Wednesday, July 30, 2008
The NLRB has often been criticized for not seeking 10(j) injunctions enough (these are the discretionary injunctions that the NLRB can seek while a case is pending with the Board), but you can see why. In Timmins v. Narricot Industries, Judge Rebecca Beach Smith of the E.D.V.A. denied a 10(j) motion--despite finding reasonable cause that the employer committed ULPs. From BNA's Daily Labor Report (subscription required):
A federal court in Virginia July 24 denied a National Labor Relations Board regional director's request for a preliminary injunction against a manufacturer that withdrew recognition from a union, finding that even if Narricot Industries LP violated the National Labor Relations Act by improperly supporting an effort to decertify the union, issuing an injunction under Section 10(j) of the NLRA would not be "just and proper" [The Judge] said that an NLRB administrative law judge already has concluded that the company unlawfully solicited employee signatures to oust Carpenters and Joiners of America Local No. 2316, but the court made its own findings that there was a "substantial, employee-led effort to remove the Union" that was free from unlawful influence by the employer. . . .
Smith said that the appropriate standard of legal review in a Section 10(j) proceeding "is in somewhat of a state of flux in the federal courts." The "conventional approach," she said was for the court to determine whether the NLRB had shown reasonable cause to believe that an NLRA violation occurred and whether the issuance of an injunction was just and proper. Several courts have modified the standard, Smith said, but the U.S. Court of Appeals for the Fourth Circuit, in whose jurisdiction Narricot was located, "has yet to revisit the reasonable cause/just cause standard." Smith said that she would consider the NLRB petition under the traditional standard.
The court said that there was ample evidence to show reasonable cause that Narricot violated the NLRA. The company's human resource director, Kris Potter, assisted employees in preparing their decertification and supplied a Narricot intern, Anja Baumann, with an employee list used to contact employees during working hours. . . .
The court said, however, that even if Narricot violated the federal labor law, the injunctive relief requested by the NLRB was not appropriate. First, Smith said, "there was a substantial, employee-led effort to remove the Union which was separate and apart from any unlawful conduct by Narricot." The court said that the board's ALJ heard testimony that at least five employees other than Baumann circulated the petition to decertify Local 2316. "This effort was free from any significant involvement by Potter or Narricot," the court found.
Narricot did "impermissibly interject itself into the employee-led effort," the court said, but the question presented by the NLRB's Section 10(j) petition was whether an interim bargaining order was appropriate. The court said that the NLRB claimed that injunctive relief was needed to preserve the integrity of the collective bargaining process, but the employees opposed to representation by the Carpenters local "will suffer irreparable harm if this court orders reinstatement of a Union which a majority of Narricot's employees do not wish to represent them." . . .
The court said that the NLRB does not consider that a decline in membership shows a lack of majority support for a union. However, Smith said, "the amount of support for the Union, including support expressed through Union membership, is relevant to this court's determination of the status quo which existed prior to Narricot's unlawful conduct, because preservation or restoration of the status quo is the purpose of a §10(j) injunction."
There are a lot of issues with this case, including the Fourth Circuit's 10(j) standard. But what gets me the most is that the court independently found that the "status quo" was a situation in which an employer that unlawfully assisted a decert drive was in a position to unilaterally withdraw recognition. Obviously this blog's readership (see here for our recent discussion on Levitz and the unilateral withdrawal rule) doesn't include the judges on the rocket docket.
Via Paul and the BNA comes a report on this
United States District Court decision EEOC
v. Wal-Mart Stores, Inc., in which Wal-Mart allegedly refused to hire two
children of a woman who had filed a charge of discrimination with the EEOC
because she had filed that charge.
The District Court for the District of New Mexico dismissed the claims of the two children who had not personally participated in the filing of their mother's charge and who had not engaged in protected opposition to discrimination in connection with their mother's claim. There may be a split in the circuits on the issue, revolving around competing methods of statutory interpretation. The issue comes down to whether the language of Title VII should be strictly construed or whether the meaning of the language should be tempered by the clear purpose of the retaliation provision.
Title VII § 2000e-3(a) provides:
It shall be an unlawful employment practice for an employer to discriminate against any . . . employees or applicants for employment . . . because [they have] opposed any practice made an unlawful employment practice by this title, or because [they have] made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.
And the Supreme Court in Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006) held that the type of conduct that would be considered retaliation included any actions that “. . . might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Several circuits (the 8th, 3d (ADA and ADEA), and 5th (ADEA)) have held that third parties who had not participated directly or opposed discrimination directly are not themselves protected by this provision because of the plain language of the statute which talks only about the persons who engage in these actions.
The 6th Circuit, on the other hand, very recently held that third parties closely associated with the person who did directly participate in proceedings or oppose discrimination are protected:
“[i]t is a well-established canon of statutory construction that a court should go beyond the literal language of a statute if reliance on that language would defeat the plain purpose of the statute[.]” . . . . Further, “it is well settled that, in interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute . . . and the objects and policy of the law. . . .”
The EEOC's Compliance Manual (Vol. 2, §§ 8(B), (C)) supports this interpretation, as well, providing that Title VII prohibits retaliation not only against the person who engaged in the protected activity, but also against “someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage that person from pursuing those rights.” And in this case (Wal-Mart), the EEOC argued that "barring such claims would undermine the overall purpose of Title VII to eradicate employment discrimination and to encourage protected activity."
The district court rejected the 6th Circuit and EEOC interpretations, agreeing with the 3d, 5th, and 8th Circuits that the plain language did not support those interpretations. Thus, the court dismissed the claims of the children. At the same time, recognizing the broad definition of retaliation, the court refused to dismiss the claim of the mother, the one who had filed the charge, that refusing to hire her children was retaliation against her.
Associational rights cases are very difficult, and we've blogged about them in lots of places (here, here, here, and here, for example). They also come in very different types, which may account for some of the different treatment of them by the circuits. The line drawn by the circuits that rely on a narrow reading of the language of Title VII, the ADA, and the ADEA is certainly a bright one for these kinds of cases. I agree with the 6th Circuit, though, that this leaves a lot of room for employers to discourage protected employee activity. Perhaps retaining the mother's claim is enough to deter this kind of conduct, though.
I use a lot of video in my employment law class in large part because the class covers so many topics at such a superficial level that video can make a subject's complexity resonate more effectively in a much shorter period of time. So we watch a bit of North Country in discussing sexual harassment, and excerpts from Frontline documentaries on low wage workers and retirement for discussing the FLSA and ERISA. Last year I added a documentary on undocumented workers in Texas to try to show how complex the issues of immigration and low wage work are.
So I was pleased when this link to a series by 1000 Voices was e-mailed to me today by Ardi Kuhn (1000 voices) and Sangita Nayak (9 to 5, Nat'l Ass'n of Working Women). The issue they were highlighting was paid sick leave, but there are additional issues in the archive as well. And it's really a collection of personal stories by average people who put a human face on an issue.
And just for background on the larger project, "[t]he 1000 Voices Archive is being produced by Creative Counsel, a media and communications team that has been working with advocates nationally on the paid sick days issue, making sure that their stories are recorded truthfully and effectively." There are a number of other series, too, so if you're like me and use some video (or want to), it's worth checking out.
Michael Goldberg (Widener) has just posted on SSRN his article (forthcoming Suffolk U. L. Rev.) In the Cause of Union Democracy. Here's an excerpt from the abstract:
[The] article makes two broad points. First, it argues that the cause of union democracy is of critical importance both for the sake of a stronger labor movement and, perhaps more significantly, as a key ingredient in a revitalized movement for progressive change and social justice. Second, it makes the case for greater involvement on the part of public intellectuals in support of union democracy, highlighting the vulnerable and isolated positions many union reformers all too often find themselves in, at the mercy of not just entrenched incumbents within their unions but also hostile employers, an indifferent Department of Labor (under both political parties), and in some industries, ruthless racketeers and mobsters.
Tuesday, July 29, 2008
The Tenth Annual National Law Students Workers' Rights Conference, sponsored by The Peggy Browning Fund, will be held October 17 & 18, 2008, at the National Labor College in Silver Spring, Maryland. Registration is due by August 28 for students applying for airfare assistance; October 3 for all others.
I’m live-blogging from the Southeastern Association of Law Schools (SEALS) conference in Palm Beach. Right now, I’m at the New Scholars Workshop on Religion and the Law. Keith Blair (Baltimore) just spoke on Praying for a Job: Why Employees Need More Protection from Religious Discrimination. He argued that the definition of undue hardship in TWA v. Hardison provides insufficient protection to employees, and that Title VII’s religious protection should be expanded. Bruce Cameron (Regent) is speaking now on E.I., E.I. Oh What An Employee: The Biblical Basis for Teaching Emotional Intelligence in the Workplace. He argued that understanding Biblical-based concepts of emotional intelligence can help lawyers predict the outcome of employment discrimination litigation.
Monday, July 28, 2008
We've posted before about some of the problems with politics infecting hiring at the Department of Justice. Now the DOJ's own internal investigation has found that some of the hiring throughout the DOJ was unlawfully based on politics (the text of the report is here). According to the New York Times:
Senior aides to former Attorney General Alberto Gonzales broke the law by using politics to guide their hiring decisions for a wide range of important department positions, slowing the hiring process at critical times and damaging the department’s credibility and independence, an internal report concluded Monday. The report, prepared by the Justice Department’s inspector general and its internal ethics office, singles out for particular criticism Monica Goodling, a young lawyer from the Republican National Committee who rose quickly through the ranks of the department to become a top aide to Mr. Gonzales. . . .
The inspector general’s investigation found that Ms. Goodling and a handful of other senior aides to Mr. Gonzales developed a system of using in-person interviews and Internet searches to screen out candidates who might be too liberal and to identify candidates seen as pro-Republican and supportive of President Bush. . . . In her position as White House liaison for the Justice Department, Ms. Goodling was involved in hiring lawyers for both political appointments and non-political, career positions. Regardless of the type of position, the report said, Ms. Goodling would run through the same batch of questions, asking candidates about their political philosophies, why they wanted to serve President Bush, and who, aside from Mr. Bush, they admired as public servants. Sometimes, Ms. Goodling would ask: “Why are you a Republican?” . . .
In one case, for instance, Ms. Goodling slowed the hiring of a prosecutor in the United States attorney’s office in Washington, D.C., for a vacancy because she said she was concerned that he was a “liberal Democrat.” After the United States attorney, Jeffrey Taylor, complained to her supervisors, he was allowed to hire the candidate anyway.
And in another case, colleagues said that Ms. Goodling refused to extend the appointment of a female prosecutor because she believed the lawyer was involved in a lesbian relationship with her supervisor, according to the report.
And in another case cited by the inspector general, Ms. Goodling blocked the hiring of an experienced prosecutor for a senior counter-terrorism position because his wife was active in Democratic politics. The candidate was regarded as “head and shoulders above the other candidates” in the view of officials in the executive office of United States attorneys, but they were forced to take a candidate with much less experience because he was deemed acceptable to Ms. Goodling.
In forwarding a résumé in 2006 from a lawyer who was working for the Federalist Society, Ms. Goodling sent an e-mail message to the head of the Office of Legal Counsel, Steven Bradbury, saying: “Am attaching a résumé for a young, conservative female lawyer.” Ms. Goodling interviewed the woman herself for possible positions and wrote in her notes such phrases as “pro-God in public life,” and “pro-marriage, anti-civil union.” She was eventually hired as a career prosecutor.
Ms. Goodling also conducted extensive searches on the Internet to glean the political or ideological leanings of candidates for career positions, the report found. She and other Justice Department supervisors would look for key phrases like “abortion,” “homosexual,” “guns,” or “Florida re-count” to get information on a candidate’s political leanings.
The Occupational Safety and Health Administration proposes an $8,777,500 fine against Imperial Sugar—the third-largest fine in OSHA history—in connection with combustible dust violations at the company's sugar refineries in Port Wentworth, Ga., and Gramercy, La.
An explosion Feb. 7 at the Port Wentworth plant killed 13 workers. Five weeks later, an OSHA inspection at the Gramercy plant uncovered numerous violations. At both plants, inspectors found large accumulations of combustible dust in workrooms and on equipment. OSHA contends that Imperial Sugar officials knew about the hazardous conditions, but chose not to act. "I am outraged that this company would show a complete disregard for its employees' safety by knowingly placing them in an extremely dangerous work environment," OSHA Administrator Edwin G. Foulke Jr. says in a statement.
Responding to the citations, company Chief Executive Officer John Sheptor says Imperial Sugar is contesting the citations. "In short, we believe that the facts do not merit the allegations made. As we go forward, we will continue to focus on the safety of our employees and our contractors, not only as we rebuild our Port Wentworth, Ga., facility, but also at our Gramercy, La., and Ludlow, Ky., facilities. We look forward to continuing our partnership with OSHA in the future as we have in the past."
If the company knew and did not act and the result was 13 people were killed, what about criminal sanctions? Isn't this equivalent to manslaughter if the allegations are true? When will we really hold companies responsible for this type of murderous conduct? Money is just money.
Ross Runkel brings to our attention a decision by the Fourth Circuit in NLRB v. Mullican Lumber (4th Cir. 7/25/08), in which the court held that the employer did not violate the NLRA in withdrawing recognition of a union.
Here's the description by Ross:
The employer appealed the decision of the National Labor Relations Board (NLRB) finding that the employer violated section 8(a)(5) of the National Labor Relations Act (NLRA) in withdrawing recognition of the union. The 4th Circuit granted the petition for review. The issue on appeal was whether the employer proved loss of majority status "by a preponderance of the evidence" by presenting "objective evidence that the union has lost majority support." The court held that the unsolicited statements and letters from employees, stating that a majority of them no longer supported the union, including the letter written by employee Carroll who was the person who filed the decertification petition with the NLRB, was sufficient evidence which met the objective requirement. Where the General Counsel of the NLRB offered no contrary evidence, the court concluded that there was no substantial evidence to support the NLRB's conclusion that the employer violated section 8(a)(5) in withdrawing recognition of the union.
This is a difficult standard to meet in light of the Allentown Mack/Levitz Furniture standard now requiring objective evidence in fact for an employer to unilaterally withdrawal recognition without a decertification election, but apparently the court found the statements and letters from the employees were enough. However, if this is just a case of employees expressing the sentiments of other employees about their feelings about the union, although the Allentown Mack genuine uncertainty standard might have been met, it is less likely that the Levitz Furniture objective evidence in fact standard was.
Withdrawal of recognition will continue to be a hot-button topic until there is some resolution of these issues.
Sunday, July 27, 2008
- Theodore Eisenberg (left) & Charlotte Lanvers (center), Summary Judgment Rates Over Time, Across Case Categories, and Across Districts: An Empirical Study of Three Large Federal Districts (120).
- Michelle A. Travis (right), Looking Back at the ADA Backlash: How the Americans with Disabilities Act Benefits Americans without Disabilities (70).
- Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse? (61).
- Meredith R. Miller, Contracting Out of Process, Contracting Out of Corporate Accountability: An Argument Against Enforcement of Pre-Dispute Limits on Process (58).
- Nicole B. Porter, The Perfect Compromise: Bridging the Gap Between At-Will Employment and Just Cause (44).
- Anne Marie Lofaso (left), September Massacre: The Latest Battle in the War on Workers' Rights Under the National Labor Relations Act (136).
- Arlen Specter (center) & Eric S. Nguyen (right), Representation Without Intimidation: Securing Workers' Right to Choose Under the National Labor Relations Act (81).
- Jennifer Gordon & R.A. Lenhardt, Rethinking Work and Citizenship (73).
- Thomas J. Miles & Cass R. Sunstein, Depoliticizing Administrative Law (65).
- Benjamin I. Sachs, Employment Law as Labor Law (64).
- Paul M. Secunda (left), 'The Longest Journey, With a First Step': Bringing Coherence to Sovereignty and Jurisdictional Issues in Global Employee Benefits Law (123).
- Jeffrey M. Hirsch (right), Employee Collective Action in a Global Economy (57).
- Jonathan Zittrain, Ubiquitous Human Computing (47).
- Eleanor Marie Brown, Taking the Guess Work Out of Guest Work: The Promise of Cross-National Cooperation and Ex Ante Screening in Improving Immigration Compliance (42).
- Tommaso Reggiani, Survey on Child Labor Statistics (35).
Friday, July 25, 2008
Thanks to Dennis Walsh for pointing out to me this piece in the July 23rd BNA Daily Labor Report (subscription required) about a new General Counsel Memo by Ronald Meisburg about political activity by workers:
National Labor Relations Board General Counsel Ronald Meisburg July 22 issued a guideline memorandum describing a framework for analyzing unfair labor practice charges involving discipline of employees who engage in political advocacy, such as participating in pro-immigration demonstrations.
Employees' right to engage in concerted activity for "mutual aid or protection" is protected under Section 7 of the National Labor Relations Act, Meisburg said in the memo to regional office personnel (GC 08-10). After reviewing U.S. Supreme Court and board precedent, Meisburg wrote, he found that the test for determining whether political advocacy is protected under Section 7 is "whether there is a direct nexus between the specific issue that is the subject of the advocacy and a specifically identified employment concern of the participating employees."
However, Meisburg said qualifying political advocacy can lose the protection of the NLRA if it is carried out by unprotected means. Political advocacy that meets the basic test, is nondisruptive, and takes place during the employee's own time and in nonwork areas is protected, the general counsel said. But he found that engaging in qualifying political advocacy while on duty, and leaving or stopping work to engage in it, "is subject to restrictions imposed by lawful and neutrally-applied work rules."
Personally, I am troubled by the direct nexus test advocated for here. I think Eastex and its progeny give more leeway to employees to advocate for political issues that may impact the workplace.
This proposed test also gives with one hand and takes away with another: it protects political activity related to employment, but then say a worker can be fired if he or she walks off the job to support that political activity? Isn't the NLRB charged with protecting Section 7 activity and not protecting employers?
PlanSponsor.com has a NewsDash this morning about how younger workers (18-29) may prefer to be hourly workers than exempt, salaried workers:
For many workers in the 18 to 29-year-old age group, being in an hourly job is just fine. According to SHRM, a survey by SnagAJob.com found that 48% who do not have a college degree expect to be hourly workers for their career, while 30% expect to be salaried employees. One-quarter of those with college degrees are career hourly workers or intend to pursue a career as an hourly employee; 62% expect to be salaried, the poll found.
The obvious question is whether this is truly a "choice" to be hourly employees or because respondents do not understand the advantages or disadvantages between being exempt and non-exempt from the FLSA, How about the ability of the employer to change the quantity and quality of hourly worker's work and the lack of independent discretion that normally comes with non-exempt employment?
Thursday, July 24, 2008
The first article, It's a PIP - Or Is It?, concerns "an idea that has been wafting about in legislative halls and hearing rooms, in print and electronic media, and in assorted other venues for several years is to make employers in small businesses set up a payroll deduction facility for their employees not covered by employer-sponsored retirement plans, for the purpose of easing the making of contributions to an IRA established by or on behalf of the employee."
The second one, All in the Family on Foley Square, Lurie discusses the 2nd Circuit's recent cash balance plan decision in Hirt v. The Equitable Retirement Plan:
The 2nd Circuit just resolved a family squabble among its dist rict court judges – five in the SDNY and three in the Connecticut district – involving an age discrimination issue that has had the pension community across the country in a tumult for five years. The appeals court affirmed the judgments of two courts of the Southern District of New York in separate cases, Hirt v. The Equitable Retirement Plan and Bryerton v. Verizon Communications, that had ruled that the cash balance plans at issue were not age discriminatory (2008 US App. LEXIS 14325). It thereby settled an issue that had split nine district cases in its circuit (5 in favor of the plans, 4 against), and in so doing sided with the three other circuit courts that had similarly upheld the plan sponsors positions, starting with the seminal decision of the 7th Circuit in the IBM case in 2006.
Finally, in the third one, Triple Play: Stevens to Roberts to Thomas or A View of LaRue, Lurie writes:
One thing that has distinguished employee benefits practitioners from the population at large in the US in the Spring of ‘08 is whom they prefer among the three – actually, what three they’re even talking about. For a remarkably large portion of the benefits community it’s not been McCain, Obama and Clinton, but Stevens, Roberts and Thomas, the latter three the Supreme Court justices who wrote the majority and two concurring opinions for a court unanimous only in its ultimate holding in the LaRue case1 decided this past February. Linda Greenhouse, writing in the New York Times recently on the pattern of recent rulings from the Supreme bench, said:
“The court is by nature an atomistic institution, its actions the aggregation of determinedly individual decisions.”
If ever words fit actions, those words fit the actions of the justices in LaRue, and she wasn’t even writng about that case. In a supposedly unanimous opinion of the nine justices, they wrote three separate opinions, agreeing only on the ultimate question, but otherwise wildly diverging -- in cohorts of five, two and two – as to why and to what effect.
Alvin brings his mastery and provocative take on all of these issues in these three articles. I'm quite sure he would like to hear individual's feedback.
Carolyn Shapiro (Chicago-Kent) has an interesting post up on the Empirical Legal Studies blog on reversal rates in employment disputes in three recent empirical articles:
An article recently posted on SSRN provides some interesting data about how employers and employees fare when arbitrators’ decisions are reviewed in court. In Do Courts Create Moral Hazard? When Judges Nullify Employer Liability in Arbitration: An Empirical Analysis, Michael Leroy argues that the possibility of such review – especially when the arbitration clause provides for de novo review, as many do – creates a systematic advantage for employers. Leroy documents a growing number of bases on which courts (particularly state courts) vacate arbitration awards, providing more opportunities for successful challenges to arbitrators’ decisions. Perhaps most importantly, however, Leroy measures the rate of reversal of arbitrators’ decisions. Out of a dataset of 267 separate arbitration decisions, Leroy found that federal courts are routinely extremely deferential to arbitrators’ decisions, upholding decisions for both employers and employees at similar and extremely high rates. As a general matter federal courts upheld awards for employees at a rate of 85% and for employers at about 92%. In state courts, however, the picture is more complex . . . .
In Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ From Negotiable Instruments, a 2002 article in the University of Illinois Law Review, Theodore Eisenberg and Kevin Clermont found that in federal civil rights employment cases that terminated between 1988 and 1997, defendants who appealed trial losses prevailed on appeal 44% of the time. In other words, where a defendant appealed a verdict, generally entitled to enormous deference, there was an almost even chance that the appellate court would reverse. In contrast, an employment plaintiff who appealed from a pro-defendant verdict had only a 6% chance of prevailing . . . .
In a more recent follow-up (blogged about here), Plaintiphobia in State Courts? An Empirical Study of State Court Trials on Appeal by Theodore Eisenberg and Michael Heise, examined the outcomes of more than 8000 trials and about 550 appeals from 46 large counties. They found that in general, plaintiffs fare worse on appeal than defendants and that the appellate courts are more deferential to bench verdicts than jury verdicts. Consistent with the first Plaintiphobia article and with Leroy’s findings, the plaintiff/defendant disparity was very stark in the context of employment cases – with 61.5% of verdicts for plaintiffs reversed and 38.5% of the verdicts for defendants reversed . . . .
The Plaintiphobia articles do not find strong evidence to support selection effects, and conclude that their findings are consistent with attitudinal effects – specifically that appellate judges believe (possibly erroneously) that juries are biased towards plaintiffs. Leroy attributes the disparities at least in part to the expansion of bases for reversal of an arbitration award – a doctrinal development. Moreover, there is the possibility of a snowballing effect on doctrine – the more pro-employer cases that are decided, the more pro-employer the law becomes.
I agree with Carolyn that "at minimum . . . these articles collectively raise questions about whether the appellate playing field is level for employers and employees."
The federal minimum wage rises today from $5.85 per hour to $6.55 per hour, en route to $7.25 per hour on this date next year. If you're reading this and you haven't received your pay hike, call the Department of Labor at 1-866-487-9243.
Wednesday, July 23, 2008
The House Armed Services Committee is holding hearings today on the military's Don't Ask Don't Tell policy. Here is the story by John Cloud from Time.com.
From the story:
The hearings, called by a House Armed Services subcommittee, are likely to be more notable for the fact that they are being held at all rather than anything of substance they may produce. The simple fact that the hearings are taking place offers the most significant indication yet that the U.S. is finally reconsidering its strange policy of enforced hypocrisy that came to be called "Don't ask, don't tell." The hearings should also provide a delicate moment for Senator Barack Obama, who has said he opposes "Don't ask, don't tell" but is also reportedly considering one of its major architects, former Senator Sam Nunn, to be his running mate.
. . .
This congressional hearing will turn on the key question of whether the presence of out gays would hurt unit cohesion, discipline and morale. Earlier this month a pro-gay University of California think tank, the Michael D. Palm Center, issued a report authored by three retired generals and a retired admiral that studied that question for more than a year. The retired brass couldn't find any evidence that allowing gays to be open would hurt the military, but they did find some evidence that kicking gays out hurts. One heterosexual officer who just back from Iraq told the authors that "friction resulting from the prosecution of service members found to be gay is far greater than the friction that results from simply knowing a gay person."
Even if no concrete step is taken as a result of the hearings, at least the dialogue has been reopened.
Picking up on our recent discussion about EFCA, BNA's Daily Labor Report (subscription required) has an article describing the Chamber of Commerce's recent statement on the bill (hint: they don't like it). The Chamber is apparently starting a campaign to fight the bill--or more accurately the predicted reintroduction of the bill sometime in the future.
I've previously stated some of my misgivings with EFCA--I basically view it as an imperfect response to a big problem in organizing drives--but many of the comments by the Chamber don't pass the laugh test. For example, it says that "[the bill] would completely
change the economics of union organizing . . . [and] would make it cost effective for unions to go after Main
Street businesses, small retail establishments, and industries that
have never experienced unionization before." That's necessarily bad, why? Oh right, because your group opposes unionization in any form, so any and all attempts to guarantee employees' right to unionize--which, last I checked, is still part of the policy of the NLRA--are bad.
And before the avalanche of union-intimidation comments is unleashed, remember that intimidation would still be unlawful under EFCA. If you're still concerned about the possibility of union intimidation, then I'll make this proposal: you agree to much harsher remedies for, and quicker resolution of, employer campaign misconduct and I'll agree to the same for union misconduct.
Hat Tip: Dennis Walsh