News & Commentary

November 11, 2021

Maxwell Ulin

Maxwell Ulin is a student at Harvard Law School.

Yesterday, members of Third Circuit Court of Appeals cast doubt on whether the National Labor Relations Board’s (NLRB) recent decision against The Federalist would withstand appellate scrutiny.  The case, FDRLST Media v. NLRB, 3d Cir. No. 20-03434, arose in 2019 after the conservative magazine’s co-founder Ben Domenech tweeted that he would send his employees “back to the salt mine” should they attempt to unionize.  Last year, the Board’s former Republican majority affirmed the administrative law judge’s ruling that the statement constituted an unlawful threat against workers’ right to organize at the magazine, despite the company’s insistence that Domenech’s tweet was “a joke.”  Under both Board and circuit precedent, an employer’s allegedly threatening statements are assessed not based on the parties’ subjective interpretations of them, but rather on their objective tendency to be coercive.  Still, Wednesday’s three-judge panel—composed entirely of Republican appointees—appeared to seriously question the holding.  Judges Matey and Hardiman expressed concerns over the case law’s potential conflict with free speech protections under the First Amendment, while Matey also raised jurisdictional questions, noting that the initial charge had been filed by someone with no connection to the magazine.  The outcome of the case could have major implications for the scope of the NLRB’s authority to combat threats to organizing online and elsewhere.

In other judicial news, the California Supreme Court announced yesterday that it would review whether part of the Golden State’s LGBTQ protections for long-term care residents unlawfully restricts care workers’ freedom of speech.  The decision comes after a July ruling by the California Court of the Appeals, Third Circuit, which held that provisions banning long-term elder care workers from misgendering residents in the states’ LGBT Long-Term Care Facility Bill of Rights constituted a content-based speech restriction and was insufficiently narrow the justify the burden on workers.  Under the law, misgendering residents is unlawful even if it is not continuous or does not constitute harassment or discrimination.  The case is Taking Offense v. California, Cal. No. S270535.

By contrast, members of the U.S. Supreme Court this week chose not to address whether federal workplace protections allow for multi-motive age discrimination claims.  On Monday, the Court announced that it had declined to take up a case brought by Melanie Pelcha, a former bank teller, arguing that the Sixth Circuit had improperly required her to prove that her age was the “sole” motivation behind her boss’s adverse employment action—as opposed to one of multiple but-for causes—in order for her state a claim under the Age Discrimination in Employment Act (ADEA).  Lower courts have struggled with the ADEA’s causation standard ever since the Court’s 2009 decision in Gross v. FLB Fin. Servs., 557 U.S. 167, in which the justices ambiguously held that age must be “the ‘but-for’ cause” of discrimination to be unlawful.  Last year in Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020), however, the Court clarified that Title VII allows discrimination claims to be brought under the but-for-cause standard even when multiple factors are at play in an employment action, so long the protected characteristic (race, sex, etc.) proves determinative when removed from the equation.  Since Title VII’s but-for standard has already been held to be interchangeable with the ADEA’s, Pelcha argued, Bostock arguably settled the confusion from Gross by opening the door to multi-motive age claims.  In declining her petition, the Court has effectively ruled out addressing the issue for the coming term.

Further north, workers at a major Cargill meat-packing facility in High River, Alberta gave notice yesterday of their plans to strike on December 6 following two days of negotiations with the company.  According to the workers’ union, United Food and Commercial Workers (UFCW) Local 401, around 75% of the plant’s 1,400 employees took part in a strike authorization vote last Thursday, with some 97% voting to strike if the union’s demands are not met.  Much of the labor dispute centers around health and safety concerns in the wake of the pandemic, as around half of the plant’s workers fell ill and three died due to COVID-19 last year.  Around 40% of Canadian beef is processed through Cargill’s High River facility, and the strike is expected to generate price increases even as much of the West already is experiencing some of the highest “meatflation” in decades.  In the United States, food and energy price hikes last month helped drive the sharpest inflation spike in 31 years, according to Labor Department data released yesterday.

After nearly a month on strike, John Deere workers in Iowa and throughout the Midwest have finally begun to draw the ire of Republican politicians.  Yesterday, the National Republican Senatorial Committee issued a press release targeting the workers, who are seeking higher pay and better healthcare benefits, and criticizing Iowa Democratic Senate candidate Abby Finkenauer for supporting the work stoppage.  The attack marks the first political foray into the labor dispute by high-ranking Republicans, nearly all of whom have steered clear of the issue until now; last month, Finkenauer’s Republican opponent, incumbent Sen. Chuck Grassley, spoke positively of the workers’ right to strike.  The press release takes particular aim at the work stoppage in the context of current labor shortages, which it argues raise prices for farmers.

As a final note, LaborNotes’s Sarah Hughes published an interview this week with IATSE Local 80 member Brandy Tannahill on why she and other workers are voting to reject the international union’s tentative contract agreement with the Alliance of Motion Picture and Television Producers (AMPTP).  As reported last month, the Alliance narrowly avoided what would have likely amounted to the largest U.S. work stoppage since 2007, as company representatives reached an eleventh-hour agreement with the union shortly before employees walked off the job.  Hughes discusses how an “excellent confluence of events” gave IATSE enormous strike power and leverage this fall, citing current labor scarcity and a dearth of film content following the pandemic.  Given those conditions, many union members have expressed disappointment over the proposed wage increases and scheduling benefits, which proved far less generous than some expected.  IATSE’s contract ratification vote begins tomorrow by electronic ballot and runs through Monday, November 15.

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