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 NLRB 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.

NLRB Poster about employee rights

Here is a lighthearted video on the NLRB's requirement employers post a notice advising employees of their rights under the National Labor Relations's Act.

The Twitter account

Who owns that Twitter account? There have been a number of posts, here, here and here concerning "ownership" of a departing employees Twitter account. Litigation was inevitable. For a discussion of the legal theories which survived a motion to dismiss go here.

NBA season jeopardized

NBA/NBPA talks are going badly. Players reject owners last offer, and the union plans a disclaimer of interest (not decertification). Point being the players want to play the antitrust card. One certainty among much uncertainty. Chances for any NBA season have diminished.

Survey says . . .

Cisco surveyed college students and recently employed college graduates about the importance of internet access, social media use and access to mobile devices at work. The results should give pause to employers considering drastic policies curtailing use. Bottom line finding is a company's policies may affect job choice even more than salary. The findings are astonishing.

• 68% of employees and 71% of college students believe corporate devices should be used for social media and personal use
• 80% of college students want to choose their device
• More than two of five would accept a lower-paying job that had more flexibility with regard to device choice, social media access, and mobility than a higher-paying job with less flexibility.
• 50% of college students say they would rather lose their wallet or purse than their smart phone or mobile device
• 7 out of 10 students believe being regularly in an office is necessary
• Many respondents cite a mobile device as “the most important technology” in their lives
• Seven of 10 employees have “friended” their managers and coworkers on Facebook
• Two of five students have not bought a physical book (except textbooks) in two years
• two-thirds would choose the internet over a car
• one in three say the internet is as important as food, water and air.

Rather than focusing on an employer's legal right to control employees, some employers may derive substantial benefits if company policies permit employees internet access, social media use and mobile device use at work.

Charlotte and the DNC

The 2012 Democratic Convention will be in Charlotte, NC, one of the least unionized states in the country. The Charlotte Observer has a piece on labor wanting a piece of the action.

Round 2

Despite the rebuke Ohio voters gave to Gov. Kasich's effort to restrict public sector collective bargaining, a conservative group with Tea Party roots has announced its intent to try to make Ohio a right to work state through a 2012 ballot initiative.

Preparation for 2 Member NLRB

The NLRB has delegated its authority to the General Counsel to act with

full authority over court litigation matters that otherwise would require Board authorization and full authority to certify the results of any secret ballot election conducted under the National Emergency provisions of the Labor Management Relations Act, sections 206–210, 29 U.S.C. 176–180. These delegations shall become effective during any time at which the Board has fewer than three Members and shall cease to be effective whenever the Board has at least three Members.

This action is taken due to the likelihood the NLRB will have only 2 members when the recess appointment of Member Becker expires.

Rejected

Ohio Governor John Kasich made passage of Senate Bill 5 (his signature law restricting public sector employees collective bargaining rights and the right to strike) his first priority after the Republican sweep in the 2010 elections. The reaction by labor and its allies has been swift and overwhelming. They gathered almost a million signatures to place a referendum on the ballot. Yesterday the repeal referendum (in which a yes vote was a vote for SB 5) was defeated resoundingly. Governor Kasich seems to understand.

Overpaid?

While some politicians argue public sector employees are overpaid, a new study from the Bureau of Labor Statistics indicates the opposite. Conservatives challenge the BLS conclusions with a Heritage Foundation study. Progressive blog ThinkProgress counters with a Project on Government Oversight (POGO) report which criticizes the Heritage Foundation methodology.

Unemployment trends down slightly

The Bureau of Labor Statistics (BLS) October jobs report reflects unemployment slipped to 9.0% down from 9.1 the previous month. Private sector employment grew by 104,000 and government employment losses (24,000) partially offset the private sector gains

Well you gotta eat

Today the Times Picayune reminds us a 1929 streetcar strike is credited as the birth time of the iconic po'boy sandwich. More about the origins here.

Boeing case delayed

The high-profile unfair labor practices case against Boeing is stalled pending federal court enforcement of NLRB subpoenas to the company for documents. It is unlikely the case will be resolved before the end of 2011. At that point, it is likely the NLRB will no longer have a quorum of 3 members. Member Becker's recess appointment ends in December. Congressional Republicans are likely to filibuster any appointments thereby preventing the Board from having the third member necessary to function. A recess appointment is a possibility, but that requires a recess, something Republicans have avoided by keeping Congress in session. Previous posts here.

Responding to allegations of harassment

Anytime a business has to address accusations of sexual harassment the response to the accusation is critical. Prompt remedial action can often avoid liability. Thats sex harassment 101. When a politician is accused of harassment, the response can be more complex. Herman Cain is learning that lesson in real time. More after the jump

Basketball (not anytime soon)

The NBA lockout has already resulted in cancellation of the first month of games. For now, it looks like the fans, owners and players are losers, but the lawyers are not.

Situational harassment

A liberal blogger she makes this interesting point about allegations of sexual harassment by a politician.

Separating employment (with music)

Some "I quits" are memorable, this one is up at a new level. The action starts around a minute 40.

National Economy grows to tread water state, local economy fares better

In a mild surprise third quarter growth in the U.S. GDP reached 2.5%, almost doubling second quarter growth, according to the Commerce Department. In Louisiana job growth continues with the New Orleans area adding almost 11,000 jobs between September 2010 and September 2011. The metro area unemployment rate in September was 6.9%.

Yin and yang (sort of not)

Just as the Department of Labor is about to impose onerous disclosure requirements on attorneys and consultants who advise employers concerning labor relations (previous posts here), the same DoL is easing the disclosure requirements on labor.

Labor joins OWS

Unions rally in support of Occupy Wall Street.

Ohio collective bargaining law jeopardized

This fall's election cycle has little of note (unless you think Gov. Jindal's 66% win is underwhelming against a field of under financed, under knowns). There is one contest in Ohio, however, that is worth noting. Its the attempt to undo Gov. Kasich's limits on collective bargaining rights for public employees in the state. Current polling has the repeal forces optimistic. This election is seen as a harbinger of the 2012 presidential race in a crucial state.

Women beware

There is a really interesting post at Harvard Business Review entitled "Four Ways Women Stunt Their Careers Unintentionally." The post itself makes some valid points, but the comments are well worth a full read. Essentially the post says women hurt themselves by  (1) being overly modest about their accomplishments, (2) not asking for promotions (3) blending in to avoid attention, and (4) failing to speak out and express opinions. Some of the comments present an insightful rejection of the thesis of the piece. Note for example those of idea15webdesign posted 10/20/2011 06:16 AM

Jobs on unions

Walter Isaacson's Steve Jobs biography relates some pretty negative views Jobs had on public school unions.

"Monkeys!"

A federal district court in Mississippi has denied summary judgment on a hostile environment claim to an employer who is accused of multiple instances of racially derogatory remarks (calling black employees "monkeys"). Once would have been OK, but not several times.

Conundrum

Sometimes its hard to tell who is the player and who is getting played. An 8 year employee of Target claims his discharge was because he complained about not receiving uninterrupted breaks. Under federal wage hour laws employees who are called back to duty during a supposed break are entitled to compensation for the break which is interrupted. The federal lawsuit claims retaliation for complaints about breaks being interrupted in this manner is the real motivation for the discharge.  The irony is his discharge was ostensibly because he worked through a lunch break off the clock. Many employers have a policy preventing employees from doing just that. The basic reason for the policy is to discourage unauthorized work which may lead to overtime. If the employee works, he is entitled to compensation under the FLSA, even when the work was unauthorized and in violation of company policy. So the employer's remedy is limited to discipline for violating the policy. The employer may not refuse to pay the employee. One interesting fact in this case is the time clock prevented an employee from clocking back in within 30 minutes of clocking out. While one can understand the employers objective, this approach likely will result in the trier of fact assuming the employer's time clock does not accurately reflect time worked

Three Profs defend NLRB

Three labor law professors have an op-ed piece in the New York Times. In defense of the NLRB they pose the question in an analogous, but simple way.

Everyone agrees that a company may legally locate its production anywhere it wishes and for any reason — except retaliatory ones. Imagine if Boeing had deliberately located a new plant in an area with a predominantly white labor force and then publicly stated that it did so because it was tired of listening to discrimination complaints made by African-American employees at its home plant. If the general counsel’s allegations are true, Boeing did something legally indistinguishable — unless labor rights no longer count as “real” rights.

The entire piece is well worth the read. Our previous posts are here.

Now its more than anecdotal

Pew has a report out about the effect of the Great Recession on the birth rate. While Alaska and North Dakota buck the trend, every other state (map) shows a decline in birth rate since 2007. Mississippi ranks third highest decline (behind Nevada and Idaho). Clicking through to the Pew site brings you to a graph showing just how close the decline in birth rate mirrors the decline in per capita income

Retaliation requires employment

The Fourth Circuit, in a divided opinion, holds an applicant for employment who is denied employment  after the prospective employer learned that she had sued her former employer under the FLSA is not an employee subject to the anti-retaliation provisions of the FLSA. A strongly worded dissent by Judge King relies upon, Robinson v. Shell Oil Co., a Title VII decision in which the Supreme Court held employers who retaliate against former employees who engaged in protected activity stated a Title VII retaliation claim. In both cases the issue was whether the statute extended protection in a context where the adverse action was taken against a non-employee. Given the Supreme Court's handling of recent retaliation cases, I think this one might get a look-see.

Now its getting serious

The National Basketball Association lockout continues. NBA Commissioner David Stern has announced the cancellation of the first two weeks of games. With no apparent progress being made the entire basketball season is in jeopardy. The NBA is not the NFL (which was smart enough to compromise without costing any regular season games). The NBA likely will take a huge hit from its decision to lock out players. Fewer people will care both short term and long term as this columnist notes.

Ruh Roh

One reason consumers feel so pessimistic may be that income levels have declined more since the recession ended than during the period of recession. This from a study by two former census officials

During the recession, real median annual household income fell by 3.2 percent, from $55,309 in December 2007 to $53,518 in June 2009. During the economic recovery, real median annual household income fell by an additional 6.7 percent, from $53,518 in June 2009 to $49,909 in June 2011.

Bye Bye, NLRB

A Georgia congressman wants to eliminate the National Labor Relations Board specifically because the Congressman does not like the fact that the Board may find Boeing violated the NLRA. The bill would shift enforcement of unfair labor practice violations to the Justice Department, and processing of representation matters to the Department of Labor. Perhaps this will be a 2012 campaign issue.

Same sex harassment and gender stereotyping

A new district court opinion out of Mississippi, Moore v. USG Corp., holds, in a same sex harassment context, the Fifth Circuit does not recognize a gender stereotyping theory of liability. The Court limits same sex harassment claims to three recognized models of proof (provided in the Supreme Court's Oncale decision). More after the jump (graphic facts)

Law firm as employer

Even law firms can be sued for discrimination.

Slim job growth in September

Private sector employers added a meager 137,000 jobs in September, while the public sector continues to shed jobs according to the latest jobs report from the Bureau of Labor Statistics (BLS). The unemployment rate remained at 9.1 percent while the underemployment rate inched up to 16.5% (from 16.2%). Both the July and AUgust estimates were revised upward, but only slightly.

NLRA notice requirement delayed

The NLRB has postponed until January 31, 2012 the effective date of the new rule requiring employers to post the Notice of NLRA rights. The reason for the delay: "to allow for enhanced education and outreach to employers . . . ."

Just sayin'

Warren Buffett on taxes and job creation:

"I have worked with investors for 60 years and I have yet to see anyone — not even when capital gains rates were 39.9 percent in 1976-77 — shy away from a sensible investment because of the tax rate on the potential gain. People invest to make money, and potential taxes have never scared them off. And to those who argue that higher rates hurt job creation, I would note that a net of nearly 40 million jobs were added between 1980 and 2000. You know what’s happened since then: lower tax rates and far lower job creation."

Seems that as long as the discussion is diverted by illogical assumptions, the problem will continue.

A National Right to Work Law?

Senator Jim DeMint (R SC) has proposed passing a national right to work law. Texas Governor Rick Perry and former Massachusetts Governor Mitt Romney have said they both support it. This is, of course, a reaction to the Boeing case where the NLRB has issued a complaint against the company for building a second Dreamliner production line in South Carolina allegedly because the Machinists' union engaged in strikes in Washington State where the company had announced the expansion would be located. For a small government Party, the Republicans are awful quick to federalize certain issues which advance their agenda. Unions do the same thing (see EFCA). Under current law, states have the right to choose whether they permit an agency shop or not. An agency shop is one where a company and a union can agree that the employees are required to join the union. Federal law also says such arrangements cannot require actual membership in a union, only that an objecting worker pay partial dues attributable to the unions collective bargaining services. In the 22 right to work states, unions and employers are not permitted to require union membership, or any payment in lieu thereof, as a condition of employment.

Local unemployment lower than nation

Unemployment has drifted downward locally and statewide. While there is no job boom, things are better here then elsewhere. Article and charts here.

Young Workers Summit

Next week the AFL-CIO will host a Young Workers Summit in Minneapolis. Labor Secretary Hilda Solis will participate. AFL-CIO President Richard Trumka has made no secret of his priority of recruiting and involving younger workers.

Labor takes advantage

Steve Greenhouse writes in the New York Times (registration required) that last year's Citizen's United opinion has liberated unions from campaign reform restrictions and the result is reinvigorated outreach efforts. Money quote:

Before the Citizens United ruling, unions were banned from using dues money to reach out to nonmembers in political campaigns, but now unions plan to campaign among the 89 percent of Americans who do not belong to unions. Union officials have long complained that when their foot soldiers knocked on doors in, say, Milwaukee or Columbus, Ohio, they wasted huge amounts of time because they could visit only union members’ homes and often had to skip 90 percent of the houses. Now they can knock on every door on a block.

Persuader regulations opposed

The American Bar Association and the Chamber of Commerce of the United States have both filed comments with the Labor Department on the proposed revisions of the “persuader” regulations requiring extensive reporting of client confidential information when an attorney or firm provides advice to employers on labor relations matters. These persuader rules are a far more important issue than the required notice posting that has gotten so much coverage. These rules, if adopted, will make it impossible for a law firm to preserve client confidential information and be in compliance with the reporting and disclosure requirements.

Worst job creation decade

Its now official, the first decade of the 22nd century has been an economic disaster for many Americans. Earnings for middle class Americans have been been lagging since the 1970's, but since 2000, income has actually declined while inflation adjusted prices have risen. The Economic Policy Institute (EPI) has a more detailed report. Despite the lowest tax rates in 50 years, the United States is hemorrhaging good jobs, and the rate of job creation (any job creation) lags the loss. Where are the job creators? Over taxed they are not. Over regulated? Perhaps, but I tend to think job creation originates with demand. The engine for demand is the 95% of the population that either has nothing to spend or is too scared to spend it. A millionaire tax is too little to erase the deficit, and correspondingly, lowering taxes (again) for millionaires wont liberate job creators sufficient to make a dent in unemployment.  

Hating arbitration

Some attorneys really do not like the Supreme Court's direction on compelling arbitration of employment disputes. Check out "Separate but Unequal" from Cliff Palefsky. To give you an idea of the content, here's a money quote: "Mandatory arbitration is a cancer in our justice system based on a phony public policy and legal and factual fictions."

Bad Boss Monday

Working America, which is an affiliate of the AFL-CIO, recently sponsored a bad boss contest. Some of the winners are described here. Its enough to make you appreciate your own superior's eccentricities, well, maybe not. Its not surprising that a labor affiliate would sponsor this contest. The number one reason employees seek out union representation - mistreatment by their boss. Not wages, not benefits, not even oppressive working conditions drive employees to a union as much as bad treatment by the boss.

Almost half of respondents say unions have outlived their usefulness

48% of respondents in a Rasmussen survey see no further need for unions. Click through to the survey questions to get a better take on the results.

ADEA hostile environment claim in Louisiana

In Dediol v. Best Chevrolet, the Fifth Circuit has for the first time held a hostile environment claim under the ADEA is actionable. The Court reversed summary judgment for the employer both on the ADEA hostile environment claim as well as on a religious discrimination hostile environment claim.

Victor Bussie (1919-2011)

The Times Picayune today reported on the September 4th death of Victor Bussie. Bussie served as the head of the Louisiana AFL-CIO for 41 years until his 1997 retirement. The article provides an interesting overview of Bussie's career.

Trade Group sues to prevent new notice posting requirement

The National Association of Manufacturer's (NAM) has filed suit to compel the NLRB to suspend its new rule requiring employers to post a notice in the workplace concerning rights employees have under the National Labor Relations Act. It appears this is in keeping with the NAM's battle against regulations it maintains impede productivity and job creation. There is a world of difference between a environmental regulation and a notice posting requirement, but as they are both new regulatory restraint, the NAM is against them. The NLRB requirement requires the posting of a notice that the NLRB provides as a free download. Its hard to distinguish this posting requirement from other requirements under state and federal law which compel employers to post notices to inform employees of their rights. The real issue here is employers fear employees might learn something that they will act upon. There is a strong argument the new requirement, when assessed in the context of the new rules for representation elections the Board has proposed, presents an opportunity for the sophisticated employer who integrates appropriate discussions into a program of education for employees.

Employer notice posted

The NLRB has released a downloadable version of the Notice employers are required to post advising employees of their rights under the NLRA. Our previous post on the requirements is here.

Client Confidentiality

The American Bar Association has issued a formal opinion on an attorney's responsibility to advise clients concerning "the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access." Attorneys representing employees should advise their client not to use their employer's computers, devices or e-mail to send confidential communications. Employers should review their e-mail and computer use policies to ensure their business objectives are achieved in a lawful manner.

From the jobs speech

"I reject the idea we have to strip away collective bargaining rights to compete in a global economy."

                                                                                          President Obama  9/8/11


Red meat for organized labor, but a little short on specifics.

A moving failure to accommodate

The EEOC has sued the Scooter Store (they sell mobility to those with limitations on walking) for disability discrimination.

Would it pass today?

During the introductory lecture in my labor law class, I point the students to Section 1 of the NLRA which contains findings and policies supporting passage of the Act. The statements are remarkable, even revolutionary when you think of the public's current perception of the role of government and its intrusive effect on private business. The section concludes declaring the public policy of the United States to be one supporting collective bargaining. The National Labor Relations Act fundamentally altered the role of government in regulating the process whereby organized labor negotiated with business the terms and conditions of private employment. In class, we discuss not only whether the NLRA would be passed today, we also discuss whether it would be deemed constitutional if considered res nova by the current Supreme Court. Long time blogger Michael Fox posted similar thoughts at Jottings by an Employment Lawyer. How different public sentiment has developed in response to the Great Recession, than it did to the Great Depression. 

YIKES!

James Hoffa, President of the Teamsters had some fighting words for the Right when he warmed up a labor crowd for President Obama in Michigan. There is a bit of a misquote involved.

Labor Day 2011

The Department of Labor web site also has posted a history of labor Day.

10 things about labor day

Time has a piece on 10 things you did not know about labor day, and some of them have nothing to do with the labor movement.

Liebman responds to Board Critics

The New York Times has a piece on former NLRB Chair Wilma Liebman responding to criticism of the Board.

Union approval very partisan

Every year, just before labor day, Gallup polls the American public's attitude toward labor unions. 2010 post here. This year a few more Americans view unions in a slightly more favorable light (52%), up from a 2009 low of 48%. But the real story is the whopping 52 point differential between Democrats (78% favorable) and Republicans (26% favorable). Last year Republicans had a 34% favorable view.

New unit determination standards for nursing homes

In Specialty Healthcare (download here) the NLRB changed the standard for determining what is an appropriate bargaining unit in nursing homes. In so doing the Board claims to apply the traditional analysis as to what is an appropriate bargaining unit. This change will profoundly affect the ability for nursing homes to deal with union organizing activity. More after the jump

Dana done

In 2007 the NLRB decided Dana Corporation, a thoughtful decision about how to safeguard employees' rights to select their bargaining representative. In Lamons Gasket Co., (download here) the Board returns to its pre-Dana law which does not allow a challenge to voluntary recognition by dissident employees. There is always potential for collusive or abusive action in a voluntary recognition scenario (where an employer agrees to recognize a union without an election to determine majority status support for the labor organization). Dana provided a mechanism for a significant number of employees to challenge voluntary recognition by petitioning the NLRB to conduct a secret ballot election to determine whether the union actually represented an un-coerced majority of the employees. This was a pro-employee decision and a prototype for labor reform that avoids the EFCA albatross of eliminating secret ballot elections. Our previous posts are here and here. Essentially card check majorities would be valid, unless 30 percent of the affected employees petitioned for a secret ballot election within 45 days of being notified of voluntary recognition. While many Bush Board decisions altered labor law in ways that advanced employer interests to the detriment of labor, Dana was an enlightened attempt to protect employee rights.

Two Member NLRB Strategy

With Chairman Liebman leaving the NLRB, and Member Becker's recess appointment running out at the end of the year, some anti-union advocates are now urging Republican Member Bryan Hayes to resign. Why? In order to incapacitate the NLRB by reducing it to two members. In New Process Steel last year the Supreme Court held a two member Board lacks a quorum and cannot lawfully function. To me this is not a strategy, rather it would cynically exploit the ability to create temporary dysfunction, for questionable short term political objectives. But of course the real problem is many on the right don't like the National Labor Relations Act, believe it is unconstitutional (despite a Supreme Court case to the contrary) and want it gone. Although I teach labor law, my practice is one that represent's management interests and has been for 35+ years. Those who call for repeal of the NLRA think they would remove a regulatory barrier. In truth, many on labor's side might join in repeal because repeal would unleash economic weapons favoring labor that could reinvigorate certain strikes and secondary boycotts now made unlawful by the NLRA. Be careful about what you ask for.

Phyrric victories

What a Phyrric victory! City spends $407,000 investigating whether an ethics complaint against a school board member whose son took a $400 high school course for free. Ultimate result: ethics violation established by a 3-2 vote. School board member pays the $400.  Another public sector excess, yes, but this type of decsion-making afflicts the private sector too. Far too often we hear of enormous expenditures made by employers defending employment law cases. I know one example where a defendant spent into 7 figures on defense of an individual discrimination claim before the plaintiff won less than six figures, and had been willing to settle for about what the jury awarded. I often tell my defense clients liability is not the real issue in employment law cases, most of them can be won in Louisiana and Mississippi. Its the cost of defending the claim in court that is the economic adverse effect. Is there a duty to seek early settlement, in even limited liability cases. Yes.  A lot of times that suits the client's interests. But who determines the client's interests? Its one thing if the decider is the owner. But in most other situations a real issue occurs when the "decider" for settlement is not the owner, but the "decider" accused of the wrongdoing. Should shareholders and boards demand an impartial assessment? Perhaps they should, particularly where the cost of defense of a five figure claim is north of seven figures.

New Chairman at NLRB

NLRB Chairman Wilma B. Liebman leaves the Board as her third term ends. She is replaced as Chairman by Member Mark Gaston Pearce.

That and a cup of coffee will get you . . .

New Orleans' own community organizer and ACORN founder, Wade Rathke, has a new venture. Rathke is going into the coffee house business and the Times Picayune has a feature on the new venture.

NLRB Notice Posting Requirements obligates all private sector employers covered by NLRB Jurisdiction

On August 25, 2011, the National Labor Relations Board (NLRB) issued final regulations (194 pages!) concerning required notifications an employer must give to employees concerning their rights under the National Labor Relations Act. This requirement applies to all covered employers, not just those with a union. The requirements will take effect 75 days from the posting of the final rule in the Federal Register. The target deadline is November 15, 2011. If your company is subject to NLRA jurisdiction posting of the Notice is required. This is similar to the posting requirement imposed on federal contractors by executive order.
The NLRB will provide downloadable versions of the poster for free. Failure to post the notice will be considered an unfair labor practice. Willful failure to post the notice may be considered evidence of improper motivation for other acts alleged to be unfair labor practices. In appropriate situations the NLRB may extend the statute of limitations for the filing of other unfair labor practices where an employer fails to post the notice. Although there are no fines for non-posting the consequences can be substantial.
The posting must be “wherever notices to employees regarding personnel rules and policies are customarily posted and are readily seen by employees, not simply where other legally mandated notices are posted.” If the employer posts personnel rules on the internet or on a company intranet, the notice must also be posted there electronically.
Employers with 20% of their workforce not proficient in English must also post notices in the appropriate languages.

Damn unions!

U.S. unions disrupt Lybian liberation.

How long must an ADA leave be?

Employers are having a difficult time complying with the new Americans with Disability Act leave requirements.  Employers who cap leave time at a maximum number of days, or cap it at 12 weeks mistakenly believing the FMLA maximum is all ADA requires' have found out the EEOC and the Courts see the requirements differently. An individual assessment is required for each leave request. While it is conceivable an across the board capped among of time may establish an employer's hardship, its not an easy burden to meet and individual assessment, even in that context is required. Some cases of note are discussed in this on line post.

Caution urged to plaintiffs

Remember the employee who claimed she was gang raped in Iraq? Privious posts about the case are here. Last month she lost on all claims that were permitted to go before a jury. Now the defendants are suing her for their attorneys fees claiming her suit was "frivolous, unreasonable and groundless." Before you pass judgment on this one read the defendants' request for attorney fees. If the allegations are true, then fees may well be appropriate.

Jury verdict hits Mississippi casino

A Jewish manager has won a discrimination claim against a Tunica Mississippi casino. The Clarion-Ledger reports " two former casino employees testified they heard the general manager refer to Silverberg as a "G.D. Jewish slug." The jury awarded the former food and beverage director $102,000 in back pay, $76,500 for mental anxiety and $400,000 in punitive damages.

Car Wars - again

I recently received a broadcast forward of an e-mail forwarded to me. It was a great, old and sentimental advertisement for the Ford Mustang. But the feel good message was obscured by the original senders words "THANK GOD WE HAVE ONE AMERICAN CAR COMPANY LEFT. THE OTHER 2 ARE RUN BY OBAMA HENCHMEN. Yes, all caps and big, bright blue letters shouting a political message. Of course this is "Car Wars as proxy for politics, a subject we have discussed before.  Yes, many people blame unions for the troubles of the domestic automakers, and blame President Obama for anything union. But that is a simplistic blame.  The auto bailout saved the American auto industry (yes, Ford too) and resulted in restructured companies and saved jobs. I fail to see how that is a bad result, even if a collateral benefit favors the United Auto Workers or any other union.

Social media policies and the NLRA

Acting NLRB General Counsel Lafe Solomon has issued a report on social media cases. Anyone who fails to consider the NLRA in general and the concept of protected concerted activity in particular when crafting and enforcing social media policies for employers is missing a major issue. This report (downloadable here) does a good job of defining the area. The U.S. Chamber of Commerce has also released a report on social media and the NLRA.

Solidarity!

Interesting set of "resources" for showing support for striking Verizon workers.

Location, location, location

Unions have heartburn over the location of the 2012 Democratic Convention in Charlotte, NC. North Carolina has the lowest union density in the country.

Effective today . . . .

Among the several new laws passed by the Louisiana Legislature are HB 342 and HB 646, which effective today impose upon employers certain duties concerning employment. HB 646 amends RS 23:995 to impose civil penalties on "persons" who "for himself or on behalf of others shall employ, hire, recruit or refer . . . an alien who is not entitled to lawfully reside or work in the United States." Penalties include civil fines for the first and second violation, and for subsequent violations, suspension of the employer's license to do business in the state. Except for healthcare facilities, enforcement is by the Louisiana Workforce Commission, which can seek fines, injunctive relief, and if judicial enforcement is required, seek attorney fees and judicial interest on the civil fines assessed.

The second new law, HB 342, prohibits private employers from bidding on or contracting with a public entity for services to be performed in the State of Louisiana unless it verifies by affidavit that it uses, and will continue to use during the term of the contract, the federal E-Verify program. The requirement applies to all of the employer's employees working in Louisiana, not just employees on the public project. The employer must require its subcontractors to agree to do the same. Non-compliance can lead to cancellation of any existing contract and debarment for up to three years from the date of discovery of the violation. HB 342 applies to contracts entered into, or bids offered on or after January 1, 2012.

Both of theses statutes create an intended safe harbor for an employer relying upon the federal E-verify program. The public contracts law requires it. The broader law, HB 646 permits not only E-Verify, but reliance upon the documents acceptable in the I-9 verification process. Both verification processes can result in error and the employment of "illegals." But an employer benefits from the safe harbor if it has complied with the verification process, even if the result is flawed.

No FLSA retaliation claim available to prospective employees

The Fourth Circuit, in a divided opinion, holds the retaliation protections of the Fair Labor Standards Act apply only to current and former employees of an employer, not prospective employees. In Dellinger v. Science Applications International the majority finds this result compelled by the statutory language. Relying on Robinson v. Shell Oil Co., 519 U.S. 337 (1997) which held a former employee can state a retaliation claim under Title VII for conduct occurring after termination of the employment relationship, the dissent argues the Plaintiff states a claim. Money quote after the jump.

30 years ago . . .

Michael Moore makes the case that the middle class began its economic descent with the PATCO strikers losing their jobs.

And today is . . .

A written work schedule given to a 44 year old office manager by her employer's owner which included "Wet T-Shirt Wednesday" and "No Bra Thursday", and some other pretty egregious conduct, has landed an employer in federal court.

Recalls fall short

Looks like the Republicans will hold control of the Wisconsin Senate, losing only 2 of the three seats the Democrats needed to take over. This proxy war over public sector collective bargaining rights has been bruising and expensive.

Wisconsin recalls

Fueled by public sector collective bargaining issues, the Wisconsin recall elections continue today. The AFL-CIO is "getting out" the vote. See the races handicapped here.

House Committee subpoena issues for Boeing information

The Republican controlled House Oversight Committee has issued a subpoena to the NLRB and its General Counsel, Lafe Solomon, for documents relating to the Boeing case. This is a remarkable occurrence given the fact the case is still pending. One interesting aspect about unfair labor practice proceedings is the absence of pre-trial discovery. The broad subpoena certainly covers factual matters which are relevant in the trial of the matter.

Labor in the Magnolia State

The Clarion-Ledger online has a pretty good overview piece on the state of labor in Mississippi.

Strike Replacements, Inc.

This piece is a brief profile on a company that supplies replacement workers in labor disputes.

Can you hear me now?

45,000 Verizon employees on the east coast are on strike. Verizon intends to continue operations with management personnel and others.

Ratification

The NFLPA ratified the collective bargaining agreement with the team owners.

Economy up - unemployment, Dow down

The Bureau of Labor Statistics (BLS) released the July jobs report today. Private sector employment increased by 154,000 jobs, but that gain was partially offset by continuing loss of public sector jobs. Unemployment declined marginally to 9.1%. Dow drops 500, worst day since 2008 financial crisis.

NBA v. NBPA

Now that the NFL has resolved its spat with the players with a long term deal, its time for the National Basketball Association (NBA) to take center stage on the sports/labor dispute front. The NBA presses two claims against the Players' Association (NBPA). The first is an unfair labor practice charge claiming the NBPA is refusing to bargain in good faith by threatening a sham decertification. The second is a federal court suit to declare the NBA does not violate the anti-trust laws if it voids all existing player contracts if the decertification is held lawful. I understand the former, and its a text book move given the judicial treatment of the issues in the NFL/NFLPA dispute. But the latter seems a public relations mistake, and probably preempted.

Whats that about?

The Federal Aviation Administration (FAA) has been shut down due to Congressional inaction. And one of the reasons is a technical labor issue. Republicans view the changes to the election process for selection of union representation to be too friendly to labor. The issue is detailed in this previous post.

Union decline causes wage inequality

Mother says so.

Ambulatory something

The Teamsters are taking it to the streets and passing out leaflets in front of the offices of the attorneys representing an employer in a dispute involving them.

Bad Union

This writer uses the NFL's cancellation of the Hall of Fame game to blame unions. Oh, cancellation of the game and the economic consequences of the lockout are the union's fault. . . .

LMAO! Its a dreadful mis-mash of a piece in the Washington Examiner . . . .

Turn up the heat

Does an employer have the right to turn on heat lamps directed at workers picketing in 99 degree weather? I think we are going to find out.

NFL owners agree to a deal

The NFL's team owners have unanimously agreed to a proposed 10 year contract with the recertified NFLPA which should result in an end to the lockout and teams practicing by the week-end. New Orleans player representative Heath Evans cautions, the players' agreement is not certain. While it appears the economic issues are settled - the owners will not take a slice off the top anymore - Evans claims there are things included in the owners approved deal that the players have never discussed. Also, yesterday the August 7 Hall of Fame game was cancelled.

When the music stops

Labor unions know how to starve the beast too. Here's a post about the trouble orchestras are having due to unionization.

Golf Coach Gimme

Purdham v. Fairfax County Sch. Bd., (4th Cir. Mar. 10, 2011) is an interesting FLSA case involving a public school golf coach who also was employed by the school as a safety and security assistant. The coach claimed he was entitled to overtime for his services as a golf coach. The court determines his duties as a coach were not a condition of continuation in his "day job" and accordingly he was properly deemed a volunteer coach, not an employee. Former Justice Sandra Day O'Connor participated in the unanimous decision.

Let the Hearings Begin

The NLRB will conduct hearings today and tomorrow on its proposed rules to expedite union representation elections.

Boeing Complaint

Former General Counsel to the National Labor Relations Board, Fred Feinstein has posted a piece on Politico characterizing the assault on the decision to issue a complaint in the Boeing case as nothing less than an assault on the rule of law. Its a pretty good statement of a pro-labor argument. Feinstein is not without controversy.

Right to strike

Joe Burns has a pro-labor comment posted at In These Times on the Boeing issue. His point, the opposition to the NLRB's issuance of a complaint is part of the continuing assault on labor's right to strike.

Distracted

Posting has been a bit slow the last few days, attributable to the wind down and season-ending tournaments for the youth sports league to which I volunteer time, Carrollton Boosters. Our season ends Saturday. More on labor and employment law after that.

Keep your family close

The Fifth Circuit has ruled, to be eligible for FMLA leave to care for an injured child, an employee must be in close physical proximity to provide physical or psychological care required for the leave.

Unemployment rises in June

Bureau of Labor Statistics (BLS) reports a slight uptick in unemployment 9.1 to 9.2%.

Employers must verify immigrant legality

Governor Jindal has signed two bills relating to employers obligations to verify aliens may lawfully work for them. The first, HB 342, requires contractors seeking contracts from state and other governmental entities to use the federal E-Verify system. The second bill, HB 646, requires suspension of a business license or permit for the third violation for hiring an illegal immigrant. Under this HB 646 the employer could use E-Verify or the traditional I-9 method of verification. First offense $500 fine per illegal immigrant, second offense $1,000, third offense $2,500.

GINA and ADA record keeping

Title I of the ADA and Title II of GINA limit employer access to medical information. Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files, it must ensure that personal health information about applicants or employees cannot be accessed, except under the circumstances permitted by the statutes. The EEOC has issued an informal opinion letter providing some guidance.

Who is the one city employee with an unsatisfactory 2010 performance evaluation?

Jarvis Deberry has an interesting op ed in the July 3rd Times Picayune. It seems that despite there being more than a few marginal employees working for the City of New Orleans, only 31 of the 4,315 city employees evaluated in 2010 were found to "need improvement." I'm not kidding, 31! And just one received an "unsatisfactory."

I'm not a big fan of employee performance evaluations. I think most employers do a lousy job of the evaluation process. I also think its implausible to believe that a supervisor is going to give a frank evaluation of an employee he/she does not yet want to fire. As long as a supervisor's department or job is dependent on the performance of subordinates, there is an inherent conflict in the evaluation process that plays against fair evaluations. And no, I don't mean unfavorably towards the employee. Only after a supervisor has made a decision to "get rid" of a subordinate can you expect a full accounting of job deficiencies, and sometimes not even then.

Things go bump day or night

Mayor Mitch Landrieu wants to eliminate bumping rights for laid off workers. Under current rules and employee laid off in one department can "bump" an employee with less seniority in a similar position in another post in city government. Private sector employers have long rejected straight seniority as a basis for layoff decisions. Moreover, outside of the context of collective bargaining, bumping rights are rejected as counter-productinve and disruptive.

Round Ball too

NBA lockout.

Politickin'

Why all the furor over the NLRB issuing a complaint in Boeing? Political opportunity. More political opportunity.

Rathke on organizing

Acorn founder Wade Rathke has posted three interesting and insightful posts about the new NLRB election rules, here, here, and here. In his first post he correctly sets out the passage to approval and predicts accurately the legal challenges and time table (years). Although he understates the effect of quicker elections, I think he's close predicting that the time for elections will be reduced from 40 plus days to 15-20. I think he also underestimates the benefit of the changes for labor. In the second post he assesses the new rules in the context of large units, very interesting read for employers. He is correct about the proper response of management, more effort at the initial discovery of union activity, less assessment before acting and a rush to an all out war strategy. This will be the new face of union avoidance - at least by those who understand effective strategy. In an interesting take, Rathke argues unions will have to work hard on pre-election stipulations in order to avoid post election challenges that may delay certification. As this post-election problem sinks in, Rathke in his final post talks about the union maintaining its support by engaging in organizational and protected concerted activities to allow a prolonged post election process to diminish its appeal. This later concern faces the reality that unlike EFCA, which would have forced first contracts, there is nothing the NLRB can do by rule making to change the NLRA to force an employer to agree to specific terms in contract negotiation.

Activist Board considering class action issue

What an activist the NLRB has become. It seems ready to consider finding a ban on class action claims enforced by a mandatory arbitration agreement violates the NLRA. It has solicited briefs on the following:

Did the Respondent violate Section 8(a)(1) of the Act by maintaining and enforcing its Mutual Arbitration Agreement, under which employees are required, as a condition of employment, to agree to submit all employment disputes to individual arbitration, waiving all rights to a judicial forum, where the arbitration agreement further provides that arbitrators will have no authority to consolidate claims or to fashion a proceeding as a class or collective action?

Pending case D. R. HORTON, INC. 12-CA-25764. Searchable here.

Boeing NLRB filing

The NLRB has filed its response to Boeing's motion to dismiss the complaint concerning the opening of a second Dreamliner production line in South Carolina.

Details (and the devil in them)

The NLRB has issued a fact sheet and resources links to provide guidance regarding the dramatic changes in the NLRB's election process. This is a bigger change than anything the current NLRB has done since the 2008 elections. Before a union may represent a group of employees it must establish it is the chosen representative of an un-coerced majority of those employees. Where the issue is contested, the NLRB conducts a secret ballot election. Under the old rules an election is normally conducted between 45 and 60 days from the filing of a petition. The new rules are designed to streamline the process, eliminate an employer's ability to obtain a decision on voter eligibility before the election, and shorten the time between the filing of a petition and the conduction of the election. While this is not EFCA, it certainly advances some of the goals of the failed legislation, primarily very quick elections. Details after the jump

New union election procedures

The NLRB has issued its proposed changes to representation procedures that will dramatically affect the representation election process by shortening the time between petition and election, by creating administrative traps to prevent employers effectively to investigate issues before they are precluded and by creating union access to employees for communication. For example, the Excelsior list requirement is expanded to include known e-mail addresses of employees, and the information must be provided to the labor organization within 2 days of a direction or stipulation for an election. This together with the new persuader rules for attorneys and consultants finally provides substance to the claim the NLRB is changing the game to help unions organize. There is so much here to digest you can expect much disinformation and a lot of teeth gnashing. We will provide an objective analysis soon.

Wal-Mart wins

The Supreme Court in Wal-Mart v.Dukes reversed the Ninth Circuit's certification of a class of aggrieved females claiming sex discrimination by Wal-Mart. The court unanimously rejected certification under Rule 23(b)(2) finding individual backpay claims were not incidental to any requested injunctive or declaratory relief. By a 5-4 majority the court also rejected certification under Rule 23(a)(2) because the many claims did not involve common questions of law or fact. This decision likely means certification of discrimination claims for class actions will be significantly reduced to those fitting within this narrow interpretation of the Rule. Very good news for large employers.