Guest blogger: Steven M. Chanley

Chamber of Commerce v. Lockyer (9th Cir.)

The Ninth Circuit Court of Appeals struck down on NLRA preemption grounds a California statute that forbids a recipient of state funding from using any of those funds to promote or deter union organizing. Although somewhat facially neutral, the problem was that, in practice, the statute had a disparate impact on an employer’s right of free speech as to matters falling within the NLRA’s coverage. Accordingly, the statute was found to be preempted under both the Garmon and Machinists preemption doctrines.

Comment: Another example of the NLRA forbidding states from putting their thumb on one side of the scale or the other in matters of unionizing. Isn’t it best just to leave such matters to a well-informed employee electorate, whose personal rights are at stake anyway?

Nathan Newman has a first look a t Judge Roberts’s labor law record here. (Warning: non-objective commentary follows). Roberts will get through comfortably, I’d bet on it.

I apologize to my few readers for my total lack of posting the last few weeks. I’ve still been checking for new developments in the Courts and Legislature, but honestly, due to an emergency at work, I haven’t been as diligent as I could be.

The Bee has a good article on the labor meeting going on. I think there will be interesting developments.

As what I had expected to be the labor war of the decade (even if it’s not exactly what most people think of when they think of unions), the NHL cancelled its season. At the 11th hour, the player’s union split and one faction buckled to accept a salary cap. Even still, the two sides couldn’t seal the breach. The NY Post’s (ironically) Larry Brooks has been saying this was management’s strategy all along: to force an impasse. The problem there is, except in Alberta, impasses don’t work the way the do here–you can’t have replacements. That would mean that Toronto and Montreal would not be in the league. That won’t work–would it?

The Contra Costa Times reports—the article frames the contract as less than perfect, but, of course, this one was reached without a nearly 5 month-long strike.

The Los Angeles Times notes that SBC is bringing back traditional pensions.

CLEL also notes that there haven’t been any interesting employment law cases out of California courts for a while, but, if you’re interested Kim at the UCL Practitioner is tracking the day-by-day evolution of Proposition 64.

Academic student employees at the 23 California State University campuses will
stage a one-day strike today over unresolved labor issues.

The Chronicle reports. The NLRB’s recent ruling in NYU. does not apply to state employees.

So, the lockout ends in San Francisco. Thanks guys. No way you could have gotten that done in time for my conference? (= Those scab maids had no idea how to do a room. Seriously. Apparently, the honchos at the management companies agreed. [No, of course I don't seriosly expect any of this done on my timetable.]

Workers’ Comp judge files a workers’ comp case after death threat. Cue Alanis. It’s ironic. The Sacramento Bee reports.

California’s 150 workers’ compensation judges are six times more likely to file on-the-job injury cases than their judicial counterparts in state government, a Bee investigation has found.

Six times more? Attention appeals court judges: file claims for tongue whiplash after intense colloquy. Is that amount attributable to just knowing their rights alone? Do Superior Court judges not know their rights?

The Fresno Bee reports:

The California Nurses Association, which represents about 300 nurses at University Medical Center, delivered the 10-day strike notice to hospital officials late Friday. The advance notification, required by law, was delivered not long after contract negotiations between the two sides concluded earlier in the day. The two sides have been trying to come to a contract agreement for more than a year.

In the California Journal, this article discusses the trends in union membership and other changes over the years.

Wow.

San Francisco Mayor Gavin Newsom threatened Monday to join hotel workers on their picket lines today unless hotel owners end a four-week lockout and allow employees to return to their jobs for a 90-day cooling-off period.

The San Francisco Chronicle reports.

The Governor did not veto a bill (AB 1825) requiring sexual harassment training for supervisors in companies with more than 50 employees. It does not go into effect until 2006. [CLEL notes that anyone expecting a veto on this one only need look back to the recall campaign - does he really want to revive the groping meme? Plus, how many companies with 50 or more employees aren't already doing this? Apparently not enough for Gov. Schwarzenegger to think this is a "job killer."]

Back to the front … in San Francisco, the hotel strike continues, as the SF Chronicle reports. You’ll never guess what the sticking point is. . .

The hotels have asked for a five-year contract that would sharply increase
workers’ health insurance premiums. The union wants a two-year contract that would expire in 2006, which would synchronize its next round of negotiations with talks in other cities.

Health insurance? I can’t imagine that. CLEL doesn’t have a solution for this, but recognizes one is needed!

The SF Chronicle reports.

In the ongoing hotel/worker labor dispute, the hotels have locked out the laundry worker. The LA Times reports.

NLRB may rule ahead of the election on card-check certifications. The LA Times reports.

Norcal grocery negotiations are ongoing, looking to avoid Socal situation. The San Jose Mercury News reports.

The San Diego Union-Tribune reports on the on-going problem of workers returning from Iraq to find their jobs gone.

The rest of the country is having issues with the new OT rules. The WSJ (sub. req’d) reports.

And, the most important issue facing the Governor this month: The Ferret Liberation Act of 2004!

I was going to say century, but that would really be stretching it. Plus, I know that professional athletes hardly conjure the labor strife of 100 years ago, but the NHL battle coming up may have a touch of everything.

I have to admit, though, that the NHL labor talks are extremely high stakes. Literally–not rhetorically–the future of the league is riding on the outcome.

Yet another round of talks are going nowhere. The owners’ stategy has been suggested to be to aim for a labor impasse and unilaterally impose their hard cap next year. The current CBA will expire one day after the World Cup finale, on 9/15.

If you are unfamiliar with the NHL labor dispute, it’s a little more complex than the usual millionaire versus billionaire conflict of major sports. First and foremost, the NHL’s popularity has plummeted in the last ten years. Teams have been added in areas where hockey is not a traditional sport, instead of putting more teams where it’s sure to be popular. There have been several bankruptcies of late, yet no contraction.

Since CLEL purports to track California labor law issues, it’s worth pointing out that the California teams have been very successful of late. San Jose was in the final four this year, and Anaheim went to game 7 of the final before losing. But they haven’t had the attendance you might expect from championship caliber teams.

CLEL will continue to follow this brinksmanship.

The Court of Appeal held that just because plaintiff alleged that he engaged in what might be termed “concerted activity” (and therefore subject to the NLRA) when he tried to discourage fellow employees from going along with a fraudulent business practice, because interpretation of the CBA was unnecessary, that a cause of action for termination in violation of public policy could stand.

Judgment in favor of Defendant is REVERSED and the case is REMANDED.

Yesterday, the Fed hiked the federal funds rate 0.25% to 1.5%. CLEL was stunned. The Fed states that its decision is based its observation that oil prices, and not a fundamental problem with the economy’s growth caused the recent employment number. The WSJ reports (sub req’d.)

In other news:

The LA Times reports that LA Hotel workers are requesting a federal mediator.
The LA Times reports that a Wal-Mart is alleging a UC study was Union funded.

On a slightly different note …

The NHL is having its own labor woes. After a lockout shortened the 1994-5 season to just half a season, they parties are back at it this year. The players refuse the league’s demand of a salary cap. NHL players earn 76% of revenues in salary, higher than any other major sporting league in the US. The latest talks today went nowhere, the AP reports.

(There are three NHL teams in California. The San Jose Sharks, Western Conference Finalists in 2003-4, the Anaheim Mighty Ducks, Western Conference Champions in 2002-3, and the Los Angeles Kings.)

The Los Angeles Times reports that the NLRB has thrown out a vote to unionize by nurses at Cedars-Sinai Medical Center because of intimidation tactics.

The Sacramento Bee reports :

Four Northern California supermarket chains and Local 588 of the United Food and
Commercial Workers are scheduled to resume labor talks Monday, while the union’s
members continue to work under terms of a day-to-day contract extension that so
far has averted a strike.

• The Sacramento Bee has a report on the effect of the SB 769(aka “Sue Your Boss” or “Bounty Hunter” statute) compromise in the budget (which has passed the Assembly).

The compromise forbids employees from filing lawsuits against companies that do not post signs explaining workers’ rights. The exceptions are posters regarding payroll and worker-injury laws.
For more serious problems, including violations of the wage and hour laws, a worker can still sue - but the employer is given a grace period to fix the problem first. The worker must inform the employer and the state of the problem, and if nothing’s done, the worker can go to court. Depending on the type of violation, the grace period can last 150 days, Dunn said.

According to the report, this is a version of Dunn’s own amendment to SB 769, SB 1809.

• The San Jose Mercury news reports less than half the anticipated number of workers have taken advantage of the Family Leave Act.

• Ralph’s apparently hired back some of its striking workers during the strike, the OC Register reports.

The allegations were first raised by the United Food and Commercial Workers union, which sued Ralphs in January, alleging that the company had illegally rehired more than 200 employees under false names and Social Security numbers after the workers were locked out in October.
Ralphs later confirmed that it was cooperating with a U.S. Justice Department probe of the allegations and that a federal grand jury had been convened to hear them.
The union’s suit was dropped as part of the February settlement that ended the lockout. However, a National Labor Relations Board inquiry into the allegations is continuing.

The fallout from the grocery strike continues…

The San Diego Union-Tribune has this report:

About 500 Teamsters yesterday struck the Coca-Cola Bottling Co. of San Diego after four months of negotiations failed to achieve a new union contract. The key issue in the dispute is health care costs for workers, the union said.>

Yet another strike over health care costs.

A lawyer hired by a union to represent one of its members in an arbitration hearing cannot later be sued by the worker for malpractice because the federal Labor Management Relations Act effectively immunizes the lawyer from such a claim, the 3rd U.S. Circuit Court of Appeals has ruled.

The Legal Intelligencer has this report.

Last week, the NLRB handed down a decision reversing their decision in NYU holding that graduate students are “employees” at private universities (NLRA doesn’t cover state employers.)

The central rationale seems to be that the relationship between students and the univeristy is “educational” and not “economic.” (Does this problematize post-doc fellowship appointments, etc.? are professors on tenure-track “primarily economic” in their relationship vis-a-vis a university?)

LA Times reports labor contract talks between industry and labor broke down last weekend. At issue: internet software that allows customers to bypass the clerks.

The last port shutdown cost billions of dollars and has vast ripple effects.