The firm represents unions and union locals. 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.
Representing 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!
Jackson Federation of Teachers Sues JPS for Free Speech Violations
The AFT local union is suing the Jackson Public School District on behalf of Anthony Gunter, a former teacher at Provine High School. The District has violated his free speech rights - and the rights of all teachers and other employees.
Act 1: The Tuberculosis Outbreak at Provine High School
In February of 2019, the media broke the story that a student at Provine High School had a confirmed case of tuberculosis, and that he had been attending the school while ill in the month of December 2018. Suffice to say this was big news, and JPS was not happy with the way public relations were being handled.
Act 2: A Teacher Talks to the News Media About the Issue
Teacher Anthony Gunter was approached off-campus by Channel 16 WAPT to comment about the tuberculosis outbreak. Gunter stated his concerns and the interview aired on the evening news.You can watch his interview here: Gunter's interview.
ROSS ADAMS: TONIGHT ONE PROVINE TEACHER IS SPEAKING OUT. HE WANTS TO KNOW WHY THEY WEREN'T TOLD EARLIER ABOUT THIS HEALTH SCARE.
ANTHONY GUNTER: AS A CONCERNED PERSON HERE AT PROVINE HIGH SCHOOL I WOULD LIKE TO KNOW WHEN IT STARTED.
ADAMS: PROVINE HIGH TEACHER ANTHONY GUNTER IS LOOKING FOR ANSWERS ABOUT TUBERCULOSIS AT HIS SCHOOL.
GUNTER: IT'S A LOT OF QUESTIONS TO BE ASKED. AND A LOT OF QUESTIONS THAT NEED DIRECT ANSWERS.
ADAMS: GUNTER WANTS TO KNOW WHY THE SCHOOL JUST FOUND OUT THAT A PROVINE STUDENT WAS DIAGNOSED WITH TB IN DECEMBER.
GUNTER: IF IT WAS DECEMBER WE SHOULD'VE BEEN NOTIFIED LONG BEFORE DECEMBER. LIKE I SAID, THIS IS A VERY DANGEROUS SITUATION. THIS IS NOT LIKE YOU CAN GO TO THE STORE AND BUY SOME ROBITUSSIN AND IT WILL BE DONE WITH IN 24 TO 48 HOURS.
ADAMS: HEALTH DEPARTMENT OFFICIALS SAID IT TOOK WEEKS TO GET LAB RESULTS THAT CONFIRMED THE DIAGNOSIS.
GUNTER: IF IT WAS SOMETHING THAT WAS KNOWN PRIOR TO TODAY I’D JUST LIKE TO KNOW WHY WASN'T THE FACULTY OR THE STUDENT BODY INFORMED. THIS IS A VERY DANGEROUS SITUATION.
DR. THOMAS DOBBS: THERE IS NO ONGOING RISK OF INFECTION.
ADAMS: STATE HEALTH OFFICER DR. THOMAS DOBBS SAID THE HEALTH DEPARTMENT PLANS TO TEST 200 PROVINE STUDENTS AND FACULTY WHO MAY HAVE HAD EXTENDED CONTACT WITH THE INFECTED STUDENT.
VALERIE HOYE: THEY'RE GOING TO HAVE TO GO THROUGH A LOT BECAUSE IT MIGHT BE SOME KIDS THAT WAS ACTUALLY INFECTED BY IT.
GUNTER: I THINK WE ALL NEED TO BE TESTED. WE ALL SHOULD BE INFORMED AS TO HOW LONG THIS THING HAS BEEN GOING ON, HOW LONG WE HAVE BEEN EXPOSED.
ADAMS: AND TONIGHT THE HEALTH DEPARTMENT TELLS US THAT THE INFECTED STUDENT HAS BEEN REMOVED FROM PROVINE HIGH.
ROSS ADAMS, CHANNEL 16 WAPT NEWS
Act 3: Gunter is fired
Gunter was terminated by the school district thereafter. The day after the story aired, Gunter was called into the principal's office where he was criticized for giving the interview without prior permission, and for what was said in the interview. At the end of this conversation the Principal shook Gunter's hand and said they were going
in a different direction and that the school
did not need [Gunter] anymore.
Act 4: The AFT local Union Sues for Free Speech Violations
The union JFT-PSRP and Gunter jointly brought suit alleging that JPS is maintaining and enforcing an unconstitutional media policy that restrains employees in the exercise of their free speech rights. According to Joel Dillard, the attorney representing Gunter and JFT-PSRP in the suit:
Teachers are a vital source of information about the health and wellbeing of students in our schools. We cannot tolerate administration efforts to silence them.
Read more in covereage of this lawsuit in the media from the Clarion Ledger.
For some time now I’ve been meaning to write about the National Labor Relations Board’s decision in Alstate Maintenance, LLC, 367 NLRB No 68, which came out last year. But I just can’t.
It’s too outrageous. I cannot even fathom how the Board somehow thinks it is free to rewrite Supreme Court decisions. This issue was settled, resolved, completely put to bed by perhaps my favorite case of all time, NLRB v. Washington Aluminum, 370 U.S. 9 (1962).
And the majority doesn’t even mention it. It makes no effort to try to distinguish or explain what it is doing on this backdrop. Almost like the majority is completely unaware of the case. Which they aren’t. Every single one of those guys read this case in law school, I can promise you. And the dissent, in the very first sentence, pointed out the great big Washington Aluminum problem the majority was ignoring.
Thing is, they could confront the issue and explain their reasoning, try to explain why Washington Aluminum proved unworkable, or somehow problematic, and justify a change in the rules. But they cannot just ignore it. They just can’t.
In Washington Aluminum an employee said to his coworkers something to the effect of
it is too cold in this factory with the heaters broken, we can't work in these conditions. Lets get out of here. And they left. This was concerted activity, because they acted together to address an issue at work.
In Alstate Maintenance an employee (a Skycap) said to his coworkers something to the effect of
these guys don't tip, and they are always terrible to work with, let's not serve them. And so they refused them service. The Board said this was not
concerted because... I don't know, um, reasons? I still cannot tell what the actual reasoning is here.
I could see saying what the Skycaps did in Alstate Maintenance was perhaps
unprotected if they crossed the line to inappropriate conduct, but to say it was not CONCERTED? They f....... I mean, they walked off. THEY walked off. As a group. TOGETHER. That’s what
concerted means. It was literally the facts of Washington Aluminum. And it was obviously about the terms and conditions of work. Tips are compensation under the FLSA. To say they are just a matter
between the customer and employee is basically making every customer harassment or mistreatment case outside the purview of the Act. Every single sentence in Alstate Maintenance makes me feel like I’m losing my mind, like somehow maybe I’m the crazy one, as if I’m missing something somewhere. The Board is gaslighting me.
So I guess I’m not going to write a blog post about Alstate Maintenance. I just cannot handle it right now.
Today's post is by one of the firm's Peggy Browning Fellows, Nicholas Stonecypher.
The NLRB’s recent decision in General Motors, 369 NLRB No. 127 (July 21, 2020) restricts the right to engage in union activity. Setting itself up as a defender of
order in the workplace, the Board holds that discourteous union activity is not protected by the National Labor Relations Act.
The basic concept here is not new. It is against the law to fire an employee because of his or her union activity. But not all union activity is protected by law. Violence, unsafe behavior, and other violations of valid employer rules can be legitimate reasons to terminate an employee, even if union activity is also involved. This has been the law for decades. If the employee
crosses the line the union activity is no longer protected. What the General Motors decision did is move the
line. It is now more difficult to protect employee organizing.
Under the prior rule, an employer’s punishment of worker outbursts during union activity was evaluated by considering four factors:
- the place of the discussion;
- the subject matter of the discussion;
- the nature of the employee’s outburst; and
- whether the outburst was, in any way, provoked by an employer’s unfair labor practice.
For example, a black union worker at GM told one of his managers to (1)
shove it up [his] f---ing ass, (2) responded to another manager’s request to talk quietly by mocking the manager as a slaveowner, and (3) on another date said that he would
mess [the manager] up. Under the Atlantic Steel Co. test, the second and third actions would be unprotected, and the employee could be fired for them. But the first one was protected. This was because, although it was extremely crude, it did not
cross the line drawn by Atlantic Steel.
That was not good enough for this NLRB. The Board changed the rules to make it easier to find activity unprotected.
The Board’s reasoning is that profanity like this can be part of harassment. Under Title VII of the Civil Rights Act, (if the harassment is for an illegal reason) an employer is responsible for the harassment of its employees if the employer has knowledge of it but doesn’t take prompt remedial action. Therefore, the NLRB argued, employers were trapped between a duty to discipline harassing employees, and an obligation not to discipline workers engaged in union organizing. By punishing employers for disciplining harassers, the NLRA is undermining the anti-discrimination aims of the Civil Rights Act.
But, as the National Nurses United explained in their amicus brief, the Board is able to point to no such case in fact. That’s because there likely is no case where the Atlantic Steel rule protected conduct that violated Title VII of the Civil Rights Act. The Board points to several cases where offensive comments by workers involved in organizing a union were held to be protected by the Act. In addition to the instant case, the Board cites cases where workers shouted expletives at their employer as well as instances where workers hurled racial epithets. This is pure misdirection.
A harassment claim under Title VII requires the plaintiff to show that the harassing conduct is more than an isolated incident, offhand comment, or mere offensive utterance. For conduct to constitute harassment it must change the terms and conditions of employment for the plaintiff. Indeed, NNU’s brief quotes the Supreme Court’s point that Title VII is not meant to
become a general civility code. And yet, the Board now holds up Title VII to justify its imposition of just such a civility code. If the conduct that the new rule regulates doesn’t rise to the level of harassment, what exactly is it regulating? Union organizing. Why? Because employers find union organizing abusive.
Now, when employers punish workers for being
abusive while organizing with their coworkers, workers will lose legal protection if the employer can effectively persuade the Board that the reason for the punishment was the profanity and not the union activity. The Board has decided that it can separate the outburst from the union activity.
But is this really possible? The Atlantic Steel standard was based in a very practical understanding that
the protections Section 7 affords would be meaningless were we not to take into account the realities of industrial life and the fact that disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses. Consumers Power Co., 282 NLRB 130, 132 (1986).
Consider captive audience meetings, which are a tried and true anti-union tactic. Employers hold mandatory meetings, staffed by high-paid labor lawyers and consultants to persuade employees to vote against the union. Employers, who cut the checks that keep the lights on in each of their workers’ homes, require them, on pain of dismissal, to attend a meeting filled with anti-union propaganda. Could a worker standing up to say
F--- you, I’m voting for the union now be more easily dismissed?
The new rule applies the Wright Line standard which proceeds in three steps. (We've previously posted on
Wright Line in plain language on this blog!) First, it requires the punished worker to show that she
- engaged in protected concerted activity,
- the employer knew about the activity, and
- the employer had a motive to discourage the worker exercising her rights.
Second, the employer then has the burden of proving that he would have fired the union worker for the outburst, even if she wasn’t engaging in section 7 activity. In other words, the boss has to convincingly argue that the only reason they’re firing her is because she said
F--- you . . . and not because she said
. . .I’m voting for the union!
Third, if the employer is convincing, then the worker gets one more shot to show that the employer’s explanation in the second step is not persuasive; that it is just an excuse.
It’s an open question how far this goes. Employee speech at work is still technically protected by the NLRA, but now AJs sensitive to
civility have the basis they need to rule against workers. The Board is notorious for flip-flopping rules just like this as the Board appointees shuffle back and forth between Democrat and Republican.
Workers should know that they can still talk about union organizing at work. And if your employer retaliates, it is still unlawful. Just try to remember to quietly say
darnit instead of shouting
g--d---it so as not to upset the delicate sensibilities of your exploiters. Or the Board.
The freedom of speech and of the press shall be held sacred according to the Mississippi Constitution, Art. 3 Sec. 13. This is the strongest free-speech language I am aware of in any law anywhere. This language is far stronger than the First Amendment of the U.S. Constitution, which states only that
Congress shall make no law . . . abridging the freedom of speech. As discussed in a past blog post, the Courts have interpreted the language
Congress shall make no law as limiting the First Amendment to
But the Mississippi Constitution may not be limited to actions of the government. It says, flatly, that this freedom
shall be held sacred, and presumably this means it shall be held sacred by everyone. If true, the implications of this could be staggering - unthinkable even. Certainly it is an interpretation well worth serious consideration.
Yet this language has been quoted only about ten times by the courts since 1950. Some of the discussion in the cases suggests support for the idea, e.g,
They are not idle and meaningless terms, but signify philosophical concepts of a constitutional republic and of the intellectual independence of every citizen. Evers v. State, 131 So. 2d 653 (Miss. 1961). But the courts have rarely - if ever - deliberately distinguished this broader language in the Mississippi Consitution from the federal First Amendment. They have only said, in passing, that
We are of the opinion, without deciding, that Article 3, Section 13, supra, by modern-day standards, appears to be more protective of the individual's right to freedom of speech than does the First Amendment since our constitution makes it worthy of religious veneration.ABC Interstate Theatres, Inc. v. State, 325 So. 2d 123 (Miss. 1976). Accord Gulf Pub. Co., Inc. v. Lee, 434 So. 2d 687 (Miss. 1983).
Perhaps it is an idea whose time is coming.
Today’s guest post is by James Dillard, a talented calculus teacher and observer of institutions.
One of the things that drew me to teaching was the flexibility it afforded to live and work in many parts of the country. Coming out of college I was eager to see what our country had to offer. I have taught in California, Wyoming, Virginia, and the state of Washington. While I knew each region would have its cultural quirks, I was not expecting the difference a union makes in the school.
Martyr: the mindset and experience of the non-union teacher
During what I would call my formative years as a teacher, I worked at a non-union high school in the densely populated DC suburb of Woodbridge, Virginia. When I first arrived at the school, I was starting my third year as a math teacher and was just beginning to get comfortable with my teaching style.
It was 2011 and the economic recovery was in full swing, yet teachers had not received a raise or a step increase since at least 2008. As a result, teachers who came in from elsewhere were sometimes paid more than those that had dedicated their careers to the school. The only way around this was to leave the district and come back a different year. This was very hard to do, though, because all of the neighboring school districts had noncompete agreements and would not release teachers from their contracts.
The 2011-12 school year was the first year that teachers in Prince William County Schools received a raise, and it was only a small cost-of-living adjustment to account for inflation. I believe I only received one step increase in five years of teaching.
The staff was very dedicated, and freely gave of their time to help students learn. Teachers were expected to stay at least once a week for two hours after school for tutoring, and as a member of the math department, I was encouraged to stay twice. This was structurally enforced because there were dedicated buses that stayed late on Tuesdays and Thursdays specifically to take students home who had stayed for tutoring. Students were required to be in a classroom if they took the late buses home and were not allowed to ride them without a pass from a teacher verifying that they were receiving tutoring or participating in a club.
Those teachers who did not stay to tutor were regularly reminded that they should and that teaching was about doing what was best for students. As a young teacher, I did not think twice about the idea of staying to tutor my students; my job was to help them succeed.
I was also the boy's junior varsity soccer coach. During soccer season, practice was everyday after school for two hours and games twice a week that often kept me from home until 10 or later at night. Because I was coaching JV, my job title was as an assistant coach and there was no dedicated funding for assistant coaches. As such, the head coach had to decide how much of his pay he would allocate to me and his varsity assistant coach. This ended up being about $1500 for the season. I coached because I enjoyed it, not because of the pay.
This school, as with schools everywhere, had trouble with finding enough substitutes. This was especially true on Mondays and Fridays. To discourage us from taking Monday or Friday off, the principal refused to look for subs on those days. When teachers were out, it was up to their department to figure out how to get the classes covered. This meant we had a rotating schedule of IOU’s based on who had lost their planning period to cover for another teacher. We were not happy about this, but there was nothing we could do.
Teachers are expected to attend graduation without compensation. Teachers are expected to take the time to remove all decorations and personal teaching supplies from the classroom at the end of each school year and return them at the beginning of the following year, without compensation for their time. Teachers must supervise, take tickets, or chaperone a minimum of two sporting events or dances each year without compensation.
Still, when I moved from Virginia to Washington, it was a very sad time. I loved the people and school where I was working and had invested a lot of time and energy into making it the best school I could.
Professional: the mindset and experience of the union teacher.
I now teach at a high school in an Olympia, Washinton suburb. The district has an active union and the switch from a non-union to a union job was quite a culture shock. I have now taught here for four years and each year I have received a full step increase along with an additional COLA. This fact alone is a culture shock. In Virginia, any step increase was a miracle. In Washington, annual step increases are a minimum expectation.
At first glance, the teaching atmosphere didn’t seem that different, but as the school year got going, little things became apparent. At the beginning of the year, a sign-up sheet was passed out to determine when people were going to stay after school to tutor. Being a new teacher, at the school, I wanted to make sure that I was contributing, so when there were spaces left blank, I made sure that I signed up so that tutoring would be covered. It wasn’t until I was actually tutoring that I learned that I would be compensated for my extra time at the standard teacher hourly wage. This was a shock. Between my wife and I, we did not need the extra pay, and I was hoping to spend more time at home with my kids, so from then on, I have decided to leave the after-school tutoring for those that need the extra compensation. I still volunteer to tutor before and after school, but only during my contract hours.
When I was asked to coach JV soccer, I found out that there was an actual salary schedule that dictated my pay based on my experience. If I agreed to coach, I would have made more as a JV soccer coach in Washington than I would have if I was the head soccer coach in Virginia and didn’t share my pay with assistant coaches. Not only that, but my compensations would have increased with each year I coached. Even with the additional pay, I turned down the coaching position so I could have more family time.
If I take tickets at a sporting event, I am compensated. Graduation attendance is not compensated, but it is also not mandatory. I am not asked to remove all of my decorations at the end of each year, and if I am told that I must change classrooms that I teach in, there is additional pay to compensate me for the added time required to move. If there aren’t enough substitutes available, and I have to cover for a teacher during my planning period, I am given extra compensation for the time that I lost.
All of these little things create a very different relationship between the teacher and the school where they work. Teachers think of themselves as professionals who must be compensated for any professional work that they do. Teaching in the school is much more transactional. Any time there is an additional task required of a teacher, the expectation is that it is compensated. The idea that teachers must go the extra mile because we care about students and if we don’t do it for free we are not good compassionate teachers is just not a discussion. Even after teaching here for four years, it is still a shock.
I should also mention the added freedom teachers have to speak their minds to the administration. There is a lot less fear here: teachers know they can stand on their rights and will not be pushed around.
Occasionally there are tasks that the district or school asks us to participate in that require more work, but no additional compensation. The district finds it very hard to get volunteers for these tasks. For instance, the district is going through a new math curriculum adoption. The district agreed that any meetings required outside of the bargained professional development days would be compensated, but that the additional work required to learn and implement the pilot curriculum would be done on the teacher's own time. Because of this, I was the only math teacher at my school willing to participate in the textbook adoption process. Unions bring a culture to a school that says we are professionals and our time is valuable. If you wish to use my time to improve the school, I expect to be compensated. With this mindset, if the district really does need volunteers, they almost always must look to the outside community. Teachers are professionals, not volunteers, and they will happily let the administration know this.
The Union Difference
From my experience, districts that do not have a union encourage teachers to be martyrs for their school. They shift the burden of providing for students from the administration to the poorly compensated classroom teacher. The message is, you care about your students, so you do what must be done to make the school better. Teachers are reminded regularly that teaching is a calling, and that we chose this profession, not because of pay, but because we care about children.
In a unionized school, the teachers remind the district that we are professionals and that if they want the most for the students in their district, they must pay for it. The burden of who is responsible for offering things to students shifts back to the administration.
The Supreme Court said in 2018 that
[w]hen a large number of employees speak through their union, the category of speech that is of public concern is greatly enlarged, and the category of speech that is of only private concern is substantially shrunk. Janus v. AFSCME, at 2473.
The Court therefore appears to embrace the idea that speech which might be an unprotected
private grievance when one employee does it becomes protected by the First Amendment when the union is involved in supporting that grievance. This idea was central to the Court’s decision in Janus that, because union grievances and bargaining were of public concern, employees had a First Amendment right to choose for themselves whether to support them or not.
This dovetails nicely with many of the practical reasons that an employee engaged in free speech criticizing her government employer is more protected when she does it through and with her union:
- When you speak through the union, it is easier to be anonymous. You have the right to anonymous participation in the union.
- When you speak through the union, you have the power of the many other members standing at your back with you. This both makes your voice more effective and makes you less likely to suffer retaliation. Retaliating bosses typically prey on the weak, not the strong.
- Your union can negotiate avenues for effective speech up the chain of command and enforce them.
There is an initial hurdle, of course. Before the union can be effective it must have the support of a core of people determined to improve things at work. And the stronger it grows in membership and support, the more effective all of your speech will be.
But most people don’t realize that you do not need any outside union to come in and help you. You can start a real union all by yourself, with just a little simple paperwork and the support of your friends and coworkers.
And in the end there can be no question that government employees benefit from standing together with each other in a union, and speaking out about the issues that must be addressed to improve the job.
And when they do so, they are protected from retaliation by the First Amendment. A strong legal representative that understands this area of law is essential to every public employee union - particularly in a state like Mississippi.
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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