Ambulatory something

The Teamsters are taking it to the streets and passing out leaflets in front of the offices of the attorneys representing an employer in a dispute involving them.

Bad Union

This writer uses the NFL's cancellation of the Hall of Fame game to blame unions. Oh, cancellation of the game and the economic consequences of the lockout are the union's fault. . . .

LMAO! Its a dreadful mis-mash of a piece in the Washington Examiner . . . .

Turn up the heat

Does an employer have the right to turn on heat lamps directed at workers picketing in 99 degree weather? I think we are going to find out.

NFL owners agree to a deal

The NFL's team owners have unanimously agreed to a proposed 10 year contract with the recertified NFLPA which should result in an end to the lockout and teams practicing by the week-end. New Orleans player representative Heath Evans cautions, the players' agreement is not certain. While it appears the economic issues are settled - the owners will not take a slice off the top anymore - Evans claims there are things included in the owners approved deal that the players have never discussed. Also yesterday the August 7 Hall of Fame game was cancelled.

When the music stops

Labor unions know how to starve the beast too. Here's a post about the trouble orchestras are having due to unionization.

Gimme!

Purdham v. Fairfax County Sch. Bd., (4th Cir. Mar. 10, 2011) is an interesting FLSA case involving a public school golf coach who also was employed by the school as a safety and security assistant. The coach claimed he was entitled to overtime for his services as a golf coach. The court determines his duties as a coach were not a condition of continuation in his "day job" and accordingly he was properly deemed a volunteer coach, not an employee. Former Justice Sandra Day O'Connor participated in the unanimous decision.

NLRB Hearing Begins

The NLRB will conduct hearings today and tomorrow on its proposed rules to expedite union representation elections.

Boeing NLRB filing

Former General Counsel to the National Labor Relations Board, Fred Feinstein has posted a piece on Politico characterizing the assault on the decision to issue a complaint in the Boeing case as nothing less than an assault on the rule of law. Its a pretty good statement of a pro-labor argument. Feinstein is not without controversy.

Right to strike

Joe Burns has a pro-labor comment posted at In These Times on the Boeing issue. His point, the opposition to the NLRB's issuance of a complaint is part of the continuing assault on labor's right to strike.

Unemployment rises in June

Bureau of Labor Statistics (BLS) reports a slight uptick in unemployment 9.1 to 9.2%.

Employers must verify immigrant legality

Governor Jindal has signed two bills relating to employers obligations to verify aliens may lawfully work for them. The first, HB 342, requires contractors seeking contracts from state and other governmental entities to use the federal E-Verify system. The second bill, HB 646, requires suspension of a business license or permit for the third violation for hiring an illegal immigrant. UNder this bill the employer could use E-Verify or the traditional I-9 method of verification. First offense $500 fine per illegal immigrant, second offense $1,000, third offense $2,500.

GINA and ADA record keeping

Title I of the ADA and Title II of GINA limit employer access to medical information. Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files, it must ensure that personal health information about applicants or employees cannot be accessed, except under the circumstances permitted by the statutes. The EEOC has issued an informal opinion letter providing some guidance.

Who is the one city employee with an unsatisfactory 2010 performance evaluation?

Jarvis Deberry has an interesting op ed in the July 3rd Times Picayune. It seems that despite there being more than a few marginal employees working for the City of New Orleans, only 31 of the 4,315 city employees evaluated in 2010 were found to "need improvement." I'm not kidding, 31! And just one received an "unsatisfactory."   

I'm not a big fan of employee performance evaluations. I think most employer's do a lousy job of the evaluation process. I also think its implausible to believe that a supervisor is going to give a frank evaluation of an employee he/she does not yet want to fire. As long as a supervisor's department or job is dependent on the performance of subordinates, there is an inherent conflict in the evaluation process that plays against fair evaluations. And no, I don't mean unfavorably towards the employee. Only after a supervisor has made a decision to "get rid" of a subordinate can you expect a full accounting of job deficiencies, and sometimes not even then.

Things go bump day or night

Mayor Mitch Landrieu wants to eliminate bumping rights for laid off workers. Under current rules and employee laid off in one department can "bump" an employee with less seniority in a similar position in another post in city government. Private sector employers have long rejected straight seniority as a basis for layoff decisions. Moreover, outside of the context of collective bargaining, bumping rights are rejected as counter-productinve and disruptive.

Politicking

Why all the furor over the NLRB issuing a complaint in Boeing? Political opportunity.

Rathke on organizing

Acorn founder Wade Rathke has posted three interesting and insightful posts about the new NLRB election rules, here, here, and here. In his first post he correctly sets out the passage to approval and predicts accurately the legal challenges and time table (years). More after the jump

Activist Board considering class action issue

What an activist the NLRB has become. It seems ready to consider finding a ban on class action claims enforced by a mandatory arbitration agreement violates the NLRA. It has solicited briefs on the following:

Did the Respondent violate Section 8(a)(1) of the Act by maintaining and enforcing its Mutual Arbitration Agreement, under which employees are required, as a condition of employment, to agree to submit all employment disputes to individual arbitration, waiving all rights to a judicial forum, where the arbitration agreement further provides that arbitrators will have no authority to consolidate claims or to fashion a proceeding as a class or collective action?

Pending case D. R. HORTON, INC. 12-CA-25764. Searchable here.

Boeing NLRB filing

The NLRB has filed its response to Boeing's motion to dismiss the complaint concerning the opening of a second Dreamliner production line in South Carolina.

Details (and the devil in them)

The NLRB has issued a fact sheet and resources links to provide guidance regarding the dramatic changes in the NLRB's election process. Before a union may represent a group of employees it must establish it is the chosen representative of an un-coerced majority of those employees. Where the issue is contested, the NLRB conducts a secret ballot election. Under the old rules an election is normally conducted between 45 and 60 days from the filing of a petition. The new rules are designed to streamline the process, eliminate an employer's ability to obtain a decision on voter eligibility before the election, and shorten the time between the filing of a petition and the conduction of the election. While this is not EFCA, it certainly advances some of the goals of the failed legislation. Details after the jump

New Rules for union organizing

The NLRB has issued its proposed changes to representation procedures that will dramatically affect the representation election process by shortening the time between petition and election, by creating administrative traps to prevent employers effectively to  investigate issues before they are precluded and by creating union access to employees for communication. For example, the Excelsior list requirement is expanded to include known e-mail addresses of employees, and the information must be provided to the labor organization within 2 days of a direction or stipulation for an election. This together with the new persuader rules for attorneys and consultants finally provides substance to the claim the NLRB is changing the game to help unions organize. There is so much here to digest you can expect much disinformation and a lot of teeth gnashing. We will provide an objective analysis soon.

Victory for large employers

The Supreme Court in Wal-Mart v.Dukes reversed the Ninth Circuit's certification of a class of aggrieved females claiming sex discrimination by Wal-Mart. The court unanimously rejected certification under Rule 23(b)(2) finding individual backpay claims were not incidental to any requested injunctive or declaratory relief. By a 5-4 majority the court also rejected certification under Rule 23(a)(2) because the many claims did not involve common questions of law or fact. This decision likely means certification of discrimination claims for class actions will be significantly reduced to those fitting within this narrow interpretation of the Rule. Very good news for large employers.

Labor Consultant Rules

The Department of Labor has just published its long anticipated new rule governing disclosure of "persuader activity." The rule is designed to require law firms and other consultants to detail the fact of any agreement to undertake certain activities to persuade employees concerning their collective bargaining or organizing rights. As expected the terms are broadly construed to require disclosure.

There will doubtless be significant challenges to enforcement. The new rules require broad disclosure of financial matters for law firms, including arguable economic activity not logically related to persuading employees concerning union representation.

Off Target

Labor has targeted Target for organizing efforts. None of its 1700+ stores is organized. But a petition was filed at a New York store, and the election results are in. By a vote of 137 - 85 the employees rejected the United Food and Commercial Workers (UFCW) as their representative for purposes of collective bargaining.

Walker wins one

In a 4-3 decision, the Supreme Court of Wisconsin has given the Governor a win in his war on public sector unions. The decision overturns the trial court invalidation of the legislation. Previous post here.

Quacks like a duck . . . .

The New York Times has an interesting article about a non-union employee group organizing Wal-Mart workers. The Group, OUR Wal-Mart, does not intend to negotiate collective bargaining agreements, but does intend on assisting workers by using the protections afforded organizing and collective action. It also charges $5 a month in dues. The group is supported by the United Food and Commercial Workers (UFCW). Wal-Mart spokesperson claims this group is a stalking horse for a union. I think its more than that. Sounds like a labor organization.