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BLUE COLLAR WORKERS HAPPY, BUT MAJORITY OF AMERICANS APPROVE OF LABOR UNIONS

A recent Harris Poll reports that 85% of blue-collar workers believe their lives are heading in the right direction, higher than any similar poll in the last 20 years.  Approximately 86% are “satisfied” with their jobs and 90% are even “proud” of their work.  Ironically, it turns out that blue collar workers are some of the most satisfied people in American society.  These results may explain why President Trump polls better among blue collar workers than the general population.

At the same time, however, a separate poll conducted by Gallup reported in late August, 62% of Americans approve of labor unions, the highest level in 15 years.  The support is strongest among those age 18-34, and nearly 40% of Americans would like unions to have more influence, compared to 29% in 2012. 

SUPREME COURT DECISION RESULTS IN WAVE OF LAWSUITS AGAINST UNIONS

A dozen or more lawsuits have been filed against various state and local government unions across the country in light of the Supreme Court ruling in the Janus case, seeking refunds of union dues and fees employees were forced to pay to keep their jobs.  In at least one of the cases, the union defendant conceded the issue and refunded the involuntary dues and fees.  Another pending case, if successful, might result in refunds of as much as $100 million.  Thus, the Janus decision not only reduces future income to public sector unions, but may result in significant paybacks to those forced to participate, at least in situations within the relevant statute of limitations. 

On a related issue, the recent momentum toward "right-to-work laws" has at least taken a temporary halt in one state, Missouri.  Since 2012, six states have become right-to-work, including Michigan and Wisconsin.  However, on August 7, 2018, voters in Missouri repealed their right-to-work law.  Some commentators report that those opposed to Missouri's right-to-work law spent more than five times the amount that proponents did in the campaign leading to the vote, and the Republican governor of Missouri who has supported the legislation did not take part in the campaigning due to his own political problems. 

Many say that right-to-work laws result in reduced votes for Democratic candidates of around 3%, and many former industrial states with large union representation have become more Republican since enacting their right-to-work laws. 

AFL-CIO UNILATERALLY IMPLEMENTS CONTRACT AGAINST ITS OWN WORKERS, WHO ANNOUNCE STRIKE

Some of the most anti-union employers in the entire country are the unions themselves.  This is a shocking but true statement.  There is a long history of labor unions opposing their own employees forming unions, generally feeling that such actions are disloyal to the employer union. 

A recent example of this occurred at the headquarters of the largest U.S. union federation, the AFL-CIO.  Due to its inability to negotiate a contract with the union representing its own employees, the AFL-CIO announced that it was unilaterally imposing a new contract on the workers, one the employees had unanimously rejected.  Its terms included reduced sick leave, no wage increases and weakened lay-off protection.  A union spokesperson for the workers said that: "If a company tried to force a contract like this, we believe that the AFL-CIO would deplore the company as anti-union."

The union representing about 50 janitors, secretaries and accountants voted to authorize a strike against the AFL-CIO. 

SOCIAL SECURITY MISMATCH LETTERS TO RETURN

In July of 2018, the Social Security Administration (SSA) announced that it will be resuming the practice of sending "no-match" letters to employers when the information on tax forms is not consistent with SSA records.  The letters are expected to resume in 2019, and as before, will request that the businesses and employers take steps to correct the information within sixty (60) days.  The practice of issuing such letters actually begin prior to the enactment of the immigration laws, due to a desire to apply Social Security funds to the proper account.  Today there is more than $1.5 trillion kept in SSA's earnings suspense file where funds are kept that are contributed but cannot be matched with SSA records.  The practice of sending out such no-match letters has been started and stopped on many occasions over the years, and was most recently discontinued in 2012. 

Immigrations and Customs Enforcement (ICE) has not commented on whether the letters will be used for immigration enforcement purposes.  In the past, the letters were sometimes used as evidence that a particular worker could be an undocumented immigrant who is using someone else's Social Security number.  Of course, there could be many reasons for the mismatch, including clerical errors, name changes, and criminals who steal identities for other purposes.

JUDGE BLOCKS ENDING OF TPS STATUS OF VARIOUS COUNTRIES

Temporary Protected Status (TPS) is an immigration status granted to citizens of certain countries that have experienced various emergencies, such as natural disasters or civil wars, allowing them to seek refuge in the U.S. and be allowed to work.  Currently citizens from 10 countries may have this status, but over the last year the Trump administration announced it was ending TPS for citizens of four countries, El Salvador, Haiti, Nicaragua, and Sudan, because the emergencies that had justified giving them refuge in the U.S. had ended.  On October 3, 2018, a federal judge in California blocked the administration from ending the TPS status of citizens from these countries.  There were basically two reasons for the decision, one being that the administration violated the Administrative Procedure Act that deals with the rules agencies are supposed to follow before they make new rules or change existing rules.  The second reason for the ruling was that there was evidence of discriminatory motive, similar to the arguments made in the lawsuits challenging the administration's efforts to end the Deferred Action for Childhood Arrivals (DACA) program.  It is likely that these issues will end up in the U.S. Supreme Court. 

OSHA LACKS PROBABLE CAUSE TO CONDUCT BROAD SAFETY INSPECTIONS

In a October 9, 2018 decision by the Eleventh Circuit Court of Appeals, a district court ruling has been affirmed quashing an inspection warrant that OSHA had sought to expand a limited incident inspection to a "wall-to-wall" inspection covering every facet of the employer's facility.  USA v. Mar-Jac Poultry, Inc.  This case was handled by the Wimberly & Lawson firm headquartered in Atlanta and sets important limitations on governmental rights to search an employer's premises. 

The situation arose when an employee at a Georgia poultry processing facility was injured while working on an electrical panel box using an uninsulated screwdriver.  The employer duly reported the incident to OSHA as required by law, and when OSHA inspectors arrived, they announced their intent to inspect the entire facility.  The employer through counsel contended that the inspection should be confined to the area where the accident occurred and denied that OSHA had sufficient probable cause to expand their inspection. 

OSHA obtained a warrant, but the firm was able to quash the warrant for a lack of probable cause.  A federal judge granted the motion, and on appeal OSHA abandoned one of its arguments, that the expanded inspection was justified because it was part of a special emphasis program for certain facilities.  Instead, OSHA's main argument was that the OSHA 300 logs, upon which covered employers are required to list serious work-related injuries and illnesses, satisfied its burden to show that it had probable cause to believe that OSHA standards were being violated.  The federal appeals court rejected OSHA's argument, finding that the OSHA 300 log was not a substitute for reasonable cause to believe a statute had been violated.

Thus, a Fourth Amendment provision that "no warrant shall issue but upon probable cause. . ." is an important protection, including a protection for employers against government over-reach.


Wimberly, Lawson, Steckel, Schneider & Stine

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