Temple Nurses Win Another Victory

Last March nurses at Temple Hospital went on strike for a month to protest, among other things, the elimination of tuition benefits, a "gag rule" that prevented nurses from criticizing the hospital, understaffing issues, and of course wages and benefits.  It's rare that workers these days will strike.  It's rarer still that they win -- After a month on the picket line the strike settled, with the tuition rule modified and the gag order lifted. 

This week the nurses won another victory, when the Pennsylvania Department of Labor and Industry found that the nurses were locked out, rather than strikers.  The decision means that the nurses will receive unemployment benefits for the weeks they were out on strike.

Under Pennsylvania's unemployment law, strikers receive no unemployment benefits, while employees who are "locked out" do.  The distinction comes down to who altered the status quo.  If an employer changes the terms and conditions of employment it has changed the status quo, and therefore workers are entitled to benefits.

In the Temple case, the hospital changed the status quo because it unilaterally altered the tuition benefit before the workers walked out.  By doing so, the Unemployment Board found that it had altered the status quo and essentially caused the strike.

The decision is doubly painful for Temple because it will be on the hook for the payments.  Most employers pay unemployment insurance to pay for unemployment claims.  Some larger employers like Temple, however, are self insured, which means that Temple will have to shell out something like a million and a half dollars.  That's not all Temple had to pay for the strike.  It is estimated that Temple spent something like 40 million on strike replacements during the strike.  Of course, it could have kept the tuition reimbursement in place and shown workers some respect by not insisting on a gag rule in the first place.  Seems like an expensive price to pay for a couple of items that didn't cost the hospital much in the first place.

BP and Massey Energy -- The Perils of Government Deregulation

If there is one thing we can learn from the BP oil spill disaster and the Massey coal mine disaster (not to mention the stock market mess), it's this: the move away from government regulation and the increased dependence on companies to police themselves is itself a disaster.

Since at least the 1980s a steady chorus of anti-government propaganda from the Right has resulted in a weakening of government regulations and laws, whether through decreased funding, relaxing of safety regulations, or increased exemptions from safety rules.  During the Bush years, the foxes guarded the henhouse, as industry insiders were given top government positions regulating the industries from which they came.  All of this contributed to the disasters we now face.

BP, for example, took advantage of exception after exception from safety rules when setting up its deep water rigs.  The feds were mostly absent as BP set up its deep water rig in the Gulf of Mexico, even as BP's own engineers were questioning the Company's methods.  Government safety inspections of deep water wells were mostly nonexistent, consisting mostly of  "helicopter visits to offshore rigs to sift through company reports of self-administered tests."  http://www.nytimes.com/2010/06/06/us/06rig.html?pagewanted=2.  In some cases, oil officials filled out safety reports in pencil, which government inspectors then filled out in pen and turned in.  NY Times Report. 

Not only is the government hamstrung by the cozy relations between the regulated and the regulators and the decrease in funding, but BP and companies like it have the resources to simply outspend and outgun the government.  BP, with the worst safety and environmental record by far of any oil company operating on US shores, has paid something like 700 million in civil penalties and fines the past in the past few years.  While that may seem like a lot, it is merely the cost of doing business:  in 2009 the company reported profits of nearly 14 billion dollars, and nearly 25 billion in 2008.  In relative terms that's like the average Joe paying $100 for a traffic ticket -- does that really deter anyone?

Massey, likewise, took advantage of lax governmental enforcement and looked at fines as another way of doing business.  As I reported in an earlier post, Massey energy, owner of the Upper Big Branch mine where dozens of workers were killed, paid millions in fine and had a horrendous safety record.  http://phillylaborlawyer.blogspot.com/2010/04/more-on-masseys-mine-disaster.html.  It apparently concluded that cheating on safety was worth the risk of paying small fines. 

What does any of this have to do with the labor movement?  Well, labor has been a canary in the coal mine as far as government deregulation and lax enforcement goes.  Big business figured out  years ago that the lack of any meaningful enforcement of the National Labor Relations Act means that companies can simply disregard the law during organizing drives without any real consequences.  After all, if you get caught violating the NLRA, the result most of the time is that the company has to post a notice saying it violated the Act.  So what?  And if an employer unlawfully fires an employee during an organizing drive, all it has to pay is the back pay of the employee -- minus the money the employee could have or should have made.  Without any real consequences, companies will take risks.  And without any meaningful government regulation or enforcement, bad actors like BP and Massey will push the envelope in the name of profit, safety and the environment be damned.

Getting Pumped for Health Care Reform

Fifteen years ago when my son was an infant  his mom wanted to keep feeding him breast milk.  She was working at the time, and we bought a little pump for the purpose.  Unfortunately, she was afraid her employer would think it was weird, and so she had to sneak around as if having a cigarette in the restroom.

Women will not have to sneak around any longer to express milk. As part of the new health care bill the Fair Labor Standards Act was amended so that employers with more than 50 employees are now mandated to provide certain benefits to women who wish to breastfeed or pump.

First, employers must provide "reasonable breaks" for women to express milk for infants.  The breaks must be reasonable both in terms of time, and in terms of number of breaks.  Second, the employer must give women a private location in which to express milk.  This private location has to a location other than a restroom.  Although the breaks must be given, there is no requirement that the breaks be paid.

Several states, including California, Colorado, Illinois, and New York already have breastfeeding laws on the books.  The new FLSA amendment provides that if an employee resides in a state with a more generous law (for example, paid breastfeeding breaks), then the employee is entitled to whichever law is more generous, state or federal.

In the end expressing milk was too much for my then-wife.  It was less an issue of privacy and more an issue of the hassle of pumping, preserving, and transporting the stuff home.  It's a comfort to know, however, that those who want to express themselves can.  La Leche League rejoice.

Is Supreme Court Nominee Kagan Good for Unions?

The first question my grandparents always had on any public policy issue was always "is it good for the Jews?"  I have the same question for Obama's policies and nominees, replacing the word "Jews" with "union."  Obama's pick to replace Justice Stevens on the Supreme Court, Elana Kagan, is definitely good for the Jews, bringing the Court's complement of Jewish judges to three.  But is she good for unions?

So far it's hard to tell.  Kagan has never been a judge, so there are no written opinions to go by.  And, she does not have other writings  outlining her philosophy on labor, or any other issues for that matter.  She is, as some have noted, a bit of a cipher.  Labor leaders are cautiously supporting Kagan, probably hoping for the best.

One hopeful sign comes from the Village Voice, http://blogs.villagevoice.com/runninscared/archives/2010/05/elena_kagan_and.php,which points out that Kagan's brother, Marc Kagan, was a labor leader and reformer in the Transit Workers Union in New York.  Kagan's brother, who is now a teacher, recently wrote a letter in the Civil Service weekly Chief Leader extolling the virtues of unions in fiery, passionate language:

"Here's a heretical thought: the actual purpose of unions is to improve workers' lives by challenging the free market: to win a higher than "market" wage, to make it hard for the employer to change working conditions or fire the higher-paid worker. We shouldn't hide these ideas under a rock like we're ashamed of them; just the opposite. When unions won the 8-hour day, or the weekend, or pension plans, unions defended the idea that working people's lives and rights were socially more important than employers' profits and rights. And we said that those victories would tend to spread, even into nonunionized sectors, and generally make people's lives better. And that was true, for decades.

"Today we are playing this movie backwards. As people in the nonunion sector have faced big roll-backs in wages and benefits, we hear them complain that unionized workers should also "give back." It's an indication that we have, at least temporarily, lost the battle of ideas in this country, that we can't successfully explain to our fellow workers that it is in their interests too if we are able to hold the line somewhere, rather than engage in a frantic race to the bottom."

This type of rhetoric is rarely aired in public these days.  While we certainly can't expect Kagan to publicly embrace such sentiment, at least we know that she has family members who understand unions, embrace unions, and are passionate advocates of the labor movement.

Sexting, Texting, E-mail and More

Tune in tonight to hear my colleague Amy Rosenberger discuss workplace privacy issues at work:
TONIGHT LIVE at 7pm: "Sexting, Texting, E-mail and More: Privacy at Work"

This should be an excellent show and a good way to catch up on how new technologies are affecting the workplace

The Departure of Andy Stern - Thank You and Good Night!

Andy Stern's sudden announcement that he was resigning this week as President of the SEIU caught nearly everyone by surprise, perhaps even Sten himself, as news of his resignation was leaked by union sources prior to the official announcement.  The media-savvy Stern issued a video of himself later in the week announcing his resignation.

Like George Costanza saying "thank you and good night" and going out on top, Stern is in many ways at the apex of his career.  He has Obama's ear, has increased membership in the SEIU, and is probably the most recognized name in labor next to Hoffa.  Yet Stern also has been a controversial, polarizing figure -- taking his union out of the AFL-CIO, raiding UNITE HERE and engaging in rough and tumble union infighting.  His sudden departure also demonstrates what many critics  have said, that Stern's number one priority is Stern -- his mid-term departure leaves a power vaccum and will inevitably weaken the union while the executive board fights over his successor.

Stern has also been accused of being a "top-down" labor leader, negotiating deals with employers and then letting members in on it.  A perfect example of the top-down view can be seen in this anecdote.  A friend told me yesterday that after hearing Stern on the radio she wanted to get information about forming a union at the nursing home where she works.  She went on the SEIU website to find out who to contact and how to organize a union.  While the website was full of laudatory press on Stern, political announcements, and self-congratulation, she could not find any information on how to actually contact a local union in her area that could help her out, or any helpful information about organizing.  That, in a nutshell, is the problem with the SEIU as well as most other large international unions -- they are focused more on Washington DC politics, themselves, and not enough on workers in the field.

More on Massey's Mine Disaster

As the New York Times reports, the Upper Big Branch mine owned by Massey had a serious history of safety violations - and workers were evacuated three times in the past two months for dangerously high methane levels:
http://www.nytimes.com/2010/04/07/us/07westvirginia.html?hp.  Naturally Don Blankenship, the CEO of the Company denies that there were any issues, and, incredibly, shifts the blame to the government, claiming that "the Mine Safety and Health Administration would never have allowed the mine to operate if it had been unsafe."  He also claims that safety violations are nothing more than a normal part of the mining process.  Huh?  The MSHA levied massive fines against this mine, fines which the company fought and appealed at every turn.  What Blankenship really means is that worker safety - or lack thereof - is simply a cost of doing business for the company.  With 2.9 billion in revenue in 2009, what's a few million in fines per year for safety and environmental violations?