Maine Employment Lawyer Blog

The National Labor Relations Board ("NLRB") has issued a rule requiring most private sector employers to hang a poster up in their workplaces which notifies employees of their rights under the National Labor Relations Act ("NLRA"). Most employers will likely hang these posters amongst the other posters they're already required to hang up in the workplace. Among other things, the poster will inform employees that they have the right to organize a union to negotiate with their employer concerning wages, hours, and other terms and conditions of employment. According to the federal Bureau of Labor Statistics, as of 2010, only 6.9% of private sector employees were unionized. To the extent that low number is attributable to a lack of understanding about the right to unionize, this new NLRB rule could result in more employees forming unions.

On August 29, 2011, the Kennebec County Superior Court ruled in favor of the Maine State Nurses Association (MSNA) and affirmed an arbitration award in favor of MSNA member Krista McCormick. Ms. McCormick worked as a nurse at Down East Community Hospital (DECH) until she was terminated on September 11, 2009. In accordance with MSNA's collective bargaining agreement (CBA) with DECH, MSNA filed a grievance on behalf of Ms. McCormick contesting the termination. The grievance process led to an arbitration where a neutral arbitrator, who serves a role similar to a judge, found that DECH terminated Ms. McCormick without just cause in violation of the CBA. Consequently, the arbitrator ordered DECH to reinstate Ms. McCormick and compensate her for lost wages and benefits. This would've been a relatively straightforward case except for the fact that a court-appointed receiver, Eastern Maine Healthcare Systems (EMHS), was in control of DECH at the time of Ms. McCormick's termination.

After the arbitrator ruled in favor of MSNA and Ms. McCormick, EMHS refused to abide by the arbitrator's decision. So, MSNA had to file a lawsuit in court to enforce the arbitrator's decision. EMHS argued that the court could not enforce the arbitrator's decision against DECH because EMHS was the entity that terminated Ms. McCormick, not DECH. EMHS further argued that the court could not enforce the arbitrator's decision against it because, as a court-appointed receiver, it was immune from MSNA's lawsuit.

If EMHS had prevailed with its arguments, it would have deprived Ms. McCormick of any remedy for her wrongful termination. After thoroughly evaluating the various complex legal arguments that EMHS made, and MSNA made in response, the court rejected EMHS's position and ruled in favor of MSNA and Ms. McCormick.

The Maine Employee Rights Group represented MSNA in this case.

As reported here on June 3, 2011, the Maine legislature is considering a bill that would weaken public-sector unions. Ohio passed a similar law earlier this year. That law created a huge backlash from union supporters. This week, opponents of Ohio's anti-union law delivered nearly 1.3 million signatures from Ohioans who want the anti-union law put on the ballot for a potential people's veto. This was the largest number of signatures ever collected in Ohio for a people's veto campaign. U.S. Representative Tim Ryan, a Democrat from a blue-collar area of Ohio, described Ohio's anti-union law as "a blatant political attack on Ohio's teachers, firefighters, policeman, and the rest of the people that support our communities." Maine has a people's veto mechanism similar to Ohio's and this campaign in Ohio could happen in Maine if anti-union bills become law.

The Maine legislature is considering a so-called "right to work" bill that would adversely affect public-sector unions. The bill would prohibit public-sector unions from collecting fees from non-members who reap the benefits of union services. Currently, public employees that do not join the union must pay a fee of about $5 per week to compensate the union for the services it provides to them. Those services include representation at grievance hearings and salary negotiations. This bill would strip the union of those $5 weekly fees.

According to a labor lawyer who testified before the legislature, the bill (LD 309) would also prohibit the union from collecting dues from its own members after a collective bargaining agreement expires. This would, of course, permit management to starve the union of money it needs to operate in order to extract concessions during negotiations over a new collective bargaining agreement.

Earlier in this legislative session, the Maine Senate killed a similar "right to work" bill that would have impacted private-sector unions. That has not stopped private-sector unions from speaking out against this bill. Joel Pitcher, a member of Local 6 at Bath Iron Works said "it's divide and conquer, right? They're basically saying, 'We'll take (public employees) first and come after (private) later.' ... We're ready to join the fight now."

Earlier this month, the Maine Senate Labor Committee voted to exempt DeCoster Egg Farms from Maine laws that require employers to pay employees a minimum wage, time-and-a-half for overtime, and allow them to form a union. Some of the Senators that voted to exempt DeCoster Egg Farms are reportedly having second thoughts. Labor, Commerce, Research and Economic Development Committee Chairman Chris Rector (R-Thomaston) has told the Republican Senate leadership that, while he voted to exempt DeCoster Egg Farms in his committee, he has subsequently learned more about DeCoster Egg Farms which has convinced him to change his mind. "It is rare that I don't feel solid with my decisions, but if there was ever a situation where workers should have an opportunity to organize, this is it," said Rector. Dana Dow (R-Waldoboro) is also having second thoughts about voting to exempt DeCoster Egg Farms. "To tell you the truth, and I haven't said this before, if the workers there, if they had a union, they wouldn't have had the problems they did," said Dow, stressing that unions weren't just about salary. "In this case, I'm talking about safety, safety, safety," Dow said.

During a Senate hearing in April, former Maine Attorney General James Tierney testified that "for at least forty years, DeCoster Egg Farms has been a habitual violator of federal and state laws dealing with labor, immigration, safety, animal cruelty, environment and health." According to news reports, "DeCoster has also been synonymous with labor violations that include hiring 11-year-olds and a 9-year-old, recruiting and hiring illegal immigrants and helping them get fake working papers and improper removal of asbestos from barns. And that is just the beginning."

The bill being considered is L.D. 1207.

A Bangor organization called the Workers Rights Board of Eastern Maine (WRB) has reached out to both Eastern Maine Medical Center (EMMC) and its nurses in an effort to bring them together to resolve their ongoing labor dispute. Last month, WRB sent letters to EMMC and its nurses inviting them to a "Public Forum on Staffing and Health Care Quality at EMMC." The forum is scheduled to take place at the Bangor Public Library on April 25, 2011. At the forum, nurses themselves will have the opportunity to engage in a public dialogue about patient safety and how the ongoing labor dispute affects it.

In WRB's letter to EMMC, it reported some information that the nurses provided to it. According to the nurses, EMMC has spent over $60,000 on advertisements disparaging the nurses. It has also retained an expensive law firm with a reputation for union busting. WRB said that it is "troubled by the use of patient care dollars, which presumably include state and federal tax funds, being spent on fighting the nurses."

On April 8, 2011, EMMC responded to WRB's invitation to this forum and said that it did not plan to attend. In its response, EMMC did not dispute that it has hired a union busting law firm or that it has spent $60,000 in advertising to disparage the nurses. EMMC's response also states that the nurses' national union is pursuing a "national agenda" in Bangor with no "willingness to help find solutions to a very complex set of realities." The WRB forum sounds like an opportunity for the actual nurses to communicate with EMMC management about these "complex" realities. For that reason, it remains unclear why EMMC has refused to attend.