April 22, 2005
Weekly Summary of NLRB Decisions
Millennium Maintenance & Electrical Contracting, Inc. (2‑CA‑35054; 344 NLRB No. 62) New York, NY, April 14, 2005.
Chairman Battista and Member Liebman adopted the recommendation of the administrative law judge and ordered that the Respondent pay Ilya Kleyn $25,778.00 in backpay and dental expenses, and remit $1480.00 to United Service Workers Local 363’s annuity fund on Kleyn’s behalf. Member Schaumber dissented in part.
The issue before the Board is whether the Respondent sustained its burden of proving that Kleyn failed to mitigate backpay damages by making a reasonable search for interim employment after his unlawful layoff on October 10, 2002.
The Respondent argued that Kleyn entered into an agreement with a representative of Electrical Workers IBEW Local 3 to remain unemployed and, therefore, did not diligently search for work. However, Chairman Battista and Member Liebman agreed with the judge that the Respondent did not sustain its burden of proving that Kleyn failed to conduct a reasonable search for work, explaining: “[W]e do not find that a clear preponderance of all the relevant evidence runs counter to the judge’s partly demeanor-based decision to credit Kleyn’s denial that he agreed to remain unemployed.”
Member Schaumber joined his colleagues in adopting the judge’s finding that the Respondent’s ambiguous discussions with Kleyn about future employment did not constitute an unconditional offer of reinstatement under Board precedent. Contrary to his colleagues, he concluded that the record evidence fully supports the Respondent’s contention that Kleyn failed to make reasonable efforts to mitigate his damages and, in fact, willfully incurred a loss of income during the 4-month period following his layoff.
Rogers Corp. (34‑CA‑9117; 344 NLRB No. 60) Rogers and Woodstock, CT., April 12, 2005.
Affirming the administrative law judge’s recommendations, the Board held that the Respondent violated Section 8(a)(1) of the Act by refusing to grant, or consider granting, a permanent position to Jeremiah Lamothe, and by terminating him on October 25, 1999 because he invoked a right under the Respondent’s collective-bargaining agreement with Oak Lodge-Rogers Local 46 and PACE International Union. The Board modified the judge’s recommended Order and notice to more closely reflect the violations found.
See here for the full report.
Steelworkers filed discrimination charge
The United Steelworkers (USW) has filed a charge of race discrimination against Imerys Carbonates on behalf of employees working at the company's Sylacauga, Ala., facility. Imerys, a French company headquartered in Paris, operates in 38 countries worldwide.The charge, filed with the U.S. Equal Employment Opportunity Commission, alleges that white supervisors are enforcing company work rules and imposing discipline more harshly against African-American employees, and are retaliating against employees who have complained of the racism. The complaint also alleges that African-American employees have been subjected to a hostile work environment because of racial epithets and threats made by white supervisors.
Discrimination lawsuit by gay man
"A jury ruled that an Oregon gay man who worked at a local Shari's restaurant faced a hostile work environment because he failed to display traditional male behavior.
The jury awarded Kevin Turner, 33, of Gresham, $122,225 in the gender discrimination suit filed against Shari's Corp. in U.S. district court."
See here for the rest of the story.
April 21, 2005
Changing Roles for Dads
Blanca Torres (Baltimore Sun) reports that although, "more fathers are taking time off to help care for new babies ... the business culture is still less supportive of men who want time for family than women."
Dads on Leave, begins with the story of Gary Leibowitz, a lawyer whose law firm, Saul Ewing LLP in Baltimore, allowed him three months of paid paternity leave.
According to Torres:
"In a break with the past, Leibowitz and other dads born after the baby boom are trying to achieve a better balance between the demands of the workplace and raising a family. It’s a balance women have been trying to strike for decades.
But even with more families juggling two careers, the trend of men taking leave or reducing hours has been slow to surge, experts said, since most employers do not offer paid paternity leave. And some men still fear compromising their careers by taking the time, or simply can’t afford to.
"Culture still doesn’t support the notion that fathers need to be as engaged as women in their kids’ lives," said Roland Warren, president of National Fatherhood Initiative, based in Gaithersburg, Md. "Businesses have a lot of support systems primarily for mom. ... When men try to take advantage of these things, although you can do it, there is still a notion that men shouldn’t.""
Suggestions on Reducing Workplace Violence
A recent article suggest the following steps which employers can take to protect employees from workplace violence:
"So what can employers do to begin to protect their employees from violence in their midst? The first step is to implement and train employees on a violence prevention or disaster preparedness plan. Much like a sexual-harassment-prevention policy, a violence-in-the-workplace policy should contain the following general provisions:
- A statement of zero tolerance against violence and/or threatening behavior in the workplace.
- Measures to screen and limit access to your premises to persons with a legitimate business interest.
- The barring of all weapons on company premises, including those in private vehicles when on company property.
- Establishment of a policy to permit inspection of work areas, including lockers, desks, and any other property on company premises.
- Establishment of a policy permitting the monitoring of telephone conversations, e-mails, and other means of communications in the workplace.
- Encouraging an immediate reporting scheme for any threats of violence.
- Training employees on what to do in case of a threat of violence.
- Coordinating with the company's employee assistance program provider to encourage early intervention and counseling on potential domestic or workplace violence issues.
- Knowing how to immediately contact the local policy authorities and first responders.
- Establishment of a disaster preparedness and evacuation program to react quickly to any violent act or disaster that takes place in the workplace."
United States: What Can Employers Do to Protect Employees From Workplace Violence? (by Michael D. Nosler, Rothgerber, Johnson & Lyons)
Report on Workplace Abuse in Canada
"Hospital workers are increasingly mistreated by superiors, according to a new Canadian study. Karen Harlos, a professor in McGill University's Faculty of Management in Montreal, and Larry Axelrod, a social psychologist at Neutral Zone Coaching and Consulting Services, based their research on surveys completed by 125 non-unionized hospital employees in western Canada.
Harlos and Axelrod found workplace mistreatment occurs in three principal manners: verbal abuse, work obstruction (i.e. denial of key tools) and lack of recognition. "In Canada, concern is mounting about employee mistreatment in medical settings as the sector reorganizes and working conditions for clinical staff decline," says Harlos, noting that Quebec was the first North American jurisdiction to protect against workplace through anti-harassment legislation in 2004. "
NYU's Conference on Labor
About the conference:
In an era of fast-moving technological developments and global labor and product competition, workplace privacy has risen to the fore as one of the central concerns of policymakers and practitioners. This is the theme of New York University’s 58th Annual Conference on Labor, May 19-20, 2005, the nation’s premier forum for the consideration of employment studies.
Bringing together leading practitioners, government officials and academics, the NYU Conference offers a rare opportunity for sustained, balanced dialogue with the experts on cutting-edge developments concerning privacy at work. The first day includes consideration of ground-breaking issues in global position monitoring, medical and personnel records maintenance systems, here and abroad, tracking of emails, background checks and physical surveillance of employees. Another segment takes up the claims of privacy advocates that employers should be limited in their ability to discipline employees for arguably nonworkplace behavior, such as use of drugs, consumption of lawful products, and social relations with coworkers and employees of competitors. The day closes with a focus on how these issues are hammered out in collective bargaining.
The second day turns the spotlight on the securities industry, a major employer, and how global companies are addressing the terrorist threat to the security of facilities, communications systems and workers. Our special luncheon speaker is Hon. Robert J. Battista, chair of the National Labor Relations Board.
For the Conference Agenda see here.
April 20, 2005
Government Report on Domestic Product
Gross Domestic Product by Industry, 2004
"Newly-available data on the industry distribution of growth in GDP show the services-producing sector led the economic expansion in 2004, as 7 out of 10 services-producing industry groups contributed to faster growth in real GDP. According to the U.S. Bureau of Economic Analysis (BEA), advance-industry estimates for 2004 also show a strong contribution from continuing double-digit growth for Information-communications-technology-(ICT)-producing industries."
(Thanks to Ron Jones for the tip).
Report on Cambodia's Labor Conditions
"Tensions are rising in the factories, and mounting trade union repression will tarnish foreign investors' image of the country if it is allowed to persist, says an ICFTU report published today. This report entitled "Cambodia: increasing pressure on trade union rights" provides an update on the situation of the country's workers since the lifting of the textile and garment quotas on 1 January 2005.
The new report explains that there has not yet been a significant deterioration in working conditions inside Cambodia's garment factories since the end of the quota system. But although salaries remain slightly higher than those paid in some competitor countries, they still do not afford workers a decent standard of living.
Outside the factories, the situation has seriously deteriorated over recent months. The Cambodian authorities, bent on pleasing the employers, are violently repressing strikes and protests. It is becoming extremely dangerous to carry out independent trade union activities in Cambodia, as shown by the assassination of two trade union leaders in 2004. The ICFTU also condemns the countless number of cases in which trade unionists and workers holding peaceful protests have been savagely beaten by the police or hired gangsters.
The report published today explains that employers have recently deployed a new tool to repress trade union activities: the filing of legal proceedings against factory union leaders, to make them serve prison sentences or pay extortionate fines. Employers are disregarding labour laws and using criminal law to prosecute workers whose only "offence" is taking part in a peaceful strike. Such actions contravene internationally recognised principles on the right to strike.
NBA and NHL deal with labor agreements
The NHL and the NHL Player's Union continue negotiations according to Ira Podell of Fox Sports News. According to Podell (NHL Labor Negotiations to Resume Tuesday in NY):
"It is expected that a new idea will be on the table during this next round of talks that could help bridge the divide on whether player costs should be linked to league revenues.
The NHL has maintained that it prefers a direct relationship that ties player costs to league revenues, while the union has mostly rejected that idea. This new, mixed plan would appear to incorporate elements from both concepts.
Two "de-linked" proposals have made by the NHL, and both were pulled back."
At the same time, the NBA and the basketball player's union continue negotiations, hoping to reach a new agreement before the current agreement expires on June 30th 2005. According to CBS (Stern: Everyday without new deal 'is not a good thing'):
"Both sides have been publicly silent about the give-and-take being conducted behind closed doors, although people involved in the negotiations have indicated that significant differences remain to be bridged on issues including a possible increase in the minimum age, salary cap and luxury tax thresholds, maximum length of contracts and the size of year-to-year increases that will be permitted in future long-term player contracts.
An increase in the age limit has been one of the most publicly debated issues. Under current rules, a U.S. player's high school class must have graduated in order for him to become eligible for the draft, while international players must turn 18 before the draft in order to be eligible."
April 19, 2005
Towards International Corporate Responsibility
Andy Mukherjee (Bloomberg News) discusses the report issued last week by the Beaverton Company about Nike's worldwide labor conditions. According to the article:
Nike's ``corporate responsibility'' report doesn't make for a pretty picture. From excessively long workweeks and wrong wage calculations to verbal abuse and curbs on toilet visits, the findings confirm a pervasive culture of exploitation.
At risk are as many as 650,000 workers in factories located from Australia and China to the U.S. and Vietnam. A majority of them are women between the ages of 19 and 25.
So has Nike scored a self-goal by publishing the report? Isn't Chairman Philip Knight running the risk of alienating at least some customers who might now want to buy their sneakers from niche competitors who wear their ethical credentials on their sleeves, such as Boston-based No Sweat Apparel, whose goods come with flyers stating the wages paid to the Indonesian workers who made them?
Knight's candor is probably backed by sound business acumen. An honest acknowledgement of lax labor standards is a much required first step to make labor-rights activists and the media appreciate the sweatshop problem for what it is: an industry-wide menace that was neither created by Nike nor can be solved by it in isolation.
Labor Joke and Cartoon of the Week
April 18, 2005
Strike at Yale
Josh Eidelson, guest columnist of the Yale Daily News, discusses the background of the current strike by the organization representing graduate students at Yale. According to Mr. Eidelson:
"We as undergraduates today face another strike and the potential for further future disruption because our president refuses to recognize what the United Nations and the Internal Revenue Service do: that the men and women who teach our sections and grade our papers are employees receiving compensation for labor. When this fact changes has everything to do with the readiness of even more undergraduates to join with GESO's call for equal opportunity and educational excellence and to demand negotiation with our teachers for the sake of our education. Today, undergraduates will join graduate workers, service and maintenance workers, clerical and technical workers, and community members in creating classrooms on High St. to foster discussion of the issues Levin has refused to recognize.
After that last strike, Levin told the New Haven Advocate that "had we been able to sit down" earlier to negotiate, a settlement would have been reached sooner. But at that same press conference, when former Advocate editor Paul Bass asked whether Levin would have come to the negotiating table, as many of us spent over a year urging him to do, without a strike, Levin paused and then answered, "At the right time and place, I would have been there." History need not repeat itself any more than it already has. Levin still has a chance to recognize that the right time has come to negotiate with GESO, and to demonstrate that he too has learned something from the strikes that have been so frequent in this university's history.
Symposium on Rankings
Last Friday, Paul Caron and I, in conjunction with the Indiana Law Journal, held "The Next Generation of Law Schools Rankings" Symposium at Indiana University School of Law in Bloomington.
The event went very well, with a lot of interesting issues and ideas being raised by the presenters and commentators. Here is a brief summary of the day's events:
A couple of presenters made arguments regarding the potential benefits of rankings. Russell Korobkin (UCLA) discussed the "coordinating function" of rankings. Professor Scott Baker (North Carolina) discussed his paper with Professors Gulati and Choi, in which the authors argue that rankings can be conceptualized as a promotion tournament and thus an "information forcing" device.
Various of the presenters and commentators, on the other hand, discussed the negative effects of rankings. Jeffrey Stake (Indiana) discussed the effects of rankings on the allocation of law schools' resources, while Dean Alex Johnson (Minnesota) discussed the effects of rankings on affirmative action practices. In a very interesting take. Dean Nancy Rapoport (Houston) discussed the impact of rankings (both positive and negative) in the ability of law schools to engage in strategic, long-term planning.
A good amount of discussion went to the issue of alternative ranking methodologies. Judge Posner's paper talks about high correlation between U.S. News overall rankings and Median LSAT scores. Cass Sunstein (Chicago) suggested relying on student choices (revealed preferences) as an alternative to rankings. Bernie Black (Texas) and Paul Caron (Cincinnati) proposed a ranking of faculties based on SSRN downloads, while Tracey George (Vanderbilt) advanced the idea of ranking faculties based on how they perform in the area of Empirical Legal Scholarship.
Other papers provided suggestions on how to deal with the negative effects of rankings, such as the paper by sociologists Wendy Espeland (Northwestern) and Michael Sauder (Iowa). Bill Henderson (Indiana) and Andrew Morriss (Case Western) developed a model explaining the movement of law schools regarding LSAT scores since the inception of the U.S. News rankings.
Overall, it was a very interesting day. We look forward to the publication of the Symposium papers in the Indiana Law Journal.
April 17, 2005
Bush Administration Clashes with Labor
Steven Greenhosue (NYT) reports on a likely confrontation between the Bush Administration and labor unions, as the Department of Labor prepares to increase scrutiny of union finances. According to Greenhouse,
"The Bush administration is rapidly expanding audits of the nation's labor unions, citing a need to ferret out and deter corruption. But union leaders assert that those increased efforts are nothing more than crude political retaliation.
Pointing to embezzlement of hundreds of thousands of dollars by the presidents of the ironworkers union and Washington's teachers union, Labor Department officials say the number of audits fell too far in the 1990's and needs to be restored to previous levels."...
"Labor leaders see the new effort as retaliation for their nearly unanimous support for Senator John Kerry in the 2004 presidential election. Vast support for Mr. Kerry came from the A.F.L.-C.I.O., which has been informed by the department that it will be one of the first national labor organizations audited as part of the expanded efforts."