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Labor Relations News Update August 11, 2014

Today’s Labor Updates:
Singapore risks business cred with foreign labour restrictions
Select events and news from the world of organized labor
Copying Your Attorney Isn’t Enough to Protect an Email from Disclosure
Singapore risks business cred with foreign labour restrictions
By Rujun Shen | Reuters – Thu, Jul 31, 2014.
SINGAPORE (Reuters) – Singapore risks tarnishing its business-friendly reputation by implementing new labour laws that require companies to prioritise hiring locals over foreigners for middle income jobs, analysts say.
From Friday, large and medium-sized companies looking to hire workers with a monthly salary below S$12,000 (£5,696) must advertise the positions on a government-run online job database that only Singapore citizens and permanent residents can apply through.
The job must stay open to locals for two weeks before the company is allowed to seek foreign candidates.
Many multinational corporations, from Google and Microsoft to Procter & Gamble and BP, use Singapore as their regional headquarters, attracted by the city state’s political and economic stability, low taxes and ability to attract talent from across Asia and the world.
Foreigners make up around 38 percent of Singapore’s 3.4 million strong workforce and the new rules are the latest in a series of government measures aimed at easing locals’ worries about the growing presence of foreigners on the tiny island.
Concerns about jobs were one of the most prominent issues raised by voters at the 2011 general election, which was the most contested since Singapore’s independence. The ruling People’s Action Party share of the vote also slipped to around 60 percent from 67 percent in the previous election.
Economists said the foreign labour restrictions could tarnish the city-state’s reputation as an open and free economy.
“There is a risk that Singapore might slide down the scale in terms of how open it is,” said Chua Hak Bin, head of emerging Asia economics at Bank of America Merrill Lynch in Singapore.
Ten of 12 recruitment agencies polled by Reuters said filling vacancies has become tougher in the past year, a trend set to continue.
“Singapore’s very strict policy when it comes to hiring foreigners will further exacerbate the skills shortage in Singapore,” said Chris Mead, regional director at recruitment agency Hays.
Several recruiters say they expect a rise in companies moving certain departments offshore, with IT and manufacturing the most likely sectors to be affected.
Credit Suisse has already moved some back-office jobs from Singapore to India and Poland, while Deutsche Bank said in early 2013 that it was considering moving more than 8,000 staff from offices in New York, London, Hong Kong and Singapore to lower-cost locations.
The aviation industry is also struggling with labour shortages and higher hiring costs. “Manpower costs you today in Singapore,” said Barathan Pasupathi, CEO of budget airline Jetstar Asia.
(Additional reporting by Caroline Ng, Anshuman Daga; Editing by Rachel Armstrong and Miral Fahmy)
Select events and news from the world of organized labor
The United Auto Workers (UAW) pledged to form a “voluntary local,” Local 42, at Volkswagen AG’s (VW) Chattanooga, Tenn. plant following its representation election loss in February 2014. Workers who voluntarily join Local 42 may have access to certain union-provided benefits, including insurance discounts or death benefits, but VW cannot recognize or bargain with the local as the representative of any workers absent the local’s attainment of actual majority status. The UAW has stated that voluntary members will not pay union dues until no sooner than 30 days after any such recognition and the subsequent ratification of a first collective bargaining agreement.     
 The Service Employees International Union (SEIU) submitted more than 9,000 signed union authorization cards with the Minnesota Bureau of Mediation Services (MBMS) seeking to represent personal care/home health care workers in Minnesota. About 26,000 of Minnesota’s enrolled 109,000 personal care attendants would be eligible to vote in the SEIU election. MBMS is expected to schedule an election in late summer. The election would take place pursuant to state legislation enacted in 2013, allowing personal care attendants and child care workers to vote on union representation. 
 In their first representation election, a unit of 351 fleet service workers at Frontier Airlines voted to be represented by the Transport Workers Union. About 62 percent of eligible workers voted in the election. Republic Airlines Holdings sold Frontier Airlines to Indigo Partners LLC in December 2013. 
 The United Food & Commercial Workers Union (UFCW) Local 367 is commencing efforts to organize workers of medicinal marijuana facilities in Washington state with the stated purpose of creating regulatory solutions in the industry. The UFCW is also pursuing a broader national organization effort campaign called “cannabis Workers Rising,” which aims to provide professionalism and stability for the industry. 
 The National Treasury Employees Union filed a Federal Labor Relations Authority petition to represent 370 staff working in the Washington headquarters of the 700-person Commodity Futures Trading Commission (CFTC), an agency that polices financial markets. In recent years, the CFTC’s responsibilities expanded under the 2010 Dodd-Frank Act, but worker’s pay and benefits have remained level. 
 More than 160 adjunct faculty at Antioch University Seattle voted in favor of representation by SEIU Local 925. This is the SEIU’s first win in its national campaign to organize adjuncts at a private college or university. 
 Adjunct instructors at the University of St. Thomas in St. Paul, Minn. voted 136–84 to reject SEIU representation in a recent election. At St. Thomas, adjuncts are paid a median of $4,300 per class, approximately $1,600 more than the national average, and the school recently improved wages and offered other fringe benefits. 
 A majority of the 217 eligible Spirit Airlines’ fleet service workers elected the International Association of Machinists as their bargaining representative. Spirit and the union both alleged illegal interference with the election, but both sides have since abandoned their protests. 
 The American Federation of State, County and Municipal Employees’ (AFSCME) claims its grassroots organizing efforts resulted in more than 90,000 new members this year. The grassroots efforts, endorsed at AFSCME’s 41st International Convention in Chicago, included asking councils to recruit non-union co-workers. Approximately 20,000 of those recruited were home health care workers. Also at the convention, AFSCME delegates promoted California’s recent passage of a new law permitting home health aides of the California In-Home Supportive Services Program to earn overtime wages, and asked members to unseat Wisconsin Gov. Scott Walker (R) and Ohio Gov. John Kasich (R) due to their opposition to public sector collective bargaining.
Strikes & Labor Disputes
Los Angeles Mayor Eric Garcetti facilitated a deal between approximately 120 nonunion truck drivers working for Total Transportation Services Inc., Green Fleet Systems LLC, and Pacific 9 Transportation Inc. at Long Beach and Los Angeles ports to end an “indefinite strike” and engage in a cooling off period. The workers agreed to end the strike, which had been ongoing for five days, after the companies agreed to accept them back without retaliation or signing away future rights. The drivers initially went on strike to end alleged unfair labor practices at the drayage farms. This is the fourth work stoppage by drivers from one of the three mentioned companies in the Los Angeles area in the past year. 
 UAW members picketed the UAW International offices in Detroit in response to the union’s failure to unionize VW’s Chattanooga plant. The failed VW organizing campaign will reportedly require a 25 percent union dues increase in Detroit. While UAW leadership denies the claims, union members have been quoted as stating that numerous members are prepared to leave the union. 
 PTC Alliance Corp. locked out 240 members of the United Steelworkers Local 3509 when the parties could not reach a new agreement after bargaining for six weeks. Thirty of PTC’s salaried employees took over the job duties of the union workers. 
 International Longshore and Warehouse Union (ILWU) members have been picketing since February 2013, when they were locked out of the Pacific Northwest Grain Handlers Association (PNGHA) Columbia River terminal after failing to reach a new collective bargaining agreement. On July 6, 2014, inspectors working for United Grain Corp. (one of three companies comprising the PNGHA) at grain ports in a Vancouver, Wash. terminal stopped crossing picket lines outside the terminal. Washington State Patrol troopers were sent to escort the grain inspectors into the terminal, but Gov. Jay Inslee (D) recently stopped the escorts, saying they were not facilitating negotiations as hoped. PNGHA and ILWU are continuing negotiations and calls for federal action have been made to replace the state inspectors. 
 Approximately 1,300 fast food workers at a Chicago-area convention passed a resolution to proceed with additional strikes and civil disobedience actions as part of a campaign to raise the minimum wage to $15/hour. On May 15, 2014, the campaign organized one-day walk-outs in 150 cities. There have been 11 walk-outs since the effort kicked off in November 2012 in New York. Employers impacted by the campaign include, among others, McDonald’s, Burger King, Yum Brands!, and Wendy’s. 
Major Contract Settlements & Negotiations
For all settlements reached through July 21, 2014, Bloomberg BNA data showed average first-year wage increases of 2 percent and median increases of 2 percent, consistent with results over the same period in 2013. The weighted average was 2.6 percent, up from 1.9 percent in 2013. Fifteen percent of contracts settled in the first half of 2014 reported lump-sum payments, down 5 percent from the same time period in 2013. As of July 11, 2014, benefit changes occurred in 44 percent of settlements, 61 percent of contracts altered pension plans, 5 percent called for revised 401(k) plans, and 18 percent of reported contracts report a first-year wage freeze. 
 UFCW Local 293 members ratified a five-year agreement with JBS USA LLC covering 2,600 workers at its beef slaughter and processing facility in Grand Island, Neb. The agreement provides for wage increases, increased employee contributions towards health care benefits, and the provision of a low-cost health care clinic for workers and dependents. Another UFCW local ratified a five-year contract with JBS covering approximately 3,000 Colorado workers. That agreement also provides for increased wages and higher health benefits contribution for workers. 
 Nearly 2,500 Los Angeles International Airport baggage handlers, wheelchair attendants, and cargo workers employed by eight contractors entered into a new collective bargaining agreement, which will run through October 2016. The contract provides a raises of 50 cents to $1 per hour based on seniority. The least experienced workers will earn $9.90 per hour as of July 1, 2015, and $10.15 as of January 1, 2016, while covered workers with more than five years of experience will earn $14.40 per hour, then $15 as of the respective dates. Health care coverage, sick days, and paid vacation terms remain unchanged. 
 A majority of 1199 SEIU United Health Care Workers East ratified a 4.5-year contract with Johns Hopkins Hospital covering more than 2,000 maintenance, technical, and service workers. The contract provides a $13 minimum wage for new workers and a $15 minimum wage for employees with more seniority; all employees receive 2 percent wage increases and a 0.5 percent bonus within 30 days of ratification. Additional wage increases are scheduled in 2015 (2 percent) and 2016 (2 percent), and 2017 (2.75 percent). The agreement maintains existing and calls for establishment of a committee dedicated to the review of pay rates for pharmacy and surgical technical workers.
 After four years of negotiations, the Metropolitan Transportation Authority and the unions representing the majority of Long Island Railroad workers (including International Association of Sheet Metal, Air, Rail and Transportation Workers; Transportation Communications Union; United Transportation Union; Brotherhood of Railroad Signalmen; Independent Railway Supervisors Association; International Association of Machinists; International Brotherhood of Electrical Workers; and National Conference of Firemen and Oilers-Service Employees International Union) reached a tentative agreement, averting a strike that would have shut down the country’s most traveled commuter railroad. The agreement provides for 17 percent wage increases over 6.5 years, and applies retroactively to June 2010. The agreement also includes longer wage progressions and higher pension contributions for new workers and equalizes healthcare contributions across all workers. 
 Macy’s Inc. made a “last, best, and final” contract offer applicable to 1,400 retail workers at three stores in San Francisco, Calif. The UFCW-represented workers rejected the offer and voted to go forward with a strike if negotiations continued to be unsuccessful. Among other things, the union disagreed with a proposal in Macy’s offer that certain workers would no longer receive commissions, but would instead receive an hourly rate determined in part by commissions earned in previous years. The union also seeks higher wages for night shifts. 
 The Walt Disney World reached a 5.5-year tentative agreement with the Service Trades Council, comprised of UFCW Local 1625, Unite Here Local 737, United Here Local 362, IBT Local 385, Transportation Communications Union Local 1908, and the International Alliance of Theatrical and Stage Employees Local 631. The tentative agreement covers approximately 27,000 workers and, among other things, would increase the minimum wage to $9 per hour retroactive to March 30 and provide workers with higher pay rates with 35-cent hourly wage increases. Wage negotiations are subject to reopening after 3.5 years. The tentative agreement contains no increases to employee contribution to health benefits until January 2016, and existing pension benefits are retained. 
 American Airlines and the IAM have entered into three new contracts covering approximately 11,000 employees at US Airways. The contracts cover fleet service, mechanic, and maintenance training specialist employees. The agreements provide for signing bonuses and general wage increases for the majority of covered workers. 
 The League of Voluntary Hospitals and Homes of New York (representing 109 New York non-profit hospitals and medical centers) reached agreement with the SEIU on a tentative four-year contract covering approximately 70,000 non-physician workers. The agreement averted a strike set for the end of July, and provides for wage increases, union organizing at outpatient centers, and a gradual reduction of employer contributions to employee benefits. 
 UFCW members ratified four three-year contracts, applying retroactively to April 2014, with Tops Markets LLC. The agreements cover approximately 13,000 workers in Pennsylvania and New York. The contracts are almost identical and include annual wage increases, annual increases in employer pension contributions, and guaranteed health benefits. 
 Kroger Co. and UFCW Local 75 reached a tentative agreement on a four-year contract covering approximately 16,000 workers in Dayton and Cincinnati, Ohio. The contract provides increased wages, healthcare, retirement security, and seniority/work schedule protection. Currently, there are two separate contracts with Kroger and UFCW Cincinnati (covering 12,000 workers) and Dayton (covering 4,000 workers). This single new agreement replaces the two existing contracts. 
 A Presidential Emergency Board (PEB) issued a report to President Obama regarding a contract impasse between the Southeastern Pennsylvania Transportation Authority (SEPTA), the Brotherhood of Locomotive Engineers and Trainment Division 71 (BLET) and the International Brotherhood of Electrical Workers Local 744 (IBEW). The PEB sided with SEPTA, rejecting union demands for retroactive pay increases and other wage increases. SEPTA and the unions will resume negotiations after digesting the non-binding PEB recommendations. The basis for PEB’s recommendations included that the wage provisions should align with an agreement between SEPTA and the Transport Workers Union Local 234, which provides a 2.78 percent lower wage increase than requested by BLET and IBEW. Additionally, the PEB opined that negotiations would be more successful with a more comprehensive information exchange. 
Administrative, Court & Other Decisions
In a notable decision, the National Labor Relations Board (NLRB or Board) applied its controversial Specialty Healthcare ruling to direct an election for a 41-person group of cosmetics and fragrance sales employees at a Macy’s retail store in Saugus, Mass. Macy’s had argued, among other things, that the proposed unit was inappropriate because it was not “readily identifiable as a group,” did not share a “community of interest,” and would create a “fractured” workforce. The Board, in a 3-1 decision, rejected those arguments and found the unit appropriate under Specialty Healthcare and existing rules for proposed bargaining units in the retail sector. Macy’s Inc. and Local 1445, United Food and Commercial Workers Union. See our client briefing for more details, NLRB Rules That Micro-Unit of Macy Workers Share a “Community of Interest.”
 The NLRB rejected a bargaining unit made up of workers in women’s shoe sales at The Neiman Marcus Group Inc.’s Manhattan Bergdorf Goodman store, finding the unit was not appropriate since it did not resemble administrative or operational employer-drawn lines. The unit at issue was previously deemed appropriate by an NLRB regional director under Specialty Healthcare. Neiman Marcus argued that the unit was “fractured” because it combined sales workers in the “Salon shoes” group and the contemporary shoes section. Neiman Marcus Group Inc. d/b/a Bergdorf Goodman.
 The U.S. Court of Appeals for the Seventh Circuit held that Unite Here may be liable for labor law violations if it engaged in trespassing or harassed secondary organizations. The lawsuit arose when 130 Unite Here Congress Plaza Hotel & Convention Center room attendants went on strike. During the strike, the hotel sued Unite Here for alleged labor law violations and damages under the Labor Management Relations Act (LMRA). Specifically, the hotel alleged that picketers harassed organizations that had reserved space in the hotel, causing some to cancel bookings. Reversing the district court, the Seventh Circuit found a factual determination was necessary regarding whether union behavior, including distribution of literature and threats of disturbance, would qualify as harassment or trespassing. 520 South Michigan Ave. Assoc. v. Unite Here Local 1.
 The Eleventh Circuit affirmed a jury verdict finding that a firefighters’ union in Pasco County, Fla. was liable for retaliation because it had issued a memorandum calling for revenge against two workers who had filed charges with the Equal Employment Opportunity Commission (EEOC) against a former supervisor and the county. The memorandum named the two individuals, discussed the EEOC charges, and discussed the likelihood of increased union fees due to the litigation. The two employees sued the county and the union claiming violations of the Florida Civil Rights Act and Title VII. The jury returned a verdict in their favor, but the judge granted the county judgment as a matter of law, finding insufficient evidence of a retaliatory motive. On appeal, the Eleventh Circuit reversed, finding that the judge had improperly overturned the jury’s verdict. The circuit court also held that the First Amendment did not shield the union’s memorandum because it did not qualify as a matter of public concern. Booth, et al. v. Pasco County, Florida, et al.
 The Fifth Circuit confirmed that a labor arbitrator had the authority to determine what disciplinary action was appropriate where a United Steelworkers/Delek Refining LTD collective bargaining agreement allowed the employer to discipline employees for just cause. The employee at issue was charged with mishandling products on at least four occasions and was warned that any other issues would result in termination. He was eventually discharged in 2008 for ignoring instructions and transferring almost 13,000 barrels of “slop oil” into a refinery tank. The Steelworkers grieved the discharge, arguing the employee had actually followed instructions on that occasion. The arbitrator sustained the grievance, concluding that termination was not appropriate, but rather a two month suspension was justified. The company refused to abide by the arbitrator’s ruling, and the union subsequently filed an enforcement action under the LMRA. The Fifth Circuit concluded that the arbitrator had authority to determine an alternative remedy for contract violations where the contract that gave the employer the ability to institute various disciplinary actions. United Steelworkers v. Delek Ref., Ltd.
 The NLRB upheld an Administrative Law Judge’s (ALJ) finding that Illinois Consolidated Telephone Co. violated the National Labor Relations Act (NLRA or Act) by suspending and firing four Consolidated employees for alleged picket-line misconduct during a December 2012 strike, where the punished employees’ alleged misconduct was not legitimate grounds for discharge or suspension. The conduct at issue included one employee grabbing his crotch and other harassment of nonunion employees, including by “bookending” a manager between cars. The NLRB ordered Consolidated to reinstate the discharged employees and provide make-whole relief. Consolidated Communications d/b/a Illinois consolidated Telephone Company and Local 702, International Brotherhood of Electrical Workers, AFL-CIO.
 An NLRB ALJ dismissed a complaint brought by a former Bubba Gump Shrimp Co. server in Monterey, Calif., ruling that Bubba Gump and parent company Landry’s expired social media policy did not violate the NLRA. Bubba Gump’s social media policy at issue instructed workers not to post information regarding their jobs, the company, or other employees that could create morale issues or negatively affect Bubba Gump’s business. The server alleged that this policy prohibited employees from discussing jobs online, therefore chilling employees’ NLRA Section 7 rights. The NLRB’s Regional Office concurred and filed a complaint. However, the ALJ disagreed with the allegation and found that purpose of the policy was not to forbid speech regarding employment, but, rather to curb morale problems by dictating the manner in which job-related issues could be discussed. This decision appears to be somewhat in conflict with other recent NLRB decisions arising in the social media context, underscoring the fact-specific nature of the issue and the Board’s analysis. Landry’s Inc., et al. v. Sophia Flores.
 The NLRB found that Auto Nation violated the NLRA when an executive threatened the loss of existing benefits at an Illinois Toyota facility during an organizing campaign in order to discourage unionization, and split 2-1 finding that Auto Nation violated the NLRA when an executive unlawfully promised wage increases if workers did not unionize. NLRB Member Philip A. Miscimarra dissented on the second point, finding that the comment at issue was about wanting to address wage issues, not an implied promise to increase wages. The Automobile Mechanics Local 701 (part of IAM) alleged that Auto Nation violated the Act by threatening employees that it would be futile for them to unionize because other workers in Florida had voted for unionization but still did not have a collective bargaining agreement in place three years after unionizing, that employees would lose benefits if they unionized, and that wage increases would be implemented if they did not unionize. Auto Nation, Inc.
 The NLRB will not seek Supreme Court review of the Fifth Circuit’s rejection of the Board’s D.R. Horton ruling, which held that mandatory arbitration agreements that prohibit class actions violate federal law. The Second, Eighth, and Eleventh circuits have also refused to follow the D.R. Horton decision. D.R. Horton, Inc. v. NLRB. 
 The majority of a divided NLRB ruled that UniFirst Corp. interfered with a representation election by leading employees to believe they would obtain 401(k) benefits and profit-sharing plan for decertifying United Steelworker representation. The NLRB found that UniFirst specifically linked the benefits to voting for decertification. Member Harry I. Johnson dissented from the majority’s ruling, finding that UniFirst merely informed employees of “historical facts” about benefits available to unrepresented employees. UniFirst Corp.
 A Superior Court judge in Lake County, Ind. recently upheld the United Steelworkers’ constitutional challenge to the Indiana’s 2012 right-to-work law, which precludes nonunion workers from having to pay union dues. According to the court, the right-to-work law violated the state constitution because it violated a prohibition of demanding services without just compensation. This was the second state court in Indiana to have ruled that the law is constitutionally infirm. In September 2013, another Indiana Superior Court judge held that the law was constitutionally unsound based on services rendered for unjust compensation. The law in that case was challenged by the International Union of Operating Engineers, and it is currently on appeal before the Indiana Supreme Court. United Steel, et al. v. Zoeller, et al. 
 An NLRB ALJ held that Mercedes-Benz U.S. International Inc. could not prevent employees from distributing union literature in an area within an Alabama manufacturing plant that served dual work and non-work purposes. Specifically, the work area in question included computers, offices, and files, but also break paraphernalia such as refrigerators, microwaves, and picnic benches. The ALJ concluded a policy in Mercedes-Benz’s handbook that barred team members from distributing non-work related materials during work time or in work areas unlawful. The ALJ cited Superior Emerald Park Landfill, LLC, for the proposition that the NLRA requires that employers allow distribution in areas that are used for both work and non-work purposes. While there is an exception for mixed-use areas near production facilities, there was insufficient evidence in this case to substantiate this argument. Mercedes-Benz U.S. Int’l, Inc.
 A district judge in New York denied the International Union of Operating Engineers (IUOE) Local 14’s motion for judgment on the pleadings, holding that the LMRA does not preempt New York state law discrimination claims. The court found that rights under the New York City Human Rights Law (NYCHRL) are independent from collective bargaining agreements between city trade groups and Local 14 that require contractors to hire union members. Five minority workers alleged that the union violated the NYCHRL, Title VII, and the Civil Rights Act of 1866 by engaging in a pattern or practice of intentional race discrimination in evaluating prospective members, executing its apprenticeship program and filling requests for city contractor union jobs. Morrison v. Operating Eng’rs Local 14-14B. 
 A Western District of Tennessee court ordered Kellogg Co. to end a nine-month worker lockout at a Memphis, Tenn. cereal plant, finding that the company’s demand to change new and rehired unionized workers’ wage rates constituted an unfair labor practice. The court ordered a temporary injunction, requiring Kellogg to allow workers to come back within five days. NLRB v. Kellogg Co.
 The Wisconsin Supreme Court ruled (5-2) to uphold Act 10, a state law that delineates procedures, obligations, and rights of collective bargaining by holding that it does not infringe on employees’ constitutional right to freedom of association. In doing so, it reversed the September 2012 state court judge’s decision that some provisions violated plaintiffs’ rights under the Wisconsin and U.S. Constitutions. The Seventh Circuit previously shot down constitutionality challenges to Act 10 in January 2013 and again in April 2014. Madison Teachers Inc., et al. v. Scott Walker, et al.
 The NLRB held that California grocery chain Fresh & Easy Neighborhood Market’s confidentiality and data protection provisions in its code of conduct, which instruct employees to keep employee information secure and to use it lawfully, violated the NLRA because employees could interpret it as banning discussions of employment conditions and wages. Member Harry I. Johnson, dissenting, stated that the overall context should dictate whether the employees would view the requirement as precluding protected activity. Here NLRA would not be chilled, because in the context of the entire code of conduct the provision at issue addressed ethical concerns rather than employment circumstances. Fresh & Easy Neighborhood Market.
 New Jersey Local 25 of the Sheet Metal Workers’ International Association (SMWIA) reached settlement with the EEOC resolving discrimination claims arising from a black trainee’s termination from the union’s Joint Apprenticeship and Training Committee. SMWIA agreed to pay $34,500 and change its policies regarding how to handle alleged discrimination. The EEOC said it will continue to monitor Local 25 for compliance with previous orders dealing with its race and national origin discrimination in its apprenticeship program. 
Legislation & Politics
President Obama signed an Executive Order (Order) requiring prospective federal contractors to disclose labor violations and efforts to correct them. The Order also prohibits contractors for federal contracts of $1 million or more from requiring workers to sign pre-dispute arbitration agreements covering certain civil rights and tort claims. The disclosure provisions in the President’s Order apply only to those employers with new federal procurement contracts for goods and services exceeding $500,000, and certain subcontractors. According to a White House Fact Sheet, the Order will be implemented on new contracts in stages, on a prioritized basis, during 2016. The Order will not take effect until new implementing regulations are in place. See our recent client briefing for more details, President Obama Issues Fair Pay and Safe Workplaces Executive Order.
 Sen. David Vitter (R-La) introduced the Freedom from Union Violence Act, which would punish violence related to union organizing efforts by monetary penalties potential prison time. The AFL-CIO denounces the bill as being an attempt to intimidate workers from joining unions. The bill has 17 co-sponsors and the lead House sponsor is Rep. Paul Broun (R-Ga). 
 President Obama reappointed Sharon Block to the NLRB. Block’s previous recess appointment to the Board was invalidated by the Court’s ruling in Noel Canning. The Democratic-controlled Senate is expected to confirm her reappointment.
 Harry Hoglander (D) took over as chairman of the National Mediation Board (NMB) from Linda Puchala (D). The NMB chairman position rotates each year. Hoglander, a NMB member since 2002, previously served as chairman in 2004-2005, 2007-2008, 2010-2011, and 2012-2013. Also currently on the NMB is Puchala and Nicholas Geale. The NMB regulates labor-management relations for approximately 100 airlines and 500 railroads subject to the Railway Labor Act. 
 Congressmen Keith Ellison (D-Minn.) and John Lewis (D-Ga.) introduced the Employee Empowerment Act, which would allow for a private right of action under NLRA Section 8(a)(3), which prohibits discrimination against workers based on union membership. The proposed right to bring a private action would provide the opportunity for an employee to seek front pay and punitive damages, in addition to NLRB reinstatement and back pay remedies. 
 Sen. John Thune (R-S.D.) introduced the Union Transparency and Accountability Act (S.2688) requiring labor organizations to disclose financial interests in some types of trusts, asset purchase and sale information, and potential conflicts of interest. The bill would reinstate rules issued during the George W. Bush administration that the U.S. Department of Labor rescinded in 2009 and 2010. 
Crime, Corruption & Other Misdeeds
An Eastern District of Pennsylvania judge denied the motions of Philadelphia Ironworkers Local 401 leader Joseph Dougherty and four others to dismiss charges against them that implicated them in the creation of “goon squads.” The court found that the allegations set forth viable claims of extortion under U.S. Supreme Court precedent. The goon squads at issue are alleged to have engaged in conduct including assault, sabotage of property, arson, and strong-arming contractors to hire union labor. Dougherty and nine additional union members were indicted in February. In July, a federal grand jury added two extortion charges to the 10 Philadelphia ironworkers’ union members. Each new count attaches a maximum 20 year prison sentence. 
The Competitive Enterprise Institute (CEI) labor team released “The High Cost of Big Labor,” which evaluates 24 states with right-to-work laws and concludes that those states have higher income and economic growth compared to states without such laws. California, New Jersey, Illinois, Hawaii, Maryland, Wisconsin, New York, and Michigan were labeled as the top 10 states without right-to-work laws that were negatively affected by the absence of such laws. 
The American Federal of State, County and Municipal Employees disassociated from the United Negro College Fund after more than 10 years when it allegedly accepted a $25 million grant from the billionaire Koch brothers. The Koch brothers allegedly aim to attack voting rights of African Americans. 
August 2014
Copying Your Attorney Isn’t Enough to Protect an Email from Disclosure
Labor & Employment Law Update
Tina Eckert
You recently learn that one of your employees is engaging in misconduct. You prepare an email detailing the employee’s bad behavior and decide to copy your in-house counsel. Have you protected this email from disclosure by copying your attorney?
The Southern District of Indiana recently answered that question in the negative, and concluded that an email cannot be transformed into a privileged communication simply by copying an attorney. Hamdan v. Indiana University Health North, LLC, et. al., Case No.: 1:13-cv-00195-WTL-MJD, June 24, 2014.
In Hamdan, the employer refused to turn over several email chains in response to a discovery request sent by a former employee. The employer argued that the email exchanges were protected under the attorney-client and/or attorney work-product privilege. The former employee disagreed and asked the court to compel the production of the documents.
A review of the communications by the court revealed that the first email chain was a proposal from the employee’s attorney to the employer, which was then forwarded to the in-house attorney for advice on how to respond. The second email chain, between several supervisors, human resources personnel, and other officials, was a discussion of the employee’s behavior, with the employer’s in-house attorney copied on the exchange. The last email chain was a request by the former employee to view his personnel file, which was forwarded to the in-house attorney for advice on how to respond.
The court concluded that the first and third email chains were protected by the attorney-client privilege and did not need to be produced. In both of these communications, it was obvious from the content that the senders were confidentially seeking legal advice, and the entire communication was related to that purpose. Because the communications were protected by the attorney-client privilege, the court did not need to analyze whether these emails were protected by the attorney work-product privilege.
In distinguishing the second email chain from the first and third, the court noted that the exchange described the details of the former employee’s conduct and merely copied the in-house attorney on the communication. While the attorney-client privilege protects confidential communications that are sent for the purpose of securing legal advice, the court emphasized that the email was neither addressed to the in-house attorney, nor sent directly to the attorney. In fact, the only direct communication to the attorney was a reminder about a meeting. The sender of the email was not seeking legal advice. Because the email contained only facts that were shared with the attorney, which are not protected by the attorney-client privilege, the communication was not protected and was subject to disclosure.
Turning to work-product privilege, the court reached the same conclusion. In this analysis, the court rejected the employer’s arguments that the emails were prepared in anticipation of litigation. As the court explained, the emails were neither work performed by the attorney, nor work prepared at the direction of the attorney. Furthermore, nothing in the email exchange included the mental impressions or the thought processes of the attorney, and the exchange between the non-attorney employees would have occurred regardless of the attorney’s inclusion on the email. Therefore, the attorney work-product privilege was inapplicable, and the court granted the former employee’s motion to compel as it related to the second email.
The takeaway for employers is to remember that simply copying your attorney on an email will not shield its disclosure during discovery. On the other hand, an email directed to your attorney requesting legal advice will be protected, and so will an email that contains work-product prepared by an attorney, or at the direction of your attorney, in anticipation of litigation.


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