Oh Boy!

After a long history of rejection, a plaintiff has prevailed in the Eleventh Circuit, in part because the Court did not again reject, as not probative of discrimination, that a white supervisor referred to him as "boy." We have previously posted about this case here.

Recess NLRB appointments

The Hill has a good post on the potential of recess appointments to the NLRB. Unless the Senate acts to confirm the three pending nominations (it wont), the NLEB will only have 2 members at the end of the year. All 47 Republican Senators have sent a letter to the President asking him to reject recess appointments. Randy Johnson, the U.S. Chamber of Commerce’s senior vice president of labor, immigration and employee benefits notes, "I doubt the president would go forward because it would poison the well in the Senate.”

Shhhhhhhhh! Can't say that

Vaughan v. Woodforest Bank (5th Cir. 12/21/11) is an interesting case where a white branch manager was terminated by her white supervisor for "unsatisfactory performance" and comments allegedly made which had a racial component. The supervisor testified that “we cannot talk about race in the workplace” and that “if you talk about race in the workplace it’s racial discrimination.” She also elaborated on Vaughn’s “unsatisfactory conduct,” stating that there were three “racial” occurrences that formed the basis of her decision to fire Vaughn. The Court does a good job of deconstructing the comments and explaining why the employee has created a sufficient factual dispute to avoid summary judgment. To me though the unstated rationale is the Court's conclusion no minority employee would have been terminated for the reasons proffered.

NLRA Poster deadline postponed

Effective today, the NLRB has postponed the effective date for employers posting the required notification of employee rights under the National Labor Relations Act.

USCC v. NLRB

The U. S. Chamber of Commerce has sued the National Labor Relations Board to prevent implementation of the revised rules for conducting union elections. The complaint is here.

Dangers of a nonfunctioning NLRB

Former NLRB Chairman William B. Gould, IV (1994-98) penned this op-ed piece in the New York Times concerning the effect a non-functioning NLRB on wokrers' rights. Gould among other things,urges the President to make it an election year issue.

Work stoppage may be unprotected

The DC Circuit in Fortuna Enterprises has refused to enforce a portion of an NLRB order finding the employer's suspension of employees who engaged in concerted activity by refusing to work until management addressed a complaint about discipline of another worker who engaged in organizing activities. The employees were hotel service staff who gathered in a company cafeteria and insisted upon meeting with management about the discipline. After being told to return to work or leave the premises several times during a 90 minute wait, the employees were suspended for insubordination. In finding a violation the Board concluded the employees had no procedure whereby they could present a group grievance, and that their gathering to complain was protected. The D.C. Circuit rejected the Board's finding on the employer's complaint procedure finding the employer's practice was to permit group complaints, and that the policy did not exclude such complaints. For these reasons the Court remanded the case to the NLRB for consideration in light o the ruling on review.

UAW agenda

Will Canton Mississippi's Nissan plant be the next target in the UAW's drive to organize foreign automakers' plants in the U.S? This USA Today article suggests it will.

Boeing resolved

The much debated "controversial" Boeing unfair labor practice case concerning the relocation of work to South Carolina has been formally settled. While some suggest the result is due to "pressure", it is unlikely pressure from the right, as The Hill post suggests, contributed to the resolution. Acting General Counsel Solomon is closer to correct. The collective bargaining process worked. The company and the union bargained and as a result of the bargaining, the union requested the relocation charge be withdrawn. Thats the way collective bargaining should work. Unions are free to bargain away ULP's, particularly where there is no identifiable individual discriminatee.

Pretext due to employer not following its policies

I have long felt that employers who lack organization and sophistication in promulgating, maintaining, enforcing and revising written policies should consider having no written policies at all. A live and credible witness can explain why the decision adversely affecting a claimant is based on legitimate business related criteria. That can be enough for summary judgment. But when this explanation is in conflict with or contradicts employer's written policies, a material fact dispute likely exists. In Norris v. City of Millbrook, a federal district court in Alabama agrees. Money quote after the jump

Transsexual protected against discrimination

The 11th Circuit has affirmed summary judgment in favor of a transexual employee who was terminated from her public sector job. The Defendant "testified that his decision to dismiss Glenn was based on his perception of Glenn as 'a man dressed as a woman and made up as a woman,' and [Defendant] admitted that his decision to fire Glenn was based on 'the sheer fact of the transition.' [Defendant's] testimony provides ample direct evidence to support the district court’s conclusion that [Defendant] acted on the basis of Glenn’s gender non-conformity. Although he case was brought as a constitutional equal protection claim the court acknowledged the underlying rationale would apply in a Title VII context.

A contrary view

CCH WorkDay Blog reviews a compendium of reports and studies challenging the notion that public sector employees are huge contributors to the country's economic problems.

Remember Andy Stern?

Former President of the SEIU and bad boy poster child (and pinata) of the anti union crowd, now works for Big Pharma. He's profiled in this piece at BeyondChron, which portrays him as a big fan of China's explosive state driven growth there, a blamer who notes the time of free markets is over, and by implication a tacit supporter of repressive working conditions. Go figure.

Unemployment drops to 8.6%

The Bureau of Labor Statistics (BLS) unemployment report released today indicates 120,000 jobs were added last month. The unemployment rate dropped also to 8.6%. BLS also revised upward the job growth in October by 72,000 jobs. This is the 4th month in a row the report as revised job growth upward over the initial estimate.

Boeing settled?

The Seattle Times is reporting Boeing and the Machinists' union have reached a tentative agreement on a 4 year deal that will secure Washington state as the location of the company's fabrication of the 737MAX. The agreement purportedly includes a resolution of the unfair labor practice complaint issued over the relocation of part of the 787 fabrication to South Carolina. Previous posts here and here. The NLRB case has become a volatile political issue. Although NLRB Acting General Counsel Lafe Solomon must approve any settlement of the case, it is unlikely the NLRB will stand in the way of a settlement pushed by the IAM. Supporters of the Company's relocation of work to South Carolina should also be happy as the fabrication facility there will continue operations if the settlement is ratified by the union membership and approved by Solomon.

NLRB adopts some new election rules

By a 2 -1 vote the NLRB adopted new rules for the election process. This is a less than sweeping change, and only addresses a few issues set out in the previous post.

NLRB election revisions released

The NLRB is scheduled to vote today on a partial set of proposed revisions to the way in which the NLRB conducts representation elections which determine whether a union represents a majority of the employees in a unit appropriate for collective bargaining. The NLRB explanation of the proposal is here. The proposals under consideration today appear to be a modest, partial list. If passed the proposals will be drafted into final regulations. These proposals limits the issues which may be raised at the hearing and makes the right to brief the issues contingent upon the hearing officer determining briefing is necessary. Given the modest nature of these proposals, its unlikely Member Hayes will express his opposition in a dramatic way.

Basketball for Christmas

It appears the owners and players have reached a tentative agreement which may have the NBA playing by Christmas.

Dysfunction at the NLRB

Steve Greenhouse, in the New York Times (registration required), has a good overview on the partisan infighting at the NLRB.  The 2 Democrats are pushing for an approval vote on new rules for conducting representation elections. Republican Member Hayes opposes the rules and claims he has been locked out of the process of formulating them. It is unclear whether Hayes has been excluded or has refused to participate. What is clear is Member Hayes could resign before the vote and deprive the two remaining Board Members from having the necessary 3 member quorum to conduct business. It is increasingly likely no new Board Members will be confirmed until after the 2012 elections. Member Becker's interim appointment expires when Congress adjourns at the end of the year. Republicans are already prepared to stay in session to prevent any recess appointments.

No strike for baseball

Owners and players representatives inked a 5 year collective bargaining agreement virtually assuring labor peace in the sport through 2016. The agreement still has to be ratified but faces no serious threat in that process.

Will Republicans shut down the NLRB?

We know after New Process Steel the NLRB has to have 3 members to have a quorum. We also know Member Becker's recess appointment expires when Congress adjourns at the end of the year. Unless there is a confirmation or another recess appointment the NLRB will only have 2 members when Becker's appointment expires. Now some Republicans are urging Member Hayes to resign before the Board can implement controversial changes to the election process used to determine whether workers can unionize their employer's workplace. I think it is very likely Congressional gridlock will prevent the NLRB from having a quorum until some point after the 2012 election.

Trumka and popular economics?

Esquire has a piece on "Man of the Year" Richard Trumka. The article contains a full serving of economic populism.

Union organizer pines for EFCA

This account of a California organizing attempt has not turned out well for one of the employees involved.

New election rules imminent?

The NLRB has issued a press release setting a November 30th vote on some portion of the new rules proposed for conducting NLRB elections. Is this a "ram through" of quickie elections before Member Becker's interim appointment expires? Maybe.

OWS messaging and labor

Steve Early's post at BeyondChron does a great job of explaining why the Occupy Wall Street message resonates and big labor's message about the middle class does not.