— Posts About Union

Mike and Narendra Secure Fourth Circuit Victory for Union

The Fourth Circuit Court of Appeals ruled in favor of Patterson Harkavy’s client in Int’l Bhd. of Elec. Workers, AFL-CIO, Local Union No. 289 v. Verizon S., Inc., No. 12-2013, 2013 WL 3770706 (4th Cir. July 19, 2013).

The case arose from a dispute surrounding Verizon’s termination of employee Brian Pollard.  Verizon sought to avoid arbitration of the controversy, claiming that Mr. Pollard was only a probationary employee without the right to arbitrate his discharge under the Union’s collective bargaining agreement.  Representing the Union in the Middle District of North Carolina, attorneys Narendra Ghosh and Mike Okun filed a motion to compel arbitration.  In January of 2012, Magistrate Judge Trevor Sharp recommended that the Union’s motion to compel arbitration be granted.  Following the Recommendation’s adoption by Judge William Osteen, Jr., Verizon South appealed to the Fourth Circuit.

In an opinion issued last week, the Fourth Circuit unanimously affirmed the District Court’s ruling, finding that both the Collective Bargaining Agreement and a separate agreement were “at minimum, reasonably susceptible to the interpretation that the Union advances.”  Since doubts as to whether an arbitration clause covers a given dispute are resolved in favor of coverage, the Fourth Circuit found it appropriate to compel arbitration of the dispute.

Congratulations to Mike and Narendra on the win!

Categories: Judicial Decisions Tags: , , , , , , , ,

NLRB Strikes Blow Against Bans on Class Action Arbitrations

The National Labor Relations Board recently ruled in favor of both union and non-union private sector employees on a significant issue concerning workplace litigation.  At issue were mandatory arbitration agreements signed upon employment that force employees to bring claims one by one in front of an arbitrator and prohibit employees joining as a group to arbitrate their claims.  The Labor Board concluded that such agreements violate employee rights under the NLRA to engage in concerted activity.  This ruling supports workers’ rights to join together to bring legal claims to arbitration collectively.  More coverage can be found here.

Categories: General News, Judicial Decisions Tags: , , , , , , , ,

COA Finds Employment Claims Barred by Union Agreement

In Williams v. American Eagle Airlines, the North Carolina Court of Appeals addressed the interplay between union contracts and employment claims.  In this case, the plaintiff had been a part-time fleet service clerk for American Eagle, where she was a member of the Transport Worker’s Union, and was covered by a collective bargaining agreement.  She also had a full-time administrative position at Duke.  In 2006, the plaintiff injured her shoulder while moving luggage, started receiving workers’ compensation benefits, and eventually had surgery.  Following surgery, plaintiff resumed her duties at Duke, but did not return to American Eagle, apparently with representations that should not return to work at all.  Because of this inconsistency, American Eagle terminated her for dishonesty related to her workers’ compensation.

Rather than file a grievance through the Union, the plaintiff filed suit in state court, alleging claims for (1) breach of contract because she was fired without just cause; and (2) violation of the the North Carolina Retaliatory Employment Discrimination Act (“REDA”) because her termination was cause by her use of workers’ compensation.  At trial, the jury ruled against the plaintiff on the REDA claim, but found in her favor on the contract claims and awarded damages.

On appeal, the Court vacated the verdict because the contract claims were legally barred.  “When an employee’s claim is firmly rooted in a breach of a collective bargaining agreement and asserts no rights independent of that agreement, such claim is preempted by the Railway Labor Act (RLA).”  (The RLA governs unions in the airline industry.)  In other words, when an employee wants to challenge her termination as unlawful under a CBA, she usually must pursue the matter through the CBA’s grievance mechanism instead of in court.  As this plaintiff did that, the breach of contract claims were legally barred, and the verdict had to be vacated.

Categories: Judicial Decisions Tags: , , , , , , , , , ,

Recent Fourth Circuit Labor and Employment Decisions

The Fourth Circuit has published opinions in three labor and employment cases in recent weeks.  The first case, Sepulveda v. Allen Family Foods, Inc., concerned a Fair Labor Standards Act (FLSA) collective action that was brought on behalf of a class of current and former employees of a chicken processing plant.  The employees claimed, among other things, that the company had violated the FLSA by not compensating them for time spent donning and doffing their protective gear before and after their shifts.  There is a specific exception in FLSA for cases regarding compensable time for “changing clothes” when the employees are represented by a union that has negotiated a collective bargaining unit.  The Court held that putting on and taking off protecting gear was “changing clothes,” so the exception applied because these plaintiffs had a union, and so judgment was rightly granted to the employer.

Read more…

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Mike Organizes Annual Labor Laywer Meeting with NLRB in Winston-Salem

As part of the Committee on Practice and Procedure under the NLRA (Southern Region (Region VIII) of the ABA’s Labor and Employment Section), Mike Okun helped organize the annual discussion between the labor bar and the NLRB Region 11’s Director, attorneys, and staff.   At today’s meeting at the NLRB office in Winston-Salem, we had the good fortune to be joined by John E. Higgins, Jr, currently the agency’s Deputy General Counsel, who filled us in on developments at the national level, including the NLRB’s work with only two board members and the potential effects of EFCA.

Categories: News of the Firm Tags: , , , , ,

Study Shows that Unions Help Make Family-Friendly Workplaces

Family-Friendly Workplaces: Do Unions Make a Difference?, written by Jennifer MacGillvary of the Labor Center at the University of California-Berkeley and Netsy Firestein of the Labor Project for Working Families, concludes the unions lead to workplaces that, through policy and practice, promote a healthy and viable balance between work life and home life.   Significantly, the study finds that unions increase compliance with the Family and Medical Leave Act, ensure paid sick leave for employees and their children, and increase the likelihood that health care is covered for families.

Categories: General News Tags: , , , , ,

USW Workers Ratify Goodyear Contract

The United Steelworkers (USW) announced that workers overwhelmingly ratified a new four-year agreement covering about10,000 union members at seven Goodyear Tire and Rubber Co. plants, including the plant in Fayetteville, North Carolina.  The new pact provides job security and maintains quality, affordable health care for the union members.  It also provides for a commitment by Goodyear to invest $600 million in the plants, keeping them up to date and globally competitive.

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Employee Free Choice Act Update — Specter Edition

Senator Arlen Specter has released more details on the EFCA compromise he has been working on, and also declared his confidence that he had 60 votes for the bill.  Instead of the majority sign-up provision, the bill would provide for quicker union elections with some sort of equal-time requirements.  And, the binding arbitration would be adjusted to use baseball-style arbitration, i.e. the arbitrator has to pick one of the final offers of the parties.

Categories: Legislative Action Tags: , , , ,

Study Shows that Low Wage Workers are Subject to a Host of Employment and Labor Law Violations

A new study, “Broken Laws, Unprotected Workers,” shows that employers routinely violate the employment rights  of low wage workers, with frequent violations of the wage and hour laws, workers’ compensation laws, and anti-retaliation protections.  (The original study is here; a summary of the study is here.)  Here are some of the startling findings:

  • 68 percent of the workers interviewed had experienced at least one pay-related violation in the previous work week, including failures to pay earned wages, at least minimum wage, or overtime pay.
  • 26 percent of the workers had been paid less than the minimum wage the week before being surveyed and that one in seven had worked off the clock the previous week.
  • 76 percent of those who had worked overtime the week before were not paid their proper overtime. Read more…

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Employee Free Choice Act Update

Here’s the latest update on the Senate negotiations on EFCA.  As expected, it comes down to figuring out what the moderate Democrats in the Senate will support.  For more information of the various parts of the bill, see Narendra’s paper on the NLRA and EFCA.

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