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Bureau of Labor Statistics: 2004 Unionization Numbers

The Bureau of Labor Statistics reports that private sector union membership was at 7.9% in 2004, about half of its rate in 1983.  Public sector unions have fared somewhat better, with 36% of government workers belonging to a union.  From the press release:

In 2004, full-time wage and salary workers who were union members had
median usual weekly earnings of $781, compared with a median of $612 for
wage and salary workers who were not represented by unions.

News of the Weird: McDonald's to Outsource Drive Through?

An Oregon McDonald's franchisee is considering outsourcing it's drive through operators to a franchise in North Dakota. 

From the article:

   The restaurant on Highway 395 has outsourced one of the most important jobs at the drive-through window -- order taking.

When a customer drives through, they'll be patched through to Grand Forks, North Dakota to place the order. Why? Because the minimum wage in North Dakota is $5.15, compared to Oregon's $7.25.

Colgate to slash 4400 jobs

Colgate-Palmolive Corp. announced on Tuesday that it would cut 4400 jobs and a third of its factories around the world.  The cuts amount to 12 percent of Colgate's international work force.  The company cited rising gasoline prices and other costs as the reason for the cuts.

Supreme Court Hears Argument on Whistleblower Protection for Title IX

In retaliatory discharge news, Lyle Dennison from SCOTUSBlog is talking about oral argument in Jackson v. Birmingham Board of Education. 

The facts:

The Jackson case is about a Birmingham, Ala., coach of a girls’ basketball team who protested that boys’ teams were treated more favorably in funding and facilities. He temporarily lost his coaching job, and he sued, claiming retaliation under Title IX. His case basically poses the question of how effective Title IX would be if whistle-blowers like him – coaches and teachers, for example – are unable to challenge sex bias, or are discouraged from doing so, either because they could not sue or because retaliation against them is not a violation of Title IX.

It's an interesting read.  Also, the always entertaining Dahlia Lithwick weighs in here. 

New NLRB Rules Take Effect

New NLRB rules have taken effect in the last few days. 

First, the board overruled (pdf) a Clinton administration NLRB precedent that allowed temporary workers to join the same unions as permanent employees.  The Board ruled that "multiemployer units" require the consent of both parties (i.e. the employers).  Temporary employees typically are subcontracted from their primary employer.  The overruled decision was MB Sturgis, 331 NLRB 1298.

Second, the board affirmed (pdf) an ALJ decision permitting the posting of work rules prohibiting the use of profanity.  Union advocates and the dissenting board members expressed concerns that posted rules could have a chilling effect on organizing efforts.

Whistleblower complaints up under Sarbanes-Oxley

The Associated Press is reporting that the number of whistleblowers reporting employer misconduct rose to 181 in the twelve months ending September 30.

The Sarbanes-Oxley Act, which was signed into law in 2002, created whistleblower protections for employees reporting possible financial fraud committed by their employer.  The Act makes it illegal for employers to terminate or retaliate against employees who report what they reasonably believe to be fraudulent activity taking place.  For example, Ammar Halloum reported that Intel was purposely delaying payment for factory parts in order to raise short-term earnings. 

Congress designated the Occupational Safety and Health Administration as the agency to administer the Sarbanes-Oxley whistleblower protection.  The Occupational Safety and Health Act provides some whistleblower protection for workers reporting unsafe working conditions to OSHA or seeking an OSHA inspection.

OSHA maintains a page with information about the various whistleblower programs it administers.

Abercrombie & Fitch Setttlement Accepted

Abercrombie and Fitch's proposed $40 million settlement of an employment discrimination case has been approved by the judge, reports the L.A. Times.  A spokesman for the company cites a desire to avoid protracted litigation as the impetus for the settlement, but the $40 million settlement shows that they feared their exposure in the case.

Despite some concerns in the blawgosphere over the meta-narrative of the case, so-called "image discrimination," it bears mentioning that even had the case gone to trial, the plaintiffs would still have to prove that their race or sex was a motivating factor in Abercrombie's adverse decisions.  Image discrimination is only a meta-narrative which seeks to show the way that the company's marketing policy caused decisionmakers to make impermissible judgments in hiring, promotion, and firing.  In other words, the emergence of a new field of "image discrimination law" doesn't seem to have been likely even in the event that the case was tried. 

University of Pennsylvania settles with NLRB, union

The University of Pennsylvania distributed an e-mail in the midst of a strike by graduate student-employees that warned that

"Staff members who do not report to work because of strike-related conditions may not be paid for the time absent and may be subject to disciplinary action."

The University, without admitting fault, agreed to send out a standard letter that says that administrators will not threaten employees "with possible discipline for concertedly engaging with other employees in refusing to cross lawful picket lines." It is an unfair labor practice to "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed" under the National Labor Relations Act. (section 8(a)(1)). Generally, a threat of disciplinary action in reprisal for collective activity is an unfair labor practice and may be cause for Board intervention.

Delta Pilots Agree to Slash Salaries

Delta Pilots voted to agree to a 32.5% cut in pay over the next five years, saving the embattled airline some $5 billion in wages over that time period.  The pilots will receive options to buy up to 15% of Delta's stock in exchange for the concession. 

Delta still faces a long and difficult struggle to return to profitability.

Delta to Cut Jobs

In an effort to avoid bankruptcy, Atlanta-based Delta Airlines announced today that it plans to cut between 6,000 and 6,900 jobs.

These staff reductions will take place over the next 18 months.  Delta also plans to cut pay by 10% for all employees as well as reduce benefits.  However, the airline intends to implement new employee incentive programs which include the issuance of 75 million shares of common stock. 

Shareholder approval will not be sought before implementing these changes.  According to Delta, the delay required to obtain shareholder approval could “seriously jeopardize” financial viability.  Shareholders will simply be notified of the plan by mail. 

United, Delta Continue Employee Wage, Benefit, and Position Reductions

Faced with continuing competition from lean competitors like jetBlue, United has announced plans to strike another $2 billion of costs, about two thirds of which will come from pay and benefit cuts.

Meanwhile, Delta plans to eliminate up to 6900 jobs, starting January 1st.

Uh oh! Outsourcing Lawyers

CNNMoney reports that 12,000 lawyer jobs were outsourced to other countries, including India and South Korea.  Foreign law professionals are only paid $20 to $70 an hour, far below even the least expensive U.S. lawyers.

The article does note that American licensing requirements place an upper limit on how many of these jobs can be moved.

Delta Pilots to Vote Today

Delta pilots are expected to vote today on a contract that will cut their pay by as much as one-third and provide no raises for the five-year contract.

This new contract is an effort to help the struggling airline avoid bankruptcy. Delta pilots are among the highest paid pilots in the nation. Their salaries currently range from $100,000 to $300,000 per year. In addition to pay cuts, the airline is seeking to cut other benefits such as pensions and also to revise work rules. However, the agreement will allow the pilots options to purchase up the fifteen percent of the company’s stock. The pay cut would be effective December 1st. A majority vote is needed to approve the new contract.

Non-union employees such as flight attendants and gate and ticket agents have already had their pay cut, as have executives. In addition to pay cuts, 16,000 employees have lost their jobs and another 7,000 jobs are expected to be cut in the next eighteen months.

Even if Delta’s pilots do agree to the new contract, there is no assurance that this will save the airline from bankruptcy. Delta is currently about $20.6 billion in debt and avoid bankruptcy the airline must also convince creditors to accept its restructuring plan.

Mass layoffs for September

Mass layoffs were slightly down from September 2003, at 68,972. Twenty-seven percent of the mass layoffs were in the manufacturing sector.

The BLS has a nice chart that shows year by year figures for September here.

$1.29 Million Jury Verdict against DuPont under ADA

DuPont subjected the plaintiff to rigorous physical testing, including climbing and standing for hours on end to determine if she was fit enough to work the job. The jury found that the test was neither job-related or consistent with business necessity.

No word on whether remittitur is being sought or granted on the punitive damages. EEOC press release here.

US Airways Sets Deadline for Employee Negotiations

US Airways Group, Inc. has set a deadline for unions to reach long-term concession agreements.

The unions have until mid-November to do so or the airline has said that it will seek court approval to throw out their contracts. The company has been negotiating with the Association of Flight Attendants, the International Association of Machinists, and the Communications Workers of America. So far, no long-term agreement has been reached.

The airline seeks to cut retiree benefits, and if the unions to not voluntarily concede the airline will seek to force the cuts. US Airways position is that it needs to concessions of $1 billion per year. On October 15, a bankruptcy court approved 21 percent wage cuts and other reductions in benefits for thousands of workers. However, this agreement ends mid-February. The company stated that of the $69 million and $72 million it expects to spend on retiree benefits in 2005 and 2006 respectively, most goes to retired pilots.

Delta and Pilots Resume Talks

Delta and their pilots’ union will resume discussions today regarding possible pay concessions the union will accept.

Negotiations broke off Sunday night when an agreement could not be reached. Delta Airlines says that concessions totaling $1 billion, one-third coming from pay cuts, are necessary for the airline to avoid bankruptcy. The pilots union has already offered $705 million in savings.

While the exact amount of concessions currently being offered by the union is unclear, a Delta spokesperson reported that it is substantially less than the $1 billion Delta claims it needs. The company also said that the pilots union is seeking a stock option program which includes substantially more equity than the airline has proposed.

Desert Palace and its effect on Summary Judgment

Over at Jotting's By an Employer's Lawyer, Michael Fox is talking about the effect of the decision in Desert Palace v. Costa, 539 U.S. 90 (2003) on Summary Judgment precedent. The 8th Circuit has recently said that Desert Palace doesn't alter the Summary Judgment standard in discrimination cases at all. I couldn't disagree with Michael and the 8th Circuit more. Analysis after the jump.

Michael points to this quote from the 8th Circuit:

We have long recognized and followed this principle in applying McDonnell Douglas by holding that a plaintiff may survive the defendant’s motion for summary judgment in one of two ways. The first is by proof of “direct evidence” of discrimination. Direct evidence in this context is not the converse of circumstantial evidence, as many seem to assume. Rather, direct evidence is evidence “showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated” the adverse employment action. Thomas v. First Nat’l Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997). Thus, “direct” refers to the causal strength of the proof, not whether it is “circumstantial” evidence. A plaintiff with strong (direct) evidence that illegal discrimination motivated the employer’s adverse action does not need the three-part McDonnell Douglas analysis to get to the jury, regardless of whether his strong evidence is circumstantial. But if the plaintiff lacks evidence that clearly points to the presence of an illegal motive, he must avoid summary judgment by creating the requisite inference of unlawful discrimination through the McDonnell Douglas analysis, including sufficient evidence of pretext. See, e.g., Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 971 (8th Cir. 1994). This formulation is entirely consistent with Desert Palace. Thus, we conclude that Desert Palace had no impact on prior Eighth Circuit summary judgment decisions.

This is great stuff for employer's lawyers, no doubt, but I would argue that it fundamentally misrepresents Desert Palace. The 8th Circuit here argues that a plaintiff must have stronger causal proof to bypass the McDonnell Douglas analysis on summary judgment. But the majority in Desert Palace seems to have specifically foreclosed this argument:

Our precedents make clear that the starting point for our analysis is the statutory text. See Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254, 117 L. Ed. 2d 391, 112 S. Ct. 1146 (1992). And where, as here, the words of the statute are unambiguous, the "'judicial inquiry is complete.'" Id., at 254, 117 L Ed 2d 391, 112 S Ct 1146 (quoting Rubin v. United States, 449 U.S. 424, 430, 66 L. Ed. 2d 633, 101 S. Ct. 698 (1981)). Section 2000e-2(m) unambiguously states that a plaintiff need only "demonstrate" that an employer used a forbidden consideration with respect to "any employment practice." On its face, the statute does not mention, much less require, that a plaintiff make a heightened showing through direct evidence. Indeed, petitioner concedes as much. Tr. of Oral Arg. 9.

Moreover, Congress explicitly defined the term "demonstrates" in the 1991 Act, leaving little doubt that no special evidentiary showing is required. Title VII defines the term "'demonstrates'" as to "meet the burdens of production and persuasion." § 2000e(m). If Congress intended the term "'demonstrates'" to require that the "burdens of production and persuasion" be met by direct evidence or some other heightened showing, it could have made that intent clear by including language to that effect in § 2000e(m). Its failure to do so is significant, for Congress has been unequivocal when imposing heightened proof requirements in other circumstances, including in other provisions of Title 42.

The Supreme Court seems to have said, in so many words, that there is no heightened evidentiary requirement to reach the mixed motive framework (Price Waterhouse). The 8th Circuit, by allowing cases without strong causal evidence to be forced into the (defendant-friendly) pretext paradigm, has indirectly imposed a heightened evidentiary requirement on plaintiffs: those lacking some piece of dynamite causal evidence are (perversely) forced into a more difficult showing to get past summary judgment.

What is the fate of the McDonnell Douglas pretext framework?

I would argue that the pretext framework still has a role at Summary Judgment, but only just.

The pretext framework allows the court to eliminate "the most common nondiscriminatory reasons for the plaintiff's rejection." Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 250 (1981). In other words, the three step framework can be used to judge whether the parties have met their respective burdens of production to create an issue of genuine material fact. Thus, in a sex discrimination case:

1. The plaintiff makes the initial showing: she is a woman; she was qualified to hold the position; despite her qualifications, she received an adverse action or decision; and after the decision, the position remained open or was filled by an employee with similar or inferior qualifications. McDonnell Douglas, 411 U.S. at 802. The plaintiff thereby creates a presumption of discrimination.

2. The defendant makes its initial showing: it produces evidence of a legitimate, nondiscriminatory reason for its decision, and thereby rebuts the presumption, leaving the actual fact of discrimination in dispute.

At this point, McDonnell Douglas "bursts" and goes away (see question at the bottom of page 10; Justice Breyer, perhaps?). Look also at the colloquy that follows.

Of course, I don't claim that you can extract something like this from an oral argument transcript as a holding, but I think it is persuasive in that it shows the thinking of one of the majority justices in Desert Palace. And of course, we have other dicta that say that McDonnell Douglas was never meant to be rigid, mechanistic, or ritualistic. Furnco Const. Corp. v. Waters, 438 U.S. 567, 577 (1978).

In other words, McDonnell Douglas is one way that a plaintiff can plead his or her case. It gives a nice schema for creating a prima facie case of discrimination, which, once rebutted, becomes a factual matter.

This is not to say that some exceptionally weak or strong cases could not be eliminated on summary judgment. It just means that judges have to go back to that old standby, discretion, for evaluating when the evidence in a particular case is so weak or strong that the judge can decide the case as a matter of law. Consistent with Desert Palace, this is just a return to normal rules of civil procedure and litigation.

U.S. weekly wages up 2.3% over one year ago

The Bureau of Labor Statistics is reporting (PDF) that median weekly wages rose to $632 in the third quarter of 2004. The Consumer Price Index increased by 2.7% over the same period, slightly decreasing the buying power of the median American wage.

More statistics after the jump.

From the report:

Women who usually worked full time had median earnings of $571 per week, or 81.1 percent of the $704 median for men. The female-to-male earnings ratios were higher among Hispanics or Latinos (90.1 percent) and blacks (89.1 percent) than among whites (80.9 percent) or Asians (73.5 percent). (See table 1.) Median earnings for black men working at full-time jobs were $570 per week, 79.1 percent of the median for white men ($721). The difference was less among women, as black women's median earnings ($508) were 87.1 percent of those for their white counterparts ($583). Overall, median earnings of Hispanics or Latinos who worked full time ($458) were lower than those of blacks ($531), whites ($651), and Asians ($701).

Honeywell Settles Age Discrimination Case

Honeywell settled an Age Discrimination case brought by the Equal Employment Opportunity Commission (EEOC) for $2.15 million. As part of the agreement, Honeywell has admitted no wrongdoing under the Age Discrimination in Employment Act of 1967.

According to EEOC's suit, a class of sales managers and representatives were either terminated or demoted in 1997 because of their age during a companywide reorganization. Assertedly, in many instances, younger workers with less experience were retained and/or offered those positions. The suit was filed in federal district court in New Jersey by the agency's Philadelphia District Office.

The two parties settled "to avoid the time, expense and uncertainty of further litigation."

September Job Numbers Released

From Reuters:

WASHINGTON (Reuters) - U.S. businesses added 96,000 jobs to payrolls in September, the government reported on Friday, a weaker-than-expected total that was expected to sharpen a presidential debate later in the day over the economy's direction.

Economists had estimated that the U.S. economy would create 148,000 new jobs in September. The story also reports that August estimates were revised downwards from 144,000 to 128,000. In September, the economy lost 18,000 manufacturing jobs after two months of manufacturing increases.

US Airways Plans to Eliminate Hundreds of Jobs

Employees of US Airways Group, Inc. learned yesterday that the airline plans to cut hundreds of jobs and reduce executive pay by 5-10 percent as a result of its Chapter 11 reorganization.

The airline filed for bankruptcy last month for the second time in only two years. Currently, the organization has a $201 million management payroll, a number it plans to reduce by $45 million. This will be done through a 5-10 percent reduction in executive pay, reducing paid holidays by 20 percent, and replacing sick and holiday leave with paid time off based on seniority. Contributions to management retirement plans will be reduced from 13 percent to 3 percent. Also, retiree benefits will be reduced and retirees will have to pay a higher deductible.

The airline says that these cuts are an attempt to save $950 million from labor unions. US Airways has reached agreements with some employees, but has been unable to come to an agreement with some labor groups. US Airways will ask a bankruptcy judge on Thursday to impose a temporary 23 percent pay cut on these employees, stating that the airline could be forced to liquidate by February without the pay cut.

$320 million settlement between IBM, employees

...but that's not even really the interesting part. The interesting part of the announcement is the issue that was not settled.

IBM is still planning to appeal another finding of the District Court which held that so-called "cash balance" pension plans are illegally discriminatory towards older workers. Cash balance plans, a relatively young innovation:

Since 1995, a fifth of large companies have converted their traditional defined-benefit pension plans, which pay a monthly sum based on salary and years of work, to cash-balance plans, which allow employees to accrue benefits at a fixed rate over their careers. A switch to cash-balance plans can cause older workers to lose a chunk of their benefits.

Companies like the cash-balance design because it allows them to shrink long-term pension debt and reap accounting gains while still providing benefits to employees.

Because younger workers can benefit from compounding interest to a much greater extent than older workers, Judge Murphy of the Southern District of Illinois has ruled that cash benefit plans discriminate on the basis of age.

For older workers with years in a traditional plan, the switch to a cash-balance plan at age 45 or older can halve the benefits they ultimately collect, compared with a traditional defined-benefit plan.

IBM is on the hook for nearly an additional $800 million to its older employees if the ruling holds. More broadly, many large companies began to switch to cash balance plans in the mid 1990's.

Companies like the cash-balance design because it allows them to shrink long-term pension debt and reap accounting gains while still providing benefits to employees.

The Times reports that conversions to cash balance plans are on hold while their legality is determined.

Deaths at work up in 2003

Workplace fatalities inched up in 2003 to 5,559 from 5,534 in 2002. This is not a statistically significant increase, as both numbers translate to approximately 4 deaths per 100,000 workers.

(link via Workers Comp Insider).

10,000 forced laborers in U.S., according to study

Berkeley's Human Rights Center has released a study on Capitol Hill today that claims that there are as many as 10,000 workers laboring for little or no pay in the United States.

The Washington Post reports that the 10,000 person estimate is actually lower than the U.S. Department of Justice estimate of 14,500 people annually trafficked into the U.S.

Delta to Cut Employee Pay 10%

In an effort avoid bankruptcy, Delta Airlines announced on Tuesday that it will cut pay by 10% for all employees. Executives are also subject to the pay cut, in fact, Delta’s CEO will not be paid the rest of the year.

Delta pilots agreed to allow Delta to contract with retired pilots if needed. Their agreement was in exchange for Delta’s assurance that they will not cancel the pension plans of their pilots before February 1, regardless of the company’s bankruptcy status. Delta is also going to increase the amount it pays into employee shared health costs while offering two voluntary exit packages to employees. Chief Executive Gerald Grinstein is seeking the cooperation of all employees. In a memo to employees, Grinstein stated ``We have a small window of opportunity available to us to avoid Chapter 11 that some other carriers do not have. It is in everyone's best interest that we protect Delta's future by taking these steps together now.''

OSHA Fines for Winn Dixie Lock in

Over at Workers Comp Insider, they are talking about OSHA fines levied against the Winn Dixie Supermarket chain. Unlike the Wal-Mart story from earlier this year, none of the Winn Dixie employees were injured during one of the lockins. Instead, the complaint seems to have originated from some sort of anonymous tip.

As the Insider notes, employers open themselves to enormous potential liability when the demonstrate, in the words of OSHA, "willfull disregard for employee safety." The Insider doesn't note the possibility of serious criminal sanctions against the managers who made the decision to lock in employees. Such a thing certainly did happen at the turn of the century in the 1911 Triangle Factory Fire. What was that saying about learning from history?

US Air Reaches Cost-Cutting Agreement with Employees

The Washington Post is reporting that US Airways has reached a tentative $4.5 million cost-cutting agreement with the dispatchers union, Transport Workers Union Dispatchers Local 45. The settlement must be approved by the bankruptcy court before it takes effect.

US Airways has a long way to go. It needs to cut about $800 million in labor costs, and the dispatchers represent only a tiny fraction of the carrier's total workforce. The airline has proposed cutting the salaries of its pilots by almost 20% across the board, a huge cut.

Homestore Sued by Former Employee over Overtime Dispute

Homestore, an online firm specializing in housing sales and rentals, is being sued by a former employee who alleges that the firm illegally classified a whole class of employees in such a way that they were deprived of overtime pay.

The suit seeks certification as a class-action suit and seeks unspecified damages.

The employee, a Ms. Hathaway, was an account executive with the company. The suit arises under California labor law, which has more stringent standards than those imposed under the Federal Fair Labor Standards Act. Under California law, an employee who could otherwise be characterized as a manager is still eligible for overtime if she spends more than 50% of her time doing the job duties of hourly workers.

Private Security Firm Charged with Multiple Federal Law Violations

Wackenhut, a "leading provider of contract services to major corporations, government agencies, and a wide range of industrial and commercial customers," was charged by the National Labor Relations Board with violations of Federal Labor Law, chiefly relating to interference with union organizing activity orchestrated by Service Employees International Union.

Wackenhut will now have an administrative hearing before an NLRB administrative law judge. Among the alleged violations, Wackenhut is accused of threatening to eliminate raises, transfer or terminate employees, as well as engaging in possibly illegal surveillance practices.

Fight Over NHL Salary Cap: No Hockey this Year?

The National Hockey League's collective bargaining agreement is set to expire at midnight Wednesday. Management is insisting on implementing a salary-cap, a change to which the Player's Association is adamantly opposed. Even if the two sides come to some agreement on a salary cap, there will likely be a number of other issues to work out.

At this stage, it's more likely that there will be at least a brief lockout, with some possibility that the whole NHL season will be canceled.

Cracker Barrel Pays $8.7 Million in Discrimination Settlement

The Employment Discrimination suit alleged that about a dozen black employees were segregated from the white employees and given kitchen work away from the customers. The $8.7 Million figure represents a settlement of all outstanding discrimination claims against the chain, which include 42 customers as well as the aforementioned employees.

See the AP story here.

House Votes to Block Implementation of New Overtime Rules

In a 223-193 vote, the House of Representatives voted to block implementation of the new overtime rules. The vote was on an amendment to a spending bill currently being assembled in that body.

Passage of the amendment doesn't effect any change in the overtime rules. It must first be passed by the Senate, then it must survive the conference committee that meets to iron out differences between the House and Senate versions of the bill. Even if the amendment manages to survive the legislative phase, the whole bill faces a threatened veto if the amendment is still included.

Thanks to "Jottings by an Employer's Lawyer" for the heads-up.

Brewing Conflict in AFL-CIO

AFL-CIO head John Sweeney may be fighting off a power struggle against his one time protege after the November elections. Andrew Stern, Sweeney's successor at the Service Employees International Union (SEIU), is advocating for consolidation of many of the AFL-CIO's many unions and more aggressive recruiting as the prescription to save the labor movement.

Union membership has been freefalling for many years, with Union representation hovering around 13% of the workforce, roughly 16 million workers. Unions have had great difficulty adapting to a changing American economy that features increasing consolidation of large industries and unions competing to unionize the same workers. From the article:

Heightened corporate power has checked union growth, too. Unionization elections are typically so lopsided today that most unions have all but given up on them. Most employers pull out the stops when labor organizers appear, using everything from mandatory antiunion meetings to staged videos showing alleged union thugs beating workers, backed by streams of leaflets and letters to workers' homes. While most of these tactics are legal, companies also illegally fire union supporters in 25% of all elections, according to studies of federal data by Cornell University labor researcher Kate Bronfenbrenner. That's triple the percentage of the 1960s. So companies are often able to turn employees against a union, even though a rising number of Americans have said in national polls over the past two decades that they would join one.

SEIU, on the other hand, stands in marked contrast to the labor movement as a whole. Stern has devoted huge resources to grow SEIU, with the union now boasting nearly four times as many members as when Sweeney took over the organization and nearly twice as many members as when Stern took the reins.

144,000 new jobs for August

The Department of Labor reports that 144,000 new payroll jobs were created in August, slightly below a consensus forecast of 150,000. The numbers represented a substantial improvement over the anemic July numbers, when economists estimated that only 32,000 new jobs were created. The July estimates were also revised upwards to 73,000 with the release of the August numbers.

Economists cite several reasons for the slow hiring that, despite political rhetoric by both parties, are largely outside the control of political officials. Among the factors listed: overhiring at the end of the Technology bubble, large productivity increases, and double-digit increases in health insurance costs.

Also significant is the changing dynamic of the American workforce. Of the 1.7 million jobs added to the American economy since August 2003, only 109,000 were factory jobs. Manufacturers have reduced their payrolls by more than 2 million employees in the last three years.

NLRB Delivers Blow to Grad Student Unionization

The NLRB has made its second decision in two months repudiating the right of graduate students to bargain collectively. First, in July, the NLRB ruled against Brown University. Then the Board ruled against grad students at the University of Pennsylvania on August 26th, relying on their ruling in Brown.

In its Brown decision, the Board said that "[b]ecause they are first and foremost students, and their status as a graduate assistant is contingent on their continued enrollment as students, we find that they are primarily students." Thus, they are not employees under the National Labor Relations Act. The decision has been criticized as political, going against the Union 3-2 along party lines.

These decisions represent a reversal of a prior NLRB precedent, involving NYU's graduate and teaching assistants, where the NLRB held that "[c]onsistent with Supreme Court and Board precedent, we find that the graduate assistants are employees within the meaning of Section 2(3). We reject the contention of the Employer and several of the amici that, because the graduate assistants may be “predominately students,” they cannot be statutory employees. Like the Regional Director, we find there is no basis to deny collective-bargaining rights to statutory employees merely because they are employed by an educational institution in which they are enrolled as students." The NYU precedent represents a decision of the Clinton-era NLRB, when the political makeup of the board was different.

These decisions may be of particular interest to members of TAA, the UW-Madison Teaching Assistant Union, who last Spring held a labor strike to protest pay cuts and a rising health care burden.

Small Business Owners' Outcry Is Minimal As Congress Likely To Raise Minimum Wage

Once again, the debate over the minimum wage has reached the doorsteps of Washington. Yet, unlike recent debates, Republicans and Democrats alike believe that the minimum floor is likely to rise by at-least $1 over the next couple of years. This debate is occurring without much outcry by small business owners (who are traditionally in strongest opposition to minimum wage hikes).

In a recent NFIB (National Federation of Independent Businesses) poll, the minimum wage issue ranked 57th out of 75 top concerns in the category of small business problems and priorities. Another possible reason why outcry may be minimal is because the Republicans plan to attach a bill granting new tax breaks for small businesses along with the minimum wage bill.

Under the most generous proposals, the minimum wage could rise to as high as $7 over the next two years. A raise to $7 would represent an annual increase of 4% from the last time the minimum wage was raised.

Pension crunch worsens; legislative solutions considered

Approximately 119,000 current and former employees of United Airlines may lose their pension coverage in order for United to escape bankruptcy, as reported in this space.

Now, according to The Rocky Mountain News, the Bush administration may be considering a legislative fix. Such a solution could take several forms, ranging from a fairly mild time extension for United to fund its plans to changing bankruptcy law to make the Pension Benefits Guarantee Corporation a more powerful creditor.

Unfortunately for United and its employees, any such legislative solution is unlikely to come in time to protect even the full amount of United's current obligations. What's worse, such a decision by United could potentially ripple through other airlines, endangering benefits throughout the industry as United's rivals struggle to compete.

New Overtime Rules Take Effect, Some States More Employee-Friendly

New Federal overtime rules took effect Monday, but more generous state employment laws are still in effect under the Fair Labor Standards Act (FLSA), reports Krysten Crawford at CNN/Money.

The new federal standard, followed by 32 states, raises the salary level below which a worker must be paid overtime to $23,660 per year or $455 per week. The new rules also considerably loosen the standards for determining which employees may be exempted from overtime compensation by redefining what sort of work constitutes functioning in a managerial capacity (managers have long been exempted from overtime compensation).

However, 18 states have more generous provisions for employees. Under the FLSA, the more generous of the state or federal standards sets the minimum requirements for overtime compensation. One of these states, Illinois, actually created more generous standards as a reaction to the proposed federal rule changes.

The goal of the revised rules was to simplify FLSA compliance for businesses operating in multiple states. By raising the "floor," it was hoped that the new rules would simplify compliance for national chains, eliminating costly litigation. However, Crawford opines that the likely short term effect will be more rather than less litigation as employers and employees struggle to give definition to the new dividing lines between exempt and non-exempt employees. In the near future, compliance will probably be easiest in the 17 states where the rules have not recently changed.