Why Weingarten?
In its now famous decision in Weingarten v. NLRB the United States Supreme Court held that, under the National Labor Relations Act, employees who are represented by a Union have the right to Union representation at a disciplinary interview with management. Over the years since Weingarten became law in 1975, the principles of Weingarten have also been adopted into all of the public labor relations statutes that apply in California. This means that, in California, both private and public sector employees, who are represented at their work site by a Union, have the legal right to demand the presence of a Union representative when they are called in for any type of meeting with management that may result in discipline against the employee.
During the many years I have had the honor and pleasure of representing labor Unions and their members, I have encountered numerous situations in which a Union member has asked the question “why Weingarten?” Usually, this inquiry arises because the member believes that he/she can handle any meeting with management on their own and that the presence of the Union representative would only “interfere” with the process. After all, I have come to learn that many employees trust their managers to “do the right thing” and, because many employees believe they are “friends” with management, no ill will come from a meeting just between the employee and her/his supervisor or manager.
SB 863 Workers’ Compensation Update
Below are the important changes that you need to know regarding SB 899 and the new SB 863 workers’ compensation reform. The workers’ compensation law is full of pit falls and traps for the unknowledgeable worker. Miss a deadline and your claim may be over. Before you are injured, know your rights!
Temporary Disability: For injuries occurring on or after 4/19/04 through 12/31/07, SB 899 imposes a two year “hard cap” for temporary disability from the first date of TD time. For injuries on or after 1/1/08, the injured worker can receive TTD for 2 years within a 5 year period.
Permanent Disability: SB 899 and SB 863 require the use of AMA Guidelines/loss of earning capacity to determine the level of permanent disability. The general rule is that the AMA Guidelines will apply to injuries occurring after 1/1/05; however, there are situations in which the Guidelines will be applied retroactively despite the date of injury.
SB 899 allows an Award to be decreased by 15% if the injured worker returns to work for the same employer provided that the employer has 50 or more employees. The Award is increased 15% if he/she does not return to work because of the injury.
LA LERA PERB Event Post Coverage
We are pleased to report that we had a very successful turnout for the PERB update event held at Local 80. About 30 union and management members attended the event. PERB General Counsel Suzanne Murphy and Associate General Counsel Wendi Ross were well received!
Many thanks to Tony Butka for his efforts in making this a successful event!
THE NLRB GETS CANNED
In January 2012, President Obama used his powers of recess appointment to select Richard Griffin and Sharon Block as members of the National Labor Relations Board. President Obama was forced to use his recess appointment powers as the Senate Republican minority had filibustered his nominations of Griffin and Block. But, in January 2013, decision in a case called Noel Canning v. National Labor Relations Board, the U.S. D.C. Court of Appeals may have just “canned” a very pro-worker Labor Board.
At the time, it was vital that the President get at least two more members appointed to the Board. This was so because in a decision called New Process Steel, the Supreme Court had ruled that the Board had to have a quorum of at least three members in order to transact business and issue case decisions. Had President Obama not appointed Griffin and Block through the recess process, the Board would have only two members and, for intents and purposes, issued decisions (as well as clear up a huge back log of cases that needed to be revisited due to the New Process Steel decision).
Controversy over these appointments immediately erupted, with the Republicans, as usual, crying foul. They claimed the Senate had been conducting “pro forma” sessions during the December 2011/January 2012 recess, so the Senate was not “actually” in recess. Republicans and anti-labor forces in the business community vowed to challenge the Griffin and Block appointments in Court.
Over the next year, Griffin and Block - along with the two full-term NLRB appointees (Chairman Mark Pierport and Board Member Michael Hayes) - proceeded to issue numerous and important decisions over the course of 2012. These included decisions involving employee protected activity and social media, union’s access to certain information when investigating discipline against employees (so-called “confidential” witness statements), clarifying what “Beck” objectors can be charged for when they pay representation fees as opposed to full union dues, clarifying the legality of employer rules that apply to electronic communications, etc. Employers, of course, claim that these decisions were “pro-union;” to most of us in the labor community, these Board actions were just common sense applications of the National Labor Relations Act.
The anti-union/anti-Board business interests and the Republican minority in the Senate got their chance to take their constitutional question to the courts in a case called Noel Canning v. National Labor Relations Board. In the Noel Canning case, the employer (Noel Canning), along with help from the Chamber of Commerce and the Republican senatorial minority argued that the appointments of Griffin and Block were unconstitutional because the Senate was not “actually” in recess when the President placed them on the Labor Board.
In a decision of far reaching constitutional application, the D.C. Circuit Court of Appeals sided with the Senate Republicans. Not only did the Court find that the Senate was not in “recess” when the President placed Griffin and Block on the Board, it also went further: the Court held that not only must the Senate be in an actual “recess” when it exercises the power of a recess appointment, but that the vacancy itself also must occur during the recess. The Noel Canning v. National Labor Relations Board decisionessentially has done away with the notion that a President can make and run around a Senate filibuster, blocking one or more of her/his appointments, by making a recess appointment.
Putting aside the constitutional implications, the Court’s ruling does severe damage to the stability of the law under the National Labor Relations Act. This is so because all of the decisions issued during the past year by the Board are potentially not enforceable. This may mean that the Board, once again, has to go back and revisit all of these decisions: if new members have to be appointed at the Board, there is no certainty that they will decide those cases the same as when Griffin and/or Block were part of the majority on those decisions. In turn, this means that many of the rules that apply under the Act are now open to question and that every case decided by a majority of the Board that included either Griffin or Block will be open to attack in the courts as well.
This is not good news for unions or employees. We need a stable and functioning Labor Board that can interpret and apply the Act and to protect workers’ rights to organize and engage in collective/union activity. We know that the Republicans will continue filibuster Griffin and Block if they are re-nominated by the President; they would do the same thing to any nominee of the President who is “pro-union” or “pro-worker.”
The Republicans may just have been very successful in “canning” what had been, up to now, a very effective Labor Board…
— Written by Attorney Lewis Levy
Photo credit: nbcnews.com
Let’s talk workers’ compensation! Did you know there are five basic types of workers’ compensation benefits available to injured workers, depending on the nature and severity of the injury?
1) medical care
2) temporary disability benefits
3) permanent disability benefits
4) vocational rehabilitation services
5) death benefits
Infographic credit: http://ehstoday.com/
We would love for you to attend! Please RSVP to butka2@yahoo.com.
We have a new office, so please update your records accordingly!
Who is the person helping you out at Walmart? Are they too seeking a liveable wage? Do they too have a family they must feed and sustain?
These are important questions to pose to consumers that continue shopping at Walmart. Ignorance is not bliss, particularly when others are severely affected by our idleness.
CC: Organization United for Respect, UFCW, Making Change
Obama’s Health Care Law
Yesterday, President Obama’s health care law was saved from being relegated to the dustbin of history by the unlikeliest of heroes: erstwhile Conservative golden-boy John Roberts. And he did so on the unlikeliest of grounds, holding that the individual mandate at the heart of the law was a “tax,” and thus a valid exercise of Congress’s authority under the Taxing and Spending Clause of the Constitution. To be sure, Chief Justice Roberts’ exceedingly narrow reading of the Commerce Clause and newly imposed limits on the Congress’s spending power should give pause to those who believe that the federal government has, and needs, broad power to pass social welfare Legislation. But, for today, supporters of Obamacare can breathe a deep sigh of relief and carry on the fight to achieve universal health care.
LA Trade Tech College Recap
Yesterday, Levy, Ford & Wallach labor attorney Daniel Barth taught a Labor Studies class at Los Angeles Trade Tech College. He discussed the legal protections afforded to workers under the California Labor Code, which include laws and regulations related to the minimum wage, meal and rest breaks, overtime, late payment of wages, and non-payment of wages. Daniel also reviewed the California Fair Employment and Housing Act which prohibits discrimination based on race, national origin, sex, sexual orientation, religion and disability, and bars retaliation against employees who complain about any of these forms of discrimination.
