Supreme Court Grants Cert. on Awesome California Labor Case - And Also Some Gun Thing.

I know, I know. Everyone's talking about D.C. v. Heller, the Second Amendment bombshell of a cert. grant. Believe me, the D.C. Circuit version, Parker, was my life for 3 months of moot courtness this fall. I'm interested.

But if you want to talk guns, you're in the wrong place - unless it's a postal service article or something - and Heller was not the only cert petition granted today.

The Supremes agreed to hear a challenge of a California labor statute that prohibits employer communication during a union campaign. The case, Chamber of Commerce v. Brown, could give the Court a chance to define the extent an employer's noncoercive speech is protected by the 1st Amendment or Section 8 of the NLRA. Except, of course, that it's been long-settled that both of those things are true, so, that's dangerous.

From the Petition for Cert.:

[The statute] forbids employers that receive either a state "grant" or over $10,000 from a "state program" from using those funds "to assist, promote, or deter union organizing," which is defined as "any attempt by an employer to influence the decision of its employees in this state or those of its subcontractors regarding either ...[w]hether to support or oppose a labor organization that represents or seeks to represent those employees ... [or] [w]hether to become a member of any labor organization," This proscription applies to "any expense, including legal and consulting fees and salaries of supervisors and employees, incurred for research for, or preparation, planning, or coordination of, or carrying out, an activity to assist, promote, or deter union organizing."

The 9th Circuit held en banc that the state law wasn't preempted by the NLRA because it only tangentially touches on noncoercive speech. And then it got good:

[The 9th Circuit held that the statute was not preempted] because noncoercive employer speech is neither actually nor arguably protected by the NLRA. It held that section 8(c) of the NLRA does not grant employers speech rights but "simply prohibits their noncoercive speech from being used as evidence of an unfair labor practice."

Wow. That could be a thing.

We're thinking that SCOTUS is going to overrule the 9th Circuit here. Why? Two reasons: 1) the Roberts Court is clearly pro-business, and this case, brought by the California Chamber of Commerce, is as "business" as they come, and 2) the Supreme Court always overrules the 9th Circuit. Seriously, their like the Buffalo Bills - it doesn't matter how good they are, they're never going to win.

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Controversial New NLRB Ruling: Act Only Protects People Who Want Jobs

The NLRB has limited the National Labor Relations Act's protections to only those job applicants who really want jobs they apply for. This will finally cut out all those independently wealthy jerks who apply for jobs and then turn them down just for laughs.

In Toering Electric Co., 351 NLRB No. 18, the Board said that only applicants with a "genuine interest" in developing an employment relationship with an employer will be covered under the Act. The General Counsel will have the ultimate burden to prove the applicant intended to develop the relationship, and the Board said that he could use receipts from restaurants and movie theaters where the applicant took the employer on dates and witness testimony of hand holding and make-out sessions at clubs as evidence.

Yeah, we made that last part up.

This is really another assault on the union strategy of "salting" that the Board seems oddly obsessed with lately.


As we previously reported, The Board limited salting protection earlier this year, holding that Salts would have to prove they planned to stay after the campaign if they wanted back pay for being let go. In Toering Electric, the Board (though seriously divided) raises the bar for bringing a claim at all, holding that Section 2(3) requires at least a "rudimentary economic relationship" that is absent in true salting cases.

The dissent went to town on that, saying nothing in the Act says anything about a person's motives for applying - that you could be our hypothetical billionaire above and the NLRA should afford you the same protection as anyone else.

The big problem we see here is that the Supreme Court unanimously held that salts were protected under Section 2(3). If this trend in the Board continues - we see a trip to the Big House coming soon - and with the Supremes walking with their new gangstar lean, the Board may find the support they're looking for.

Let us know what you think in the comments.

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NLRB: Less "Of the Earth", More "In the Wound"

The NLRB has changed its rules to disfavor “salting” campaigns. Shocker, we know.

But to do it without being asked, in the headwind of a still-young Supreme Court decision protecting salts under the NLRA is pretty ballsy, you have to admit.

Salts, of course, are the much-maligned folks that seek employment at non-union shops for the express purposes of unionizing the company’s workforce. They have the protection of the NLRA, according to the Supreme Court (well, the old one at least), but now the Board has changed the burden of proof in cases where companies refused or fired a salt. From now on (if that phrase is ever applicable to the NLRB), if a salt is going to get back pay for a company’s refusal to give him a job, his union will have to prove that he was planning to stay after he was done, ahem, “seasoning”.

The salting process is typically thought of like this: the union assigns a salt to a particular company. The salt then applies to the company, who either hires him or turns him down. If the salt gets hired, he attempts to unionize the company’s workforce and then moves on to another company as assigned by the union. If the employer refuses to hire a salt, or fires him when they find out why he’s really there, the salt files a refusal-to-hire or unlawful discharge claim with the NLRB, bringing the company’s non-union stance into the fore.

It is deception at its greatest, as far as most non-union companies are concerned. But to the unions, salting may represent their only real chance to gain access to a closed shop.

So, here’s the situation – When an employee is fired, or wrongfully refused a job, he or she is entitled to backpay for the period starting at the employer’s unlawful act (the firing) and going until the act is remedied, usually by an offer of reinstatement. The presumption was that, if hired or retained, the employee would have continued working at the shop for an indefinite period of time. The burden is squarely on the employer’s shoulders to prove why that isn’t the case.

In ’95, the Supreme Court held that salts are protected employees under the NLRA. That means that refusing to hire one of them, or firing one of them, should carry the same consequences as any other employee, right? Here’s where we pick up our most recent Board decision, already in progress:

The Board, in Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118, decided that – for salts – the backpay presumption just doesn’t work. According to the Board, “rote application of the presumption has resulted in backpay awards that bear no rational relationship to the period of time a salt would have remained employed with a targeted nonunion employer.”

The majority (it’s a 3-2 decision) admits that there are times where a union could leave a salt in his position after the salting campaign, but claims that it should be the union’s job to prove it – not the employer’s to prove the salt would leave.

What’s the problem with all of this? Well, according to the dissent, the biggest problem is that nobody asked the Board to reconsider the issue. So, in the face of a Supreme Court decision, and without prompting from any of the parties, the Board has turned 180 degrees in its treatments of salting campaigns. It’s telling that, in referencing the Supreme Court’s holding that salts are people too (to paraphrase a little), the majority makes it clear that SCOTUS displayed “considerable deference accorded to the Board's interpretation of the Act”. I was trained in my labor law class to take this as a sign to the Circuits that they should reconsider the issue. Is the Board trying to fire a case up to the Supremes now that their ranks have shifted?

So, now here’s the question – is the change in policy justified? Given the nature of salting, isn’t it better to presume the employee is temporary? It is a pretty big burden on the employer to prove a negative, but they still have to do it in wrongful discharge cases of non-salt employees, so is that really a good justification for the change?

Oil Capitol - via Law Memo

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So it begins...

I have been trying all day to figure out how to appropriately open CE's doors - what first post would really capture the purpose and importance of what we're trying to do here, and I had come up with zero. Then the Chicago Tribune did all my work for me.

Right on the front page of the Business section was this article. It details how the Senate's energy bill (requiring all vehicles to average 35 miles per gallon by 2020) may be the final straw for a few key truck- and suv-manufacturing plants. According to the article, the current law has different requirements for cars than for trucks and suv's.

The thing that struck me was that the UAW is supporting an alternative measure in the House that would raise the corporate average fuel-economy rating to 32-35 mpg by 2022. A little better, right? Wrong, say the workers at the plants that might close. They produce a product that currently gets 16 mpg. So even the plan their union supports wouldn't keep them in their jobs.

The article outlines some workers and former workers - all of whom are supplementing their income. One guy installs solar panels, but says business is "kind of slow". A retired employee is working at a food processing plant, where he makes $15/hour. "A far cry from the $27 that GM paid."

With negotiations between the UAW and the Big 3 looming, does anyone think the issue of fuel economy will even have a minute's worth of debate? Probably not. Plant closures are nothing new these days, and there are a lot of other issues that will take precedent at that table (retiree benefits, anyone?). So, what about this article makes it opener-worthy? Well, nothing - on it's own.

It's just that, for some reason, the Trib posts its almanac and obituaries in the inside pages of the Business section. So, right across the page, as I'm finishing the UAW article, tucked away on page 3, in tiny font, is the following:

ALMANAC, published July 5, 2007...
In 1935 President Franklin Roosevelt signed the National Labor Relations Act, which authorized labor to organize for the purpose of collective bargaining.

Hmm. It has been a long 72 years since the NLRA came into being. Now, the unions are finding themselves conceding hard-won benefits to their employers just to keep the businesses - and in the case of the UAW, the whole industry - afloat. It seems every modern movement, from globalization to universal healthcare to, apparently, environmentalism is affecting the Union's (capital U) chance for survival as an effective way to do business. The future of the labor movement is unstable, and creative solutions are few and far between.

Is the movement in flux? Or is this the end of an experiment that began with that Almanac entry? Our best attempt at finding answers starts here, in the comments. See you there.

Chicago Tribune: M.P.G. bill could cost UAW jobs
Almanac - July 5, 2007

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