Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Ross Runkel’

NLRB's Recent Significant Decisions

Thursday, January 3rd, 2013

The NLRB in the past few weeks made public a number of significant decisions, most reached in the final days of the term of Member Brian Hayes, which ended on December 16. The Board continues with three members, Chairman Mark Gaston Pearce and Members Richard F. Griffin, Jr. and Sharon Block.

The decisions touch on a variety of issues including social media postings, charter school jurisdiction, backpay awards, the chargeability of certain union lobbying expenses, and an employer’s responsibility to continue dues collection after the expiration of a contract.

Hispanics United of Buffalo
The Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.

Alan Ritchey, Inc.
In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.

Latino Express
In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.

Chicago Mathematics & Science Academy
Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.

United Nurses & Allied Professionals (Kent Hospital)
The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.

WKYC-TV, Gannet Co.
Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented.

This post was originally posted on LawMemo on December 21, 2012. Reprinted with Permission.

About the Author: Ross Runkel is the President and Editor of Law Memo. Ross Runkel spoke at the Washington State Bar CLE on Alternative Dispute Resolution on Arbitration: 9th Circuit and Supreme Court Update and Commentary, on September 26, 2008. He was also the lead-off speaker at the Texas District & County Attorneys Association Civil Law Seminar on Recent Trends in National Employment Law, May 16, 2007. Finally, Ross Runkel spoke at the State Bar of Texas Labor & Employment Law Section Annual Update & Skills Conference, on October 7, 2006. 

Employee Bathroom Surveillance Camera, Although Faulty, Could Be Invasion of Privacy

Wednesday, December 28th, 2011

Ross_Runkel_aYou can’t think this up: Bathroom surveillance camera.

Koeppel v. Speirs (Iowa 12/23/2011).

Koeppel sued the employer for invasion of privacy and sexual harassment. The trial court granted the employer’s motion for summary judgment. The Iowa Court of Appeals affirmed on the sexual harassment claim and reversed on the invasion of privacy claim. The Iowa Supreme Court affirmed the court of appeals.

The employer placed a camera in the unisex bathroom. The issue of first impression, proof necessary to establish unreasonable intrusion of the invasion-of-privacy tort, required the court to develop a standard for the jury to apply in determining when electronic devices intrude into privacy.

Nationally, courts are divided on whether installation of surveillance equipment in a private place or whether actual viewing and/or recording triggered the intrusion.

The Iowa Supreme Court determined that a standard involving installation was more consistent with the spirit and purpose of the protection of privacy. Because the parties disputed whether the equipment was capable of exposing Koeppel’s activities in the bathroom, the court stated that evidence the camera was capable of operation and had operated in the past from a different location in the office met the standard.

The court concluded, “[a]n electronic invasion occurs under the intrusion on solitude or seclusion component of the tort of invasion of privacy when the plaintiff establishes by a preponderance of evidence that the electronic device or equipment used by a defendant could have invaded privacy in some way.”

This blog originally appeared in LawMemo: First in Employment Law on December 27, 2011. Reprinted with permission.

About the Author: Ross Runkel is founder of LawMemo, is Professor of Law Emeritus at Willamette University College of Law. He has spent 35 years specializing in employment law, employment discrimination, labor law, and arbitration.

Supreme Court of the United States to Hear "Ministerial Exception" Case

Friday, April 8th, 2011

Ross_Runkel_aMarch 28, 2011, the US Supreme Court granted certiorari in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC to decide whether the “ministerial exception” applies to teacher at a religious elementary school.

[Details, briefs]

The Equal Employment Opportunity Commission (EEOC) sued the employer, asserting a retaliation claim under the Americans with Disabilities Act (ADA). The trial court dismissed the claim, based on the “ministerial exception” to the ADA. The 6th Circuit vacated the trial court’s dismissal.

The ministerial exception is codified in the ADA (42 USC Section 12113(d)), but it is rooted in the 1st Amendment and has been applied to Title VII and other employment discrimination statutes. The EEOC’s claim arose from the discharge of a teacher from a sectarian school, and the primary issue on appeal was whether the teacher was a “ministerial” employee subject to the ministerial exception. The 6th Circuit noted that “[t]he question of whether a teacher at a sectarian school classifies as a ministerial employee is one of first impression for this Court.”

The 6th Circuit observed that “the overwhelming majority of courts that have considered the issue have held that parochial school teachers … who teach primarily secular subjects do not classify as ministerial employees for purposes of the exception.” The 6th Circuit also observed that “when courts have found that teachers classify as ministerial employees for purposes of the exception, those teachers have generally taught primarily religious subjects or had a central role in the spiritual or pastoral mission of the church.” Applying those standards, the court concluded that the teacher at issue did not fall within the scope of the ministerial exception. The court noted that the teacher taught secular subjects, and spent only forty-five minutes out of her seven hour workday on religious-oriented activities. The court reasoned, “[t]he fact that [the teacher] participated in and led some religious activities throughout the day does not make her primary function religious.”

The US Supreme Court granted certiorari to review the 6th Circuit judgment.

Question presented in petition for certiorari:

The federal courts of appeals have long recognized the “ministerial exception,” a First Amendment doctrine that bars most employment-related lawsuits brought against religious organizations by employees performing religious functions. The circuits are in complete agreement about the core applications of this doctrine to pastors, priests, and rabbis. But they are evenly divided over the boundaries of the ministerial exception when applied to other employees. The question presented is:Whether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.

About the Author: Ross Runkel is founder of LawMemo, is Professor of Law Emeritus at Willamette University College of Law. He has spent 35 years specializing in employment law, employment discrimination, labor law, and arbitration.

This blog originally appeared in LawMemo.com on March 28, 2011. Reprinted with Permission.

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