Comments on: Labor and employment roundup

By: Mike

Mike — Thu, 01 Oct 2015 14:05:15 +0000

Mr. Hoey, heal thyself:

You claim “By the by, the Federal Government is the “state” in certain contexts”

In the context I addressed, the federal government is not “a state.” To put it in words you might understand, there is a difference between “the” and “a”.

The word “is”, however, is still up for grabs.

By: Chris Hoey

Chris Hoey — Tue, 29 Sep 2015 19:10:14 +0000

The burden of proof does fall on the one asserting he or she engaged in a failed attempt at concerted activity, and the rule is a preponderance of evidence, as I recall. I was assuming the evidence supports a finding of the failed attempt. A self serving declaration should not satisfy the burden, although I’ve come across some ALJ’s who might feel otherwise. Given the Board’s predilection to find against employers in such cases, the burden is not insurmountable.

By: MattS

MattS — Mon, 28 Sep 2015 22:34:28 +0000

In reply to Chris Hoey.

“I clearly said a “failed effort effort to get others to act in in concert” is a protected activity.”

And the burden of proof should be on the employee to show that there was some effort at concerted activity. He should not be allowed to simply act on his own and claim he is acting on behalf of his fellow employees. He should be required to present evidence of explicit positive efforts to get other employees involved.

“By the by, the Federal Government is the “state” in certain contexts”

US federal law never uses the word “state” to refer to the federal government. The only context in US law where “state” can reasonably read as referring to the federal government is in a foreign relations context.

By: Chris Hoey

Chris Hoey — Mon, 28 Sep 2015 20:58:31 +0000

Nonsense, Mike, you distort my comment. I clearly said a “failed effort effort to get others to act in in concert” is a protected activity. You made up the quote you used by omitting “effort.” To put it in words you might understand, if an employee says to his colleague, “Let’s start a union here,” and the colleague rebuffs him, ending his efforts at unionizing, his employer can not fire him for his failed effort. That is Labor Law 101. There was no concerted activity per se, rather it was a failed attempt at same.
(By the by, the Federal Government is the “state” in certain contexts, but what SCOTUS did in ACA was a stretch. Remember the quote attributed to Louis XIV, “L’etat, c’est moi!” He was referring to the nation of France as the state in that context.)

By: Mike

Mike — Mon, 28 Sep 2015 14:04:11 +0000

Mr. Hoey:

a “failure to engage in concerted activity” equals “concerted activity” in the same way that “an exchange established by the federal government” equals “an exchange established by a state.”

By: Chris Hoey

Chris Hoey — Sun, 27 Sep 2015 18:50:56 +0000

The NLRB decision is not as far out there as you imply. The Act protects concerted activity, and even failed attempts to engage in such conduct. A failed effort to solicit concerted activity is protected. If employee A asked others to go with him and ask the boss for an raise, and they all turn him down, it would seem his actions were protected, even if he failed. Thus, if an employee files a law suit in an effort to benefit him and the others, even if no one joins him, it is arguably protected. Protected concerted activity has always been broadly construed, so as to encourage employees to engage in same. The same would apply to an attempt to start a dialog on a social network, even if it fails, so long as the appeal fits within the definition of “terms and conditions of employment.” Thus if a disgruntled employee complains about his job conditions, and fails in his effort to get others to join in, it can be strongly argued his action was a failed effort to get others to act in concert, hence entitled to protection.

By: jesse Spurway

jesse Spurway — Fri, 25 Sep 2015 14:38:14 +0000

“Austin’s new ban ”
Maybe this is one attempt to control people dumping stuff on vacant property.

By: Mike

Mike — Fri, 25 Sep 2015 14:05:34 +0000

Re-the $15 an hour minimum wage for tipped employees:

I doubt very much that bartenders/waitresses making good money (most of it in cash) would be in favor of this proposal… But who cares about them?

The real purpose of this is to allow the union to take its cut of the workers wages directly from the employer.