Former NLRB Chairman Urges Reform of National Labor Relations Board, November 28, 2008
by Meg Gallucci
Climbing on the bandwagon of those seeking reform in Washington, William B. Gould, a professor emeritus at Stanford Law School and a former National Labor Relations Board chairman, urges reform of the Board and the National Labor Relations Act. In a recent speech before California Labor and Employment lawyers, Gould advocated nonpartisan review of the existing system to “shape a balance between enhanced employee bargaining rights and opportunities on the one hand and employer concern with flexibility and competition on the other.”
Gould suggests a number of reforms and also addresses a Board characteristic that sets the Board apart from other agencies. While other agencies engage in rulemaking, involving notice of a proposed rule and an invitation for comment from all affected parties, the Board adjudicates disputes. Board preference for adjudication over rulemaking favors an expensive, time-consuming dispute resolution process that renders the Board a peculiarly insular and highly-political organization.
According to Gould, adjudication, particularly in relation to union representation cases, encourages partisan political resolutions to cases and reversal of decisions when a new administration appoints a Board majority based on political affiliation. In short, the Board acts as a mini-court system subject to intense partisan political pressure. What Gould advocates, at a time when the incoming administration appears inclined towards building a consensus in Washington, is a less partisan and more democratic process based on rulemaking.
Illegal Employee Remains an Employee, November 24, 2008
by Meg Gallucci
The Supreme Court recently declined to review Sure-Tan Inc. v. NLRB, 467 U.S. 883 (1984). Sure-Tan held that illegal immigrants are “employees” under the National Labor Relations Act and are therefore qualified to vote in union elections. The Sure-Tan decision stands, despite the fact that Congress enacted the Immigration Reform and Control Act in 1986 making it a criminal offense to hire undocumented aliens.
The rationale behind this seemingly irreconcilable conflict is that an employee is an employee, legal or not. To exclude illegal aliens from the union representation voting process would adversely affect other workers, because illegal aliens would not be subject to the same standard terms of employment. Employers might then be encouraged to hire illegal workers as a means of avoiding established employment standards and union representation.
The Supreme Court denied review on November 17, 2008.
It's Not Discrimination if the Employee Disagrees, November 14, 2008
Employees seem to have the impression that they can sue for discrimination just because they are black, female, disabled, or have other characteristics protected by law. Unfortunately or fortunately, depending on your perspective, to win a case, the employee must show that his race, sex, age, etc., was the actual reason for the adverse employment action, frequently discharge.
But what happens if the employee states at a deposition that he believes the real reason for his termination was something other than those protected characteristics? The federal appeals court covering Maryland recently ruled that in those circumstances, the employee loses. The employee cannot maintain a lawsuit for race discrimination if he testifies at a deposition that he was terminated because he complained, for example, about OSHA and safety issues.
The case involved a white police officer, who alleged race and sex discrimination, but testified that he was convinced he was disciplined for starting an internal affairs investigation. That did not, in the court's opinion, constitute race or sex discrimination. The police officer's Title VII case was dismissed. Lightner v. City of Wilmington, NC, 104 FEP Cas. 1155 (4th Cir. 2008).
Unions Winning More Elections in 2008, November 10, 2008
It is being reported that unions won nearly 67% of NLRB conducted elections in the first half of 2008, compared with a little over 58% in the same period in 2007. So much for the argument by President-elect Obama that unions need changes in the federal labor laws because employers have the upper hand in secret ballot elections.
We can still expect, however, that the Democrats will pass the so-called Employee Free Choice Act in the first 90 days of the Obama Administration. Check our website for advice on how to prepare.
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