Wrong Tie

Randy Enochs over at Wisconsin Employment & Labor Law Blog posts about a Chicago area car salesman who was recently fired.  Salesman John Stone wore his Green Bay Packers tie on Monday after the Packers 21-14 playoff victory over the Bears.  His boss gave him the chance to either remove the tie or pack it up.  Stone chose to keep it on.  You've got to respect that kind of pride.  Maybe there will be a happy ending when some Green Bay car dealer picks him up for his heroism.  Randy Enochs writes that Stone has no cause of action for a wrongful discharge suit.  Enochs is probably right, but a certain group of Chicago Superfans  make me wonder if the guy has a religious discrimination suit.

SALON/SPA AT BORO, INC, 356 NLRB No. 69 (2010)

Sorry, no exciting Atlantic Steel moments, but this is an interesting protected concerted activity case.  It takes place in an environment not often seen in NLRB volumes: a salon.

A policy against negativity was the "philosophy and vision" of its owner who strove to retain guests by eliminating negative vibes.  The policy actually seemed to lead to more negativity as there were constant accusations that employees and supervisors were being Negative Nelly's.   Witch hunts to find out who was being negative ensued.  Ultimately, the policy and its application were found to be unlawful.  Not featured in my clip, the ALJ addressed a little bit of facebook policy, and so it's a must read for those looking for clues into the future analysis of the NLRB on social media.  Full decision here.

Hudgens v. Prosper Inc. --- P.3d ----, 2010 WL 4840470 (Utah), 31 IER Cases 999, 2010 UT 68

This case strikes me as one of those law school hypos that actually happened.*  It was Philip Miles's "case of the week" for the week of December 10, 2010. http://www.lawfficespace.com/2010/12/waterboarding-fake-mustaches-and-other.html

A sales manager known for drawing mustaches with permanent marker on the faces of employees who missed their sales goals as well as taking away their chairs and pacing the floor with a wooden paddle  has his sales crew hike into the nearby hills for a little motivational exercise...what could go wrong?

The manager (Christopherson) decided to waterboard a volunteer (Hudgens).  "Once on the hill, Mr. Christopherson ordered Mr. Hudgens to lie down, facing up, with his head pointed downhill. Mr. Christopherson ordered other team members to hold Mr. Hudgens down by his arms and legs. Mr. Christopherson then slowly poured water from a gallon jug over Mr. Hudgens’s mouth and nose so that he could not breathe[footnote omitted]. Mr. Hudgens struggled and tried to escape but, at Mr. Christopherson’s direction, the other team members held him down."

Christopherson told the staff that they should work as hard at sales as Hudgens had worked at breathing.

According to the Utah Supreme Court,

"Mr. Hudgens reported the incident to Prosper’s human resources department. Prosper took no action in response to the incident prior to the time that Mr. Hudgens quit working for Prosper. Mr. Hudgens quit working because the waterboarding incident caused him to suffer sleeplessness, anxiety, depression, and to feel sick to his stomach at work. Because of the distress caused by the incident, Mr. Hudgens has undergone psychological counseling and has suffered physical and emotional harm.

Approximately seven months after the incident, on January 15, 2008, Mr. Hudgens filed a complaint against Prosper and Mr. Christopherson asserting four causes of action. First, Mr. Hudgens alleged common law assault and battery against Prosper and Mr. Christopherson. Second, Mr. Hudgens alleged intentional infliction of emotional distress against Prosper and Mr. Christopherson. Third, Mr. Hudgens alleged Prosper and Mr. Christopherson had wrongfully terminated him from his position. Finally, Mr. Hudgens alleged that Mr. Christopherson had intentionally interfered with his contractual relationship with
Prosper."

The district court threw out the complaint for failure to state a claim and denied Hudgens's motion to amend.  The Supreme Court of Utah reversed.  Full decision here.



*The plaintiff's claims were dismissed at the summary judgment level for failure to state a claim, and so the Utah Supreme Court wrote its decision on the basis that the facts as alleged by the plaintiff were true; my summary also makes that assumption.

Make it 5 Stories to Follow in 2011

 4. Republican controlled state legislatures' anti-union efforts
From a recent New York Times Article:
"Republican lawmakers in Indiana, Maine, Missouri and seven other states plan to introduce legislation that would bar private sector unions from forcing workers they represent to pay dues or fees, reducing the flow of funds into union treasuries. In Ohio, the new Republican governor, following the precedent of many other states, wants to ban strikes by public school teachers.
Some new governors, most notably Scott Walker of Wisconsin, are even threatening to take away government workers’ right to form unions and bargain contracts."

 Thanks to Erica Berencsi for forwarding the article.


5.  Union use of blogs in organizing campaigns 
The Word on Employment Law linked to an interesting IBEW story about an anonymously carried out organizing drive that proved successful in a New York can plant. According to the IBEW story:
"Employees reached out to Local 363 last spring for support – but the fear of captive-audience meetings, harassment and other actions by the employer left many at the plant wary of how to press forward without management sidelining their efforts.
 So organizers got crafty and set up a special blog strictly for the 164 employees to debate, strategize, air concerns and ultimately come together for victory, all while avoiding many of the union-busting tactics so common in most campaigns. "
Will we see more of this type of blog-led campaign in 2011? With the rise of the smart phone and tablet, I would think so.

3 Stories to Follow in 2011

I set out to provide 11 stories to follow in '11, but that was a little ambitious. Here are three:

1. NFL and Player's Union Contract Expires in March. This high profile labor-management showdown will bring attention and interest to the world of labor law that has otherwise been sliding for at least a decade. The threat of a lockout is looming, and interest is already rising. The highest profile labor-management conflict of 2010 came in June when 12,000 Minnesota nurses struck; the potential for a lockout of NFL players has already drawn more searches for "NFL Lockout" than the nurses' strike drew for "nurse strike" at its height. Americans (including me) love their football and if they don't get to see football on Sunday (and Monday night) they will want to know why. Whatever happens in this conflict, it will be eagerly watched and highly publicized. The NBA, the NHL and MLB all have contracts expiring this year as well, and so it could be a big year in professional sports bargaining.



2. The EEOC's Credit History Disparate Impact Suit against Kaplan. Employers have increasingly used credit histories and credit scores as a way to screen applicants.  Several states have passed legislation against this practice and more are considering the issue.  The New York Times called the EEOC's suit
"an unusual intervention  by the federal government on the issue."  Because nearly half of employers use credit history in at least some of their hiring decisions, if the suit is successful, it will have a widespread impact. Win or lose, the suit may be a sign that the EEOC is looking to pursue more statistical suits in the future.

3. The NLRB's Posting Rule Proposal. The NLRB has proposed a rule that would require all covered employers to post a notice regarding employee rights under the NLRA. Three reasons to follow this story: First it will be interesting to watch  the NLRB enter into substantive rule-making deliberations, a task from which it has taken a long break (1975). Second, if the rule passes, it will have an impact in the workplace, in the form of more employees knowing their rights and finding their way to the NLRB. How many more? Only time will tell. Finally, this  could be a sign that the NLRB will be proposing more rules in the future.