Preemption of state secret ballot legislation

Earlier this month NLRB General Counsel Lafe Solomon urged threatened to sue four states unless they acknowledge their recently passed state laws requiring secret ballot elections are preempted by the NLRA. The four state's attorneys general have now responded. The point asserted is that the state laws are consistent with the NLRB's current law which also requires a secret ballot election when an employer refuses to recognize a union voluntarily. If that were the end of discussion, the AG's would be correct, but the head scratchers would ask what is the reason to pass such legislation. It is widely believed the legislation is a preemptive strike against the possibility the NLRB might change its rules, or Congress might pass something like EFCa. If such a conflict arose, it would be real and implicate federal preemption. Also, the state laws purport to regulate voluntary recognition, which likely will revert to pre-Dana law which guarantees no secret ballot election.

NFL and NFLPA spar in cyberspace

The New York Times has an interesting article about the NFL and NFLPA wooing and informing the public about the looming labor dispute.

Support workers still seek unionization at Jefferson Parish schools

The Times-Picayune has a good piece on the Jefferson Parish Support workers bid for unionization. Hint: It ain't happening. Previous posts here.

Money/mouth

NFL Commissioner Roger Goodell promises to reduce his $9,760,000.00 annual salary to $1.00 if there is a work stoppage in 2011.

Third Party retaliation claims under Title VII approved by Supreme Court

The Supreme Court has decided an important retaliation case, and again has broadly construed Title VII's protections against retaliation. In Thompson v. North American Stainless, LP, No. 09-291 the employee claimed he was fired because his fiancee had filed a sex discrimination charge against their common employer. More after the jump.

Jobless

USA Today profiles the unemployed.

Global Motors

For the first time in its 102 year history, General Motors sold more vehicles in China than in the United States. GM was narrowly edged by Toyota as the world's largest automaker, a position held by GM for 76 years until 2007 when Toyota took the lead. GM sales were up 29% in China, 12.4% in Russia and 10.4% in Brazil.

Union membership declines in 2010

The Bureau of Labor Statistics (BLS) provides a yearly statistical summary on union membership. Last week's release of the 2010 report confirmed conventional wisdom by showing union membership declining from 12.3% of the wage and salary workers to 11.9%. Union density also fell in the private sector to 6.9% (as compared to 36.2% in the public sector. The estimated number of workers belonging to unions declined 612,000 to 14.3 million. Union membership rates declined over the year in 33 states and the District of Columbia and rose in 17 states. Union membership declined in Louisiana and Mississippi, but increased in Texas.

EFCA or taxes?

Many years ago as a young management labor attorney I subscribed to Mother Jones. That raised a few eyebrows at my first employer/law firm, but I found it very helpful to understand leftist and in particular pro-labor viewpoints found in the magazine. After all much of my work involved representing employers undergoing union organizing efforts. More than a few times the information derived from Mother Jones was helpful in providing advice to employers. Kevin Drum has an interesting piece in the online edition. He poses the question of what choice would employers make if forced to choose between passage of EFCA or a return to Clinton era tax rates on high income. He not only answers the question, he also provides compelling reasons for the choice. There is also a fascinating chart showing the distribution of wealth since 1979.

Mediation and binding arbitration

H.R. 129, recently introduced would require employers to submit collective bargaining contract disputes to binding mediation and arbitration. This bill addresses one of the most controversial (after card check recognition) aspects of EFCA. It has no chance of passing.

#LETUSPLAY

The cat and mouse jockeying between the NFL and the NFLPA turns to the players marking today (January 18) as #LETUSPLAY across social media. The players are trying to counter the accusation they favor a lockout, and more positively, perhaps build sentiment against owners employing a lockout strategy. The owners want new rules and a lockout is not the only way to get them. The owners could bargain to impasse and unilaterally impose the rules leaving the players the choice to either play under the new rules or strike. The latter option would seem unlikely given a #LETUSPLAY social media blitz.

State secret ballot initiatives

Four states have passed laws requiring secret ballot elections by workers on unionization. This insurance policy was taken out by republican and business interests last November, even though EFCA was already dead. Now the NLRB has threatened to sue the states unless they agree the laws are unconstitutional and preempted. A few years back, I would have bet this was a slam dunk issue for the NLRB, but the scope of Garmon preemption may not seem as broad for the current Supreme Court. We have already entered a time when serious talk of nullification of federal laws by state officials would raise John C. Calhoun from eternal rest and spin Andrew Jackson a few times in his grave. Can serious talk of narrowing preemption when it serves to undercut federal authority be far off?

Car Wars 2011

Ford and General Motors are expected to distribute sizable profit sharing checks to workers, a sure sign of the rebound of these two domestic automobile companies. Also of note, is the labor cost reductions which have contributed to the recovery. Money quote:

The gap in labor costs between Detroit and the foreign-owned factories in the United States has narrowed considerably. Ford’s total labor cost for a worker — a combination of wages, benefits and pensions — has been reduced more than 20 percent and is now about $59 an hour, compared to $56 at Toyota, according to the Center for Automotive Research in Ann Arbor, Mich.

This, of course, goes a long way towards explaining the UAW's promised effort to organize the domestic plants of foreign automakers.

Lockout 2011 background

Mike Florio does a good job on digging behind the headlines on the looming NFL lockout.

Up and up

Sometimes you actually get confirmation of what logic and common sense tells you is fact. In this case courtesy of the National Association of Manufacturers (NAM) we see the correlation between the unemployment rate and filed claims of discrimination.

Change?

Pro-labor poster Mike Elk gets it partly right in this post. The NLRB is willing to make incremental, mostly symbolic changes in the rules to aid unions in their organizing attempts. He correctly notes the absence of significant remedies for egregious violations. However he gets it plain wrong (like so many others) when he says shortening of time between a petition for an election and the conducting of the election is a cure for employer intimidation. It isn't.   A meaningful, civil, non-threatening dialogue is not only appropriate prior to an important vote, but necessary for an informed electorate. Card check recognition and instant elections hinder an informed vote. If the problem is employer intimidation, punish the employer's misconduct, don't stifle the discourse or impose a different sort of coercion by eliminating secret ballot elections.

NLRB Nominations

President Obama has nominated Lafe Solomon to be General Counsel of the NLRB, and Terence F. Flynn to fill the vacant Republican seat on the Board. Solomon is currently serving as Acting General Counsel. Flynn confirmation would bring the five member Board to full strength for the first time since early 2007.

Nursing home bargaining units

The NLRB is considering a different standard for determining the appropriate bargaining unit in longterm care facilities. The Board recently solicited briefs on the issue. The prediction is the Obama Board will allow much more flexibility in carving out job classification units in long term care facilities. Rather than presuming only a unit including non-supervisory nursing employees, housekeepers, laundry and dietary employees is appropriate, separate units may be ordered for one or more departments. This would  significantly advantage piecemeal organizing of facilities and Balkanized collective bargaining.

Better?

According to a report released by Automatic Data Processing (ADP), a private payroll servicing firm, December private sector jobs creation topped a whopping 300,000. There are skeptics. The Bureau of Labor Statistics (BLS) official report will issue Friday.

Web 2.0 campaigning

The IBEW is publicizing its use of a blogger.com blog to communicate among workers interested in the unionization effort at an Anheuser–Busch InBev Metal Container Corporation facility that manufactures beer cans. The blog appears to have overcome two crucial issues. First, employees had accessibility to information and the ability to discuss and ask questions 24/7. Second, because the blog participation was anonymous, employees were less susceptible to pressure. This makes a lot of sense, and employers need to respond with a lot more than a static downward communication web site.

New JPSB will revisit unionization issue

New Jefferson Parish School Board members will revisit union issue involving Jefferson Parish school support workers.