In December 2010, a client filed a petition for a union election for a certain group of employees. The National Labor Relations Board set the election date 45 days after the petition was filed. The Union won the election handily, despite an aggressive employer campaign against the union.
After the election, the employer filed meritless objections to the election. The NLRB dismissed the objections in September 2010. The employer then refused to bargain with the union, which then filed unfair labor practice charges against the employer. Once again, the union won before the NLRB. The employer filed an appeal against that decision to a federal appellate court. A year and a half after the union filed its election petition, the case is still pending. During that time there has been no collective bargaining, and it's business as usual at the employer. As one can imagine, employees are frustrated at the union and support has dropped. Of course, that is precisely what the employer wanted.
Today the National Labor Relations Board published a Notice of Proposed Rulemaking in the Federal Register, seeking to streamline the election process for Unions. The new rules would help eliminate abusive employer practices that stall elections, drag out hearings, and would help ensure workplace democracy.
The way the NLRB is structured currently, employers can insist on meritless hearings, file endless appeals, and frustrate the intent of the National Labor Relations Act -- which is to give employees and employers access to a government agency charged with running elections. The proposed rules would:
■ Allow for electronic filing of election petitions and other documents.
■Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process.
■Standardize timeframes for parties to resolve or litigate issues before and after elections.
■Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.
■Defer litigation of most voter eligibility issues until after the election.
■Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available.
■Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals.
■Make Board review of post-election decisions discretionary rather than mandatory.
These are all sensible rules that have nothing to do with the substance of the NLRA. Rather, they merely modify current Board rules about how elections are conducted.
Employer groups are already complaining about the proposed rules, claiming that quicker elections will give them less time to make their case to workers. This if fairly laughable -- workers will still be subject to mandatory meetings, pressure from supervisors, and employers will still have the ability to campaign against unions and exercise their speech rights. Union election campaigns are completely one-sided -- unions have no real access to workers, yet employers have access 40 hours per week. One has to wonder what employers who oppose the rules are really afraid of.
Wednesday, June 22, 2011
Tuesday, June 7, 2011
The Weiner Chronicles
One almost has to feel sorry for the unfortunately named Congressman who finally admitted sending pictures of his, umm, Johnson to a stranger on Twitter. Actually, he accidentally sent the picture to all of his Twitter followers. Weiner obviously showed terrible judgment and then compounded things by telling a ridiculous lie about it -- first that someone hacked the Twitter account, then saying the he couldn't be sure the picture wasn't him, then finally coming clean about it. But should he lose his job over the scandal?
I've had several cases where employees are fired or disciplined for sending inappropriate messages, pictures, and texts to co-workers. In one case an employee sent a copy of himself having sex with another co-worker to the co-worker. Problem (for him) is that he was married and the co-workers had broken up. In another an employee took a picture of his little Congressman and showed it to someone else at work, who then told a colleague, who told another colleague, who told a supervisor who surreptitiously picked up the phone and was shocked, shocked by what she saw. Both employees got their jobs back, but just barely.
In these cases the employer typically argues that the employees were guilty of "harassment" or "inappropriate conduct." The problem for the employer is that sometimes the employee who receives the photo or text isn't offended and doesn't feel harassed. Other employer arguments are that the exchanges took place during work time, or were on work phones. These arguments are a little harder to overcome, as it's hard to argue that the employer can't place restrictions on what employees do at work on employer equipment.
On our side, I usually argue that the employee to whom the message was sent wasn't offended, or if she professes offence now, couldn't actually be offended (e.g., the lady who allowed herself to be shot having sex, then objected to receipt of the shot later). Or, if the victim is truly offended, I try to offer an apologetic grievant who did not know he was offending. If it fits, I argue that what consenting adults do on their own time is nobody's business, and certainly not the employer's.
This is what makes the Weiner case interesting. Was Weiner acting in his role as a citizen, or Congressman? Was he doing what he did on the taxpayer's dime, or on his own time? Did he use government resources? It's not clear that Weiner violated any House ethics rules, at least according to the pundits. But he may be forced to resign anyway, probably because he tried to "cover up" the misdeeds by lying about it.
There's a world of difference between lying about a half-naked picture of yourself, and lying about something more consequential, for example, breaking into the Watergate Hotel. The distinction has been lost in our political culture. Nonetheless, I'm reminded of clients who, when caught, end up telling a ridiculous lie about; the case then becomes about the lie rather than the underlying issue. I would of course prefer that they tell the truth. But if they choose not to do that, at least tell a better lie. In the end, Weiner's failure to come clean may lead to his downfall.
I've had several cases where employees are fired or disciplined for sending inappropriate messages, pictures, and texts to co-workers. In one case an employee sent a copy of himself having sex with another co-worker to the co-worker. Problem (for him) is that he was married and the co-workers had broken up. In another an employee took a picture of his little Congressman and showed it to someone else at work, who then told a colleague, who told another colleague, who told a supervisor who surreptitiously picked up the phone and was shocked, shocked by what she saw. Both employees got their jobs back, but just barely.
In these cases the employer typically argues that the employees were guilty of "harassment" or "inappropriate conduct." The problem for the employer is that sometimes the employee who receives the photo or text isn't offended and doesn't feel harassed. Other employer arguments are that the exchanges took place during work time, or were on work phones. These arguments are a little harder to overcome, as it's hard to argue that the employer can't place restrictions on what employees do at work on employer equipment.
On our side, I usually argue that the employee to whom the message was sent wasn't offended, or if she professes offence now, couldn't actually be offended (e.g., the lady who allowed herself to be shot having sex, then objected to receipt of the shot later). Or, if the victim is truly offended, I try to offer an apologetic grievant who did not know he was offending. If it fits, I argue that what consenting adults do on their own time is nobody's business, and certainly not the employer's.
This is what makes the Weiner case interesting. Was Weiner acting in his role as a citizen, or Congressman? Was he doing what he did on the taxpayer's dime, or on his own time? Did he use government resources? It's not clear that Weiner violated any House ethics rules, at least according to the pundits. But he may be forced to resign anyway, probably because he tried to "cover up" the misdeeds by lying about it.
There's a world of difference between lying about a half-naked picture of yourself, and lying about something more consequential, for example, breaking into the Watergate Hotel. The distinction has been lost in our political culture. Nonetheless, I'm reminded of clients who, when caught, end up telling a ridiculous lie about; the case then becomes about the lie rather than the underlying issue. I would of course prefer that they tell the truth. But if they choose not to do that, at least tell a better lie. In the end, Weiner's failure to come clean may lead to his downfall.
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