The firm represents unions and union locals in Mississippi. Joel Dillard is only lawyer in Mississippi who is a member of both the AFL-CIO's Lawyers Coordinating Committee and the National Employment Lawyer's Association.* No union is too small, too new, or too broke to be represented by the firm. In fact, small union clients sometimes find that, between pro bono work, fee deferrals, and offsets, they wind up paying nothing whatsoever for representation.
The firm is ideologically committed to making unions as strong and effective as possible. The firm does not do personal injury or workers comp. We do not represent big business. We are exclusively a labor and civil rights law firm.
* Under MRCP Rule 7.1(d), this statement concerning LCC and NELA membership of Mississippi lawyers is true and factually substantiated as of October 2018. Neither NELA nor LCC grants ABA specialty certifications, and under MRCP Rule 7.6 there is no procedure in Mississippi for approving certifying or designating organizations and authorities. As stated on the LCC website:
The AFL-CIO Lawyers Coordinating Committee (LCC) is national membership organization of over 2,100 union-side lawyers in more than 500 firms and union legal departments around the country... To be eligible for membership in the LCC, a practicing lawyer in the U.S. must meet a number of criteria, including representing AFL-CIO affiliated unions and practicing union-side labor law a substantial (more than 50 percent) of the time. The only other LCC member in Mississippi is John Maxey. As stated on the NELA website:
NELA is the country's largest professional organization that is exclusively comprised of lawyers who represent individual employees in cases involving employment discrimination and other employment-related matters. NELA and its 69 state and local affiliates have more than 4,000 members.... NELA advances employee rights and serves lawyers who advocate for equality and justice in the American workplace. Our [v]ision [is that w]orkers will be paid at least a living wage in an environment free of discrimination, harassment, retaliation, and capricious employment decisions; employers will fulfill their promises to provide retirement, health, and other benefits; workers' safety and livelihood will not be compromised for the sake of corporate profit and interests; and individuals will have effective legal representation to enforce their rights to a fair and just workplace, adequate remedies, and a right to trial by jury. There are three other NELA members in Mississippi: Louis Watson, Jason Bush, and John Mooney.
Representing Mississippi Workers Starting Unions
It is surprisingly easy to start a union - as long as the employees are really ready for a change. This is the firm's pro bono specialty - we will help employees start a union for free.
We write about unions a lot! See below for more on unions from the blog!
NLRB's Election Procedure Rule wins decisive victory in Fifth Circuit
It's a funny thing about the practice of law: when you get involved in something big, it can consume your working life completely, and everything you've devoted yourself to comes to hinge on a single, decisive moment.
For me, one such ultimate moment came this week, when the Fifth Circuit issued its decision in the NLRB's Election Procedure Rule. This rule has, in one form or another, consumed the greater part of my working life. You can see a brief run down of the rule by clicking here, and a discussion of my involvement in the rule by clicking here.
And I'm not the only one. As hard as I and a handful of my colleagues at the Board fought for this rule, an army of corporate lawyers fought tooth and nail against it. Through more than five years of fierce dispute, including four days of hearings, the submission of some 75,000 comments, who knows how much Congressional lobbying, and three separate lawsuits, I'd guess that corporate special interests probably spent some $100 Million all told opposing the rule. Why? Who knows, really. Much of the effort was plainly wasted - or even counterproductive - such as the Chambers 2012 litigation, which ultimately resulted in a more aggressive rule.
And now the rule has received what is likely to be its most decisive vindication. A politically hostile panel of the Fifth Circuit just affirmed the rule in no uncertain terms. At this point, it looks like it's all over but the shouting, and the good guys won.
Judge Edith Brown Clement's decision is emphatic. First, the Court described the rule in its most unfavorable terms, using language lifted from the corporate lawyers' briefs. Then the Court held that the rule was valid, embracing the Board's rationale for upholding the rule. The result is a vindication, not only of what the rule actually does, but of what even the rule's fiercest opponents pretend that it does: even if the rule could result in 11 day elections as the opponents claim, it would still be valid.
This shouldn't come as a surprise - the caselaw and authorities were extremely one-sided, with the corporations relying almost solely on out-of-context snippets of legislative history, and the Board on the text and actual history of the statute - and yet in the age of an increasingly partisan judiciary, it does. Let this be a reminder that law is not the same as politics, and even a very politically salient argument to a very politically sympathetic judge can and will fail when the law is set inflexibly against it.
- The Fifth Circuit decision text.
- Post about the D.C. District Court's decision upholding the rule, 8/11/2015
- Complete text of D.C. Dist., Judge Jackson's opinion, 7/29/2015
- NLRB Election Rule Wins in Texas District Court, 6/1/2015
- Complete text of the prior decision by Judge Pitman of Texas upholding the rule, 6/1/2015
- NLRB's new election rule going into effect today! - 4/15/2015
- Obama Vetoes NLRB Election Procedure Rule CRA Challenge - 4/2/2015
- ALSO RELATED: Voting Unions and Democracy at Work - 3/24/2015
Firm wins big NLRB victory for the employees of Victory Casino Cruises
On Friday, the National Labor Relations Board issued a resounding victory to the employees of Victory Casino Cruises, a gambling boat operating out of Jacksonville and Cape Canaveral, Florida. The Board found multiple violations of federal law.
The employer had a policy prohibiting employees from disclosing
compensation data and
disciplinary actions, among many other things, and had a second policy stating that
the company consideres all information about present or past employees to be confidential and prohibiting its disclosure to anyone.
The unanimous Board found that these policies violate federal law. As the majority of the Board panel (Hirozawa and McFerran) found
it is settled that Section 7 of the Act grants employees the right to discuss information about other employees and
it is likewise settled that employees have a Section 7 right to discuss their conditions of employment with third parties, such as union representatives, Board agents, and the public in general. As Republican appointee Phillip Miscimarra stated in his concurring opinion on this point,
the right to engage in protected concerted activity involving the disclosure of such information is central to the Act. (Read more about Free Speech Rights at Work on the blog.)
The Board majority also struck down a mandatory arbitration agreement, which was essentially the same as those at issue in the Board's prior decisions in D.R. Horton and Murphy Oil. Miscimarra dissented for the same reasons as in Murphy Oil.
This is a strong decision in favor of workers' rights. Read the full decision here. I highly recommend a careful reading of both majority and concurring views about the confidentiality provisions.
The charging party employee in this matter was represented by Joel Dillard, P.A., and The Bonderud Law Firm, P.A.
One trend to follow in National Labor Relations Board (NLRB) case law recently is the ongoing controversy about a the generalized animus standard for the prima facia case in Wright Line burden-shifting discrimination cases under Section 8(a)(3) (union activity) and 8(a)(1) (protected concerted activity).
If that sentence made no sense to you, don't worry, it wasn't really in English. It was in the bizarre jargon only known to the small-and-ever-shrinking cabal of labor lawyers in America. Allow me to translate.
Wright Line in plain language
These cases are a little like a bizarre game of volleyball. First, the boss serves the ball by firing the employees. Then the ball is in the employees' court, and they have to send it back by providing enough evidence to show that the firing was motivated, at least in part, by animosity toward the union or free speech or other protected activity. To do this, initially, of course, the employees have to file a charge with the NLRB within 6 months. From there, they have to make three consecutive touches - like so:
- Proving that the employee engaged in union or other protected activity (bump!)
- Proving that the employer knew of such activities (set!)
- Proving that the employer harbored animosity towards the union or protected activity (SPIKE!)
If these three things are proven, then the employee has essentially spiked the ball back down over the net onto the employer's side, and the employer now has the burden of knocking it back, or the employer will lose.
To do this, the employer has to affirmatively prove that more likely than not they would have fired them anyway, regardless of the protected activity. This means the employer has to come up with the evidence to show they uniformly treated other employees that did not engage in protected activity in the same way. And if the evidence is only 50-50 or worse, the employer loses.
Proving antiunion animus
Often the most important part of this game is the
spike - proving employer animus. And the question of what exactly this means has been the subject of a number of recent Board decisions.
On March 30, 2015, for example, the Board issued a decision in Commercial Air, Inc., 362 NLRB No. 39, in which it stated that there did not need to be
a particularized showing of animus towards the disciplined employee's own protected activity. What this means is that the employee doesn't have to prove any sort of connection between the animus and the protected activity - or even the knowledge. As long as the employee engaged in any union activity, and the employer knew about it, you don't have to show animus toward the particular, known union activity at issue, you only have to show generalized animus - animus toward the union in general.
Member Miscimarra dissented on this point, stating that in his opinion the employee should have to prove
a link or nexus between the employee's [known] protected activity and the particular decision alleged to be unlawful. In essence, all three elements have to be both proven and tied together by a fourth element, "nexus," showing the connection between each of the three elements and the firing. This would be much harder to do, because it is very rare that the employer will say something specific to the particular employee's protected activity while firing them.
It also wouldn't make much sense, in my opinion. Where it is proven that the employer hates the union, and fired union organizers, it is perfectly reasonable to infer that the union organizing played some kind of role in the firing of these employees, and to put it to the employer to prove otherwise.
Last week's decision didn't exactly break new ground on this point. But the mere fact that it was addressed at all in Commercial Air, even though it made no difference in the outcome, shows the great care taken by the Board to ensure that nexus doesn't creep into Wright Line jurisprudence by casual misapplication in Administrative Law Judges. And as the dissent shows, the issue has been the subject of some second guessing recently. The Board discussed the issue a little more fully in Libertyville Toyota, 360 NLRB No. 141, slip. op at 4 fn. 10 (2014), where, as it noted, Member Miscimarra has taken up the mantle of former Member Schaumber in this quest to require a nexus. Member Schaumber failed to convince his contemporary colleagues (of either party) to adopt his view, and to date Member Miscimarra has fared no better.
Nonetheless, it is an issue that bears close attention, particularly because other statutes have been interpreted consistent with the Schaumber/Miscimarra view, and it could prove appealing to a future Board or to the Supreme Court.
A Tale of Two Scrooges (a free speech fable)
It was a very cold mid-winter day in London, England. A group of clerks asked for a little more fuel for the fire, to warm the office and thaw their hands; Scrooge said
no! and threatened to terminate them. The frightened clerks sat back down and tried to warm their fingers over the candle flame. So it went in Dickens'
On another cold mid-winter day, this time in Baltimore, Maryland, another group of workers faced another Scrooge, but the result was very different. The plant was drafty, uninsulated, frigid; the furnaces were falling apart. But the boss was too cheap to fix it. After their complaints had gone unheard, the workers decided it was finally time to stand up for themselves. Seven of the eight day-shift workers walked out of work one morning, saying
I am going home, it is too d-mned cold to work. They
had all got together and thought it would be a good idea to go home; maybe we could get some heat brought into the plant that way. The boss tried to terminate them.
The Supreme Court weighs in: workers have the right to speak up
The Supreme Court said the workers have the right to speak up for themselves---and even to walk off the job---and it is illegal to try to terminate them for it. The courageous workers all got to keep their jobs, and their boss was ultimately forced to reckon with them collectively, on their own terms.
The right to stand up and speak out
The statute books say that employees have the right to engage in
concerted activities for . . . mutual aid or protection (29 U.S.C. 157) - in other words, free speech about working conditions and a democratic voice in the workplace.
This area of law is complex, however, and there are a number of important limits on speech protection which cannot be easily summarized. For this reason, it is important to consider the circumstances of the particular case before employees decide to take action.
Freedom and democracy.
Some people think
freedom means that they get to tell you what to do, because they are the
owners and you are not. Owners have thought that way for hundreds of years.
They are wrong. Freedom is for all. The owner may own something but it isn't 1860 anymore, and they do not own the workers. Workers are entitled to a voice at work, and have a right to democratically participate in the process of setting their own wages and working conditions. This right is guaranteed by Section 7 and Section 9 of the National Labor Relations Act.
But there is a process that must be followed. First, the employees form a democratic organization. Then they sign a petition or vote to prove that the majority of the workers want to have a democratic voice at work. Then they elect representatives.
You are the union.
Sometimes a group of employees want complete control of their own representation, without anyone from the outside involved. No problem. You can vote for a democracy at work - and still remain completely independent - by forming your own organization just for you and your coworkers. You get to choose whoever you like as your representative.
However, there are also many local, national and international labor unions which have a lot of useful experience, and they can be excellent representatives. If you vote for a union, you as employees and members still get to choose your local president, bargaining team, and other representatives, and you even get to vote for the international leadership of the union itself.
Three steps to take control of life at work.
There are three basic steps workers can take to gain control of their work.
- Exercise their free speech rights. Workers have the right to speak out---and act out.
- Bring democracy to the workplace. Workers can get a seat at the table in determining their own wages and working conditions if they form a democratic organization and elect representatives.
- Take ownership of the work. With hard work, workers may be able to buy out their boss entirely. Then the workers will get to keep the profits of the business, and can take complete control of their own working conditions.
Like rungs in a ladder, each of these steps leads to the next. By exercising free speech rights, workers learn courage and gain power in cooperation and support of other. This gives workers the know-how to bring true democracy to the workplace. Through this experience, workers grow much better at cooperating and working together with each other. And in the bargaining process, workers learn how the business is run and where profit comes from. This will ultimately make it easier to transition into ownership, and the workers will be able to run the business together.
Of course, it isn't always a direct ascent, and not everyone wants to climb all the way to the top. For this reason, perhaps it is better to think of these as phases than steps.
Many workers take one or two steps and decide that they are content. Some are fortunate enough that they can skip a step or two. In fact, there are some who think that step 2 should be skipped, as it has the danger of creating an institution with interests in diverting the continued progress of the employees. I think anyone who can skip the second step certainly should, but there are many occassions when the second step is really essential, and I tend to think that union certification can still have significant benefits.
The Big Steal: Economic Impact of Right-To-Work Laws
A recent study shows that
right-to-work laws are no good for the economy. The only significant impact is to transfer money from both employees and taxpayers to the owners of businesses.
Today, 25 states have adopted such laws, which are designed to sap the strength of labor unions. The way these laws work is by forcing unions to provide free services, draining their financial support and ultimately decreasing membership numbers.
Representing employees can be expensive. A union not only pays for organizing and negotiating contracts, it also pays for grievances and arbitrators to decide disputes about how the contract is interpreted. The money can come from two places: member dues and non-member fees. Membership in a union is always voluntary, so no one has to pay dues who does not want to. But if your co-workers have voted to have a union, then by law the union is required to fairly represent everyone in the unit, including people that opposed the union. And so, to pay for this representation, the union charges the non-members a fee which is smaller than membership dues, and which only requires them to pay for their share of the local services they are receiving.
The anti-union laws ban unions from charging this fee - requiring them to provide free services. Over time, the effects can be serious, since members see their dues going to pay for helping non-members, and wonder what is the point of joining. The ranks of these
free riders grow, ultimately impoverishing the union to the point it can't provide meaningful services to anyone.
Is this good for the economy? A recent study out of Illinois found the answer is no.
In fact, the only statistically meaningful impact of these anti-union laws on the economy was to impoverish everyone else and enrich business owners. Wages drop and the economy shrinks, causing a decrease in income tax revenue and an increase in spending on food stamps and tax credits. Business owners benefit, but the taxes they pay are inadequate to offset the losses elsewhere.
To be clear, this isn't the reason I support unions. Economic growth is not always a good thing, and I think the true value of a union is not based on its economic benefits, either generally or for the particular employees it represents. I think unions would be better served to place less emphasis on economic benefits. Still, not everyone sees it this way, and I think it is important for people to understand that the way the economy plays out in real life is far more complicated than the two or three axioms and graphs they had to memorize in Econ 101.
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