Working Hard For Working People

Judge Enjoins Enforcement of Wisconsin Voter ID Law

On Tuesday, March 6, 2012, a Dane County judge issued an order temporarily enjoining the enforcement of the state Voter ID law during the spring elections on April 3. The NAACP and Voces de la Frontera argued that the Voter ID requirements unfairly infringe on individuals’ right to vote, especially low-income, senior or minority voters who may not have a driver’s license, passport, or other valid form of identification under the law. In his ruling, the judge noted that the lawsuit had a reasonable chance of success on the merits and further noted that the Voter ID law requirements constitute “a clearly improper impairment of a most vital element of our society.” A trial on the overall validity and enforceability of the Voter ID requirements is scheduled for April 16, two weeks after the spring election.

NLRB Region 30 in Milwaukee Seeks 10(j) Relief Against Piggly Wiggly Midwest

In a Februrary 14, 2012 filing in the United States District Court for the Eastern District of Wisconsin, NLRB Region 30 Regional Director Irving Gottschalk asked the Court for 10(j) injunctive relief against Piggly Wiggly Midwest pending the final disposition of a pending complaint against the employer.  On December 28, 2011, Region 30 issued a Complaint and Notice of Hearing against Piggly Wiggly alleging numerous violations of Sections 8(a)(1), (3) and (5) of the Act.  The Complaint stems from Piggly Wiggly’s unilateral reduction of 19 full-time employees to part-time status in the bargaining unit represented by UFCW Local 1473 at its Sheboygan, Wisconsin store. The reductions resulted in the employees losing their hours and certain contractual benefits, including health insurance, and had the effect of forcing four of the reduced employees to quit their employment.  The Board’s Petition before the Eastern District Court asserts that 10(j) relief is appropriate because they have demonstrated a strong likelihood of prevailing before the Board on the merits against Piggly Wiggly, in part because there is no dispute that the Employer failed or refused to provide the Union with prior notice and opportunity to bargain over the reductions.  The Board also asserts that 10(j) relief is justified because without the requested relief irreparable harm will result to employees by loss of their health insurance, and further is necessary to curb the significant loss of employee support for the Union because of the unilateral changes which cannot be remedied by a future Board order.

Is the Ryan Braun story about drug testing, arbitration, or both?

What does the situation of Milwaukee Brewer and National League MVP Ryan Braun say about drug testing and labor arbitration?  Last October 1, Braun “failed” a drug test by scoring elevated levels of synthetic testosterone, an indicator used by Major League Baseball of use of performance enhancing drugs.  He was suspended for 50 games.

Braun was covered by a collective bargaining agreement which required, among other things, a strict protocol for collection of drug testing samples.  It also required arbitration of any disputes over the results of testing.  His case went before a panel of three arbitrators, including a neutral party, Shyam Das.  On February 23, 2012, media sources reported that the panel ruled 2-1 that the chain of custody of the sample was broken for two days – reports suggest that the collector took the sample home and left it in his home refrigerator, rather than shipping it immediately to the doping lab—and that Braun therefore need not serve his suspension.  We say, “media sources” because the award has not been published.  It has been assumed that Das broke the tie between union-appointed and management-appointed arbitrators.  MLB has said publicly it “vehemently” disagrees with the decision.

Media speculation turned almost at once to whether MLB would “appeal” the award to federal court under the Federal Arbitration Act.  This reporting is a misnomer – there is no appeal from arbitration – and the Act cited is only one of two that apply.  Because the contract here is a collective bargaining agreement, the substantive law applied is federal labor law developed under the Labor Management Relations Act – the same law that governs arbitration under most other union contracts in the private sector outside of the railway and airline industries, which have their own law.  It’s the connection to collective bargaining that makes this case literally a federal case.  The Federal Arbitration Act is merely a procedural vehicle.

We know very little about the facts, other than what has been leaked to the media.  If it is true that the chain of custody was broken, the decision to overturn the suspension would not be unusual.  For forty years, arbitrators have been overturning alcohol and drug tests because samples were taken home by a supervisor, see Holliston Mills, 60 LA 1030 (Simon 1973)(alcohol testing sample), or the security of the sample may otherwise have been compromised.  See Day & Zimmermann, 88 LA 1001 (Heinsz 1987)(discharge for a positive drug test reversed because there was “scant” evidence of collection and chain of custody).  Of course, this result is how the system is supposed to work:  Federal regulations used in transportation and nuclear power facilities have comparable requirements, and the parties inserted a strict chain of custody into their CBA.  The point of such a procedure is that if it is not followed, then the results are not trustworthy.  If they’re not trustworthy, they can’t be a just basis for punishment.

The case may not mean anything anyway.  The typical drug testing case in private industry is about one or more illegal drugs.  These drugs have specific by-products, called metabolites, which are associated only with the illegal substance.  Find the metabolite in a valid test, and a very strong presumption is raised that the employee must have used the illegal drug.  Testosterone is a hormone found at some level in all humans.  Elevated levels might be explained in any number of ways.  We can’t really know what Braun might have said was the reason for his test result, assuming it really was his test result.  MLB didn’t get to first base in this case.

The threat to try to overturn the arbitration award in court would then be hollow:  The U. S. Supreme Court has held as a matter of federal labor law that an arbitrator’s decision is final unless there is some corruption or fraud, or the arbitrator was not truly neutral, or the decision was not grounded in the agreement.  That the arbitrator made an incorrect decision on the facts or the law, however, is not a basis for overturning an award.  So long as the arbitrator was trying to render a decision based upon the contract, it doesn’t matter that he made a complete hash out of the job.  In Paperworkers v. Misco Inc., 484 U.S. 29 (1987), the Supreme Court said that "Courts thus do not sit to hear claims of factual or legal error by an arbitrator” and  “as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.”  So the Das award will stand if the only challenge to it is that the arbitrator misconstrued the chain of custody provisions. 

That brings us back to the question we posed at the outset:  Is this story about performance drugs, or arbitration?  The answer is neither, based upon what we can glean from the media leaks.  The Das award is equally valid whether Braun is guilty or not.  Chain of custody provisions are designed to protect employees from arbitrary action by management, by requiring that a career-damaging or –ending verdict of drug abuse is not based on a spoiled or tampered sample.  Inherent in this requirement is the possibility that a guilty person might be exonerated because the collector screws up the process.  The award does not attempt to resolve the question of guilt or innocence.

The story is also not about arbitration.  The Misco case we quoted above is nothing new.  The standard for review of arbitration awards has been basically unchanged since 1960, when deference to an arbitrator was announced in three cases now known as “the Steelworkers Trilogy.”  The loser is always disappointed, and although it is bad form, a little grumbling that the loser will “appeal” a non-appealable case is quite common.  In other words, it’s not news.

Why then all the hubbub about Ryan Braun?  It’s because he’s a celebrity.  Celebrities make the front page for doing ordinary things that don’t make headlines for ordinary people.  Stories of workers who flunk tests and beat the test because there was an error in the testing process are old news.  They’re just not headline news.  So move along from Ryan Braun:  There’s nothing to see here.

Wisconsin’s New Voter ID Law Starts With February 21st Primary



 

In 2011, a new law was enacted that makes significant changes to voting and related residency requirements. The law requires almost all voters to provide proof of identification in order to cast a ballot in any election, even if the voter is already registered. The new law also changes the residency requirements so that a person must reside within their voting district for 28 days prior to the election (rather than 10 days under the old law). The changes are in effect beginning with the February 2012 primary election and apply to all primary and general elections after that date.  Below is a summary of some of the major changes.

1.    Proof of Residency

Proof of residency is required for:

• First-time voters in Wisconsin who register by mail
• Voters who register within 20 days of the election
• Voters who register at the polls on Election Day

The purpose of the proof of residency document is to establish the voter’s current address.  The voter’s sworn statement on the registration form certifies that the voter has resided at that address for at least 28 consecutive days preceding the election.

The address on a voter’s photo ID does not need to match the address on the poll list. However, a voter is still required to prove his or her residency within the voting district with appropriate documentation, such as a utility bill or bank statement that includes the voter's current and complete name, current and complete residential address and the name of the municipality.  Voters are no longer able to "vouch" for one another.2.    Proof of Identification

 

A ballot—in person or an absentee—will not be issued to a voter until the voter proves his or her identity.  Acceptable forms of identification are as follows:

• Wisconsin DoT-issued driver license
• Wisconsin DoT-issued identification card
• U.S. uniformed service identification card
• U.S. passport

These forms of identification must be unexpired, or if expired, have expired after the date of the most recent general election. For the February 2012 primary, the identification must not have expired prior to November 2011. Additional forms of identification that a voter may use are:

• A certificate of naturalization that was issued not earlier than two years before the date of an election at which it is presented
• An unexpired driving receipt issued by Wisconsin DoT.
• An unexpired identification card receipt issued by Wisconsin DoT.
• An identification card issued by a federally recognized Indian tribe in Wisconsin
• An unexpired identification card issued by a Wisconsin-accredited university or college that meets all of the following criteria:
  • Shows date of issuance,
  • Contains student signature,
  • Expires no more than two years after its issuance, AND
  • is accompanied by documentation from the university or college proving that the student is currently enrolled.

A student ID card is insufficient to establish proof of residency.  Out of state drivers licenses may not be used as proof of identification.

A voter may get a free Wisconsin DOT issued identification card under state law. The DOT will provide free ID cards to individuals who are at least 18 (or will be) as of the date of the next election and who specifically request a free ID for voting. Note that it may take a voter several weeks to obtain a free ID card if a voter does not already have a certified copy of his or her birth certificate. Instructions on how to obtain a free state ID may be found here.  If a voter does not request the free ID card for the purpose of voting, he or she may be charged the $28 fee ordinarily assessed to applicants for such an ID.

There are some exceptions to the proof of identification requirement related to military and/or overseas voters, certain voters who are hospitalized or reside in nursing homes or similar residential facilities, and crime victims who have a confidential voter listing.

3.    Signature Requirement

Voters are now required to sign the poll list. A person who refuses to sign the poll list will not be issued a ballot and, therefore, will not be able to vote.

4.    Absentee Voting Changes

The new law also reduces the period in which absentee voting may occur and requires that voters requesting an absentee ballot present or enclose proper proof of identification with their request for absentee ballot, unless the request is electronically made, in which case proof of identification must be enclosed with returned ballot. Once a mail-in absentee voter has provided photo ID, they are not required to provide photo ID again with subsequent absentee ballot requests, unless they need to register again due to a name change or change in address. The requirement that an absentee voter sign the voter roll is waived, instead, absentee voters only need to sign the Absentee Certificate Envelope.

Changes to “automatic” absentee voting. If a voter failed or fails to return any absentee ballot mailed or transmitted to him or her pursuant to an automatic absentee voting request, the clerk must discontinue sending that voter absentee ballots until the voter notifies the clerk that he or she wishes to continue receiving absentee ballots for subsequent elections.

5.    Failure or Refusal to “Prove” Identity

Elections officials may deny a person the right to vote if the voter does not present proof of ID, if the name on the ID does not conform to the name on the poll list or separate list, or if the photo on the ID does not “reasonably resemble” the voter. While the person may be permitted to cast a provisional ballot, the voter must correct the deficiencies related to the proof of identification no later than 4 p.m. on the Friday immediately following the election.

Note that this could be a problem for people who are recently married or divorced or otherwise changed their name but have not updated at least one of the necessary forms of identification.

Additional information is available at http://gab.wi.gov/taxonomy/term/135

 

 

 

 

DOT Issues Final Rules on Use of Certain Drugs by Commercial Drivers

On January 27th, the Federal Motor Carrier Safety Administration (FMCSA) amended the physical qualifications for drivers and the instructions for the medical examination report to clarify that drivers who use Schedule I drugs are not qualified to drive commercial motor vehicles under any circumstance. The rule harmonizes FMCSA's provisions regarding pre- employment and return-to-duty test refusals with corresponding Department of Transportation provisions.

Department of Labor Proposes Wage Protections for In-Home Care Workers

The U.S. Department of Labor recently announced plans to update minimum wage and overtime regulations covering certain in-home health care workers. Since 1975, casual babysitters and companions for the aged and infirm have been exempt from coverage under the federal Fair Labor Standards Act (FLSA), and live-in domestic workers have been exempt from its overtime protections. "[T]he in-home care industry has undergone a dramatic transformation..." and "the earnings of in-home care employees remain among the lowest in the service industry, impeding efforts to improve both jobs and care." For this reason, the DOL has issued a notice of proposed rulemaking to clarify and limit the scope of the companionship exemption. Comments to the proposed rules are due by February 27, 2012.

Board Holds That Mandatory Arbitration Agreements Restrict Protected Rights

The National Labor Relations Board recently determined that an employer violates the National Labor Relations Act when it requires employees to sign an agreement that precludes them from filing joint, class, or collective claims addressing their wages, hours or other working conditions. In D.R. Horton,357 NLRB No. 184 (January 3, 2012), the Board determined that such agreements unlawfully restrict employees' Section 7 rights to engage in concerted action.  The Board reached its holding despite recent court cases enforcing employment-related arbitration agreements are judicially enforceable under the Federal Arbitration Act.

NLRB General Counsel Proposes a Change to Existing Deferral Policies

Under a proposal by NLRB General Counsel, Lafe Solomon, the Board would no longer defer certain charges to lengthy grievance and arbitration processes. Under the current Board deferral policy union charges of employer violations of 8(a)(1) and (3) which involve discharges or discrimination based on Union activity are deferred to the parties’ grievance and arbitration provision in their collective bargaining agreement. The reasoning behind the existing deferral policy is that the dispute will be resolved faster through arbitration than under a Board investigation. However, this is not always the case. Often employer delay tactics cause these disputes to take over a year to be resolved. Solomon is attempting to address this very problem. Solomon is proposing that the Board no longer defer where it is anticipated that the underlying disputes will not be resolved in under a year. He is also proposing that the Board end its deferral policy for an existing charge where the dispute remains unresolved after a year. This proposal, when implemented, will provide for a more efficient Board and greater protection for Union members from employer retaliation.

New Board Members Sworn In

Following their recess appointments by President Obama, the three new members of the National Labor Relations Board were sworn in this week.  Sharon Block, Terence F. Flynn and Richard F. Griffin join Chairman Mark Gaston Pearce and Member Brian Hayes on the Board.  This is the first time there have been a full compliment of Board members since August 2010.

 

President Appoints Three to National Labor Relations Board

President Obama announced yesterday his intent to make recess appointments to the Board.  The three individuals are Sharon Block, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor, Terence F. Flynn, currently Chief Counsel to NLRB Board Member Brian Hayes, and Richard Griffin, General Counsel for International Union of Operating Engineers (IUOE).  Biographies of all three individuals are available on the Board's website.

Absent these recess appointments, the Board would lack the ability to enforce the National Labor Relations Act in a meaningful way.  In his statement, the President said  "The American people deserve to have qualified public servants fighting for them every day - whether it is to enforce new consumer protections or uphold the rights of working Americans. We can't wait to act to strengthen the economy and restore security for our middle class and those trying to get in it, and that's why I am proud to appoint these fine individuals to get to work for the American people."