February 25, 2005
NLRB Recent Developments
Weekly Summary of NLRB Decisions for week ending February 25, 2005. The following decisions are summarized:
Big Sky Locators, Inc. (28‑CA‑17698; 344 NLRB No. 15) Las Vegas, NV, Feb. 14, 2005. In affirming the administrative law judge’s findings, the Board held that the Respondent violated Section 8(a)(1) and (5) of the Act by withdrawing recognition from Electrical Workers IBEW Local 396 as the recognized collective-bargaining representative of the Respondent’s employees in the appropriate unit; failing to continue in effect terms and conditions of employment as set forth in the parties’ collective-bargaining agreement; failing to make Line Construction Benefit Fund health insurance premium payments and thereby failing to continue in effect employees’ coverage; and unilaterally placing into effect an alternative health care plan and imposing premium costs on employees.
Center for the Disabled (3‑RC‑11255; 344 NLRB No. 21) Albany, NY Feb. 16, 2005. The Board adopted the hearing officer’s conclusion that the Employer established a valid business justification with respect to both the grant of the wage increases and the timing of their announcement and, overruled the Petitioner’s (Needletrades Employees) Objection 1, and certified the results of the rerun mail ballot election conducted from May 13 through 28, 2004. In the absence of exceptions, it also adopted the hearing officer’s recommendation that the Petitioner’s Objection 3 be overruled. The tally of ballots showed 285 for and 381 against, the Petitioner, with 83 challenged ballots, an insufficient number to affect the results of the election.
Electric By Miller, Inc. (17‑CA‑22667; 344 NLRB No. 20) Grove, OK, Feb. 16, 2005. The Board adopted the recommendations of the administrative law judge and found that the Respondent violated Section 8(a)(1) of the Act by threatening its employees with closure of the business if they selected Electrical Workers IBEW Local 584 as their collective-bargaining representative and falsely announcing closure of the business in order to effectuate the discharge of a prounion employee, and violated Section 8(a)(1) and (3) by discharging John R. Carter because of his union activities.
International Transportation Service, Inc. (21‑CA‑34968; 344 NLRB No. 22) Long Beach, CA Feb. 18, 2005. In agreement with the administrative law judge, the Board found that the Respondent violated Section 8(a)(1) of the Act by informing an employee that she was being discharged because she engaged in union and protected concerted activity, specifically picket line activity on behalf of Longshoremen Local 63 , and violated Section 8(a)(1) and (3) by terminating employee Deanna Tartaglia because she engaged in union and protected concerted activity, specifically picket line activity on behalf of the Union.
Cincinnati sponsors "Women Coming Together" Conference
Women Coming Together:
Claiming the Law for Social Change
The University of Cincinnati College of Law and the
Joint Degree Program in Law and Women's Studies
February 25 - 27, 2005
University of Cincinnati Tangeman Student Center
What is women coming together
At this two-day gathering, diverse women will articulate and activate an inclusive, progressive agenda for all women to help lead this nation in a positive direction. Women Coming Together will provide opportunities to develop new strategies, expand and enhance coalitions, and share ideas about how to “claim the law” as a vehicle for social change.
Our main focus will be women's health and well-being, taking a holistic approach to examining the many different factors affecting the ability of women to lead healthy lives. Among the issues we plan to address include: reproductive health, access to quality health care, media images, civil rights enforcement, immigration, and criminal
Please join us—activists, academics, advocates, people committed to social justice—at the University of Cincinnati for this exciting event.
Germs at work
Did you think that your job "made you sick"? Now you have prove. The Sun Sentinel reports on a study by Charles Gerba, a microbiologist at the University of Arizona. Gerba,
"collected samples from office buildings in Atlanta, Chicago, New York City, San Francisco and Tucson, Ariz., last fall to determine how much human parainfluenza 1 virus was present. The virus is responsible for common respiratory infections, such as pneumonia and bronchiolitis.
The survey collected samples from common areas: telephone mouthpieces, computer mice, desktops, doorknobs and handles, conference rooms, light switches and office cubicles.
New York -- where half of all office surfaces contained the virus -- was the most virus-laden city, followed by Atlanta, San Francisco, Chicago and Tucson."
February 24, 2005
Blogging about Work
Management employment law firm provides some advice to employers on how to address issues regarding employee's blogging activities.
"Workers using Internet blogs and podcasts to talk about their employers are increasingly at risk of being fired, and their companies are more vulnerable to having confidential information leaked, according to Littler Mendelson, the nation's largest labor and employment law firm. ...
"Employees can have a false sense of security, when it comes to postings," said Christopher Cobey, senior counsel in Littler Mendelson's Silicon Valley office. "They mistakenly believe that if they shroud the blog or podcast with anonymity, they are immune from consequences. However, in most states, employment is at-will, meaning employers can fire an employee without cause. Learning that an employee is disloyal to the company may be all an employer will require to exercise its option to terminate the person."
Cobey suggests companies incorporate blogging and podcasting policies into their existing guidelines on confidential information, trade secrets and use of company electronic resources."
Rappers and Bloggers
"Essentially, blogging is sampling plus a new riff. Political bloggers take a story in the news, rip out a few chunks, and type out a few comments. Rap songs use the same recipe: Dig through a crate of records, slice out a high hat and a bass line, and lay a new vocal track on top. Of course, the molecular structure of dead-tree journalism and classic rock is filthy with other people's research and other people's chord progressions. But in newspaper writing and rock music, the end goal is the appearance of originality—to make the product look seamless by hiding your many small thefts. For rappers and bloggers, each theft is worth celebrating, another loose item to slap onto the collage.
Rap music and blogging are populist, low-cost-of-entry communication forms that reward self-obsessed types who love writing in first person. Maybe that's why both won so many converts so quickly. If you want to become MC I'm Good at Rapping, all you have to do is rustle up a microphone and a sampler. If you want to blog as AngryVeganCatholicGOPMom, bring a computer, an Internet connection, a working knowledge of Ctrl-C and Ctrl-V, and a whole lot of spare time."
I never thought of myself as a rapper (although perhaps I am not a blogger either)!
FMLA Recent Developments
"Employer's Granting of FMLA Leave May Preclude Subsequent Challenge to Employee's Entitlement Leave" By Jon Allison (Dinsmore & Shohl)
Employers should be aware that the unconditional granting of FMLA leave to employees without challenge may prevent employers from later challenging employees' entitlement to the leave.
In Sorrell v. Rinker Materials Corp., 6th Cir. No. 03-4359, 1/14/05, the U.S. Court of Appeals for the Sixth Circuit ruled that an employer's unconditional approval of an employee's request for leave under the Family and Medical Leave Act to care for his ill wife may prevent it from contesting the employee's leave entitlement. Read more here.
February 23, 2005
NLRB Recent Developments
Weekly Summary of NLRB Decisions for the week ending February 18, 2005. The summary includes discussion of:
The Board granted the General Counsel’s motion for summary judgment and held that the Respondent violated Section 8(a)(1) of the Act by statements made to employees; Section 8(a)(3) and (1) by discharging William Byer because he formed, joined and/or assisted Carpenters Local 613 and engaged in concerted activities; and Section 8(a)(5) and (1) by refusing to adhere to the terms and conditions of its collective-bargaining agreement with the Union and by bypassing the Union and dealing directly with unit employees regarding terms and conditions of employment.
At issue is whether the Employer maintained an unlawful rule (Rule 31) in its employee policy manual that restricted workplace solicitation. The hearing officer’s initial recommendation was to set aside the election based on Rule 31. The Board thereafter remanded the case to the hearing officer to take additional evidence on the factual issue of whether Rule 31 had been disseminated to employees. In her supplemental report, the hearing officer reaffirmed her finding that the Employer had engaged in objectionable conduct as to Rule 31, which prohibits “[v]ending, soliciting, or collecting contributions for any purpose unless authorized by management.” Accordingly, the hearing officer recommended that one of the Union’s objections be sustained and that the election be set aside. The majority maintained that the rule was not adopted in response to the union’s organizing campaign, but that it was part of a 36‑page handbook, and that only one employee
NLRB Makes Advice Memoranda More Accessible
The National Labor Relations Board has enhanced the way in which the public can search for documents posted on its Web site, particularly Advice Memoranda issued by the Office of the General Counsel. Details at Law Librarian Blog.
Of General Interest
Two (unrelated) yet very interesting columns in Slate.com posted today February 23.
Steven Landsburg, discusses the "real reason" justifying Social Security reform in Save and Save and Then Save Some More. Here is an excerpt:
"The true crisis lies elsewhere. It has nothing to do with bankruptcy, nothing to do with definitions or accounting tricks, nothing to do with lockboxes or anything else about the way the system is structured. Instead, the crisis is completely defined by the fact that in the future (as in the present) there will be only a finite number of goods to go around, and in the future (unlike in the present) there will be a lot more old people clamoring for a share.
When it comes to issues like this, I always tell my students, "Don't follow the money; follow the goods." In 2020, there will be a certain amount of food, a certain amount of aspirin, a certain number of television sets. All that matters is who gets how much. And you can't change that with accounting tricks."
Dahlia Lithwick discusses yesterday's Supreme Court oral argument in the case of Kelo v. New London in Condemn-Nation: This land was your land, but now it's my land. Here are the first couple of paragraphs:
"I've witnessed some weird moments at oral arguments over the years, but I'm thinking absolutely nothing could compare with the sight I beheld today: In the midst of argument in Kelo v. New London—a critically important case about the government's right to condemn private land and give it to private developers—the lawyer for the city of New London, Conn., pulls out an actual prop. In response to a query from Sandra Day O'Connor as to whether there's a concrete development plan for what would replace the handful of homes being condemned, Wesley W. Horton hauls out a big poster board with the whole proposed community laid out. Condos here, marina here, yank out this crappy little Victorian house and the health club will go there, he enthuses.
My heart begins to pound. I want in on this deal. And O'Connor looks like she does, too."
February 22, 2005
Labor Joke of the Week
From BigLabor.com, here is the "Labor Joke of the Week"
A young woman was looking for work and found herself at Megacorp’s human resources office. She completed a written test, then found herself face-to-face with an interviewer.
The interviewer said, “You choose: answer either ten easy questions or one very difficult one.”
The young woman thought for awhile and said, “I choose one very difficult question.”
“Well, good luck, you have made your own choice.” said the man. “Tell me, what comes first, day or night?”
The young woman waited for awhile and said, “It’s the day, sir.”
“How?” the interviewer demanded triumphantly.
.... (for the punch line click here).
Symposium on Grutter and Affirmative Action
Affirmative Action In Twenty-Five Years?
Moritz College of Law/Kirwan Institute to hold symposium February 24-25
February 11, 2005
What: Symposium on Affirmative Action
When: February 24-25, 2005
Where: Saxbe Auditorium, Moritz College of Law, 55 West 12th Avenue
Columbus, Ohio - Many of the nation's preeminent scholars will gather later this month at Ohio State's Moritz College of Law to discuss the challenge set forth by the U.S. Supreme Court's recent ruling in Grutter v. Bollinger, which suggested that in another 25 years, affirmative action may not be necessary to achieve diversity in higher education.
The symposium, co-sponsored by the Ohio State Law Journal , the Kirwan Institute for the Study of Race and Ethnicity, and the Center for Interdisciplinary Law and Policy Studies (formerly Center for Law, Policy, and Social Science), will be held Thursday and Friday, February 24-25, 2005 at the Moritz College of Law, 55 W. 12th Avenue.
Charles Ogletree, professor of law at Harvard University and outspoken civil rights attorney, will present the keynote address on Friday, February 25. In addition, nearly 20 preeminent scholars, attorneys, and education professionals will speak on various panels throughout the two-day symposium. Panel topics include "The Current State of Affirmative Action," "The Practicality and Legitimacy of the Challenge," "New and Emerging Education Reform Trends," and "Implementing Change to Meet Our Goals."
The Supreme Court of Ohio has approved the program for up to seven continuing legal education (CLE) hours. For more information or to register to attend, please contact the Ohio State Law Journal at 614-292-6829. Click here to see the program and registration information.
The symposium will be webcast live at no charge, and will be accessible here. Online participation by both individuals and groups such as classrooms is encouraged. Please contact the Ohio State Law Journal at 614-292-6829 to register for online participation. Each on-line participant will receive an e-mail address which can be used to direct questions to the panelists during the event.
Blogs and the Workplace
From LinuxInsider.com some thoughts about the various issues confronting employees who blog about work:
"When it comes to bloggers and the law, the question is whether we can apply standard legal guidelines. If not, do we need to look at blogging from another legal perspective? In the realm of intellectual property law, while the law generally lags behind new technological innovations, it does a good job of catching up when it needs to. However, do we need to move even faster to deal with the legal ramifications of blogging? Is blogging so different that is requires us to create a new set of laws?"
Bloggers' Bill of Rights Has No Legs (by Philip H. Albert)
February 21, 2005
Steven Greenhouse, (The New York Times) reports on some of the issues likely to confront delegates to the AFL-CIO convention in early March (Union Support Plan to Cut AFL-CIO Contributions). According to Greenhouse,
"Many of the nation's largest labor unions, including the Teamsters and Service Employees International Union, are pushing a plan to cut in half most unions' contributions to the A.F.L.-C.I.O. and instead devote the money to organizing workers, several labor leaders said yesterday."
Delegates will also have to consider the future of current president, John J. Sweeney,
"Union officials say Mr. Stern [Service Employees Union] and Mr. Raynor [UNITE HERE] have told other labor leaders that while they believe Mr. Sweeney is doing the best he can to reverse labor's decline, it is time for new, more forceful leadership. Mr. Sweeney is viewed as a consensus builder, who acknowledges that he has not succeeded in persuading many unions to increase their organizing as much as he had hoped."
The article also features comments by one of our own, Prof. Charles Craver (George Washington University).
""What we're seeing is a little what we saw before, when some labor leaders thought it was time to get rid of Lane Kirkland," said Charles Craver, a labor relations expert at George Washington University, referring to Mr. Sweeney's predecessor. "There's a feeling that the organization has not been moving forward. John Sweeney has tried very hard to turn things around, but if you look at the bottom line, there is no significant change. The decline has continued unabated.""
Kudos to Prof. Craver!
Selmi visits at Harvard
Professor Michael Selmi (George Washington Law Center) is visiting at Harvard Law School this semester (Spring 05). While at Harvard, Professor Selmi is teaching Employment Law and a seminar in Employment Discrimination.
Professor Selmi has written extensively in the areas of employment discrimination, employment law, and constitutional law, and his work often includes empirical analyses of litigation. His articles have appeared in many law journals including Stanford Law Review, Texas Law Review, Georgetown Law Journal, UCLA Law Review, and Virginia Law Review.
Professor Selmi also has a forthcoming book entitled Work Law. The book, coauthored with Marion Crain (West Virginia) and Pauline Kim (Washington Univ. St. Louis) in intended for use in Employment Law courses and will be available for adoption next Fall 2005.
February 20, 2005
EPI Report on the 2004 Labor Market
The Economic Policy Institute has issued its assessment of the 2004 labor market in The Lukewarm 2004 Labor Market - Despite Some Signs of Improvement, Wages Fell, Job Growth Lagged, and Unemployment Spells Remained Long by Sylvia Allegretto, Jared Bernstein, and Isaac Shapiro.
From the report's conclusion:
These problems of falling wages, inadequate job creation, long-term unemployment, and a safety net that’s failing to protect job losers have contributed to a recovery that is considerably unbalanced. The economic growth that has occurred has flowed to corporate profits to a degree unseen in the post-World War II period, leaving relatively little for compensation.8 These economic conditions stand in stark contrast to those that prevailed at the end of the last business cycle, where full employment ensured that the benefits of the growing economy lifted the living standards of working families the income scale.
The job market data presented above show that even though unemployment was at a
relatively low level in 2004 — 5.5 percent — substantial slack remains in the job market. As long as this slack remains, the negative 2004 wage trends documented above are unlikely to reverse course.
Thanks to Joe Hodnicki, editor of Law Librarian Blog for the tip.