Arbitration rejected

In Carey v. 24 Hour Fitness USA, Inc., the Fifth Circuit affirmed a trial court refusal to order arbitration of a FLSA claim because the employer retained the right to modify the arbitration agreement retroactively.

Unemployment drops to 8.3%

The Bureau of Labor Statistics (BLS) released its January jobs report this morning, and the news is BTE. Private sector jobs grew by 257,000 but declines in public sector employment reduced the non-farm payroll employment gain to 243,000. The report also adjusted upward the gains reported for November and December 2011. The 8.3% rate is the lowest in three years.

IBEW wins at GE

Daily Kos has an interesting piece from the union perspective about the IBEW's first win at a General Electric plant in 10 years. Short take - broken promises.

Indiana passes right to work

Indiana is now a right to work state. The real question is "what does that mean?"

EEOC reports FY 2011 activity

The Equal Employment Opportunity Commission (EEOC) has released its 2011 activity report. Highlights: Record number of charges filed (99,947), resolutions (112,499) and almost a half billion dollars in financial relief. Detailed statistics can be found here.

AZ to WS public sector bargaining

Will Arizona become the next public sector collective bargaining hot spot.

Rats, coffins and Grim Reapers

The Tampa Bay Times has a good overview of union "signage" used to protest employers not using union construction.

Union density static

The Bureau of Labor Statistics (BLS) has released its 2011 union members summary which indicates 11.8% of wage and salary workers are union members. This is down slightly from 2010's 11.9% rate. Louisiana is one of 7 states with union membership under 5%. How concentrated is union membership? Note this quote

Over half of the 14.8 million union members in the U.S. lived in just seven states (California, 2.4 million; New York, 1.9 million; Illinois, 0.9 million; Pennsylvania, 0.8 million; Michigan 0.7 million; and New Jersey and Ohio, 0.6 million each), though these states accounted for only about one-third of wage and salary employment nationally.

Changing the rules

Look for the NLRB to press forward on changes in the rules governing union organizing and elections. It will be a question of when, not of whether.

NLRB GC updates social media report

Acting NLRB General Counsel Lafe Soloman has updated his report on Social Media (January 24, 2012). The report can be accessed here. Our previous post is here.

Louisiana job growth

Good news on state and local unemployment and job creation. The Bureau of Labor statistics (BLS) reported that the state's seasonally adjusted jobless rate dropped to 6.8% in December. Thats down from 7.7% in December 2010. The Louisiana Workforce Commission announced December marked the 15th consecutive month the state added private sector jobs. Statewide job growth in 2011 was 48,300.

Jobs and Job creators

Job creation in 2011 stacks up favorably to job creation since 2001. From ThinkProgress:

• Since the last SOTU, the economy has created 1.9 million private sector jobs. 
• Private sector job creation under Obama in 2011 was larger than seven out of the eight years Bush was president. 

When lawyers sue lawyers

Well, this one is interesting. According to the Boston Business Journal, two attorneys have sued their former employer's managing partner because he had an affair with one of the partner's wives (who is also a firm partner). The second plaintiff sued because he had to leave the firm because he lost clients that were inextricably linked to the other departing partner. The law suit claims breach of fiduciary duty.

Priapus

A woman working for a frozen snack food company was considering a sex change and wore a fake penis to work. She told her co-workers. She was fired, and now claims in a discrimination law suit it was for wearing the fake penis.

Locked Out!

The New York Times has a good article about why employers are using lockouts more aggressively. This once rare tactic is gaining favor and its not because the NFL and NBA used it.

NLRB strikes down presumption of wall to wall bargaining units

The National Labor Relations Board has extended its Specialty Healthcare (download here) bargaining unit rationale to a non-healthcare setting. In DTG Operations, Inc. (download here) the union petitioned for a unit of 31 rental service agents (RSA's) and lead agents (LRSA's) at an airport rental car facility. The Regional Director found the smallest appropriate unit was a "wall-to-wall" unit of "all 109 of employer's hourly employees." Because the union refused to go forward in the smaller unit, the RD dismissed the petition. In reversing the RD, the Board found the RSA's and the LRSA's shared a community of interests among themselves, but do not share an "overwhelming community of interests with the other hourly employees. This decision likely means the current Board will permit elections in small units which historically would not have been appropriate for collective bargaining. A labor organization can engage in piece-meal organizing, picking and choosing small groups of employees rather than undertaking an overall facility-wide effort. Advantage organized labor.

His "O-ness" sings

Is it just me, or does it seem like President Obama, after shouting out to his "great friends in organized labor," disses them  singing Aretha Franklin?

SOPA support crosses political divide

Its hard to find something the United States Chamber of Commerce and major unions both endorse. But The STOP Online Piracy Act (SOPA) is it. It still does not make the legislation a good idea.

Review your policies!

January is an excellent time for employers to review their handbooks for compliance with changes in the law, changes to employee benefits plans and workplace changes (including technology) that may require some policy tweaking. A few suggestions: social media policies, computer/smart phone use policies, brush up on no access rules under the NLRA as well as review policies to ensure  they do not constitute per se violations (Think protected concerted activity under the NLRA).

NLRB activism

Remember AT&T Mobility v. Concepcion?  Many thought the decision would lead many employers to adopt arbitration requirements that would prevent employees from pursuing class or collective employment claims. Last June we posted on the NLRB's request for briefs concerning compelled waiver of class arbitrations. The NLRB has ruled and its good news for employees. Employers who try to compel employees to waive all rights to a judicial forum for employment disputes violate the NLRA if the arbitration agreement also prohibits group, collective or class arbitrations.  The NLRB finds collective pursuit of such claims to be protected concerted activity. While employers may impose a requirement that individual claims must be arbitrated as individual claims, they may not also prevent employees from pursuing group claims in a judicial forum. The decision, D.B. Horton, Inc. may be downloaded here.

Economy gains 200,000 jobs

The Bureau of Labor Statistics (BLS) issued its report on December jobs creation today. The nonfarm payroll employment added a net gain of 200,000 jobs. The unemployment rate fell to 8.5% (from 8.7% in November).

Appointed

The White House has announced three recess appointments to the National Labor relations Board.

Rumor has it

President Obama will make recess appointments to the NLRB. As a preemptive comment on the political fall out of this decision, we note that the President's Republican predecessor made 7 recess appointments to the NLRB.

It can get weirder

Seems some South Carolina Boeing employees have filed a "retaliation" charge against the Machinists' union because they used the NLRB process to bully Boeing into locating the 737 Max production line in Washington State. Through collective bargaining Boeing and the union reached a 4 year agreement which included assurances that the 737 Max line would be built in Washington, and also included a resolution of the 787 Dreamliner case which ensured that contested work relocation would remain in South Carolina. The employees were assisted by the National Right to Work Legal Defense Foundation. I wouldn't bet the farm on a complaint issuing on this charge.

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!

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 D.C. 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.

President nominates two NLRB

The White House has announced the nominations of two Democrats for vacant positions on the NLRB. No word on whether they will get recess appointments. My bet is they wont be confirmed in advance of 2012 election.

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 settled

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.

Hoops play in December?

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 MLB Strike

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.