Peer & Gan Labor Law Blog

Captive Audiences

2007-12-03T09:43:00.000-08:00

Once again, our friend Dmitri has an interesting piece on labor law in today's union-unfriendly environment. Check out this piece in the Providence Journal on employer captive audience speeches and employees' First Amendment rights.

World Day Against Child Labor

2007-06-12T06:20:00.001-07:00

Apparently, June 12 is World Day Against Child Labor. It's hard to believe that we're still fighting child labor in the 21st Century.

Chipping Away at Title VII

2007-05-29T13:19:00.000-07:00

The Supreme Court has just taken another bite out of employees' rights to challenge workplace discrimination. The decision limits employees' ability to redress discrimination under Title VII of the Civil Rights Act of 1964 unless they can point to a "discrete act" that occurred within 180 days of the complaint.

In this case, the plaintiff, Lily Ledbetter, originally won a lawsuit against her employer, Goodyear Tire & Rubber Co., for gender discrimination. Ledbetter started her job at the same pay rate as men in similar positions, but 19 years later she was earning more than $500/month less than the lowest paid male in her position (she was the only female in that position at the time). The Eleventh Circuit Court of Appeals reversed the lower court's ruling, and the Supremes upheld the Court of Appeals' decision in favor of Goodyear. That means that although Ms. Ledbetter worked for 19 years receiving significantly less pay than men who were doing the same work, she could only base her claim on whatever happened in the 180 days leading up to her claim. Those 180 days, in the eyes of the court, were not enough to prove discrimination in this case. In other words, the pattern of discrimination established during the previous two decades and its cumulative financial impact on Ledbetter meant zilch to the Court.

In order to establish a claim for the pay disparity during the period before the 180 days, Ledbetter would have had to file a claim every time she failed to get an increase in salary on par with her male counterparts. As the National Employment Lawyers' Association (NELA) pointed out in its Amicus brief, this departs significantly from violations under the Fair Labor Standards Act and National Labor Relations Act, under which employees may redress recurring violations even if those violations occurred prior to the 6 month statute of limitations period:

Preventing an employee from remedying a recurring
violation simply because the conduct is long-standing
serves no purpose. The employer is aware of the continued
consequences of its illegal acts, and employees continue to
suffer – with ever-growing heft – the expense of that
conduct. The law permits suit on recurring violations
carried out during the limitations period pursuant to
decisions to violate the law which pre-date the limitations
period because that wrongful intent is equally present in
each application of the earlier decision. A contrary rule
would permit the wrongdoer to benefit from its wrongful
act indefinitely merely because the first instance of the
repeated wrongdoing was not timely challenged

The practical effect of this decision is that employers can sleep well knowing that if they spread pay differentials among women and minorities over a long period of time - slowly and covertly widening the gap between their favored class of worker and the discriminatees each time salaries are adjusted - the law will back them up. If you think that's fair, Ginsburg's dissent could be enlightening.

Labor's "To Do" List

2007-05-23T07:17:00.000-07:00

Dmitri Iglitzin, a union-side labor lawyer out of Seattle, has a terrific article on TomPaine.com that sets forth a proposed political agenda for the labor movement. Here's his "Top 7":

Enact the Employee Free Choice Act
Enact the RESPECT Act (see the last post)
Equalize union organizers' access to employees during organizing campaigns
Insist on labor standards in future free trade agreements and improve those in existing agreements
Extend collective bargaining rights to supervisors
Repeal the NLRA's "Right to Work" provision
Repeal the Taft-Hartley Act's ban on "secondary boycotts"

R.E.S.P.E.C.T.

2007-05-20T11:26:00.000-07:00

The RESPECT Act, [Re-empowerment of Skilled and Professional Employees and Construction Tradeworkers Act], was the topic of a hearing on Tuesday, May 8, before the House Subcommittee on Health, Employment, Labor and Pensions [HELP]. This is the bill that would delete "assign" and "responsibly to direct" from Section 2(11) of the NLRA, which defines who is classified as a "supervisor" under the Act. The bill would also require that individuals classified as supervisors have supervisory authority for at least 50% of their working time.

The Democratic House members of the committee were totally supportive. The hearing room was packed with interested, engaged nurses who gave enthusiastic support to the witnesses and to Members of Congress who spoke in support of the bill. I've never been to a hearing with so much applause -- or any applause, for that matter. Only one Republican member attended the hearing.

Testifying in support of the RESPECT bill was a very strong and knowledgeable panel that included Sarah Fox, of counsel to Bredhoff and Kaiser and former member of the NLRB, Lori Gay, an RN at the Salt Lake Regional Medical Center, and William Tambussi, a management lawyer and counsel to Cooper University Hospital. Roger King of Jones, Day testified against the bill on behalf of the Chamber, the HR Policy Association and the Society for Human Resource Management (SHRM).

Former NLRB member Sarah Fox expertly guided the Committee through an overview of the purpose and history of the supervisory exception. She argued that this clarification of the supervisory definition is a positive and necessary reform that will create a fair, appropriate and bright-line test for determining whether individuals are entitled to the protections of the Act.

Lori Gay, an RN for 21 years at the Salt Lake Regional Medical Center, testified about the legal machinations which have denied her and her co-workers collective bargaining since the RNs there voted in May of 2002 for representation by the United American Nurses. Their ballots were impounded, the case appealed to the Board, remanded post-Oakwood, re-heard and again appealed to the Board. The Regional Director's decision would eliminate 64 out of 153 nurses as supervisors, including Gay.

William Tambussi, a management lawyer and counsel to Cooper University Hospital explained how this hospital created a boundary between professional nursing staff that are part of the bargaining unit and those who are genuinely supervisory, without relying on the "assign" and/or "responsibly to direct" language. According to Tambussi, enactment of RESPECT would not interfere with any managerial perogatives. Rather, it would eliminate the current confusion, misinterpretation and inconsistent application of the supervisory exemption.

Roger King of Jones, Day claimed that, in fact, the recent Oakwood trilogy found that most of the challenged workers were NOT supervisors - ignoring the roadmap the Board created a for employers to manipulate the duties of their workers in order to exclude them as supervisors. He also argued that the bill would detrimentally impact small and medium size employers, that it would interfere with the "delicate compromise" in the NLRA, and that it would make it hard for employers to comply with OSHA, FLSA and other employment statutes becuase they wouldn't have enough supervisors. [You have to wonder if they are saving their good arguments for later.]

Check out copies of the testimonies, or watch an archived hearing webcast.

(Thanks to the AFL-CIO Lawyers' Coordinating Committee for this post!)

Thou Shalt Discriminate?

2006-10-13T10:22:00.000-07:00

A recent New York Times article addressed the intersection of employee rights and the First Amendment right to free exercise of religion. As stated in the article, religious organizations have long been exempted from fair hiring and employment practices by which other non-religious organizations must abide. These religious organizations are free to discriminate on the basis of religion, which means that someone whose personal life is not viewed as consistent with the beliefs of a religious employer can be fired, even if that person is a member of the same religious sect. These employers are also apparently free to discriminate based on age, disability or sex, without legal consequence. In addition, religious employers are exempt from pension laws and court rulings have made it easier for some, including hospitals affiliated with a religious sect, to resist efforts of employees to organize.

The article profiles the plights of two women training as nuns, one also working as a Catholic university’s chaplain; a minister; and a rabbi whose claims of discrimination based on gender, age, and disability, committed by religious entities, have met with little sympathy in the federal courts based only on the fact that the employers were religious in nature, and thus the government could not interfere with their employment practices. The article also profiles the struggle of faculty at a Catholic college and workers at a Seventh Day Adventist hospital to overcome employer attempts to prevent unionization. One undercurrent of the article is the irony that these entities, whom one would think would be the most compassionate and just of employers, have turned out to be some of the least sensitive because the federal government has made them exempt from the laws that guarantee employees’ basic human rights.
To read the whole article, go here.

The Skinny on the Anti-Union Movement

2006-09-14T11:48:00.000-07:00

American Rights at Work, a national workers’ rights organization, has a new website to counter anti-union groups’ stepped-up rhetoric of late. The site features information and news about the Center for Union Facts, National Right to Work, the Chamber of Commerce, for-profit union busters, and other anti-union organizations. There are helpful tidbits about the misinformation spread by these organizations, as well as their connections to prominent anti-union political figures and funders.
For all this good stuff and more, check out the site at http://AntiUnionNetwork.org.

Oh No They Didn’t!

2006-09-07T07:51:00.000-07:00

In a move that produces an “are you kidding me?” type of response, Radio Shack has laid off 400 workers. By email. Not only does the action indicate a plain lack of decency and respect, but it may also offer a glimpse of the management “skills” that have resulted in poor business performance and the alleged need to layoff workers in the first place. For more of the story, check out this article.

Anti-Union Doll Maker Not So American

2006-08-04T12:54:00.000-07:00

American Girl, a doll maker and children’s publisher known to most everyone who has been a girl or the parent of a girl in the last 20 years, may present a wholesome, all-American image, but it has shown itself to be just another employer that tramples the rights of hard-working Americans. Today the New York Times reported that employees of the flagship American Girl Place store in New York have gone on strike after the company was hostile to the formation of a union.

The company employs 18 actors for theater productions at its New York store. The actors recently expressed a desire to join the Actors’ Equity Association, but management was not exactly receptive. They turned down a request to meet with Equity, and also suggested an NLRB secret-ballot election, rather than recognize the union after a majority of the actors expressed interest in joining. Management then decided to revoke pay raises because of the actors’ support for Equity and told them that if Equity was recognized the company would be less willing to grant requests for time off for work-related purposes, like vocal rest.

Along with the strike, Equity filed an unfair labor practice charge with the NLRB last week. The actors get full benefits, and start at $44 a show. Understudies, however, get no benefits and a mere $100/week stipend, earning $38-$44 a show when they perform. But this is not so much about compensation as about the actors’ right to organize and have their union recognized by American Girl.

It’s a shame that a company with such a good reputation for promoting self-esteem in girls and encouraging them to be creative, smart individuals would decide to show such an ugly, un-American side of itself to the world. American Girl dolls are accompanied by stories of girls doing courageous and brave things, and generally instill in girls the values of doing what is right and fair; too bad the company doesn’t take that message to heart.

If you want to encourage American Girl to support workers' rights, here is contact information:

AG Brands
8400 Fairway Place
Middleton, WI 53562-0998
608-836-4848 tel
608-836-1999 fax

Shady California Growers Tell Workers "No Shade for You!"

2006-08-03T07:35:00.000-07:00

With the east coast experiencing a miserable heat wave that has swept the country, no one here in Washington, DC is envious of workers who have to spend their days outside toiling in 100 degree temperatures. Out in California, the state adopted permanent heat stress regulations last week to lessen the threat of heat-problems experienced by outdoor laborers. Mainly, the regulations require employers to help prevent heat stress and illness by providing one quart of water per hour per worker, as well as a shady spot where any worker can go if she starts to feel the affects of a heat-related illness or heat stress. Also, employers have to make written heat stress guides available to employees. The state attributes lower death rates among construction and agricultural workers during this most recent heat wave to the newly permanent regulations, which are not found in other states or federal law. Some employers have gone beyond the regulations, adjusting work schedules to keep workers out of the heat at the hottest times of the day.

However, not all employers are so anxious to comply with the new regulations. According to the United Farm Workers, some farmers in California are trying to find a way out of meeting the shade requirements. The California Farm Bureau says that supplying shade in large fields with many workers is difficult, and is an excuse for exposing workers to the dangers that come with extreme high temperatures. One of those dangers includes death. While this heat wave has not been as deadly as ones in years past, six workers have died as a result of the heat. Some growers may find it inconvenient to help prevent illness and death from the heat, but how inconvenient will it be if their workers are too sick to work or die?

For more information, see the United Farm Workers website and check-out this article.

"The Word" of the Day - Solidarity

2006-07-20T07:07:00.001-07:00

Stephen Colbert of The Colbert Report on Comedy Central dedicated his "The Word" segment to a satirical look at the National Labor Relations Board's pending Kentucky River decisions. At risk in these decisions are the rights of 8 million workers to form unions. Employers in the case are seeking to change and expand the definition of "supervisor." Federal law bars supervisors from organizing unions. You can see the whole piece on Comedy Central's website or on YouTube.

You Can’t Judge an Employee by His Tattoos

2006-07-18T18:26:00.000-07:00

The New York Times’ “The Ethicist” column recently ran a letter from an employer seeking advice on how to deal with a hard-working employee’s visible and shocking tattoos. The employer could have just told the employee to cover-up, but when he heard the employee’s story he did something that puts a more caring and generous twist on employer-employee relations. Check out the column to get the whole story.

How Much is Security Worth?

2006-06-28T14:58:00.000-07:00

The Service Employees International Union (SEIU) has announced a campaign, called “Five Days of Freedom,” to organize thousands of security officers in Los Angeles. The move is aimed at getting better wages for Los Angeles’ security officers, 70% of whom also happen to be African-American and often live in L.A.’s poorest communities. The union estimates that if security officers earned what unionized janitors in the county make, which is at least $12 an hour plus healthcare, it would mean $100 million flowing into South L.A., where many security officers live, alone.

Over a two week period, organizers are trying to gather about 3500 signatures, or more than half of all the working security officers in the county. The signatures take the place of having a formal vote on unionizing. The union is also trying to organize security officers in other American cities, including Washington, D.C.

Getting decent wages for security guards is also a good policy in post-9/11 U.S., where private security guards can be responsible for protecting critical infrastructure like nuclear power plants and oil refineries. According to a Congressional Research Service report, in 2003 security guards provided by contractors were paid on average $19,400 a year, which is well below the average salary for all occupations in the country.

Given how important the job is and that low pay in the industry has been linked to poor job performance and high turn-over, it maybe, just maybe, might be a good idea to get these men and women a reasonable paycheck. Making minimum wage certainly doesn’t seem commensurate with the responsibility of providing security, whether it’s protecting a potential terrorist target, deterring thieves from setting their sights on multi-million dollar office buildings, or keeping sketchy characters from bothering residents in an apartment building. For a country obsessed with safety, we sure don’t seem to be putting our money where our mouth is.

For more information:
SEIU
L.A. Times
CRS report

The Real Union Facts Update

2006-06-22T14:04:00.000-07:00

Citizens for Responsibility and Ethics in Washington (CREW) has released information relating to its FOIA suit for emails and documents relating to the Department of Labor's (DOL) connections to Richard Berman, executive director of the anti-union Center for Union Facts. CREW decided to request the information after a Washington Post column by Al Kamen reported that an aide in DOL's public liaison office sent an email to DOL employees identifying the Center for Union Facts' website as "dedicated to providing information on labor unions and their expenditures."

The documents show that there was a very friendly relationship between Berman and DOL. According to the executive director of CREW, “[t]hese documents make it clear that under the leadership of Secretary Chao, the Department of Labor has become anti-labor." For the whole story, check out CREW's website.

Money, Money, Money, Must Be Funny, in a Rich Congressman's World

2006-06-22T11:52:00.000-07:00

Congress has again failed to raise the minimum wage, meaning many workers will continue to struggle to support their families on an unlivable wage. The Senate rejected proposals to raise the federal minimum wage from $5.15 to $7.25 an hour, or alternatively to $6.25 an hour; House leadership won’t even let the issue come up for a vote. $5.15 an hour for a 40 hour a week job comes out to a yearly salary of $10,700, close to $6000 below the poverty line for a family of three. To put it in perspective, with gas prices what they are, it could conceivably take a full day of work at the federal minimum wage to fill up the gas tank on an average car. The thought of finding housing in a decent neighborhood or affording healthy food on that little income is even more disquieting. For some workers, the situation is not so desperate. 18 states have taken it upon themselves to raise the minimum wage, but that doesn’t mean all workers in those states are making a living wage.

Given their refusal to so much as throw a bone to American workers, it’s interesting that last week House members gave themselves a raise so that they now make almost 16 times what a minimum wage worker makes in a year. By the way, that would be the eighth raise Congress has given itself during the same decade that the federal minimum wage has remained stagnant. And those raises don’t take into account the other perks of being a member of Congress, like top notch healthcare and extravagant “business” trips and dinners paid for by corrupt lobbyists. Nor does it include what members make off of side deals related to their work in Congress. Just today the Washington Post reported that House Speaker Dennis Hastert (R-Ill.) made $2 million from selling land near a highway project for which he secured earmarked funds. With all their wealth, it's no wonder some in Congress are so out of touch with American workers and the public at-large, who strongly support a raise in the minimum wage.

Winery Has Sour Grapes Over Union Contract

2006-06-14T14:38:00.000-07:00

Next time you imbibe a nice glass of wine with dinner or after a hard day of work, you might want to think about the workers who help make that tasty beverage. Workers at the Charles Krug winery are in the midst of a fight for their rights to be represented by a union. They face losing their jobs, which is all the more tragic for those workers that have invested more than half their lives working at Charles Krug. The winery, which is the oldest in Napa Valley and has been operated by the Peter Mondavi family for three generations, has been resistant to the United Farm Workers’ representation of its workforce since the 1970s. The workers last union contract expired in December 2005 and the winery has now threatened to fire the workers on July 1. Charles Krug wants to hire a vineyard manager that brings his or her own non-union crews. Many vineyards have turned to this method of procuring workers, no doubt due in part to the fact that they don’t have to provide benefits to the crews. The UFW previously boycotted Gallo wines because of a similar issue and subsequently was able to negotiate a contract for Gallo farm workers. The union has said it may use the same tactic in its struggle with Charles Krug. The United Farm Workers has filed suit against the winery, but the workers still face a battle.

For more information:

The United Farm Workers Action Center
San Francisco Chronicle

UPDATE:
UFW union members have called for a boycott of Charles Krug-Mondavi products. To learn more, go here.

The Real Union Facts

2006-06-12T15:45:00.000-07:00

The AFL-CIO recently came out with a report shedding some light on the misinformation being espoused by anti-union organizations such as the un-aptly named “Center for Union Facts.” You can check out the report here.

Special thanks to the AFL-CIO Lawyers Coordinating Committee for permitting us to link to this report.

No Dating Co-Workers!

2005-06-17T10:46:00.000-07:00

Next time you ask that co-worker out to dinner you have more to be nervous about than being turned down: you might lose your job. The National Labor Relations Board has given employers the green light to prohibit employees from "fraternizing" with co-workers. In Guardsmark, LCC, the Board upheld an ALJ's ruling that a private security guard company may lawfully prohibit its employees from "fraterniz[ing] ... or becom[ing] overly friendly with the client's employees or with co-employees." According to Board Members Battista, Liebman, and Shaumber, such a rule "is reasonably understood as prohibiting personal entanglements, rather than activity protected by the [National Labor Relations] Act [and] is designed 'to provide safeguards so that security will not be compromised by interpersonal relationships....'" That last part might make for some interesting scenarios (at least for those of us with active imaginations), but there is something disturbing about an employer's ability to interfere with its employees' lives outside of work.

It remains to be seen what will happen upon appeal (one would think that the union representing these employees would take this to the Court of Appeals), but this decision is yet another example of how far some will go to diminish fundamental Section 7 and Constitutional rights.

Labor in the News

2005-06-14T13:53:00.000-07:00

Though hotel workers in San Francisco are still fighting for a contract, there's good news in Los Angeles where hotel workers a tentative agreement with the L.A. Hotel Employers Council.

The debate over the future of the labor movement continues. SEIU's executive board has given the Union's leadership the green light to disaffiliate with the AFL-CIO while the AFL-CIO's Executive Committee has approved major changes, including an increase in the resources it devotes to organizing and political mobilization.

It appears that the collective bargaining rollbacks and "pay-for-performance" personnel system recently mandated for Department of Homeland Security and Department of Defense are spreading to other federal agencies. See this week's Federal Times.

2005-06-02T09:09:00.000-07:00

LCC Lawyers, including 2 of Peer & Gan's own, walk the picket line in San Francisco.

LCC Lawyers Support San Francisco Hotel Workers

2005-06-02T08:42:00.000-07:00

Hotel workers in San Francisco have been battling with a multi-employer group to obtain collective bargaining agreements with continued comprehensive health care, fair wage increases, fully funded pensions and card check neutrality. Here's the latest from UNITE-HERE's website:

On Tuesday, May 31, UNITE HERE Local 2 and the Multi-Employer Group (MEG)
representing fourteen San Francisco hotels headed back to the bargaining table
for the first time in three and a half months. Local 2 members had been waiting
for a response to their latest contract offer made to the hotels on February
14th.

The hotels are feeling the heat as numerous groups such as GLAAD and the American Federation of Teachers pull their conferences and other events from hotels involved in the dispute. Several weeks ago, a large group of labor lawyers from the AFL-CIO Lawyers Coordinating Committee ("LCC") joined Local 2 members on the picket line outside the Westin St. Francis hotel. The lawyers were in town for the LCC's conference, which took place at the San Francisco Marriott. This is the very same hotel LCC lawyers picketed several years ago as part of another contract dispute, and the Marriott workers went on to win a contract. Not that we're taking all the credit for victory here, but let's hope the efforts of "the mighty, mighty lawyers" help those currently fighting for a decent way of life.

2005-04-22T05:55:00.000-07:00

In Wednesday's Washington Post, Harold Meyerson has a good, quick analysis of our economic "recovery," and why we need the Employee Free Choice Act.

Nine Days In March

2005-03-25T08:39:00.000-08:00

It took a nine-day hunger strike by students at Georgetown University, but over 450 contract workers at the D.C. school are about to get a living wage. Employees were making as little as $11.33/hr. The new minimum wage will be $13/hr. and will increase to $14 by July 2007, according to the Washington Post. Officials at Georgetown resisted the raise, citing the additional $1.8 million it would cost to comply with the students' demands. Yet, the school recently raised $15 million to build a new boat house and is currently looking to raise $120 million for the business school.

Just as graduate students at three universities are demanding that their administrations recognize their unions, the Georgetown Living Wage Coalition showed yet another example of the youthful revival of the old labor movement.

Arbitrators, Advocates Exchange Ideas In Mock Arbitration

2005-03-09T14:19:00.000-08:00

At the recent Southeast Regional meeting of the National Academy of Arbitrators, Peer & Gan's Michael Gan played a neutral arbitrator in a mock arbitration program directed by Jay Goldstein, NAA, Rick Reilly, and Linda Byars, NAA.

(from left to right: Norman Quandt, Management Attorney, Ford & Harrison; Michael J. Gan; Frankie Sanders, APWU; Jay Goldstein, Arbitrator)

The following article, by Martha Pedrick, J.D., is reprinted from CCH Online (CCH Incorporated), Mar 1, 2005:

Arbitrators, advocates exchange ideas in mock arbitration at NAA meeting
Mile High Airlines Captain Eyrgrl, who was discharged for making negative comments about Mile High management and threatening its president at a Yahoo web site using a company-provided email account, appeared before a 3-person arbitration panel with her union attorney and a private attorney. The mock arbitration was the centerpiece of the Annual Meeting of the Southeast Region of the National Academy of Arbitrators, on February 25-26, in Atlanta, Georgia. Reversing their “real life” roles for purposes of the mock arbitration, Andrew Brenner, attorney in the Atlanta office of the Air Line Pilots Association, appeared as counsel for Mile High, and Kevin Rachel, manager of collective bargaining and arbitration for the United States Postal Service, appeared as counsel for the union. Also reversing their real life roles, arbitrators were Michael Gan, union attorney and partner in the Washington DC office of Peer & Gan, LLP; Norman Quandt, management attorney and partner in the Atlanta office of Ford & Harrison, LLP; and Frankie Sanders, Southern Region Coordinator of the American Postal Workers Union. Making a cameo appearance, Vella Traynham, Director of the Office of Arbitration Services of the Federal Mediation and Conciliation Service, appeared as a Vice President of Mile High.

Procedural and substantive issues explored. Throughout the course of the arbitration, conference attendees were asked to discuss and “rule” on issues as they arose before the arbitral panel ruled. Issues discussed included whether the private attorney could be permitted to participate in the hearing; what inference should be drawn from management’s refusal to comply with the union’s subpoena for all management internet postings; whether any distinction should be made between the grievant’s misuse of company property and gaining access to a public chat room by any means available; whether to allow evidence that the grievant carried a gun, which was not specifically included in the grievant’s termination letter; effect of participation of a partisan Arbitration Board member; whether management should be allowed to call the grievant as its first witness; and the nature of the requested remedies.

Advantages of arbitration highlighted. In a session moderated by Arbitrator Elizabeth Wesman, advocates discussed some of the “real” reasons for bringing a case to arbitration. According to Lesley Troop, union advocate and partner with Nakamura, Quinn & Walls, Decatur, Georgia, cases involving “embarrassing or unsavory facts” are well-suited to arbitration because of the privacy arbitration affords. When the merits of the underlying grievance are questionable, it is often wise to arbitrate to create a record in the event of a subsequent Title VII case. Arbitration also offers an opportunity to “save face” with respect to the decision that was made, management advocate James Kilcur, Vice Chair of the Labor & Employment Group at Saul, Ewing LLP, Philadelphia, observed.

According to Judy Robertson, Staff Representative of the Communications Workers of America, arbitration can be a strategic decision, especially for new unions, because it demonstrates the union’s willingness to fight for its members. Other reasons to arbitrate, James Wimberly, Jr., management attorney and principal, Wimberly, Lawson, Steckel, Nelson & Schneider, PC, in Atlanta, noted, include wanting the issue decided before negotiations begin and, in the case of a pending NLRB or EEOC proceeding, arbitration can be helpful in the parallel proceeding.

NAA annual national meeting announced. NAA President George R. Fleischli addressed proposals under consideration that would create divisions to present programs at divisional meetings. He also announced the NAA’s annual national meeting on May 25-28, in Chicago. It will be held in conjunction with the FMCS Midwest Arbitrator’s Symposium, co-sponsored by FMCS and the Chicago-Kent College of Law, on May 25. Sessions at the NAA meeting will feature discussion of work and family conflict in the unionized workplace led by Dr. Joan Williams, employer neutrality and card check; and workplace violence.

Agency updates provided. L’Tanya-Keith-Robinson, Vice President of the Southeast Case Management Center for the American Arbitration Association, reported on the number of labor arbitration cases filed in 2004 in the various AAA labor offices. Although the 12,542 cases filed was a slight decrease from the total filed in 2003, she noted that 54 percent more cases were closed in 2004 than 2003. She also distributed a chart of arbitrator per diem rates. The average per diem falls in the $800-$899 range.

One of the biggest changes made in 2004 was in procedures for labor arbitrations, including the establishment of a “Solutions Manager” who will deal with the parties throughout the prosecution of the case. Other changes include using the postmark or date of a fax/email transmission as the date when an award will be considered to have been rendered; and allowing for the direct transmission of nonsignificant evidence not produced at the hearing to AAA.

Vella Traynham reported that FMCS has begun issuing panels for parties regarding teacher and employee suspensions, removals and transfers in response to the new Alabama education legislation. Provided the arbitrator has given FMCS an “Arbitrator Update” indicating that he or she has experience in “employment law,” the arbitrator’s name may be randomly selected for panels of 7 arbitrators that are submitted to the parties. The Alabama Tenure and Fair Dismissal Guidelines for Arbitrators were distributed. Traynham reminded everyone to update their bios, making sure that they are accurate and clearly and concisely indicate fees and expenses. If secretarial charges are not included in the per diem rate, the fee statement must inform the parties that they will be charged these expenses.

Graduate Students Take a Stand

2005-02-24T08:32:00.000-08:00

The spirit of the old labor movement seems to be showing some signs of life on university campuses of all places. There have been some rumors that graduate students at Yale, University of Pennsylvania, and Columbia University are planning a strike. Here's the interesting part: according to the NLRB, graduate students do not have collective bargaining rights. Last summer, the Board overturned the precedent established in New York Univ., 332 NLRB 1205 (2000), and held that graduate students, who spend a good deal of their time teaching classes, grading papers, and performing other duties that used to be left to tenured professors, are not statutory employees under the NLRA. See Brown University, 342 NLRB No. 42 (2004). This ruling stripped graduate students of their right to form unions despite the fact that their relationship to their schools has become less and less academic and increasingly economic. As the dissent in Brown explained (citations omitted):

[The majority's] decision is woefully out of touch with contemporary academic reality . . .. The result of the Board’s ruling is harsh. Not only can universities avoid dealing with graduate student unions, they are also free to retaliate against graduate students who act together to address their working conditions . . . .
Today, the academy is also a workplace for many graduate students, and disputes over work-related issues are common. As a result, the policies of the Act—increasing the bargaining power of employees, encouraging collective bargaining, and protecting freedom of association—apply in the university context, too. Not only is the majority mistaken in giving virtually no weight to the common-law employment status of graduate assistants, it also errs in failing to see that the larger aims of federal labor law are served by finding statutory coverage here . . ..
"[A]s financial support for colleges and universities lag behind escalating costs, campus administrators increasingly turn to ill-paid, overworked part- or full-time adjunct lecturers and graduate students to meet instructional needs." By December 2000, 23.3 percent of college instructors were graduate teaching assistants . . ..
The reason for the widespread shift from tenured faculty to graduate teaching assistants and adjunct instructors is simple: cost savings. Graduate student teachers earn a fraction of the earnings of faculty members . . ..

Apparently, the graduate students at Yale, Penn, and Columbia have taken this dissent to heart.

NHL Season Cancelled

2005-02-16T14:51:00.000-08:00

While professional hockey has fallen off the radar screen in recent months, a glimmer of hope surfaced in the last couple of days that a mini-season could be salvaged. Indeed, NHL and NHLPA officials were in talks within the last 48 hours and each side offered compromises on major sticking points. The NHL's lockout was designed to call the players' bluff. It did not work and many players went to Europe where there is arguably greater appreciation for the game. We are sorry the season has ended on this note, both as fans and labor lawyers who believe in the process of collective bargaining. That process was not well served in this case and will probably be the subject of great debate. The NHL asked for this showdown and it got one. At least there is still college hockey which is a much better game anyway, even if it is a challenge to find televised coverage for those of us who don't live in New England or the upper Midwest. See the Washington Post news story.

Happy 70th, Wagner Act!

2005-02-15T13:52:00.000-08:00

At 70 years old this year, the National Labor Relations Act (informally known as the Wagner Act), as amended by some subsequent legislation, is still the law of the land concerning labor relations. In an era when the percentage of represented workers approaches single digits, what are we to think of the grand dame of the New Deal? Is the Act still relevant to 21st Century globalization and the new economic reality? Call me nostalgic, but I still say yes. One need look no further than Section 1, in which Congress formally stated the Act’s “purpose and policy”. It declared, in order to alleviate “industrial strife which interferes with the normal flow of commerce”, orderly and peaceful procedures for resolution of disputes between employers and employees would be provided. After the bitter, unregulated labor strife -- including serious violence -- of the first several years of the Great Depression, we officially accepted and endorsed collective bargaining as the national labor policy. The Act did the trick, resulting not coincidentally in decades of labor peace. Seventy years later, relatively few American workers collectively bargain. Plenty has been said and written about why this is so.

My thesis for this blog is simple. We should not lose sight of the important historical policy reasons underlying the Act. No one wishes to return to an era of strife and violence. In practice, for seventy years, secret-ballot elections of labor representatives, collective bargaining, and policing unfair labor practices has been an overwhelming success in maintaining labor peace. It is no less relevant today. My sense is that the vast majority of Americans still believe in the basic policies upon which the Act was based. It is unfortunate, then that the fringe elements have succeeded in swinging the debate toward a discussion about protecting workers from unions and, ultimately, dismantling the current system to return to 1934. With history as our guide, I submit that nobody in their right mind can want that. Domestic peace and prosperity owe a continuing debt of gratitude to the Act. Happy 70th!

Update on Noble Health Goals vs. Off-Duty Conduct debate

2005-02-14T15:13:00.000-08:00

Here's yet another article in the NY Times discussing the tension between employers' interest in a healthy work force vs. the individual rights of workers to smoke away from the workplace. (See our previous posting on the issue).

Hotel Workers Campaign

2005-02-14T12:11:00.000-08:00

A recent action alert from UNITE HERE! states:

Hotel workers in fourteen hotels in San Francisco are involved in a protracted contract fight. Workers are fighting to maintain decent healthcare coverage and address workload and immigration and hiring issues. These workers have called for a boycott of their hotels. These hotels only care about their income and we need to send the message that we will not help them hurt working women and men in San Francisco.

Not surprisingly, disputes over health care costs have been at the core of many recent labor disputes. This campaign is a perfect example. If you want to show your support or learn more, check out Union Voice and UNITE HERE!

Running scared?

2005-02-14T08:29:00.000-08:00

Employer reaction to union organizing efforts can be predictable as is the case with the country's largest private sector employer. That Wal-Mart might shutter a Canadian store rather than go to binding arbitration is not a surprise. What is more surprising is the argument made by some that employees would be better off without unions. Doesn't a successful union organizing drive prove that theory wrong? For a brief news story about the planned Canadian closure, see The New York Times.

When Noble Public Health Goals and Off-Duty (Mis)Conduct Collide

2005-02-10T08:11:00.000-08:00

In this news article, the debate is nicely framed: How does an employer balance its legitimate interests in maintaining a healthy workforce with individual employee rights to be left alone at home? This may well become a trend and it will be interesting to see how employees represented by unions fair in labor arbitration.

Thanks to Nathan Newman for mentioning our us and several other new labor blogs.

In other news: The new Peer & Gan website is up and running.

'Tis the Season of Salary Arbitration

2005-02-03T11:56:00.000-08:00

The Sports page provides more labor law material than any other these days. For an interesting look at the complex yet ultimitely simple world of Major League Baseball salary arbitration see Alan Schwarz's recent article in the New York Times. The Minnesota Twins' Assistant GM's suggestion that arbitrators might not be able to "understand" all the fancy stats was a low blow. Baseball arbitrators get fired not because they don't get it; they get fired because one side inevitably loses. It is the risk both sides take when going to arbitration.

The Future of Labor?

2005-01-31T08:46:00.000-08:00

In case you missed it, the cover story of yesterday's NY Times Magazine Section was about SEIU president Andy Stern and the rift dividing union leaders over the future direction of organized labor. The article has its problems, but it's worth a read.

To get a feel for the different perspectives on Stern's proposals, check out the AFL-CIO's "Strenghtening Our Movement" web page and SEIU's "Unite to Win" site.

Federal Sector "Pay-for-Performance"

2005-01-28T17:40:00.000-08:00

Kevin Drum, from Washington Monthly, has an interesting blog entry about the Bush Administration's attempts to weaken federal employee unions. The new work rules for DHS employees will place restrictions on their collective bargaining rights and will tie employees' compensation and promotions to performance evaluations.

Look for AFGE, NTEU and other unions to file a lawsuit to stop these regulations from taking effect and see AFGE's website for more information about how the president's plan affects unions in the public sector.

First Timers

2005-01-25T14:06:00.000-08:00

So, we're in the midst of redesigning our law firm's website and we figured, why not a blog?

This is where we'll post news about our firm for clients, the general public, and any other interested parties. Heck, we'll even let opposing counsel get a glimpse of what it's like working for the good guys.

The ambitious side of us intends to try to post about recent developments in labor law and related topics. There are already some bloggers out there doing great work on these issues (see, i.e., Nathan Newman), but we will do what we can to increase labor's voice in the blogosphere.

Later.