Stand Strong for Verizon Strikers

It's no secret that the "recovery" the past few years has been almost exclusively for corporations and the richest 1%, while for everyone else the recovery has been flat.  The share of national income going to workers as opposed to corporate profits is at the lowest level since 1942.  In the "recovery" of the past few years, 88% of US growth has gone to corporate profits, with 1% going to workers.

How is this possible?  One answer is the declining power of unions, and the well-orchestrated attacks on unions in both the private and public sector.  Employers smell blood in the water, and are taking the opportunity to squeeze every last concession out of workers.

The Verizon strike by the CWA and the IBEW is a perfect example of corporations trying to crush workers even as they enjoy record profits.  Verizon's earnings exceeded Wall Street'sexpectations last year with annualized revenues of 108 billion and profits of 6 billion.  CEO Ivan Seidenberg was paid 36.75 million dollars last year, and 130 million over the past five years.  One would think that some of this would trickle down to workers, but one would be wrong.

Coming into negotiations for a new collective bargaining agreement for unionized workers at the firm, Verizon has insisted on a host of concessions, from increased health care premiums, to contracting out jobs, to freezing its pension plan and closing the plan to new workers, to eliminating sick days.  The company is insisting on these cuts not because it needs them to remain profitable, but because it feels it can. 

The real reason for Verizon's hard line is that it wants to bring unionized workers' wages and benefits down to the same level as its non-union employees.  Companies like Verizon have tapped into the idea -- made explicit in Wisconsin, New Jersey, and other public employee battlefields -- that union workers are overpaid and should make what their non-union counterparts make.  Companies and bullies like Governors Christie and Walker have successfully engendered resentment in non-union workers who want to know why they should support union workers with better pension and health and welfare benefits then they get.

For many years, unionized workers helped all workers make better wages and benefits, as companies would pay non-union employees more just as a disincentive to unionize.  Now that the economy is in tatters and union workers are afraid to strike, companies are doing the opposite, and trying to drag wages downward.

Make no mistake about it:  when employers seek to cut wages and benefits for some workers, all workers suffer.  One of the theories in support of unionization across industries is that it is immoral to compete for business based on how little you can pay your workers.  A victory for the Verizon strikers is a victory for all workers in the industry, while a loss is an invitation to telecommunications companies to further depress workers and wages.  To show your support, click here and send in a petition: 

Flying Towards Anarchy



 In a move that some say is a preview of coming attractions for a debt ceiling shutdown, the Federal Avaiation Administration lost all funding as of 12:01 Saturday night.  As a result, thousands of workers are being laid off nationwide -- the total could quickly go  up to 90,000, and the government is losing an estimated 30 million a day in tax revenues.  The ostensible reason is that Republicans are refusing to authorize funding unless Democrats agree to a 16.5 million dollar cut in subsidies to small airports -- a mere blip in a $9,793 million budget.  But the real reason for the shutdown is the Republicans' insistence on a rider to the legislation overturning a National Mediation Board decision that allows unionization in the industry based on a simple majority of workers who actually vote, rather than needing a majority of all workers.

Perviously, the profoundly anti-democratic rule for the airline and rail industry was that a majority of all workers was needed in order to unionize, not just those who vote.   In essence, under the old rule someone who didn't bother to vote was counted as a "no" vote regardless of his or her actual preference.  This is different from workers in other industries, where the rule is that a majority of workers actually voting is what counts.  Last year, the National Mediation Board changed the rule to make it like the National Labor Relations Act.  Unsurprisingly, business leaders and their Republican allies in Congress protested the change, claiming it was a sop to "Big Labor."

I have yet to see a reasoned explanation of why the rule shouldn't be that a majority of votes cast is what determines a union election.  It's particularly rich hearing politicians decry the ruling.  After all, they are elected by a majority of votes cast, and they pass legislation based on a majority of votes cast.  Shouldn't politicians be in favor of more democracy, not less?

The FAA debacle shows the extent to which the Republican leadership will go for business and against workers.  They simply don't care about the consequences of their actions, even if it means millions of dollars in taxes and thousands of jobs lost.  Like the debt ceiling crisis, the FAA shutdown shows that the sometimes those who cry the loudest about democracy and patriotism are the least democratic and patriotic among us.

Privacy and the Internet

Remember that photo you posted of yourself on Flickr five years ago when you were on vacation in the Caribbean?  You know, the one where you are in a bikini downing a rum and coke and giving a thumbs-up?  Or how about the one night you were feeling lonely, and posted on a personal dating site that you were looking for some company?  Or the time you joined a Yahoo discussion group called "divorced moms who suffered child abuse"?  You probably don't remember.  But your potential employer will, if they use one of the new background check services that scours everything about you ever put on the internet.

As the paper of record reported yesterday, some employers are using Social Intelligence, a service that scours the internet for everything a potential employee may have done, said, or posted for the past seven years.  Everyone knows (or should know) by now that what you post on Facebook might not be so private.  Social Intelligence digs deeper though, looking at what Yahoo Groups you may have joined, any blog posts or comments you may have made, bulletin boards you may have posted on, Craigslist postings, and anything else that bears your prints on the internet.

The internet has made us all into amateur detectives.  Who hasn't googled someone to see what they can find out about them?  Yet the internet is also changing and forever altering our notion of privacy.  What Social Intelligence does is the equivalent of interviewing friends, family, and everyone else an employee may have known to find out embarrassing information.  I think most people would be outraged if employers had the right to dig that deep into our personal lives.  Somehow, though, because it is done through the internet, people seem to accept these deeper invasions of privacy.

In their influential article "The Right to Privacy," future Supreme Court Justices Warren and Brandeis argued that in a legal sense "the right to life has come to mean the right to enjoy life, -- the right to be let alone...."  This basic right, later found to "emanate" from the Ninth and Tenth Amendments to the Constitution, has been under attack for years, mostly by abortion rights activists, who say there is no such right in the Constitution.  Companies like Social Intelligence further undermine whatever right to privacy is left.

Privacy, of course, implies that a person is doing something in private.  By doing something in public, a person essentially waives his right to privacy with respect to that thing.  The internet confuses these two domains:  when a person posts something in an internet chat room, he is assuming it is private.  However, the reality is that nothing going out on the internet is private.  The best practice is to assume that everything going out over the internet is public.

Time for New Rules

In December 2010, a client filed a petition for a union election for a certain group of employees.  The National Labor Relations Board set the election date 45 days after the petition was filed.  The Union won the election handily, despite an aggressive employer campaign against the union.

After the election, the employer filed meritless objections to the election.  The NLRB dismissed the objections in September 2010.  The employer then refused to bargain with the union, which then filed unfair labor practice charges against the employer.  Once again, the union won before the NLRB.  The employer filed an appeal against that decision to a federal appellate court.  A year and a half after the union filed its election petition, the case is still pending.  During that time there has been no collective bargaining, and it's business as usual at the employer.  As one can imagine, employees are frustrated at the union and support has dropped.  Of course, that is precisely what the employer wanted.

Today the National Labor Relations Board published a Notice of Proposed Rulemaking in the Federal Register, seeking to streamline the election process for Unions.  The new rules would help eliminate abusive employer practices that stall elections, drag out hearings, and would help ensure workplace democracy. 

The way the NLRB is structured currently, employers can insist on meritless hearings, file endless appeals, and frustrate the intent of the National Labor Relations Act -- which is to give employees and employers access to a government agency charged with running elections.  The proposed rules would:

■ Allow for electronic filing of election petitions and other documents.


■Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process.

■Standardize timeframes for parties to resolve or litigate issues before and after elections.

■Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.

■Defer litigation of most voter eligibility issues until after the election.

■Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available.

■Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals.

■Make Board review of post-election decisions discretionary rather than mandatory.

These are all sensible rules that have nothing to do with the substance of the NLRA.  Rather, they merely modify current Board rules about how elections are conducted. 

Employer groups are already complaining about the proposed rules, claiming that quicker elections will give them less time to make their case to workers.  This if fairly laughable -- workers will still be subject to mandatory meetings, pressure from supervisors, and employers will still have the ability to campaign against unions and exercise their speech rights.  Union election campaigns are completely one-sided -- unions have no real access to workers, yet employers have access 40 hours per week.  One has to wonder what employers who oppose the rules are really afraid of.

The Weiner Chronicles

One almost has to feel sorry for the unfortunately named Congressman who finally admitted sending pictures of his, umm, Johnson to a stranger on Twitter.  Actually, he accidentally sent the picture to all of his Twitter followers.  Weiner obviously showed terrible judgment and then compounded things by telling a ridiculous lie about it -- first that someone hacked the Twitter account, then saying the he couldn't  be sure the picture wasn't him, then finally coming clean about it.  But should he lose his job over the scandal?

I've had several cases where employees are fired or disciplined for sending inappropriate messages, pictures, and texts to co-workers.  In one case an employee sent a copy of himself having sex with another co-worker to the co-worker.  Problem (for him) is that he was married and the co-workers had broken up.  In another an employee took a picture of his little Congressman and showed it to someone else at work, who then told a colleague, who told another colleague, who told a supervisor who surreptitiously picked up the phone and was shocked, shocked by what she saw.  Both employees got their jobs back, but just barely.

In these cases the employer typically argues that the employees were guilty of "harassment" or "inappropriate conduct."  The problem  for the employer is that sometimes the employee who receives the photo or text isn't offended and doesn't feel harassed.  Other employer arguments are that the exchanges took place during work time, or were on work phones.  These arguments are a little harder to overcome, as it's hard to argue that the employer can't place restrictions on what employees do at work on employer equipment.

On our side, I usually argue that the employee to whom the message was sent wasn't offended, or if she professes offence now, couldn't actually be offended (e.g., the lady who allowed herself to be shot having sex, then objected to receipt of the shot later).  Or, if the victim is truly offended, I try to offer an apologetic grievant who did not know he was offending.  If it fits, I argue that what consenting adults do on their own time is nobody's business, and certainly not the employer's.

This is what makes the Weiner case interesting.  Was Weiner acting in his role as a citizen, or Congressman?  Was he doing what he did on the taxpayer's dime, or on his own time?  Did he use government resources?  It's not clear that Weiner violated any House ethics rules, at least according to the pundits.  But he may be forced to resign anyway, probably because he tried to "cover up" the misdeeds by lying about it.

There's a world of difference between lying about a half-naked picture of yourself, and lying about something more consequential, for example, breaking into the Watergate Hotel.  The distinction has been lost in our political culture.  Nonetheless, I'm reminded of clients who, when caught, end up telling a ridiculous lie about; the case then becomes about the lie rather than the underlying issue.  I would of course prefer that they tell the truth.  But if they choose not to do that, at least tell a better lie.  In the end, Weiner's failure to come clean may lead to his downfall.

Unions and Rats

Sometime in the 1990s, unions began using huge inflatable rats to call attention to labor disputes.  Unions love the rat.  Usually about 15 feet high, unions place the rat across the street, or near employers with which they have a dispute.  This week, the NLRB ruled that using a rat is not unlawfully coercive picketing.

In 2006 the Sheet Metal Workers Union had a dispute with a non-union contractor who was doing work in hospital.  The union brought the rat out, placed it across the street from the hospital, and handed out leaflets explaining that there was a "rat employer" in the hospital paying less than area standards.  The hospital filed a charge alleging unlawful secondary boycott activity.

It is against the law for a union to coerce employees of an employer with whom it does not have a direct dispute into refusing to work for the neutral employer.  So, for example, if a union has a dispute with a contractor working at a hospital, it cannot picket in front of the hospital in an effort to prevent the hospital employees from working.  Such a dispute is called a "secondary" dispute because the union is trying to put pressure on the second employer to get its way with the first employer.  Personally, I see nothing wrong with this tactic, but the Congress in 1947 disagreed and made it unlawful in the Taft-Hartley Act.  There is nothing unlawful, however, about persuading members of the public not to patronize either the first employer or the second employer.

In the original Administrative Law Judge decision, the judge found that the union's conduct was against the law because it was coercive.  However, after reviewing the case on remand from the DC Circuit Court of Appeals, the NLRB found that the union had engaged in lawful conduct. 

The Board held that there was no picketing or other coercive conduct, and that the rat was far enough from the hospital's entrance that it would not deter people from entering.  In response to the dissent's claim that the rat was "signaling" to people that they should not patronize the hospital, the majority stated that was exactly the point -- and that unions are entitled to inform the general public about their labor disputes.  Interestingly, the Board quoted  at length Snyder v. Phelps, the recent Supreme Court decision that said the First Amendment protects the right of picketers at military funerals to say that God was punishing the United States for its tolerance of homosexuality.

The rat may be a crude way of getting one's message across, but it has proved effective.  Most employers would rather not see a giant rat across the street protesting a labor dispute.  With the recent NLRB decision, however, we can expect more rats in the streets.

Another Facebook Complaint

In the Register Guard decision, which came out during the latter part of the Bush Board, dissenting member Liebman accused the NLRB of being the "Rip Van Winkle" of administrative agencies.  At the time, and in the context of that decision (which held that employees could not use employer email systems for Section 7 of the NLRA purposes) that was certainly true.  Recently, however, the NLRB has been in the forefront of protecting employees using social media for concerted, protected activities.

Under the NLRA, employees are permitted to engage in "protected concerted activities" for their mutual aid and support.  So, for example, it would be unlawful for an employer to fire or discipline employees who gathered around the water cooler and complained about their working conditions.  Or, if employees criticized their supervisor for the way he treated them, the employer would not be permitted to fire the employees.

In a series of cases, the NLRB has simply taken this rule and extended it to social media sites, like Facebook and Twitter.  Last  year the Board issued a complaint against American Medical Response for maintaining a rule that infringed on employees' rights to communicate on FB about workplace complaints, and for firing a worker who criticized his supervisor on FB.  The case eventually settled.

In the past couple of weeks the Board has issued complaints in two other FB cases.  In one, an employee at a BMW dealership was fired after he posted a complaint on his FB page about the quality of food and beverages at a dealership event.  The employee grumbled that only having hot dogs and water at the event could cut into their commissions.  Seems to me that serving hot dogs to BMW customers is probably insulting, even in Chicago, but nonetheless, the Board agreed with the employee that he was engaged in protected activity.  In another case, a Buffalo non-profit fired several employees after they complained about working conditions on their Facebook pages.  The Board has issues a Complaint in the case alleging that the discharges were unlawful.

Predictably, employer groups and management lawyers are in an uproar, claiming that this is an activist Board squashing employer rights.  But really, the issue here is employers overreaching and dicatating to employees what they can and can't do on their own time.  Plus, all the Board is doing is extending what is already the law into situations that obviously did not exist when the NLRA was enacted.  An employer can't fire an employee who sits at a bar and tells his coworkers how much the boss sucks.  So why should an employer be allowed to do that to an employee who does the same thing on FB?

Moreover, employer concerns that employees will now be able to "disparage" their employers are unfounded.  In a recent Advice Memorandum, the Board concluded that an employee was lawfully fired for posting inapproriate tweets on his Twitter account.  According to the Memo, the tweets were not protected because they did not involve terms and conditions of employment, and did not involve other employees.  Instead, the employee was simply venting and posting tweets.

Rip Van Winkle has finally awakened from his slumber.  Perhaps I'll post this on my FB page now.