Malls Violated Speech Rights Of Picketers
Two California shopping malls infringed on the state constitutional free speech rights of members of the Carpenters and Joiners of America and violated the Labor Management Relations Act by enforcing mall rules prohibiting the union's picketing and handbilling activity, the U.S. Court of Appeals for the Ninth Circuit ruled Aug. 25 (Carpenters Local 848 v. NLRB, 184 LRRM 3025, 9th Cir., No. OS75295, 8/25/08).
Macerich Management Co. and Macerich Property Management Co. operate two enclosed shopping centers that have the same policies regarding expressive activities and require an application and pre-approval of written materials. When members of Carpenters Local 586 distributed handbills at one of the malls to protest a store's use of a nonunion contractor at another location, one member was arrested. Members of Local 505 distributed handbills and picketed at the other mall on three different dates to protest that mall's use of nonunion contractors, also resulting in arrests. The two unions filed unfair labor practice charges with the NLRB, which found that the mall operators had violated Section 8(a)(1) of the LMRA by enforcing three rules but that three other rules were lawfully enforced.
Partially upholding the board's decision, the appeals court held 3-0 that two rules banning activities that name the mall owner, manager, or tenants and banning signs that interfere with the mall's "commercial purpose" are content-based restrictions that violate the California Constitution, and that a third rule requiring an application process is impermissible when used to enforce the first two rules. However, the court reversed the board on the other rules, holding 2-1 that although the rules banning the carrying or wearing of signs and prohibiting expressive activities on outside sidewalks and on "peak traffic days" are content neutral, they were unreasonable time, place, and manner restrictions.
[CLEAR Source: BNA's Labor Relations Reporter 184 LRR 435 (9-8-08)]
Unfair Labor Practices:
One-Month Reinstatement Period After 14-Year Lockout Held Lawful
A vegetable processing company that took a month to reinstate employees returning to work after a 14-year lockout and limited their overtime during a four-week retraining period did not violate the Labor Management Relations Act, the U.S. Court of Appeals for the Ninth Circuit held Aug. 21 (Fruit Workers Local 1096 u NLRB, 184 LRRM 3041, 9th Cir., No. 06-72992, 8/21/08).
After Bud Antle lnc.'s employees, who were represented by the Fruit Workers Local 1096, went on strike, the company locked them out and hired replacement workers for 14 years. After the union unsuccessfully tried to represent the replacement workers, Bud Antle offered reinstatement to 133 previously locked-out employees, instructing them to notify it by the next month if they sought reinstatement. Bud Antle told the 24 locked-out employees who sought reinstatement to report for work one month later for a 4-week training period. Only seven of the 24 reported to work. During the training period, the company limited the returning employees' overtime. Local 1096 filed a complaint with the NLRB, which found that the reinstatement delay was lawful and that Bud Antle had legitimate business reasons for limiting employees' overtime.
Affirming, the appeals court found that the one-month delay was comparatively slight relative to the length of the lockout and that Bud Antle needed time to organize the reinstatement. The court upheld the board's conclusion that the company did not violate the act by limiting employees' overtime during the training period, and it found that the board properly ordered Bud Antle to pay back pay only to the seven workers who showed up for work instead of all 24 who accepted reinstatement.
[CLEAR Source: BNA's Labor Relations Reporter 184 LRR 435 (9-8-08)]
Ninth Circuit says employer must rehire workers despite document questions
An arbitrator's decision requiring reinstatement of workers will be overturned only in very limited circumstances, such as when the decision conflicts with public policy. The Ninth Circuit recently reaffirmed the great deference granted to arbitration by enforcing an award requiring an employer to rehire workers it had let go because of questions about their legal right to work in the United States. Finding that doubts about the workers' status didn't have a sufficient basis, the court ruled that the company must comply with the arbitrator's decision.
No-match letters raise questions
Aramark Facility Services provides facilities management for Staples Center, a sports and entertainment venue in Los Angeles. Its workers there are represented 13y the Service Employees International Union.
In early 2003, Aramark received letters from the Social Security Administration (SSA) indicating that 3,300 of its employees nationwide (including 48 at Staples Center) had social security numbers that didn't match up with information in the SSA database. The company immediately directed the employees identified in the nomatch letters to go to an SSA office to correct the discrepancy and, within three days, provide it with either a new social security card or verification showing that a new card was being processed. Fifteen of the Staples Center workers provided the new documentation. The 33 who didn't were fired.
The union filed a grievance contending that the workers had been fired without just cause in violation of the collective bargaining agreement. The grievance went to arbitration. Following a two-day hearing, the arbitrator concluded that Aramark didn't have "convincing information" that the discharged workers were in fact undocumented. He ordered the company to reinstate the workers with back pay.
Aramark went to federal court, seeking to void the arbitration award on the grounds that it violated the public policy against the employment of undocumented workers. The trial court was persuaded by the company's reasoning and concluded that the discharged workers' failure to let Aramark know that they were attempting to correct the SSA discrepancies provided the company with constructive notice that they were ineligible to work in the United States. The trial court concluded that the arbitration award would require Aramark to violate federal immigration laws. Unhappy with that decision, the union appealed.
The Ninth Circuit started its analysis from the principle that an arbitration award is to be upheld except in the narrowest of circumstances. Federal labor law will enforce the result reached through the procedure that the parties have agreed to for resolution of disputes. The court must accept the facts as determined by the arbitrator. If an award is overturned because of public-policy concerns, the public policy must be a strong one that would specifically conflict with the arbitrator's decision.
Aramark argued that the arbitration award would require it to reemploy workers for whom it had constructive knowledge of undocumented status. Thus, compliance with the award would force the company to violate immigration laws. The Ninth Circuit agreed that federal statutes prohibiting the employment of undocumented aliens contain a strong statement of public policy. A much more difficult issue was whether Aramark in fact had constructive knowledge that the workers it fired were illegal.
Considering first the no-match letters received from the SSA, the court found that notice of discrepancy with a worker's social security number isn't evidence that the worker is undocumented. The SSA has millions of mismatched records, many of which are attributable to typographical errors, name changes, compound last names, and inaccurate or incomplete employer records. Thus, Aramark shouldn't have jumped to the conclusion that workers identified in the no-match letters were illegal.
In addition, the court found that the three-day period Aramark offered employees to correct the discrepancies was inadequate. Notice from the company indicated that the three days ran from the postmark date on the company's letters to employees. Since the letters would have been in the mail for at least one day, the remaining time was so limited that workers may have been discouraged from even attempting to correct the discrepancies with the SSA. Aramark indicated that it actually provided additional time for workers to comply and was willing to rehire workers who belatedly managed to straighten out their documentation. But the court found that the company's notice to the affected workers didn't explain all that. The extremely brief correction period announced by the company wasn't reasonable - and was notably far shorter than the 90-day period for straightening out no-match situations provided by federal regulations announced last year.
Under the circumstances, the court agreed with the arbitrator that Aramark didn't have "convincing information" that the fired workers were illegal. It had no evidence of their status other than their having been identified in no-match letters and failing to provide correcting documentation within a very short time. In the absence of evidence that the workers were in fact illegal - and all had complied with the I-9 process when hired initially - there was no violation of public policy in requiring Aramark to rehire them. The trial court's decision was reversed, and the arbitration award was confirmed. Aramark Facility Services v. Service Employees Internat'l Union, Local 1877, AFL CIO CLC, Case No. 06-56662 (9th Cir., June 16, 2008).
[CLEAR Source: M. Lee Smith Publishers, LLC Hawaii Employment Law Letter (September 2008), pp. 6-7]
Ninth Circuit Again Rejects Ruling of NLRB on Dues-Checkoff Waiver
The NLRB erred in finding that the language in labor contracts with two Las Vegas hotel/casinos created a waiver of a union's right to bargain over ending the collection of union dues upon expiration of the contracts, the U:S. Court of Appeals for the Ninth Circuit ruled Aug. 27 (Local Joint Executive Bd. of Las Vegas v NLRB, 184 LRRM 3136, 9th Cir., No. 07-73979, 8/27/08).
The contracts that the Hacienda Resort Hotel and Casino and the Sahara Hotel and Casino had with the Local Joint Executive Board of Las Vegas, which is made up of Culinary Workers Union Local 226 and Bartenders Union Local 165, each contained a dues checkoff provision stating that the deduction of union dues from employee paychecks "shall be continued in effect for the term of this Agreement." The checkoff agreement attached to each contract also referred to "during the term of the Agreement." About a year after the contracts expired, the casinos stopped making deductions. The NLRB held that the termination of dues checkoff is an exception to the unilateral-change bar. The Ninth Circuit reversed and remanded to the NLRB, which again dismissed the complaints, this time on the basis that the union waived its right to bargain over the changes.
Granting the union's petition for review, the appeals court found that the dues-checkoff provision did not state that checkoff would terminate on expiration of the contracts, and that the contracts did not indicate what would happen when they expired. [CLEAR Source: BNA's Labor Relations Reporter 184 LRR 460 (9-15-08)]
Employer Must Reinstate SEW Janitors Fired
After No-Match Letters, Ninth Circuit Rules
The U.S. Court of Appeals for the Ninth Circuit June 16, 2008 confirmed an arbitration award requiring Aramark Facility Services to reinstate 33 janitors
it fired after receiving no-match letters from the Social Security Administration and giving the workers only a few days to correct Social Security number
discrepancies (Aramark Facility Servs. v. Serv. Employees Int'1 Union Local
1877, 9th Cir., No. 06-56662, 6/16/08).
SSA notified Aramark that the Social Security numbers for nearly 3,300 of
its employees-including 48 workers at the Staples Center, a sports and entertainment arena in Los Angeles-did not match information in the agency's database. Aramark instructed the Staples workers to go to an SSA office to cor-
rect the discrepancy and then to show the company either "a new Social Security card" or a "verification form that shows a new card is being processed."
The letter warned that the employees would be terminated if they failed to
comply.
Local 1877 of the Service Employees International Union requested more
time for the workers to comply, but Aramark refused. Thirty-three workers
who did not provide the requested documentation were fired, and SEIU
grieved. An arbitrator found that the firings violated Aramark's collective bargaining agreement with SEIU since there was no "convincing information"
that the workers were not legally eligible to work in the United States. The arbitrator awarded reinstatement and back pay.
Aramark sued in the U.S. District Court for the Central District of California, which held that the workers' failure to provide the requested documentation gave the company constructive notice they were ineligible to work in the United States and that the arbitration award violated public policy because it would require the company to violate immigration law by rehiring the workers.
Reversing the district court, the Ninth Circuit found that SSA's letters did
not in fact give Aramark constructive notice the workers were ineligible for
employment or that the company would violate immigration law by continuing to employ them. A discrepancy "does not automatically mean that an employee is undocumented or lacks proper work authorization," the appeals court said.
The appeals court also found that the trial court must defer to the arbitrator in the case. "[G]iven the extremely short time that Aramark gave its employees to return with further documents and the arbitrator's finding that Aramark had no `convincing information' of immigration violations, the employees' failure to meet the deadline simply is not probative enough of their
immigration status to indicate that public policy would be violated if they were
reinstated and given backpay," the court ruled.
SEIU attorney David A. Rosenfeld said the decision is "wonderful" because
"it affirms the role of arbitrators under collective bargaining agreements" and
protects workers from employer abuse of no-match letters. This is the first
published court decision dealing with an employer's decision to fire employees based on receipt of no-match letters, Rosenfeld said. [CLEAR source: BNA's Union Labor Report, (6-27-08) p. 97]
Ninth Circuit Allows Claims Under State Law
For Exposure to Nonradioactive Material
A n employee exposed to radioactive and non-
radioactive material in the workplace may bring
emotional distress and loss of consortium claims
under state law if he can show his fears caused by ex-
posure to the nonradioactive material can be separated
from his fears caused by exposure to the radioactive
material, the U.S. Court of Appeals for the Ninth Circuit
ruled June 11 (Golden v. CH2M Hill Hanford Group
Inc., 9th Cir., 05-35832, 6/11/08).
While the Price-Anderson Act preempts state law
claims stemming from nuclear incidents, the court said,
a separately identifiable harm unrelated to the radioactive materials is not preempted.
The court found that the worker failed to show the
accident caused him physical injury, which is necessary
to prevail on an emotional distress claim under Price-Anderson. Nevertheless, the appeals court said, the
worker may be able to proceed under state law if he can
show his emotional distress claims stemming from exposure to heavy metals are separable. [CLEAR source: BNA's Occupational Safety & Health Reporter, (6-25-08) p.519]
Ninth Circuit overturns NLRB Ruling on Union Buttons
Not Backed by Evidence, Court Says The National Labor Relations Board had no evidence to support its conclusion that a hospital lawfully could prohibit nurses from wearing a union button in areas where they might encounter patients or family members, the U.S. Court of Appeals for the Ninth Circuit ruled May 20 (Washington State Nurses Ass'n v. NLRB, 184 LRRM 2129, 9th Cir., No. 06-74917, 5/20/08).
During negotiations for a new contract that continued past the expiration date of the parties' agreement, nurses wore union buttons. The hospital issued a memorandum that prohibited wearing the "RNs Demand Safe Staffing" buttons in areas "where they may encounter patients or family members" because they "may fear that the Medical Center is not able to provide adequate care."
The parties reached a new contract, but the union filed an unfair labor practice charge over the button restriction. NLRB found that the hospital's ban of the "Safe Staffing" button was justified and lawful under the National Labor Relations Act because the button would "inherently disturb" patients (11 COBB 89, 7/20/06).
While restrictions on union insignia outside patient care areas are presumptively invalid, the Supreme Court held in Beth Israel Hosp. v. NLRB, 437 U.S. 483, 98 LRRM 2727 (1978), that special circumstances may justify a restriction on insignia if "necessary to avoid disruption of health-care operations or disturbance of patients," the court noted.
But in this case the board's finding that the "Safe Staffing" button had a disruptive effect was not supported by substantial evidence, the court said. "In fact, it is not supported by any evidence."
Addressing NLRB's finding that the hospital was not required to show an actual disturbance before prohibiting an "inherently disturbing" message, the court said, "The Board's approach was contrary to its established precedent, to our sister circuit's precedent, and to the basic adjudicatory principle that conjecture is no substitute for evidence."
Responding to NLRB's argument that the hospital was not required to wait for patient complaints before taking preventive action, the court said there was no evidence of actual harm to patients, who never complained or even asked about the "Safe Staffing" button. "Evidence of what actually occurred is far more telling than unsubstantiated conjecture about what might occur," the court concluded. [CLEAR source: BNA's Collective Bargainng Bulletin, (6-5-08) p.69]
Ninth Circuit Affirms NLRB Ruling That IBT Illegally Set Agency Fee for Objecting Member
An International Brotherhood of Teamsters local violated the National Labor Relations Act by using arbitration awards it received from employers for certain contract violations to offset its nonrepresentational expenditures when calculating the amount of agency fees to be paid by its sole objecting nonmember, the U.S. Court of Appeals for the Ninth Circuit ruled May 12 (NLRB v. Studio Transp. Drivers Local 399, 9th Cir., No. 06-72695, 5/12/08).
IBT Studio Transportation Drivers Local 399 represented a unit of air conditioning, electrical, and general maintenance technicians, including Hyo Chol Lim, who was employed by Hilltop Services, a subsidiary of Universal Studios. The contract included a union security clause requiring unit employees to become members of the union.
Lim did not join the union and paid agency fees under the Supreme Court's decision in Communications Workers v. Beck, 487 U.S. 735, 128 LRRM 2729 (1988). Beck established that objecting members need only pay agency fees for their share of representational expenses. Lim was the only Beck objector represented by the local at the time.
Local 399 determined that Lim's share of the representational expenses was 99.6 percent of regular union dues. It gave Lim a copy of an auditor's report of the union's finances and a breakdown of the expenses into chargeable and nonchargeable categories showing that the union had spent the $26,705 in liquidated damages it received in 2001 on nonrepresentational expenditures. The union spent a total of $38,484 on nonrepresentational expenditures and nearly $3.2 million on representational expenses in 2001.
Lim filed an unfair labor practice charge alleging that Local 399 violated NLRA Section 8(b) (1) (A) by charging him for nonrepresentational expenses. He argued that using the liquidated damages to offset nonrepresentational expenditures reduced the amount of money the union spent from its general funds on nonrepresentational expenses and increased the percentage of representational expenses that he owed.
An administrative law judge upheld the ULP charge, and the National Labor Relations Board unanimously agreed (346 N.L.R.B. 322, 179 LRRM 1024 (2006) ). IBT appealed the decision through the courts.
Upholding the NLRB, the appeals court found that the union should exclude the arbitration awards money from its calculation of agency fees rather than use it to reduce its reported nonrepresentational expenses. By spending arbitration money on nonrepresentational rather than representational expenditures, the union in effect increased the agency fees owed by the objecting nonmember for representational expenses, the court said.
However, excluding the arbitration awards from the calculation made very little difference in the amount of agency fees owed by Lim. The court upheld the board's finding that the union could charge him 98.8 percent of full union dues.
[CLEAR source: BNA's Union Labor Report, (5-16-08) p.73]
City Violates Fourth Amendment
By Requiring Applicant's Drug Test
An Oregon city violated the constitutional
rights of an applicant for a public library
job when it withdrew a job offer because the
applicant refused to submit to a mandatory
drug and alcohol test, the U.S. Court of Appeals for the Ninth Circuit ruled March 13
(Lanier v City of Woodburn, 27 IER Cases
481, 9th Cir.. No. 06-35262, 3/13/08).
The court said Woodburn, Ore.'s demand
that plaintiff Janet Lanier undergo a drug test
before being employed as a part-time library
page was an unreasonable search under the
Fourth Amendment to the U.S. Constitution
absent a showing of particularized need.
Although Woodburn contended the societal
problem of alcohol and drug abuse and the
fact that Lanier sometimes would be working
with children, justified its testing requirement,
the court said that those arguments do not support a search in this case. Unlike a prior appeals court decision that upheld mandatory
drug tests for public school faculty and administrators, the court said, "it is evident (at
least on this record) that a part-time page, who
could be a high-school student herself, has no
[in loco parentis] role in the city of Woodburn." [CLEAR source: BNA's Labor Relations Reporter, 183LRR422 (4-7-08)]
Reverse Religious Bias Claim Can Go to Trial
An employee who contended she was not promoted because her supervisor favored members of a religious group should have been granted a trial on her claim against Kelly Services Inc. for reverse religious discrimination, the U.S. Court of Appeals for the Ninth Circuit ruled May 29 (Noyes v. Kelly Servs. Inc.., 9th Cir., No. 04-17050, 5/29/07).
Lynn Noyes claimed that she was passed over for promotion because a supervisor was a member of a small religious group, the Fellowship of Friends, and "repeatedly favored and promoted other Fellowship members."
Ordinarily, to establish a religious discrimination claim under Title VII of the 1964 Civil Rights Act, an employee has to show that he or she is in a "protected class," the court said.
However, "Noyes does not claim that she was part of a protected class, i.e., that she adheres to a particular religion," the court said. "Rather, her claim is that her lack of adherence to the religious beliefs promoted by the management of Kelly Services was the genesis of the discrimination."
"The Tenth Circuit's discussion on this point is instructive," the court said, citing Shapolia v. Los Alamos National Laboratory, 992 F.2d 1033, 61 FEP Cases 1172 (10th Cir. 1993). In that case, "the court reasoned that the 'protected class' showing required in a traditional race or sex discrimination claim does not apply to this type of nonadherence or reverse religious discrimination claim because it is the religious beliefs of the employer, and the fact that the employee does not share them, that constitute the basis of the religious discrimination claim," the court explained.
"The central issue in this case is whether Noyes's evidence was sufficient to raise a triable issue of fact as to pretext," the court said. Kelly Services gave management consensus to
promote another employee as a legitimate, nondiscriminatory reason for not promoting Noyes. Noyes argued that this reason was a pretext for religious bias, the court said.
Noyes presented specific, substantial evidence that undermined the credibility of Kelly Services's reasons for not promoting her, the court decided. Her "overarching complaint is that membership in the Fellowship permeated the promotion process and that [William] Heinz, a Fellowship member and ultimate decision-maker, exercised his supervisory authority in favor of [other] Fellowship members."
Noyes presented evidence that she was more qualified than the Fellowship member promoted in her place, the appeals court noted. She had been on the job six years longer and had a master of business administration degree. She also showed that Heinz told other employees that she was not interested in the promotion, as a result of which she was not fully considered, the court said.
"Based on this evidence, a reasonable factfinder could conclude that religiously motivated discrimination was behind Heinz's promotion" of the Fellowship member, the court said.
Noyes also demonstrated that Heinz showed favoritism toward a junior, less qualified Fellowship member, paying the other employee $4,000 a year more than he paid Noyes, the court added. Further, Noyes offered evidence that Heinz repeatedly brought in Fellowship members as temporary contractors, the court said.
In addition, Noyes presented statistics to support her claim of favoritism toward Fellowship members in hiring and promotion. "Although we agree that this statistical evidence standing alone was insufficient to raise a triable issue of fact, coupled with Noyes's other evidence, the numerical picture buttressed Noyes's challenge that Kelly Services's proffered reasons for its promotion decision were a pretext for unlawful discrimination," the appeals court said, reversing the lower court's dismissal and sending the case back for reconsideration. [CLEAR source: BNA's Union Labor Report , 06-29-07, 13ULR102]
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