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.