Economy soars in 4th

The Commerce Department today released 4th quarter GDP figures. The 5.7 growth rate was the fastest growth since 2003. However, of some concern is that much of the growth (3.4 of the 5.7) was derived from businesses building inventory.

No union in State of the Union

President Obama made no reference to organized labor in his hour and ten minute State of the Union address, despite a major emphasis on job creation.

First Amendment trumps NLRA for newspaper

A divided panel of the Ninth Circuit has rejected the NLRB's request for an injunction forcing the reinstatement of newsroom employees who challenged the publisher's adverse actions against them for alleged biased reporting. Why this is important after the jump

ACORN "pimp" arrested in New Orleans

The Times Picayune reports that James O'Keefe, a conservative filmmaker who made surreptitious videos of ACORN employees which went viral, has been arrested as a part of a 4 man scheme to tamper with telephones in Senator Mary Landrieu's Hale Boggs Building offices. O'Keefe reportedly was in town to give a speech to the a libertarian group, Pelican Institute for Public Policy, (scroll down to Events). One of the four men arrested is the son of the acting U.S. Attorney for the Western District of Louisiana. The Department of Justice Press Release is here.

Labor supports Citizens United decision

Citizens United v. FEC, the new Supreme Court ruling on campaign financing has some serious support from labor. Here's why.

Union membership declined in 2009

Today the Bureau of Labor Statistics released its annual Union Members Summary. It is a treasure trove of data. After two years of increasing union membership among wage and salary workers, union membership declined from 12.4% to 12.3%. In raw numbers the number of wage and salary workers belonging to unions declined by 771,000 to 15.3 million. Killer fact, there are more public sector union members (7.9 million) than private sector union members (7.4 million) despite 5 times more wage and salary jobs in the private sector. Public sector union membership rate is 37.4% private sector rate is 7.2%.

Union support key for Brown

The election of a Republican senator in Massachusetts occurred with the help of union members who supported Brown 49% to 46% for Coakley.

Brown's election

The Massachusetts's election of a Republican to replace Ted Kennedy is a dynamic political event. But the interesting story is how will Democrats react. Labor has this right I think, here and here, but the Democrats' reaction is likely to go exactly opposite of producing results. Any significant labor reform is dependent upon Democrats seeking results, more than the fact that they have only 59 senators. A failure to provide results to their base, and by that we do not mean just labor, will result in significantly fewer Democrats in the next congress.

Musicians strike, a sour note

Musicians at the Cleveland Orchestra have called a strike rather than accept a 5% pay cut in the first year of a 5 year contract. Median pay in 2009 was $140,000. UNder the old agreement musicians were entitled to ten weeks of paid vacation.

When is a banner a picket?

The effectiveness of union tactics depends on many factors. Take for example the bannering and leafletting of businesses to protest some union objective. Thats what the Carpenter's union is doing in this California town. The National Labor Relations Act, since Taft-Hartley, prohibits secondary picketing. Thats where a union targets a customer of the employer with whom the union has a labor dispute. Its illegal to picket a "secondary," and the NLRB can enjoin the activity and a union can be sued for damages.

Toxic exposure discrimination

The EEOC's Memphis office has issued a press release about the $650,000 settlement of a race/retaliation case. One of the allegations claims black workers were exposed to higher levels of radiation than white workers. Of significance also this claim is being settled by the purchaser of the enterprise accused of the wrong doing. This settlement underscores the importance of addressing pending employment law claims in the in the purchase/acquisition agreement.

EEOC settles ADA claim in New Orleans

Retailer Saks has agreed to settle, for $170,000, an ADA claim filed by the EEOC,  arising in the New Orleans store. Details here.

Union corruption 2009

Belatedly, the top ten union corruption stories of 2009.

That card check dead horse again

Politicians continue to provide cover for a compromise on passage of a version of EFCA that does not eliminate secret ballot elections, binding arbitration, or draconian restrictions on employer speech. As we have previously blogged, this only makes such compromise easier by creating a public mindset that card check recognition is the only major issue.

Favored litigants?

Two Cornell academics have done a statistical study of employment law case results in the federal court system. They published their results recently in The Harvard Law and Policy Review. Lots of data and charts. Here's their summary:

Nevertheless, we should disclose at the outset our concluding view that results in the federal courts disfavor employment discrimination plaintiffs, who are now forswearing use of those courts. Our study of the federal district courts shows employment discrimination plaintiffs bringing many fewer cases now. Those cases proceed and terminate less favorably for plaintiffs than other kinds of cases. Plaintiffs who appeal their losses or face appeal of their victories again fare remarkably poorly in the circuit courts. The fear of judicial bias at both the lower and the appellate court levels may be discouraging potential employment discrimination plaintiffs from seeking relief in the federal courts.

Wow!

Permanent replacements maligned

The SEIU blog has a post on the term "scab." They quote Jack London, Thurgood Marshall and note the 1987 NFL replacements. But the spot on comment recognizes President Reagan validated the use of permanent replacements for strikers by replacing the air traffic controllers in the early 1980's. Money quote:

Reagan's decision was a huge blow to unions and signaled in a shift in the use of strikes. In the decades before 1981, major work stoppages averaged around 300 per year. From 1985 to 1990, the average was 52. By 2006, the average had dropped to less than 30 a year.

Labor advocate says 2010 or never on EFCA

UPDATE: Trumka calls for spring passage of EFCA. Inevitable loss of the Democrats' 60 seat senate majority makes 2010 a "do or die" year for EFCA. AFL-CIO legislative director Bill Samuel puts forth a pragmatic assessment in this Workday Minnesota piece. Samuel admits the votes were not there in 2009 - Kennedy, Byrd Franken, issues meant no 60 votes. Thats not news, but Samuel's acknowledgment that any bill that passes will be a compromised one is. It signals labor's willingness to address reality. Card check is dead. Has been for some time. Opponents of the bill need to delay a vote on the issue until the public sees past the secret ballot non-issue. As it stands now, largely because opponents of the bill continue to rail against card check and for secret ballots elections, the opportunity exists for labor to seek quick passage of a watered down bill which preserves some form of secret ballot election. Its an opportunity with a closing window, but still an opportunity.

SEIU President Andy Stern gets this. He's already pushing for a spring vote as evidenced in this Financial Times piece. (free registration). The FT piece also evidences the beating of the card check dead horse.

The Needle in the hatstack

Drew Brees has penned an interesting piece in the Washington Post concerning American Needle v. NFL. Thats the case challenging the NFL's right to enter into an exclusive marketing arrangement for stuff with team logos. The small company challenging the NFL's exclusive arrangement with Reebok lost in the lower court which found no anti-trust violation in the deal because the NFL is essentially a single entity for marketing purposes. After the deal took effect the cost of a cap with a team logo increased by ten dollars. If you're thinking what does this have to do with employment law, Saint Drew explains. It seems the NFL is asking the Supreme Court to broaden the ruling. The league wants the Supreme Court to declare the NFL is a single entity for virtually every purpose, rather than 32 extremely competitive football teams. If that were the case, bye bye free agency and the many other advances players earned using the anti-trust laws. Oral argument is set for January 13, 2010.

Sleep with me or no sale

A New Jersey appellate court has found the State's Law Against Discrimination applies to a claim by one business that another ceased doing business with it because its female owner refused the sexual advances of a branch manager of the second business. Sexual harassment claims are normally brought under the employment laws, but New Jersey's LAD is broader. The LAD prohibits a gender based refusal to do business with another. The appellate court had little difficulty determining that quid pro quo harassment was based upon gender here. It remains an open questions as to whether the LAD covers a hostile environment created by one business affecting another.

SCOTUS sets 2 member NLRB argument

The Supreme Court set oral argument in New Process Steel for March 23. The case involves the validity of 2 member decisions by the NLRB. If as reported by the New York Times, President Obama intends to renominate Craig Becker to the NLRB, ensuring further delay in filling the 3 Board vacancies, the case before SCOTUS may affect an increasing number of decisions that will be decided by a two member NLRB.

BLS reports December unemployment remains at 10%

The Bureau of Labor Statistics released December unemployment figures this morning. The economy shed 85,000 non-farm jobs. The total number of unemployed persons was 5.3 million, nearly twice the 7.7 million unemployed in December of 2007. An eye-popping 6.1 million Americans have been unemployed more than 27 months.

EEOC FY 2009 enforcement stats

The EEOC has posted enforcement statistics for FY 2009 on its web site. It also issued a press release. Highlights:

• 93,277 workplace discrimination charges were filed, second only to FY 2008.
• over $376 million monetary relief was recovered
• most frequently filed charges race (36%), retaliation (36%), and sex (30%)

Political suicide

Drawing on history, one former union organizer and Obama campaign staffer claims Democrats who fail to champion workers rights are doomed to electoral failure. Claiming abandonment of EFCA is political suicide for President Obama, Mike Elk supports the claim by citing Truman's 1948 election and claiming Truman's opposition to Taft-Hartley rallied workers to support him over Dewey. The piece further claims Regan's victory over Carter and the 1994 Republican revolution were permitted as a result of sitting Democratic presidents rejecting workers' rights. I don't buy this over simplistic logic. First, union density was a whole lot higher in 1948. Second, blue collar workers were significantly more likely to vote for democrats in 1948 than in 1994, or 2010. That said, if there is no passage of significant labor legislation assisting unions in their organizing efforts, labor might take a hike on the 2010 mid-terms, and that could make 2010 a lot more like 1994.

The new EFCA - what labor wants

Randy Shaw at San Francisco alternative media Beyond Chron acknowledges card check EFCA is dead, something we have been saying for months. But he also defines what labor reform legislation must include to please progressives and labor into continuing financial support for Democrats. The list includes

1. enhanced penalties for violations
2. limitations on employer free speech during union drives
3. fast elections, preferably a week from showing of interest
4. expedited certification of elections
5. binding arbitration for first contracts, not reached by traditional bargaining within 90? days
6. Without these terms, Shaw suggests labor invest its political money in organizing, rather than supporting Democrats in 2010

The single most important item is item 5. Labors organizing failures are in large part due to the deficiency in the product they sell. They sell a service - representation of the membership. If a collective bargaining agreement is not reached, or if the one ultimately negotiated provides little protection and benefit for workers, the product is not attractive to workers, especially since it comes at a steep price monthly dues. If a new law guarantees a first contract will be reached, under threat of the imposition of one by an arbitrator, the union product receives a major enhancement, at least in theory.

Labor's problem is less about the election process and employers abuse of the organizing process. Labor can win elections. Labor's win rate averages over 50% for years, and 60% in 2008. The problem is labor cannot interest enough workers to agree to pay a union to represent them because the product of representation is often deficient, particularly outside of industries that have historically been heavily unionized, like the automakers.

Labor's goal is to be able to organize at a higher volume, attract more members, more quickly. The current election process is not fundamentally broken. It affords a civilized environment in which a discussion of the merits of unionization or remaining union free can be digested by employees. Thats not to say there are not abuses. The problem is the penalties for violation of the rules are not sufficient to cause some employers to comply with the protections the NLRA offers. Official NLRB statistics establish union claims about employer wrongdoing have been wildly inflated.

In an expedited election environment Labor wants to talk to employees in secret for weeks or even months, to sell the employees on buying the unions services, and then call for a quick election to deprive employees from a meaningful opportunity to hear the other side of the story. Labor seeks this because it knows there is a lawful, factual and persuasive other side. It is that factual reality which employees embrace when they decide not to pay the union to represent them.

RWDSU alleges unfair labor practices against Saks

The RWDSU in a press release claims retailer Saks fired 115 workers in its cosmetics department in its Fifth Avenue store in New York in retaliation for their decision to join the retail workers union.

What's next?

Got to think that the absence of any labor topics from this "What's Next" link is telling about the Administration's plans for 2010.

Americans unhappy at work

The Conference Board job satisfaction report got a lot of press this morning. Quick take - Americans are less satisfied in their jobs than at anytime in the past 22 years. In 1987 over 61% of workers were satisfied in their job. In the latest survey the figure was 45%. And that figure is a percentage of the employed, which does not address the satisfaction of the 10% who are unemployed. The eye popper for me was not the 16% over all drop in satisfaction. In 1987 almost 71% of workers 65 and over were satisfied. Today's 43.4% satisfaction rate among the 65 and over is lower than all other age groups except under 25's (35.7%) and 35-44's (tied at 43.4%).

A decade of dispair

Each new year like each new baseball season begins with hope. May 2010 and the remainder of the decade that follows help us put aside the harsh memories of the last decade.  The Washington Post has a piece on the "aughts" which illustrates the utter lack of job growth during the past decade.

"There has been zero net job creation since December 1999. No previous decade going back to the 1940s had job growth of less than 20 percent. Economic output rose at its slowest rate of any decade since the 1930s as well.

And the net worth of American households -- the value of their houses, retirement funds and other assets minus debts -- has also declined when adjusted for inflation, compared with sharp gains in every previous decade since data were initially collected in the 1950s."

We are a little better off in Louisiana. It appears we may be a little ahead of the nation's recovery.  Nevertheless, many here and throughout the country would be hard pressed to say they are better off now than they were in 2000. And those that do likely fall in the Wall Street camp, rather than the Main Street camp.