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.

Revitalizing unions

In These Times has an interesting post on revitalizing the labor movement. It focuses on University of Texas law professor Julius G. Getman's new book, Restoring the Power of Unions: It Takes a Movement. Getman portray's the Hotel and Restaurant Employees Union (HERE) as a model of a member centered labor organization which has created its own mobilized rank and file, a rejuvenation of a movement, solidarity - core values gone missing from other labor organizations. Getman also rejects card check recognition as labor's salvation. He's not against it, he just does not believe it will effectuate needed change. Getman correctly notes two restrictions on labor's economic power have crippled the labor movement over time. The first is Mackay Radio, which held economic strikers can be permanently replaced. The second is Taft-Hartley's ban on secondary economic pressure.

Survey Says: hookey

A Careerbuilder survey suggests 29% of employees have missed work at least once in the last year for unapproved reasons. Survey also shows 16% of employers have terminated a worker for missing work without a proper excuse.

Senate candidates think minimum wage laws unconstitutional

Two Senate candidates have claimed regulation of the workplace by Congress is unconstitutional. This despite a unanimous Supreme Court upholding the validity of the Fair Labor Standards Act in 1941.

Electronic notices required

In a divided decision (Hayes dissenting) the NLRB has adopted electronic notice requirements when that is a "customary means of communicating with employees."

Compound interest daily

The NLRB, in a 4-0 decision, underscores unanimity on providing remedial relief by adopting a new rule that interest on back pay awards will be compounded daily.

Why was it even close?

The Wobblies (International Workers of the World) lost a representation election in Minneapolis at fast food chain Jimmy John's. The employer vigorously contested the election even hiring a well-known union avoidance consultant. The newsworthy question is why was this one close? The Wobblies have a history as a far left union, and recently have focused on organizing workers other unions have not targeted. The labor organization lost 87-85 with 2 challenged ballots. Even if the 2 challenged votes went its way, the union lost the election, because it could not establish its majority status. Nevertheless, it plans to object to the results claiming the employer engaged in unfair labor practices.

NFL says no health insurance during lockout

The NFL signaled, again, its intention to play hardball. NFL Commissioner Goodell says the NFL's decision is a good reason for the NFLPA to come to the bargaining table and reach a new deal with the league.

The Devil is in the Math

Pro-labor site In These Times has posted a piece claiming an employer's lockout is costing the company more than giving into the union's contract demands. The first question is "why is that news?" One would assume the disrupted continuation of work would be more expensive. Upon closer analysis, however, the math is skewed. The poster includes the total cost of replacement labor in the computation. Since the locked out employees are not paid for being locked out, the labor cost figure does not belong in the calculation. The proper analysis would subtract the normal labor costs from the actual labor costs to ascertain the increase caused by the lockout.

Effect of Great Recession on employee attitudes

Well, its inevitable this study would be done. And equally inevitable its probably been done several times with varying questions. Quick take: Employees are waking up to life outside of work, and the importance of family as a direct effect of the Great Recession. For some of us, we were rescued earlier. My liberation occurred when a longtime local client was acquired by a multi-national firm, after which they never called again. This occurrence is of course, by no means unique to me, but it made this professional pause and rethink the boundaries of commitment to serving clients before family. The oldest of my 4 children was 12 at the time. After that point, I never missed a school event or an athletic event because of work conflicts. The best part was most client representatives (and even judges) completely understood the point.

NFL lockout and collateral damage

The NFL is big business and the collateral damage from a lockout would hurt more than just the players and the owners.

NFL lockout and collateral damage

The NFL is big business and the collateral damage from a lockout would hurt more than just the players and the owners.

Spying costs

Remember the school district that engaged in surveillance using the district laptops to spy on students at home, previously posted here and here? The school board just approved a $610,000 settlement.

The Multi-Employer pension plan disaster

There are many good reasons to advise a client to beware participation in union sponsored multi-employer pension plans. None the least of which is the crushing withdrawal liability imposed upon small employers who who are vulnerable to the extraordinary and excessive underfunding issues exacerbated by the great recession and investment value declines. While there has been some improvement, the issue still confronts many employers. Thats whats particularly wrong when commentators characterize any government action to address the problem as a bailout for unions.  Its not. Its a bailout for employers saddled with underfunding liability as well as a bailout for participants, many who have worked years for promised pension benefits now in jeopardy.

Punishment by litigation

Sometimes doubling down on a doomsday strategy can work, but more often than not, it does not, is expensive, and has dire ultimate consequences. The issue of retaliatory litigation and whether a labor organization can prevail against an employer is a significant one. The Supreme Court addressed the issue in BE and K Construction. More after the jump.

Social Media Discovery ordered

A New York trial court has ruled that a personal injury plaintiff has no reasonable expectation of privacy on her Myspace and Facebook pages even those protected by privacy settings. Romano v. Steelcase, Inc. throws around legal concepts and seems to take a more difficult path to reach its result than necessary, but it provides a good source of citation to cases from several jurisdictions.

Social Media as litigation tool

The New York State Bar has issued an ethics opinion that accessing the public pages of a social network site to gather information on a litigation opponent is ethical. HAt Tip to the always interesting Adjunct Law Prof Blog.

Dead EFCA beaten again

Dead horse beaten for lively political purposes.

Sanity flu out the window

Do three in ten healthcare workers really intend NOT to get a flu shot? Do almost 50% of an "at risk" group (those over 65) really intend NOT to get a flu shot. And does over thirty percent of the public believe flu shots don't work? Is this a non-political example of the ever increasing gulf between fact and opinion that seems to afflict the public?

Woman to challenge Hoffa

Longtime Teamster and President of New York Teamster Local 805, Sandy Pope, says she intends to challenge James P. Hoffa for the presidency of the International union next year. Pope, active in Teamsters for a Democratic Union, has been a Teamster for 30 years. About 30% of the 1.3 million member union is female.

Foul!

The National Basketball Association (NBA) wants to cut down on complaints and gestures which show insufficient respect for the referees or the game. Arguing a call or other offensive conduct, even if not directed at the game official may result in a technical foul. Technical fouls can also lead to player fines. The players association file unfair labor practices in the 2006-07 season, and again threatens legal action. Griping at work about work rules certainly is protected by the National Labor Relations Act. Can the league establish a business justification for the muzzling of the complaints? Would a technical foul remedy do as much injury to the game as complaining?

Whose happy at work?

Ever wonder whose got job satisfaction? Here is an analysis of the top 50 happiest occupations.