Workforce Committee

Whats in a name? Sometimes everything, at least in Congress when it comes to Democrats coddling labor and Republicans shunning the same.

Sports lockouts loom in 2011

March 4, June 30, and December 11 2011 are fateful dates for labor according to this AP feed.  Those are the dates the NFL, NBA and MLB labor agreements expire. (The NFL agreement expires September 15, 2012). Lockouts loom likely in both the NFL and NBA, although it seems more likely MLB will reach a deal. Perhaps that is because baseball suffered twelve years of reduced attendance after the 1994-95 strike. These labor negotiations are a potential game changer for labor which has seen its public image take a huge hit in the last few years. Prior posts here. The players are the presumptive beneficiaries of public opinion, but the anti-labor noise machine has not engaged yet. This will be an epic public relations struggle, and one with high stakes for organized labor, not to mention the fans and the host cities. Who will take the fall for the disruption? That is the underlying struggle worth watching.

AGC Solomon presses better ULP remedies

Acting NLRB General Counsel, Lafe Solomon, issued a General Counsel's memorandum encouraging the Regions to seek more effective remedies for unfair labor practices committed during organizational campaigns. This adds to his previous instructions to seek injunctive relief for discriminatory discharges during organizing campaigns, previous post here. Included in the new memo are certain limited access remedies including access to company bulletin boards, forced reading of the Board's remedial notices and early access to employee names and addresses.

Delayed vote on JPSB union

Well the Jefferson Parish School Board still has not finished its union business. No, its not a law suit causing the delay this time.Seems that yesterday's meeting had to be called off when they could not get a quorum. Five members were no-shows for the meting at which the lame duck Board was to vote on union representation for school support staff. Previous posts here.

NLRB proposes notification of rights rule

The NLRB has announced a Notice of Proposed Rulemaking, for a new rule which would require employers to notify employees of their rights under the National Labor Relations Act. From the presser:

Private-sector employers (including labor organizations) whose workplaces fall under the NLRA would be required to post the employee rights notice where other workplace notices are typically posted. If an employer communicates with employees primarily by email or other electronic means, the notice would be posted electronically as well. The notice would be available from the agency’s regional offices and could also be downloaded from the NLRB website.

The 60 day comment period is open. replies are accepted electronically to www.regulations.gov, or by mail or hand-delivery to Lester Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington DC 20570. A fact sheet is here.

TRO issued preventing JPSB from authorizing unionization.

The on again off again tug of war in Jefferson Parish over unionization of school support workers is temporarily enjoined. Seems someone is making the case that the lame-duck Board's efforts to allow workers to unionize violates the decades long desegregation consent decree. Previous posts here.

NFL contract by Superbowl?

Roger Goodell says its possible. Players association representative says "no comment." You can take the other side of this bet and give the points, plenty of points.

Secret Ballot Protection Act

Is this the new issue? Maybe, but it has less chance of becoming law in the next two years than the horrific Employee Free Choice Act ever had. This Red State poster wants to ramp up and bludgeon "teh unions" now that votes can be forced by anti-labor forces in the House. What a waste of time. Such legislation will not get through the Senate, much less past a Presidential veto. Realistic reform might take hold if rational discussions were undertaken by both sides. Yes, the penalties for flagrant violations of the NLRA should be enhanced, even where real remedies might chill an employer a bit in its efforts to remain non-union. But in return, big labor must be willing to back off card check and permit fair secret ballot elections to determine if an un-coerced majority of workers want a union or not. No union should be imposed on a workforce without majority support established by a secret ballot determination of the majority's will.

Dana Disinformation

Sometimes the posturing goes overboard, like here. The poster, a frequent source of pointed anti-EFCA, anti labor posts, does a disservice to the legitimate arguments against both. We have consistently written in favor of the NLRB's 2007 decision in Dana Corp, and its positive protections which avoid collusive imposition of a union on a workforce without a secret ballot election to determine majority status. We have argued Dana Corp would have been a better pattern for EFCA reform than EFCA. We still believe that to be true. But the reality is Dana Corp changed labor law, and the Obama Board's return to pre-Dana law of recognition (the old law was in place for 50 years) is less remarkable than the Dana decision itself. Posters who suggest otherwise are uninformed, or worse.

Game on!

The American Federation of State, County and Municipal Employees (AFSCME) is soliciting signatures on an open letter challenging right wing pundits Glenn Beck and El Rushbo to stop maligning public workers.

Unionization OK for Jefferson Parish school workers

The lame duck Jefferson Parish School Board has voted to allow union representation by school support workers. Previous posts here. It will be interesting to follow how the new Board will address this issue.

FMLA notice does not have to comply with Employers heightened notice requirements

The Fifth Circuit has reversed a grant of summary judgment to a FMLA employer which terminated a covered employee for not following the employer's own internal notification process. The employee, who suffered from a serious mental incapacitation, and whose mother, as court appointed guardian, communicated with the employer, according to the  Court, provided sufficient notice to meet FMLA's minimum notification procedures. Of interest is the Court's footnote which suggests the result might have been different under the  revisions to 29 C.F.R. § 825.303—which arguably increase the duties imposed upon employees seeking FMLA leave.

Say it ain't so, Bob

Pity poor Bob King, president of the United Auto Workers (UAW). He recently spoke in favor of the Korean Free Trade Agreement claiming it was good for domestic automakers and their workers. The Economic Policy Institute estimates it will cost 159,000 domestic jobs over the next five years. King must be feeling a bit like another president whose taking a lot of flack from his leftist supporters. Jane Hamsher at Firedoglake and Huffington Post says its a bad trade - 800 jobs secured for the UAW, thousands lost for everyone else.

Cost of NFL lockout potentially large

What would an NFL lockout cost each city with a team? A lot, says a new study discussed here.

Miller nixed, union afilliation noted

Marvin Miller, long time head of the Major League Baseball Players Association (1966-1981) failed to get enough votes for Hall of Fame membership. This article suggests a few voters hate them some unions.

Class actions before Supremes

The Supreme Court will review the Walmart class action case.

Unemployment rises

Despite a gain of 39000 jobs, the unemployment rate in November rose to 9.8% (up from October's 9.6%).

Revitalization roadmap

A former union organizer (20 years) has penned a piece on revitalizing unions for The Nation. Key point, unions need to organize people, not necessarily in unions, but around ideas and causes that really matter to, well, people.

Processed out with a PIP

Performance Improvement Plans (PIP's) are viewed as an employment death sentence by most employees put on one, and for the most part the assessment is correct. But the absurdity that is a PIP is not without very logical benefits for the employer. Here is an excellent post about the actual benefits of PIPs to employers.

Lockout ticket refunds

It appears the NFL owners are prepared to refund ticket purchasers if a lockout cancels games in 2011. Smart move by the owners to avoid ill will in the public relations battle for the hearts and minds of the fans.

Politics of deficit reduction

Is the federal worker pay freeze political theater or deficit reduction reality? Mike Elk's post at labor-friendly In these Times think its Obama's PATCO moment.

Back to basics - organize!

Thats what Randy Shaw says at BeyondChron. The solution to stopping labors decline in membership is not political, it is based on investment in organizing. Randy's right, hard work and organizing are required. Quick political fixes are not happening.

Race and refereeing

Two ivy league economists claim in a new study the outcome of NBA games may be affected by the race of the referee. Their conclusion:

We find that players have up to 4% fewer fouls called against them and score up to 21⁄2% more points on nights in which their race matches that of the refereeing crew. Player statistics that one might think are unaffected by referee behavior are uncorrelated with referee race. The bias in foul- calling is large enough that the probability of a team winning is noticeably affected by the racial composition of the refereeing crew assigned to the game.

NFL owners 2011 lockout a certainty?

DeMaurice Smith, Executive Director of the National Football League Players Association (NFLPA) says a lockout is a near certainty. Far less clear is who wins if there is one. One interesting follow is the extent to which the professional union haters will go to trash the players, as well as the public reaction to any shutdown of the secular religion that is professional football.

JPSB revotes authorization for unionization of support workers

The lame duck Jefferson Parish School Board, in an attempt to side step a court challenge to its decision to allow support workers to decide on unionization, voted to schedule a vote on December 8 on the issue of whether the Board itself would designate the Jefferson Federation of Teachers as collective bargaining representative for clerical workers, paraeducators and crossing guards, and the Service Employees International Union (SEIU) as the collective bargaining representative for cafeteria workers, custodians and transportation employees.

Secondary pressure and the decline of labor

Joe Burns' post at Labor Notes does a good job of explaining secondary pressure as a union solidarity issue. He attributes labor's decline, in part, as a result of the banning of secondary pressure.

NFL and NBA?

Could the NBA and the NFL both have 2011 lockouts?

"What do you want?" "Access!"

In class I spend a considerable amount of time on accessibility issues, including employers' restricting accessibility to their premises during union organization attempts. In that regard we discuss Lechmere's importance in establishing outside organizers have no Section 7 right to access an employers premises, Republic Aviation, which restricts employers from prohibiting employees from discussing and soliciting for unionization during non-working time, and Register Guard's denial of employees' access to company e-mail for union purposes. It now appears the Obama Board is willing to consider these issues, big time. More after the jump

Rats! Bedbugs!

Tied to a giant blow-up rat is a flyer urging hotel guests at a New York hotel to beware of bedbugs. Seems the hotel may have had a problem in the past, but the union's real problem is with the "blood-sucking parasite" of a contractor that the hotel engaged to remove asbestos from another hotel property they owned.

Union vote blocked in Jefferson

A group of business organizations, including the Jefferson Chamber of Commerce sued to block Jefferson Parish School Board support workers from voting today on union representation. A hearing is set November 29th in 24th JDC before Judge Petrie.

Denied!

Senate Republicans vote unanimously (58-41) against an up or down vote on the Paycheck Fairness Act.

Quack!

The lame duck Jefferson Parish School Board has voted 6-3 to let 3,000 school support workers opt for union representation. Wow! This is a real gift to local unions. The approval vote happened last week, and the employees will vote tomorrow. This is an example of what labor wants to achieve in the private sector -  fast elections. Essentially there is no time to inform employees of the down side of unionization, or to mobilize any worker or community opposition. The fact that the issue would be decided by a lame duck Board, a majority of whose members will be replaced in January, only underscores the problem with politicians addressing labor/management issues. Whose representing the taxpayer at that bargaining table?

Unemployment boosts economy says DoL

The Department of Labor (DoL) has released its report on multi-year study on the positive effects of unemployment insurance on the economy. Important findings:

• For every dollar spent on UI, economic activity increases by two dollars.
• During each quarter of the recent recession, UI benefits kept an average of 1.6 million Americans on the job.
• At the height of the recession, UI benefits averted 1.8 million job losses and kept the unemployment rate approximately 1.2 percentage points lower.
• UI benefits reduced the fall in GDP by 18 percent. Nominal GDP was $175 billion higher in 2009 than it would have been without UI benefits. In total, unemployment insurance kept GDP $315 billion higher from the start of the recession through the second quarter of 2010.

Full report is here.

Lame Duck vote on Paycheck Fairness Act

A cloture vote on the Paycheck Fairness Act, S. 3772 is scheduled for tomorrow. The Paycheck Fairness Act would amend the Equal Pay Act. The EPA was designed to require equal pay for equal work, but has been judicially interpreted to permit employers to defend pay disparities provided the differential in pay is based on a factor other than sex. The PFA requires any differential to be based on “bona fide factors” such as education, training or experience. Such bona fide factors must also be consistent with “business necessity.” SInce the bill has already passed the house, Senate passage would send the bill to President Obama who favors the legislation and is expected to sign it.

Ante upped

The National Football League Players Association (NFLPA) has taken another step in preparation for a 2011 lock out. It has announced full affiliation with the AFL-CIO state labor organizations in states where teams are located.

You couldn't be more wrong

Sometimes you have to laugh at the stretch used to make political hay. This piece from the Cato Institute makes the argument that Samuel Gompers, the iconic labor leader, who opposed government intervention on behalf of workers in the early years, would today also oppose government intervention. This often used tactic effectively persuades some readers because the source of the alleged assertions is not challengeable by the target audience. The problem is Gompers lived in a different time. He died in 1924, prior to the Great Depression and prior to the passage of the National Labor Relations Act. He lived in an era where many actions of state and federal police powers actively discouraged labor's economic self help agenda. More after the jump

GINA summarized

Great summary of Genetic Information Nondiscrimination Act (GINA) requirements. Full regulations here.

Res judicata does not bar subsequent retaliation claim

The 11th Circuit just decided an interesting FLSA retaliation case. The plaintiffs filed suit  concerning overtime violations. Subsequently, after the initial suit was filed, the plaintiffs filed a second suit alleging retaliation occurring after the filing of the original claims. Because there was no amendment or subsequent pleading asserting the second claim in the first suit, disposition of the first suit did not bar the second suit as res judicata.

You're a f#@$*^% a$$#@!!

Protected Concerted Activity exhibited in Youtube animation. Hat tip to Workplace Prof Blog.

Union plays hardball in Atlantic City

UNITE HERE, potentially looking at a bitter labor dispute with Reveal Entertainment, has launched an initiative aimed at Reveal's investors in advance of a $1.3 billon dollar high yield debt offering.

Union organizing in D.C.

Here is a pretty interesting long post about union organizing in the construction industry in and around Washington D.C.

Take a step back

Social security is not on life support or at least so says a new report issued by the Center for Economic Policy and Research. The report calls for a delay in tinkering with a program whose need and popularity has only been increased by the Great Recession.

GINA rules

Yesterday the EEOC has published final rules for implementation of the Genetic Information Nondiscrimination Act (GINA).

Enjoined!

The federal Fifth Circuit has affirmed a 10(j) injunction ordering the reinstatement of unfair labor practice strikers. The Employer unsuccessfully argued the Board's December 2007 delegation of authority to the General Counsel was invalidated by the Boards subsequent loss of a quorum.

Employees protected by NLRA when engaging in social media

The Hartford, CT, Region of the NLRB has issued a complaint in a case involving the termination of an employee who posted negative comments on Facebook about her supervisor. The Region's investigation determined the employee's remarks posted to her personal Facebook page from home which drew comments from co-workers supporting her assessment of the supervisor was protected concerted activity. The Region also determined the company’s blogging and internet posting policy blanket provisions, (1) prohibiting employees from making disparaging remarks when discussing the company or supervisors and (2) prohibiting employees from depicting the company in any way over the internet without company permission, interfered with employee rights to engage in protected concerted activity. At this stage these claims are just allegations, but employers should take note these allegations are likely to receive sympathetic treatment by the current NLRB. Previously the Office of General Counsel had issued an advice memorandum approving a narrowly crafted internet non-disparagement policy. The acceptible policy prohibited the following: "Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects."

State anti-EFCA measures

Four states (Arizona, South Carolina, South Dakota and Utah) passed provisions requiring secret ballot elections to determine a union's majority status. First, it is extraordinarily unlikely the NLRB will abandon secret ballot elections, so any petition would be processed under the current, long-standing secret ballot election procedures used by the NLRB. As for voluntary recognition situations, under which employers and unions may by-pass the election process, the effect is less certain, but absent a major rethinking of federal preemption, I do not see how states can permissibly regulate the process of determining majority status by card check or other non-election evidence that a majority of the employees support unionization.

Union firewall for Democrats?

Hart research polled union and non-union voters in 100 swing congressional districts. Findings are expected in part, and unexpected in part. Union voters provided the firewall for many surviving Democrats, particularly in the Senate races, while white working class voters more dramatically supported Republican candidates (white non-college educated men picked Republicans 67 to 33 percent). The AFL-CIO blog on the survey sounds a note of caution for Republicans. Despite the voting, however, it seems working class voters favored many positions favored by Democrats: (for example, 63 percent against tax cuts for earners of $250,000+, 62 percent against social security privatization, 75 percent against reducing or eliminating the minimum wage).

Influencing NFL Labor Policy.

Here is a recent post about the influence Patriot's owner Robert Kraft has in league matters in general, and in decision making about labor policy and the looming potential lockout. No one has more stature and clout.

Minimum wage and job loss

Does an increase in the minimum wage cause a reduction of minimum wage jobs? In the past some studies suggested there is a job loss associated with increases in the minimum wage. But a new study, reported here, using comparisons between counties in different states with different minimum wages suggests neither short term nor long term negative effects on jobs occur as a result of increases in minimum wage requirements. Video here

Union members desert Democrats

If tomorrow is a bleak day for Democrats, one reason will be union households did not vote as reliably for a Democratic candidate as in previous elections.