We are in the process of forming the TBA International Law Section and are encouraging members to spread the word about the section.  Please help us get the word out about our section to your colleagues and friends in International Law.  Also, if you are interested in participating on the Executive Council, please email me at cgibson@tnbar.org with your name, firm name, and area of the state you are located (West, Middle, or East) and I will include you on the list of interested participants. 

Responsibilities include the following: 

• Developing the annual CLE program for the section;
• Webcasts (much like the one you see included in this newsletter below);
• Discussing and providing opinions on potential legislation; and,
• Providing news to the section. 

Again, if you are interested in participating, please send your information to me by Tuesday, March 31, 2015. 

Christy Gibson

TBA International Law Section Coordinator

Speakers/Producers

By Greg Grisham and Martin Trimiew*

A threshold issue in union representation proceedings is the determination of the appropriate bargaining unit. Whether or not a unit is “appropriate” is decided by the National Labor Relations Board (the “NLRB” or “Board”). The Board’s longstanding rule has been to look for a “community of interest” among employees, determined by factors such as whether the employees are organized into a separate department; have distinct skills and training; have distinct job functions and perform distinct work, including inquiry into the amount and type of job overlap between classifications; are functionally integrated with the Employer’s other employees; have frequent contact with other employees; interchange with other employees; have distinct terms and conditions of employment; and are separately supervised. See United Operations, Inc., 338 NLRB 123, 123 (2002).

Unions seeking to organize employers covered by the National Labor Relations Act (the “Act”) have previously been constrained to attempting facility-wide communications with employees, since broader units, such as production and maintenance units, have typically been found to be appropriate. In 2011, however, the NLRB shook the foundation of this model in Specialty Healthcare & Rehabilitation Center of Mobile (Specialty Healthcare), 357 NLRB No. 83 (Aug. 26, 2011).

1. Specialty Healthcare & Rehabilitation Center of Mobile (Specialty Healthcare).

In Specialty Healthcare, a nursing home and rehabilitation center employed various groups of employees, including registered nurses, nurse assistants, cafeteria workers, maintenance workers, housekeeping, laundry and social services/rehabilitation staff. Id. at *2. Under prior law, the appropriate bargaining unit likely would have consisted of all of the above referenced employees (with the exception of the professional registered nurses). However, in Specialty Healthcare, the Board approved a “micro unit” consisting solely of nursing assistants, creating potential for the other small employee groups to organize separately. Id. at *20.

Under the standard articulated in Specialty Healthcare, the first issue to determine is whether the “micro unit” defined by the union is “appropriate.” This inquiry begins with the Board analyzing whether the employees in the proposed unit share a “community of interest.” If the unit is found to be appropriate, the burden shifts to the employer to prove that the unit inappropriately excludes other employees who share an “overwhelming community of interest” with the employees included in the unit. This standard requires proof that there is “no rational basis” for excluding the employees from the unit.

In Specialty Healthcare, the Board created a pathway for unions to subdivide an employer’s workforce through “micro units” of representation in the workplace. Critics of the rule argue, among other things, that it significantly disrupts the core tenet of the National Labor Relations Act (the “Act”): promoting industrial peace through collective bargaining. Critics further argue that unions now have wide berth to organize employees in almost any bargaining unit of its choice, regardless of whether the collective bargaining in that micro unit will effectuate industrial peace. Further, though Specialty Healthcare was decided in the context of the health care industry, the Board intended the micro unit concept to have broad application to all industries covered by the Act. The Board’s decision was later enforced by the Sixth Circuit Court of Appeals in Kindred Nursing Centers East (f/k/a Specialty Healthcare) v. NLRB, __ F.3d __ (Nos. 12-1027/1174, Aug. 15, 2013).

2. Recent Micro Unit Cases.

Two recent decisions outline the parameters of micro units in the retail industry, although the implications of these cases extend to employers in all industries. First, in Macy’s, Inc., 361 N.L.R.B. No. 4 (July 22, 2014) the Board approved a micro unit comprised only of the cosmetic and fragrance department employees at a Macy's store located in Saugus, Massachusetts. Id. at *1-2. In response, Macy's asserted that the appropriate unit must include all sales floor personnel. Id. at *4. The NLRB rejected the employer’s argument and upheld the unit determination of the Regional Director. Id. at *23. The Board found that the cosmetic department employees did not work in other departments and their pay structure was substantially different from all other store employees. Id. Consequently, the NLRB held that the union met the Specialty Healthcare standard for the petitioned for unit of cosmetic and fragrance employees. Id.

One week after its decision in Macy’s, Inc., the Board rejected a petitioned-for “micro unit” of women's shoes employees in the Salon shoes and Contemporary shoes departments at the Neiman Marcus Store in New York City. See The Neiman Marcus Group, Inc. d/b/a Bergdorf Goodman (Bergdorf Goodman), 361 N.L.R.B. No. 11, at *1 (July 28, 2014). Here, the union failed to prove a “community of interest” specific to the women's shoes employees because the employer did not have clear department lines already established (as did the employer Macy's). Id. at *3-4. Specifically, the petitioned for unit in Bergdorf Goodman included other employees from a second department, Contemporary Sportswear, but excluded Contemporary Sportswear’s other sales associates. Id. The Board viewed this subdivision as a departure from the Employer's organizational structure and outside the Specialty Healthcare standard for an appropriate unit. Id. The Board concluded, however, that it would likely have approved the unit had the following factors been present: i) the petitioned-for employees shared a common supervisor; ii) there was significant personnel interchange between the two departments; iii) contact among the petitioned-for employees was not limited to storewide meeting attendance and incidental contact in the locker room, cafeteria, etc.; and iv) shared skills and training for the employees from the different departments. Id.

3. What do “Micro-Units” mean for Employers?

Over time, employers can expect to see increased attempts to fracture their workforce into multiple bargaining units with various bargaining agreements that potentially contain fluctuating pay scales, benefits, work rules, bargaining schedules, and grievance processes for employees who used to work side by side. Nevertheless, Employers can take some proactive measures to avoid what could become a crippling occurrence in employer/employee labor relations.

First, Employers must understand the new paradigm of micro units and acknowledge that the boundaries of its workforce can potentially be gerrymandered under the new caselaw. Relying on past measures and ignoring the importance of structuring employee divisions can result in easy targeting by unions seeking to organize a micro unit. Further, Employers must discard any belief that micro units union organization is limited to healthcare and retail industries, as the Board has made it clear that this applies across industry sectors.

Second, Employers must consider arranging departments, supervisors, and workplace structure in line with the factors outlined in Bergdorf Goodman. Employers should consider more integration between employees, supervisors, department interchange, job classifications, pay structure, employee rotation, and policy implementation. Taking these measures in advance can better prepare Employers should they be tested by unions and required to meet their burden of proof to demonstrate “overwhelming community of interest.”

Third, Employers must continue to maintain policies and strategies which make employee organization unnecessary and union involvement moot. Even in situations where a union is successful in organizing a micro unit, a lack of success in expanding representation to employees in other departments may lead the union to eventually abandon the micro unit given the costs associated with collective bargaining and grievance handling especially in Right to Work States.

___________________________

*J. Gregory Grisham serves as Of Counsel in the Nashville Office of Leitner, Williams, Dooley & Napolitan, PLLC. He focuses his practice on the representation of management in all aspects of workplace law. Mr. Grisham is a graduate of the University of Memphis, Cecil C. Humphreys School of Law. He may be contacted at 615-255-7722 or greg.grisham@leitnerfirm.com . Martin D. Trimiew is an Associate in the Nashville Office of Leitner, Williams, Dooley & Napolitan, PLLC and focuses his practice on the representation of employers in wrongful discharge and employment discrimination matters. He is a graduate of Washington University School of Law. Mr. Trimiew may be contacted at martin.trimiew@leitnerfirm.com or 615-324-2754.

Results – By Judge

The results for each judge within the three districts are as follows:

EASTERN DISTRICT

MIDDLE DISTRICT

WESTERN DISTRICT

To the extent anyone has any questions about any of the 2014 cases I reviewed in arriving at these numbers, I would be happy to share and discuss those as I plan to maintain the hard copies for a period of time.

2015 Cases of Note

Beyond 2014 and looking into 2015, I am providing summaries of the following cases, which are interesting reads:

Eastern District

Cook v. SL Tennessee, LLC, 2015 WL 796642 (Feb. 25, 2015). Judge Collier Grants Summary Judgment on FMLA Claim Based on Employee’s Voluntary Quit. After suffering a workers’ compensation injury and return to work on restrictions, followed by FMLA leave for psychological issues, plaintiff re-injured his back and complained of continuing pain of which the employer was aware. After sustaining a fall at home, plaintiff called his supervisor and stated he could not take the pain any more, had a gun and was going to “end it all”. (The conversation was repeated to another supervisor). The next day, plaintiff’s live-in girlfriend called the employer and requested paperwork for the doctor to authorize plaintiff to be off work. The employer’s representative told the girlfriend that the plaintiff had voluntarily quit. Plaintiff had no further contact with the employer. The Court held, applying state law to the issue of voluntary resignation, the plaintiff had voluntarily quit and was not entitled to FMLA leave.

Middle District

Holmes v. Alive Hospice, 2015 WL 459330 (Feb. 3, 2015). Judge Campbell Grants Partial Summary Judgment on ADA and FMLA Interference Claim – Allows FMLA Retaliation Case to Go Forward. The Court found no disability discrimination under “regarded as” prong of ADA where only evidence of employer’s claimed knowledge of disability was doctor’s note provided with FMLA paperwork, and a phone call that the employer made to plaintiff to see how she was doing, neither of which provided information regarding a disability. The ADA retaliation claim was dismissed where the only statement of plaintiff was a request for accommodation and a statement that she had been terminated, neither of which articulated opposition to unlawful activity. The FMLA interference claim was dismissed as plaintiff received all of her FMLA entitlement. However, the FMLA retaliation claim survived summary judgment where disputed issue of fact existed on whether there were other shifts that plaintiff could have worked at the time of her termination.

Gray v. Clarksville Health System, 2015 WL 136137 (Jan. 9, 2015). Judge Sharp Grants Summary Judgment on FLMA Claim on Notice and Eligibility.  The Court found plaintiff did not give sufficient notice of need for leave on dates alleged to have been FMLA-qualifying. On one occasion, plaintiff called in and told her supervisor that her daughter was in labor with a premature baby; on a subsequent occasion stated that she was taking care of grandchildren while the daughter was hospitalized; and on a third occasion informed her supervisor that her daughter had been admitted to a psychiatric ward.

Koch v. Lightning Transportation, LLC, 2015 WL 66971 (Jan. 6, 2015). Judge Sharp Denies Summary Judgment on Pregnancy Discrimination Claim.  Plaintiff was terminated and replaced after taking maternity leave. Employer asserted no adverse job action as plaintiff had voluntarily quit by filing an unemployment compensation claim. The Court found a disputed issue of fact based on evidence that employer had encouraged her to file for unemployment compensation showing “layoff” and promised her that she could return following her leave.

Western District

Childers v. Hardeman County Board of Education, 2015 WL 225058 (Jan. 15, 2015). Judge Breen Grants Summary Judgment on Disability Discrimination Claim – Denies on Failure to Accommodate and Retaliation Claim. Plaintiff claimed disability discrimination in her job transfer from administrative to teaching position. The Court granted defendant’s motion on disability discrimination as the evidence merely established that the defendant was aware that the plaintiff had some health problems, not that she suffered from a disability. However, on the failure to accommodate claim (once the transfer was made), the Court found while it was unreasonable to reassign plaintiff to her previous position, as it had been filled, the employer otherwise failed to engage in an interactive process to accommodate her within the new position. Additionally, on the retaliation claim, the Court found that the employer had failed to establish a legitimate non-discriminatory reason why it withheld a $5,000 early retirement bonus after she subsequently retired.

_________________________

*Mark Travis is a full-time mediator and arbitrator, practicing exclusively in the area of labor and employment cases. He graduated from the Brandeis School of Law at the University of Louisville and holds a Master of Laws in Dispute Resolution from the Straus Institute at Pepperdine School of Law. He may be reached at (931)252-9123 and by email at mtravis@travisadr.com.

David A. Burkhalter, II and D. Alexander Burkhalter, III*

What is a whistleblower?  A hero?  A disgruntled employee?  Or, perhaps, in some cases, a traitor?  To answer these questions, it often depends on the type of whistleblowing at issue.  For example, is it private sector whistleblowing where an employee exposes fraudulent acts of a greedy corporation where millions of dollars have been stolen from Medicare? Is it public sector whistleblowing where a federal employee leaks classified and top-secret information that jeopardizes national security?  Was this employee a “traitor” or “national security threat”.[i]

Over the past few decades, the laws protecting and incentivizing whistleblowers have undergone dramatic transformation, resulting in a substantial increase in whistleblowing cases.  For example, the U.S. Department of Justice reported that for FY 2014, it recovered nearly $3 billion dollars related to lawsuits filed under the qui tam provisions of the False Claims Act, and during the same period the government paid out $435 million to the whistleblowers who exposed the fraud by filing the False Claims Act complaints, “often at great risk to their careers.”[ii]  Whistleblowing against federal agencies, however, does not offer the same incentives, but can involve some protection from retaliation. 

There are clearly valid competing interests when it comes to whistleblowing in the public sector, such as transparency in government versus governmental secrecy necessary to achieve national security goals.  It is these competing interests that caused the U.S. Supreme Court to weigh in on the extent of anti-retaliatory protection in Dep’t of Homeland Security v. MacLean, where the Court ultimately sided with the whistleblower.   

In the wake of the 9/11 terrorist attacks, Congress felt the necessary pressure to increase the nation’s aviation security.  This resulted in the Homeland Security Act of 2002, which gave the Transportation Security Administration (“TSA”), in relevant part, the authorization to “prescribe regulations prohibiting the disclosure of information … if the Under Secretary decides that disclosing the information would … be detrimental to the security of transportation.”[iii]

Shortly after the TSA was granted this authority, the “TSA promulgated regulations prohibiting the unauthorized disclosure of ‘sensitive security information,’ which included ‘[s]pecific details of aviation security measures … [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations.”[iv]  The purpose of these regulations is evident. 

Robert J. MacLean was one of the federal air marshals charged with the duty to protect the nation’s skies from potential terrorist attack.  Before working for the TSA in 2001, Maclean worked in aviation security for the Federal Aviation Administration.[v]  With years of loyalty and experience, few could have guessed that this veteran air marshal would become a whistleblower.

In July of 2003, the Department of Homeland Security (“DHS”) issued a confidential advisory that al Qaeda, the terrorist organization responsible for 9/11, was planning to attack and/or hijack passenger flights. The advisory identified several potential targets, including the United States, and “the advisory warned that at least one of the attacks ‘could be executed by the end of the summer 2003.’”[vi]

After DHS issued this advisory, the TSA, in a face-to-face briefing, informed all of the air marshals, including MacLean, about the hijacking ploy.  The hijackers’ plan was to “smuggle weapons in camera equipment or children’s toys” and, after boarding U.S. flights, they would “overpower the crew or the Air Marshals and … fly the planes into East Coast Targets.”[vii]

Only days after the face-to-face briefing—despite the heightened threat level of potential terrorist attacks—the TSA sent out a text message to the air marshals cancelling all overnight missions from Las Vegas, where MacLean was stationed, until early August 9, 2003. The cancellations meant that no air marshals would be flying cross-country—which were supposedly the most vulnerable flights—for more than a ten-day period.

In a time of suspected hijackings, MacLean believed the cancellations to not only be dangerous, but also illegal because federal law required air marshals to be on flights with “high security risks” and “nonstop, long distance flights” were given a top priority.[viii]

When MacLean delved into why the TSA canceled the missions, a supervisor responded the TSA sought “to save moneyon hotel costs because there was no more money in the budget.”[ix]  Refusing to accept his supervisor’s answer, MacLean reported the cancellations to the DHS Inspector General’s Office, but MacLean was told “nothing … could be done.”[x]

Again, refusing to accept these responses, MacLean contacted the media and reported the cancelled missions.  This resulted in a news headline “titled ‘Air Marshals pulled from key flights.’  The story reported that air marshals would ‘no longer be covering cross-country or international flights’ because the agency did not want them ‘to incur the expense of staying overnight in hotels.’  The story also reported that the cancellations were ‘particularly disturbing to some’ because they ‘coincide[d] with a new high-level hijacking threat issued by the Department of Homeland Security.’”[xi]

The story quickly gained the attention of Congress, and Senators began demanding an explanation from the TSA.  Within 24 hours, the TSA reversed its decision and put air marshals back on the flights.  MacLean’s whistleblowing efforts accomplished his objective in returning air marshals to protect these high-risk flights.  Although his identity was unknown to the public and the government, one Senator conveyed her gratitude to the anonymous air marshal “who came forward and told the truth about what was going on . . . and [brought] this issue into the spotlight.”[xii]

Almost two years later, however, the TSA discovered MacLean was the one who leaked the story to the media and he was fired for “disclosing sensitive security information without authorization” under the TSA regulation.[xiii]

In his appeal to the Merit Systems Protection Board, MacLean argued his whistleblowing was a “protected activity” under the whistleblowing statute for federal employees, but the Board disagreed and held his disclosure to be “specifically prohibited by law.”[xiv]  The Court of Appeals for the Federal Circuit overturned the Board’s decision and held the TSA regulation was not a “law” as required by the whistleblowing statute.[xv]

The Supreme Court granted certiorari on the issue of whether MacLean’s disclosure of the cancelled missions was “specifically prohibited by law”.[xvi]  If the Government could convince the Supreme Court that it was, then MacLean’s termination was justified as an exception under the whistleblower statute.  In relevant part, the whistleblower statute prohibits federal agencies from taking:

a personnel action with respect to any employee or applicant for employment because of

(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—

(i) any violation of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,

if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.[xvii]

At the Supreme Court, the government put forward two statutory interpretation arguments for why MacLean’s disclosure was “prohibited by law”:  (1) “the disclosure was specifically prohibited by the TSA’s regulations on sensitive security information”, and (2) “the disclosure was specifically prohibited by [the statute], which authorized the TSA to promulgate those regulations”.[xviii]

As to the first argument, MacLean did not dispute he violated the TSA’s regulation on prohibited disclosures.  The issue, therefore, was whether the TSA’s regulation prohibiting the disclosure was a “law” as stated in the whistleblower statute. Chief Justice Roberts, in writing for the Court, determined that the TSA’s regulation was not a “law” for purposes of the whistleblower statute; this was evidenced by the fact that the whistleblower statute made repeated references to the phrase “law, rule, or regulation”, but only included “law” in the exceptions provision, and the Government conceded this point at the court of appeals.[xix]

The Government’s second argument, that MacLean’s disclosure was prohibited by the statute which authorized the TSA to prescribe regulations, was also a failing argument. The majority of the Justices reasoned that the statute only “authorized” the TSA the discretion to prescribe regulations, and the statute did not “specifically prohibit” any such disclosure as required by the whistleblower statute.[xx]

Lastly, Chief Justice Roberts addressed the Government’s final argument that if whistleblowers like MacLean were protected, this would “gravely endanger public safety” leaving the disclosure of sensitive security information to “depend on the idiosyncratic judgment of each of TSA’s 60,000 employees” but such employees “most likely lack access to all of the information that led the TSA to make particular security decisions.”[xxi]  In responding to this argument, the Court recognized those concerns as “legitimate” but stated that such concerns should be left to the legislative and executive branches.[xxii]

MacLean’s whistleblowing was a success story because it prompted an almost immediate reversal of what most would agree was an ill-advised bureaucratic decision that could have had otherwise catastrophic consequences. It will never be known whether MacLean’s whistleblowing actually prevented a hijacking that could have taken a horrible toll in human lives.  MacLean, therefore, would probably not be labeled a “wolf” or a “traitor” and most would categorize him as a “hero”.  On the other hand, had the “ill-advised bureaucratic decision” not been reversed due to Congressional pressure, MacLean’s whistleblowing could have resulted in the terrorists learning exactly which flights to target and when, with potentially equal catastrophic results, and in that case, MacLean would probably be considered a “wolf” and perhaps a “traitor”.  Flipping the facts illustrates that when it comes to federal employee whistleblowers, it may be difficult to distinguish between a sheep from a wolf in sheep’s clothing, and a hero from a traitor.

Ultimately, Dep’t of Homeland Security v. MacLean is an opinion about statutory interpretation, but it does raise important policy issues, some of which must be decided by Congress or the President by executive order.  May they have the wisdom to make the right decisions.

Here’s the latest newsletter from TBA’s Labor and Employment Section.  I want to thank this issue's authors for their insightful articles – David and Alexander Burkhalter, Greg Grisham and John LaBar. If you have an article or idea for an article, I urge you to e-mail me at bbuchanan@visalaw.com or call me at 615-345-0266.

A quick reminder - TBA’s Labor and Employment Section will be holding its annual forum on April 24. I hope to see many of you there.  The link to the seminar is at the end of this issue.

Bruce Buchanan

Practice news:

An alternative to the Special Needs Trust? The ABLE account: Monica Franklin wrote a great article discussing ABLE accounts which you can read here: https://www.tba.org/journal/an-alternative-to-a-special-needs-trust-the-able-account

In case you haven’t noticed, approval rates for disability claimants are going down. Now more than ever, objective medical evidence is necessary for proving disability. Unfortunately, many claimants don’t have access to medical care. Generally adults without minor children are not eligible for TennCare and unless they have income over 100% of the Federal Poverty Level (over $980 per month for a household of 1), they will also not be able to get any help paying for private health insurance on the federal health insurance Marketplace. 2-1-1 Tennessee might be a good way to find healthcare resources in claimant’s communities. They can call 2-1-1 and ask for help finding health care or go online: http://tn211.mycommunitypt.com/

CLE opportunities:

There is a three-part webinar series on the basics of Social Security practice currently available through the TBA online. Each one-hour webinar is only $35 for section members!

1) Client Selection: https://cle.tba.org/catalog/course/3198

2) Representation and Application: https://cle.tba.org/catalog/course/3207

3) Disability Hearings: https://cle.tba.org/catalog/course/3199

Section member Eric Buchanan also has a webinar on Federal Court practice available here: https://cle.tba.org/catalog/course/3025

Resources:

SSL Discussion List:  Non-government lawyers may sign up for the Social Security Law for Non-Government Lawyers (“SSL”) private mail discussion list with online archives and wiki by going to the following link:  https://sympa.theombudsman.com/sympa/info/ssl.  The discussion list is run by Georgia attorney Charles L. Martin, who concentrates his practice in Appeals Council and court briefs in Social Security disability claims.  Information about the discussion list, membership requirements and instructions for how non-government Social Security lawyers can apply for membership is available at the above-linked page. 

NOSSCR:  The National Organization of Social Security Claimants’ Representatives (NOSSCR) website is another excellent resource, with coverage of Social Security Basics and up-to date information about Social Security News, Policy Updates and numerous Legal Resources:  www.nosscr.org

We welcome suggestions for ways to improve the Section, enhance our Section website, news articles to distribute and ideas about how to increase opportunities for communications among Section members.

Spring is almost here and so is our annual CLE! On April 23, 2015, the TBA “Disability Law Forum 2015” will be held at the TBA Bar Center in Nashville (221 4^th Avenue North, Suite 200).  As a TBA member, you can use your 3 prepaid CLE credits to reduce the cost of this program.  Your section membership also provides a discount to attend this 5 hour seminar, which offers 4 hours of general credit and 1 hour of dual ethics and professionalism credit. 

This annual CLE will include a session on hearing do’s and don’ts by an Administrative Law Judge from Social Security; a discussion about how to be successful at the Appeals Council;  a troubleshooting session including how to resolve problems with fee claims. This program is designed to give you practical and interesting information to improve your practice while you connect and exchange ideas with Social Security lawyers, judges and practitioners from all over this State.  We hope to see you there. 

Katie Evans Moss

kmoss@las.org