Ruh roh

Looks like the food service operator at the new 1.6 billion dollar Meadowlands Stadium intends to operate non-union. It has renounced the previous operators collective bargaining agreement with UNITE HERE, it has not rehired many of the employees of the former food service operator, and it has reduced the average pay from $13.80 an hour to under $12.00 per hour.  "Ruh roh", indeed.

Employer loses FLSA appeal-Per Diem payments part of regular rate

An employer's use of a per diem rate did not insulate it against an employee's claim under the Fair Labor Standards Act (FLSA). The employer's contract with an experienced aircraft painter, specified a $5.50 hourly rate and a $20.00 overtime rate. The employee also received a per diem of $12.50 for every hour worked up to 40 in a work week. A year into the contract the employer announced a $1.00 and hour raise. Plaintiff's $5.50 straight time rate was not changed, the per diem was raised $1.00. The Fifth Circuit, in Gagnon v. United Technisource, Inc. et al, No. 09-20098 (May 27, 2010) affirmed summary judgment to the employee. More after the jump.

NUHW bests SEIU, employer

NUHW has again bested SEIU and the employer with an impressive representation election victory (393-122). Randy Shaw's BeyondChron article has the details. The SEIU blamed management intimidation for its withdrawal from a 3 way election. Not only did NUHW win a lopsided victory, it was able to point to the fact it overcame the very employer hostility SEIU ran away from.

Disparate impact

In a unanimous decision Lewis v. Chicago, the Supreme Court (Scalia) decided "[a] plaintiff who does not file a timely charge challenging the adoption of a practice may assert a disparate impact claim in a timely charge challenging the employer’s later application of that practice as long as he alleges each of the elements of a disparate-impact claim." Chicago used test results to select firefighters for training classes. Allegedly it had a disparate impact on persons protected by Title VII. Disparate impact claims do not require proof of intentional discrimination. A disparate impact claim “is established” if an employer “uses” an “employment practice” that “causes a disparate impact” on one of the criteria prohibited by Title VII.  42 U.S.C. §2000e–2(k)(1)(A)(i). Although the original test was scored outside of the filing period of the Charge of Discrimination giving rise to this suit, the "use" of the results of the test to exclude those making under a certain score arguably created a disparate impact each time the city filled a new class of firefighters.

Nummi reopens

Toyota has announced a joint venture with Tesla to reopen NUMMI and hire 1000 workers. While this does not reinstate the facility to its pre-closure size, it is welcome news in recession ravaged California. Previous posts about the NUMMI closure are here and here.

Mott's strike

The plant that makes Mott's applesauce is on strike. Mott's is owned by The Doctor Pepper Snapple Group, Inc. Sadly, it is not, and was never owned by my Mott family.

Mississippi strike

More details about the strike at Omnova's Columbus Mississippi plant.

Progress after decertification

This post details the changes that revitalized a manufacturer of musical instruments after a 40 month strike which resulted in decertification of the UAW. Our previous post notes the strike and its effect on the employees.

Strike reaction in Mississippi

Here is an interesting short piece about a strike in Columbus, Mississippi. There is not much to the article but the intensity of the reader comments is very telling about the economy and the sharp divide between those angry with "corporate America" and those valuing a job, any job.

Suspended suspensions held valid then suspended again

The Starcaps case advances. A Minnesota trial court has held that the NFL violated state law by failing to notify affected Vikings' players Kevin and Pat Williams of their test results within the required three day period. Nevertheless the court upheld the NFL's suspensions of the players, finding the notice violations had not harmed the players. This news report seems to have garbled some of the courts reasoning. It seems also the state court judge will suspend his ruling pending the players' appeal. Our previous post on the Eighth Circuit's opinion is here.

Politics, primaries and EFCA

At the National Association of Manufacturer's blog Shopfloor, a post interprets last Tuesday's elections as a "tough night for the card check crowd." While it is true AFL-CIO backed Arlen Specter was defeated by Democrat Joe Sestak, this certainly is not an anti-card check vote. Sestak cosponsored EFCA in 2007 and 2009. He also introduced another labor reform measure. Democrats, including labor are uniting behind Sestak. Given Specter's willingness to compromise on card check itself, the blogger's conclusion is simply fantasy. The blogger is also premature in declaring the Arkansas senate primary as a vote against card check. Incumbent Senator Blanche Lincoln has opposed EFCA and card check. While she ran first, and is in a run off with Lt. Govenor Bill Halter, she garnered only 44% of the vote, an ominous situation for the two term incumbent. Halter has strong support from labor.

The demise of L-Pad

My career spans the demise of carbon paper, the introduction of mass copy capability,  memory typewriters, pocket calculators, computerization, voice transcription, fax machines, and cell phones. The ABA Journal has an article about Apple Computer's new iPad. The question posed is whether this technology will replace "old yeller," the omnipresent lawyer tool, the legal pad, or L-Pad. I've always admired the ability of some attorneys to keep organized notes on legal pads. I'm more of a back of envelop/post it note type of guy. But I see the iPad as unlimited envelopes and post it notes, with a search function and much, much more. Will it replace the L-pad, no, not at least until "paperless" is the legal gold standard. But I want me some iPad.

Teamsters in Chicago

In These Times has an interesting post about the plight of reform candidates that won a federally supervised internal union election. Seems that they have been run out of office by Hoffa.

ADEA plaintiff loses in Fifth Circuit

A 69 year old male who was terminated for allegedly engaging in sexual harassment did not survive summary judgment on his age discrimination claim in this Fifth Circuit case. Plaintiff claimed he was treated differently than younger workers, presented his own affidavit denying he engaged in the alleged harassment, presented a co-worker's affidavit that she did not "perceive his alleged comments as sexual harassment," and a statement from another worker that the person who fired plaintiff had called him an “old, gray-haired fart.” The later remark occurred more than a year before the termination and was deemed a stray remark. Because the issue is whether the company's articulated reason is a pretext for discrimination, not whether it is true or not, the Court found both the co-worker's perception and the plaintiff's denial insufficient to create a material issue of fact on the issue of pretext. As to the dissimilarity of treatment of the younger workers, plaintiff had failed to argue that below in opposing summary judgment, so the court did not consider that argument.

More EFCA spin

Steeelworkers' President Leo Gerard spins EFCA as requiring the same super-majority as the old NMB rules for airlines. EFCA requires cards signed by a majority of those in the bargaining unit, not just a majority of votes actually cast in an election. Spin and more spin.

Repent! union buster, Repent!

According to a group called Catholic Scholars for Worker Justice, union busting is a mortal sin.

EFCA spin

Sometimes the spin is so wretched you are afraid your head will explode. How many times have you read about the "Orwellian" named Employee Free Choice Act? How many times can you read a piece from a group called the Workplace Fairness Institute? Oops, not that WFI, this Workforce Fairness Institute, an entity set up to trash EFCA and unions. EFCA has little or nothing to do about free choice, more after the jump

NFL seeks booth review from SCOTUS

The NFL has filed a Cert. petition in the Star Caps case, claiming the NLRA preempts state law protecting players from the collectively bargained anti-drug policy. Our previous post on the Eighth Circuit's opinion is here.

STRIKE!!

There is a compelling case that the National Labor Relations Act's stated purpose, to reduce economic disruption by imposing collective bargaining, has wildly succeeded over the last 75 years. Succeeded so much that unions are considered increasingly irrelevant to many workers. This post calls for a return to active use of labor's economic weapons, the strike, in particular, as well as other acts like secondary boycotts which are expressly circumscribed by the NLRA. The poster suggests unions should engage in establishing new legal identities to shield them from liability, not unlike many businesses do. Interesting and provocative analysis.

Adult children health insurance coverage

According to Workforce Management, the Department of Labor, the Department of Health and Human Services and the Internal Revenue Service have issued regulations clarifying the obligation to cover adult children of covered employees by employer provided health insurance. The rules make it clear there can be no employer surcharge, and that children previously aged out, or who elected COBRA continuation, must be given an opportunity to re-enroll.

Workers win!

On the surface this article describes the joy and payout received by strikers ten years after the company unlawfully refused to return them to work. In reality the real story is these employees endured a job loss 10 years ago, and waited this long through uncertainty and 6 appeals to get what they would have earned, plus a little interest. The SEIU Blog attempts a little better spin on it, but that's still a long time to wait for a victory and some backpay.

Labor costs and automakers

We have previously posted about American automakers being a proxy for organized labor. Now we find the bashing of American automakers also falling into the "facts matter" realm. Part of General Motor's turnaround is based on a real reduction of labor costs for hourly workers, according to the Center for Automotive research. In fact, in 2008, the average wage for hourly workers at GM was almost a thousand dollars a year lower than Toyota's average wage. Salaried workers at GM, however, averaged over $40,000 a year more than salaried workers at foreign automakers. This information strongly suggests it is not labor costs subject to collective bargaining which cause GM to be at a competitive disadvantage.

Termination of strike replacements not a WARN Act mass lay-off

A federal district court has granted defendant summary judgment in an interesting WARN act scenario. At the conclusion of a strike the employer returned striking employees to work and terminated 123 replacement workers. The court found the termination and subsequent rehiring of the strikers did not meet the WARN Act definition of mass lay-off. A mass lay off involves a reduction in force. This case did not involve the loss of any positions through a reduction of the actual jobs in issue. The jobs remain, albeit filled by a different worker.

Nominated

The Washington Post reports President Obama has nominated Solicitor General Elena Kagan to the Supreme Court.

April employment report

The Bureau of Labor Statistics (BLS) has released its April employment report. Private sector job creation equaled the revised total figure for March (230,000). The public sector total was 66, 000 spurred in part by the addition of temporary census jobs. The 290,000+ number is the best since March of 2006. The revision of February figures from -14,00 to +39,000 makes march the 4th straight month of job gains and the 5th out of the last 6. Despite this, unemployment rose to 9.9% (from 9.7) for the first three months of the year. The growth in unemployment is attributable to reentrants to the workforce.

Bazoombas bar

A New Jersey union official's titty bar purchases have come under suspicion. Love the way its called "Go Go bars." Takes me back to the '60's. Otis at the Whiskey a Go Go.

Two to one

The NLRB has released its statistical summary on union representation proceedings for the 6 month period from October 2009-March 2010. Any way you slice it (and the Board slices and dices a lot of information), labor organizations won more than 60% of the elections conducted.

Health insurance for adult children of covered employees

The Internal Revenue Service has green-lighted an employer's ability to amend health insurance plans to permit tax free coverage of an employees adult children up to age 27. Many health insurers have agreed to implement the expended coverage before the mandated deadline, provided employers agree.