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President Obama rounds out his picks for vacant NLRB seats

July 13th, 2009  |  David Stephanides

>Beginning late April of this year, President Obama made his first of three nominations to the NLRB. The Board, presently composed of Chairman Wilma Liebman (D) and Member Peter Schaumber (R), has been the focus of judicial scrutiny over whether it has the authority to issue decisions as a quorum of just two. That issue was petitioned to the Supreme Court on May 27th. With that backdrop, one would believe that seating new members to the Board ought to move quickly.

While perhaps more urgent matters have stolen the spotlight, here are the President’s picks for Member, National Labor Relations Board:

  • Republican Senate staffer Brian Hayes. Hayes currently serves as the Republican labor policy director for the Senate Committee on Health, Education, Labor and Pensions. Previously, he was in private practice for over 25 years, representing management clients exclusively in all aspects of labor and employment law. Hayes has represented employers before the Board, the EEOC, and various state agencies and has extensive experience negotiating labor contracts on behalf of management clients, as well as representing clients in arbitrations, mediations and other forms of alternative dispute resolution. Before entering private practice, Hayes clerked for the Chief Judge of the NLRB and thereafter served as counsel to the Chairman of the NLRB. Hayes earned his J.D. from Georgetown University Law Center.
  • Democrat Craig Becker. Becker is associate general counsel to both the SEIU and the AFL-CIO. He received his J.D. from Yale Law School and has practiced and taught labor law for the past 27 years, as a professor of law at the UCLA School of Law and at the University of Chicago and Georgetown. Becker has published numerous articles on labor and employment law in scholarly journals and has argued labor and employment cases in virtually every federal court of appeals and before the US Supreme Court.
  • Mark Pearce, Democrat and founding partner of Creighton, Pearce, Johnsen & Giroux, a Buffalo, New York, law firm. Pearce practices union-side labor and employment law before state and federal courts and agencies. In 2008, he was appointed to the New York State Industrial Board of Appeals, an independent quasi-judicial agency responsible for review of certain rulings and compliance orders of the state department of labor in wage and hour matters. Prior to 2002, he practiced union-side labor law and employment law at Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP, and from 1979 to 1994 was an attorney and district trial specialist for the NLRB. Pearce received his J.D. from State University of New York. He is a Fellow in the College of Labor and Employment Lawyers.

All three nominations have been sent to the Senate; however, hearings have yet to be set on the Health, Education, Labor and Pensions Committee calendar. It’s also unclear whether the three will be considered as a package or individually.


Ricci may be a “hot topic” during Sotomayor’s confirmation hearing

July 10th, 2009  |  Deborah Hammonds

>The confirmation hearing for Judge Sonia Sotomayor’s nomination to the U.S. Supreme Court is scheduled to begin on Monday morning (July 13, 2009). If confirmed, she will be the first Hispanic, and the third woman, to be an Associate Justice on the High Court. Judge Sotomayor currently sits on the U.S. Court of Appeals for the Second Circuit.

While Sotomayor has received significant support in favor of her nomination, what should really spark interest in Monday’s hearing will be the appearance of two witnesses who were part of the Ricci v DeStefano litigation. Ricci is the reverse race discrimination case decided by the Supreme Court last week (07-1428). In that decision, the High Court held that the city’s refusal to certify firefighters’ promotion exams to avoid a potential race discrimination lawsuit from minority firefighters was discriminatory. A divided Supreme Court (5-4) reversed the Second Circuit’s affirmation of the district court’s grant of summary judgment to the city.

On the list of witnesses invited to appear before the Senate Judiciary Committee (http://judiciary.senate.gov) were the names Frank Ricci and Lieutenant Ben Vargas. Both Ricci (Director of Fire Services, ConnectiCOSH (Connecticut Council on Occupational Safety and Health)) and Vargas (New Haven Fire Department) were plaintiffs in Ricci v DeStefano. Vargas has the distinction of being the lone Hispanic plaintiff.

One of the reasons Ricci was so closely watched was Sotomayor’s participation as part of the Second Circuit’s panel that affirmed the district court in an unpublished order that was later withdrawn and replaced with a per curiam opinion and an order denying a rehearing and rehearing en banc with written concurrences and a dissent. Will these men be a roadblock in Sotomayor’s path to the High Court? What can they say about her legal analysis and/or performance in a case that was ultimately decided so closely? Particularly when the now-retired Justice Souter (who’s seat she is slotted to fill) voted to affirm the circuit court? Will there be any fallout from Ricci for Sotomayor?


Hartmarx and beyond

July 8th, 2009  |  Connie Eyer

>Hart Schaffner Marx, an Illinois-based maker of men’s apparel that boasts President Obama as one of its regular customers, recently averted liquidation after it was purchased by Emerisque, a London-based private equity firm. Hartmarx employs nearly 4,000 people nationwide. Here is a look back at the struggle displayed by its workers and supporters over the last six months:

January 2009: Only a few days after President Obama wore one of their suits to his inauguration, Hartmarx, Inc. declared bankruptcy, citing lower borrowing capacity under Wells Fargo, a senior creditor.

May 2009: By early May, Hartmarx had attracted three potential buyers, two of which, it was reported, intended to keep the company intact. Rumors flew, however, that Wells Fargo, which was a recipient of federal bailout funds, was leaning towards a third buyer that favored liquidation. This threat, however, was enough to galvanize workers, supporters, union leaders and federal lawmakers to put a little pressure on Wells Fargo. Two Congressional members at the forefront of this fight, Rep. Phil Hare (D-Ill), who spent 13 years in the employ of Hartmarx, and Rep. Jan Schakowsky (D-Ill), whose great-aunt also worked at the company, urged the bank to keep the company afloat.

During a few days in May, rallies featured labor leaders and workers, along with Rep. Hare and Illinois Treasurer Alex Giannoulias, who threatened to cut off the State of Illinois’ $8 billion in business with Wells Fargo if the company proceeded with liquidation plans. The Hartmarx workforce, in a page taken from that of the Chicago-based Republic Windows and Doors, whose employees staged a successful sit-in to secure the 60 days’ severance and unused vacation days they were lawfully owed, voted to occupy the plant if liquidation were the outcome.

On May 20, Emerisque resubmitted a substantial offer to purchase the company. Choosing not to take this for granted, the next move included a letter to Treasury Secretary Timothy Geithner, written by Schakowsky and Hare and signed by over 40 members of Congress, stressing that the liquidation of Hartmarx should not be an option. “Given the fact that American taxpayers have provided Wells Fargo/Wachovia with $25 billion,” the letter read, “we find it incomprehensible that it would continue to push for the loss of jobs in a viable company.”

Wells Fargo released a statement May 29 opposing the bid by Emerisque, contending that the company “has committed to sell Hartmarx factories in Rock Island, Ill., and Cape Girardeau, Mo., and its distribution centers in Easton, Penn., and Rector, Ark., all within three months of the acquisition.” Emerisque disputed the bank’s claim, noting that “the only factual component of the Wells Fargo statement today is that they believe they should realize a higher cash return on their claim.”

June 2009: Talks, however, continued, and a resolution was finally reached whereby Emerisque revised its cash offering from a numerical amount to a percentage of the debtor-in-possession financing provided by the lending group to keep Hartmarx operating during the bankruptcy process.

When the approval of Emerisque was finally announced on June 26, Rep. Hare noted that “today’s approval of Emerisque’s bid to buy Hart Schaffner Marx and the cooperation by Wells Fargo is good news for nearly 4,000 workers, their families, and our economy. It is proof positive that the voices of America’s working men and women still do matter, even in an era of unprecedented greed.”

Related worker uprising news: In the wake of Hartmarx’s victory, the focus now moves to Moline, Illinois, where Wells Fargo has cut off credit to the Quad City Die Casting factory. Workers at the plant, who are members of the same union that occupied Republic Windows and Doors last year, are calling for Wells Fargo to keep the plant open. As of yet, the bank has refused to even sit down with the union and negotiate.

Stay tuned.


Will federal preemption ensnare state “captive audience” measures?

July 7th, 2009  |  Lisa Milam-Perez

>To supporters, it’s the “Worker Freedom Act.” To detractors, an “Employer Gag Bill.” Call it what you will: On June 30, Oregon Governor Ted Kulongoski signed S.B. 519, a bill that prohibits an employer from holding mandatory employee meetings to convey its views on religious and political issues—including union organizing. With its passage, Oregon became the first state in the nation to bar “captive audience” meetings. It’s a win for the AFL-CIO, which had launched a campaign to enact such legislation at the state level. The victory may be short-lived, however, as the Oregon measure will surely face a legal challenge.

Captive audience bills, if enacted in the states, would have a considerable impact on traditional union-organizing campaigns. One federal government survey found employers force workers to attend captive audience meetings in 92 percent of union election campaigns and that employers, on average, held 11 such meetings during every organizing drive. Why? Because they are a particularly effective weapon in the employer’s union avoidance arsenal, and they are difficult for unions, lacking equal access, to counter.

The Oregon statute (like the AFL-CIO’s model legislation) bars employers from compelling employees to attend meetings aimed at communicating the company’s opinions on “religious or political matters.” (Notably, it bars any forced attempt by an employer to convey its views on unionization, not just the captive audience meeting.) While it does not limit the right of employers to hold these meetings or engage in such communications, it provides that attendance must be strictly voluntary; employers may not discharge or discipline employees who refuse to attend or to listen to the employer’s message. Nor may employers retaliate against employees for exercising their rights under the statute. Aggrieved employees can sue for backpay and reinstatement, among other relief. The statute provides a mandatory award of treble damages, attorney fees and costs.

(The Oregon law isn’t just about union organizing, though. Its bar on coercive political and religious speech is meant to grant more expansive protection. The Oregon AFL-CIO cites the example of a worker who was disciplined after walking out of the lunchroom after his employer began to make anti-Catholic statements. And, last year, during the presidential election campaign, Wal-Mart famously required employees to attend meetings in which they were told their jobs could be threatened if Democrats were elected. S.B. 519 would prohibit this conduct as well.)

Federal labor law does not prohibit compulsory meetings, nor does it bar employers from imposing discipline on employees who refuse to attend or leave a meeting held for the purpose of conveying the employer’s opposition to a union. In fact, Sec. 8(c) of the National Labor Relations Act (NLRA) expressly confers employer free-speech protections, so long as the speech is not coercive or threatening. However, although the National Labor Relations Board has upheld mandatory meetings, unions contend they are inherently coercive, in that they force employees to listen to anti-union speech, and that they are meant to intimidate workers. So, organized labor has endeavored to enact protections at the state level that federal law does not provide.

Thus far, such legislation has made few inroads. The Michigan and New Hampshire legislatures have passed Worker Freedom bills. The Colorado legislature passed a bill in 2006 that was ultimately vetoed by the governor. Washington’s state legislature held hearings on a measure earlier this year. The legislation has been introduced in several other states, including Connecticut and West Virginia. (New Jersey enacted the Worker Freedom from Employer Intimidation Act in 2006, a bill that protects employees from being forced to hear employer speech on religious and political matters, but it excludes discussions of labor organizations from its reach.)

The Oregon measure will go into effect on January 1, 2010—if it can withstand inevitable challenges on preemption and constitutional grounds, that is. Opponents of the bill contend that state efforts to regulate employer speech in the union-organizing context are preempted by the NLRA. They cite California’s failed attempt to do so, noting that state’s “union neutrality” law was struck down by the US Supreme Court in its 2008 ruling in Chamber of Commerce of US v Brown. In 2005, the Seventh Circuit held a similar ordinance enacted by a Wisconsin municipality was preempted by the NLRA.

Paul Secunda, a professor of law at Marquette University School of Law (and member of the Wolters Kluwer Labor and Employment Law Editorial Advisory Board), argues that such laws should not be preempted. He notes that, notwithstanding the NLRA, states retain the right to regulate employer property rights and contractual relations between employers and employees.

Will S.B. 519 pass muster? We’ll soon find out, as Oregon employers have already indicated they will challenge the statute. The legislation “saddles employers with the potential for devastating liability by creating a new protected class of employees,” noted J.L. Wilson, of the Association of Oregon Industries, a business group that opposed the measure. “[The bill] would severely inhibit an employer’s ability to communicate with its workers and, most importantly, would diminish the competitiveness of Oregon employers.”


Recap of Supreme Court’s labor & employment law decisions

July 4th, 2009  |  David Stephanides

>As reported in CCH’s WorkWeek e-Newsletter (click here to sign up), here is a recap of the Supreme Court’s labor and employment decisions handed down during the October 2008 term:

Ricci v DeStefano. By throwing out the results of an examination to determine those firefighters best qualified for a promotion, the City of New Haven, Connecticut, violated Title VII’s prohibition against discriminatory treatment based on race. A 5-4 majority of the High Court applied a new standard of statutory construction, holding that before an employer can engage in what otherwise would be prohibited discriminatory treatment in order to avoid or remedy an unintentional, disparate impact, the employer must have “a strong basis in evidence” to believe it will be subject to disparate impact liability if it fails to take the race-conscious, discriminatory action (June 29, 2009).

Atlantic Sounding Co v Townsend. An injured seaman may sue to recover punitive damages under general maritime law for the his employer’s alleged willful and wanton failure to provide a “maintenance” (wages he otherwise would have earned, food and lodging) and “cure” (medical services) for the injuries he suffered while working on the employer’s tugboat, the Supreme Court held (June 25, 2009).

Locke v Karass. A union representing Maine’s state employees may charge fee-paying nonmembers for the national, or “extra-local” litigation expenses incurred by its parent union, a unanimous Supreme Court ruled, holding that the First Amendment permits such charges (January 21, 2009).

Crawford v Metro Gov’t of Nashville. Continuing its recent trend of broadening Title VII’s anti-retaliation provision, the High Court unanimously ruled that the Act’s retaliation protections extend to employees who speak out about discrimination and harassment not of their own accord, but when answering questions during an employer-ordered internal investigation. Because the employee’s conduct was protected under Title VII’s opposition clause, the Court declined to address whether her conduct was also governed by the anti-retaliation provision’s participation clause (January 26, 2009).

Ysursa v Pocatello Educ Ass’n. An Idaho law banning public employee payroll deductions for union political activities did not violate labor unions’ free speech rights, the Supreme Court ruled, noting the distinction between state suppression of speech and instances in which states decline to promote speech (February 24, 2009).

14 Penn Plaza LLC v Pyett. Affirming its decidedly pro-arbitration policy, the Supreme Court held that courts must enforce collective bargaining agreements that “clearly and unmistakably” require union members to arbitrate their claims arising under the Age Discrimination in Employment Act. Such agreements are enforceable under the ADEA since the Act does not preclude arbitration of claims brought pursuant to the statute (April 1, 2009).

Flores-Figueroa v United States. In a case informing on federal worksite immigration enforcement operations, a unanimous Supreme Court ruled that an undocumented worker who presented false Social Security and Alien Registration numbers to obtain employment may not be convicted of identity theft under the federal “aggravated identity theft” statute unless the federal government shows that the worker had actual knowledge that the means of identification belonged to another person (May 4, 2009).

Arthur Anderson LLP v Carlisle. In an investor suit, the Supreme Court held that a litigant who was not a party to an arbitration agreement may invoke Sec. 3 of the Federal Arbitration Act to compel arbitration if applicable state law would allow enforcement of contracts by (or against) a nonsignatory through assumption or third-party beneficiary theories (May 5, 2009).

AT&T Corp v Hulteen. The Pregnancy Discrimination Act does not require employers to set current pension benefits at a level that will restore service credits to female employees for pregnancy leaves taken prior to the passage of the PDA. In one of the last opinions to be authored by Justice Souter, the High Court held that employers do not necessarily violate the PDA when paying pension benefits calculated in part under an accrual rule – applied prior to the PDA’s enactment – that gives fewer service credits for pregnancy leaves than for other medical leaves. Because AT&T’s benefit calculation rule accorded with the terms of a bona fide seniority system under Title VII, the company was insulated from a legal challenge (May 18, 2009).

Ashcroft v Iqbal. “Civil rights plaintiffs will have to be more thoughtful about how they frame their complaints to avoid pleading themselves out of court” following the Supreme Court’s ruling in an antitrust case, notes plaintiff’s lawyer Paul Mollica in his Daily Developments in EEO Law blog. Though not an employment case, the High Court’s ruling makes clear that the heightened pleading standards set forth in its 2007 decision in Bell Atlantic Corp v Twombly applies to all civil actions, not just antitrust cases, and that “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” (May 18, 2009).

Gross v FBL Fin Servs Group. Declining to import the mixed-motives burden-shifting rubric applied under Title VII, the Supreme Court ruled that an employee claiming disparate treatment under the ADEA must establish by a preponderance of evidence that age was the “but-for” cause of the adverse employment action challenged. Even when the employee has produced some evidence that age was one motivating factor in the employer’s decision, the burden of persuasion does not shift to the employer to show that it would have taken the same action regardless of age, held the Court (June 18, 2009).