David Austin was quoted last week in a Vancouver Sun article which discussed an Alberta electricity provider looking to provide power to gas fields in BC. He was also on Global News on Monday night on the topic of LNG development (click here to see the video).

Why is it then that environmental groups sometimes oppose the development of wind power in the courtroom? From a global or even regional perspective, environmentalists should be rallying behind wind power, not opposing.

The short answer is that any commercial-scale, land-based development project within the United States is likely to involve a matrix of regulatory and environmental issues that arise during the siting process. Wind farm siting often involves addressing issues concerning aesthetics, noise and wildlife impacts. In many instances, environmental groups have joined local activists and Nimbies in opposing a wind power development.

A more responsible role for an environmental group, which should recognize the benefits of wind power, should be to mediate siting disputes rather than oppose development. From the environmentalist’s perspective, the more available wind power to generate electricity the better.

Many of the so-called environmental groups that oppose wind power are actually not environmentalists at all, but single purpose organizations whose sole object is to oppose wind development. Most environmental groups have an agenda that balances the pros and cons of various types of energy. However, these single purpose groups do not advocate in favor of anything.

For example, Friends of Maine’s Mountains claim to be dedicated toward working to “foster a civil and fact-based debate with the goal of exposing the true costs of mountain-based industrial wind development in Maine.” This group seeks donations to further its work in “shaping a sound, scientific and economics-based energy policy for the State of Maine.” However, a review of its website demonstrates that it offers neither constructive energy policies nor recommendations for keeping Maine on the energy grid. Rather, it is a NIMBY group that advocates the view that any public or governmental support for wind power is misplaced.

In Friends of Maine’s Mountains v. Board of Environmental Protection, 61 A.3d 689 (Me. 2013), Friends of Maine’s Mountains, along with other environmental groups, opposed the approval of a wind energy project near a lake and multiple homes. The Maine Department of Environmental Protection (“DEP”) set the appropriate nighttime noise level and refused to treat Webb Lake, which is located near the project, as a “scenic resource of national resource.”

The Board of Environmental Protection (“BEP”) upheld DEP’s approval of the wind energy project. However, in doing so, BEP agreed to a higher noise threshold than what it had previously agreed to for wind projects generally. Plaintiffs brought suit to block the plan, claiming that BEP abused its discretion and violated the Maine Constitution.

On appeal, the court agreed that BEP had abused its discretion by approving the higher noise threshold. On the basis of this determination, the case was remanded for further consideration of the appropriate nighttime decibel level.  However, the decision represents a considerable setback for Friends of Maine’s Mountains (and other neo-environmentalists) despite the remand on the noise level issue.

The Supreme Judicial Court rejected plaintiffs’ constitutional arguments that: (1) the Maine Wind Energy Act denied plaintiffs equal protection by denying protection for lakes listed among “Maine’s Finest Lakes”; (2) the Wind Energy Act violated the separation of powers clause of the Maine Constitution; and (3) DEP and BEP denied plaintiffs’ due process rights because of demonstrated bias. The court  also rejected  plaintiffs’ argument that Webb Lake, despite its natural beauty, was deserving of protective “scenic resource” status. The Court determined that legislative action, not administrative orders, determines what lakes in Maine are protected as “scenic resources.”

In addition, the court flatly rejected plaintiffs’ argument that the Wind Energy Act’s criteria for assessing visual impact are overly vague and therefore violative of the Separation of Powers Clause. The criteria in dispute were the six factors that the Board considers when making its determination regarding a wind energy project’s impact on scenic resources.

The court held that a statute is not constitutional merely due to difficult application. For example, in an earlier case, the court grappled with the difficulty of defining an “annoying” dog bark. As difficult as it is to judicially determine when and under what circumstances a bark becomes an annoyance, this criterion was upheld as constitutional.

Maine’s Legislature enacted the Wind Energy Act as a means to promote wind as a renewable energy source and streamline the permitting process for wind energy. Despite the opposition of the NIMBY groups like Friends of Maine’s Mountains, the Supreme Judicial Court had previously held that the “state interest in facilitating the rapid development alternative, renewable energy resources” is a legitimate interest that rationally relates to provisions in the Wind Energy Act.

There is a constructive role for environmental activists to play in the wind power siting discussions, but single-minded opposition to the expanded use of wind power as an energy source is misplaced. These so-called “environmentalists” would better serve their stakeholders by engaging in constructive discussion rather than running to the courthouse.

All mine operators active in Québec will now have to pay a minimum royalty to the Government, that is applied to the value of the ore extracted at the mine shaft head. In consideration of smaller operations and to make it easier to start a mining project, the royalty rate will be set at 1% for the first $80 million of ore extracted. For the excess, the rate will be 4% of the value of ore extracted. This royalty does not consider whether the operation is profitable. Also, this royalty does not permit deductions for other royalties that may also be payable on the same ore extracted.

There has been a lack of clarity in California wage and hour law on how compensation must be structured to meet the “salary basis test,” particularly where an exempt employee is paid based on hours worked. However, in Negri v. Koning & Associates, the California Court of Appeal addressed this very issue and concluded that a compensation scheme based solely upon the number of hours worked, with no guaranteed minimum, is not considered a “salary” for the purpose of state overtime laws. 

Under California law, an employee exempt from overtime laws must regularly receive “a monthly salary of no less than two (2) times the state minimum wage for full time employment” that cannot be reduced except in enumerated exceptions. Most of the litigation over the so-called salary basis test has addressed when deductions may be made from the exempt employee’s compensation without undermining the exemption.

In Koning & Associates, the plaintiff/employee was paid an hourly wage for 40 hours per week so that, in effect, he received an unvarying minimum amount of pay. Nevertheless, the Court found that, based on the employer’s admission that it never paid the employee a “guaranteed salary,” the employee did not meet the administrative exemption.

Although the Court acknowledged based on precedent that the employer may calculate a salary based upon hours worked, it emphasized that this must be a “predetermined amount” that is not subject to reduction because of variations in the quality or quantity of work performed.

The Court recognized that an employee may otherwise be compensated beyond the predetermined amount for extra work without losing the exemption. The key fact that the Court relied upon in concluding that the salary basis test was not met was the employer’s concession that it never paid a “guaranteed salary.”

This case highlights the importance of California employers properly characterizing compensation paid to exempt employees to reflect that it is a predetermined amount, no matter how the “salary” is ultimately calculated.

In 2012 alone, AXA Business Insurance saw a year on year rise of 75% in the number of deafness claims and had more claims for deafness than any other type of workplace injury or illness. The company attributes the rise as a primary reason for an overall increase of over 30% in Employer Liability claims.

According to HSE statistics, around one million people in Great Britain are exposed to levels of noise that could affect their hearing. Current Control of Noise regulations require all employers to provide protection in any working environment where decibel levels exceed 85.

David Williams, Managing Director, Underwriting, AXA Insurance commented: “We would urge employers to be really thorough in ensuring employees are provided with proper protection and that using it correctly is robustly enforced.  By doing this they can help us nip this growing problem in the bud before it starts impacting on their bottom line.”

For legal advice on these issues or any other legal problems you may have, please complete our online enquiry form or call us on 0141 221 1919.

In a case recently decided by the U.S. Court of Appeals for the Eleventh Circuit (National Labor Relations Board v. Harman and Tyner Inc., d.b.a. Mardi Gras Casino, Hollywood Concessions, Inc., 2013 U.S. App. LEXIS 7555), the Court affirmed a District Court’s decision to reject the National Labor Relations Board’s (“NLRB”) petition to obtain temporary injunctive relief seeking to reinstate six discharged employees pending the outcome of an administrative hearing brought as a result of a NLRB Complaint brought against Mardi Gras.  This is one of a series of recent losses the NLRB has received from a number of courts in its strategy to aggressively prosecute employers, many of which are in the hospitality industry.

Mardi Gras operates a casino and greyhound racetrack in Florida. In the underlying administrative complaint against Mardi Gras, the NLRB alleged that the employer had unlawfully discharged certain employees during a union organizing campaign by UNITE HERE Local 355 (the “Union”) in violation of the National Labor Relations Act (the “Act”).  The Act prohibits employers from discriminating against employees for certain protected activities, including the right to engage in union organizing.

Section 10(j) of the Act gives the NLRB the power to petition the Federal District Court “for appropriate temporary relief” pending the outcome of the underlying administrative proceedings. In order to obtain temporary relief under this section of the Act, the NLRB must satisfy two conditions: (1) there is reasonable cause to believe that alleged unfair labor practices have occurred, and (2) the requested injunctive relief is just and proper.  Only the second condition was the subject of the appeal.  The Eleventh Circuit affirmed the District Court’s ruling because it found that the lower court did not abuse its discretion.  It is always important to focus on what the appellate court’s standard of review is in any appeal. In this type of case, it is whether the District Court abused its discretion which gives the lower court much leeway in reaching its decision.

This case is interesting for a variety of reasons, especially for the hospitality industry which has become a prime target of union organization.  While most employers demand that it not only be able to express its position about the need for a union at its place of business, they also demand that its employees be able to vote by secret ballot. Mardi Gras chose to enter into an agreement with the Union that it would take a “neutral approach to unionization” and that it would recognize the Union as the employee’s bargaining representative if a majority of employees signed union authorization cards rather than by secret ballot. In return, the Union agreed that it would not carry on its organizing activities in the casino’s public areas or during the employee’s work time.

Interestingly, the Agreement was signed in 2004 and expired several years later on December 31, 2011. The Union did not mount a full campaign until the fall of 2011, most likely because they did not believe they had sufficient support until then. There is no explanation in the decision why duration of the Agreement was so long.

As of the date of the District Court’s ruling, the Union had only obtained 92 signatures, far short of a majority of 220 employees. In addition, almost all of the cards (84 of 92) were turned in prior to any of the discharges.  The employees were discharged, in the company’s view, because they “stormed the casino and caused a disruption” in public spaces and on work time.

Over four months after the union filed charges alleging that the discharges were unlawful, the NLRB filed a petition in District Court seeking a temporary injunction pursuant to Section 10(j) to reinstate the employees pending the outcome of the administrative hearing.

The District Court denied the petition because the evidence did not meet the “ just and proper” standard required by 10(j). The Court of Appeals affirmed ruling that the District Court did not abuse its discretion in making its decision. The Court of Appeals based its decision on the following: (1) almost all of the union authorization cards were returned before the discharges occurred; (2) as of the date of the District Court’s ruling, the union’s campaign was far from successful, the number of card collected being far short of a majority; (3) the Union waited four months after it filed charges to seek temporary injunctive relief (although it found that the time delay was not dispositive, it was strong evidence against granting the relief sought); and (4) injunctive relief sought under this section of the Act is considered to be extraordinary and “sparingly employed” because it acts to short-circuit the administrative process.

There are a number of takeaways that Hospitality Employers can learn from this case:

1.      The NLRB and its General Counsel will continue to seek temporary relief of this kind in order to put more pressure on employers to settle or agree to an order concerning the underlying allegations.

2.      Employers must be careful to keep close attention to the timing and documenting of its business justification of any adverse action it takes against employees, especially if the action is in close proximity to protected activity such as a union organizing campaign. This is especially true since the NLRB, under the Obama administration, has become more aggressive in prosecuting cases to enforce the provisions of the Act.  It is also especially true at this time since unions have increased their efforts to unionize employers in certain industries including the hospitality industry which is so labor intensive.

3.      If employers are faced with a petition for temporary relief initiated by the NLRB, they must be aware of the wide discretion that the District Court has in granting such relief even though it is considered “extraordinary relief.”  They should consult with Labor counsel to respond in an effective way.  If employers lose at the District Court level, it will be very difficult to overturn its decision on appeal.