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Mine safety bill would hold employers accountable for worker safety, extend OSHA protections, witnesses claim at House hearing

July 15th, 2010  |  Published in Blog

The Miner Safety and Health Act (H.R. 5663) would provide strong tools to not only ensure that mine operators with troubling safety records improve safety and empower workers to speak up about safety concerns, but would also extend OSHA protections in other workplaces such as refineries, power plants and food-processing facilities, according to testimony provided July 13 at a House Education and Labor Committee hearing.

In the wake of the April 29 explosion at Massey Energy’s Upper Big Branch, which killed 29 miners and highlighted serious flaws in existing laws, the legislation is an attempt to hold employers accountable if they knowingly put their workers in danger. In addition, whistleblower laws would be strengthened to the level of other federal whistleblower laws on the books, and penalties would be increased for the second time in 40 years and indexed to inflation. “The Upper Big Branch mine tragedy is the perfect example of how current law is inadequate, especially for those operations that do everything to flout the law,” said George Miller (D-Cal), Committee Chair. “Despite a pattern of serious violations, there was little [the Mine Safety and Health Administration] could do to get Massey to turn this operation around. The millions of dollars in proposed fines over the years didn’t work. Dozens of temporary closure orders didn’t work. Reform of mine safety laws is essential.”

More than mines. Expressing concern for workers who are fired for voicing safety and health concerns while the courts spend years deciding contested citations, David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, seeks to substantially modify worker safety laws in place since the Occupational Safety and Health Act of 1970. “Instead of waiting for an OSHA inspection or a workplace accident to address workplace hazards,” Michaels said, “employers would be required to create a plan for identifying and remediating hazards, and then to implement this plan.”

“What is not publicized are the more than 5,000 other workers killed on the job in America each year, the more than 4 million who are injured, and the thousands more who will become ill or die in later years from present day occupational exposures,” Michaels said. “Every day in this country we have a Sago mine disaster, every two days an Upper Big Branch, and every month the loss of a fully loaded Boeing 747. These tragedies happen in every corner of the country, usually one at a time, far from the evening news and the morning headlines.”

The mine safety legislation puts more teeth into the Mine Act, noted Patricia Smith, Solicitor of Labor. Two new criminal provisions have been added, which strengthen both the Mine Act’s and the OSH Act’s current sanctions for criminal conduct. The bill would amend the Mine Act so that, for the first time, giving advance notice of MSHA inspections will be treated with severity. “Advance notice prevents MSHA inspectors from being able to observe mining as it is actually being done,” Smith said. “The bill would make such conduct – currently treated as a misdemeanor – a felony punishable by fines set forth in title 18, U.S. Code (the criminal code), and a maximum prison term of five years.”

In urging the Committee and Congress to approve this legislation without delay, Lynn Rhinehart, General Counsel, AFL-CIO, noted that the bill would correct four weaknesses that are particularly problematic: (1) the OSH Act’s short statute of limitations for filing whistleblower complaints (30 days); (2) the absence of preliminary reinstatement while cases are proceeding through the system; (3) the lack of an administrative process for hearing cases; and (4) the absence of a private right of action for workers to pursue their own cases before the agency or in federal court in situations where the Secretary of Labor fails or chooses not to act.

Punitive focus ineffective. However, testifying on behalf of the Coalition for Workplace Safety, an industry group, Jonathon Snare, partner, Morgan Lewis, expressed concern that the legislation’s dramatic changes to the OSH Act are focused exclusively on punishing employers, which will not result in an actual “real world” impact that improves workplace safety and health. “The net result of these proposals to increase civil and criminal penalties; dramatically revise the whistleblower structure under the OSH Act; and require immediate abatement will cause not only employers to contest citations at higher rates, but will result in delays in the ultimate resolution of contested enforcement cases, and unduly strain the resources of OSHA and the Solicitor’s Office,” Snare warned. Noting that the proposed legislation will “result in higher costs and added liabilities on employers, including small businesses, who are struggling in this challenging economic time to maintain operations, expand, and trying to retain jobs,” Snare contended that “the best way to achieve continuous improvements in workplace safety and health is to utilize a proactive approach with enforcement when appropriate, and offer outreach, training, and compliance assistance to that vast majority of employers who want to do the right thing and comply with their workplace safety and health obligations.”

House sneaks in bill giving collective bargaining rights to first responders

July 13th, 2010  |  Published in Blog

Sometimes, playing it sneaky is the right thing to do

Earlier this month, the House of Representatives passed the Public Safety Employer-Employee Cooperation Act (PSEECA), which, if enacted, would give firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them. Currently, only half the states give first responders the right to bargain collectively and, according to Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, this bill will provide basic guarantees to first responders, but will prohibit them from “…engaging in a lockout, sickout, work slowdown, strike, or any other organized job action that will disrupt the delivery of emergency services.”

So what was so sneaky about it? The House only passed PSEECA by incorporating it into the Supplemental Appropriations Act of 2010, a bill that the House had to pass in order to keep the trains moving on time. Why did the House have to resort to such tactics to provide the men and women who are the first on the scene when disaster strikes with the same rights as your average dock-workers? Because anti-union groups got their dander up over the perceived giveaway to unions.

Doug Stafford, vice president of the National Right to Work Committee, argued the bill would be more appropriately named the “Police and Firefighter Monopoly Bargaining Bill,” saying that “…the ultimate goal of this legislation is to force every firefighter and police officer in the country under union boss control, whether the individual public safety officers want it or not.”

Sounds ominous. But a look at the bill shows it’s a good days work on behalf of the first responders.

PSEECA would establish minimum collective bargaining rights standards for these employees and would vest the Federal Labor Relations Authority (FLRA) with regulatory and enforcement powers. It would give first responders the right to form a union and bargain over hours, wages, and terms and conditions of employment. It would also provide them with an impasse resolution mechanism, such as mediation, fact-finding or arbitration and would give them the ability to have these basic rights enforced, including the right of the two parties to sign legally enforceable contracts.

Doesn’t sound so bad and it’s the guess here that the only reason groups like the NRWC opposed the bill is because it opens the door to a raft of representation campaigns. PSEECA’s prospects remain uncertain. Although Senate Majority Leader Harry Reid also introduced it as an amendment to the Senate’s version of the Appropriations Bill, he quickly withdrew it. But if the Senate can follow the people’s house, it might just demonstrate that, even in today’s bitterly partisan Washington, some good work can be done.

Supreme Court wraps up its 2009-10 term

July 6th, 2010  |  Published in Blog

Employment Law Daily recaps the labor and employment decisions handed down by the US Supreme Court during its October 2009 term, as well as the non-employment rulings that promise to have a significant impact on labor and employment law:

Free Enter Fund v Public Co Accounting Oversight Bd (Dkt No 08-861). Although the Supreme Court ruled in a 5-4 decision that the tenure provisions for the Public Company Accounting Oversight Board – created pursuant to SOX – were unconstitutional, the Court concluded that those provisions were severable from the remainder of SOX, thus keeping the statute’s whistleblower provisions intact (June 28, 2010).

Skilling v United States (Dkt No 08-1394). The High Court narrowed the scope of the federal criminal statute for “honest services” fraud, vacating the conviction of former Enron CEO Jeff Skilling and instructing that such indictments must be supported by evidence that the defendant had solicited or accepted bribes or kickbacks. The Court rejected the government’s construction of the statute, which would broadly proscribe the “taking of official action by the employee that furthers his own undisclosed financial interests while purporting to act in the interests of those to whom he owes a fiduciary duty.” Skilling is a welcome ruling for attorneys representing high-level corporate executives in criminal matters (June 24, 2010).

Granite Rock v Int’l B’hood of Teamsters (Dkt No 08-1214). In a 7-2 decision, the Supreme Court ruled that a dispute between Granite Rock and the Teamsters union over the ratification date of a bargaining agreement was a matter for a federal court, not an arbitrator, to decide. A court may apply the presumption of arbitrability only where a validly formed and enforceable arbitration agreement is ambiguous as to whether it covers the dispute at hand, and then may order arbitration only where the presumption of arbitrability is not rebutted, reasoned the Court. Here, whether or not the agreement was validly ratified went to the very existence of the agreement to arbitrate. However, the unanimous Court concluded that the employer’s tortious interference claim against the Teamsters was not cognizable under Section 301 of the LMRA (June 24, 2010).

Rent-A-Center, West, Inc v Jackson (Dkt No 09-497). The Supreme Court held in a 5-4 decision that under the Federal Arbitration Act, where parties to an arbitration agreement include a provision that delegates to the arbitrator the gateway question of enforceability of the agreement, if a party specifically challenges the enforceability of the particular agreement, a district court will consider the challenge, but if a party challenges the enforceability of the agreement as a whole, the arbitrator will consider the challenge (June 21, 2010).

City of Ontario v Quon (Dkt No 08-1332). Even assuming that a SWAT officer had a reasonable expectation of privacy in the text messages he sent from his work pager, the city of Ontario, California, and its police department and chief did not violate the officer’s Fourth Amendment rights by obtaining and reviewing transcripts of his text messages because the search was reasonable, the US Supreme Court held in a unanimous judgment. The Court did not resolve the officer’s privacy expectation question, however (June 17, 2010).

New Process Steel, LP v NLRB (Dkt No 08-1457). The National Labor Relations Board lacked the statutory authority to delegate its full powers to a two-member quorum, the Supreme Court ruled in a 5-4 decision, because under Section 3(b) of the National Labor Relations Act, a delegee group must have three members in order to exercise the delegated authority of the Board. The Court’s decision could potentially invalidate almost 600 cases decided by the two-member panel from December 31, 2007 until March 27, 2010 (June 17, 2010). In response to the Court’s decision, the NLRB announced July 1 that it will review 96 cases pending in the courts (six at the Supreme Court and 90 in various Courts of Appeals) that had been issued by the two-member Board; the Board decided nearly 600 decisions while operating with only two members. Each of the remanded cases will be considered by a three-member panel of the Board that will include Chairman Wilma Liebman and Board Member Peter Schaumber (who made up the two-member panel that initially ruled on each case). Consistent with Board practice, the two members not selected to preside over a particular case may nonetheless elect to participate in the case. It is unclear at this time how many of the two-member Board rulings not already challenged in the appellate courts can or will be contested and how many may now be moot.

Hardt v Reliance Standard Life Ins Co (Dkt No 09-448). An employee need not be a “prevailing party” to be eligible for an attorney’s fees award under ERISA’s fee-shifting provision (§1132(g)(1)), held the Supreme Court in a unanimous decision, finding that courts may award fees and costs to a fee claimant so long as he or she has achieved “some degree of success on the merits” (May 24, 2010).

Lewis v City of Chicago (Dkt No 08-974). An employee who does not file a timely EEOC charge challenging the adoption of a practice still may assert a Title VII disparate impact claim in a timely EEOC charge challenging the employer’s later application of that practice as long as the employee alleges each of the elements of a disparate impact claim, the Supreme Court ruled in a unanimous opinion (May 24, 2010).

Stolt-Nielsen S.A. v AnimalFeeds Int’l Corp (Dkt No 08-1198). In a commercial arbitration case that has implications for class-wide arbitration of employment disputes, the US Supreme Court ruled in a 5-3 decision that imposing class arbitration on parties that have not agreed to authorize class arbitration is inconsistent with the Federal Arbitration Act (April 27, 2010).

Perdue v Kenny A (Dkt No 08-970). An attorney’s superior performance can result in enhanced attorney’s fees but only in extraordinary circumstances, held the Supreme Court in a 5-4 decision; the Court affirmed its position that attorney’s fees based on a lodestar calculation, under federal fee-shifting statutes, can be enhanced in certain situations. The lodestar calculation is used to award attorney’s fees and is based on reasonable hours worked and a reasonable hourly rate. The Court’s decision has broad implications for the award of fee enhancements under more than 100 federal laws, including fees in employment discrimination and wage-hour cases (April 21, 2010).

Conkright v Frommert (Dkt No 08-810). In a 5-3 decision, the Supreme Court held that where Xerox’s pension plan provisions gave the plan administrator the power to construe disputed terms, a federal district court should have deferred to the administrator’s reasonable interpretation of the disputed provisions (April 21, 2010).

Graham County Soil and Water Conservation Dist v US ex rel Wilson (Dkt No 08-304). An internal audit and a state agency report were “public disclosures” of wrongdoing under the False Claims Act’s public disclosure bar, which prohibits individual qui tam actions if the alleged fraud has already been disclosed by certain administrative reports, audits or investigations, the Supreme Court held, overruling the Fourth Circuit’s holding that only federal administrative reports may trigger the FCA’s public disclosure bar. The ruling ultimately will have little traction: the Patient Protection and Affordable Care Act included whistleblower provisions that beefed up the FCA clause at issue. Because the amendment was not retroactive, however, it could not save the employee whistleblower here (March 30, 2010).

Hertz Corp v Friend (Dkt No 08-1107). A corporation’s principal place of business is the place where its officers direct, control, and coordinate its activities, a unanimous Supreme Court ruled, adopting a “nerve center” test for determining corporate citizenship and rejecting a “plurality of business activities” approach for analyzing whether diversity jurisdiction exists (February 23, 2010).

Citizens United v Federal Election Comm’n (Dkt No 08-205). The Supreme Court struck down a federal campaign finance reform law that restricted corporate spending on election campaigns. The constitutionally impermissible provision had applied to labor unions as well, although union spending was not directly at issue in this case. While the decision did not expressly lift the campaign spending curb for unions, Court observers have suggested that it did so by implication (January 21, 2010).

Mohawk Industries, Inc v Carpenter (Dkt No 08-678) Resolving a circuit split, a unanimous Supreme Court ruled that a discovery order requiring Mohawk Industries to compel information related to a shift supervisor’s interview with its outside counsel during an internal investigation into a separate RICO class action, as well as information related to the company’s later decision to fire him, did not qualify for immediate appeal by the company until a final judgment had been entered in the underlying action. Mohawk was the first opinion issued in the High Court’s new term and it was also the first opinion written by Supreme Court Justice Sonia Sotomayor (December 8, 2010).

Union Pacific RR. Co v Locomotive Eng’rs and Trainmen Gen Comm of Adjustment, Central Region (Dkt No 08-604). The National Railroad Adjustment Board erred when it dismissed five employee grievances for lack of jurisdiction because the union did not submit evidence of prearbitration union-employer “conferencing” as required by the Railway Labor Act, a unanimous Supreme Court ruled; the conference requirement was not jurisdictional but merely a “procedural rule,” and the Board erred in presuming it had the authority to declare such a rule to be a jurisdictional requirement. Neither the RLA nor its procedural rules “could plausibly be read to require, as a prerequisite to the NRAB’s exercise of jurisdiction, submission of proof of conferencing,” wrote the Court. Thus, the NRAB erred in refusing to hear the grievances “on the false premise that it lacked power to hear them.” (December 8, 2010).

Tenth Circuit finds in-flux positions filled by temps were not “vacant” for ADA accommodation purposes

June 29th, 2010  |  Published in Blog

To reasonably accommodate an employee with a disability under the Americans with Disabilities Act (ADA), an employer may be required to consider reassignment of that employee to a vacant position. But, what exactly does “vacant” mean in the employment context? Addressing this question for the first time, the Tenth Circuit has issued a ruling defining the term. A position is “vacant” with respect to a disabled employee for the purposes of the ADA “if it would be available for a similarly-situated non-disabled employee to apply for and obtain,” the court held. In the case, the court found that two positions filled by temporary workers pending possible outsourcing of those functions were not “vacant” for purposes of reassignment as a reasonable accommodation under the ADA.  (Duvall v Georgia-Pacific Consumer Prods, L.P., June 9, 2010)

An employee, who suffered from cystic fybrosis, worked in the shipping department of a paper mill. When the owners of the mill decided to begin outsourcing the running of its shipping department, the employee transferred to the converting department where raw rolls of newly fabricated paper were machined into finished products, such as napkins. However, he found that the paper dust in the air resulting from the converting process made it impossible for him to work there.

As a reasonable accommodation, the employee requested that he be put back in his old shipping position, which was then occupied by a temporary contract worker pending the permanent outsourcing of the department, or in a position in the mill’s storeroom, where, as in the shipping department, the dust levels were relatively low. But, at that time, a number of temporary employees were filling some of the storeroom positions because the storeroom was under consideration for outsourcing. (Ultimately, the employer decided not to outsource the storeroom functions, but did restructure them.) The employer refused these requests, and the employee went on short-term disability. Three months later, the employer offered him two other positions – a storeroom palletizer temporary position that did not offer regular shifts or predictable hours, and a storeroom clerk position with less hourly pay than his previous two positions.

He accepted the storeroom clerk position, and a few months later, sued under the ADA. The district court granted summary judgment in favor of the employer, holding that the shipping department and storeroom positions filled by the temporary workers were not “vacant” within the meaning of the ADA.

The Tenth Circuit affirmed. It was undisputed that the employee’s cystic fibrosis rendered him disabled within the meaning of the ADA. Accordingly, resolution of the case turned on whether the ADA required the employer to reassign him to either his old position in the shipping department until it was ready to be permanently outsourced, or to a position in the storeroom during the interim three-month period in which he was not offered a position in the storeroom (since he was unable to work in the converting department).

The Tenth Circuit noted that it had not previously defined the term “vacant” for purposes of the ADA, and it did not find any cases from other circuits doing so. It pointed out that, while not defining the term, the Supreme Court, in US Airways, Inc v Barnett (2002), observed that nothing in the ADA suggests that Congress intended the term “vacant” to a have a specialized meaning. As such, the Tenth Circuit held that, in the employment context, “a position is ‘vacant’ with respect to a disabled employee for the purposes of the ADA if it would be available for a similarly-situated non-disabled employee to apply for and obtain.”

The circuit court explained that iIf a “vacant” position meant anything other than one available to similarly situated non-disabled employees, it would run the risk of transforming the ADA from an antidiscrimination law into a mandatory preference law, the circuit court explained. If that were the case, employers would effectively be required to create new positions specifically for disabled employees – positions not available to non-disabled employers. Courts have universally held that the ADA does not require employers to take such action.

Applying its definition to the case at hand, the Tenth Circuit found the undisputed evidence was that the employer’s business plan was to occupy the positions at issue exclusively with temporary contract employees until they would permanently be filled with the outsourcer’s employees, or until the employer later determined to make the storeroom positions vacant again for its own employees. Thus, from the perspective of the paper mill’s employees, the positions were not vacant and available to any of them at the time the employee sought an accommodating assignment into one of those positions. Accordingly, the employee failed to establish a factual issue as to whether the positions were vacant.

Voters in Fremont, Nebraska, pass controversial illegal immigration law; ACLU plans challenge

June 25th, 2010  |  Published in Blog

Following in the footsteps of a recently passed Arizona law requiring police to check people’s immigration status if there’s a “reasonable suspicion” they are in the country illegally, voters in Fremont, Nebraska, passed a petition-driven measure in a special June 21 election to make illegal the harboring, hiring of and renting to undocumented immigrants. The ordinance, which passed by 57-43 percent, would require renters in the city to obtain an occupancy license before they could move into an apartment or house and, as part of the application process, have their immigration status checked.

The ordinance would also require city businesses to use the federal E-Verify immigration database to double-check the status of job applicants. If a business fails to register with E-Verify or provide the required affidavit, the ordinance states, the business will be tried at a public hearing before the city council. And, if the city council determines a business has violated the ordinance, it may revoke the license, contract, or grant issued to the business. In addition, the city attorney will have the power to bring a civil action in district court against any business suspected of violating the ordinance.

Fremont joins Hazelton, Pa.; Riverside, N.J.; Valley Park, Mo.; and a few dozen other towns that have passed laws targeting undocumented immigrants. According to a fact sheet released by the Nebraska Accountability and Disclosure Commission, though, no ordinance similar to that passed by Fremont was ever enforced successfully.

In response, the Nebraska American Civil Liberties Union announced its plans to file within the next few weeks a lawsuit challenging the ordinance’s constitutionality. While noting that “an ordinance of this kind is a true indication of the frustration some communities feel,” Laurel Marsh, executive director of ACLU Nebraska, added, however, that she believed it violates the supremacy clause of the United States. Marsh argued that two main problems exist with the law: that setting immigration policy is solely a federal function, and that the 14th Amendment guarantees due process to all people in the US, not just citizens.

“We’re hearing from people who are legal residents who are Hispanic, that they feel incredibly unwelcome now,” said Amy Miller, Nebraska’s ACLU Legal Director. “Even though they are here legally the rhetoric around the issue has sent a clear message that they are not welcome because the color of their skin or their national origin.”

The ordinance is scheduled to take effect 15 days after the official vote count is announced.

Illinois Treasurer extends family benefits to gay and lesbian employees in domestic partnerships

June 22nd, 2010  |  Published in Blog

Illinois Treasurer Alexi Giannoulias signed an Executive Order on June 13, 2010 providing gay and lesbian treasury department employees in domestic partnerships with the same family leave rights and benefits as married employees. The new office policy, which recognizes a domestic partnership as equivalent to marriage, allows gay and lesbian employees to take unpaid leave to care for a sick partner or relative or for the birth or adoption of a child. Giannoulias’ office is the first constitutional office or state agency to adopt such a policy, according to a statement. The EO effectively extends the Family and Medical Leave Act to gay and lesbian employees in committed relationships. The new policy changes also allow those employees to take maternity/paternity leave and bereavement leave following the death of their partner or partner’s immediate family.

The FMLA applies to married couples who are permitted to take up to twelve weeks of unpaid leave to care for a sick parent, spouse or child. But, according to FMLA, if an employee’s domestic partner or domestic partner’s child falls ill, he or she does not have legally protected leave. “Illinois is home to thousands of households with committed same-sex couples,” Giannoulias said. “But when a crisis occurs, these couples that own and live in the same home and emotionally and financially depend on one another do not have the same rights as married couples. We should not deny same-sex domestic couples those same rights.” Giannoulias believes this step will make the state more competitive with private sector employers, many of which already offer such benefits to their employees.

Giannoulias has taken other steps to recognize the rights of gay and lesbian employees. Shortly after taking office in 2007, he changed office policy to allow employees involved in domestic partnerships to receive the same health benefits as married employees and their dependents. Prior to the Giannoulias administration, the Treasurer’s Office had been the only constitutional office not to give health benefits to same-sex partners of state workers since the Governor extended the benefits in May 2006.

TILT: flu-like symptoms plaguing Gulf cleanup workers

June 17th, 2010  |  Published in Blog

The latest in a seemingly never-ending series of horror stories arising in the wake of the BP oil disaster in the Gulf of Mexico comes to us in the form of a new acronym: TILT, short for Toxicant-Induced Loss of Tolerance. Cleanup workers—formerly known as shrimpers, oystermen and fishermen, but now increasingly known as patients—have reported strange, flu-like symptoms such as joint pains, upper respiratory problems, difficulty breathing, stomach cramping, nervousness, inability to concentrate, balance difficulty, nausea, headaches, skin rashes, pain with or frequent urination.

Workers’ complaints to BP initially went unheeded as the company claimed it was unaware of any such problems and was slow to provide respirators to workers who  experienced symptoms from odors associated with both petroleum and the chemical dispersants used to combat the spill.

 According to InventorSpot.com, TILT (also known as Multiple Chemical Sensitivity) can be caused by exposure to diesel or gas engine exhaust, gasoline, tobacco smoke, insecticide, cleaning products like disinfectants or bleach cleansers, fresh tar or asphalt… even perfume-y odors, nail polish remover, or new furnishings. Pregnant women and asthmatics are most susceptible to TILT.

Despite a request to OSHA in late May by George Miller (D-Cal), Chair of the House Education and Labor Committee, to ensure that there were sufficient OSHA personnel dispatched to the Gulf of Mexico “to properly and aggressively protect the health and safety of those involved in the [BP] oil cleanup activities,” workers and citizens of Gulf communities are still getting sick.

While BP says it’s doing all it can to keep supplies stocked and has had to turn to foreign companies for help, the AP reports that, with demand so high for everything from plastic gloves, to oil-blocking booms and sand-sifting machines, finding enough items to outfit workers and protect the coast is an unending task. Added to that, the summer’s heat and humidity of the region pretty much ensures that we’ll be hearing  a lot more about TILT.

NLRB moving to electronic elections?

June 15th, 2010  |  Published in Blog

When Republican senators filibustered President Barack Obama’s nomination of Craig Becker to the National Labor Relations Board, they usually cited his alleged support of changes to the NLRB election process that would have offered a choice between unions, not between representation, or no representation. Becker’s opponents suggested that the former SEIU counsel would do whatever he could to tilt the labor election battlefield in favor of his old colleagues. As it turns out, those Senatorial worrywarts may have been right to be concerned.

On June 9th, the NLRB issued a Request for Information (RFI) on “industry solutions regarding…secure electronic voting services for both remote and on-site elections.” In other words, the NLRB is exploring the possibility of conducting elections through electronic/internet voting, a change that would represent a dramatic departure from the current manual ballot election process.

Use of a remote online voting process, like the one used by the National Mediation Board, presents many concerns, some of which the NLRB appears to acknowledge in its RIF. Such elections are ripe for outside interference, and the RIF asks for information on existing safeguards that are employed to prevent vote manipulation. Electronic or internet elections also lack the benefit of a pre-designated voting location, which tends to be a convenient room in the workplace, thus creating the potential for decreased voter participation. Again, the NLRB appears cognizant of this concern, as the RIF asks for comparisons on participation levels in traditional and electronic elections.

This early in the process, the RIF also poses numerous questions. When would this election procedure be used? Would it entirely replace the traditional election? Or would it be used only when in-person voting is impractical, due to the dispersion of the workforce? If the NMB is the model for the NLRB is in this regard, the answer is likely that the NLRB means to replace the old model, not supplement it, as the NMB uses this model exclusively.

Which brings us back to Member Becker. Unions have been agitating for speedier elections, which they believe will decrease an employer’s ability to dissuade workers from opting for representation. Electronic/internet elections could be set up to take place within a very discrete period of time and, free from the prying/curious eyes of their peers, workers might feel more comfortable casting a quick vote. If speedier elections is the goal of the prospective change, then perhaps Becker’s opponents were right to be concerned.

Especially if this is only the first of many changes wrought by the Obama NLRB.

With a one-day strike temporarily averted, nurses and their employer will continue to “duke it out,” both in a California court and the court of public opinion

June 11th, 2010  |  Published in Blog

Recently, a California superior court judge granted a Temporary Restraining Order that halted the June 10th strike of nearly 10,000 University of California medical center nurses. This action was in response to a complaint seeking injunctive relief that was sought by the Regents of the University of California, represented by the Public Employment Relations Board’s (PERB), who argued that, among other things, the very collective bargaining agreement (CBA) between the parties included a “no-strike clause.” In the midst of all this legal wrangling, harsh criticism has been directed at each side by the other, and each seems to seek public support for their actions.

In response to the order preventing the strike, Beth Kean, Chief Negotiator for the California Nurses Association’s (CNA) UC Division claimed that “[o]ur number-one priority remains correcting the chronic staffing issues at University of California medical centers, which we have been unable to resolve through any other means…All the resources the University has wasted trying to silence the nurses will do nothing to solve the staffing crisis at UC hospitals, and nurses will not rest until their concerns are addressed.”

However, in its complaint, PERB contended that the CNA’s call for a one-day strike constituted a “prima facie violation of Government Code section 3571.1(c) and/or…section 3571(d)…and that the University…detail[s] substantial and irreparable injury if said work stoppage is not enjoined.” Beyond that argument, one could also surmise that nurses striking could mean less needed care for the very patients the CNA claims it was calling the strike to protect.

So who is right in this whole mess? On the one hand, if staffing conditions are really that bad, then what else can the CNA do but call a strike to symbolize their frustrations? However, if the CBA signed by the parties includes a no-strike clause, then the nurses and the CNA should abide by the contract terms they agreed to, right? Also, if staffing is a concern, and patients are the priority, then a strike would only serve to make that an even bigger issue, which is what their employer is arguing. Yet, this is also what the CNA want shown with a strike because it would highlight the need for more staff, and how important the staff is to the medical center.

This situation represents the classic employer-versus-employee-and-union problem that has been around ever since the first workers unionized to fight for their rights. It also highlights not only how the public can not only be used by both sides to try and advance their agenda, but also how, ultimately, it will be the public that suffers. Because, if more staff is truly needed and not hired, then patients/the public suffer(s), but if nurses, in mass, go on strike even for a day, then patients/the public suffer(s) as well. In this case, the judge required the CNA appear before the court on June 18, 2010 to show cause as to why a preliminary injunction should not be issued, so we may get at least a judicial clarification as to who is right, but there is not indication that even that ruling will solve the problems facing both parties.

Providing false SSN to obtain employment meets “intent to defraud” element of identity theft statute

June 3rd, 2010  |  Published in Blog

In a case that may put another tool at the disposal of those who have declared war on the illegal immigrant workforce, an Oregon appeals court has determined that an individual’s misrepresentation by providing a false Social Security Number on a Form I-9 in order to obtain employment was sufficient to satisfy the “intent to defraud” element of Oregon’s identity theft criminal statute (Oregon v Alvarez-Amador, June 2, 2010, Littlehales, J).

ORS 165.800(1) provides: “A person commits the crime of identity theft if the person, with the intent to deceive or to defraud, obtains, possesses, transfers, creates, utters or converts to the person’s own use the personal identification of another person.” The indictment of the defendant in this case alleged that he acted with “intent to defraud.”  After concluding that, under the statute, intent to defraud encompasses “intent to cause injury to another’s legal rights or interests,” the court held that a jury could conclude from the defendant’s misrepresentation on his Form I-9 that he intended to defraud the federal government – i.e., by making the intentional misrepresentation, the defendant intended to injure the federal government’s legal interest in enforcing its laws. Moreover, the history of the statute suggested that by misrepresenting his employment eligibility in order to induce his employer to give him a job that he was not legally eligible to have, the defendant also intended to defraud his employer. Accordingly, a lower court did not err by refusing to grant the defendant’s motion for judgment of acquittal for lack of evidence of intent to defraud anyone of anything.

Nonetheless, the appeals court reversed the conviction and remanded the case on the Sixth Amendment grounds that the Social Security Administration’s certification that the Social Security Numbers provided by the defendant did not belong to him, was testimonial evidence and, thus, its admission violated his right to confront the witnesses against him.