December 18, 2017

SB 17-055: Prohibiting Employers from Mandating Labor Organization Membership

On January 13, 2017, Sen. Tim Neville and Rep. Justin Everett introduced SB 17-055, “Concerning the Prohibition of Discrimination Against Employees Based on Labor Union Participation.”

The bill prohibits an employer from requiring any person, as a condition of employment, to become or remain a member of a labor organization or to pay dues, fees, or other assessments to a labor organization or to a charity organization or other third party in lieu of the labor organization. Any agreement that violates these prohibitions or the rights of an employee is void.

The bill creates civil and criminal penalties for violations and authorizes the attorney general and the district attorney in each judicial district to investigate alleged violations and take action against a person believed to be in violation. The bill states that all-union agreements are unfair labor practices.

The bill was introduced in the Senate and assigned to the Business, Labor, & Technology Committee. It is scheduled for hearing in committee on February 6 at 2 p.m.

Colorado Court of Appeals: Permanent Injunction Barring Trespass Not Preempted by NLRA

The Colorado Court of Appeals issued its opinion in Wal-Mart Stores, Inc. v. United Food & Commercial Workers International Union on Thursday, May 5, 2016.

Unions—Trespass—Permanent Injunction—National Labor Relations Act—Preemption—Subject Matter Jurisdiction.

United Food and Commercial Workers International Union (UFCW) and Organization United for Respect at Walmart (collectively, unions) engaged in demonstrations at Walmart stores at several locations in Colorado. In response, Walmart mailed a letter to UFCW’s general counsel asking him to direct the unions to immediately cease protesting on Walmart’s property. When the activities continued, Walmart filed an unfair labor practice charge (labor charge) with the National Labor Relations Board (Board), claiming that the unions violated the National Labor Relations Act (NLRA). This charge was later dismissed by Walmart. However, Walmart then filed a complaint for injunctive and declaratory relief from trespass in district court, requesting a permanent injunction enjoining the unions from engaging in certain types of activities on Walmart’s property. The unions filed a motion to dismiss under C.R.C.P. 12(b)(1), claiming the NLRA preemption deprived the district court of subject matter jurisdiction. The court denied the motion and then granted Walmart’s motion for summary judgment.

On appeal, the unions argued that the district court erred in denying their motion to dismiss because Walmart’s lawsuit is preempted by the NLRA. The federal issue in Walmart’s labor charge is unrelated to the trespass issue in Walmart’s state claim, and therefore the controversies are not identical. The NLRA does not arguably prohibit, and thus does not preempt, Walmart’s state claim to enjoin the unions from trespassing on its premises.

The unions also argued that, assuming the district court has subject matter jurisdiction over their activities, it applied the incorrect legal standard and erred by granting Walmart’s motion for summary judgment and permanently enjoining the unions from trespassing at Walmart-owned stores that are subject to Walmart’s nonexclusive easements over the property. The unions contended that because the properties contain nonexclusive easements, Walmart does not have exclusive possession of them and the district court should have required Walmart to show that the unions’ activity unreasonably interfered with Walmart’s use and enjoyment of the property. The unions do not dispute that Walmart possesses and has title to the property in question. Thus, to sustain its trespass claim, Walmart only had to prove that the unions entered its property without its permission. Accordingly, the court did not abuse its discretion by issuing the injunction.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Federal Arbitration Act Provides Interlocutory Jurisdiction in Limited Circumstances

The Tenth Circuit Court of Appeals issued its opinion in International Brotherhood of Electrical Workers v. Public Service Company of Colorado on Tuesday, December 9, 2014.

In 2009, the International Brotherhood of Electrical Workers (Union) and Public Service Co. entered into a Collective Bargaining Agreement covering Union members who were Public Service employees. Public Service unilaterally amended the agreement approximately two years later, affecting prescription drug prices for retirees. The Union followed dispute procedures and eventually demanded that the issue be submitted to arbitration. Public Service refused, so the Union sued the company and asked the district court to stay the proceedings and compel arbitration. The district court denied the Union’s motion, and it appealed.

The Tenth Circuit first questioned its jurisdiction to hear the interlocutory appeal. The Tenth Circuit found that the instant appeal fell within one of the FAA’s exceptions providing for interlocutory appeals pursuant to Tenth Circuit case law and Supreme Court precedent in Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001).

Addressing arbitrability of the issue at suit, the Tenth Circuit determined that the Collective Bargaining Agreement did not cover disputes related to retired workers, only to current employees. The Union argued the district court failed to apply the presumption in favor of arbitrability, but the Tenth Circuit disagreed, finding instead that the court evaluated the presumption and held it inapplicable. The Union also argued that the district court erred by addressing the underlying merits of the dispute, but the Tenth Circuit examined the record and found no evidence of merit review.

The Tenth Circuit affirmed the district court’s order denying arbitration. Judge Hartz concurred with the finding of jurisdiction but dissented with the panel’s finding that the dispute was not arbitrable.

Tenth Circuit: Threat to Hire Permanent Replacements Not Enough to Invalidate Entire Lockout

The Tenth Circuit Court of Appeals issued its opinion in Teamsters Local Union No. 455 v. National Labor Relations Board on Wednesday, August 27, 2014.

Harborlite, Inc. locked out union members during a collective bargaining dispute. Harborlite threatened to hire permanent workers to replace the locked out union members, and the Teamsters brought a claim with the National Labor Relations Board. The NLRB ordered Harborlite not to make future threats of termination and to post a notice to that effect. Teamsters appealed, alleging that the NLRB should have held the entire lockout unlawful and awarded back pay.

The Tenth Circuit first addressed the Supreme Court’s recent ruling in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), and found it had jurisdiction, since the NLRB appointment at issue was made during a Senate recess that was longer than the period specified as problematic by the Court.

Turning to the merits of the appeal, the Tenth Circuit could not support the Teamsters’ contention that the lockout became unlawful when Harborlite threatened to hire permanent replacements. The threat did not cause the Teamsters to change their position, and it was not acted upon. A mere threat and nothing more was not enough to convert an otherwise legal lockout to an illegal one. The petition to review was denied.

Tenth Circuit: Arbitration Award in Favor of Helicopter Pilot Affirmed

The Tenth Circuit Court of Appeals published its opinion in Air Methods Corporation v. OPEIU on Tuesday, December 3, 2013.

This case arose out of an arbitration award granted in favor of a helicopter pilot whom plaintiff Air Method Corporation had terminated following an incident in April 2010. The pilot, Jeff Stackpole, is a member of defendant Office and Professional Employees International Union, Local 109 (“OPEIU Local 109”). Mr. Stackpole was represented by OPEIU Local 109 throughout the arbitration process. After the arbitration award was granted in Mr. Stackpole’s favor, plaintiff filed a complaint against defendants Office and Professional Employees International Union (“OPEIU”) and OPEIU Local 109 in the United States District Court for the District of Colorado seeking to vacate the award. On cross-motions for summary judgment, the district court ruled in favor of defendants, thereby upholding the arbitration award. Plaintiff appealed.

The standard that courts apply to arbitral awards is among the narrowest known to the law. The Tenth Circuit’s review was extremely deferential, and it is with this deference toward the arbitrator’s award that the court considered plaintiff’s appeal.

The court initially considered whether the arbitrator’s award impermissibly altered or removed language from the parties’ collective bargaining agreement contrary to both a provision in the agreement forbidding arbitrators from modifying terms of the agreement and to Tenth Circuit law. Plaintiff argued there were three primary ways in which the arbitrator’s award impermissibly altered, ignored, or removed language from the collective bargaining agreement. The Tenth Circuit found none of these arguments persuasive. First, plaintiff argued the award failed to consider whether Mr. Stackpole’s actions qualified as “serious misconduct” for which “a Pilot may be immediately removed from the payroll and suspended or discharged without pay.” Second, plaintiff argued the arbitrator’s award impermissibly altered the collective bargaining agreement to require a pilot to engage in “willful and egregious” misconduct before he would be subject to immediate discharge. Third, plaintiff argued the arbitrator impermissibly ignored Section 37.3 and effectively removed it from the collective bargaining agreement, with the result that his award was contrary to the express language of the agreement. The court concluded that none of the alleged alterations or omissions of the collective bargaining agreement rendered the arbitrator’s award contrary to the express language of the agreement, nor did they violate the agreement’s proscription against modifying its terms. Therefore, the arbitration award drew its essence from the collective bargaining agreement and was upheld.

Second, plaintiff argued the arbitrator “intentionally disregarded and thus violated the clear, specific language of the contract, and created an escape hatch through which he could dispense his own brand of industrial justice.” However, the arbitrator found Mr. Stackpole had violated a company policy, which was found in the General Operations Manual and was closely related to Federal Aviation Regulations, and subjected him to a six-month suspension without pay as a result. Therefore, the Tenth Circuit held that plaintiff’s argument that the arbitrator ignored provisions requiring pilots to comply with company rules and policies and the Federal Aviation Regulations lacked merit.

Finally, the court held that the arbitrator’s award did not violate a clear public policy.

AFFIRMED.

SB 13-025: Allowing Firefighters to Participate in Collective Bargaining

On Wednesday, January 9, 2013, Sen. Lois Tochtrop introduced SB 13-025 – Concerning Collective Bargaining by Firefighters. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill grants firefighters the right to:

  • Organize, form, join, or assist an employee organization or refrain from doing so;
  • Negotiate collectively or express a grievance through representatives of their choice;
  • Engage in other lawful concerted activity for the purpose of collective bargaining or other mutual aid or protection; and
  • Be represented by their exclusive representative without discrimination.

An employee organization recognized or elected for collective bargaining becomes the exclusive representative of all firefighters for collective bargaining. The bill prohibits a fire department from bargaining on matters covered by the act with any other employee or group. The bill grants the exclusive representative the right to be present and express its views at the adjustment of a complaint made by a member of the bargaining unit without the intervention of the exclusive representative. An exclusive representative may have dues and other moneys deducted from the pay of firefighters who authorize the deduction.

A fire department and an exclusive representative have to bargain collectively in good faith. Any agreements negotiated between an exclusive representative and a fire department, along with any terms approved by the voters of the political subdivision of the fire department, constitute the collective bargaining agreement between the parties. The bill requires the term of a collective bargaining agreement to be for between one and three years unless the parties agree to negotiate and reach a voluntary agreement on all terms of a new contract. The parties have to begin collective bargaining within a specified time after the notice. An impasse is deemed to exist if the parties fail to reach a collective bargaining agreement within a specified time after the beginning of collective bargaining. A collective bargaining agreement may require all members of the bargaining unit, as a condition of employment, to pay the exclusive representative’s fees and expenses in negotiating and enforcing the agreement.

If an impasse exists, the bill requires the parties to allow an arbitration organization to appoint an advisory fact finder to hold a hearing on the unresolved issues and make recommendations on which party’s final offer on each issue should be accepted. The bill specifies the factors that the advisory fact finder must consider. The parties have a specified time to consider the advisory fact-finder’s recommendations and conduct further negotiations. If either party rejects the recommendations, the final offers of the parties on the unresolved issues will be submitted to the voters of the political subdivision of the public employer at a special election.

The bill prohibits firefighters from striking.

Existing bargaining units, exclusive representatives, and bargaining relationships as of the effective date of the bill remain in effect unless modified by agreement or election in accordance with the bill.

Firefighters may conduct secret-ballot elections to certify or decertify an employee organization as the exclusive representative of a bargaining unit.

The bill grants a firefighter or an employee organization the right to sue to enforce the provisions of the bill.

On Jan. 23, the Business, Labor, & Technology Committee amended and approved the bill and moved it to the Senate for consideration on 2nd Reading.

Since this summary, the bill was laid over on Second Reading in the Senate until February 4, 2013.

SB 13-024: Prohibiting Employers from Discriminating Against Employees Based on Labor Union Participation

On Wednesday, January 9, 2013, Sen. Owen Hill introduced SB 13-024 – Concerning the Prohibition of Discrimination Against Employees Based on Labor Union Participation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill prohibits an employer from requiring any person, as a condition of employment, to become or remain a member of a labor organization or to pay dues, fees, or other assessments to a labor organization or to a charity organization or other third party in lieu of the labor organization. Any agreement that violates these prohibitions or the rights of an employee is void.

The bill creates civil and criminal penalties for violations and authorizes the attorney general and the district attorney in each judicial district to investigate alleged violations and take action against a person believed to be in violation. The bill states that all-union agreements are unfair labor practices.

On Jan. 23, the Business, Labor, & Technology voted to Postpone Indefinitely (kill) the bill.

Colorado Court of Appeals: Payments Made to Union President for Services Performed to Union Constituted “Wages” for Purposes of Unemployment Compensation

The Colorado Court of Appeals issued its opinion in Communications Workers of America 7717 v. Industrial Claim Appeals Office on August 30, 2012.

Unemployment Compensation Benefits—“Wages.”

Communications Workers of America 7717 (employer) sought review of a final order of the Industrial Claim Appeals Office (Panel) affirming a hearing officer’s decision determining that claimant was entitled to an award of unemployment compensation benefits. The order was affirmed.

From 2003 until February 2011, claimant worked part-time for employer, serving as union president. He was supervised by employer’s executive board. He also worked full-time for another employer (Qwest).

The hearing officer found that when the union wanted claimant to work on union business during times that he would be working for Qwest, employer paid him the equivalent wage he would have received from Qwest. The officer found employee was separated from this employment when employer merged with another local union chapter. The officer found no reason that claimant should be disqualified from receiving benefits based on the reason for the separation, and no reason that employer should be exempt from paying them.

On review to the Panel, employer argued the money it paid to employee did not constitute “wages” under the statute and that employee still had his full-time job with Qwest and therefore suffered no wage loss. The Panel held the nature of the payments made did not exempt employer from paying benefits and that the issue of ongoing work for Qwest was not properly before it. The hearing officer’s decision was affirmed by the Panel.

On appeal, employer renewed its argument that it did not pay “wages” to employee. CRS § 8-70-141(1)(a) defines “wages” as “[a]ll remuneration for personal services.” The undisputed evidence established that claimant provided personal services to employer by performing work as its president and was remunerated by employer with payments. The Court of Appeals saw no error in the finding that claimant was paid “wages” under the statutory scheme.

Employer also argued that claimant suffered no wage loss because he was still employed by Qwest. The Court agreed with the Panel that this was not properly before it for review. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Disciplinary Matrix Mandatory Subject of Collective Bargaining; Balancing Test Applied

The Colorado Court of Appeals issued its decision in Denver Firefighters Local No. 858, IAFF, AFL-CIO v. City & County of Denver on August 16, 2012.

Preliminary Injunction—Collective Bargaining—Discipline as a Term and Condition of Employment.

Defendants, the City and County of Denver (City) and Alex J. Martinez, the Manager of Safety (Manager), appealed from the trial court’s order granting a preliminary injunction in favor of Denver Firefighters Local No. 858, IAFF, AFL-CIO (Firefighters). The judgment was affirmed.

Firefighters are City employees subject to the supervision and control of the Manager, who is appointed by the Mayor. In 1971, Denver voters passed an amendment to the City Charter granting Firefighters the right to collectively bargain with the City over certain working conditions. The parties have had a collective bargaining agreement every year since the amendment. The current agreement (Agreement) has been in effect since January 1, 2010 and expires on December 31, 2012.

The instant dispute arose from defendants’ proposed unilateral creation and implementation of a discipline matrix for Firefighters, which does not have such a matrix but does have a system for imposing discipline that has been in place for decades. The discipline matrix would change the current system. The issue presented was whether defendants may do so without first negotiating with Firefighters.

In October 2010, the Manager indicated a desire to form a Discipline Advisory Group (DAG) to create a discipline matrix. Firefighters responded that a discipline matrix is a mandatory subject of collective bargaining. The Manager did not reply.

In March 2011, the same sequence of events occurred. In May 2011, Firefighters learned that the DAG had been created and would start holding meetings. Firefighters attended the first meeting to assert that the matrix was a mandatory subject of collective bargaining. Defendants disagreed and continued with their process to create the matrix.

Firefighters then filed this action requesting the issuance of a preliminary injunction. The trial court granted the motion and issued an order enjoining defendants from implementing a disciplinary matrix without first negotiating with Firefighters. Defendants appealed.

The Court of Appeals agreed with the trial court’s conclusion that the proposed discipline matrix is a mandatory subject of collective bargaining. The parties had no previous negotiated provision on discipline, so the Court looked to the Charter. Under the Charter, discipline is a subject of management authority; however, the Charter also makes discipline, as a term and condition of employment, a subject of collective bargaining. Each side argued that the Charter provision upholding their position should control. The Court looked to numerous cases from other jurisdictions and chose to apply a balancing test that weighs the impact that mandated collective bargaining on the subject will have on each of the parties’ interests. If the balance falls in favor of the employees, the subject is a mandatory subject of collective bargaining; if the balance falls in favor of the employer, it is not.

Here, in weighing the impact on each party, the Court concluded that the balance falls in favor of the employee and that discipline thus is a mandatory subject of bargaining. Accordingly, the order for a preliminary injunction was affirmed.

Summary and full case available here.

Tenth Circuit: Arbitrator’s Decision is Due Utmost Judicial Deference and Must Be Upheld Unless Without Any Textual Basis

On March 6, 2012, the Tenth Circuit Court of Appeals issued its opinion in San Juan Coal Company v. International Union of Operating Engineers.

San Juan Oil Company (San Juan) operates a coal mine. Workers are unionized, and the terms of their employment are set forth in a collective bargaining agreement (CBA). The CBA includes a “holdover pay” provision. In an effort to reduce costs, San Juan entered into negotiations with the union to establish new worker schedules, which resulted in a Memorandum of Agreement (MOA). A month later, the Union filed a grievance, arguing workers were wrongfully denied holdover pay under the CBA.

San Juan and the union entered into a binding arbitration to determine whether certain union members were entitled to holdover pay. The arbitrator concluded the union members were entitled to extra pay. The district court vacated the arbitrator’s award.

Judicial review of an arbitral award “is among the narrowest known to law.” Champion Boxed Beef Co. v. Local No. 7 United Food & Commercial Workers Int’l Union, 24 F.3d 86, 87 (10th Cir. 1994) (quotation omitted), and is entitled to the utmost judicial deference, even if a trial court might offer a more cogent reading of the argument. In reviewing the CBA and the MOA, the 10th Circuit reversed, upholding the arbitrator’s determination, because the arbitrator’s decision had some foundation in the text of the CBA and MOA.

Reversed and remanded with instructions to enter an order of enforcement.

Spark the Discussion: Organize! The Rising Role of Unions in Colorado’s Medical Marijuana Industry

“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

Recently, the United Food and Commercial Worker’s Union, Colorado’s largest labor organization, announced it had unionized its first medical marijuana shop in Denver—with more than a dozen shops predicted to follow suit in the upcoming weeks.

According to Colorado’s UFCW President Kim Cordova, “the Union is committed to representing the hard working and compassionate workers in the Medical Cannabis retail centers and promoting guidelines to safeguard the interests of our members and the communities our members work in.”

What does it mean for Colorado’s medical marijuana industry to have union shops?

Colorado’s newest industry is in a tough position.  It faces near-constant attacks from various branches of the federal government including the IRS, Treasury, and, most recently, the Department of Justice.  Just last month, the United State attorney in Colorado, John Walsh, launched an attack on state-legal medical marijuana providers by sending 23 letters to centers, informing them that that were in areas deemed problematic by the federal government and would have to shut down in 45 days or face property seizure and criminal prosecution.

In the face of these mounting problems, the medical marijuana industry needs allies.  And they have found a powerful one in the Union.

At a basic level, labor unions allow workers to organize and engage in “collective bargaining” to promote better wages, benefits, and working conditions.  There is no denying the vast role that unions have played in positively shaping the American workforce with these organizations leading the charge to end child labor, secure a minimum wage and sick leave, and establish workplace safety measures as far back as the 1800’s.

But perhaps the most important role that unions play is their heavy influence over politics.  Beyond pushing for the interests of workers, unions have long been engaged in successful political campaigns, using lobbying and traditional campaign tactics to ensure the longevity of the industries they represent.  Through sophisticated political maneuvering, labor unions have played a crucial role throughout history in helping to establish and legitimize businesses—a lesson that medical marijuana shops may want to heed.   With the public backing of a state and national powerhouse like the UFCW, these fledgling businesses may be viewed in a new light by legislators, many of whom owe their elections in large part to the political backing of unions.

At the dawn of this new industry in Colorado, having mainstream partners such as labor unions may be crucial to the medical marijuana industry’s legitimacy and, quite possibly, its longevity.

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

HB 11-1320: Prohibiting Collective Bargaining by Government Entities

On May 3, 2011, Rep. Janak Joshi, R-Colorado Springs, and Sen. Bill Cadman, R-Colorado Springs, introduced HB 11-1320 – Concerning a prohibition against collective bargaining by government entities. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill prohibits the state from recognizing any labor union or other employee association as a bargaining agent of any public officers or employees and from collectively bargaining or entering into any collective bargaining contract with any union or association or its agents with respect to any matter relating to them or their employment or service. The bill was introduced on Tuesday and assigned to the State, Veterans, & Military Affairs Committee; that committee approved the bill and sent it to the full House for consideration on 2nd Reading.

Summaries of other featured bills can be found here.