It's no surprise that the any progressive labor reform like card check is dead now that the Republicans are ensconsed in the House and have a deadlock in the Senate on any legislation. It's still a surprise how viciously they are going after Labor. Many states are attempting to pass "right to work" legislation, in which there is no way for unions to eliminate the "free rider" problem. That is to say, there is no way to require unionized employees to pay for their representation through a union security clause. Laura Clawson over at the Daily Kos explains the fallacy of Right to Work laws much better than I could, so I will simply post the link below:
Right to Work and the Assault on the Middle Class
Monday, February 14, 2011
Friday, January 28, 2011
The Pizza Principle
For at least the last 40 years, employees at PATCO, which operates the trains between New Jersey and Philadelphia, received a free train pass as part of their employment package. And, about 15 years ago, employees were given a certain number of free bridge passes. This is just the pizza principle applied to public transportation; virtually every train and bus system in the country gives this perk to its employees.
But then last summer a management employee making nearly $175,000 a year got caught giving a colleague's EZ-Pass toll to his daughter. There was public outrage, and in response to that (plus intense criticism of the Delaware River Port Authority, PATCO's parent company, for lots of questionable spending) the DRPA revoked every employee's free train and bridge pass. It's a classic management strategy -- someone at the top screws up and spending is out of control, so it gets taken out on the little guy. Governor Christie explained that "members of the public don't get free passes, so why should the DRPA employees."
The Unions representing the affected employees took the case to arbitration, including a union I represent, Teamsters Local 676. In a resounding rebuke to the DRPA, the arbitrator ruled that the DRPA had violated clear contract language, and also had violated a past practice between the parties.
The Arbitrator noted in the decision that "the Employer cannot walk away from its solemn obligations under the collectively bargained agreements. The language of the agreements establishes, without reservation, that the Employer's action of not granting the benefits violated the terms of the agreements and well-established, well-utilized past practices."
The decision is well-written and reasoned, and the unions won based on basic contract law. Governor Christie's obsession with government spending seems to apply only to working folks and people other htan himself. It was obvious to anyone with even a hint of labor relations that what the DRPA did was wrong and unlawful. Yet the parties had to spend thousands of dollars at arbitration, and the DRPA is going to have to spend thousands more to reimburse employees who had to pay for bridge and rail travel -- and this is a real dollar cost, unlike the free passes, which do not require any fiscal outlay. More to the point, if the Governor had thought for more than a second about the pizza principle, the whole mess could have been avoided.
Thursday, January 6, 2011
Blame the Unions
As the jobless recovery in this country continues, millionaires get tax breaks, and the income inequality is at its highest peak since the gilded age, it appears that we have finally figured out who the the culprit for our troubles: Labor unions. In one article this week, the New York Times reported that there is growing anger amongst the populace against public sector unions. Another article outlined Republican politicians' strategy for curbing labor's influence by enacting legislation taking away the right to bargain, become "right to work" states, and even the right to strike.
The gist of the articles is that public employee pensions and health benefits are bankrupting the state and local governments, which are faced with cutting those benefits or raising taxes. One article claims that the taxpayers are unwilling to fund benefits that they themselves to not enjoy. The other article shows how the Republicans are using this "outrage" to tey and enact laws that weaken unions.
It is true that some employees in the public sector have retained benefits that many more workers used to enjoy, including the grandaddy of them all: a defined benefit pension, in which an employee has guaranteed payments for life. The DB pension has now been replaced by a 401(k), in which all the investment risk passes to the employee, leaving the employer completely off the hook. Ask people who wanted to retire around the time of the last stock market crash which they would rather have.
Private sector workers have mostly accepted that they will not be getting a guaranteed pension, and are quickly coming to accept that employer-paid health insurance isn't guaranteed either. What's interesting is that these workers are turning in anger and frustration not towards their employers, or corporate America, but towards public sector workers who have it better than they do, at least in retirement.
In Jonathan Franzen's excellent new novel Freedom, one of the characters says that "the conservatives won. They turned the Democrats into a center-right party....they especiallly won culturally...." It's hard not to agree. Since the PATCO strike of 1980, conservatives have largely succeeded in turning the cultural discourse away from class issues, and most perplexingly, turned people who should naturally be sympathetic towards unions (like blue collar workers) against them. This isn't to absolve unions, who have brought many troubles upon themselves.
Instead of joining management in a race to the bottom, where competition in the market is based in part on how little workers can be paid, we should be focusing on how to bring everyone else up. Certainly public sector unions and employees may need to have their expectations diminished somewhat. But by the same token, people should be asking themselves why they don't have pensions and health care -- and using public sector employees as a model rather than demonizing them.
Fanning public resentment over public employees serves some convervatives' goals of weakening unions and making sure no one has a guaranteed pension -- after all, some even want to privatize social security. And while there is room for reform of public sector pensions and benefits, that doesn't mean we have to set workers in opposition to each other.
The gist of the articles is that public employee pensions and health benefits are bankrupting the state and local governments, which are faced with cutting those benefits or raising taxes. One article claims that the taxpayers are unwilling to fund benefits that they themselves to not enjoy. The other article shows how the Republicans are using this "outrage" to tey and enact laws that weaken unions.
It is true that some employees in the public sector have retained benefits that many more workers used to enjoy, including the grandaddy of them all: a defined benefit pension, in which an employee has guaranteed payments for life. The DB pension has now been replaced by a 401(k), in which all the investment risk passes to the employee, leaving the employer completely off the hook. Ask people who wanted to retire around the time of the last stock market crash which they would rather have.
Private sector workers have mostly accepted that they will not be getting a guaranteed pension, and are quickly coming to accept that employer-paid health insurance isn't guaranteed either. What's interesting is that these workers are turning in anger and frustration not towards their employers, or corporate America, but towards public sector workers who have it better than they do, at least in retirement.
In Jonathan Franzen's excellent new novel Freedom, one of the characters says that "the conservatives won. They turned the Democrats into a center-right party....they especiallly won culturally...." It's hard not to agree. Since the PATCO strike of 1980, conservatives have largely succeeded in turning the cultural discourse away from class issues, and most perplexingly, turned people who should naturally be sympathetic towards unions (like blue collar workers) against them. This isn't to absolve unions, who have brought many troubles upon themselves.
Instead of joining management in a race to the bottom, where competition in the market is based in part on how little workers can be paid, we should be focusing on how to bring everyone else up. Certainly public sector unions and employees may need to have their expectations diminished somewhat. But by the same token, people should be asking themselves why they don't have pensions and health care -- and using public sector employees as a model rather than demonizing them.
Fanning public resentment over public employees serves some convervatives' goals of weakening unions and making sure no one has a guaranteed pension -- after all, some even want to privatize social security. And while there is room for reform of public sector pensions and benefits, that doesn't mean we have to set workers in opposition to each other.
Thursday, December 30, 2010
Firing the Bankrupt Employee
Imagine two people file for bankruptcy. One is fired by his employer because he filed. The other applies for a job at the same employer, and is told that the company doesn't hire bankrupts. Has the company violated the law under either scenario?
The answer is yes and no. Under Section 525 of the Bankruptcy Code, an employee cannot be fired because he or she filed for bankruptcy. However, as the Third Circuit ruled recently in Rea v. Federated, that same employer can refuse to hire an employee because he filed.
Dean Rea went bankrupt in 2002, and discharged his debts in 2003. Six years later, in 2009, he applied for a job at Federated. Federated initially indicated it was going to hire him, but then later sent him a letter saying it was not going to hire him because of the bankruptcy. Rea sued under Section 525 of the Bankruptcy Code.
Subsection (a) of the Code says that government entitites cannot discriminate against people who file for bankruptcy, including a refusal to hire. Subection (b), however, says that no private employer can "discriminate" against an employee who files. Reading these sections together, the court in Rea concluded that the omission of language banning discrimination in hiring in Subsection (b) meant that Congress intended to ban private employers from discriminating against current employees only.
The court's decision seems correct, as a matter of statutory interpretation. However, the law does not seem to make any sense. Why should an employer be barred from firing someone for filing for bankruptcy, but not be barred from refusing to hire? One reason might be that an employer should not be forced to hire a bankrupt, who in some circles is regarded as less than trustworthy, yet should also not be permitted to fire an employee who is otherwise a good employee.
It is expected that some 1.5 million people will file for bankruptcy this year, up from 1.4 million last year and less than a million in 2008. In these economic times, that is not surprising. What is surprising is that an employer would revoke an offer of employment to someone who had filed more than six years prior to the job offer.
The answer is yes and no. Under Section 525 of the Bankruptcy Code, an employee cannot be fired because he or she filed for bankruptcy. However, as the Third Circuit ruled recently in Rea v. Federated, that same employer can refuse to hire an employee because he filed.
Dean Rea went bankrupt in 2002, and discharged his debts in 2003. Six years later, in 2009, he applied for a job at Federated. Federated initially indicated it was going to hire him, but then later sent him a letter saying it was not going to hire him because of the bankruptcy. Rea sued under Section 525 of the Bankruptcy Code.
Subsection (a) of the Code says that government entitites cannot discriminate against people who file for bankruptcy, including a refusal to hire. Subection (b), however, says that no private employer can "discriminate" against an employee who files. Reading these sections together, the court in Rea concluded that the omission of language banning discrimination in hiring in Subsection (b) meant that Congress intended to ban private employers from discriminating against current employees only.
The court's decision seems correct, as a matter of statutory interpretation. However, the law does not seem to make any sense. Why should an employer be barred from firing someone for filing for bankruptcy, but not be barred from refusing to hire? One reason might be that an employer should not be forced to hire a bankrupt, who in some circles is regarded as less than trustworthy, yet should also not be permitted to fire an employee who is otherwise a good employee.
It is expected that some 1.5 million people will file for bankruptcy this year, up from 1.4 million last year and less than a million in 2008. In these economic times, that is not surprising. What is surprising is that an employer would revoke an offer of employment to someone who had filed more than six years prior to the job offer.
Friday, December 10, 2010
Obama: Master Negotiator Against Himself
One of the first rules in labor negotiations is never to negotiate against yourself. So if your goal is to get a dollar an hour raise, you don't start at a dollar, then negotiate down from there. Likewise, if you are buying a car, you don't offer the dealer the asking price on the car. You offer less. Anyone who has bought a car understands this principle. For some reason, however, President Obama does not get this concept. From health care to the current tax bill, Obama starts in the middle, and then slowly works his way towards the Republicans.
This is what is perhaps so infuriating to liberals who Obama (as well as Fox News) have been slamming for criticising the tax deal. On health care, Obama quickly dropped the public option, and instead crafted a deal that, in the end, every single Republican opposed anyway. Health care then became a campaign issue for Republicans who called it socialism. If your enemies are going to oppose you at all costs, and if you are going to get tarred a socialist, shouldn't you at least craft legislation that is a little more "socialist?"
Likewise the tax cuts. What did Obama get in return for caving in to the Republican demand that the wealthiest in this country suffer no tax increases? Not a lot. He got a thirteen week extension of unemployment benefits -- keep in mind that there has never been opposition to federal unemployment benefit extentions when the unemployment rate was this high. He got a cut in payroll taxes, but only on the employee side of the ledger -- and as one columnist pointed out, cutting payroll taxes and starving Social Security has long been a right-wing dream. The payroll tax cut is also a benefit not enjoyed by state and federal workers, who don't pay into Social Security. He also got some tax breaks for investments. As Paul Krugman points out, how did Democrats get to the point that they have to plead with Republicans for tax cuts?
I'm not an economist, so I'm not sure whether the tax package is good or bad policy. I do know that Obama needs to stop negotiating against himself if he has wants to have any hope of controlling the next Republican Congress.
This is what is perhaps so infuriating to liberals who Obama (as well as Fox News) have been slamming for criticising the tax deal. On health care, Obama quickly dropped the public option, and instead crafted a deal that, in the end, every single Republican opposed anyway. Health care then became a campaign issue for Republicans who called it socialism. If your enemies are going to oppose you at all costs, and if you are going to get tarred a socialist, shouldn't you at least craft legislation that is a little more "socialist?"
Likewise the tax cuts. What did Obama get in return for caving in to the Republican demand that the wealthiest in this country suffer no tax increases? Not a lot. He got a thirteen week extension of unemployment benefits -- keep in mind that there has never been opposition to federal unemployment benefit extentions when the unemployment rate was this high. He got a cut in payroll taxes, but only on the employee side of the ledger -- and as one columnist pointed out, cutting payroll taxes and starving Social Security has long been a right-wing dream. The payroll tax cut is also a benefit not enjoyed by state and federal workers, who don't pay into Social Security. He also got some tax breaks for investments. As Paul Krugman points out, how did Democrats get to the point that they have to plead with Republicans for tax cuts?
I'm not an economist, so I'm not sure whether the tax package is good or bad policy. I do know that Obama needs to stop negotiating against himself if he has wants to have any hope of controlling the next Republican Congress.
Monday, December 6, 2010
The Glengarry Glen Ross Boss
In Huydens v. Prosper, a lawsuit claims that a supervisor would punish employees who did not meet performance expectations by drawing mustaches on their face with indelible marker. He'd also walk around the office with a wooden paddle, and slam it on tables and desks. The supervisor went too far for one employee, however, when the supervisor waterboarded him in the office.
According to the complaint, the supervisor asked for "volunteers" for a motivational exercise. The plaintiff alleges that he volunteered. The employee and others were brought to a hill near the office, where he was ordered to lie down with his face pointed downill. Other employees held his arms and legs, and the supervisor then poured water out of a gallon jug into his mouth and nose so he could not breathe.
The employee struggled, but was being held down by other employees and could not escape. At the conclusion of this team building exercise, the supervisor told employees they should "work as hard at making sales as Huydens had tried to breathe." The employee suffered nightmares and psychological difficulties, and ended up suing for a variety of claims.
The case ended up in the Utah Supreme Court after it was dismissed by a lower court judge. Incredibly, one reason the court below dismissed the assault charge was that the exercise was done not with the intent to harm the plaintiff, but as a motivational exercise. The Utah Supremes did not resolve the merits of the dispute, but instead send it back to the court for reconsideration.
Waterboarding in the office. What will they think of next.
Friday, December 3, 2010
Careful What You Tweet
As everyone knows by now, employees can be fired for things they do off duty, like post an inappropriate remarks about the boss on Facebook. Of course, the employee might be saved if the post implicates the National Labor Relations Act's restrictions on discharging someone for protected activity. The employee might also be saved if he or she has a union that will take their case to arbitration.
Take the matter of King Man Ho and Radio Free Asia. Last January, Hillary Clinton was in Hong Kong and gave a speech (ironically, it turns out) on internet freedom. Ho covered the story and quoted the reactions of two Chinese bloggers to the speech.
The bloggers accused Ho of misquoting them and being unethical on their Twitter accounts. Ho, trying to find out why they were making the accusations, used his own Twitter account to try and find out what was going on. Ho became somewhat agitated in his Tweets, eventually prompting his editor to tell him to stop Tweeting. Ho Tweeted one more time, which resulted in his termination for insubordination and violating RFA rules about appropriate behavior.
Had Ho been employed by a non-union employer, that would have been the end of the story. However, because Ho's union contract had a provision in it stating that employees could not be discharged except with "just cause," he was able to present his case to an arbitrator.
The arbitrator ruled that Ho was discharged without just cause, and reinstated him to employment with full back pay and benefits. The arbitrator acknowledged that the employer could have a policy regarding Tweeting, but held that it was unclear whether the policy had been violated given the circumstances of the case. Additionally, the arbitrator found that Ho was not guilty of insubordination because the directives he had been given by his supervisor were not very clear. The decision can be read here.
As technology evolves, so does the employer's ability to reach outside the workplace and fire employees for violating work rules on their own time. But with cases like the NLRA Facebook case and this one, sometimes old standards applied to new technology save the day.
Take the matter of King Man Ho and Radio Free Asia. Last January, Hillary Clinton was in Hong Kong and gave a speech (ironically, it turns out) on internet freedom. Ho covered the story and quoted the reactions of two Chinese bloggers to the speech.
The bloggers accused Ho of misquoting them and being unethical on their Twitter accounts. Ho, trying to find out why they were making the accusations, used his own Twitter account to try and find out what was going on. Ho became somewhat agitated in his Tweets, eventually prompting his editor to tell him to stop Tweeting. Ho Tweeted one more time, which resulted in his termination for insubordination and violating RFA rules about appropriate behavior.
Had Ho been employed by a non-union employer, that would have been the end of the story. However, because Ho's union contract had a provision in it stating that employees could not be discharged except with "just cause," he was able to present his case to an arbitrator.
The arbitrator ruled that Ho was discharged without just cause, and reinstated him to employment with full back pay and benefits. The arbitrator acknowledged that the employer could have a policy regarding Tweeting, but held that it was unclear whether the policy had been violated given the circumstances of the case. Additionally, the arbitrator found that Ho was not guilty of insubordination because the directives he had been given by his supervisor were not very clear. The decision can be read here.
As technology evolves, so does the employer's ability to reach outside the workplace and fire employees for violating work rules on their own time. But with cases like the NLRA Facebook case and this one, sometimes old standards applied to new technology save the day.
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