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.

Stayed

In a somewhat unusual move, the United States Court of Appeals for the Eighth Circuit has issued a temporary administrative stay of Judge Nelson's order enjoining the NFL owner's lockout. The stay is a procedural device to allow the court enough time to do a preliminary review a matter. Normally it is used for emergency situations like death row appeals. Many commentators expect a ruling next week.

Stay rejected

Judge Nelson rejected the NFL's request for a stay of her order ending the owner's lockout. The NFL now will try to expedite an appeal to the United States Court of Appeal for the Eighth Circuit.

Lockout enjoined

As we expected Federal Judge Susan Nelson has enjoined the owners lockout, citing irreparable harm not only to the players careers, but to non-parties like concessionaires and fans. WOW! And if the owners are waiting for the NLRB to declare the decertification of the union an illegal tactic, then they live in a fantasy world far less real than fantasy football. Moreover, Judge Nelson pretty well rejected the argument, which was a stretch from the beginning. Saints have posted the NFL's statement on the ruling here.

Public official's private e-mails exempt from Public Records Act

Louisiana Attorney General Buddy Caldwell has issued an opinion declaring personal e-mails written by public officials on government computers are exempt from disclosure under the public records law. This sounds like bad law protecting bad actors who lack the good sense not to use public property for private communications. Could this opinion undermine discipline of public officials who use public computers for personal matters? Perhaps so.

Healthcare organizing

National Nurses United claims a lopsided victory at a Florida Medical Center. The NLRB conducted representation election was won by the union 158-32. The bargaining unit contains about 250 registered nurses.

South Carolina 787 Washington 0, or will there be a forfeit?

Remember Boeing's move to set up a second 787 Dreamliner fabrication line in non-union South Carolina? Previous posts here. And all Boeing's talk about the unions running them out of Everett, Washington?  This from the NLRB:

NLRB Acting General Counsel Lafe Solomon today issued a complaint against the Boeing Company alleging that it violated federal labor law by deciding to transfer a second production line to a non-union facility in South Carolina for discriminatory reasons.  .  .  . 

To remedy the alleged unfair labor practices, the Acting General Counsel seeks an order that would require Boeing to maintain the second production line in Washington state. 

A trial before an administrative law judge is set for June 14. There are some very astute practitioners who sense this is another "great leap" from a pro-union NLRB, but I'm not so sure. This does not seem so much of a stretch given that Boeing initially announced the production would be in Everett, then switched it to South Carolina blaming the unions propensity to strike. A prima facie violation is made based upon the employer's statements. It is now incumbent on the employer to establish its move was based on legitimate motivation as in Dubuque Packing. Whether the Boeing case is momentous will depend on that proof, and the Board's evaluation of it.

Repeal the NLRA

Here is a young author that enthusiastically embraces repeal of the National Labor Relations Act and embracing strikes and boycotts to empower the masses.

Picture perfect

That pesky dispute over a mural depicting labor history in Maine has landed in federal court. Republican Governor Paul LePage had the mural removed because he viewed it one sided. The court arguments sound appropriate for a law school exam on First Amendment issues. The more difficult problem is the removal violated the terms of a federal grant that paid for the piece. The U.S. Department of labor wants its money back.

Healthcare bargaining unit rules

A former Chairman of the NLRB, Peter Schaumber (R), blogs about the procedural and substantive issues with the current Board reconsidering the rules governing appropriate bargaining units in nursing homes. Under consideration is a Board rule that would permit unions to organize sub-groups of nursing home employees, rather than have to attain majority status in larger units of most non-supervisory employees of a facility.  He is correct that proposed changes would seem to be contrary to the Congressional admonition to avoid a proliferation of such units, and equally correct that a change would favor union organizing. He's a tad over the top, however, in his criticism about changing settled precedent. The Republican dominated Board in 2007 alone overturned many longstanding rulings. The pending case on the issue is Specialty Healthcare and Rehabilitation Center of Mobile. The amicus briefs of the U. S. Chamber of Commerce are here.

Outsourced

The Wall Street Journal reports a remarkable shift in jobs occurred in the last decade. Multinationals cut

their work forces in the U.S. by 2.9 million during the 2000s while increasing employment overseas by 2.4 million, new data from the U.S. Commerce Department show. That's a big switch from the 1990s, when they added jobs everywhere: 4.4 million in the U.S. and 2.7 million abroad.

Thinkprogress has a distinctly sinister spin on the matter.

What do the kids know?

When it comes to unions, these Michigan high schoolers seem to have the same superficial knowledge and opinions most adults have.

Silence

Been absent lately due to trial and baseball, but mostly baseball. I am heavily involved in recreational baseball for kids. And this is the time of year when the teams are being formed for the coming season. Lots of work gathering coaches, selecting teams, editing rules and making schedules for the 1300 participant players. The bulk of that work is now done, so back to blogging.

When a man is required . . .

What happens when a transgendered employee is hired for a position requiring a male? Well, if you were born a female, in South Jersey, you get fired. And file suit.

Equal Pay Day

Today is Equal Pay Day. Wear red if you believe women are not paid fairly. Wear green if you are the reason why. Wear blue if you believe pay disparity is caused by global warming (hint: it isn't).

Mediate!

Over the NFL's objection Federal Judge Susan Nelson has sent the NFL and the players to mediation in front of a federal magistrate. The NFL urged mediation is inappropriate until the NLRB rules on the legality of the decertification of the union. I cannot believe the current NLRB will restrict the right of players to decertify their union. Nor can I believe the court will refuse to address the players anti-trust claims. The judge also issued a strong warning to both parties that litigating rather than mediating was very risky.

McJobs

McDonald's has announced it plans to hire an additional 50,000 employees. It also said it intended to gentrify the pejorative term "McJobs" making it mean something better than low wage no benefit work.

Starving the Beast

The NLRB's budget is in the cross hairs of congressional budget cutters, and In These Times (pro labor) predicts dire consequences.

Oopsie

It appears some votes were missing temporarily in that Wisconsin Supreme Court race, and now counted those votes favor the incumbent over the labor backed challenger. Several reports indicate the vote count as corrected, is correct.

Dead EFCA

American Spectator has a pretty good "obituary" for EFCA.

Wisconsin votes

It is fascinating to watch from a distance the politics of Wisconsin. So much now driven by the struggle between a Republican governor determined to reign in public sector unions and allies of labor. It has certainly made the 2010 political trend favoring Republicans short lived. The real question is the resurgence of support for labor evidenced in Wisconsin likely to play out on a national scale. More after the jump

Shining a light

The House Oversight and Government Reform Committee chaired by Representative Darrell Issa (R. CA) is conducting hearings on the adequacy of the tentative agreement between the Postal Service and the American Postal Workers Union (APWU). This is apparently the first time congress has ever conducted a hearing about a collective bargaining agreement. The rub is concern that the agreement does not do enough to curb labor costs at USPS which currently constitute 80% of the operating costs. By comparison United Parcel Services labor costs are 60% of operating expenses and at FedEx Corp its 43 percent.

Whack, yikes! whack!

Well, its not exactly employment law, but its posted on a great blog for employment lawyers, Adjunct Law Prof Blog, and in light of the controversy concerning corporal punishment meted out at St. Augustine High School, a link here is appropriate. It quotes from a New York Times Article which notes the U.S. Department of Education estimates 223,190 children were subjected to corporal punishment during the 2005-2006 school year, and that this is a 20% drop from a prior survey. The article points to the Center for Effective Discipline Site which lists the states which ban corporal punishment. Apparently its legal still in 20 states, including Louisiana.

Polls favor public sector unions

Another poll, this one from Gallup, indicates the public is less anti-labor than some Republican governors would like.

Unemployment drops in March

Unemployment in March fell to 8.8%, a two year low. The full Bureau of Labor Statistics report is here.

NOLA construction company popped in harassment case

A jury has awarded $451,000 in damages against Boh Brothers for male on male sexual harassment. This case was litigated on behalf of plaintiff by the EEOC. Previous post here.

Bankrupt and rejected

In Burnett v. Stewart Title, Inc., the federal Fifth Circuit Court of Appeals (New Orleans) has joined the Third Circuit in holding that Section 525 of the Bankruptcy Code does not provide a cause of action against private employers who engage in discriminatory hiring practices against debtors in bankruptcy.

Final ADA regulations

Then EEOC has issued final regulations implementing the ADA Amendments Act.

Mandatory drug testing in the Sunshine state

Florida's newly elected Republican Governor Scott has issued an executive order mandating drug testing for new hires and random testing for many current employees. It has the ACLU and public sector unions squawking, and likely is going to draw a challenge to its constitutionality. But the real problem is that it is expensive, and while many employers swear by it, many others found the small number of positive test results called into question the benefit of testing. Drug testing has its place where there is sufficient reasonable suspicion to pass constitutional muster and in the situation where an employee has caused injury to person or property.

Wage Hour targets grocers

A Bunkie supermarket has been fined $35,000.00 by the Department of Labor for employing minors under the age of 18 in occupations the government deems hazardous. The Birmingham office of the Wage/Hour has announced an enforcement initiative targeting small grocery owners and franchisees in Mississippi and Alabama.

Politics as usual

Here is a really informative analysis of the issue of whether unions are disproportionally exempt from Healthcare reform. (They are not).

Formality rejected

In a divided opinion, (Breyer) the Supreme Court has decided that a written complaint is not a necessary prerequisite to a retaliation claim under the Fair Labor Standards Act. The Court refused to decide whether the complaint must be filed with  a court or the government, (as dissenters Scalia and Thomas urged) because the Employer did not raise the issue in its Petition for Certiorari. Nevertheless, much of the reasoning in the majority opinion would support the position that an internal complaint would also be protected by the anti-retaliation provisions.

Wrong

The NFL owners are meeting in New Orleans today. This Times Picyune story captures an important concept - the owners mindset is "the players are on strike, we want to negotiate." But that is not the case. The owners locked out the players. The players vaporized the union placing the controversy in court where antitrust law might be a bit of a problem for the owners. Commissioner Goodell's letter to the players also drew a heated response from players, particularly the part calling the players back to the bargaining table. After decertification the union is no longer authorized to represent the players.

Lets get ready to rumblllllllllle!

A state court judge in Wisconsin has issued a temporary restraining order preventing (at least temporarily) the new law eliminating public sector collective bargaining from taking effect. Wisconsin has become ground zero in a battle between labor and Republicans that will have lasting implications on a national scale.

More than one Cat's paw

Charles Sullivan at Workplace Prof Blog has an excellent post on why Staub v. Proctor Hospital may not be so plaintiff's friendly at all. We agree as our previous post suggests.

Wage payment suit allowed

The Louisiana Third Circuit Court of Appeal has just handed employee plaintiffs a small victory in their wage payment claim. The employees resigned, started a competing business and solicited customers of their former employer. The employer successfully sued the employees in a Texas federal court and were awarded a $1,430,000.00 judgement for damages for breach of fiduciary duty. The employees had filed a claims for unpaid wages and bonuses. After receiving the federal court judgment, the employer filed an exception of res judicata, which was granted by the trial court. The Third Circuit analyzed the record anc concluded res judicata did not bar the employees wage claims.

Saints players react to labor issue

Mike Triplett has a great piece in the Times Picayune about the Saint's players comments on  the breakdown in negotiations for the new CBA. Saint's quarterback Drew Brees is quoted as are many others. The PR war has already started, but these Saints provide an articulate defense to the players position. A word of caution to the fan following this issue. Network reports on the lockout have every reason to be biased in favor of the owners. Not only do they owe the owners $4 billion if the games are not played, they have to negotiate television rights with those same owners. Expect the owners to get better than even treatment and coverage.

Sacked! and the clock runs out

Surprised? I am. Expired collective bargaining agreement, decertification and probable lockout. No disrespect to the tragedy in Japan, but this is a metaphorical tsunami that can well damage all concerned. I think going forward it will be very difficult for the owners in both a court of law and the court of public opinion. The NFL/NFLPA Collective Bargaining Agreement expired because the players would not agree to extend it unless the owners provided the financial information the players had requested. The big sticking point in the negotiations is the owners insistence their costs have risen necessitating taking a second billion off the top of the revenue pie. (The owners want to take $2 billion of the roughly $9 billion in annual revenue generated by the league, before splitting the rest under a formula that provides roughly 60% to player compensation.) Yet the owners are only offering to provide limited access to financial information. This sounds like the typical discovery dispute - one side provides documents requested by the other side and after the production, the requesting party says it needs more. The real issue is hard to assess. Irrespective of the merits of what was produced and whether it was sufficient, I think owners will have a difficult time convincing anyone they provided all the financials the union needed.

Two minute drill

The clock is ticking on the expiration of the extended collective bargaining agreement between the National Football League (NFL) and the National Football League Players Association (NFLPA). Current deadline is tonight at 11:59 p.m. USA Today has an interesting, if bare bones assessment of what could happen. My bet is on another extension. The players have signaled their willingness to talk - there has been no talk of a strike. The owners have rattled the lockout saber thereby assuming the roll of the party willing to walk, but really? This labor/management dispute plays to labor's strengths. Highly skilled athletes bargaining for more. Billionaire owners wanting to increase their guaranteed slice of the estimated 9 billion dollar golden goose that is the NFL. It does not hurt the players position that the owners want a $100% increase in their guaranteed slice off the top. This dispute plays out against the backdrop of the fans. Who will they blame if Sundays from August to February (and a few Mondays, Saturdays and Thursdays too) are devoid of action, or if the only action is by replacement players? I think thats an easy call if the owners lockout the players. Nevertheless a lockout has the same potential economic consequences for the players as a strike, and they are all adverse. No pay, no benefits, and potentially a lost season for players who have precious few years to play anyway. The owners should be gleeful the players threaten to decertify the union (actually a disclaimer of interest that would lead to decertification). It allows the owners to back off the lockout position and continue negotiations, at least at this point. Decertification likely will likely place all of this in a courtroom, a consequence which should be feared more by the defendant, because the teams, as defendants in an antitrust action have a potential dreadful downside. I think the owners should be very concerned about American Needle v. NFL, which rejected the owners argument that the league by necessity had to act jointly in marketing decisions. Yeah, that may be a simplistic analysis, but the case firmly rejected the NFL's broad interpretation of the anti-trust exemption.

Federalizing Right to Work

Senator Jim DeMint has introduced national right to work legislation which would outlaw compulsory unionism on a national basis rather than leaving the issue up to the states. It is co-sponsored by seven other Republican senators, including our own David Vitter. I cannot help but think that this is essentially an anti-state's rights initiative. If you read the press releases it almost seems like the legislation would allow voluntary unionism without need of establishing majority status, but that surely is not the case, rather just the public relations face.

Walker's approval dives over assault on public employee unions

Wisconsin Governor Scott Walker now has a 57% disapproval rate, according to a new Rasmussen poll. 48% strongly disapprove. Yikes! Among families with children in public school 67% disapprove, 54% strongly so.

Unemployment drops to lowest level in almost 2 years

The Bureau of Labor Statistics (BLS) monthly employment report notes joblessness declined to 8.9% in February, with a net job creation of 192,000 jobs despite heavy cuts in state and local government employment due to state budget shortfalls. The WaPo story is here.

Making sense of polls

A new NBC/Wall Street Journal Poll finds 62% of Americans strongly oppose stripping public employees of the right to collective bargaining while at the same time even larger percentages think public employees should contribute more to their retirement benefits (68%) and pay more for their healthcare (63%). By a whopping 77% those surveyed believed public sector union members should have the same rights as private sector union members. To me, none of this is surprising or even incongruous. More after the jump

Cat's Paw approved by SCOTUS

The Supreme Court has decided that the "cat's paw" theory is applicable in at least some employment cases. The theory relates to the situation where a decision maker without discriminatory animus is affected by the advice of others who have discriminatory animus. The case involved allegations of discrimination against an army reservist who claimed his immediate supervisor fabricated a disciplinary warning due to hostility to his military obligations. The employer's vice president of human resources received a report on the disciplinary warning, reviewed the employee's personnel file and terminated the employee's employment. More after the jump