NBA lockout?

First the NFL, and now maybe the NBA? Professional basketball has only just recovered from the last labor dispute (1998-1999) and is being rewarded with full houses and on court excitement. But the collective bargaining agreement expires in 2011, and that could mean an aggressive play by the billionaire owners against the millionaire players - a lockout.

Use of Scabby Rat - i -fied

We have previously posted about the inflatable rat, Scabby. The NLRB has issued a new opinion (Sheet Metal Workers Local #15 (Brandon Regional Hospital) 356 NLRB No. 162) , clarifying a broader lawful use of the giant critter in secondary contexts. The Board has concluded a stationary version of Scabby posted near a secondary employer is not picketing prohibited by the provisions of the NLRA protecting secondary employers from coercive pressure. Carpenters Local 15006 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (2010). The Board also concluded

We similarly find no evidence here to support a finding that the display of the inflatable rat or Holly’s leaflet display constituted nonpicketing conduct that was unlaw- fully coercive. Only six union agents were involved in the rat display, while Holly acted alone, and there is no evidence that their conduct was other than orderly. Like those who held the banners in Eliason, neither Holly nor the rat balloon attendants moved, shouted, impeded access, or otherwise interfered with the hospital’s operations. The rat balloon itself was symbolic speech. It certainly drew attention to the Union’s grievance and cast aspersions on WTS, but we perceive nothing in the location, size or features of the balloon that were likely to frighten those entering the hospital, disturb patients or their families, or otherwise interfere with the business of the hospital in a manner analogous to the conduct in the cases cited above or otherwise proscribed by Section 8(b)(4)(ii)(B)6.

NLRB social media issues

I think I'm getting a clearer picture of the NLRB's direction on employee off duty use of social media (blogs, tweets, etc.). There are two areas of concern. The first is overbroad policies which chill employees exercise of section 7 rights. Essentially the Board will assume intimidation occurs if the policy arguably discourages employee discussion of otherwise protected issues. Employers with overbroad social media policies will likely find the NLRB believes such a policy, even if not enforced is a basis for objecting to an employer won representation election. Its pretty clear that this is a major new problem in an organizing drive. The second point is whether the medium actually changes the analysis of what conduct is protected. It really shouldn't. The Board in refusing to issue a complaint is a recent case involving a reporter is illustrative. The reporter's tweets in issue can be found here. The NLRB refused to issue a complaint because the reporter's comments were not protected. Even though the newspaper had no social media policy, the reporter's discharge was lawful because it was based on comments entitled to no protection. The bottom line is there is danger for an employer which has a social media policy, and it will be closely scrutinized by the NLRB for its chilling effect. But, even in the absence of such a policy, an employer would remain able to discipline employees for statements which are unprotected either because they do not relate to an exercise of a section 7 right, or because they were not concerted.

Wisconsin law voided by Court

A state circuit court in Wisconsin has voided the controversial law repealing collective bargaining for public employees -  because the legislature allegedly violated the state's open meetings law. This issue will ultimately make it to the Wisconsin Supreme Court. The Journal-Sentinel has a good article giving context to the ruling.

Another NLRB Complaint issued over Facebook firing

The Chicago Regional Office of the NLRB has issued a complaint against a luxury car company for firing an employee who posted a "concerted" protest about a promotional event which could adversely affect compensation for sales employees. Our previous posts on this issue are here. This is one area of law that has evolved rapidly. Employers should seek legal advice before making employment decisions about computer use/social media or blog postings. It isn't as simple as conventional wisdom may suggest.

Labor's last stand

AFL-CIO President Richard Trumka declared labor would distance itself from Democrats unsupportive of labor's agenda. This pronouncement was treated as news by some, but it isn't really a new position. Just ask former Arkansas senator Blanche Lincoln. But Meyerson's WaPO opinion piece places the move in proper context, and the context is a bleak one for labor.

GE, the same as Boeing?

Over the past few weeks I have been in a vigorous e-mail and phone debate with a fellow management lawyer concerning the meaning and effect of the issuance of a complaint in the Boeing case. Previous posts here. Contrary to many gloomy management predictions, I think Boeing is a fairly garden variety application of long established labor law. My friend believes it is a fundamental assault on employer free speech and employer right to determine facility location.

Now we have General Electric announcing the opening of a non-union locomotive factory in Texas. At the same time it is bargaining with union workers at at its existing locomotive factory in Pennsylvania. Assuming GE executives do not articulate an anti-union motivation for their actions, as is alleged that the Boeing executives did, this sets up an ideal scenario for testing the limits of the NLRB's interpretation of a Boeing style violation. Can the announcement of the location of a new facility in a right to work state during contract negotiations ever be viewed as an unfair labor practice? The correct conclusion is obvious, it cannot, without more, be a violation. Management has the right to determine where it locates facilities, as long as the decision is not tainted with anti-union motivation. The difference in Boeing is the NLRB believes the company's actions and statements establish an anti-union motivation for its decision and issued a complaint so that the issue will be tried before an administrative law judge. Boeing may still prevail, but it will have to show the relocation to South Carolina was motivated by lawful factors.

Gould on Boeing

Former Clinton era NLRB Chairman William Gould says the NLRB complaint issued against Boeing is "unprecedented".

Dwarf denied stool accommodation

In a suit filed against Starbucks by the EEOC, the allegations are after hiring a dwarf, Starbucks refused to provide her a stool or stepladder so that she could fulfill her customer service duties. The EEOC claims the failure to provide an accommodation violates the Americans with Disabilities Act.

Unemployment and underemployment

Twin problems for the new college graduate are unemployment and underemployment.

Facebook as protected concerted activity II.

A Facebook post by an employee of a non-profit employer criticized the staff for not doing enough to help the clients served by the organization. The post drew comments from five other employees who defended their job performances and criticized terms and conditions of employment. The employer discharged the five for harassing the original poster. The NLRB issued a complaint alleging the activity discussing workplace terms and conditions was protected concerted activity. A trial is set for June 22. A previous case against a different employer settled.

Gloomy forcast

This labor professor's post is pessimistic not only about the ultimate outcome of the players suit against the NFL, but also seems to see chronic perversion of progressive legislation to the detriment of labor's interests.

First strikers replaced, now decertification

Workers at Omnova's plant in Columbus, MS have been on strike for over a year. Now the replacement workers have filed a decertification petition with the NLRB. The union has indicated it will aggressively contest the decertification. Previous posts here.

Save Avondale

The AFL-CIO blog has a post about efforts to save Avondale despite Northrop-Grumman's decision to close the facility.

Lockout again

The Eighth Circuit has handed the NFL owners an encouraging win by granting a stay of the injunction of the owner's lockout. In so doing the court does a pretty good job of explaining how the Norris-LaGuardia Act prohibits injunctions of labor disputes. A labor dispute can occur even in the absence of a certified union, thus the player's decertification, in the court's view, did not make the Norris-LaGuardia Act's prohibitions on injunctions inapplicable.

Public sector labor decline tied to private sector decline

Joe Burns at In These Times (pro labor) has posted an insightful analysis of public sector unions core problem - the weakness of private sector unionism. Seizing on that weakness, Burns notes, is a well-funded network of conservative forces which has mounted an all out assault on labor rights. While he has correctly diagnosed labor's problem, his projected cure, more solidarity of purpose and a return to collective actions may not be achievable in an environment determined to suppress it.

Right to Work vetoed in N.H.

Right to work legislation passed the legislature in New Hampshire only to be vetoed by Governor John Lynch (D). Eighteen states are considering legislation to join the ranks of the 22 existing right to work states.

Monopoly Power as Union Buster

The Washington Monthly has an interesting piece on unions joining forces with non-traditional allies to take on the concentration of power, the monopolistic power that seems at times to exceed the power of private corporations in the Rockefeller/Morgan/Aster/Vanderbilt era.

Record Keeping App

The Department of Labor has created an i-Phone app that allows employees to enter the hours they work and calculate the wages they are owed, including overtime at time and one half their hourly rate. This will allow employees to keep their own time records. In wage hour litigation well kept employee recortds may be sufficient evidence to overcome any presumption in favor of employer time records if there is a discrepancy.

Politics as usual

Mike Elk has an interesting post at In these Times concerning labor's professed independence from the Democratic Party and reality, which is continuing support despite few rewards for that support.

NLRB sues Arizona

The NLRB has sued the State of Arizona to invalidate, as preempted, an Amendment to the Arizona Constitution which would require a secret ballot election before a union could be designated, selected, or authorized to be the collective bargaining representative for any group of employees. It will be surprising if this case lingers before a ruling in favor of the NLRB.

Jobs created but unemployment rises

Non-fam payroll added 244,000 jobs in April, but the unemployment rate edged up to 9%.

Wrong, wrong, wrong, wrong, wrong, wrong, wrong wrong. You're wrong.

For a short opinion piece, rarely does any mainstream outfit get things so wrong. This from the WSJ. (If you are not a subscriber google search the title and you will find the article). The NLRB has issued a complaint accusing Boeing of committing an unfair labor practice when it moved a production line from Washington to South Carolina, and blamed the union's strike activity for the decision. Previous posts here. The issuance of a complaint means the NLRB believes there is sufficient evidence of a violation to warrant a trial on the issue before an administrative law judge. It is not a ruling, as the subtitle of the WSJ piece suggests. At the trial the employer will have the opportunity to prove its motivation was not based upon the union's protected right to strike, but rather was based on sound economic factors. Its really a pretty pedestrian legal theory applied to seemingly atrocious facts created by Boeing's own statements. This is law school 101. You can always file a complaint, its that pesky proof thats the hard part.

Essentially critics of the Boeing complaint are saying labor, and the federal agency protecting labor's statutory rights has no business second guessing an employer's decision to relocate a plant. That position, however, is contrary to well established labor law principles. An employer is not free to relocate a plant to avoid unionization, or because a union lawfully exercises a right (like striking). The article also implies an employer can simply move overseas. But such a move is also susceptible to a Boeing like Complaint, if it is motivated by anti-union sentiments.

The WSJ writer makes an absurd claim that the NLRB complaint is an assault on "the federal right to work law." A few senators, notably both senators from South Carolina, have introduced legislation prohibiting the NLRB or union contracts from pre-empting state right to work laws. There may be a legislative solution to this problem, but its not the proposed legislation discussed in the article. If a state passes a right to work law, there is nothing the NLRB or union can do to change the effect of the state law.  The proposed legislation is totally redundant. Section 14(b) of the NLRA already prevents the NLRB or collective bargaining agreements from interfering with state right to work laws.

Finally, right to work has nothing to do with the issues addressed in the Boeing Complaint. Right to work laws guarantee an employee does not have to belong to, or pay a union in order to keep a job in a unionized facility. Such laws do not directly affect whether an employer can relocate or not.

Teaching labor studies has its hazards

According to an article in the Chronicle for Higher Education, Andrew Brietbart has posted videos purporting to represent two labor studies professors advocating union violence in a class they teach. It seems the videos were edited to make the provocative points the poster wanted to make.