Workplace Prof Blog

Symposium on New Ways of Organizing

The Berkeley Journal of Employment and Labor Law (BJELL) and the Berkeley La Raza Law Journal (BLRLJ) announce their upcoming symposium: Making Movements: Communities of Color and New Ways of Organizing Labor, on Friday April 8th, 2005. The symposium,

is, in part, the continuation of a dialogue inititated in 2001 between BJELL & BLRLJ in a symposium entitled “The Changing Face of Labor.” Four years later our missions, mandates, and voices reunite. The goal of “Making Movement” is to spotlight those organizations advocating for and advancing the rights of working communities of color in the United States and south of our border. The decline of unions over the past 10 years coupled with the growing number of immigrant workers and workers of color in the Unites States demand a rethinking of traditional models of organizing labor. This paradigm shift also begs the question of how we—up-and-coming attorneys, legal scholars, and community advocates— can use our skills to advocate on behalf of underrepresented communities. Workers’ rights are human rights. Join BJELL and BLRLJ as we come together to make movement.

For a complete list of speakers and panels see here.

27th Piper Lecture at Chicago-Kent

Chicago-Kent College of Law presents the 27th Annual Kenneth Piper Lecture in Labor and Employment Law.  This year's lecture addresses:

The Aging of the American Workforce

This year's Piper lecture will examine America's approach to its older workers over the past 50 years and likely future directions in light of a workforce that will age even without appreciable increase in participation rates. Will employers face labor and skills shortages that prompt them to find ways to attract and retain older workers? If so, will the available jobs appeal to older workers? What types of legal and institutional barriers do workers face in their search for employment and employers face in any efforts to hire and retain older workers? Dr. Sara E. Rix (Public Policy Institute of the AARP) will focus her presentation on these and other challenges facing an aging America and on the shared responsibility of government, business, labor and workers in guaranteeing a productive workforce and promoting equitable opportunities for workers of all ages.

The lecture will take place Tuesday, April 5, 2005.

In addition to Dr. Rix, the lecture will feature commentary by:  David D. Kadue (Seyfarth Shaw LLP) and Shaun O'Brien (AFL-CIO Public Policy Department).

New Research on the Role of Health Benefits in an Employer's Compensation Strategy

Health Benefits and Wages: Minimizing Total Compensation Cost
By Nolan Miller
Harvard University Kennedy School of Goverment Faculty Research Working Paper Series

Abstract:
This paper studies the role of health benefits in an employer's compensation strategy, given the overall goal of minimizing the total compensation expense (wages plus health-insurance cost) for a fixed number of workers. The employer's basic benefit package consists of a base wage and a moderate health plan. It may also offer the option of upgrading to a generous health plan for an additional surcharge. Optimally, the base wage is set in order to balance the total wage bill against the expected cost of health care. In setting the charge for generous coverage the employer acts as a monopolist who sells generous health plans to its employees. The cost-minimization approach is shown to be less vulnerable to adverse selection than other common approaches to the pricing of health benefits, but it may result in excluding some healthy workers from employment

DOL's Briefing on Economic and Labor Market Conditions

Almost every week since 11 September 2003, the Department of Labor's Employment and Training Administration has prepared a "Briefing on Economic and Labor Market Conditions" to provide Department employees with capsule articles on employment and economic news. With the exception of one leaked issue, these reports have never been made available to the public until now. The MemoryHole has them available as a free download.

Thanks to the Law Librarian Blog for the tip.

NBER Report on Labor Market Impact of High-Skill Immigration

The Labor Market Impact of High-Skill Immigration
by George J. Borjas  -  #11217 (LS)

Abstract:

The rapid growth in the number of foreign students enrolled in American universities has transformed the higher education system, particularly at the graduate level. Many of these newly minted doctorates remain in the United States after receiving their doctoral degrees, so that the foreign student influx can have a significant impact in the labor market for high-skill workers. Using data drawn from the Survey of Earned Doctorates and the Survey of Doctoral Recipients, the study shows that a foreign student influx into a particular doctoral field at a particular time had a significant and
adverse effect on the earnings of doctorates in that field who graduated at roughly the same time. A 10 percent immigration-induced increase in the supply of doctorates lowers the wage of competing workers by about 3 percent.

Weekly summary of NLRB Decisions

A & A Insulation Services, Inc. (22‑CA‑24669; 344 NLRB No. 27) Hazlet, NJ Feb. 28, 2005.

The Board granted the General Counsel’s motion for summary judgment with respect to all issues except those relating to the use of Camilo Guzman as a replacement employee for discriminatee Ken Johnson and the inclusion of Guzman’s earnings from January 5, 2002 to February 9, 2002 in Johnson’s proposed reimbursement.  It concluded that the amounts due discriminatees James Cunningham and Keith Wagner are as stated in the compliance specification, and ordered the Respondent to pay the amounts, plus interest accrued to the date of payment.  The Board ordered a hearing limited to the issues relating to the use of Guzman as a replacement employee in the calculation of the backpay due to discriminatee Johnson.

In an unpublished order dated November 4, 2002, the Board directed the Respondent to make whole discriminatees Cunningham, Johnson, and Wagner for any loss of earnings and other benefits suffered as a result of the Respondent’s discrimination against them.  On April 30, 2003, the U.S. Court of Appeals for the Third Circuit entered an unpublished judgment enforcing the Board’s order.

A controversy having arisen over the amount of backpay due the discriminatees under the Board’s order, the Regional Director issued a compliance specification and notice of hearing identifying the amounts of backpay due.  The Board found that the Respondent’s answer is sufficiently specific under the Board’s Rules and Regulations to warrant a hearing on the appropriateness of the use of Guzman as a replacement employee for Johnson in the calculation of backpay due Johnson and denied the General Counsel’s motion for summary with respect to those issues.  It deemed the other allegations in the compliance specification to be admitted as true and granted summary judgment as to them because the Respondent failed to deny the allegations in the manner prescribed in Section 102.56(b), or to explain its failure to do so.

Bliss Clearing Niagara, Inc. Hastings, MI Feb. 28, 2005.

In affirming the administrative law judge’s findings, the Board held that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging employees Mike Shapley and Duane Schantz because they participated in protected union activities; violated Section 8(a)(1) by threatening, verbally harassing, and interrogating its employees, and by creating an impression of surveillance of its employees; and violated Section 8(a)(1) and (4) by depriving employees Larry Moran of the opportunity to work an additional shift due to his participation in proceedings before the National Labor Relations Board.

Clarian Health Partners, Inc. (25‑RC‑10225; 344 NLRB No. 28) Indianapolis, IN Feb. 28, 2005.

After consideration of the Employer’s request for review of the Regional Director’s Decision and Direction of Election, the Board reversed the Regional Director’s unit determination and remanded this case for further proceedings.

The Regional Director found appropriate the petitioned-for multifacility unit of skilled maintenance employees at the Employer’s Indiana University Hospital (IU) and James Whitcomb Riley Hospital for Children (Riley). The Employer contended that the appropriate unit should also include skilled maintenance employees at its Methodist Hospital (Methodist) and four satellite facilities.

In determining whether a petitioned-for multifacility unit is appropriate, the Board evaluates the following factors: employees’ skills and duties; terms and conditions of employment; employee interchange; functional integration; geographic proximity; centralized control of management and supervision; and bargaining history. Laboratory Corp. of America Holdings, 341 NLRB No. 140 (2004); Bashas’, Inc., 337 NLRB 710 (2002). Evaluating the above factors, the Board found, contrary to the Regional Director, that the petitioned-for unit which includes employees only at IU and Riley, but not at Methodist, is not an appropriate unit for bargaining. It found that there is evidence of contact and interchange among employees at all three hospitals. The Board found that the skilled maintenance employees at IU and Riley do not share a community of interest distinct from that shared with skilled maintenance employees at Methodist; and that the employees at Methodist do not share a community of interest among themselves distinct from that they share with employees at IU and Riley. Accordingly, the Board deemed the petitioned-for unit inappropriate. As the Petitioner has not taken a clear position in regard to its willingness to proceed to an election in a unit different than the one found appropriate by the Regional Director, the case was remanded to the Regional Director for further appropriate action.

Foundation Press to Publish Labor Law Stories

Foundation Press is pleased to announce the forthcoming publication of Labor Law Stories, edited by Laura J. Cooper (Minnesota) & Catherine L. Fisk (Duke).  The book is part of Foundation Press's Law Stories Series of books.  Here are the cases and authors featured in Labor Law Stories:

• NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938), by Julius G. Getman (Texas) & Thomas C. Kohler (Boston College)
• Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192 (1944), by Deborah Malamud (NYU)
• NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956) & NLRB v. Insurance Agents’ Int’l Union, 361 U.S. 477 (1960), by Kenneth G. Dau-Schmidt (Indiana)
• The Steelworkers Trilogy, by Katherine Van Wezel Stone (UCLA)
• NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), by Laura J. Cooper (Minnesota) & Dennis R. Nolan (South Carolina)
• Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975), by Marion Crain (North Carolina) & Calvin William Sharpe (Case Western)
• First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), by Alan Hyde (Rutgers)
• Electromation, Inc., 309 NLRB 990 (1992), by Robert B. Moberly (Arkansas)
• NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001), by Marley Weiss (Maryland)
• Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002), by Catherine L. Fisk (Duke) & Michael M. Wishnie (NYU)

Joke and Cartoon of the Week

This week comic relief from BigLabor.com. 

For this week joke see here.  For the Cartoon of the Week see here.

LERA's New Initiative

The Labor and Employment Relations Association (previously the IRRA) announces a new initiative with the creation of Industry Councils.

Industry Councils represent a bold new initiative for the LERA, building on a long tradition of industry-focused analysis and publications by the Association. A network of tri-partite industry councils is envisioned, with organizing efforts already underway in aerospace, airline, automotive, construction, health care, public sector, steel, and other industries. Enabled with a major grant from the Alfred P. Sloan Foundation, this initiative represents a key structural addition to the Association - complementing the work of the National Organization, the Local Chapters, and the various Sections that have been established.

For complete details see here.

NBER Report on Final-Offer Arbitration

Strategic Bargaining Behavior, Self-Serving Biases, and the Role of Expert Agents: An Empirical Study of Final-Offer Arbitration by Orley Ashenfelter, Gordon B. Dahl - #11189 (LS)

Abstract:

In this paper we study the complete evolution of a final-offer arbitration system used in New Jersey with data we have systematically collected over the 18-year life of the program. Covering the wages of police officers and firefighters, this system provides virtually a laboratory setting for the study of strategic interaction. Our empirical analysis provides convincing evidence that, left alone, the parties do not construct and present their offers as successfully as when they retain expert agents to assist them. In principle, expert agents may be helpful to the parties for two different reasons: (a) they may move the arbitrator to favor their position independently of the facts, or (b) they may help eliminate inefficiencies in the conduct of strategic behavior. In this paper we construct a model where the agent may influence outcomes independent of the facts, but where the agent may also improve the outcomes of the process by moderating any self-serving biases or over-confidence that may have led to impasse in the first instance. Our data indicate that expert agents may well have had an important role in moderating self-serving biases early in the history of the system, but that the parties have slowly evolved to a non-cooperative equilibrium where the use of third-party agents has become nearly universal and where agents are used primarily to move the fact finder's decisions.

Thanks to Joe Hodnicki, editor of Law Librarian Blog, for the tip.

8th Cir. Decision Involving Wal-Mart

The 8th Circuit issued a decision in Wal-Mart v. NLRB.

The issues in the case are whether the following incidents constitutes solicitation: 1) when employee wore a t-shirt which read, "Sign a card.... Ask me how"; 2) when he had conversations with co-workers about attending a union meeting; 3) when he asked a co-worker to sign a union authorization card. The Board held that none of these actions constituted solicitation.  The 8th Cir. agreed with the Board as to the first two incidents.  Regarding the last incident the Court held that the employee's action constituted solicitation even though he did not actually offer a card at the time he asked the co-worker to sign.

Judge Bright dissented in part, disagreeing with the majority regarding the last incident.

More on blogs at work

Anick Jesdanun of The Arizona Republic, describes some of the most famous cases of employees who have been fired for blogging about their jobs, Ellen Simonetti ("Queen of the Sky"), Mark Jen (Google) and Heather Armstrong (Dooce.com).  Jesdanun notes that :

"Though many companies have Internet guidelines that prohibit visiting porn sites or forwarding racist jokes, few of the policies directly cover blogs, or Web journals, particularly those written outside of work hours."

The article also quotes several experts regarding the state of the law in this developing area.

Web blogs get workers in trouble (by Anick Jesdanun)

Prof. Green new scholarship

Professor Michael Z. Green, (Texas Wesleyan) has been very busy in the scholarship front.  Among his upcoming articles are:

Finding Lawyers for Employees in Discrimination Disputes as a Critical Prescription for Unions to Embrace Racial Justice, 7 Univ. Penn. J. Lab. & Empl. L. 55.  The article asserts that unions and employees may be able to agree about seeking racial justince in the unionized and non-unionized workplace by addressing on significant problem - the inability of employees to find legal counsel in employment discrimination disputes.

An Essay Challenging the Racially Biased Selection of Arbitrators for Employment Discrimination Claims, 4 J. of American Arb. (forthcoming 2005).  The article attacks the dearth of arbitrators of color involved in handling employment discrimnation claims and suggests the legal challenge to such practices under section 1981.

Addressing Race Discrimination Under Title VII After Forty Years:  The Promise of ADR as Interest-Convergence, 48 Howard L.J. (forthcoming 2005).  The article discusses the value of ADR for handling Title VII race discrimination claims when merged with concerns of employers about valuing workplace diversity.

Tackling Employment Discrimination with ADR: Does Mediation Offer a Shield for the Haves or Real Opportunity for the Have-Nots?, 26 Berkeley J. Emp. & Lab. L. (forthcoming 2005).  The article argues for more employers to use mediation in resolving employment discrimination claims.

Recent Congressional Research Service Reports on FLSA Issues

Law Librarian Blog posted a bibliography of recent Congressional Research Service reports today, including the following labor-related reports:

COMPUTER SERVICES PERSONNEL: OVERTIME PAY UNDER THE FAIR LABOR STANDARDS ACT
Publication Date:  02/07/2005
Author(s):  William G. Whittaker, Domestic Social Policy Division
No. of Pages:  7
Document No.:  RL30537

TREATMENT OF WORKERS WITH DISABILITIES UNDER SECTION 14(C) OF THE FAIR LABOR STANDARDS ACT
Publication Date:  02/09/2005
Author(s):  William G. Whittaker, Domestic Social Policy Division
No. of Pages:  37
Document No.:  RL30674

See also:

RETIREMENT BENEFITS FOR MEMBERS OF CONGRESS
Publication Date:  01/21/2005
Author(s):  Patrick Purcell, Domestic Social Policy Division
No. of Pages:  13
Document No.:  RL30631

Prof. Secunda's on Public Employees Privacy Rights

Prof. Paul Secunda (Mississippi) has published, Lawrence's Quintessential Millian Moment and its Impact on the Doctrine of Unconstitutional Conditions, 50 Vill. L. Rev. 117 (2005).  Professor Secunda argues that Lawrence v. Texas’ innovative approach to substantive due process will have beneficial consequences for public employee privacy rights. In particular, he argues that the doctrine of unconstitutional conditions requires a constitutional balancing between the public right to maintain the discipline of the service against an employee’s heightened interests in privacy and intimate association recognized in Lawrence. He uses the example of faculty-student consensual relationship policies at public universities as a model to argue that more emphasis should be given to the personal autonomy rights of employees in the public workplace when employers seek to regulate the private lives of their employees.

Report on Language Diversity in the US

The U.S. English Foundation recently issued a report on linguistic diversity in the U.S.

"The report details the languages spoken in the nation, each of the 50 states, 3,141 counties and more than 200 metropolitan areas. Using data gathered from Census 2000, Many Languages, One America provides an extensive look at the breakdown of every language from Abnaki to Zuni in every county from Abbeville County, S.C., to Ziebach County, S.D....

Of the 322 languages spoken in the United States, 93 had more than 10,000 speakers and 38 had more than 100,000 speakers. English was the most common language spoken in every state, although four languages (English, Spanish, Navaho, and Yupik) were most common in at least one U.S. county. In all, 192 languages placed among the 10 most common in at least one county and 60 languages placed in the 10 most common in at least one state."

The complete report, Many Languages, One America, is available here.

NLRB Recent Developments

The NLRB recently issued its decision in, Family Fare d/b/a Glen’s Market (7‑RC‑22118; 344 NLRB No. 25) Oscoda, MI Feb. 22, 2005. 

The Board adopted the hearing officer’s recommendation to overrule the Employer’s objections and certified the Petitioner (Food & Commercial Workers Local 87) as the exclusive collective-bargaining representative of the employees in the appropriate unit.  The tally of ballots showed 28 for and 20 against, the Petitioner, with 8 challenged ballots.  One of the challenges was resolved by stipulation of the parties before the hearing and as a result, the remaining challenged ballots are not determinative.

Relying on the Sixth Circuit’s decision in Harborside Healthcare Inc. v. NLRB, 230 F.3d 206, 212 (6^th Cir. 2000), the Employer argued that the prounion activities of Deli Manager Vicki Doran and Bakery Manager Matt Kovachevich prior to the election had interfered with employees’ free choice.  In overruling the objections, the hearing officer held that even assuming that the department managers were statutory supervisors, their conduct was not objectionable because it was devoid of any threats of reprisal or promises of benefit

In an earlier determination, the Regional Director found that the department managers are statutory supervisors solely because they have authority to evaluate employees, and their independent assessment of an employee’s progress determines how the employee will fare under the reward system.  This authority extended only to the employees in each manager’s department.  The Board concluded that because there was no evidence in the record that Doran and Kovachevich directed their prounion activities toward any employee over whom they exercised their supervisory authority, their conduct could not reasonably have coerced or interfered with employees’ free choice in the election.

Workplace Romance

On the aftermath of Boeing CEO's termination as the result of a consensual affair with a female Boeing executive, several newspapers report on issues related to workplace romances.  Here is a summary:

The Arizona Republic, Affairs in the workplace getting heightened scrutiny, by Jane M. Von Bergen:

Memo to chief executives: This is probably not the best time to have an affair with an employee.

That's a lesson that Boeing Co. Chief Executive and President Harry Stonecipher, 68, learned the hard way Sunday when he was asked to resign for what the Chicago-based defense and aerospace company said Monday was a breach of its code of conduct.

The breach stemmed from a relationship, said to be consensual, that Boeing said Stonecipher, a married man, had with a female Boeing executive, who was not a direct report.

The Atlanta Journal Constitution, Some employers try to set rules for love, by Tammy Joyner:

Monday's abrupt ouster of Boeing's top executive illustrates how U.S. companies, pressured by more stringent ethics laws and codes of conduct, may begin clamping down on all sorts of behavior at work.

Even romance.

"The lines are being drawn," said John Challenger, a Chicago-area outplacement executive who tracks workplace trends.

Already reeling from one scandal, the Chicago-based airplane maker and defense contractor may be trying to pre-empt another by forcing out Chief Executive Harry Stonecipher. Stonecipher is the second CEO to leave Boeing in the past 15 months. His predecessor left amid a defense contracting scandal that led to two other executives going to prison.

ABC News, Corporate America Confused About Workplace Dating:

Overall, however, workplace experts say, corporate America is confused and contradictory on this issue.

"Some companies just don't manage consensual relations at all," said sexual harassment attorney Kathleen Peratis. "They just freak out and don't know what to do."

Stonecipher was not fired for having an extramarital affair, but for potentially embarrassing Boeing. He reportedly sent his lover graphic e-mails that could potentially have become public.

He is the second Boeing CEO to leave in the past 15 months. Given that Stonecipher was hired to clean up Boeing's image after a series of ethical scandals, he has acknowledged the firing was justified.

Labor Relations Asia-Pacific

New book edited by Roger Blanpain, Labour Relations in the Asia-Pacific Countries.

Important issues concerning labour and industrial relations necessarily arise as markets among the countries around the Pacific Ocean become more integrated. With economic activity levels as different as that of the United States and that of Papua New Guinea, and with labour forces ranging in size from that of China to that of the Sultanate of Brunei not to mention a vast spectrum of diverse cultural standards and customs this important regional grouping demands the attention of labour law specialists if trade integration is to proceed amicably and to the benefit of all.

In this valuable book sixteen academics and other professionals in the field present informed and insightful essays on aspects of labour and industrial relations law in ten countries (Australia, Canada, Chile, China, Japan, Korea, Mexico, New Zealand, Peru, and the United States) as well as under the ASEAN regime. Among the imperative issues these authors elucidate are the following:

collaboration within the firm to raise productivity;

the need for competitiveness among firms;

the importance of human relations and social responsibility;

the development of social security policy; and

reducing the risk and absorbing the benefits of integration under conditions of rapid social and industrial change.

These papers were originally presented in 2001 in a report by the Peruvian labour journal An lisis Laboral, in response to a request by the Regional Office of the International Labour Organisation for a study of employment conditions, labour relations, and social security in the APEC countries as seen from a Latin American perspective. It was immediately apparent that many of the papers in this report were of great value to the international labour law community, and accordingly those papers are collected and reprinted here.

For the table of contents see here.

Minimum Wage

Senate defeats minimum wage hike proposal:

The Senate defeated dueling proposals Monday to raise the $5.15-an-hour minimum wage one backed by organized labor, the other salted with pro-business provisions in a day of skirmishing that reflected Republican gains in last fall's elections.

Both plans fell well short of the 60 votes needed to advance, and signaled that prospects for raising the federal wage floor, unchanged since 1996, are remote during the current two-year Congress.

"I believe that anyone who works 40 hours a week, 52 weeks a year should not live in poverty in the richest country in the world," said Sen. Edward M. Kennedy, D-Mass., arguing for the Democratic proposal to increase the minimum wage by $2.10 over the next 26 months.

Senate Defeats Minimum Wage Increase (by David Espo)