Following KMart settlement, new California suitable-seating class action filed against Costco [Recorder, Law360, Canela v. Costco, PDF; earlier here, etc.]
  • Judge enjoins Teamsters: “members had disrupted funeral of a child, harassed mourners” [Bill McMorris, Free Beacon] “How would you feel if someone you never met from a ‘worker center’ went to your boss and said he represents you?” [Diana Furchtgott-Roth, earlier here and here] More: Eric Boehm, Watchdog.org;
  • “Business Fears Of The New National Labor Relations Board Are Justified” [Fred Wszolek]
  • Layoff package much nicer if you’re at Boeing, courtesy taxpayers [Seattle Times via Amy Alkon]
  • “European Court of Human Rights: Religious Autonomy Trumps Right to Unionize” [Becket Fund]
  • “Drink and Drive. Get Fired. Collect Unemployment Benefits? Yep, Says [Connecticut Supreme] Court.” [Daniel Schwartz]
  • Judge strikes down NYC prevailing wage law [Bloomberg]
  • NLRB comes to grief again in D.C. Circuit, this time on posting rule [Fox, Adler]
  • Departing executive director of D.C. labor board: higher-ups pressed for discrimination against conservatives, whites [Hans von Spakovsky, Examiner]
  • “Dollar General: Discovery request would give client list to plaintiffs lawyers” [West Virginia Record]
  • Dems do themselves little credit by blocking legalization of flextime [Ramesh Ponnuru, Washington Times]
  • “Government Crowded Out: How Employee Compensation Costs Are Reshaping State and Local Government” [Daniel DiSalvo, Manhattan Institute]
  • Thanks to California Supreme Court, SEIU can tell dissenters we know where you live [DC Examiner, Legal NewsLine] Recalling a furor over member privacy and databases at another large union, UNITE HERE [Labor Union Report, "pink sheeting"]
  • “The fact that it took forced austerity measures for Greece to fire even *corrupt* public servants speaks volumes.” [Christian Science Monitor via @radleybalko]

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Although the D.C. Circuit Court of Appeals has ruled its composition invalid, the National Labor Relations Board (NLRB) “declares that it will keep doing business as if nothing happened.” [WSJ via Fed Soc Blog]

This is by no means the first face-off between the D.C. Circuit and an agency resistant to its will: for another, see this 1981 Regulation account (PDF, scroll to page 11, “Reversing the D.C. Circuit at the FCC”) of a series of showdowns between the appeals court and the Federal Communications Commission. That one ended happily for the independent agency, but then the FCC may have been on firmer ground going to bat for its right to exercise policy discretion as an expert agency than it would have for its right to be constituted improperly through unconstitutional appointments.