A Lonely Management Attorney on Labor Day?

Yesterday, for the first time, someone said the following to me:

So, it must be hard being a management attorney on Labor day, huh?

Caught me completely off guard. My first thought – this must be what prosecutors hear on Criminal’s Day - was useless. I think most employer-side L&E attorneys have a stock answer waiting for questions like these. Here, in order of appearance, are the other horrible responses that popped into my head:

1. “Managers work, too, so ‘labor’ technically applies to them…”
2. “Labor Day’s lost its meaning. Now it’s just about grilling brats and putting away your white pants.”
3. “Yes. Yes it is. I usually just go get Chinese food and see a bunch of movies.”

Luckily, before any of those escaped my ADD brain, my defensiveness subsided and I was able to just, you know, tell the truth. Which is this:

ca. 1910 | From the Library of Congress, via Flickr

Labor Day is not hard for me at all. Not because it has no meaning – it does. Especially around these parts. No, the notion that I would have trouble with Labor Day is grounded in the idea that, as a representative of “Management”, I am the enemy. The evil at the other end of the table, twisting my exquisite handlebar mustache and whispering ways to screw over workers into the ears of the Boss.

It is an idea that I (and nearly all of my employer-side colleagues) wholeheartedly reject.

I believe in the American system of labor as much as anybody. And while there are some things about workforce law that I would like to see changed, none of them involve the ability to act as a collective unit.

Not to harp on this point, but I think that when you listen to the rhetoric coming from both ends of the Labor/Business divide, you get the sense that everyone with any skin in the game hates each other. It’s just not true. Most of us on both sides of the table recognize that the best way to run a successful business is to have employees that are respected and dedicated to the company’s success, whether union or not.

So, even though it’s a day late, I wanted to put up this note because I think Labor Day is a perfect time to remember the vast majority of unions and businesses, who work together amicably, sort through differences professionally, and understand that everyone involved is in it for the right reasons, even if we disagree on the details.

Happy Labor Day, indeed.

Fiday Diversion #5: Blogging Sucks and You’re Ugly

Ed. Note: This week’s gonna be a twofer. That’s right – twice the ridiculousness for you to waste your time on. In return for my generosity, why not saunter your virtual behind over to this Lexis Nexis page announcing candidates for the Top 25 L&E blogs and vote for Current Employment in the comments?

Diversion #5, subpart (a): Blogging is Expensive

The first of our stories was chosen for two reasons:

1. It hits a little close to home for somebody arrogant enough to write their thoughts all over the internets (e.g.,this guy).
2. It gives me an excuse to congratulate my fellow employment law blogger, Phillip Miles of Lawffice Space on the birth of his baby girl!

I just had a kid 6 months ago, and I can tell you the best part about it is all the congratulations that I receive from people that I only know online. The least I can do is pay that forward, right? Plus if you click on the link to Phillip’s blog, you’ll see that, unlike those super-obnoxious bloggers that force this stuff down your throat,  he’s very humble in his announcement. So, for the second time in CE history, I’m pulling out all my web 1.0 training to make this thing pop:

Congratulations, Phillip!

Babies are the best!

Speaking of obnoxious bloggers, somehow in the midst of having a 0.1-month-old, Phillip found the time to dig up this story about a community blogger in Hennepin County, Minnesota who is paying a hefty price for doing the worst thing you can possibly do to another person on the web: tell the truth about them. From the Minneapolis Star Tribune:

Though blogger John (Johnny Northside) Hoff told the truth when he linked ex-community leader Jerry Moore to a high-profile mortgage fraud, the scathing blog post that got Moore fired justifies $60,000 in damages, a Hennepin County jury decided Friday.

What the wha?

Here’s the timeline:

• ex-community guy does bad mortgage thing
• blogger tells people about it (with choice words)
• ex-so-and-so gets fired
• ex-guy sues blogger for tortious interference with his employment contract

Tortious interference, for those of you who have regular lives, means you deliberately got in the way of somebody reaping the benefits of a contract. In other words: your blog post got me fired.

My personal opinion is that this case is bunk, and there’s no way this blogger is going to have to shell over $60k for not lying.Truthful speech has to be pretty bad to lose First Amendment protections. It’s being appealed, and he better frigging win or I will shut down this website faster than you can say “wackiest employment law cases”.

Diversion #5, subpart (b): This “Ugly” Thing Has Legs

So, two weeks ago, my Friday diversion was about a sexual harassment case where the employer argued there could be no harassment, because the Plaintiff was too ugly. Remember? Well, I can only assume that my blog post, and not at all this op-ed in the New York Times, touched a nerve with some bloggers. All week, folks have been discussing whether ugliness should be protected under discrimination laws.

SPOILER ALERT! It shouldn’t.

Just because something is a detriment to financial gain doesn’t mean it’s grounds for discrimination. Besides, most of the stereotypes about ugly people are true. I’m not prejudiced though; a lot of my close friends are super-ugly.

But you should read these stories about why it shouldn’t be protected, because they are fun, and one of them has a clip from Seinfeld.

One more thing:

Lots of changes coming to the land of Tim soon. If you haven’t noticed already, this includes a slow, meandering update of the blog. (I think I’ve settled on these fancy fonts. Let me know what you think.) I was going to add a “beta” to the top logo, but I don’t have that kind of gusto. So I’m throwing this down here where no one will read it, instead.

Stay tuned for changes (blog and non-blog), and critique away if you hate something.

The NLRB Reversed Itself (Again)! Everybody Freak Out!

Come on, we all knew this was coming.

Before they lose a voting quorum later this year, the National Labor Relations Board has issued two major decisions overturning two highly-praised-and-criticized rulings by the Bush-era Board. They both suck for employers, but from the PR I’ve been reading over the past 12 hours, you’d think they were either going to save or kill America’s future. Neither is true.

I’m going to talk about one of the cases, Lamons Gasket, because it’s getting the most press. Then I’ll have a very calm word about hysteria and politics.

Lamons Gasket: Reversing the EFCA Straw Man

In Lamons Gasket Co., the Board reversed Dana Corp., a 2007 decision by the Bush-era Board that was pilloried by union folks from the day it was published. Here’s the issue:

Typically, when a group of employees votes to be represented by a union, there’s a period of time where the union’s validity can’t be challenged by employees. This time period, called the “recognition bar” is meant to give “the bargaining relationship…a fair chance to succeed.” Basically, the recognition bar keeps an employer from trying to goad its employees into revoking the union representation before it’s tried to work with the union.

In Dana Corp., the Board carved out an exception to the recognition bar. Where an employer voluntarily recognizes a union as the representative of its employees, the employees had 45 days to file a petition challenging union recognition. If 30% of the bargaining unit signed onto the petition, a secret ballot election would have to be held to make sure a majority of the workers actually wanted the union.

Here’s the thing: employers can voluntarily recognize a union after the union shows an “unassisted and uncoerced showing of interest from a majority of employees.” That “showing of interest” almost always means the union has collected recognition cards from a majority of the employees. If you’ve followed Labor Law at all, you know where I’m going with this. Cards? Secret Ballots?

Sounds a lot like the Employee Free Choice Act, right?

Yeah. In 2007, with the Presidential election looming, EFCA was a hot-button issue. Most people thought that an Obama election would mean near-instant passage of the Card Check law. (Didn’t exactly turn out that way, but in ’07, nobody knew that.) When the Board dropped Dana Corp. into that landscape, unions went nuts. They said Dana Corp. was doing away with decades of Board precedent on voluntary recognition and was a back door way to cut the legs out from under EFCA.

It wasn’t. The recognition bar still existed wherever employees actually voted for a union. Dana Corp. was a reasonable way to make sure that employees were getting a union that they actually wanted, instead of being strong-armed or confused into a representation that they’d be stuck with for a year or more. If you need more proof of this, check out Jon Hyman’s first-hand account of a Dana Corp. decertification here.

When it became clear that EFCA was going to die in Congress, unions saw reversing Dana Corp. as something of a consolation prize. EFCA the Home Game. If they couldn’t get the labor laws changed, at least they could get a liberal Board to reverse Dana.

And that’s just what happened. Just like we expected. In Lamons Gasket, the current Board examined data showing that Dana Corp. only decertified, 1% of voluntary recognitions, and therefore decided it was unnecessary. The decision isn’t shy about it’s relation to the bigger fight over EFCA:

The decision in Dana thus undermined employees’ free choice by subjecting it to official question and by refusing to honor it for a significant period of time, without sound justification.

Lamons Gasket Co. at Page 2 (emphasis added).

The Takeaway

So what does all this mean? It means that Liberals believe card check is a valid way for employees to choose a union, and that Conservatives don’t.

Shocker.

In reality, it means that there will be employees out there that are represented by unions that probably don’t have majority support. As an employer, I think it means you should refuse to voluntarily recognize a union unless you are 100% convinced your employees are on board.

And that’s it. After all the wrangling and shouting and this ridiculously-long blog post, that’s all Lamons Gasket means. Union drive? Demand the election.

(Epilogue)

Stop Screaming! Bad Labor Law ≠ Political Armageddon

Okay, so Lamons Gasket sucks. It reverses a ruling that was reasonable and really helped protect employees. But it was also pro-business, and it was replaced with a pro-union rule. If your labor lawyer didn’t tell you this was probably going to happen two years ago, then you need to start shopping, and drop the word “proactive” a lot during the bidding process.

The problem is both Dana and Lamons cannot escape the politics surrounding them. But do those politics affect your business? Not as much as everyone is trying to convince you they do. Lobbying groups, twitchy labor lawyers, conservative bloggers and politicians are pulling out some serious shock and awe in response to the decision. Forced unionism! Attacks on worker’s rights! An underhanded scheme! By union extremists! That have hijacked the government! And they’re going to tell you all about it in URGENT LABOR LAW ALERTS!!!!!

Dial. It. Down.

I think Lamons Gasket is a dumb reversal that will hurt employees, but it’s not the end of the world. Remember the takeaway – if you think the union could sneak in against your employee’s will, just don’t voluntarily recognize. Make ‘em prove it. End of issue.

The effect of the NLRB roller coaster will not be avoided by bloggers and lobbyists working you into a frenzy, making you hate Democrats or overblowing the issue in whiny press releases. Leave the politics to people who don’t have anything better to do.

I promise you, the best thing you can do for your business is turn off the spigot of rhetoric and go back to work. The decision is what it is. Not good, but we’ll cope. And regardless of what you hear, it hasn’t eliminated secret ballot elections. EFCA will not be passed on its back.

This is what the NLRB does. When the White House changes hands, the NLRB does, too. And that means some opinions from the previous Board get reversed. Dana’s been in the sights of unions since it was issued in ’07. No one on our end of the bargaining table should be surprised that it got axed. If a conservative Board takes over, I can tell you right now it’ll get knocked back the other way.

Being angry at the Board because it issued the decision is like being mad at the bears in Grizzly Man. It’s a tragedy, no doubt. But you knew it was coming.

It’s the Nature of the Beast.