Friday, April 22, 2011
Paul Secunda (Marquette) recently participated on a discussion on New York Public Radio show that discussed employers politicizing the workplace and how those action fit under the Citizens United decision. The issue recently care to the fore as a result of revelations about Koch Industries urging its employees how to vote. The show involved:
Supreme Court ruling Citizens United removed financial limitations on how much corporations could give to political campaigns. But a lesser known part of that decision also nullified another law which restricted a corporation’s ability to advocate for certain political candidates and party platforms in the workplace. In essence, your boss can now tell you who he or she is voting for, and why.
In this week's The Nation magazine, Mike Elk broke the story about Koch Industries management sending an urgent letter to most of its 50,000 employees before the midterm elections last year, advising them on who to vote for at the polling station. Under the Citizens United decision, this is perfectly legal. Mike Elk and Paul Secunda, associate professor of law at Marquette University Law School, who specializes in employment law discuss this trend. They both say we'll probably be seeing a lot more of this kind of action in the 2012 election season.
Check it out.
Sara Slinn (Osgoode York) sends us word that public sector bargaining is quite healthy in Canada. Here is Sara's description of the latest:
A recent Supreme Court of British Columbia decision, BC Teachers’ Federation v. British Columbia vividly highlights the crucial difference now existing in governments’ ability to regulate and restrict public sector bargaining in Canada compared to the US. This is especially timely given the recent storm of state legislation limiting bargaining rights and removing collective agreement provisions for public sector workers, and teachers specifically.
In this BC decision, the Court held that certain provisions in legislation limiting the scope of teacher collective bargaining was contrary to the Charter guarantee of the freedom of association, and not a limit demonstrably justified in a free and democratic society. The declaration of invalidity was suspended for 12 months to permit the government to address this decision. The impugned legislation (Bills 27, 28, and some executing legislation) were companion statutes to Bill 29 which gave rise to the well-known Supreme Court of Canada decision: BC Health Services, which established that the Canadian Charter protection of freedom of association included a limited right to collective bargaining.
The Court held that sections of Bill 28 and an Amendment Act are unconstitutional. These provisions prohibited collective terms relating to class size or composition, student-teacher ratios, case and teaching loads. Any collective agreement terms relating to these matters were deemed void, and any terms that might require bargaining to replace the void terms were prohibited. Bill 28 also provided for arbitration to determine which collective agreements existing at the time of the legislation were void under Bill 28, and the impugned provision of the Amendment Act reinstated the arbitral decision after it was overturned by the BC Supreme Court. This legislation resulted in hundreds of terms of the provincial teachers’ collective agreement being voided and removed from the collective agreement (Provincial). The Court found, however, that the challenged provision of Bill 27, which provided for merger of local collective agreement schedules following a merger of school districts, did not violate the freedom of association.
This decision, coming in the midst of teacher bargaining in BC, is a significant win for the teachers’ union which has contested this legislation since its passage in 2002. The government has been determined that the matters removed from bargaining under Bill 28 are matters of public policy that are not appropriate to be negotiated.
Thursday, April 21, 2011
The NLRB's General Counsel has issued a complaint alleging violations of Sections 8(a)(1) and 8(a)(3) resulting from Boeing's transfer of work from its unionized Washington plant to its non-union South Carolina plant. The complaint is based on statements by Boeing in which it told employees that the move was caused by past and the possibility of future strikes. According to the NLRB press release:
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.
Boeing announced in 2007 that it planned to assemble seven 787 Dreamliner airplanes per month in the Puget Sound area of Washington state, where its employees have long been represented by the International Association of Machinists and Aerospace Workers. The company later said that it would create a second production line to assemble an additional three planes a month to address a growing backlog of orders. In October 2009, Boeing announced that it would locate that second line at the non-union facility.
In repeated statements to employees and the media, company executives cited the unionized employees’ past strike activity and the possibility of strikes occurring sometime in the future as the overriding factors in deciding to locate the second line in the non-union facility.
The NLRB launched an investigation of the transfer of second line work in response to charges filed by the Machinists union and found reasonable cause to believe that Boeing had violated two sections of the National Labor Relations Act because its statements were coercive to employees and its actions were motivated by a desire to retaliate for past strikes and chill future strike activity.
“A worker's right to strike is a fundamental right guaranteed by the National Labor Relations Act,” Mr. Solomon said. “We also recognize the rights of employers to make business decisions based on their economic interests, but they must do so within the law. I have worked with the parties to encourage settlement in the hope of avoiding costly litigation, and my door remains open to that possibility.”
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. The complaint does not seek closure of the South Carolina facility, nor does it prohibit Boeing from assembling planes there.
Absent a settlement between the parties, the next step in the process will be a hearing before an NLRB administrative law judge in Seattle, set for June 14, at which both parties will have an opportunity to present evidence and arguments.
The EEOC’s Los Angeles district office filed suit in Hawaii (Civ. No. CV-11-00257-DAE-RLP) against Global Horizons, the labor broker, and six farms there; and a separate suit filed in Washington (Civ No. 2:11-cv-03045-EFS), against Global Horizons and two farms in that state, alleging that Global brought more than 200 Thai men into the country to work as farm workers on the promises of high-paying wages and temporary visas. Once in the country, the workers had their passports confiscated and were threatened with deportation if they complained. They were employed on the eight farms named in the two lawsuits, where they received low wages - far less than promised, forced into vermin-ridden housing, denied the opportunity to leave the premises, and subjected to harassment, including physical assaults, by their overseers. Further, the workers had to pay large sums to Global as recruitment fees, putting them and their families back in Thailand severely in debt, making it impossible for them to leave, even had they been permitted to.
In a separate suit, the Birmingham, Ala., office of the EEOC filed suit in Mississippi charging that Signal International, a marine services company with facilities along the Gulf Coast, subjected at least 500 Indian welders and pipe-fitters at its Mississippi and Texas locations to segregated facilities and discriminatory terms and conditions of employment. These workers, brought into the country by a separate entity not part of the lawsuit, were forced to live in Signal’s substandard, unsanitary accommodations, for which they were charged an inordinate amount, given unwholesome food, demeaned by being referred to by numbers instead of their names, and at least two of them were retaliated against for complaining about the substandard conditions and discrimination.
Here's the CNN report on the suits. The living and working conditions in Hawai'i and Washington State sound awful -- but also sound more like FLSA violations than Title VII violations. Is this a case that would better have been brought by the Department of Labor?
Hat tip: Carol Furnish.
Wednesday, April 20, 2011
As we noted, the results of the TSA screeners' vote on unionization was due today and they're in. It was a nailbiter: 8,369 votes for the American Federation of Government Employees; 8,095 votes for the National Treasury Employees Union; and 3,111 votes for no union. As a result, there will be a runoff in a couple of months between the choices of AFGE and NTEU.
For anyone with articles in the works, that you're aiming to finish up over the summer, this announcement is for you.
The Saint Louis Law Journal is proud to announce its labor and employment themed Symposium Issue for Volume 56 (2011-12). Articles in this issue will accompany articles presented last fall at the Fifth Annual Colloquium on Current Scholarship in Labor & Employment Law.
The Journal is currently accepting scholarly papers and paper proposals for publication in this issue. We anticipate publishing the issue in late fall 2011, and therefore would need a final draft of all accepted papers or proposals by August 1, 2011. Articles for this issue are generally between 25 and 40 pages long. Please send drafts or proposals to Stacy Osmond, Symposium Managing Editor, at email@example.com.
Tuesday, April 19, 2011
Just a couple of the many recent additions to the growing debate over the role of unions in the U.S. On the anti-union side is a recently enacted law in Oklahoma requiring parental consent before a minor can join a union (BNA, subscription required). Apparently unique in the U.S., the law appears to be target to grocery stores, where many UFCW members are under 18 years old. The law was passed with overwhelming support in the legislature, although it could face a preemption challenge.
The AFL-CIO, on the other hand, is trying to turn attention to a different foe: corporate CEOs. Citing the new Dodd-Frank measure that requires companies disclose the ration of CEO's pay to the median worker's, it has started a new website, 2011 Executive Paywatch, which gives a bunch of facts on executive compensation in relation to workers'.
It will be interesting to see how all this activity plays out over the next few years, especially if the labor market improves.
Hat Tip: Dennis Walsh
Michael J. Hiscox (Harvard), Michael Broukhim (Stanford), Claire Litwin (Harvard), and Andrea Woloski (Harvard) have just posted on SSRN their groundbreaking new article Consumer Demand for Fair Labor Standards: Evidence from a Field Experiment on eBay. Here's the abstract:
Surveys indicate that a majority of consumers would prefer to buy products made in workplaces with fair labor standards rather than alternatives and would be willing to pay a higher price for such products. There is no clear evidence, however, that many people would actually behave in this fashion when shopping. We provide new evidence on consumer behavior from experiments conducted on eBay. We find that labels with information about certified fair labor standards in factories making polo shirts had a substantial positive effect on bidding. On average, shoppers paid a 45% premium for ethically labeled versus unlabeled shirts.
The implications are enormous, particularly for international labor standards. It's consistent with what Better Work has found in Southeast Asia -- people will pay a premium for products made with fair labor practices. The key is creating a trustworthy way of distinguishing fair-labor products from non-fair-labor products.
Monday, April 18, 2011
Stephen Greenhouse (New York Times) has an article on the current voting among TSA airport screeners on unionizing, a story we've been following for a while. In addition to the debate over the effect of unionization on security that we've been hearing for years now, the article does a nice job illustrating why employees may want a union that can't bargain directly over wages or benefits. It reminded me of when I was in the NLRBPA union, where the two sides had some tense disputes over largely non-economic issues, but issues that the employees cared a lot about; a reminder that voice and respect can often be as important as wages. A sample of the article:
At the same time, it is hard to see the benefit of a union for the screeners because federal employee unions, except postal workers, are generally not allowed to bargain over wages, health benefits or pensions, all of which are usually set by law.
The air traffic controllers are represented by the National Air Traffic Controllers Association, which was founded in 1987, six years after President Ronald Reagan disbanded a previous air traffic controllers’ union for engaging in an illegal strike.
But the Obama administration asserts that unionization will improve low morale and lead to better performance and service to the public from screeners, who have the often-difficult job of herding impatient passengers and deciphering X-rays.
Many T.S.A. workers are eager to have a union bargain for them over uniform allowances, parking and clearer rules on sick leave, work shifts, transfers to different airports and awarding promotions. And ask a few screeners about morale, and you will quickly get an earful.
“It’s a tough place to work, and I’ve seen a lot of people leave because of the stress,” said Marie LeClair, a screener for eight years at Logan International Airport in Boston. “We’re the black sheep of the federal government. There are no work floor regulations for us so when there’s an issue, management’s attitude is: ‘It’s our way or the highway.’ ”
Stacy Bodtmann, who earns $39,000 after nine years as a screener at Newark Liberty International Airport, said screeners “don’t have any voice on the job.”
“People are very enthusiastic about a union,” she added. “People feel the union is going to change things and help improve morale, help with scheduling and training and pay issues.”
Even though Congress sets their pay levels, many T.S.A. employees hope a union will help change the agency’s system for determining how workers get raises, a system they say is opaque and riddled with favoritism.
“What they’re looking for is fairness and transparency and not a workplace that is driven by favoritism or who you know,” said Colleen M. Kelley, president of the National Treasury Employees Union, which, along with the American Federation of Government Employees, is trying to woo the workers.
Justin Bourque, a former Army corporal and now a behavior detection officer at Newark, said T.S.A. workers were not treated with respect.
“I was treated with more respect and more like an adult when I was in the military, where I had no rights,” he said, complaining that when a worker made a mistake, there was no effort to retrain, often just a blanket admonition not to repeat the error. “The management staff treats us like we’re children.”
The employees are voting among three choices: no union, AFGE, or NTEU. The results will be announced on Wed., although there could be a run-off if no choice win a majority.
The Employee Rights and Employment Policy Journal has issued a call for papers on The Workplace Law Agenda of the Obama Administration. Here, courtesy Ruben Garcia (Cal Western), is a description of the call:
The record of President Obama’s Administration on workplace law is like many of its other domestic priorities – a work in progress. While health care and financial regulation occupied much of the space in the public mind, labor and employment law changes were actually one area where the new administration exerted relatively quick change in the first two years of his presidency. Indeed, the first bill that was signed by the President soon after his inauguration was the Lily Ledbetter Fair Pay Act, a bill intended to reverse the results of a Supreme Court decision on the statute of limitations for a Title VII gender pay disparity case. Since then, there have been some executive and regulatory initiatives. With the Lily Ledbetter Act being the rare piece of workplace legislation passed in the last two years, however, the time is right to assess the Obama’s Administration record and agenda for workplace law.
In a special issue of the Employee Rights and Employment Policy Journal (EREPJ), we seek to assess the record of the Obama administration in its first two years and the future of workplace law as the 2012 election approaches. We seek submissions in all areas of workplace law, including Labor Law, Employment Law, Employment Discrimination, Employee Benefits, and related fields. As usual, the EREPJ offers authors the opportunity to work with faculty editors rather than law students. If you are interested in participating, please send your abstracts to Ruben Garcia, Symposium Editor, no later than May 15, 2011. Final papers will be due January 31, 2012. If you have any questions in the meantime, please also send an e-mail to Professor Garcia. We look forward to working with you!
Symposium on Lawyer and Law Firm Disputes
43 Texas Tech Law Review (2011)
- Robert W. Hillman, Law Firm Risk Management in an Era of Breakups and Lawyer Mobility: Limitations and Opportunities, 449.
- Douglas R. Richmond, The Contemporary Legal Environment and Employment Claims Against Law Firms, 471.
- Cheryl L. Anderson & Leonard Gross, Discrimination Claims Against Law Firms: Managing Attorney-Employees from Hiring to Firing, 515.