Tuesday, November 30, 2004
The Washington Post reports that:
"Leaders of two government unions called on Homeland Security Secretary Tom Ridge to stop requiring all 180,000 department workers to sign nondisclosure agreements that prohibit them from sharing sensitive but unclassified information with the public."
The nondisclosure agreements restrict:
"disclosure of several new types of government information beyond classified data, the category "law enforcement sensitive."
The form defines as "sensitive" any information that could "adversely affect the national interest or the conduct of federal programs," a much lower barrier than damaging national security. The definition also includes information that would violate a person's privacy."
My colleague Leonard Bierman (Texas A&M Univ.) and I have recently written on the related topics of pay secrecy rules ( Pay Secrecy/Confidentiality Rules and the National Labor Relations Act, 6 Univ. of Pennsylvania J. of Labor & Employment Law 121, 2003) and employee information exchanges (The Law and Economics of Employee Information Exchange in the Knowledge Economy, 12 George Mason L. Rev. 651, 2004)
The U.S. Supreme Court hears oral argument today in Jackson, Roderick v. Birmingham Board of Education. The case raises the important issue of whether the private right of action for violations of Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., encompasses redress for retaliation for complaints about unlawful sex discrimination?
Nina Totenberg discusses the case in NPR's Morning Edition (here)
Check the newly updated website of the previously known Industrial Relations Research Association, now know as the Labor and Employment Research Association.
According to the website:
By better than a 3-1 margin, the IRRA general membership has voted the name of the Industrial Relations Association will be changed to the Labor and Employment Relations Association. The new acronym would be LERA. The vote tally was 77% for the change and 23% against the change. The change was recommended by the Executive Board and follows nearly a decade of debate and dialogue within the association. The new name was suggested by the Special Strategic Membership Committee (SSMC) as one of several new initiatives addressing membership issues in a special report presented to the Executive Board in June 2003.
John Burton, chair of the SSMC, explained the move was prompted by the increasingly narrow way in which the term "industrial relations" has come to be used. Burton's response to hearing that the membership had ratified the change was, "The vote of the members to change our name to the Labor and Employment Relations Association (LERA) is an important confirmation of the organization's relevance and vitality in the 21st century. The new name best conveys our long-standing commitment to all aspects of labor, employment, and the workplace. The realignment of our name, in conjunction with recent efforts that have added services for our practitioner and academic members, means the future for LERA is auspicious."
Monday, November 29, 2004
According to Newsday.com:
Workers' complaints about being denied overtime pay, wages and job leave guaranteed by law rose this year to the highest level in four years, the Labor Department said Wednesday. Penalties for violations and awards of back wages fell.
The department's Wage and Hour Division received 31,786 worker complaints in the federal budget year that ended Sept. 30. That compared with 31,123 complaints in 2003.
Worker Complaints of Labor Violations Rise (LEIGH STROPE)
The New York Times reports that the NBA Player's Union filed a grievance challenging the suspensions issued by the Commissioner. According to the article:
"The union requested that an arbitrator hear its grievance contesting the authority Stern had to make the decision."
"The league says there is no need for an arbitrator because under the collective bargaining agreement, the commissioner has sole authority to discipline players for their on-court actions."
It looks to me that the suspensions must be upheld. Art. XXXI, Sec. 8(a), seems to give the Commissioner pratically unilateral power in cases of "on court" infractions--see subsection (iii). It seems likely that "on court" means game-related (as opposed to drunk driving, say), and logically would cover going into the stands (think of the bad incentives if it covered on-court fights but not fights in the stands). Even if that failed, Art. XXXI Sec. 5(c)'s language about "public confidence in the game" would seem to apply, in which case the arbitrator could only use a "arbitrary and capricious" standard of review.
Professor Slater's take appears to be right on target, I think.
Sunday, November 28, 2004
A few days ago I blogged on the reported increase in legal challenges to workplace English-only rules (see here).
The Guardian reports a similar claim being filed by french workers against a U.S, company in France. According to article (French staff sue US multinational for making them use English)
French employees will accuse a US multinational in court today of discrimination, claiming that they are being forced to speak English.
They say General Electric Medical Systems is sidelining the large proportion of its workforce who speak little or no English. It encourages them to work with company documents and instruction manuals written in English."
The employees argue that:
"the company is in breach of the 1994 Toubon law, which says that all documents vital to an employee being able to work effectively must be in French. If the work ers succeed, it will create a legal precedent which will force many other US companies in France to change their practices."
Thanks to Paul Caron for the tip.
Saturday, November 27, 2004
In Unions in the 21st Century: An International Perspective, Anil Verma (Toronto) & Thomas A. Kochan (MIT), (Palgrave Macmillan, June 2004), present
a series of research essays on the state of unions in many different parts of the world. Written by leading researchers in the field it provides insights into the causes of union decline. But it goes beyond historical analyses to investigate the prospects for the future. Can unions organize in segments of the workforce such as the youth, women, low wage workers and those in the informal sector? Can unions network with other organizations such as NGOs nationally and internationally to gain power and influence?
Thanks to Joe Hodnicki for the tip.
Friday, November 26, 2004
A new report from the American Association of University Women, dealing with the issue of sex discrimnation in tenure decisions. Tenure Denied: Cases of Sex Discrimination in Academia (2004).
Here is the abstract:
Tenure Denied: Cases of Sex Discrimination in Academia (2004) is a qualitative research report based on the Legal Advocacy Fund’s archive of sex discrimination cases. Drawing on 19 cases, the report describes the difficulty of pinpointing and proving sex discrimination in the tenure promotion process. The report makes no attempt to second-guess the courts’ decisions in these cases but rather poses some hard questions raised by these cases: How can women—and other underrepresented faculty—break into highly centralized power systems where standards are self-referential and tightly controlled by a conventional “old boys’” network? What can universities learn about their systems and practices of hiring and promotion? And what is the message for policy-makers considering new programs to end sex discrimination in academia and other places of employment?
An article on the same topic in the Christian Science Monitor, Suing employer is not for faint of heart. The article notes that:
The findings of "Tenure Denied," while not that bleak, suggest that even though women now make up more than 50 percent of students and faculty on campus, and appear to "have arrived," as Annexstein puts it, they are still scarce at the top. "When you look at this level that really controls higher education," she says, "you don't see a lot of women in those positions."
Thursday, November 25, 2004
Fellow blogger, Michael P. Fitzgibbon (Borden Ladner Gervais, Toronto) has previously blogged about the same topic I raised earlier this week regarding an attempt by a group of Canadian ministers to form a labor union (see here).
According to Fitzgibbon (Thoughts From a Management Blogger), this might have been the first Canadian attempt, but that there have been others:
"I came across this article. Interesting comment in the article on "who is the employer" of the priests. Don't necessarily want to litigate that one."
To see his entire post see here.
Wednesday, November 24, 2004
- Wal-Mart’s innovations include large-scale (big box) stores, economies of scale in warehouse logistics and purchasing, electronic data interchange, and wireless barcode scanning.
- These gave Wal-Mart a 48 percent productivity advantage over its competitors, forcing them to innovate as well, thus pushing up their productivity.
- The McKinsey study found that productivity improvements in wholesale and retail trade alone accounted over half of the increase in national productivity between 1995 and 1999.
Thanks to Joe Hodnicki for the tip.
Mike Drummond, from the Charlotte Observer, notes that in announcing the appointments last week of Dr. Condoleezza Rice as Secretary of State and Margaret Spellings as Secretary of Education, President Bush might have overstepped a workplace boundary:
President Bush kissed Condoleezza Rice on the cheek last week after nominating her for secretary of state. Later, he laid a quick lip plant on Margaret Spellings, his choice for secretary of education.
Drummond points out that:
Although few would accuse the president of sexual harassment for last week's smooches, some found the public displays of affection disturbing, particularly the lip-to-lip with Spellings.
"It was weird," says Marilyn Graman, a New York psychotherapist and author of "The Female Power Within" among other works. "We're talking about moral values, and he's confusing the public on what's right and what's not."
Petrina Wells, owner of Wells Marketing Group in Philadelphia, said the kisses "crossed boundaries" and sent a wrong message that it's acceptable for male leaders to kiss female subordinates.
In case you were wondering, Alberto Gonzalez, the nominee for Attorney General, "had to settle for a good old-fashioned Texas hand pump."
Tuesday, November 23, 2004
As expected, the NBA's Players Union is likely to appeal and grieve the various suspensions handed out by NBA's Commisioner. According to Liz Robbins (New York Times):
"the chief executive of the National Basketball Association's players union, Billy Hunter, said he intended to appeal the length of the league's suspensions of the Indiana Pacers' Ron Artest, Jermaine O'Neal and Stephen Jackson. He also said the union would request arbitration for an independent review of the commissioner's unilateral power of suspension." Union and Pacers to Fight Suspensions
In addition to the various section of the CBA blogged earlier (here), the following section is also likely to come in play.
Section 8. Special Procedure with Respect to Player Discipline.
(a) Any dispute involving (i) a fine or suspension imposed upon a player by the Commissioner (or his designee) for conduct on the playing court (regardless of its financial impact on the player), or (ii) action taken by the Commissioner (or his designee) concerning the preservation of the integrity of, or the maintenance of public confidence in, the game of basketball resulting in a financial impact to the player of $25,000 or less, shall be processed exclusively as follows:
- (i)Within twenty (20) days following written notification of the action taken by the Commissioner (or his designee), a player affected thereby or the Players Association may appeal in writing to the Commissioner.
- (ii) Upon the written request of the Players Association, the Commissioner shall designate a time and place for hearing as soon as is reasonably practicable following his receipt of the notice of appeal.
- (iii) As soon as reasonably practicable, but not later than twenty (20) days, following the conclusion of such hearing, the Commissioner shall render a written decision, which decision shall constitute full, final and complete disposition of the dispute, and shall be binding upon the player(s) and Team(s) involved and the parties to this Agreement.
- (iv) In the event such appeal involves a fine or suspension imposed by the Commissioner’s designee, the Commissioner, as a consequence of such appeal and hearing, shall have authority only to affirm or reduce such fine or suspension, and shall not have authority to increase such fine or suspension.
(b) In the event a matter filed as a Grievance in accordance with the provisions of Section 2(d) gives rise to issues involving the integrity of, or public confidence in, the game of basketball, and the financial impact on the player of the action being grieved is $25,000 or less, the Commissioner may, at any stage of its processing, order that the matter be withdrawn from such processing and thereafter be processed in accordance with the procedure provided in Section 8(a).
The two months strike involving San Francisco hotel employees is over. According to the New York Times:
Unionized workers have reached an agreement with a group representing 14 luxury hotels to end an eight-week lockout, allowing about 4,000 maids, bellhops, cooks and other hourly employers to return to their jobs on Tuesday.
The workers went on strike at four hotels on Sept. 29 and were locked out at 10 others two days later. They agreed to end their strike last month, but the hotels said the lockout would continue until agreement was reached on a new contract.
According to CBC.com, "some United Church ministers in Ontario and B.C. are trying to unionize, saying they want to improve their poor working conditions. "
The ministers, continue the news report, have contacted the Canadian Auto Workers union for assistance.
Thanks to Joseph Slater (Toledo) for the tip.
Monday, November 22, 2004
Fallout of Friday's fight in the Pacers-Pistons NBA game likely to involve grievances and litigation.
On the labor side, the players' union is expected file grievances challenging the suspensions. "Billy Hunter, the executive director of the players union, called the suspension of Artest unfair and said the length of the other suspensions was "a bit egregious." One Player Barred for Season as N.B.A. Responds to Brawl, by Liz Robbins (NYT).
Here are some of the potentially relevant provisions in the collective bargaining agreement between the players' union and the NBA.
Article VI Player Conduct
Section 8. On-Court Conduct.
In addition to its authority under paragraph 5 of the Uniform Player Contract, the NBA is entitled to promulgate and enforce reasonable rules governing the conduct of players on the playing court that do not violate the provisions of this Agreement. Prior to the date on which any new rule promulgated by the NBA becomes effective, the NBA shall provide notice of such new rule to the Players Association and consult with the Players Association with respect thereto.
Article XXXI Grievance and Arbitration Procedure
Section 1. Scope.
(a) Any dispute (such dispute hereinafter being referred to as a "Grievance") involving the interpretation or application of, or compliance with, the provisions of this Agreement or the provisions of a Player Contract (except as provided in paragraph 9 of a Uniform Player Contract), including a dispute concerning the validity of a Player Contract, shall be resolved exclusively by the Grievance Arbitrator in accordance with the procedures set forth in this Article; provided, however, that disputes arising under Articles VII, VIII, X, XI, XII, XIII, XIV, XV, XVI, XXXVII, XXXIX, and XL shall (except as otherwise specifically provided by Article VII, Section 3(d)(5) above) be determined by the System Arbitrator provided for in Article XXXII.
(b) The Grievance Arbitrator shall also have jurisdiction over disputes involving player discipline to the extent set forth in Section 8 below and over disputes concerning the disposition of funds deposited in accordance with Section 9 below to the extent set forth in that Section.
Section 5. Arbitrator’s Decision and Award.
(a) Except as set forth in Section 12 below, the Grievance Arbitrator shall render an Award as soon as practicable. That Award may be accompanied by a written opinion, or the written opinion may follow within a reasonable time thereafter. In no event shall the Award or any written opinion be issued more than thirty (30) days following the conclusion of a Grievance hearing (or the submission of post-hearing briefs where applicable). The Award shall constitute full, final and complete disposition of the Grievance, and shall be binding upon the player(s) and Team(s) involved and the parties to this Agreement.
(b) The Grievance Arbitrator shall have jurisdiction and authority only to: (i) interpret, apply, or determine compliance with the provisions of this Agreement; (ii) interpret, apply or determine compliance with the provisions of Player Contracts; (iii) determine the validity of Player Contracts pursuant to Section 1 of this Article; (iv) award damages in connection with a proceeding provided for in Section 11 below; (v) award declaratory relief in connection with a proceeding initiated by a Team to determine whether such Team may properly terminate a Player Contract pursuant to paragraph 16(a) of such Contract, and what, if any, liability such Team would incur as a result of such termination; and (vi) resolve disputes arising under Article VII, Section 3(d)(5), Article XXII, Section 5, Article XXVI, and Article XXXIII in the manner set forth therein. The Grievance Arbitrator shall not have jurisdiction or authority to add to, detract from, or alter in any way the provisions of this Agreement (including the provisions of this subsection) or any Player Contract. Nor, in the absence of agreement by the NBA and the Players Association, shall the Grievance Arbitrator have jurisdiction or authority to resolve questions of substantive arbitrability.
(c) In any Grievance that involves an action taken by the Commissioner (or his designee) concerning (i) the preservation of the integrity of, or the maintenance of public confidence in, the game of basketball, and (ii) a fine and/or suspension that results in a financial impact to the player of more than $25,000, the Grievance Arbitrator shall apply an "arbitrary and capricious" standard of review.
Professor David S. Lee (Economics Department, UCB) presents “Economic Impacts of Unionization on Private Sector Employers, 1984-2001” as part of the Institute of Industrial Relations at the Univ. of California-Berkeley's Fall Seminars Series, today Monday, November 22, 2004. Here is the abstract:
Using multiple establishment-level data sets that represent establishments that faced organizing drives in the U.S. during 1984-1999, this paper uses a regression discontinuity design to estimate the impact of unionization on business survival, employment, output, productivity, and wages. Essentially, outcomes for employers where unions barely won the election (e.g. by one vote) are compared to those where the unions barely lost. The analysis finds small impacts on all outcomes that we examine; estimates for wages are close to zero. The evidence suggests that at least in recent decades the legal mandate that requires the employer to bargain with a certified union has had little economic impact on employers, because unions have been somewhat unsuccessful at securing significant wage gains.
Karen Brodkin & Cynthia Strathmann have published, The Struggle for Hearts and Minds: Organization, Ideology, and Emotion. Here is the abstract:
Labor studies scholars and union organizers agree that rank-and-file union drives are effective, even against union busters, anti-union consultants, and intransigent employers. This paper synthesizes organizers' analyses of such campaigns in Los Angeles to explain why rank-and-file union drives work. We suggest that anti-union campaigns create fairly standard and locally hegemonic anti-union workplace cultures. We examine struggles between management and unions around workplace social relations and control of space as a Gramscian war of position in which both sides seek to make their ideology and its emotional scaffolding workers' common sense. Our explanation for what successful rank-and-file strategies do also reveals some current limitations.
Sunday, November 21, 2004
Following up on this morning's post on off-the clock work, an interesting article by David Weil (Boston University, Harvard University) on enforcing minimum wage laws. Public Enforcement/Private Monitoring: Evaluating a New Approach to Regulating the Minimum Wage, 58 Industrial and Labor Relations Review (2004). Here is the abstract:
This paper examines compliance with federal minimum wage laws in the U.S. apparel industry and analyzes the impact of new methods of intervention designed to improve regulatory performance. Drawing on data from a randomized survey of apparel contractors, the author evaluates the impact of agreements between manufacturers and the government used to monitor contractor behavior as a means of improving compliance outcomes. Several non-regulatory variables predicted by theory to be important influences - the level of work skills, for example, and product market factors related to the elasticity of labor demand - are indeed found to be correlated with compliance. Nonetheless, stringent forms of contractor monitoring are associated with substantial reductions in violations of minimum wage standards. The results suggest that well-designed private/public monitoring efforts can lead to significant improvements in compliance with labor standards.
In Forced to Work Off the Clock, Some Fight Back, Steven Greenhouse (NYT) reports on the issue of off-the clock work in Friday's paper. According to Greenhouse, the problem is widespread:
Over the last year, the Labor Department has brought enforcement actions against several companies that required off-the-clock work, seeking back pay and demanding compliance. The agency has grown more aggressive after plaintiffs' lawyers filed scores of off-the-clock lawsuits, some resulting in multimillion-dollar settlements with prominent companies, including Radio Shack and Starbucks.
In April, the Pleasantview Healthcare Center of Bolivar, Tenn., paid $44,887 in back wages after the Labor Department found off-the-clock violations involving 41 employees - many of them clocked out while finishing their daily tasks. In February, the department recovered $180,000 from the Hanna Steel Corporation after finding that 522 employees had been forced for months to begin work five minutes before their regular shifts started.
Last November, the Labor Department announced a $4.8 million back-wages settlement with T-Mobile, the wireless telephone company, after finding that it had forced 20,500 call-center employees to work off the clock by making them show up 10 to 15 minutes before their scheduled clock-in time.