Strike enters 7th year

Workers at Chicago's Congress Hotel have been on strike for seven years with no end in sight. Workers were told in 2003, there would be no raises until 2010. The employer has not budged on its wage proposal during the 7 year strike. Members of UNITE HERE gathered with local politicians and clergy to "celebrate the anniversary with speechifying and solidarity. Details here and here. We have previously posted about the injunction the hotel sought against the City to prevent the City from interfering in the labor dispute.

BNA publishes book on NLRA rights in non-union workplaces

Perhaps its a prediction about where the NLRB will go under the Obama Board, perhaps its a result of an absence of new laws to write about, but BNA has put together a new book on the rights afforded by the NLRA to workers in non-union employment. As my labor law class knows, there are many infrequently used protections against retaliation for engaging in rights afforded by the NLRA.

Senate confirms two NLRB nominees

The Senate confirmed the nominations of Brian Hayes, a Republican and Mark Pearce, a Democrat for full terms as NLRB members. No action was taken on controversial nominee Craig Becker.

Grades, jobs and all that

The New York Times reports at least ten law schools, including Tulane have adjusted their grading systems upward - retroactively! Largely viewed as a way to rescue recent grads floundering in a tough job market, it seems band-aid weird to me. Teaching students how to provide value to employers and clients rather than grading reform would be a more substantive fix.

UAW changes

New UAW President Bob King speaking to autoworkers assembled in Detroit, set twin goals for the labor organizations future. King an attorney and political science major, wants to grow membership and repair the union's image. The linked article describes some of the things he says the union must do to achieve these goals. One of the agenda items is targeting Toyota for organizing efforts.

Carmakers comeback

We have previously discussed the sillyness of the politicization of the GM and Chrysler bailouts. These car proxy wars were approached by anti-union bloggers as serious life or death struggles in the war against advancing socialism. Ridiculous! More after the jump

New (statutory interpretation) Process

We've just had a quick read of the New Process Steel opinion. Essentially the 5 member majority (Stevens, Roberts, Scalia, Alito, Thomas) reason through the language of §3(b) of the NLRA to conclude the authority of a 3 member delegation of the NLRB ceases to exist when the term of one member of the three expires. I must admit the dissent written by Justice Kennedy (and joined by Ginsburg, Breyer and Sotomayor) makes more sense. The statutory interpretation opinion is less significant that the open questions concerning the 600+ cases decided by the two member NLRB. The NLRB has issued a press release concerning the 5 cases pending before the Supreme Court and the 69 cases pending before the Courts of Appeals. Likely these cases will be remanded to the NLRB.
In New Process, the Supreme Court vacated and remanded. Likely the Court of Appeals will vacate the NLRB decision and remand to the NLRB. (We think this is the likely result in all the pending cases.) But what about the cases that are final? Are the decisions null due to an absence of proper delegation? Or are they final judgments not subject to collateral attack? Would the NLRB entertain a motion to reconsider the final cases. likely not in the later instance since the cases decided were sufficiently non controversial for the two remaining members, one a democrat and the other a republican, to agree on a result. Could the now properly populated Board globally reaffirm the entirety of the two-member decisions? And also what becomes of the other delegations? The majority opinion notes without comment that "the Board delegated to the general counsel continuing authority to initiate and conduct litigation that would normally require case-by-case approval of the Board." Is the general counsel's authority to act defective, and what effect would that have on pending and decided cases.

SCOTUS decides Quon

A nearly unanimous Court reverses the Ninth Circuit in City of Ontario, et al v, Quon, et al, No. 08–1332. Argued April 19, 2010—Decided June 17, 2010. More after digesting

SCOTUS rejects 2 member NLRB decisions

Hot off the presses (what and odd anachronism), the Supreme Court has rejected the Board's authority to issue 2-member decisions. New Process Steel, L.P. v. NLRB, No. 08–1457. Argued March 23, 2010—Decided June 17, 2010.  I wont have time until later to digest the opinion by Justice Stevens, but the 5-4 decision does create a backlog of now undecided cases. More about this later.

Labor nets 3 top lobyists

The Hill identifies 2010's top lobbyists. Of the list of 32, only three are connected to labor unions. (Henry-SEIU, Loveless-AFSCME and Trumka-AFL-CIO).

Goose/Gander

At a recent speech, AFL-CIO President Richard Trumka proclaimed, "We won't quit until the EFCA becomes the law of the land and everyone who wants a union can have a union." But what about employees in a workforce that do not want a union. Shouldn't they have a corresponding right not to have a union affect their employment? What's good for the goose is good for the gander. But thats not the way the National Labor Relations Act works. Under the Act, majority rules, and the will of the minority is subject to the wishes of the majority. While it is true in right to work states that employees do not have to join a labor organization, if a union is the collective bargaining agent for a bargaining unit that includes the employee's job classification, the union's negotiations and the union contract affect the employee non-member. Following Trumka's logic, that should not be the case. Those who want union representation should have it, and those that do not should not be forced to endure it. Perhaps its time to experiment by allowing non-majority unions who represent only those employees who voluntarily choose to join. Those who choose not to select union representation would be free to negotiate on their own. There are a lot of reasons this approach was rejected under the Wagner Act, but maybe its time to revisit the concept.

UAW meets

The UAW is meeting in Detroit to elect officers and discuss their future. Take a look at the article to get a sense of the state of the union, but don't miss clicking on the chart which documents the UAW over the last 75 years. Current membership is 392,166, down from its 1979 high of 1,527,858.

Ladies' night is discriminatory

This comes up every once and a while (not around here), but several jurisdictions believe "gender based pricing" of ow-kee-hawl discriminates against men. Yep, ladies night is discriminatory in Minnesota. I do not know any guys who would file that complaint. Well maybe I do, but I wouldn't go drinking with them. The price of the drink ain't why the guys flock to ladies night. It's the opportunity uh, ambiance that costs extra. Sure, in theory, pricing a product differently due to the gender of the purchaser makes a classic case of gender discrimination. But WTF! The ow-kee hawl isn't the only reason the guys are there drinking.

Strikers and unemployment

We do not see a lot of lockouts in this part of the country. In the Temple nurses' labor dispute the fact of a lockout dramatically affected the cost of the labor dispute. Under Pennsylvania law strikers are not eligible for unemployment, but when the employer locks out the employees, the employees are eligible for unemployment. More details in this news article.

Secret Ballot goes electronic?

Looks like the NLRB aims to modernize voting. This Request for Information indicates the Board is seeking information on "secure electronic voting services both for remote and on-site elections." Not sure how much to read into this, but its clear the Board is seeking more than just accurate secret electronic voting. In the request the Board seeks information on "what safeguards, if any, could be implemented to ensure that votes cast remotely were free from distractions or other interferences, including undue intimidation or coercion." At the very least a serious review of the available technology is underway.

Labor as "big loser"

Washington Post political columnist Chris Cilizza, tags labor as a "big time" loser in the recent primary elections for its "all in" approach to defeating Sen. Blanche Lincoln (D. Arkansas). Reportedly labor spent $10 million to defeat Lincoln. Lincoln defeated Lt. Gov. Bill Halter 52%-48%.

Union rags

Ever heard of the National Organized Labor Journal? How about the Trade Union Courier?
The Newspaper Guild has a good piece on why you should be glad to not know these publications.

Reich on labor

Former Secretary of Labor under Bill Clinton, Robert Reich, notes in a recent interview EFCA could still pass in a watered down form (no card check, quickie elections and heavier penalties). Reich also talks about labor's future, and its need to invest in organizing personal service workers.

Payback!

Ohio Governor Ted Strickland signed Executive Orders permitting independent home health providers and self-employed child care workers to unionize, the SEIU and AFSCME benefited with thousands of new dues paying members. Strickland has directly benefited from the labor organizations political contributions.

EFCA is be dead

We've said it. So has a politician. EFCA is deader than a doornail.

No solicitation of former coworkers

It had to happen. A former employee obligated to refrain from soliciting former coworkers has done so using social media, and been sued for violating the non-compete agreement.

Mississippi court refuses to enforce non-compete

The Southern District of Mississippi (Lee) refuses to enforce a non-compete involving a former general manager of Peavy Electronics Corporation who after leaving Peavy went to work as Director of Sales and Marketing of a California company which has some products which perform similarly to Peavy Products. Peavy Electronics Corporation v. Pinske, C.A. No. 4:10CV69TSL-LRA (So. D. Miss. June 1, 2010). More after the jump.

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.