Ninth Circuit Upholds California Labor Neutrality Statute
The U.S. Court of Appeals for the Ninth Circuit has upheld a California law that prohibits use of state funds to help or deter unionization efforts by their employees. (The statute applies to employers who receive more than $10,000 in state funds per year. To see the Ninth Circuit decision, click here.) The decision, by the full Ninth Circuit, overturned two contrary decisions by a three-judge panel from the same court and by a federal district court.
The majority rejected the arguments of the appellants and the NLRB that the statute was preempted by the National Labor Relations Act and violated employers’ First Amendment rights. Regarding the latter point, the majority found that the First Amendment was not implicated because “employers remain free to use their own funds to advocate for or against unionization and are not required to accept neutrality as a condition for receipt of state grant and program funds.”
The Court’s position has some surface appeal, but as a practical matter it is problematic. If an employer commingles state funds with other funds, it will be presumed that any expenditures to assist, promote or deter union organizing derive in part from “state funds.” Because of the serious implications and impact of this statute, it is likely that the U.S. Chamber of Commerce and other appellants will seek review by the United States Supreme Court. Meanwhile, clients doing business in California should segregate any funds received from the state, and maintain records showing that the state funds were not used to pay for organizing-related expenses.
Employers Beware: Unions Trying to Outspend Each Other on Organizing
Since the disaffiliation of seven major unions from the AFL-CIO and their formation of the Change To Win Federation in 2005, organized labor has initiated extensive organizational restructuring and has committed millions of dollars to organizing. At the AFL-CIO convention in July 2005, the delegates approved the creation of a $22.5 million “strategic organizing fund.” Not to be outdone, delegates to the CTW’s founding convention two months later committed to spending $750 million annually on organizing. Since those commitments were announced, member unions from each association have followed suit. UAW leaders approved a one-time transfer of $50 million from the union’s strike fund to its general fund to pay for organizing. Similarly, AFSCME imposed a dues increase of $3 per member, per month to generate a $35 million dollar increase in its budgets for organizing and political activity. Most recently, the Laborers’ International Union voted to triple its support for regional and local organizing campaigns in the construction industry by increasing its dues by 25 cents per hour worked, which is expected to raise an additional $104 million dollars for organizing. Although the influx of dollars and increased organizing activity has not yet produced measurable growth in membership for the movement as a whole, most observers predict that it is only a matter of time.
UNITE HERE Sanctioned for Violating Cintas Employees’ Privacy
Nine plaintiffs, seven of whom were employees of Cintas, won $2,500 each, plus attorneys’ fees and costs, from UNITE HERE after the union gathered Cintas employees’ license plate numbers and tracked down the licenseholders, and then solicited them for an organizing campaign and other purposes. A judge of the U.S. District Court in Philadelphia agreed with the plaintiffs that the union’s conduct violated the Driver’s Privacy Protection Act of 1994.
The DPPA prohibits the release of addresses and other personal information from driving records, except in limited cases.
In preparation for an organizing campaign against Cintas, UNITE HERE representatives walked through Cintas’s employee parking lots, writing down license plate numbers, using Westlaw and other sources to access motor vehicle records, and then using the information in the records to make home visits. This technique, called “tagging,” has been used since the 1970’s. The union also contacted thousands of current and former Cintas employees to inform them about a nationwide overtime lawsuit involving drivers. During 2002 through 2004, the union brought or assisted employees in filing nine lawsuits, 18 EEOC charges, four OSHA charges and an unspecified number of NLRB unfair labor practice charges.
The court rejected the union’s argument that its actions were permitted by an exception under the DPPA for the use of personal information obtained for use in connection with litigation. The court ruled that the union was “finding” claims, not investigating them.
The case is not available through a free source, but subscribers to Westlaw can find it at Pichler v. UNITE, 2006 WL 2529688.
AFL-CIO Announces Spanish-Language Website
The AFL-CIO has established a new website, AFL-CIO en Español, to provide Hispanic employees with information in Spanish regarding health and safety laws, immigration reform, immigrant workplace rights, union organizing and political mobilization efforts, and the recent partnership agreement between the AFL-CIO and the National Day Laborer Organizing Network. The NDLON is an umbrella organization of 65 day laborer centers run by 29 organizations whose goal is to provide a public voice for day laborers. To visit the AFL-CIO en Español website, click here.
Board Says Hospital Unlawfully Delayed Reinstating Economic Strikers
(The delay was four days long.) On November 1, 2002, the Service Employees International Union told a hospital near Sacramento, California, that it planned a one-day “economic” strike on November 14, in support of its bargaining demands for the hospital’s dietary department employees. The union simultaneously made an unconditional offer to return to work on November 15.
In response, the hospital notified the union that it planned to cover the jobs of approximately 450 striking employees with management employees, employees from other in-house departments, and individuals supplied by a temporary employment service. The hospital explained that its contract with the temporary agency required a commitment to employ the agency employees for five days. Additionally, the hospital told the union it planned a five-day closure of the cafeteria where some of the striking employees worked.
The NLRB ruled that the four-day delay violated the law, and awarded backpay to those employees who were replaced by supervisors, managers and other in-house employees, and those who worked in the cafeteria. No backpay was awarded to the employees replaced by temporary agency employees.
The Board has a longstanding rule that the backpay period for “unfair labor practice” strikers begins five days after an unconditional offer to return to work, but that rule does not apply after an economic strike. The former is a strike called to protest alleged employer unfair labor practices and frequently results in hiring temporary replacement workers for an unknown period. When the strike ends, the employer may have to discharge the replacements before the strikers can return to work. Five days is a “reasonable period” to accomplish the “necessary administrative and personnel tasks” associated with this process.
The “economic” strike (called to pressure an employer into agreeing to bargaining demands) was different, said the Board. When the one-day strike ended, all the hospital had to do was return the supervisors, managers and other in-house employees to their usual jobs. The Board said that the hospital could have accomplished this the day after the strike ended.
Employees on Medical Leave Still Eligible to Vote in Most Cases, NLRB Says
Rejecting a suggestion from Chairman Robert J. Battista, a Board majority decided to adhere to its standard that an employee who is on sick or disability leave is eligible to vote in a representation election unless the employee has resigned or been discharged. Employees on layoff, by contrast, are eligible to vote only if they have a “reasonable expectancy of returning.” Chairman Battista had suggested applying the layoff standard in medical leave cases.
For a printer-friendly copy of this Executive Labor Summary, click the PDF.