Manufacturer closes after lockout.

Peterbilt, a manufacturer of heavy duty trucks has shut down its unionized Nashville plant after a long labor dispute and lockout which began in June of 2008. Operations will be consolidated at its non-union facility in Denton Texas. My labor law class covered plant closure last week. I think I'll discuss this case tonight.

Laurel Baye cert. petition filed by NLRB

Labor professors and labor practitioners have followed the issue of whether the 5 member NLRB can issue valid decisions when three of its five seats are vacant. There is a split in circuits on the question. Yesterday the NLRB filed a petition for certiorari in Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB. Press release here.

Healthcare coverage data

Every now and then in a heated debate its nice to examine facts, and on occasion even statistics. The National Employee Benefits Institute has released a report based upon 2008 year end census data. It notes 61% of "working age" Americans had coverage through an employer plan. That's down from 68% in 2000. It was 64% in 1994, and employer based coverage expanded each year until 2000. Also noted, 82.6% of the non-elderly (under age 65) population had insurance in 2008, a total of  217 million insured and 45.7 million uninsured.

Union tweets, blogs and social media

The AFL-CIO blog discusses labor's use of social media and the internet.

Fifth Circuit rejects arbitration of claims arising out of an employee's alleged rape in Iraq

A Halliburton employee allegedly gang raped in Iraq by co-workers raised assault and battery, intentional infliction, negligent hiring/retention and false imprisonment claims against her employer. The employee's employment agreement required arbitration of claims "related to you employment and "personal injury claims arising in the workplace. The Fifth Circuit affirmed a district Court's refusal to compel arbitration of her claims for (1) assault and battery; (2) intentional infliction of emotional distress arising out of the alleged assault; (3) negligent hiring, retention, and supervision of employees involved in the alleged assault; and (4) false imprisonment.  More after the jump

ACORN and SEIU

Kathleen Parker's Washington Post column does a fine job of detailing the ACORN/SEIU connection, here and here.

Public officials enjoined from dissin' UAW

A state court in Kentucky has issued a permanent injunction barring local officials from interference in any unionization efforts that may take place in the county in the future. A mayor, another county official and the Boyle County Industrial Foundation wrote a letter encouraging employees of a company in bankruptcy to reject a United Auto Worker's [UAW] attempt to organize them. According to this news report, the culprits wrote a letter to employees claiming that unions might cause a company to be unprofitable, and employees might lose their jobs if the union made the company unprofitable. Thats pretty pedestrian stuff. Employers have defended similar comments in NLRB proceedings. The union argued the conduct violated the UAW and its supporters right to freedom of speech and association under the Kentucky Constitution. The court found the statements constituted a threat justifying an injunction. Wow! An ironic result. Hope there is a written opinion.

Trumka asks for investigation

AFL-CIO President Richard Trumka asks for state insurance commissioners to investigate whether the cost of the industry's lobbying against healthcare reform is tied to rate hikes. "We believe that health insurance providers' lobbying expenditures have led to excessive rate hikes," Trumka wrote in a letter to state regulators.

Michigan

Michigan has the highest unemployment rate among the states. The Executive Director of a Michigan organization called the Small Government Alliance claims overwhelming public support in the state for passage of a right to work law. This post seems in line with Nate Silver's analysis of Gallup's survey on union decline. Both discussed here.

Card Check is unpopular in Quebec

The Canadian Province of Quebec permits certification of unions based upon card check. According to a recent survey, 71% of those polled believed that the provincial government should amend the current law to require a secret ballot election. Among self-identified union workers 80% favored a secret ballot election. Of those surveyed 23% were union workers, 33% were non-union. The study inconsistently suggests both  44% and 47% were not workers. Seems like a lot of non-workers were polled.

EFCA = no secret ballot

Labor loves to claim the Employee Free Choice Act [EFCA] does not eliminate secret ballot elections from the National Labor Relations Act. It is true! A secret ballot election remains an *option* for establishing union majority status and certification of a union as the bargaining representative of an appropriate bargaining unit of employees. However, this option can be trumped, eliminated, neutered, stumped, under EFCA. Under the card signing provisions of EFCA, a union would be certified based upon presentation of cards signed by a majority of the employees in a unit appropriate for collective bargaining. No election must be conducted if the union presents cards from a majority of the employees. Even if employees had changed their mind after signing a card, they would still be denied the chance to vote in a secret ballot election.

ACORN funding

GOP leader John Boehner's web site notes ACORN has received over $56 million in funding since 1994. It also has an upload of a chart indicating the vast majority of the funding occured during the Bush administration.

ACORN sues vidographer

The New York Times reports that ACORN has sued the conservative activist who used hidden cameras to video ACORN staffers giving advice about human smuggling, child prostitution and income tax evasion.

What hath Iqbal wrought

I have just read an extremely interesting article on pleading intentional discrimination after Iqbal v Ashcroft. It is a must read for Title VII litigators. The author is South Carolina law professor Joe Seiner. The article can be downloaded from Social Science Research Network. Professor Seiner lays out a persuasive argument for compliance with the heightened pleading requirement in cases alleging intentional discrimination post Iqbal. If the federal judiciary agrees with Professor Seiner's analysis both plaintiffs and defendants should benefit from clear guidance in this area. His suggested approach also diminishes the most troubling aspect of Iqbal, the plausibility component. Essentially Iqbal requires a judge to determine if the plaintiff's allegations are sufficiently compelling to be believable enough to warrant going forward. The troublesome aspect of this standard is it is not only subjective, but determined by a judge likely to have limited understanding of the realities of most workplaces.

Proposed ADA regulations available

The proposed ADA regulations are available here and in .pdf here.

EFCA compromise?

Last week Senator Arlen Specter (D. Pa.) indicated he had worked out a compromise on the Employee Free Choice Act. No bill has been introduced and the details are sketchy. When I spoke at the LSU Labor and Employment seminar in March on EFCA, I predicted Labor, and its allies in Congress, could not succeed with card check recognition which deprives employees of a secret ballot election. Taking away a right to vote in a secret ballot election is a sound bite that resonates with the public and the politicians. The political solution to this impasse has already been served up by the "Bush" Board and it looks like Senator Specter is embracing that path. More after the jump.

Union pressures restaurant

The New York Times has an interesting article about the new operator of Tavern on the Green in Central Park. It seems the new operator proposes rewriting the collective bargaining agreement to exact significant reductions in wages, benefits and other favorable terms and conditions of employment. The article highlights the economic pressure unions can use against retail establishments in labor disputes, particularly those occurring in areas with significant public support for labor.

Mr. Trumka goes to Wall Street

The New York Times reports that AFL-CIO President Richard L. Trumka speaking to a "modest" audience excoriated Wall Street "Apostles of Greed."

Another good piece on ACORN

Here.

Flu and the ADA

The Equal Employment Opportunity Commission has released a notice concerning ADA issues and influenza. The advisory includes an approved "ADA-Compliant Pre-Pandemic Employee Survey" concerning employees availability for work.

Protected concerted activity

My labor law class requires preparation, and often early in the morning. So here I am. Tonight we will cover protected concerted activity. Each time I delve into this area I cannot help but think it is an underused legal protection for employees. Essentially it provides employees something akin to free speech rights on a wealth of topics related to the workplace and/or mutual aid and protection. This protection is available even in the absence of a union. While the protection has a "concerted" component, the actions of a single employee can also be protected if it involves assertion of a right under a collective bargaining agreement, or otherwise asserts the rights of more than a single individual. Early in my career I remember an irate partner imposing a rule preventing clericals from discussing their salaries which prompted my discussion about protected concerted activity. The incredulous partner of course dismissively claimed he cared less about the issue than he did about the clericals being in the dark about pay practices. Of course this could have been a result of said partner's appreciation of the limited remedy provisions of the NLRA.  Wonder what effect enhanced remedies would have in this circumstance.

New Orleans loses a headquarters

The Sunday Times Picayune has an in depth story on ACORN including the moving of its headquarters from New Orleans to Washington, D.C. The former ACORN headquarters at 1024-26 Elysian Fields Avenue is up for sale. The building housed both ACORN and SEIU Local 100. Local 100 began as an independent union, but soon affiliated with the SEIU. The in depth article references historical information as well as ACORN's many controversies. In a separate article the activities of the activists that engaged in the pimp and prostitute sting are detailed. More in a Washington Post article.

USCC report on the NLRB under Obama

The United States Chamber of Commerce has issued a 79 page report entitled The National Labor Relations Board in The Obama Administration: What Changes to Expect. The report covers 2o "Bush" Board decisions likely to be reversed. In most cases the Bush Board reversed or curtailed longtime case laws favorable to labor, employees or both. The report also covers EFCA legislation and a pending proposed rule-making Petition which asks the Board to adopt bargaining for minority unions. Such a rule would permit collective bargaining which affects only union members, and not employees in the same workforce who decline union representation. If adopted the rule would profoundly change labor/management relations in this country, and surely be challenged by employers.

HRC sued for age discrimination

Secretary of State Hillary Rodham Clinton was sued along with the Department of State for age discrimination. The 64 year old plaintiff had accepted an offer to serve as an advisor in Algeria. The job was withdrawn after it was discovered the employee would turn 65 during the two year term.  As noted by CBS,  high-profile special envoys Richard Holbrooke and George Mitchell, are over 65.

Evaluation of employee/applicant by social media

Can you base employment decisions on your employee's use of social media? Must you limit the decision to work related issues? The issue is a bit complicated because there is no national act which addresses the issue yet, and there probably wont be anytime soon. More after the jump.

ACORN's woes continue

The House voted today 345-75 to bar all funding of ACORN. This follows the Senate's action Monday. UPDATE 9/18/09 The Times Picayune reports Attorney General Buddy Caldwell is investigating allegations made by former ACORN board members, and that leans have been filed by the IRS and LDR.

Constitution Day

September 17 marks the 222 anniversary of the signing of the Constitution of the United States. There is an interesting web site with information and interactive games like "which founder are you." I rated George Washington.

A prodigal returns

UNITE HERE is bringing its 265,000 members back to the AFL-CIO. UNITE left the organization in 2005 when several labor organizations founded Change to Win. Earlier this year UNITE lost about 150,000 members to the SEIU, one of its "partners" in Change to Win.

Dramatic increase in EEOC charges in FY 2008

The total number of EEOC charges filed in FY 2008, 95,402, was a whopping 12,610 more than filed the previous FY. Its the largest volume of charges in the last decade. Race allegations were included in 35.6% of the charges, followed by retaliation, 34.3%, and sex, 29.7%. Statistics from 1997 - 2008 can be found here.

Goodell suspends suspensions

NFL Commissioner Roger Goodell announced Tuesday that the league would not, at this time, enforce suspensions on Saints players Will Smith and Charles Grant. The NFL is playing this smart by not suspending the Saint's players. Not only is it good P.R., meaning they would not have to endure the complaints about different treatment of the Vikings players, it positions the league to argue to SCOTUS that a nationally consistent policy is necessary, that the collective bargaining agreement pre-empts state law, and I think the Court will agree.

President Supports EFCA

President Barrack Obama in a speech given at the AFL-CIO convention, proclaimed "I stand behind the Employee Free Choice Act – because if a majority of workers want a union, they should get a union."

(sigh) Before a union can gain the right to represent workers it must have demonstrable support from a majority of workers. This is so because the union becomes the representative of not only those wanting it but also the non-consenting employees who do not. The card signing portion of EFCA is strictly about what method is permitted to establish majority status. The unions want a one-sided process where they can surreptitiously convince employees to "support" the union often using heavy-handed and abusive tactics to do so. The process is fraught with concern as to whether majority status is real or coerced. We have previously posted on this problem. More after the jump.

Cost of health insurance

Kaiser Family Foundation President and CEO Drew Altman has issued a brief analysis of the Foundation's annual survey of employer health coverage and costs.

• Average cost of family coverage in 2009 - $13,375.
• Premiums went up 5% while other prices dropped 0.7%.
• Over the last ten years premiums have risen $131% while wages have grown 38% and inflation 28%.
• if premiums rise the same average as in the last ten years, by 2019 the average cost of family coverage will be $30,803.

Secretary Solis speaks to labor

Secretary of Labor Hilda Solis spoke to the AFL-CIO convention Monday. She pledged "to make the "strongest case possible" for the Employee Free Choice Act; Project Labor Agreements and healthcare reform. Secretary Solis, in support of EFCA, proclaimed "It’s not enough to have fair wages and a safe workplace -- workers also need a voice on the job!"  She promises to add "670 additional investigators, inspectors, and other program staff, returning our worker protection efforts to a level not seen since 2001." This move will ensure more investigations affecting more employers, something we have seen already occurring. Employers should review their policies, and more importantly, the application of them to their workplace before the DoL investigator arrives. The full speech is available from the AFL-CIO website.

ACORN takes a hit

The Times-Picayune reported that the Senate voted 83-7 to block the Association of Community Organization for Reform Now [ACORN] from receiving any funds from the Transportation, Housing and Urban Development appropriations bill. Senator Landrieu is quoted as saying Congress must investigate ACORN.

Register-Guard 2007 NLRB e-mail decision reversed by D.C. Circuit

Updated September 14, 2009: One of the "Bush" Board's most criticized decisions is Register-Guard. A three member majority held employees have no Section 7 right to use an employer's e-mail system. The majority also found that an employer's prohibition against e-mails containing union solicitations could be enforced despite the employer permitting employees to send non-job-related e-mails. This case is both an excellent teaching tool for analyzing accessibility/employer's property rights as well as a road map for immediate employer action. More on both after the jump

Williams v. NFL Nos. 09-2247/2462

The Eighth Circuit upheld the arbitration decision which imposed discipline upon 2 Vikings (K. Williams and P. Williams) and three Saints players (McAllister, Grant and Smith), but found that claims the Minnesota players raised under two state laws, Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA),  Minn. Stat. §§ 181.950-957, and Minnesota’s Consumable Products Act (CPA), Minn. Stat. § 181.938 were not preempted by federal labor law. The opinion provides an interesting walk through preemption under Section 301 of the Labor Management Relations Act. Because the district court had declined to exercise supplemental jurisdiction over the state law claims, the Minnesota players are free to challenge their discipline in state court under two employee protective Minnesota laws. The claims under the state laws have not been completely fleshed out other than in the bare pleadings. One of the surest sports bets of the season is that the NFL will petition for cert.

Online lawyers need to be circumspect

The New York Times has an article discussing the ethical problems that attorneys can encounter in blogging and on social media.

Census Bureau report out

The Census Bureau has released its Report on Income, Poverty and Health Insurance Coverage in the United States: 2008. Lots of web comments about the inflation adjusted median income falling below the 1998 median. I see another startling fact. On page 4 the report notes that "[a]pproximately 31.0 percent of the population had at least one spell of poverty lasting 2 or more months during the 4 year period from 2004 to 2007."

Harkin to Chair HELP

Iowa Senator Tom Harkin is the new Chairman of the Senate Health, Education, Labor and Pension Committee [HELP], replacing Sen. Ted Kennedy. Sen. Harkin is a friend of organized Labor.

Labor wins majority in 2008

For each fiscal year the National Labor Relations Board issues an Annual Report full of statistical information about the cases handled by the Board. The latest report for FY 2008 (ending September 30, 2008) contains some interesting stuff. For example, unions won 56% of the secret ballot elections, or 60% depending on which elections make up the total.

Healthcare bill aids unionization?

Mark Mix, President of the National Right to Work Committee, claims in a Wall Street Journal opinion piece, that healthcare proposals are "a Trojan Horse for more forced unionization."

NAM issues its 2009 Labor Day Report

Lots of fascinating data here. Lots of "worsts." Total non-farm employment has declined almost 6% - - a whopping 6,859,000 jobs lost, nearly 2 million in manufacturing alone. Manufacturing output through July 2009 fell 16.4% from its record high in December of 2007. Unemployment is expected to be at 10% by mid-2010 and not make meaningful improvement until 2011. The report can be downloaded here.

Biden says EFCA will pass

Vice-President Joseph Biden predicted at a Labor day rally in Pittsburgh that EFCA would pass this year, according to the Associated Press. The only way passage will occur is if labor backs off of card check recognition, something that soon to be AFL-CIO President Richard Trumka recently indicated might happen.

Union pension funds hurting, but not the ones covering the officers of the union

The New York Daily News has an article on union pension plan funding. Seems there is a real underfunding problem for many multi-employer plans. However, plans for union officers and other employees of the unions are in much better shape.

Feds issue flu guidelines and checklists for employers

The federal government has issued guidelines and checklists for employer to aid in preparing for and responding to an influenza pandemic.

Union's support declines

UPDATE In August, Gallup released its annual survey on unionization. Labor has experienced a huge drop in support since the 2008 survey. For the first time since the survey began in 1936, fewer than half of Americans (48%) approve of labor unions. In August 2008 the approval rate was 59%. At 538, Nate Silver's statistical analysis correlates the support to the rate of unemployment. When unemployment rises, support for unions falls.

What's a degree worth?

The PayScale College Salary report is out, and not surprisingly, the higher median starting salaries and mid-career median salaries are for graduates with degrees in engineering and the sciences. Hospitality and Tourism, Music, Education and Elementary Education are in the bottom 10. Human Resources faired a bit better coming in at 15th from the bottom in starting median, below, um, Art History my undergraduate major.

Union accuses another union of card signing corruption

While pretending EFCA is a vehicle to guarantee employees right to select a collective bargaining representative, labor glosses over the abuses inherent in using authorization cards. Historically unions have used all types of sales pitches raging from simple deception, to bait-and-switch, to coercion and threats. This process does not provide employee free choice, it invites abuse. This is why the NLRB and Courts have favored secret ballot elections for decades. You cannot miss the irony in a recent press release from the Service Employees United Healthcare Workers West (SEIU-UHW) dispute with the National Union of Healthcare Workers (NUHW) NUHW is attempting to decertify SEIU-UHW, a process which requires the signing of cards. SEIU-UHW claims "improper tactics were used to coerce [over 1000] workers, their family members, and the people they care for to sign cards." Press release can be found here. Looks like a second guess take down has occurred, link no longer works.

Louisiana church leaders call for EFCA passage

Late last week 118 local ministers and religious leaders signed an open letter to Senators Mary Landrieu and David Vitter calling for their support to pass the Employee Free Choice Act. Passage they say is a "moral responsibility." The full letter can be read here, and another letter here. My sense is that some form of EFCA will pass, but it won't contain card check recognition, and if labor insists upon taking away employees' right to vote in a secret ballot election, EFCA is dead.

E-Verify required for employment verification

Federal contractors who are awarded a new contract after September 8, 2009 that includes the Federal Acquisition Regulation (FAR) E-Verify clause (73 FR 67704) are required to use E-Verify an internet based system which allows electronic verification of employment eligibility. The system is operated by Department of Homeland Security and the Social Security Administration. Federal contractors may NOT use E-Verify to verify current employees until the rule becomes effective and they are awarded a contract that includes the FAR E-Verify Clause.

This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors' current employees who perform contract services for the federal government within the United States.

Why rushing into EFCA solutions is unwise.

Over the years a marketing noise machine cranks up with every new employment law winding through Congress. ADA, the Civil Rights Act of 1991 and now EFCA. Seriously, Chicken Little runs amok! There are very sane and important actions for employers to take now, but rushing to adopt strategy and tactics to operate as if EFCA will pass as introduced is both wasteful and dangerous. The strategic issues relating to union avoidance are likely to remain unscathed by whatever amendments to the NLRA are ultimately passed. Doubtless the tactics to succeed will change dramatically. However, until the change is passed, designing tactical responses can be wasteful if they are unworkable under the new law and dangerous if an employer is relying upon a "Maginot line." Given the heated nature of the issue, nothing will pass under radar. There will be time to revise tactics after the change becomes known.

Doing nothing is also dangerous. A significant part of the employer's strategy is to educate employees on the negatives of unionization as well as the positives of a union free environment. Changes in the law are very likely to shorten the time within which that can be done and place limitations on employer access to employees. Card signing (or petitions) will remain a part of the process, but as it is now, a predicate to a secret ballot election. Over the next few weeks we will post specific suggestions, like the one in the previous post.

Union membership grows in 2008

The Bureau of Labor Statistics publishes data on union membership annually. In 2008, for the first time since the BLS begin keeping the data, union membership increased significantly to 12.4% of the employed wage and salaried workers (it was 12.0% in 2006). Of course in Louisiana its lower (4.6 percent union membership, 5.6 represented by union). The surprising thing to me is in Mississippi its higher than Louisiana (5.3 percent union membership, 7.3 represented by union).

Old Dog, new tricks

Well, I have read some good stuff, some bad stuff and some stuff I'm not good enough to understand. I'm in the midst of the humbling experience of trying to stay prepared for teaching the National Labor Relations Act to law students. Not my day job, but one that requires time and preparation even, er, over the Labor Day holiday. Pretty sure I'll survive the semester without EFCA complicating things. The day job involves the representation of employers in Louisiana and Mississippi and on occasion elsewhere. On September 13, 2009 I will have done that for 33 years. Union organizing campaigns, discrimination law suits, unfair labor practice trials, wage hour advice and litigation . . . .

I could go on but risk boring at least someone. This is my place to communicate random thoughts which interest me and may be of interest to owners and managers of businesses as well as human resources professionals.