Working Hard For Working People

Judge Rules that New NLRB Election Rules are Invalid

        On May 14, 2012, a District Court judge in the United States District Court in the D.C. Circuit ruled that the NLRB’s recently passed election rules are invalid. The rules, which were intended to make it easier for workers to organize and elect a union consistent with their rights under the National Labor Relations Act, took effect on April 30th. The judge held that because conservative member Brian Hayes refused to vote for or against the rules, the Board lacked the requisite three member quorum. The judge held that the mere fact that member Hayes was on the Board at the time of the passage of the rules did not constitute a quorum. The plaintiffs, headlined by the Chamber of Commerce, failed to convince the judge that the rules should be overturned for any additional procedural or substantive grounds. The judge’s decision ended by suggesting that the Board simply re-pass the rules stating, “…nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so.” The Board currently has a three member majority which could constitute a quorum by itself. The decision may also be appealed by NLRB to the D.C. Circuit Court of Appeals. In response to the court decision, the NLRB has issued a statement declaring that it is temporarily suspending the implementation of the new rules. The Board stated that approximately 150 election petitions were filed under the rules and the parties in those cases would be contacted with the option to continue from their current positions in the process.

Judge Refuses to Stay Earlier Act 10 Decision, Except for Decertified Bargaining Units



On Friday April 27^th, United States District Judge William Conley denied a request to stay pending appeal his earlier decision in Wisconsin Education Association Council v. Walker. On March 30^th, the Judge ruled unconstitutional key portions of Wisconsin’s anti-collective bargaining statute (2011 Wis. Act. 10).  The new ruling holds that such provisions remain unenforceable, except for those public sector unions that had already been decertified.  A copy of the decision is available here.

In the new decision, Judge Conley reaffirmed that Act 10 was unconstitutional where it required general employees’ public unions to annually recertify and prohibit dues checkoff for such unions.  He found that the Defendants’ “utterly failed to articulate” how they are harmed by enforcement of the earlier decision. In contrast, he found that unions affected by the Act would suffer irreparable harm if his decision was stayed since “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” 

Unfortunately, the Judge stayed the decision as it would impact bargaining units decertified pursuant to Act 10 before March 30, 2012.  This means that unions who chose not to undertake the initial recertification vote or lost the initial recertification vote will remain decertified until the decision is addressed by the Seventh Circuit Court of Appeals. 

New State Law Protects Employers Who Discriminate Against Their Workers

    On Thursday of last week, Governor Scott Walker signed into law SB 202, a law which attacked the basic rights of working women and minorities in the State of Wisconsin to receive equal pay and be free from discrimination in the workplace.

    The law, now known as Act 219, is garnering national media attention because it protects employers who discriminate against their own employees by restricting the damages that can be assessed against them in state court. The law removes the ability of workers to receive compensatory and punitive damages where they are discriminated against in their employment because of race, gender, or other protected status under state law. Discriminated workers who pursue their claims through state law are now limited only to back pay, court costs, and attorney fees.

    Even though it does not impact current federal laws relating to equal pay and workplace discrimination the law is a huge setback for workers. It will effectively close off the state court system as a meaningful enforcement mechanism, and force workers to make claims in federal court which is often a burdensome and lengthier route to justice. The controversial law is currently scheduled to be published and take effect on April 19, 2012. 

Can “Staying Fit” Result in a Compensable Work Injury?

The Wisconsin Court of Appeals recently addressed this question.  There are some jobs that require employees to be in good physical condition.  For example, being a police officer or fire fighter requires being physically fit.  The Court of Appeals recently took up the issue in the City of Appleton v. LIRC and Nofzinger.   Normally, an employer is not liable for an employee exercising to remain in shape for his or her job.  An employer will win a case where someone claims a work related injury while exercising to stay in shape if the employer can show that the employee was:

            1.         Engaged in an activity designed to improve physical well being;

            2.         The employee’s participation is voluntary, and

            3.         The employee received no compensation for participation. 

            In the past, for example, pickup basketball games over a lunch hour might result in a compensable work injury.  The statute was changed several years ago to make it more difficult to claim such injuries under those circumstances. 

            In the Nofzinger case, this police detective was required to take a physical test every six months on which he was scored.  The score translated into either receiving or not receiving lump sum cash premiums and also retirement bonus incentives.  Those who scored well received these items, and those who didn’t did not, and also were potentially subject to disciplinary action.

            One of the tests involved doing pushups.  The detective was doing these pushups in his home in anticipation an “imminent” test by his employer.  He injured his shoulder.  The Labor Industry Review Commission (LIRC) found that “while the employer exerted no direct control over his off premises, employment-required exercise program, there was a direct link between the type of exercise he was performing when injured and the type of exercise required by the employer to pass a physical fitness test.  The test was also ‘imminent’ because it was only eleven days away.  The exercise program was initiated by the employer through the collective bargaining agreement, the employer required him to engage on it on a recurring basis, and the employer benefited from the applicant being physically fit.  Finally, the cash and retirement incentives offered by the employer for better scores on the physical fitness test support the inference that not only the test itself, but the concomitant and mandatory exercise program, were work-related.”

            LIRC stated that the finding in this particular case applied to the particular facts and circumstances of the case.  The Commissioner did point out that the facts in an off-premises exercise case involving only “tangentially” related activities to preparation for an employer- mandated physical test might not be compensable.

 

Court Upholds NLRB Notice Posting Requirement

In National Association of Manufacturers v. NLRB, 102 LRRM 2999 (D.D.C. 2012), issued on March 2, 2012, a federal District Court for the District of Columbia held that the NLRB had authority to promulgate a rule requiring employers to post a notice informing employees of their rights under the NLRA.      The Court rejected the plaintiffs’ claim that the statute did not specifically authorize a notice posting requirement where there was no preceding finding that an unfair labor practice had been committed, finding instead that the notice fell with the broad rule-making authority granted to the Board under the Act.  The Court, however, struck down that portion of the rule which deemed an employer’s failure to post the notice an automatic unfair labor practice.  The Court held that its decision would not prevent the Board from making an individual determination that the failure to post violated 8(a)(1), rather, it was the blanket advance determination of an unfair labor practice that the Court found invalid.

 

Judge Enjoins Wisconsin Act 10 Provisions Regarding Annual Recertification and Dues Deductions

Earlier today, United States District Judge William Conley issued a written decision enjoining portions of 2011 Wisconsin Act 10.  A copy of the decision in Wisconsin Education Association Council, et al. v. Walker is available here.  The decision enjoins the State from enforcing the annual recertification requirements of Act 10 or from enforcing the prohibition on dues checkoff for unions representing “general” employees.  No later than May 31, 2012 the State is required to return to automatic dues deductions for all members of public unions.

The injunction is a direct result of the Legislature and Governor’s decision to favor unions that supported Republican candidates and harm unions that support Democratic candidates.  As the decision points out, Act 10 makes stark distinctions between “public safety” and “general” employees.  Act 10 only had a limited impact on the bargaining rights of public safety employees, and did not require that they undergo annual recertification elections nor prohibit dues deductions for such unions.  However, all unions which endorsed Governor Walker in his 2010 election were classified as “public safety” employees.  For example, the decision points out that the Act exempted state vehicle inspectors while including Capital Police. The union representing the vehicle inspectors endorsed Walker while the union representing the Capital Police did not.  Thus, political endorsements greatly shaped who was exempted from Act 10’s onerous restrictions and who was not.

Despite the political overtones of the law, the Court did not determine that the restrictions on bargaining rights were unconstitutional.  Given the status of the law in this area, the Court found that the fact that only unions representing public safety employees endorsed Governor Walker did not undermine the rational basis for treating such employees differently.  Since the State could totally eliminate bargaining rights for all unions, if it chose to do so, it could make the “public safety” exception.

In contrast, the Judge found “no obvious relationship to the government’s supported concern with disruptions by public safety employees” and the Act’s recertification requirements and prohibition on dues checkoff for general unions.  With respect to annual recertification, the Judge pointed out that that the State was unable to point out a single example of similar recertification requirements, and found that there was no precedent for annual recertification by an absolute majority.  He found that no rational basis could be served by the Act’s “unprecedented burden on a voluntary union’s right to continue to exist from year to year.”

The Fate of the Health Care Law – or is it a Health Insurance Law? (Day Three)

by Frederick Perillo

Today the Justices considered two more aspects of the health care law:  First, if the individual mandate is struck down, can the rest of the law survive?  Second, did Congress go too far in expanding the Medicaid program to provide health care for poor children?

The first question is known as “severability” and asks whether the roughly 450 provisions of PPACA all fall if the mandate falls.  The mandate is thought to be an essential part of the bill’s structure, because if all Americans are not required to buy health insurance, the mechanism for keeping rates down may not work.

Normally, almost all bills include a “separability and savings” clause, which specifically says it is the intent of Congress that if one part of the bill is invalid, the rest of the bill remains unaffected.  When Congress passed this law, however, the Senate had just lost its filibuster-proof Democratic majority because of the election of Sen. Scott Brown (R-Mass.) to the seat formerly held by the late Ted Kennedy.  The Senate therefore had to use a procedure known as “reconciliation” that does not require a 60-vote supermajority—and which in turn limits how the bill may be modified.  As a result, no “separability and savings” clause was added, teeing up today’s question.

The Administration admits that the requirement that insurers accept all people who want insurance must be struck down if the mandate is struck down.  This concession eliminates what is probably the law’s most popular item, the ban on pre-existing conditions limitations for getting health insurance.  Because no one is arguing that the whole law remains except the individual mandate, the Court has again appointed an advocate to make this case.

The challengers appeared to have support from Chief Justice Roberts and Justice Alito in their argument that the entire law is too intertwined with the individual mandate to let the rest of the law stand.  Justice Scalia said it was “unrealistic” to let the law stand and leave it to Congress to fix.  The moderate Justices argued that the Court should “salvage” as much of the law as possible, not do a “wrecking job.”  Justice Kennedy, the perceived swing vote, wondered out loud whether leaving the whole law in place except the mandate would be too harmful to insurance companies.

The big question lurking behind this part of the argument is to what extent the Court will “guess” which provisions Congress would have passed absent the mandate.  Chief Justice Roberts and Justice Scalia suggested that the whole law is a product of compromises that could not have been woven together in the first place without the mandate—and if the “heart” of the law goes, the rest must too.  Justice Kagan is on the opposite extreme, arguing that the Court has no business peeking behind the congressional curtain to judge which provisions would have been enacted without the mandate.  Justice Kennedy asked questions looking for a way to make a principled decision whether to cut some provisions and not others.  If the Justices telegraphed yesterday that they had doubts about the individual mandate, today they signaled that they don’t know what to do with the problems created by declaring it unconstitutional.

The second question concerns Congress’s expansion of the Medicaid program, which provides health services to poor children and their families, older Americans, and people with disabilities through a combination of state and federal money.  Congress often provides grants of money to states “with strings attached,” i.e., with requirements that the States have a particular program.  This action is not limited to health care—it happens in education (think, G.W. Bush’s “no child left behind” act), in highway construction, and literally hundreds of other federal enactments.

The Affordable Care Act raised the poverty cap for Medicaid to 133% of the poverty level, and subsidized this care, with the “string attached” that over the next 10 years, the States would assume 10% of the cost.  The 28 states challenging this part of the law are calling this “coercion” and “extortion.”  The question today is how this congressional action is different from the hundreds of other similar grants.  No court has ever struck down such a grant before, and in 1987, the Supreme Court itself appeared to approve Congress’s “attaching strings” to grants of federal money.

States of course do not have to accept the expansion of Medicaid—they can refuse all federal money in the program—but they argue that losing the grants states have had now for decades would be financially ruinous to them.  On the other hand, the States say that the federal government goes too far when it uses the lure of grants to compel the States to make policy choices.

The essence of the States’ challenge is that for 45 years, Medicaid has been established without the current expansion, and that the government can no longer condition participation in Medicaid (as it currently exists) upon the States’ agreement to the expansion.  Justice Scalia likens this choice to being held up by a gunman—saying, “your money or your life” from the bench.  As in earlier arguments, the Justices’ questions were directed to trying to find a limiting principle on federal power.  Chief Justice Roberts has asked the correct question:  If the States did not want to compromise their sovereignty, then why did they agree to participate in Medicaid in the first place?  The more moderate Justices instead focused their questions on whether the federal government really would revoke all Medicaid funding from the States and whether current administrative law already protects the States from arbitrary action.  Conservative Justices however seemed to indicate that if it is in conceivable a State could reject an offer by the federal government to pay for Medicaid, it is by definition coercive.  Late in the argument, Justice Kennedy seemed to embrace this reasoning.

The questions today suggested that the Medicaid issue may be more in doubt than anyone thought it should be – given that no court has ever struck down a “strings attached” grant by Congress as coercion, and given that striking down this part of the Affordable Care Act would call into question literally hundreds of similar legislative acts.  It’s worth repeating however that it is notoriously difficult to guess the outcome of a case from the probing questions asked from the bench – some of the same skeptical questions were asked in lower courts that upheld the law.

The Justices are expected to render their decisions in June. 

The Fate of the Health Care Law – or is it a Health Insurance Law? (Day One and Two)

by Frederick Perillo

This week, all eyes turned to the three-day argument over the Patient Protection and Affordable Care Act (PPACA)--called “Obamacare” derisively by its opponents—in the Supreme Court of the United States. Twenty-Six (26) Republican Attorneys General from the states are arguing that the law should be struck down; they are aided by three more States with Republican governors but Democratic Attorneys General who refused to join the lawsuit. The law is defended by the Administration. In the lower courts, there was a split whether the act is unconstitutional.

The three days of argument were broken up into three distinct arguments: On the first day, the Court considered whether it had jurisdiction to hear the case at all. On the second, the Court heard argument whether the individual mandate was constitutional. On the third, the Court heard argument whether an expansion to the Medicaid program impermissibly intruded on the power of the States.

Day One. An 1867 law, called the “Anti-Injunction Act,” prohibits someone who wants to challenge whether a tax is constitutional from making the challenge in advance of actual collection of the tax. The fear is that challenges brought first will block the flow of revenue to the federal treasury. So, the rule has been: Pay first, then file a challenge and ask for a refund.

In the case of the Affordable Care Act, the law mandates each individual obtain health care coverage in some way, or else pay something—either a “tax” or a “penalty”—if he or she does not. This requirement, called “the individual mandate,” does not apply until 2014, however, and thus raises the question why it can even be challenged at all now. This position was taken by the Administration in the lower courts.

If the requirement that an individual pay something—either a “tax” or a “penalty”—if he or she doesn’t obtain health insurance coverage is a “tax,” then the whole challenge to the PPACA is premature. No one is actually required to pay anything until 2014. If it’s a penalty, then the case can proceed now to the constitutional questions set aside for Days Two and Three.

The first day’s argument centered on this obscure tax question, because the government argued on Day One that the payment is a “penalty” (the opposite of its position in the lower courts), while it was expected that the government would argue on Day Two that the payment is a “tax.” The Administration takes this position because constitutionally, it is much easier to defend a “tax” under Congress’s taxing powers in the Constitution than under its other powers—say, the Commerce Clause. The justices chided the government over these inconsistencies. Much of the questioning focused on whether the same payment could be a tax for one purpose and a penalty for another, and whether there are exceptions to the rule in the 1867 law that a tax cannot be challenged beforehand.

Another odd thing about Day One is that no one in the lawsuit wants to postpone consideration of the law – the Supreme Court had to appoint a special advocate to argue that the high court should not hear the case. Justice Scalia scolded the appointed attorney that federal judges are intelligent enough to pick out which challenges can safely go forward. Other justices question whether the 1867 is really a bar to court jurisdiction. Chief Justice Roberts also suggested in questioning that what is being challenged is the mandate to buy insurance, not the “or else” payment, regardless whether the “or else” is a tax or a penalty.

At the end of the first day, however, it was clear that everyone – the government, the opponents, and the justices-- want the case to go on. Reading tea leaves, there is potentially a bad sign for the government in Chief Justice Roberts’ observation that Congress nowhere called the penalty a “tax” in those words. If it’s not a tax, then the individual mandate has to be justified as an exercise of Congress’s power to regulate interstate commerce.

Day Two. It is widely presumed that the four “liberal” justices (Breyer, Ginsburg, Kagan, and Sotomayor) will side with the government, and their questions today only support this belief. It is widely presumed that Justices Alito and Thomas will vote to strike down the Affordable Care Act. Justice Thomas, at least, famously says nothing during oral argument, so we can glean nothing from his presence on the bench; and Justice Alito is openly hostile to the Act. So today, all eyes turn to Chief Justice Roberts, and associate Justices Scalia and Kennedy, particularly the latter, for signs which way they are leaning. This is a difficult game—it’s notoriously hard to judge how judges will rule based on their questions.

Legal commentators have been speculating all day, however, that the questions bode ill for the Act. Chief Justice Roberts asked whether, if the government can require a citizen to purchase health insurance, why can’t it require everyone to buy cell phones in case of an emergency? Justice Scalia trots out the favorite example of the American right wing – why can’t the government force me to eat broccoli just because it’s good for me? All of the conservative justices demand to know what is the limit of congressional power under the Commerce Clause of the Constitution to force an American to buy a product?

The argument centers around a fundamental question—is the Affordable Care Act a law about health care, or health insurance? The government is trying to argue that it is a health care law, and that everyone sooner or later participates in the market for health care. You get sick, or you have an accident, or you live long enough that the diseases of old age catch up to you—but sooner or later, you are going to need health care. Because everyone is participating in this market, whether they want to or not, Congress can regulate them by requiring them to pay a share of the cost, in the case of PPACA, by purchasing health insurance. So, it’s not like forcing someone to eat broccoli, just because the government thinks broccoli is good for you. It’s more like requiring a market participant to be responsible – not to use services that he or she can’t pay for, because he or she didn’t have insurance.

The conservatives are all pressing the government’s lawyer on whether the market is really the health insurance market—something that not everyone will buy, or has to buy, if the government doesn’t require it. Several justices throw out examples—young people who don’t need insurance themselves, and may never need it because they die young, or who buy it later in life when they do need it—to show that the Congress exceeded its power.

Justice Kennedy, the probable swing vote on the Court asks what may be the ultimate question for the Affordable Care Act: “Can you create commerce in order to regulate it?” The question suggests that Justice Kennedy doesn’t believe the law is a health care law, that is, he doesn’t think that everyone automatically is already, automatically participating in the health care market. He thinks the government is forcing people to buy insurance, and using that fact as the basis for Commerce Clause regulation. If so, it is easy to see why commentators today think the law is headed for trouble.

Supreme Court Rules that State Employees Cannot Sue their Employer for FMLA Violations

The Supreme Court issued its decision in Coleman v. Maryland Court of Appeals on March 21, 2012, holding that state employees could not sue their employer for violations of the Family Medical Leave Act. The FMLA allows employees (subject to a minimum hours/minimum employees criteria) up to twelve weeks of unpaid leave for the birth or adoption of a child, or for their own serious health condition or that of a family member. The leave provision has extended to state employers in the past. At issue in the Coleman case was an employee who was terminated after asking for 10 days of leave for his own serious medical condition. The State of Maryland argued that it could not be sued by Coleman for damages relating to the termination under the doctrine of sovereign immunity established by the 11^th Amendment and the Court agreed, at least with respect to the self-care provision, by a vote of 5-4. Part of the majority’s rationale in so holding was that because there is no "widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave." The dissent in the Coleman decision raised significant concerns and pointedly noted that the FMLA, in its entirety, "is directed at sex discrimination," and was "originally envisioned as a way to guarantee -- without singling out women or pregnancy -- that pregnant women would not lose their jobs when they gave birth. The self-care provision achieves that aim." 

The holding in Coleman seems contrary to a 2003 Supreme Court decision involving FMLA and the State of Nevada, which held that state employees can sue under the FMLA provision related to care for ill family members. In that decision, the Court wrote that Congress had the authority to override states' immunity to "protect the right to be free from gender-based discrimination in the workplace" by eliminating "the pervasive sex-role stereotype that caring for family members is women's work."

It Violates the NLRA to Exclude Union Agent from Employer’s Premises After Hitting Him With Car

At a labor dispute between Nielmed Products and the Teamsters/Change to Win, Supervisor Jonathan Herdita approached a picket line with his car. When the picketers blocked his entrance, Herdita continued to move forward with his car until he hit the legs of employee/union steward Elmer Cisneros.  Getting hit caused Cisneros to fall on the hood of the car.  Rather than stopping, Herdita kept moving!  This led Cisneros to hit Herdita’s windshield with his right fist, breaking the glass.  Thereafter, Nielmed fired Cisneros for the allegedly violent act.  However, Cisneros continued serving on the picket line and was ultimately appointed as business agent for his union.  Afterwards, the Company refused to allow Cisneros onto its property, arguing that its duty to provide a safe workplace required that Cisneros be denied access to its facility due to his “violent” actions on the picket line.

Evaluating this claim, the NLRB found that the employer violated the Act by refusing to allow Cisneros on its property to discuss grievances.  In Nielmed Products, 358 NLRB No. 8 (February 29, 2012), the Board reiterated its position that “each party to a collective bargaining relationship has the right to select its representative for bargaining and negotiations and the duty to deal with the chosen representative of the other party.”  The Board found “unconvincing” arguments about workplace safety,.  It found that Cisneros “hit the windshield with his fist due to the provocation of the vehicle continued to move forward while he was lying on the vehicle hood.”  It was not a violent act, but rather, “a defensive act taken in order to call the driver’s attention to his perilous position on the hood of the car.”  Moreover, it found that Cisneros’ actions did not create ill will and make good-faith bargaining impossible where Herdita was no longer employed by the Company and the incident did not involve any current member of management.  Such actions violated Section 8(a)(1) and (5) of the NLRA.