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.

Master of the Universe and the Maid

The news this weekend that prominent French Socialist policitian and International Monetary Foundation head Dominique Strauss-Kahn was arrested for assault and attempted rape has made headlines all over the world.  Strauss-Kahn is obviously in deep merde, as there is apparently possible DNA evidence linking him to the crime, not to mention the fact that he left his $3,000 a night hotel so quickly for his first class plane flight that he left his cell phone behind.

Strauss-Kahn has been criticized in the French press for living a life of luxury, replete with expensive cars, multi-million dollar houses, and suits that cost in the neighborhood of $10,000.  There is nothing wrong with a socialist indulging in such luxuries; after all, Strauss-Kahn makes more than $420,00 a year (as of 2007 - he gets annual increases tied to the Consumer Price Index), and earns an allowance of $75,000 per year after taxes to maintain "a scale of living appropriate to your [his] position as Managing Director" of the IMF."  To ensure a comfortable retirement, Strauss-Kahn also gets a supplemental defined pension benefit on top of his normal pension.

The $3,000 a night hotel room Strauss-Kahn stayed in could easily have been paid out of his allowance or salary.  It wasn't.  SK's employment contract provides as well that he will be reimbursed for travel and hotel expenses.  So the $3,000 a night hotel was paid by the IMF, as would have been the first-class transtlantic flight.  To be fair, an employee should not have to pay for his own hotel room and flight if he or she is somewhere on business.  However -- $3,000 a night?!  That doesn't seem like a reasonable business expense to me.

The bigger picture here, though, is the incredible gulf between those who make and set policy and the rest of us.  The IMF has been very insistent on everyone else tightening their belts and reducing deficits, even if it means salary and benefit cuts for workers.  The IMF has been very critical of pension benefits in the public sector, urging cuts in nearly every country into which it intervenes.  Yet here we have the head of the IMF not only making nearly a half-million dollars a year, but also getting for himself an enhanced pension benefit.

An argument can of course be made that one needs policy makers to be objective, to make policy based on what is best for a country rather than what is best for its workers.  And yet the extent to which our leaders are out of touch with workers is disturbing -- something like 60% of the US Senators are millionaires, as are 40% of Congressmen.  This compares to 1% of the rest of us.  Whose interests do you think they have at heart when voting on taxes for the wealthy and eliminating the estate tax?

I don't know whether Strauss-Kahn tried to rape a maid in a Manhattan hotel room or not.  If he did, that is a crime for which he should go to jail.  People are understandably outraged about the allegations.  I'd also like to see a little outrage at the disconnect going on between those who preach austerity to the rest of us from their $3,000 a night hotel rooms, while waiting to collect their own enhanced benefit packages.