Labor and Employment Law News - September 2010

Labor and the Law:
News and Current Events from the LERA Section on Labor and Employment Law (LEL) © 2010

The full text of many cases is now available free on-line. Where that is the case, links are provided.

Card Check, Majority Status, and the Duty to Bargain in the Construction Industry – Who Decides?

This is case, which grows out of a dispute related to a union’s right to represent a group of employees, raises special topics in the construction industry. It would make a great Labor Law exam question, but for readers of this newsletter, I’ll make it open book. Painters Local 159 v. J&R Flooring, Case No.08-17089 (9th Cir. July 30, 2010) http://www.ca9.uscourts.gov/datastore/opinions/2010/07/30/08-17089.pdf

The flow of work in the construction industry often highly skilled work done by workers brought in for short stints as needed. As a result, employers need a structure for bringing in employees whose work practices are uniform so work is not delayed. These needs shape union representation and create special structures to make work attractive, so workers will invest in the training required. One structure is the hiring hall, which dispatches workers as employers need them. Another is the joint employer-union benefit fund and multi-employer collective bargaining agreements with provide employment benefits, such as pensions, health, and vacations, even though an employee does not work long for any one employer. These collectively bargained benefits are provided through a special construction industry process for union representation under Sec. 8(f). That 1959 amendment, was lobbied for by both employers and unions and became law in 1959.

A construction worker’s time on a job can be so short that there is no time to conduct an NLRB election. Sec. 8(f) allows a construction employer to recognize a union before any workers are hired for a job, without violating Sec. 8(a)(2), which makes it an unfair labor practice to recognize a union that does not represent a majority of an employer’s employees. The union in this case was recognized as an 8(f) union but then wanted to become a representative under Sec. 9(a) by showing that it represented a majority of employees. When a union establishes its majority status, by an election or card check, that status continues indefinitely, including after a collective bargaining agreement expires, and the employer has a legal obligation to recognize and bargain in good faith with the union. Unions in an 8(f) relationship do not have that status, so an employer may refuse to recognize a union when no collective bargaining agreement is in force.

Here, the employers refused to recognize the union after their contract expired. After the employers refused to recognize the union, it filed an unfair labor practice charge with the NLRB and also filed a lawsuit in federal court to compel arbitration of the collective bargaining agreement’s card check recognition terms.

The basic question in this case is: Who decides whether the union had majority status - an arbitrator or the National Labor Relations Board?

The National Labor Relations Act gives the NLRB the sole responsibility for deciding issues related to union representation in the private sector. If the dispute is primarily about whether the union represents a majority of employees, then the NLRB has the jurisdiction to decide the dispute. But an arbitrator decides disputes that are primarily about interpreting terms of the parties’ contract.

In this case, the union and employer’ contract said the employer must recognize the union if a card check by a third party showed that the union represented a majority of employees and any disputes must be resolved by expedited arbitration.

No employer attended the card check, which showed that the union had signed, authenticated cards from 20 of 22 employees, but the process did not comply with NLRB rules for conducting card checks. One employer refused to bargain for a new contract, while the other employers bargained with the union but refused to accept the card check results and to recognize the Union as a majority Sec. 9(a ) representative.

The court saw the issues as (1) whether the parties were required to arbitrate whether the employers had a duty to bargain and (2) whether the employers had a duty to bargain, which (3) depended on whether the union proved that it represented a majority of the employees based on the parties’ agreement. Courts have long supported arbitration to resolve disputes about the interpretation of collective bargaining agreements, but Congress gave the NLRB primary jurisdiction over unfair labor practices.

The court found that the basic issue was whether the union had proven its majority status: "We hold that where the parties have contractually agreed only to use a card check to determine whether a union has established its § 9(a) majority status, the issue of whether the union established its § 9(a) status remains primarily representational and within the NLRB's primary jurisdiction." All the contract said was that there would be a third-party card check but provided no details about the card check process. "We do not see how an arbitrator could possibly resolve the dispute . . . without resorting to general principles derived from our national labor policy. The Board is better suited to such a task."

The Americans with Disabilities Act, Family and Medical Leave Act, and Fitness-for-Duty Examinations, Case No.1

There are two cases on this subject this month

Legal issues related to the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) are likely to arise together, as can workers compensation issues if there is a job-related injury. This dispute in this case, which involves a police officer who had suffered a head injury, is whether the employer violated the ADA and FMLA by requiring a fitness for duty examination, without showing that the employee’s conduct had seriously deteriorated. The court found that the employer could order the examination if the combination of the employee’s injury and the potential that his injury made him a danger to the public. The court held that ADA does not require a police department to forego a fitness for duty examination or to wait until questionable behavior results in injuries. Brownfield v. Yakima, Washington, Case No.09-35628 (9th Cir. July, 27, 2010). http://www.ca9.uscourts.gov/opinions/view_subpage.php?pk_id=0000010689

The decision emphasizes that the legal standard for ordering a fitness for duty examination is that the concern is job related and the examination is required by business necessity. The decision reviews the evidence of behavior that showed the business necessity standard had been met. When the employee refused to submit to the examination, the employer was justified in terminating him. The court said: "We reiterate that the business necessity standard ‘is quite high, and is not to be confused with mere expediency.’" The court found that the employer had presented evidence to support its concerns that it might be liable for negligent retention. Therefore, the employer had an objective, legitimate basis to doubt the employee’s ability to perform his duties.

The Americans with Disabilities Act, Family and Medical Leave Act, and Fitness-for-Duty Examinations, Case No. 2

The second case, which concerns a emergency services dispatcher, also involves the same grouping of legal issues. This case also notes that the "ADA prohibits an employer from requiring a medical examination or inquiring into the disability status of an employee ‘unless such examination or inquiry is shown to be job-related and consistent with business necessity’" and that to demonstrate compliance with the law, "the employer bears the burden to show the asserted ‘business necessity’ is vital to the business and the request for a medical examination or inquiry is no broader or more intrusive than necessary." Wisbey v. Lincoln, Case No.09-2100 (8th Cir. July 6, 2010). http://www.ca8.uscourts.gov/opndir/10/07/092100P.pdf

The court affirmed that the law allows employers to use reasonable means to ascertain the cause of an employee’s troubling behavior, and fitness for duty exams are considered a reasonable means to make the decision whether an employee is able to perform the job's essential functions.

Workers Compensation, the Burden of Proof, and the Scope of Review

Back injuries are common, painful, and often difficult to diagnose accurately. Decisions must be made as to which complex facts about the injury to believe. Then the standards of law must be applied to the facts to decide the outcome. A recent workers compensation case shows how various tools are used to help make decisions. These tools, which are used throughout our legal system, include (1) how to decide whether evidence and testimony are credible, (2) whether a party has met a burden of proof, and (3) on appeal, how narrow or broad the court’s review can be. A reviewing court or agency board must put all of these issues together, and a person charged with putting in evidence in a case needs to pay as much attention to how these tools will be used as to the evidence.

The decision in a recent Michigan workers compensation case shows how all of these tools are used. The case includes detailed discussions of whether specific evidence was credible and why. American Axle & Manufacturing Holdings and Zurich-American Insurance Co., Case No.291117 (Mich. Ct. App. Aug. 12 2010) http://www.michbar.org/opinions/appeals/2010/081210/46587.pdf

Here is a brief overview of types of tools regularly used in the case issues you during as appeals were taken from the hearing officer’s decision. The party with the burden of proof – usually the plaintiff – will lose unless she can present more evidence on the issues than the other side. The level of proof required varies depending on the issue. In the workers compensation case, the burden of proof was "by a preponderance of the evidence." That is the easiest burden to carry and is often used in civil cases. Clear and convincing evidence requires is a higher level of proof and is also used in civil cases. The highest burden, beyond a reasonable doubt, is used in criminal trials.

When a case is appealed, the reviewing court’s scope of review also has a presumption built in about who wins. A reviewing court or board considers the evidence and whether it was credible along with the burden of proof in deciding whether the decision below should be left undisturbed or overturned. Some deference is given to the trial judge’s credibility decisions, because the hearing officer saw the witnesses testify. Common standards of review include whether the decision below was supported by the evidence; arbitrary and capricious; contrary to law; or clearly erroneous. Other standards apply to appeals from administration agencies.

So take a look at the case and see how these tools were used to make the decision.

Web Links

United States Department of Agriculture, Economic Research Service Briefing Room, Food Security in the United States http://www.ers.usda.gov/Briefing/FoodSecurity/

U.S. Department of Labor, Open Government Iniative from the Mine Safety and Health Administration (OSHA) MSHA data sets of all of MSHA's public data from calendar year 2000 to the present regarding mine locations, accidents, injuries, production, violations and inspections. Additionally, these sets contain information about serious violations that publicly-traded mining companies must include in their public filings with the Securities and Exchange Commission. http://www.msha.gov/OpenGovernmentData/OGIMSHA.asp

Shahla Shapouri, Stacey Rosen, May Peters, Felix Baquedano, and Summer Allen, Food Security Assessment, 2010-20, USDA Econmic Research Service Briefing Room, Outlook Report No. (GFA-21) July 2010 http://www.ers.usda.gov/Publications/gfa21/

Disability.gov: Connecting the Disability Community to Information & Opportunities http://www.disability.gov/

Department of Labor, Bureau of Labor Statistics, Occupational Employment and Wages by Ownership - May 2009 (July 27, 2010) http://www.bls.gov/news.release/pdf/ocwag2.pdf

U.S. Census Bureau, 2006-2008 American Community Survey 3-Year Estimates http://factfinder.census.gov/servlet/ACSSAFFFacts?_event=&geo_id=01000US&_geoContext=01000US&_street=&_county=&_cityTown=&_state=&_zip=&
_lang=en&_sse=on&ActiveGeoDiv=& useEV=&pctxt=fph&pgsl=010&_submenuId=factsheet_1&ds_
name=null&_ci_nbr=null&qr_name=null&reg=null%3Anull&_keyword=&_industry

Monthly Labor Review July 2010 http://www.bls.gov/opub/mlr/2010/07/

James A. Walker, Employment and earnings of recent veterans: data from the CPS, Monthly Labor Review July 2010 http://www.bls.gov/opub/mlr/2010/07/art1full.pdf

Treasury Inspector General for Tax Administration, Initial Build America Bond Subsidy Payments Were Processed Accurately and Timely (No. 2010-11-083), http://www.treas.gov/tigta/auditreports/2010reports/201011083fr.pdf

U.S. Department of Energy Office of Inspector General Office of Audit Services, Audit Report: The Department of Energy's Implementation of the Energy Efficiency and Conservation Block Grant Program under the Recovery and Reinvestment Act: A Status Report OAS-RA-10-16 August 2010 http://www.ig.energy.gov/documents/OAS-RA-10-16.pdf

Congressional Budget Office, The Role of Immigrants in the U.S. Labor Market: An Update July 2010 http://cbo.gov/doc.cfm?index=11691

Congressional Budget Office, Estimated Impact of the American Recovery and Reinvestment Act on Employment and Economic Output From April 2010 Through June 2010 (August 2010) http://www.cbo.gov/doc.cfm?index=11706

Congressional Budget Office, Health Care http://cbo.gov/publications/collections/collections.cfm?collect=10

Congressional Budget Office, Employment and Labor Markets http://cbo.gov/publications/collections/collections.cfm?collect=16

Employee Benefit Research Institute, What Do We Really Know About Consumer-Driven Health Plans? No.345, August 2010 http://www.ebri.org/pdf/briefspdf/EBRI_IB_08-2010_No345_CDHPs.pdf

Employee Benefit Research Institute, 'Coverage of Dependent Children to Age 26 Under the Patient Protection and Affordable Care Act, page 2 August 2010 http://www.ebri.org/pdf/notespdf/EBRI_Notes_08-Aug10.PPACA-PolFrm2.pdf

EBRI’s Spring Policy Forum: Retirement Income Adequacy — How Big Is the Gap and How Might the Market Respond? page 9 August 2010 http://www.ebri.org/pdf/notespdf/EBRI_Notes_08-Aug10.PPACA-PolFrm2.pdf

Government Accountability Office, Recovery Act: States Could Provide More Information on Education Programs to Enhance the Public's Understanding of Fund Use GAO-10-807, July 30, 2010 http://www.gao.gov/new.items/d10807.pdf

Government Accountability Office, Federal Contracting: Opportunities Exist to Increase Competition and Assess Reasons When Only One Offer Is Received GAO-10-833, July 26, 2010 http://www.gao.gov/new.items/d10833.pdf

Government Accountability Office, Organizational Transformation: A Framework for Assessing and Improving Enterprise Architecture Management (Version 2.0) GAO-10-846G, August 5, 2010 http://www.gao.gov/new.items/d10846g.pdf

Government Accountability Office, For-Profit Colleges: Undercover Testing Finds Colleges Encouraged Fraud and Engaged in Deceptive and Questionable Marketing Practices GAO-10-948T, August 4, 2010 http://www.gao.gov/new.items/d10948t.pdf

Government Accountability Office, Highway Trust Fund: Nearly All States Received More Funding Than They Contributed in Highway Taxes Since 2005 GAO-10-780, June 30, 2010 http://www.gao.gov/new.items/d10780.pdf

Government Accountability Office, Financial Assistance: Ongoing Challenges and Guiding Principles Related to Government Assistance For Private Sector Companies GAO-10-719, August 3, 2010 http://www.gao.gov/new.items/d10719.pdf

Government Accountability Office, Critical Infrastructure Protection: Key Private and Public Cyber Expectations Need to Be Consistently Addressed GAO-10-628, July 15, 2010 http://www.gao.gov/new.items/d10628.pdf

Government Accountability Office, Consumer-Directed Health Plans: Health Status, Spending, and Utilization of Enrollees in Plans Based on Health Reimbursement Arrangements GAO-10-616 July 16, 2010 http://www.gao.gov/new.items/d10616.pdf

Government Accountability Office, Hurricanes Katrina and Rita: Federally Funded Programs Have Helped to Address the Needs of Gulf Coast Small Businesses, but Agency Data on Subcontracting Are Incomplete GAO-10-723, July 29, 2010 http://www.gao.gov/new.items/d10723.pdf

National League of Cities, United States Conference of Mayors, National Association of Counties, Local Governments Cutting Jobs an d Services - Job losses projected to approach 500,000 http://www.usmayors.org/pressreleases/uploads/20100727-ljaa-report.pdf

Reports from the Board of Trustees for the Social Security and Medicare Programs, http://www.ssa.gov/OACT/TRSUM/tr09summary.pdf

Testimony of David Michaels, Assistant Secretary for the Occupational Safety and Health Administration U.S. Department of Labor
Before the Committee on Education and Labor U.S. House of Representatives, June 23, 2010 http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=TESTIMONIES&p_id=1242

OSHA at Forty - New Challenges and New Directions
http://www.orc-ap.com/files/2010/3649/osha_at_forty_new_challenges_and_new_directions__94762.pdf 

Recent Labor and Employment Law Articles

Marsha Berzon, A General Theory of the Collective Bargaining Agreement at 35, 30 Berkeley J. Emp. & Lab. L. 526 (2009)

Chiara Bottici, Imagining Human Rights: Utopia or Ideology? 21 Law & Critique 111 (2010)

Miriam Cherry, The Global Dimensions of Virtual Work, 54 St. Louis U. L.J. 471 (2010)

Mark Chinen & Lana Ellis, Matters of Preference: Tracing the Line Between Citizens, Democratic States, and International Law, 19 Transnat'l L. & Contemp. Probs. 419 (2010)

Mary Ann Chirba-Martin, Drawing Lines in Shifting Sands: The U.S. Supreme Court's Mixed Messages on ERISA Preemption Imperil Health Care Reform, 36 J. Legis. 91 (2010)

Kevin Cranman & Natasha Baker, Where in the World Are Your Employees? Institutions as Global Employers: Employment Law Considerations in the Age of International Programs, 36 J.C.& U.L. 565 (2010)

Marjorie Culver, et alia, Employment Law, 44 Int'l L. 419 (2010)

Drew Days, Employment Discrimination Decisions from the October 2008 Term, 26 Touro L. Rev. 491 (2010)

John Durkalski, Fixing Economic Flexibilization: A Role for Flexible Work Laws in the Workplace Policy Agenda, 30 Berkeley J. Emp. & Lab. L. 381 (2009)

Sandra Durkin, Note: The Legal Arizona Workers Act and Preemption Doctrine, 15 Mich. J. Race & L. 417 (2010)

Leila Early, Comment: Sadowski v. United States Postal Service: One Step Closer to Delivering a Resolution to the Dispute on Individual Liability for Public Employees under the Family and Medical Leave Act of 1993, 32 N.C. Cent. L. Rev. 238 (2010)

Samuel Estreicher, Trade Unionism under Globalization: The Demise of Voluntarism? 54 St. Louis U. L.J. 415 (2010)

Yuval Feldman & Orly Lobel, The Incentives Matrix: The Comparative Effectiveness of Rewards, Liabilities, Duties, and Protections for Reporting Illegality, 88 Tex. L. Rev. 1151 (2010)

Mark Flores, Note: English Only? The "Power" of Kentucky's Official Language Statute, 98 Ky. L.J. 855 (2009-2010)

Robert Fuller, Comment: Gross v. FBL Financial Services, Inc.: A Simple Interpretation of Text and Precedent Results in Simplified Claims under the ADEA, 61 Mercer L. Rev. 995 (2010)

Edward Gresser, Labor and Environment in Trade since NAFTA: Activists Have Achieved Less, and More, than They Realize, 45 Wake Forest L. Rev. 491 (2010)

Kimberly Hart, H-2b Workers and the Obligations of Employers under the Fair Labor Standards Act: How Castellanos-Contreras v. Decatur Hotels, L.L.C. Changed the Theory of Reimbursement Requirements, 84 Tul. L. Rev. 1305 (2010)

Jeffrey Hirsch, Making Globalism Work for Employees, 54 St. Louis U. L.J. 427 (2010)

Harry Hutchison, Employee Free Choice or Employee Forged Choice? Race in the Mirror of Exclusionary Hierarchy, 15 Mich. J. Race & L. 369 (2010)

Kevin Johnson, The Intersection of Race and Class in U.S. Immigration Law and Enforcement, 72 Law & Contemp. Probs. 1 (2009)

Trina Jones, Race, Economic Class, and Employment Opportunity, 72 Law & Contemp. Probs. 57 (2009)

Won Kidane, The Status of Private Military Contractors under International Humanitarian Law, 38 Denv. J. Intl'l L. & Pol'y 361 (2010)

Kevin Kolben, A Development Approach to Trade and Labor Regimes, 45 Wake Forest L. Rev. 355 (2010)

Toomas Kotkas, Governing Health and Social Security in the Twenty-First Century: Active Citizenship Through the Right to Participate, 21 Law & Critique 163 (2010)

Dale Larson, Antidiscrimination Law in the Workplace: Moving Beyond the Impasse, 9 U. Md. L.J. Race, Religion, Gender & Class 303 (2009)

Ariana Levinson, Carpe Diem: Privacy Protection in Employment Act, 43 Akron L. Rev. 331 (2010)

Alex Long, Viva State Employment Law! State Law Retaliation Claims in a Post-Crawford / Burlington Northern World, 77 Tenn. L. Rev. 253 (2010)

C.M.A. McCauliff, Didn't Your Mother Teach You to Share? Wealth, Lobbying and Distributive Justice in the Wake of the Economic Crisis, 62 Rutgers L. Rev. 383 (2010)

Audrey McFarlane, Operatively White? Exploring the Significance of Race and Class Through the Paradox of Black Middle-Classness, 72 Law & Contemp. Probs. 163 (2009)

Daniel Markovits, Arbitration's Arbitrage: Social Solidarity at the Nexus of Adjudication and Contract, 59 Depaul L. Rev. 431 (2010)

Martin Malin, The Canadian Auto Workers - Magna International Framework of Fairness Agreement: A U.S. Perspective, 54 St. Louis U. L.J. 525 (2010)

Peter May, Common Legal Issues When Employing Staff in Support of Overseas Academic Programs, 36 J.C.& U.L. 399 (2010)

Teri Morris, Note: Civil Rights/employment Law – States Carry Weight of Employment Discrimination Protection: Resolving the Growing Problem of Weight Bias in the Workplace, 32 W. New Eng. L. Rev. 173 (2010)

Annette Nierobisz, Wrestling with the New Economy: Judicial Rhetoric in Canadian Wrongful Dismissal Claims, 35 Law & Soc. Inquiry 403 (2010)

Shelly Patel, Note: E-verify: An Exceptionalist System Embedded in the Immigration Reform Battle Between Federal and State Governments, 30 B.C. Third World L.J. 453 (2010)

James Pope, Contract, Race, and Freedom of Labor in the Constitutional Law of "Involuntary Servitude," 119 Yale L.J. 1474 (2010)

Josh Rinschler, Note: Students or Employees? The Struggle over Graduate Student Unions in America's Private Colleges and Universities, 36 J.C.& U.L. 615 (2010)

Kerry Rittich, Between Workers' Rights and Flexibility: Labor Law in an Uncertain World, 54 St. Louis U. L.J. 565 (2010)

Bertrall Ross & Terry Smith, Minimum Responsiveness and the Political Exclusion of the Poor, 72 Law & Contemp. Probs. 197 (2009)

Ashley Rothe, Comment: Blackberrys and the Fair Labor Standards Act: Does a Wireless Ball and Chain Entitle White-Collar Workers to Overtime Compensation? 54 St. Louis U. L.J. 709 (2010)

Cesar Rosado Marzan, Of Labor Inspectors and Judges: Chilean Labor Law Enforcement after Pinochet (And What the United States Can Do to Help), 54 St. Louis U. L.J. 497 (2010)

Dayna Royal, Jon & Kate plus the State: Why Congress Should Protect Children in Reality Programmin,. 43 Akron L. Rev. 435 (2010)

Nantiya Ruan, Facilitating Wage Theft: How Courts Use Procedural Rules to Undermine Substantive Rights of Low-Wage Workers, 63 Vand. L. Rev. 727 (2010)

Michael Runnels, er alia, Corporate Social Responsibility and the New Governance: In Search of Epstein's Good Company in the Employment Context, 43 Akron L. Rev. 501 (2010)

Margo Schlanger, Against Secret Regulation: Why and How We Should End the Practical Obscurity of Injunctions and Consent Decrees, 59 Depaul L. Rev. 515 (2010)

Hila Shamir, Between Home and Work: Assessing the Disruptive Effects of Employment Law in Markets of Care, 30 Berkeley J. Emp. & Lab. L. 404 (2009)

Randall Shelley, Note: If You Want Something Done Right: Chicanos Por La Causa v. Napolitano and the Return of Federalism to Immigration Law, 43 Akron L. Rev. 603 (2010)

Catherine Struve, Shifting Burdens: Discrimination Law Through the Lens of Jury Instructions, 49 B.C. L. Rev. 279 (2010)

Isabel Studer, The NAFTA Side Agreements: Toward a More Cooperative Approach? 45 Wake Forest L. Rev. 469 (2010)

Symposium: Competition in the Global Workplace: The Role of Law in Economic Markets, 54 St. Louis U. L.J. 415 (2010)

Symposium: Race and Socioeconomic Class: Examining an Increasingly Complex Tapestry, 72 Law & Contemp. Probs. 1 (2009)

Luke Tashjian, The Survival of Universal Health Care in Massachusetts: ERISA Preemption of an Act Providing Access to Affordable, Quality, Accountable Health Care, 32 W. New Eng. L. Rev. 141 (2010)

Eric Tucker, Who's Running the Road? Street Railway Strikes and the Problem of Constructing a Liberal Capitalist Order in Canada, 1886-1914, 35 Law & Soc. Inquiry 451 (2010)

Kenneth Veitch, The Government of Health Care and the Politics of Patient Empowerment: New Labour and the NNS Reform Agenda in England, 32 Law & Pol'y 313 (2010)

David Walsh, Small Change: An Empirical Analysis of the Effect of Supreme Court Precedents on Federal Appeals Court Decisions in Sexual Harassment Cases, 1993-2005, 30 Berkeley J. Emp. & Lab. L. 461 (2009)

Rolf Wank, The Role of Law in Economic Markets: Recent Cases of the European Court of Justice in Employment Law, 54 St. Louis U. L.J. 585 (2010)

Future Newsletters

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