Ouch! Union jobs eliminated

Unionized clothing manufacturer Hugo Boss is closing its Cleveland, Ohio plant. The move will put 300+ Workers United/SEIU workers on the street.

2010 union free planning

Bloomberg has a good piece on corporate ramp up in advance of expected legislation to provide an easier path for organizing workers. As noted before, card check is dead, but quickie elections are a likely result of early action in 2010. Its a political necessity for Democrats to energize their labor base.

Labor in Crisis: A retrospective by labor consultant

Year end is always a slow news time. Many bloggers do year end reviews and top ten lists. Basically they help fill a void, and perhaps refresh those with short term memory issues. But Paul Garver's piece at Talking Union is a sober assessment of labor at the end of 2009.

"The penalties are so miniscule . . ."

From the AFL-CIO blog (with video) a GRIT TV segment on union busting. Hint: they blame the consultants for scaring workers away from unionization. Basically Labor continues to engage in the delusion that all workers would join unions "but for" their employer's opposition. But at the end of the video, the point well made is the penalties for serious violations are an insufficient deterrent to employer misconduct. Assuming this aspect of the NLRA is broken,  and there is a lot of agreement among labor relations professionals on both sides on this point, it does not follow that the election process is broken.  With EFCA, unions want employees to choose unionization without providing time for any presentation of the case for remaining union free. That's what is really at stake with both card check and quickie election proposals.

Senate sends NLRB nominee Becker back to President

The Democratic controlled Senate has rejected the nomination to the NLRB of controversial SEIU attorney Craig Becker. The procedural move means the President must resubmit his nomination before the Senate will consider it in a subsequent session.

Bronfenbrenner opines

Kate Bronfenbrenner serves as director of labor education research at Cornell University’s School of Industrial and Labor Relations. In that position she advocates for significant changes in the federal labor laws. She reports rampant violations of worker's rights occur during organizing drives.  According to her sources, who often are the very union organizers who experience failure in trying to get workers to select union representation, worker intimidatiion is the cause of labor's membership decline. Her new opinion piece in the Providence Journal is typical.

Anti-EFCA study challenged

Liberal organization the Institute for Southern Studies rates Layne-Farrar's EFCA impact study seriously flawed. This is not the first criticism of the Layne-Farrar report. The latest edition of Just Labour, a research publication sponsored by Canada's York University's Center for Research on Work and Society, is devoted to the Canadian experience with both card check recognition and mandatory elections to determine representation. There is a lot to digest here, and it has a decidedly pro-labor tilt, but brings to the debate substantial comparative data that challenges assumptions previously made by EFCA opponents.

Oregon captive audience law challenged

U.S. Chamber sues to block enforcement of Oregon law preventing employers from having captive audience meetings with employees during union organizing drives. This prediction is easy. I see no way state regulation of the NLRB campaign process survives a preemption challenge.

Arbitration nixed

Over the weekend President Obama signed into law a provision of the defense spending bill which prohibits military contractors from enforcing arbitration clauses in employment contracts. In significant part the amendment is in reaction to a situation so bad even the Fifth Circuit refused to compel arbitration of all claims.

COBRA subsidy extended

Congress has passed an extension to the COBRA benefits subsidy from nine to 15 months. It also extended the termination date eligibility requirement to February 28, 2010. President Obama is expected to sign the extension.

NUHW wins Santa Rosa election

In a tight vote, Santa Rosa Memorial Hospital healthcare workers have apparently chosen the National Union of Health Workers (NUHW) as their representative for collective bargaining. The vote was NUHW 283, 263 for No Union, 13 for SEIU. There were 17 challenged ballots. The linked article provides significant detail about the contentious fight between SEIU and NUHW, as well as the roller coaster election tallying of ballots. We have previously blogged about this here and here. The SEIU is being accused of stonewalling the certification by not cooperating in the resolution of the 17 challenged ballots. If the challenges are not resolved there will be a runoff election without SEIU on the ballot, In a close election the outcome of a runoff is not guaranteed.

IAM seeks to enjoin Pratt closures

Connecticut Attorney General Richard Blumenthal filed a friend of court brief in supporting a Machinists' union effort to enjoin Pratt and Whitney from moving Connecticut operations to Georgia and Asia. In a Section 301 action, the union claims the company's promise to make a serious effort to keep the work in Connecticut, a promise contained in the current labor agreement, was violated. Moreover, the union contends, the Company never intended to keep the promise. The union's breach od contract action seeks to delay the plant closures for the remainder of the existing contract, at which point they hope to be in a position to bargain for a deal to prevent closure. Trial begins today.

NFLPA promises to "cover" player fine

Mike Florio at NBC's Pro Football talk notes Chad Ochocinco wants to wear fallen teammate Chris Henry's jersey in the Bengal's game against San Diego. He's done it in practice. The NFL likely will fine him if he does. The players union has now said it will "cover" any fine. Florio correctly assesses that this is about the union attempting to score some P.R. points. One has to wonder how union funds can be remitted to cover an individual players fine without creating problem. The collective bargaining agreement specifies fines are to be collected from the player's salaries, and one would assume the Bengals and the league could figure out how to extract payment of the fine from Ochocinco. That would leave the union the option of reimbursing Ochocinco, but does it have the authority to do that? I'm pretty sure that's going to be governed by the union's internal documents and policies.

Wisconsin adds labor history to curriculum

Updated: A new law bill on the governor's desk in Wisconsin requires the inclusion of the history of organized labor and the collective bargaining process in state social studies standards. If Governor Doyle signed signs the bill, December 10th.  and he is expected to do so, s Students are more likely to be taught history associated with the labor movement. Check out the Wisconsin Labor History web site here.

Fantasy football results in real firing

Well it had to happen at some point. Investment giant Fidelity has fired four fantasy football commissioners for gambling. Now that gambling assessment could be a stretch, but at will employment means good reason, bad reason or no reason at all is lawful basis for termination. One of the unfortunate cuts claims his only workplace involvement in the league was receipt of an IM involving Trent Edwards and his less than stellar year. Should have picked Drew.

Supreme Court grants cert. in employee privacy case

The federal Ninth Circuit ruled in favor of employee police officers and against their employer and a service provider who turned over employee's text messages to the employer who paid for the service. The United States Supreme Court granted review to the public employer after having previously denied the private Company's appeal.

ACORN wins preliminary injunction to continue funding

Well I'll be  . . . . ACORN's suit against the United States for cutting off its funding we blogged about here and here took a favorable turn for ACORN. A federal judge has issued a preliminary injunction against the United States requiring continued funding of existing contracts.

Teamsters discipline

Bill Hogan, once a powerful union leader, had a falling out with Teamster President Jimmy Hoffa and was expelled from the union. Details here, here, here and here. Under union rules Teamsters are barred from speaking with the expelled member. Seems the union got an injunction enforcing the private discipline and now Hogan faces contempt of court for speaking with Teamsters including his son and best friend. Union discipline is a private contractural matter. The union's constitution and by-laws establish the rules. When a member violates the rules, the organization may discipline the violator in private proceedings which do not provide due process or right to legal assistance. Members can be expelled or fined for offenses like conduct detrimental to the union. The union then can go to court to enforce the discipline.

Mapping a recession

Very interesting visual of job loss across the country.

Retire and keep your truck

The forced departure of UFCW's Local 7 long time leader, Ernie Duran, comes with a retirement gift. Mr. Duran gets to keep his union owned vehicle, a Ford F-350 truck. Three former Local 7 presidents denied getting a vehicle on retirement.

Unions balk on Cadillac tax

Unions are upping their pressure on Congress to eliminate the 40% tax on "Cadillac" health plans. Cadillac plans are currently defined as those with annual premiums over $8,500 for individuals and $23,000 annually for families.

Fired!

The manager of the Florida McDonald's who told a transgendered applicant, employment would not be offered to "faggots," has been fired. The manager actually called the applicant and left a "hateful voicemail." The adverse action against the manager was based upon the employer's non-discrimination policy which was interpreted to include discrimination against LGBT. The State of Florida does not have a law protecting LGBT. This case underscores the importance of thinking before leaving a voicemail, as well as the fact employers can use a lot of reasons broader than the law to justify termination of an employee.

ACORN love shown

The anti-ACORN media churn continues with pols, pundits and teleprompt readers continuing their bash. However, man bites dog every now and then.

EFCA by regulation

The Republican members of the House House Committee on Labor and Education issued a press release warning of an EFCA backdoor ploy. Essentially the release highlights and links to Philip Klein's American Spectator piece about government by regulation. Elections have consequences.

Union reform?

Here's an interesting piece on union reform, and its limitations.

DoL prioritizes

The DoL has issued its Fall 2009 Semi-Annual Regulatory Agenda.

ACORN vindicated?

A former Massachusetts attorney general has issued a report on his internal investigation of ACORN. ACORN CEO Bertha Lewis characterized the report as "part vindication, part constructive criticism and complete roadmap for the future." We doubt the results of a self-audit will stop bloggers, pundits or Republicans from continuing to pile on criticism of the organization.

South Carolina 787 Washington 0, round 3

Boeing has announced it plans on duplicating all parts manufacturing near its new South Carolina 787 final assembly facility. Nothing will be uniquely manufactured in the Puget sound area. This will allow the South Carolina facility to operate completely independent of the Washington facilities and their strike prone Machinists union.

Third quarter productivity revised downward

Update: The Bureau of Labor Statistics released revised third quarter statistics last week. Getting a lot of press was the eye-popping October 10.2% unemployment rate which declined to 10.0% for November. But the real eye-popper is the fact that Nonfarm business sector labor productivity increased at an 8.1%  increased at a 9.5 percent annual rate. You have to go all the way back to the third quarter of 2003 to find a better rate of growth (9.7%). I'm no economist, but productivity normally does not increase during a recession. Employers tend to be slow to "downsize" their most valuable employees rendering certain built in inefficiencies of production. But not this time. Over the last year, output increased 4% while hours worked decreased 5% and unit labor costs declined 3.6%. Historical data provided here, and third quarter details and charts here.

Employer may decrease benefits to avoid taxation

A recent survey indicates 63% of the employers surveyed would reduce healthcare benefits below "Cadillac" levels in order to avoid taxation.

Unemployment declines

On a somewhat surprising note the Department of Labor released November unemployment statistics which showed the unemployment rate dropping to 10% from October's 10.2%.

DoL has helpful law summary

The Department of Labor has a a new web site and one helpful resource is an overview of the laws and Executive orders affecting employers which it administers.

SEIU: "EFCA = jobs"

The SEIU's Anna Burger participated in the White House jobs summit. Burger presented a nine point plan for jobs creation. Point Number eight is passage of the Employee Free Choice Act [EFCA].

Could Dana Corp be the EFCA compromise?

One of the things the NLRB does well is compile and release statistics on case handling. Sure its self-serving in part, but it does provide raw data. In the latest report there is a real nugget. More after the jump.

"The [NLRB] received 482 requests for Dana notification during FY 2009.  In seven of these matters, a petition for certification (RC) was filed after notices to employees were posted.  In 27 of these matters, a petition for decertification (RD) was filed after the notices were posted."

Dana Corporation involved a new process for addressing concerns that employees did not have an opportunity to vote on whether or not they wanted union representation in the situation where an employer agrees to recognize a union based upon a petition or cards signed by a majority of the employees in a unit appropriate for collective bargaining. Dana provided employees with a 45 day window in which to seek a showing of interest for a secret ballot election. The new procedure required the posting of a notice advising employees of the path to seeking an election. The MLRB issued the notice 482 times during FY 2009. Labor absolutely loathed the Dana decision because it intruded upon the cozy relations it had with some employers. But these new statistics support our prior conclusion a Dana approach might be a very good way for Unions to pass a modified version of EFCA that has a back-end Dana opportunity for a secret ballot vote. Less than 10% of the Dana notices resulted in the filing of election petitions in FY 2009. Had the unions embraced card check with a Dana option the secret ballot election argument would have been muted, political support easier to garner and yet few challenges would result in secret ballot elections. As in the previous post, we must clearly disclaim any support for this approach, and as a representative of employers, are happy the unions rejected it too.

SEIU urges employees to "Vote No Union"

After abandoning its efforts to organize employees at Santa Rosa Memorial Hospital, the SEIU has joined with management urging workers to vote against the unionization effort by NUHW. We've blogged on this situation before.

Union threatens Christmas tree lighting

Will tonight's broadcast of the Rockefeller Center tree lighting happen? The union says maybe not and blames NBC.

Shipyard workers ratify contract extension

In a low turn out election, employees at Pascagoula's Northrop Grumman shipyard ratified the contract extension previously discussed in this post. Hat tip to Kathy Burns at USMI.

Time to move on

Here's an example of an anti-EFCA piece beating the dead horse of no secret ballot elections. Assuming the 16% support for card check is an accurate figure as it appears to be, its time to move on to the objectionable aspects of compromise legislation, like quickie elections and binding arbitration of first contracts. At this point all a message like this does is make it appear the sole evil is the absence of a secret ballot election.

WFI on EFCA

Glenn Spencer, the E.D. of the U.S. Chamber of Commerce's Workforce Freedom Initiative has penned an EFCA update. He does a nice job of summarizing the last year's efforts and the likely future, and uncertain, legislative path labor law reform may take. He aslo notes Labor's "Plan "B" is to look to the NLRB, including nominee Craig Becker, to initiate union friendly procedural changes to the process of selecting union representation.

After card check

The American Spectator has a general update piece on EFCA. Not much new here except the "Beyond EFCA" headline. Its prescient. Card check is doomed. Quickie elections is the new thing. Can the unions get "beyond" card check? If they don't, any legislation is doomed. As we've said before, employers also need to get past any attacks on the proposed legislation taking away secret ballot votes. It wont. All the fear-mongering about taking away secret ballot votes plays into the hands of compromise involving quick elections.

LA Third Circuit denies enforcement to over-broad no solicitation agreement

The Louisiana Court of Appeals for the Third Circuit recently affirmed a trial court grant of summary judgment refusing to enforce a non-compete/customer solicitation agreement. The Court made it clear that the Third Circuit requires a geographic limitation on both the non-competition agreement as well as the no solicitation agreement. The Court found the agremement deficient "in two respects: it does not designate the parishes or municipalities in which Bledsoe is prohibited from soliciting customers, and it purports to prohibit him from soliciting potential customers." H. B. Rentals, LC, et al v. Maurice Bledsoe, Jr., CA 09-478 LA Ct App, 3rd Cir. 09-478 (La.App. 3 Cir. 11/04/09); 2009 La. App. LEXIS 1865.

Canadian card check scholarship

We have followed other comments on the effect of card check legislation in Canada and its relevance to analysis of the issue in the United States. Previous posts are here and here. Now there is something with a lot of substance to review. More after the jump.
The latest edition of Just Labour, a research publication sponsored by Canada's York University's Center for Research on Work and Society, is devoted to the Canadian experience with both card check recognition and mandatory elections to determine representation. There is a lot to digest here, and it has a decidedly pro-labor tilt, but brings to the debate substantial comparative data that challenges assumptions previously made by EFCA opponents. Digesting the writings was on the Thanksgiving holiday agenda, but tryptophan got in the way. More soon.

Healthcare reform

This blogger has resisted posting about healthcare reform because there is ample information about every facet of legislation that essentially remains a work in progress. Once there is a final result, bill passes or bill is defeated, we will have plenty of opportunity to comment on the effect of the final result upon employers and their employees. For now we will note that labor supports the House version of the bill. As for the Senate bill, Labor will lobby to increase employer mandates, eliminate the excise tax on Cadillac plans and include a strong public option.

Unemployment by state

Charles Franklin at Pollster.com has posted a state by state analysis of unemployment which depicts state and national unemployment since 2001.

McDonald's liable for prank call

In a Kentucky McDonald's in 2004, a prank caller convinced an assistant manager to interrogate an 18 year old employee. The caller, claiming to be a police officer investigating a theft, convinced the assistant manager to take the employee's clothes and hold her in an office for several hours. A video of the ordeal which includes an interview with the victim and the assistant manager as well as graphic surveillance video of the incident is posted on You Tube. On Friday an appellate court upheld a jury verdict awarding $6.1 million in punitive and compensatory damages to the employee. The opinion is here. This case turns on state law issues, including workers compensation exclusive remedy and employer liability for third party criminal acts. But the killer fact was a hoax caller had duped McDonald's more than thirty times between 1994 and 2004. The court noted that McDonald's had not taken steps to warn or train its managers about the calls.

Unionize your sleep

As we enter the holiday season, the friendly folks at UNITE HERE have produced a web site that allows you to search for lodging where the employees are represented by UNITE HERE. A few searches revealed no facilities in Alabama, Arkansas, Mississippi or Tennessee. Louisiana has one facility in New Orleans.

OSHA and crowd control for retailers

The Occupational Safety and Health Administration has issued a fact sheet for retailers expecting large crowds of holiday shoppers. Last year a security guard died after he was trampled by shoppers. The fact sheet is available at the OSHA.gov site. Sometimes the link to the fact sheet produces gibberish. Those who read OSHA regs will appreciate the irony.

An EFCA game

While the substantive provisions of the proposed Employee Free Choice Act are anything but a game, there is an interesting online game, Card Checked. It has a mid-1990's look and feel, but also some good points about how workers can be pressured into signing cards.

Resignation appropriate

The SEIU local president who threatened legal action over a municipality permitting an eagle scout to clear a walking trail rather than hiring the city's union workers, has resigned his union position.

Chamber cites bias in labor literature

The U. S. Chamber of Commerce has released a White Paper report which skewers the research methods and conclusions of Kate Bronfenbrenner and others claiming employer misconduct in representation proceedings suppresses unionization. The study criticizes Bronfenbrenner's reliance upon chief union organizers for assessing the campaign environment while ignoring employer advocates. The study does a particularly good job of using current NLRB data to correct the misstatements and conclusions of the pro-labor writings of Bronfenbrenner and others.

ACORN dumps

Fox reports ACORN dumped sensitive documents shortly after California AG Jerry Brown announced an investigation of ACORN's activities. The private investigator who uncovered the wrongdoing claims the 20,000 documents he found show illicit activity between ACORN an bank and a union. No details were provided. It is clear, however, that much sensitive personal information was in the documents - an identity theft treasure trove.

Fifth Circuit affirms SJ in same sex harassment case

Ho hum, the Fifth Circuit affirmed a district court's grant of summary judgement in a same sex harassment case. In Love v. Motiva Enterprises L.L.C. a divided court found Ms. Love (really, thats the plaintiff's name) failed to establish, with credible evidence, that the harasser was homosexual, an element of a same sex harassment claim in the Fifth Circuit. Much more after the jump.
Citing La Day v. Catalyst Tech., Inc., 302 F.3d 474, 478 (5th Cir. 2002). The court noted

A plaintiff in a same-sex sexual harassment case may establish discrimination because of sex by showing: (1) “the alleged harasser made ‘explicit or implicit proposals of sexual activity’ and provid[ing] ‘credible evidence that the harasser was homosexual;’” (2) “the harasser was ‘motivated by general hostility to the presence of [members of the same sex] in the workplace;’” or (3) “‘direct, comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.’”  Id. (quoting Oncale, 523 U.S. at 80, 118 S. Ct. at 1002).  It is the claim that this case involves the first type of evidence.

The court's majority (Smith and Reavely) wrote:

evidence shows that Sirey derided Love, frequently calling her a “stupid bitch,” “fat cow,” and “disgusting.”  She allegedly told Love that she was a “sorry excuse for a woman because she did not make the coker conducive for women to work in;” that she was a “failure as a woman;” and that “You think that’s a body you have?  You should be ashamed.”  Sirey also allegedly touched Love with her hands on two occasions.  On the first, Sirey confronted Love in the changing room and ran her finger under Love’s bra strap and her underwear near her hip while at the same time calling Love “fat” and “disgusting.”  On another occasion, Sirey began rubbing Love’s shoulders and back while Love was at the lunch table.  When Love protested, Sirey said she was “just being friendly.”  Love testified that Sirey also would seek her out at company functions, stand next to her, and touch her arm to let her know Sirey was present.  We agree with the district court, that these incidents, while offensive and inappropriate, do not support an inference of sexual attraction and implicit proposals for sex in light of Sirey’s consistent insults toward Love and demonstrated negative feelings about Love and her appearance.  Sirey’s conduct is more indicative of humiliating or bullying behavior.

And this is a not so remarkable opinion on those allegations. The majority opinion goes on to note that Love alleged that after she has weight loss surgery

and return to work from surgery she was obviously more attractive to Sirey, and that Sirey’s inappropriate conduct was no longer accompanied by negative remarks. According to Love, Sirey tried to hug her on her first day back at work while giving Love a ride in a company truck.  She also argues that on at least twenty occasions, Sirey rubbed her breasts against Love while reaching for a log book located in Love’s work area.  Sirey also locked Love in the women’s changing area and bathroom, stating that she would not free Love unless Love were nice to her and did favors for her.

The majority found the negative remarks continued after Love's return to work and that the pervasive pejorative remarks precluded a finding that any implicit proposals for sexual activity had occurred.

The majority also noted Love failed to establish her tormentor was homosexual either by her deposition, or by a declaration by a coworker who "heard Sirey state loudly several times that the reason the men did not like her was because she was gay or female.” The majority dismisses this evidence

But we do not find the statement to be clear and credible proof that Sirey is homosexual sufficient to defeat summary judgment. It is not clear whether the co-worker was uncertain which of the two conditions Sirey allegedly asserted as the reason for the men’s feelings or whether the co- worker heard Sirey express one or both conditions.  But at most, the statement indicates Sirey’s assessment of what her male co-workers think about her and does not affirmatively show Sirey is homosexual.

That sure seems to be a failure to see the evidence in the light most favorable to the non-moving party. The dissenting Judge (Dennis) takes the majority to task for that and other reasons.

The summary judgment record reflects that, over a period of a year-and-a- half when Love and Sirey were co-workers at Motiva’s Norco refinery, Sirey repeatedly rubbed her breasts and groin area against Love’s legs and upper body; touched Love under her bra and underwear straps while she was otherwise undressed; requested sexually-charged “favors” from Love on numerous occasions while, at times, fondling her own body; attempted to kiss and hug Love; complimented Love on her good looks; and stalked and touched Love at company functions and at Love’s work station.  Separately, Sirey was seen intimately kissing another woman and overheard referring to herself as “gay.” Yet the majority concludes that Love’s claim for same-sex sexual harassment does not survive summary judgment because Sirey’s alleged advances were canceled out “when considered in the context of Sirey’s rude and obnoxious persona . . . and her overall insulting and intimidating attitude toward Love,” maj. op. at 4, and because Love did not “show . . . that Sirey is homosexual[,]” id. at 5.

The entire dissent in this unpublished opinion is worth the read.

Teachers' union "insanity"

As an ad hoc faculty I am sensitive to education/employment issues, but my unpaid teaching job does not blind me to the idiocy of teacher unions. Seems the teachers who teach advanced placement courses in Boston were eligible for performance based bonuses based upon the number of students who passed the AP tests. The schools which used the bonus system saw a 39% increase in passage. But the Teachers' union complained, not about the bonus, rather that the recipients were the teachers teaching the AP courses. The union wanted all teachers to share in the bonus irrespective of their efforts at teaching the AP students.

Mississippi shipyard contract extended

Northrop Grumman's Pascagoula, Mississippi shipyard reached agreement on a two year contract extension with various labor organizations representing employees. The current agreement, reached after a month long strike in 2007 was set to expire in March 2010. Key benefits are wage increases each year and a $1,000 ratification bonus. Employee contributions for monthly health insurance premiums will not rise over the course of the extension.

EEOC charge filings up in FY 2009

The EEOC has released its 2009 Performance and Accountability Report which indicates an increased volume of charge filing over the last year.

Hostile environment claim fails

Calling an African-American employee "boy" even on multiple occasions, is not sufficient evidence to withstand summary judgment according to the Eleventh Circuit. Hat tip to the Workplace Prof Blog. More after the jump
Alexander v. Opelika Pub. Schs., No. 08-11014 (11th Cir. 11/10/09) is an unpublished opinion which upholds summary judgment against an employee who claims

that he was called “boy” constantly, but could only recall eight specific instances over the course of two years where he was called “boy.”  Second, in examining the severity of the alleged conduct, the most severe comment was made by his supervisor about how to tie a noose around a person’s neck.  This comment, however, was not directed toward Alexander, and Alexander testified that he did not know whether this comment referred to black people.  Further, none of the alleged racial comments contained threats of physical violence, and he did not demonstrate that the comments interfered with his job performance.

Based upon this showing, the Court concluded there was not sufficient evidence presented for a reasonable person to conclude that the harassment was frequent or severe. This case underscores the hesitancy federal courts have to find intentional discrimination when confronted with workplace insensitivity. It seems the unspoken rule is, that absent some objective showing actual job performance is adversely affected by the alleged harassing event, summary judgment is appropriate. A black worker being called "boy" by his supervisor and co-workers on 8 specific occasions, and additionally on occasions which the employee had no specific memory is not pervasive harassment.

Google for legal research

For several years I've done basic labor and employment law research on Google. Its not for everything, its not where you can Shepardize (need Lexis for that) and necessarily search for the latest decision, but when you want to grab a case or generally search a topic, it's been pretty good. Its also easy to use and the searches seem to return more of what I want than the premier research sites. Good just got better this week. Google now provides federal and state caselaw and access to legal articles through Google Scholar, and, uh, its free.

Former organizer decries Unite Here's tactics

The New York Times has an interesting article on the complaints of union organizers about the manipulative practices used by the union including abusing the privacy of the organizers.

Labor Law scholarship

Volume 70, Issue 1 of the Louisiana Law Review (LSU) has 3 important labor law articles. The first by William Gould, "New Labor Law Reform Variations on an Old Theme: Is the Employee Free Choice Act the Answer?" The second, by Catherine Fisk "First Contract Arbitration and the Employee Free Choice Act" and the third, by Henry Drummonds "Reforming Labor Law by Reforming Labor Law Preemption Doctrine to Allow the State to Make More Labor Relations Policy."

SEIU/NUHW continue the fight

San Francisco alternative news source BeyondChron has a couple of interesting articles on the SEIW/NUHW dispute. The first details the support NUHW has received from Bay area progressives and labor leaders as well as the increasing isolation of the SEIU. The second, posted Nov. 18, details SEIU's egg throwing at NUHW supporters. A separate post from the Business and Media Institute details SEIU's misadventures well covered in the blogosphere, but ignored by ABC, NBC, CBS. The post ignores Fox.

EFCA 2010 or bust?

A recent post at The Hill quotes the SEIU's Andy Stern as challenging the 60 Democrats to work as a party of one and Pass EFCA in 2010. The real news is Stern isn't betting on that happening.

Teamsters diversify

First it was truckers, then librarians, then zookeepers and now film and TV composers - - all Teamsters.

Impasse on tap

Tonight's labor law class will discuss the concept of impasse as it relates to the duty to bargain under the National Labor Relations Act. What better example of the hazards of unilateral action than the case of the Michigan beer distributers who one after another bargained with a Teamsters Union local, each one declared an impasse was reached and unilaterally imposed a new contract with what the NLRB described as "substantially lower income and reduced benefits for employees, particularly the drivers." Ultimately the distributors were found to have bargained in bad faith and were tagged with a $41 million dollar back pay award.

Independent contractor status determined by economic reality

A recent Fifth Circuit opinion reverses summary judgement in favor of the employer against the claims of cable splicers who asserted they were not paid overtime as required by the Fair Labor Standards Act [FLSA]. The district court granted summary judgement after finding the cable splicers to be independent contractors, not employees. The per curium opinion concluded that cable splicers who worked on a steady and reliable basis over a substantial period of time exclusively with the defendant were sufficiently economically dependant upon the alleged employer to be employees, not independent contractors.

EEO poster deadline Nov. 21

The EEOC has posted online a revised EEO poster, and a supplemental poster to address GINA. Employers should post updated posters by November 21. The EEOC web site allows employers to download a full new poster, or just a supplemental poster if they already have a poster. Also an employer may order up to ten posters for mail delivery. Many employers pay commercial services for these items. The EEOC provides them for free.

S.J. on assault claim

DePree v. Saunders is an academic dispute case concerning a faculty member at the University of Southern Mississippi. Its a fairly unremarkable due process, first amendment, qualified immunity case. But scroll to the end for the not so mundane discussion about assault. More after the jump.
From the opinion:

"This leaves only DePree’s assault claim against Appellee Niroomand. Under Mississippi law, assault occurs where a person “(a)... acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.” Webb v. Jackson, 583 So.2d 946, 951 (Miss. 1991). According to DePree, Niroomand “aggressively walk[ed] toward [DePree], yelling at [him], repeatedly referring to [him] as a ‘son-of-a-bitch,’ and shaking papers in his face creat[ing] an apprehension in [DePree] of an imminent harmful or offensive contact.” Appellee Niroomand contends that DePree’s apprehension was not reasonable. We agree.  Taken in context, these statements and actions could not create a reasonable apprehension of imminent, harmful contact.  DePree and Niroomand had squared off in similar past confrontations without offensive contact. Nothing in the current claim suggests DePree could have reasonably feared Niroomand just because he cursed and rattled papers in DePree’s face.  No triable fact issue of an assault arose here."

WOW! As a defense attorney for employers, I like the precedent for those sticky state law intentional tort claims, but I can't see this not getting to a jury on DePree's state of mind. The court grants summary judgment by finding it unreasonable to fear an assault in this context. The Mississippi statute doesn't have the limiting word "reasonable" in it. Assuming, as you must, the actor intended harm, shouldn't he take the victim as he finds him? The issue is the putative victim's state of mind. How can the Court preclude a fact issue on whether there was real apprehension? This is not the same situation where an objective fact, be it distance, physical restraints, or other barriers to harm exist. The court just says any apprehension was unreasonable.

The Restatement does not seem to support this result. To prove assault, a plaintiff must demonstrate that: (1) the defendant placed the plaintiff in fear of harmful contact; (2) the feared contact was imminent; and (3) the defendant intended that the plaintiff fear the imminent harmful contact. Restatement (Second) of Torts 21(1) (1965). If an actor acts with intent to harm and there is an apparent ability and opportunity to carry out the threat immediately, that would seem enough to permit the victim to convince a trier of fact.

GINA effective date November 21

In May of last year, President Bush signed the Genetic Information Nondiscrimination Act also referred to as GINA, a new Federal law that prohibits discrimination in health coverage and employment based on genetic information. The provisions affecting employers take effect November 21. The Department of Health and Human Services has issued a fact sheet describing the Act's coverage. more after the jump.
The fact sheet is pretty informative, but notes things are subject to change based upon as yet unimplemented final regulations. Couple of key points, GINA sets a federal floor of protection. Where state laws provide more protection employers and insurers must comply with them also. Second, "GINA generally will prohibit discrimination in health coverage and employment on the basis of genetic information.  GINA, together with already existing nondiscrimination provisions of the Health Insurance Portability and Accountability Act, generally prohibits health insurers or health plan administrators from requesting or requiring genetic information of an individual or the individual’s family members, or using it for decisions regarding coverage, rates, or preexisting conditions.  The law also prohibits most employers from using genetic information for hiring, firing, or promotion decisions, and for any decisions regarding terms of employment."

The New York Times has a pretty good article on the Act.

More on ACORN's suit against the United States

One of the attorneys involved is Bill Quigley, who is Legal Director at the Center for Constitutional Rights. Their press release post is here. Among the Constitutional issues is the claim that singling out ACORN for defunding constitutes a Bill of Attainder.

EFCA planning

I'm thinking that when the NLRB gains its three new members it may focus early on accessibility issues for labor even before whatever passes for EFCA is passed. We've discussed Chairman Liebman's dissent in Register Guard previously. In addition to e-mail policies we also think employers should be proactive in anticipating challenges to no access, no solicitation and no distribution issues. Crucial to the analysis will be the ability to predict outcomes. Crucial becomes critical when the organizing begins.

ACORN v. United States

ACORN has sued the federal government. It claims Congress' decision to cut off funds to the group is unconstitutional because its a punitive measure targeted against a single entity. The suit also paints a bleak picture of layoffs, program discontinuations and office closures. An abbreviated version of the Times-Picayune dead tree edition article can be found here.

EFCA follows healthcare

AFL-CIO President Richard Trumka admits to the Wall Street Journal healthcare legislation is a higher priority for labor than EFCA.

Union statistical data

A treasure trove of statistical data about union density on a national and metropolitan area basis can be found at http://www.unionstats.com/. For example, in 2008, 4.4% of workers in the New Orleans Metropolitan area were members of a union, and 6.3% were covered by a collective bargaining agreement. In the private sector alone the figures are 2.1% members and 2.8% are covered. Public sector membership was 19.6% and covered by CBA stood at 29.6%.

UFCW threatened strike

The Arizona Republic does a good job of discussing the potential UFCW strike against Frye's and Safeway. The piece also discusses the effects of the 2003-2004 strike against the same companies lasting 20 weeks and which involved 70,000 workers. It cost the companies an estimaterd $2 billion.

Union demographics

The Center for Economic Policy Research has released a new study on the changing face of unions.

• In 1983, women constituted 35% of unionized workers, today its 45% and women will be in the majority before 2020.
• only 1 in 10 unionized workers works in manufacturing
• almost 50% of unionized workers works in the public sector
• In 1983, 20% of unionized workers had a college degree, now its 37.5%

Third quarter productivity grows at 9.5%

The Bureau of Labor Statistics released third quarter statistics last week. Getting a lot of press was the eye-popping 10.2% unemployment rate. But the real eye-popper is the fact that Nonfarm business sector labor productivity increased at a 9.5 percent annual rate. You have to go all the way back to the third quarter of 2003 to find a better rate of growth (9.7%). I'm no economist, but productivity normally does not increase during a recession. Employers tend to be slow to "downsize" their most valuable employees rendering certain built in inefficiencies of production. But not this time. Over the last year, output increased 4% while hours worked decreased 5% and unit labor costs declined 3.6%. Historical data provided here, and third quarter details and charts here.

Man bites dog

IBM has introduced another innovative healthcare approach. Beginning in 2010, the company will pay 100% of its employes primary care costs. Previously the company had introduced a wellness program, with incentives. IBM estimates its $79 million expenditure for that program saved the company and the employees a combined $191 million in healthcare costs. When you have 115,000 employees in the United States you have a pretty good statistical sample for savings. It is unclear whether this approach would affect savings for small employers.

Workplace distribution of swine flu vaccine defended

In an effort to tamp down criticism of swine flu vaccine being provided to certain businesses, including Goldman Sachs, and Citigroup, a Centers for Disease Control official defends the practice of shipping small lots to workplaces as an efficient method of reaching high risk individuals. Employers who engage in the distribution should do so on a voluntary basis and pursuant to written informed consent. Better yet, contract with a third party healthcare provider to provide the service. Employers should be cognizant of discrimination issues previously posted here, and healthcare providers should check this out.

South Carolina 787 Washington 0

We've seen a lot of unspecific discussions about the Boeing/IAM negotiations central to the company's decision to locate its second 787 assembly line in South Carolina rather than in Washington state, but this latest article details how far apart the Machinists union and management were in contract negotiations.

Resigned?

The Teamsters claim a recently resigned International Vice President, who earned $288,000 a year from his work with the union, was not "forced out." There were, however, allegations he sexually harassed a union secretary.

AG seizes ACORN computers

The Times Picayune reports agents from the Louisiana Attorney General's office executed a search warrant and seized a hundred or so computers from ACORN's New Orleans offices. The AG's ongoing investigation into financial irregularities stems in part from suspicion that the acknowledged embezzlement scandal involving Dale Rathke may involve a lot more missing money than acknowledged by the organization. Prior subpoenas for information also indicate the AG is investigating non-payment of withholding taxes, obstruction of justice and ERISA violations.

Jobless rate hits 10.2%

The nation's rate of unemployment soared to 10.2% in October. This is the highest rate since April of 1983. Its the 22nd month of job losses, the longest streak since record-keeping began in 1939. The Bureau of Labor Statistics press release is here.

NLRB election video

The NLRB has posted a video (in English and Spanish) which details the NLRB representation election process. It  presents a detailed step by step account of the process. It is a thorough, objective primer on the details of the way things are supposed to be. While it provides an objective overview, it does little to prepare a viewer for the reality of a contested election.  Nevertheless it is a good overview for anyone needing to understand how the NLRB addresses the election process. I intend to use it in my labor law course, and it will be 20 minutes well spent.

EFCA and Canada

This Forbes.com piece does a good job of pointing out the differences between Canadian labor laws and ours. Canada's federal labor law applies to federal employees and certain national industries (i.e. banking) - about 10% of the workforce. Canada leaves the regulation of the other 90% to her provincial governments. In 1975, all of them used something like the original EFCA's card check provisions, but today 6 of the Canada's 10 provinces provide for secret ballot elections. We have previously written about Canadian labor law here and here.

South Carolina 787 Washington 0, part 2

The State.com has a good background piece on the South Carolina wooing of Boeing, including involvement of Senator Lindsey Graham.

Wisconsin adds labor history to curriculum

A new bill on the governor's desk in Wisconsin requires the inclusion of the history of organized labor and the collective bargaining process in state social studies standards. If Governor Doyle signs the bill, and he is expected to do so, students are more likely to be taught history associated with the labor movement.

Philly transit workers strike

A strike by transit workers in Philadelphia takes a toll on low wage workers and others who  commute to work on SEPTA.

SEIU as bad guy - again

Update 11/3/09: Earth Times reporsts the NLRB has set a December 17th election for workers at Memorial Hospital. The latest article details the 6 year effort, and SEIU's tactics to prevent an election on a petition filed by a rival union. Monsignor Brenkle previously posted an opinion piece about workers in a Santa Rosa, CA, Catholic hospital being denied the opportunity to vote on whether they wish to unionize. The obstacle isn't management now, its the Service Employees International Union. More after the jump
Monsignor Brenkle's first involvement occurred because the hospital was insisting that employees wishing to unionize follow NLRB procedures. The Bishop of the Diocese of Santa Rosa asked the Monsignor to mediate between the SEIU and hospital management. Seems the problem is Management believed in actually challenging the union effort by presenting information placing the union in the "worst possible" light. Monsignor Brenkle has concluded the NLRB process is "no longer a fair or adequate framework for moderating union organizing efforts." There is no discussion of the reasons why over the last 10 years such an unfair process results in unions winning over 50 percent of the contested elections. In April of this year a petition was filed seeking to have the National Union of Healthcare Workers certified as the employees bargaining representative. Since that time the SEIU has used NLRB "blocking charges" to prevent a vote by employees, much to the ire of Monsignor Brenkle. The NUHW, an independent union, call the SEIU's tactics "dangerous and antiworker."

Raytheon machinists ratify contract

IAM members overwhelmingly approve a new 3 year contract with Raytheon Missile Systems, thereby avoiding a repeat of the 10 week strike which spanned late 2006 into 2007.   Wage increases are set at 2.75%, 2.75% and 2.5%. Health insurance premium increases were capped at 22.5% for the first year, and 25% in each of the final 2 years.

Labor's problem

Does anyone care about labor anymore? This tampabay.com article does a good job of stating the problems labor has.

Two Member Board decision gets SCOTUS review

The Supreme Court today granted certiorari in 08-1457 New Process Steel, L.P. v. NLRB. It is the Seventh Circuit case upholding the NLRB's authority to issue  2 member Board decisions. The NLRB had petitioned for certiorari in Laurel Baye, where the D.C. Circuit had denied enforcement of a 2 member decision holding a two-member panel did not constitute a quorum as required by the National Labor Relations Act (NLRA), previous post here.

SEIU Local 100 is no more

Updated 9:10 a.m. In the wake of the SEIU revoking the charter of Local 100, the local's blog notes it is reverting to United Labor Unions, Local 100, which was its original name when founded in 1980. Although promising a new blog, the old posting still sports the SEIU affiliation. Well, well, the old site is taken down. I wonder if that had anything to do with the posting of the message? Updated 7:40 a.m. The old site is back up.

Union made candy for Halloween?

Last minute Halloween shoppers are urged to buy union made candy at the Change to Win blog. Union made candy listed. Knowledge is power, choose accordingly.

Union busting exposed!

Just in time for Halloween, we have a pro-EFCA blogger posting about Union Busting. More here at the website. Supervisors talking points exposed here. Pretty hysterical in multiple senses of the word.

Boeing move not isolated

Boeing's move to South Carolina, a bad thing for the Machinists' union, steps up the trend which began with the garment and broader textile industry leaving New York and New England and continues with the auto industry leaving Michigan. Business friendly sunbelt states have encouraged the trend with economic incentives and non-union friendly right to work laws.  More and more heavy manufacturing will seek the competitive advantage of a union free workforce.

EFCA, Canada, California and New York

A recent Pacific Research Institute piece provides a pretty good overview of the Employee Free Choice Act [EFCA] debate. It adds a couple of new thoughts. More after the jump
First it notes Governor Schwarzenegger's vetos of California legislation to allow the United Farm Workers to obtain card check certification under state labor laws. Agricultural workers are not covered by the National Labor Relations Act. Second the article notes Canadian provinces of Ontario, Saskatchewan and British Columbia noticed "reduced investment, higher unemployment, and less job creation" after implementing card check recognition. After the provinces eliminated card check recognition and returned to secret ballot elections,  the economic losses began to reverse. No data or source is cited for these opinions.
As we previously blogged there is significant hostility to card check in Quebec where it still is in use. It would seem more review of the Canadian experience, supported by factual data, and not just rhetoric, could be helpful in the debate. Similarly, the New York public sector experience previously blogged here also should be considered.

Resurgent economy?

U. S. gross domestic product rose at a 3.5 percent annual rate for the third quarter (July-September). This is the strongest rate of growth since the third quarter of 2007, and the first growth since the second quarter of 2008. According to the Washington Post (free subscription required), the surge is related to one time programs like the cash for clunkers auto program and the first time home buyers incentive program, both part of the stimulus package. The Wall Street Journal Reports the White House will claim today the stimulus created or saved 650,000 jobs. The Hill reports Steelworker's union President Leo Gerard urges President Obama to seek a second stimulus focused on infrastructure. But this AP article says the stimulus job creation math is funny, yielding overestimation of jobs creation in the thousands.

Baseball players love them some EFCA

Twelve major league players have signed on in support of the Employee Free Choice Act. The Major League Baseball Players Association is a member of the AFL-CIO.

South Carolina 787 Washington 0

Boeing has announced its decision to locate a second assembly line for its delayed 787 airplane in North Charleston, South Carolina. Doubtless the decision of its existing South Carolina facility to kick out the Machinists, as well as an 8 week strike at its Everett, Washington facility where the planes are currently assembled were factors in the decision.

NRTWLDF aids workers

The National Right to Work Legal Defense Foundation has provided free legal assistance to 3 Michigan Teamsters in their attempt to opt out of paying full union dues. This is a problem we do not see in states with Right to Work laws, because union membership cannot be a requirement for employment. In non-Right to Work states an employer and a union can agree that employees must be union members. In that situation, employees who do not want to be full union members, must become financial core members and pay a portion of the unions dues attributable to the cost of representation. The Supreme Court in Communication Workers v. Beck, "guarantees the right of workers to opt-out of forced dues intended for purposes other than workplace bargaining, including lobbying, political activism, and members-only activities." It also requires unions to provide an independent assessment of how dues money is being spent.

School bus strike redux

First Student, the Ohio based company that provides school bus drivers to Hinds County Mississippi, blogged here, also has striking bus drivers in Lehigh County, Pennsylvania. Note the click through provides little information and a lot of opinion favorable to the union. Reason: The article is based on the Teamsters' Union press release, not independent reporting. Note the same problem here, here, and here. For an example of good coverage of a labor dispute look at this previous post about a 40 month strike.

Congress sets hearings on NFL drug case

Remember the NFL Starcaps suspension case blogged here? A federal appeals court found the NFL's collectively bargained drug policy did not preempt enforcement of Minnesota's state law regulation of drug testing, or prohibition against disciplining employees for consuming a substance not illegal. The NFL then suspended the suspensions of the involved players. According to the Twin Cities Pioneer Press the NFL is asking Congress to pass a uniform federal law to govern drug testing in professional sports. In so doing the NFL is rallying political support from the political branch to correct a judicial outcome. Congress should be receptive since its previous hearings involving major league baseball exposed the depths of steroid use by many star athletes. The political branch should be particularly receptive to supporting zero tolerance drug policies.

The NFL is seeking Supreme Court review of the case. The House Subcommittee on Commerce, Trade and Consumer Protection has set hearings for November 3rd.
The NFL's action may signal its concern that the current Supreme Court looks more favorably towards states rights than any previous Supreme Court since the election of Franklin Roosevelt as president, or perhaps the NFL sees the current court less sweeping in its application of labor preemption.

Flu update

Citing a shortage of vaccine, New York has decided mandatory vaccination of unwilling healthcare workers is a bad idea. OSHA has announced it will issue a compliance directive requiring healthcare providers to implement the Centers for Disease Control's Interim Guidance on Infection Control Measures.  The GAO also claims the intertubes will get clogged by the flu. The flu wary telecommuters will be slowed down because the rest of the sickies will be watching porn, playing games and otherwise wasting bandwidth needed to keep the economy working. "Increased demand during a severe pandemic could exceed the capacities of Internet providers’ access networks for residential users and interfere with teleworkers in the securities market and other sectors, according to a DHS study."

Happy Halloween - you're fired

A district manager for Bath and Body Works claims she was fired for practicing Wicca. The former employee took vacation days to celebrate Samhain, in Salem Mass., in 2008. Samhain, the Celtic new year, coincides with Halloween. In her federal court law suit for religious discrimination she alleges her manager told her "You will need a new career in your new year. … I will be damned if I have a devil worshiper on my team.” An overview of religious discrimination is available from the EEOC website. This case appears to be a direct evidence case rather than a failure to accommodate case.

Bus drivers halt strike

Strike ends for Hinds County Mississippi school bus drivers, previously blogged here. Details of new contract unclear until after vote by members.

Protesting the bankers

The American  Bankers Association is meeting in Chicago. Uninvited "taxpayers" are protesting with a little party crashing and street antics. The SEIU's perspective is here.

BOO!

The SEIU wants you to buy union made Halloween candy. A list is provided here. Purchase wisely.

New EEO poster available as download

The EEOC has posted online an updated version of it "Equal Opportunity is the Law" Poster.

Local ACORN eated

Updated 10/24/09: The Times Picayune reports recently ousted Louisiana ACORN Executive Director, Beth Butler, and other local ACORN leaders have scheduled a news conference today. National ACORN leadership has moved to impose "provisional administratorship" on the organization's Louisiana Chapter. Previously the Times Picayune, reported local ACORN leaders are not taking it. Butler claims a new local ACORN organization is going to open offices soon. Its a safe bet we'll see something like ACORN LA v. ACORN USA, Civil Action 2009 . . .  filed for decision by a person who wears black robes and wields a gavel. ACORN has been closely allied with the SEIU, both locally and nationally.

SEIU severs ACORN ties

Union friendly blog In These Times has an interesting post about ACORN and SEIU. SEIU Secretary-Treasurer Anna Burger is quoted as saying “SEIU has . . . cut all ties to ACORN.”  The post also discusses the major ACORN donors who have ceased donating. New Orleans based Local 100, and the hard times visited upon it, including the SEIU's October 7 revocation of its charter is also detailed.

6 out of 40

Louisiana boasts the number 6 city in the top 40 strongest U.S. metro economies according to BusinessWeek online. Hint: its not NOLA.

Bus drivers reject $, strike

A Mississippi school bus driver's strike shows how privatization of public services can also inject private disputes into government services. Several Mississippi school districts contracted with First District, an Ohio based private company to provide school bus drivers. The drivers in Hinds County represented by Teamsters local 891 went on strike yesterday. 54 of the 92 scheduled drivers reported to work on day one of the strike. Although still in the last year of the current labor agreement, the drivers in Hinds could strike because their agreement did not contain a no strike clause (OOPS). With a starting salary at $10.20 an hour, the drivers rejected the company's pre-strike proposal which would have provided 50¢ an hour retroactive to August 1, 30¢ more in February, and 50¢ in August 2010 ($11.50), 2011 ($12.00) and 2012 ($12.50).

Employer's resources for employees military service

The Employer Support for the Guard and Reserve "ESGR" website provides a wealth of information to employers concerning their compliance obligations arising from the military service of their employees.

September unemployment

The Bureau of Labor Statistics has released September unemployment data. It reports Louisiana unemployment dropped to 7.4% from 7.8% in August. Mississippi experienced a similar drop from 9.7% to 9.2%.  Louisiana had 18th lowest rate. August figures were blogged here.

NLRB nominees clear committee

NLRB press release confirms President Obama's three nominees were approved by the Senate Committee on Health, Education, Labor and Pensions. Union attorney, Mark G.  Pearce, and Republican committee staffer Brian E. Hayes, were approved in a unanimous voice vote. Controversial SEIU attorney Craig Becker was approved 15-8. The AP reports Senator John McCain has vowed to put a hold on Becker out of concern he might try to "make the labor laws more friendly without congressional approval." Yesterday, a multi-industry letter opposing Becker's nomination was sent to HELP Committee Chairman Harkin, and Ranking Republican Member Mike Enzi.

Unlawful access?

At least one blogger believes provisions in EFCA mandating union access to company property violate existing Supreme Court case authority, Lechmere v. NLRB. Why this analysis is flawed after the jump. 

Of course, Lechmere is based upon the Court's interpretation of the NLRA, and not on constitutional grounds. It is beyond dispute Congress could amend the NLRA and overrule Lechmere. Whether and when it will do so is in question. If Congress chooses to mandate union access to employer's private property likely there will be a challenge to the constitutionality of any such provisions. If the government can use eminent domain to seize private property and turn it over to a developer to further an economic development plan, its hard to see how Congress lacks the authority to require temporary access to an employer's property in an industry affecting commerce. 

From the weekend

If you missed it, the Teamsters Union won an election to represent zookeepers at the Audubon Zoo. The Senate HELP committee will vote Wednesday on President Obama's nominees to the three vacant positions on the NLRB.

Senator Lincoln waffles on EFCA

Speaking to business groups in Little Rock, Arkansas Senator Blanche Lincoln claims she "opposes EFCA." Her solution: business and labor should work out a compromise rather than politicians. This, of course is not news. Senator Lincoln has repeatedly stated her opposition to card check EFCA while at the same time professing support for a bill backed by business and labor. Of course, this approach essentially gives both business and labor a one sided ability to prevent any legislation from passing, a point expressed here. As we have pointed out before, card check EFCA is dead, and its easy to oppose. The real battle is on time between petition and election and interest arbitration. These issues are more complex than whether you are for or against secret ballot elections. They also provide less political cover.

NLRB employee union protests NLRB management

The union representing NLRB employees does not like the way it is treated. They protest. Pictures are worth, well, a lot of words.

UAW Strike lasts 40 months

In 2006 Elkhart, Indiana was booming. It was the RV and musical instrument "jewel" of the Midwest according to this detailed article in the South Bend Tribune. With unemployment around 4% times were good. In those good times the 234 skilled craftsmen employed by the Vincent Bach factory went on strike after the company proposed wage and benefit cuts. At the time the average worker's wage was $21.00 per hour. This detailed account of the causes and effects of the 40 month UAW strike is a powerful reminder that strikes can have disastrous consequences, including decertification.

Senate HELP committee to vote on NLRB nominees

Update: The Associated Press and the Wall Street Journal blogs the Senate Committee on Health Education Labor and Pensions will vote on President Obama's nominees for the 3 vacant positions on the NLRB. The Committee rejected a request to hold hearings on one of the nominees, Craig Becker, who serves as Associate General Counsel to both the Service Employees International Union and the AFL-CIO. Now if there wasn't enough reason to dislike Mr. Becker, this Princeton class of '72 graduate has trouble with the fact Mr. Becker is a Yaley.

Teamsters win at Audubon Zoo

Teamsters Local 270 won a close representation election (17 yes, 14 no) among zookeepers at the Audubon Zoo. The Times Picayune reports Audubon employs about 600, 450 of whom are full-time. The Teamsters represent other zoo workers in San Diego and Chicago. Local 270 President David Negretto that other groups of Audubon employees have expressed interest in joining the Teamsters.

TRO issued against mandatory flu vacinations

New York is the only state in the country (so far) to have mandated flu vaccinations for healthcare workers. A state court judge has issued a TRO in favor of three nurses and consolidated their suit with one brought by the New York State Public Employees Federation and the New York State United Teachers Union.

Practice and Procedure Committee meets.

This blogger attended the Regional Meeting of the ABA Practice and Procedure under the NLRA Committee held today in New Orleans. This is a meeting where union and management representatives discuss procedural issues with NLRB personnel which may seem a little too "inside baseball" to some. Although not a true agenda item, EFCA was discussed. Since it remains unclear as to what a final Act will look like, little specific preparation has been undertaken by the Board. Also of note, case filings in Region 15 (New Orleans) in FY 2009 were close to 600. Decisions by the current 2 member (3 vacancy) NLRB have topped 500. Discussions about the effect of Dana/Metaldyne were also most interesting, although there had been a number of Dana Notices issued, only one election had been conducted, and the union won that election. We have consistently chided our friends representing labor that Dana/Metaldyne would have been an easier political sell than pure card check has been. These anecdotal statistics suggest it might also be a very effective alternative for labor to explore.

The EEOC has updated flu advice

The EEOC's technical assistance document for flu has been updated and expanded. There is a very informative Q. & A. section. Specific advice permits employers to send persons home with flu symtoms. Direction on what inquiries are appropriate is also provided.

Wage/Hour study indicates exposure

We have noted a rise in wage/hour litigation in our offices. A lot of it is driven by belated investigation of contractors post-Katrina practices. But violations occur in many industries. A recent academic study indicates widespread violations in three major metropolitan areas - Los Angeles, New York and Chicago. The survey's advisory board includes both SEIU and UNITE locals. The focus of the survey is upon urban low wage workers. The study concludes more aggressive enforcement is needed to ensure compliance.  Bullet summary after the jump

• Fully 26 percent of workers in our sample were paid less than the legally required minimum wage in the previous work week.
• These minimum wage violations were not trivial in magnitude: 60 percent of workers were underpaid by more than $1 per hour. 
• Over a quarter of our respondents worked more than 40 hours during the previous week. Of those, 76 percent were not paid the legally required overtime rate by their employers. 
• Like minimum wage violations, overtime violations were of substantial magnitude. The average worker with a violation had put in 11 hours of overtime—hours that were either underpaid or not paid at all. 
• Nearly a quarter of the workers in our sample came in early and/or stayed late after their shift during the previous work week. Of these workers, 70 percent did not receive any pay at all for the work they performed outside of their regular shift.
• The large majority of our respondents (86 percent) worked enough consecutive hours to be legally entitled to at least one meal break during the previous week. Of these workers, more than two-thirds (69 percent) received no break at all, had their break shortened, were interrupted by their employer, or worked during the break—all of which constitute a violation of meal break law. 
• Of the tipped workers in our sample, 30 percent were not paid the tipped worker. In addition, 12 percent of tipped workers experienced tip stealing by their employer or supervisor, which is illegal.
• One in five workers in our sample reported that they had made a complaint to their employer or attempted to form a union in the last year. Of those, 43 percent experienced one or more forms of illegal retaliation from their employer or supervisor. For example, employers fired or suspended workers, threatened to call immigration authorities, or threatened to cut workers’ hours or pay.