Outten & Golden: Empowering Employees in the Workplace

Archive for November, 2003

Labor Strikes: Effective Strategy or Outmoded Process? And Does It Matter with Wal-Mart Around?

Wednesday, November 12th, 2003

A traditional strike, where employees refuse to work until a satisfactory labor contract has been reached between their union and their employer, has always been one of the most effective weapons that a union has to encourage an employer to accede to union demands. A recent news article, however, in analyzing the current grocery workers’ strike in Southern California, notes the decline in the number of strikes in recent years, and questions whether unions will be able to continue using strikes effectively. (See Indianapolis Star article.) And regardless of how the SoCal strike ends, is the real winner going to be non-unionized Wal-Mart, who by planning to open new SuperCenters with groceries in Southern California, appears to be driving down wages and benefits industry-wide?

In an article in today’s Indianapolis Star, reporter Bill W. Hornaday claims that strikes are becoming a “workplace relic.” According to Department of Labor statistics, just 19 work stoppages idled 1,000 or more workers last year — about one-tenth as many as the 187 recorded in 1980, while only eight such job actions have occurred so far this year — a tally that does not count UFCW walkouts against Kroger and some affiliates in California, Kentucky, Ohio and West Virginia. What accounts for the decline in the number of strikes? One expert, Victor Devinatz, a management professor at Illinois State University, attributes the decline to two developments: a corporate crackdown against organized labor (starting around 1980) and a broader global economy that discourages lengthy standoffs.

After companies began taking a much harder line against unions around 1980, within three years the number of large-scale work stoppages was cut in half….With a more global economy, workers are more afraid to risk their jobs. They fear they may be outsourced, moved to another location or that the company can be profitable without them.

Devinatz also notes that the Federal Mediation and Conciliation Service, a U.S. government agency which provides mediation and arbitration services in labor disputes, also has been successful at averting many strikes (as many as 80 percent) before they begin.

However, resorting to the hardball tactics that both sides adopt in a strike situation can be necessary when the stakes are high. According to University of Illinois-Chicago labor historian Robert Bruno, “The old model of negotiating in a win-lose way is still prevalent. It still makes sense to bargain in a hard-edge way.” Both sides often take strategical positions, such as when employer negotiators abruptly end negotiations after making what they deem a “last, best and final” offer. This sends a unmistakable message: “You break off negotiations at a point when you feel the union is not making any further movement that is not necessary,” said David Diamond, a partner at Proskauer Rose LLP who has litigated labor disputes for more than 20 years. “This really sends a message to them that you’re prepared to strike and daring them to do so.”

At this point, the ball is back in the union’s court, says Eli Bortman, a visiting assistant professor of business law at Babson College. “The union’s risk is that they can threaten a strike, and repeat the threat over and over — perhaps with rallies to show they’ve got their picket signs already printed and their picketing schedules prepared.” Yet the threat of a strike almost always packs more of a punch than the strike itself, which in turns depends largely on the resolve of union members, he said. “Once they go out, the threat is gone. So (unions) really do need to gauge the brink carefully.”

In the current grocery strike in Southern California, both sides understand the significance of the strike that is now over a month old. It’s not just about health care benefits for United Food & Commercial Workers members in Southern California, but about the grocery industry in general, the union movement in general, and perhaps even the service industry in general. As New York Times reporter Steven Greenhouse characterizes it,

For the cashiers and stockers on the picket lines, the fight to fend off large-scale concessions is a struggle to avoid being thrown into one of America’s lowest castes, the working poor. But for the supermarkets, the confrontation, the biggest labor dispute in the nation in recent years, is a painful investment to ensure that they can survive against Wal-Mart and other low-cost rivals. (See New York Times article.)

As Ruth Milkman, head of the University of California Institute for Labor and Employment, calls it: “This is a real defining moment, not only for the UFCW but for unions. And to me it is deeply significant that it is happening here in Southern California, which is the home of labor’s revitalization.” (See Chicago Tribune article.)

And what’s at stake for employers? According to Steven A. Burd, chief executive of Safeway, one of the three chains involved in the current strike, “We view this as an investment in our future. And I’m confident that my bargaining partners view it exactly the same.” (See New York Times article.) One Wall Street analyst, Mark Husson, a food retail analyst with Merrill Lynch, tolerates the strike as essentially a pesky, annoying, yet essential price for employers to pay: “Investors need to look at strikes like a visit to the dentist. Never something to look forward to, but preferable to waking up next to false teeth in a glass. … The cost of not taking the strike is higher; like the dentist visit, it is the lesser of two evils.” (See Chicago Tribune article.)

No matter how the Southern California grocery strike is ultimately resolved, the true winner in all of this may be Wal-Mart, whose shoppers, looking for its “everyday low prices,” are mostly unaware of the impact the country’s largest private employer (second only to the U.S. government) has on workers’ wages. (See USA Today article.) The average full-time union grocery worker earns about $12.48 an hour, nearly 30 percent more than a non-union counterpart at Wal-Mart and others, and is nearly twice as likely to have a company-paid health insurance and pension plan. (See Chicago Tribune article.)

Given that many if not most employees do pay something towards the cost of their health care, the grocery chains’ demands may seem fairly reasonable to those who know relatively little about what’s at stake. But once Southern California grocery workers give in to Wal-Mart, then other unionized service industry jobs will face the same pressure to give in on wages and benefits. And then Wal-Mart will have succeeded, not only in depressing wages and benefits for its own workers but for many millions of other workers in industries either competing with or servicing Wal-Mart. The Southern California grocery workers clearly understand what a tragedy for the American worker that would be. We hope that they will be able to keep up the good fight as long as necessary to beat back this threat.

This Time, It's Sex Discrimination: New Claims of Bias on Judicial Nominees

Monday, November 10th, 2003

Senate Republicans unhappy with the progress of certain extremist federal judicial nominees now have a new claim to make: that Democrats opposing the nominations of Janice Rogers Brown, Carolyn Kuhl, and Priscilla Owen are engaging in sex discrimination by refusing to allow these nominations to move forward. While this technique to date has not been successful when applied to other nominees, such as Miguel Estrada (national origin discrimination) and Bill Pryor (religious discrimination), this is not stopping the Republican leadership from planning a 30-hour debate this week on the Senate floor, where it is expected that the debate will focus on the female nominees named above, in an effort to move their nominations forward in the Senate, after narrow approval among party lines by the Senate Judiciary Committee.

On Thursday, November 6, the nominee battle proceeded on two separate fronts. Janice Rogers Brown’s nomination to the DC Circuit Court of Appeals was under consideration in the Senate Judiciary Committee, while Bill Pryor’s nomination was the subject of a cloture vote, in an effort to break the log-jam his nomination has faced thus far in the full Senate. As expected, Brown’s nomination was approved on a 10-9 party line vote, and now moves to the full Senate. (See The Recorder article.) Some of the harshest criticism directed at Brown came from home-state senator Dianne Feinstein, who charged that she had “never seen a nominee who in their public utterances and while sitting on a court state[d] such extreme views — views that are starkly out of mainstream American thought.” Sen. Dick Durbin similarly decried Brown’s nomination, saying that “Justice Brown’s speeches do more than stir the pot. They knock it off the stove.” Black leaders similarly objected to the nomination of Brown, who is African-American, as an effort to play the race card. (See Atlanta Journal-Constitution article.)

Said Julian Bond, national NAACP board chairman,

One could almost believe these nominations are put forward in the contemptuous hope they will be rejected, allowing right-thinking senators to be condemned as anti-black, anti-Latino, anti-woman and anti-Catholic. They seem to think Americans are too stupid to see this crass act for what it is: playing the race card, the ethnicity card, the gender card, the religious card — playing a cheap political game with justice.

On the same day on the floor in the Senate, Republican Senators attempted to end a filibuster which has prevented the confirmation of Bill Pryor’s nomination to the 11th Circuit Court of Appeals. In a vote of 51-43, Republicans were 9 votes short of the 60 votes needed need to close debate and end the filibuster. Democrats claimed the vote was just for show, since the Republicans had not been able to get new votes in support of Pryor’s nomination since a previous cloture vote. (In fact, this time there were fewer votes in support of Pryor than before, since two previous GOP backers were absent during Thursday’s vote.) (See Montgomery Advertiser article.) While the outcome of this vote was expected, it nonetheless highlights the continuing rift between the parties on judicial nominees, and may very well represent an end to any hope Pryor and his supporters may have of moving his nomination forward.

Whether you agree with Julian Bond or not, it does appear the next charge that Republicans intend to make against Democrats who have been stalling judicial nominees is that they are anti-woman, for preventing the confirmation of Brown, Kuhl and Owen, after previously playing the Hispanic card with Miguel Estrada’s nomination and the religious card with Bill Pryor’s nomination. On Thursday, the Republican leadership announced that it will begin a 30-hour discussion of judicial nominees, called the “Justice for Judges Marathon,” starting on Wednesday evening (November 13) and continuing through Friday morning (November 15). (See Washington Post article.) While Republicans bring in cots and food, and Sen. John McCain suggests that the chamber be divided into “snoring” and “non-snoring” sections, Democrats deride the event as a publicity stunt which is taking away from necessary debate on other key issues.

According to a New York Times editorial, Republicans are expected to focus the debate on the three female nominees, Brown, Owen and Kuhl. The editorial notes,

Republicans will no doubt charge Democrats with sexism, as they have made accusations of anti-Hispanic and anti-Catholic bias in other cases. But much of the opposition to these nominees, including from Democratic women in the Senate, is based on their stands on issues of concern to women, including abortion rights, privacy and workplace discrimination.

While it is not clear what difference, if any, this debate will make, either in the outcome of any particular stalled nomination or each party’s stance on nominees generally, it is important for your Senators to hear how you feel about this debate and these nominees.

Demand Fair Judges: Vote NO on Janice Rogers Brown

Demand Fair Judges: Vote NO on Carolyn Kuhl

Demand Fair Judges: Vote NO on Priscilla Owen

Virtual Lobby Days...Make a Difference from the Comfort of Your Own Home

Wednesday, November 5th, 2003

It’s time to kick it up a notch, as Emeril would say. Tomorrow, Thursday, November 6, is a Virtual Lobby Day, designed to encourage the passage of the Civil Rights Tax Relief Act (House version/Senate version). Jointly cosponsored by Workplace Fairness and our allied organization, the National Employment Lawyers Association, Virtual Lobby Days are designed to ensure that members of Congress hear from thousands of their constitutents in a single day about how important that it is to pass the CRTRA this year, before Congress adjourns in the next month or so. It’s difficult for most people to make it to Washington, DC to personally lobby Congress, but anyone can take five minutes or less to contact his or her member of Congress. Our Action Center makes it just that easy — it’s the next best thing to being there in person!

Why is this legislation so important? The current tax law is unfair to workers. In many states, workers who win their employment discrimination cases can expect to be taxed on the attorneys’ fee portion of their award, money that goes directly to their attorneys. In addition, where a lump-sum award is meant to compensate for years of lost salary and benefits, these workers can look forward to paying unreasonably high taxes on the award. The IRS allows the award to bump the worker up into a much higher tax bracket than had the money been paid out in salary over many years of discrimination-free service to his or her employer. The Civil Rights Tax Relief Act would remedy these unfair tax policies!

How can you help? On Thursday, November 6th 2003, Workplace Fairness and NELA intend to blanket Senators and Representatives with letters, faxes, phone calls and emails from individuals across America, urging them to support this important legislation. It’s easy to participate in Virtual Lobby Days from home. Just call or e-mail your Senators and Representative on Thursday November 6 to ask that your member of Congress support and cosponsor the CRTRA. You can call your Senator by dialing the Senate Operator at (202) 224-3121 and asking for your Senator’s office, and can reach your Representative by dialing the House Operator at (202) 225-3121 and asking for your Representative’s office. To get started, please go to our Virtual Lobby Day page, Workers in Action for Tax Fairness, and read about the key points to be addressed by the proposed law. If you need more information, please go to our site’s Fair Taxes page, where you’ll find even more information about this issue, including the key talking points about the bill.

From that point, you can either send a message to your members of Congress directly from our site via e-mail, or you can use the information listed there for your talking points when you phone Congressional offices. For House offices, please let the person with whom you speak know that you are asking that HR 1155 be included with any tax legislation to be considered this year; for Senate offices, please let the person with whom you speak know that you are asking that S 557 be included with any tax legislation to be considered this year. You should also ask your Representative or Senator to become a bill cosponsor, if he or she is not already a cosponsor of the bill, which you can check here: House cosponsors/Senate cosponsors If you contact Congressional offices via telephone, please let us know the outcome by e-mailing Workplace Fairness with information about who you spoke to and the Congressperson’s position on the bill (if you were told that information during the conversation).

While it is important to have as many participants in Virtual Lobby Days as we can, we especially need residents of the following states, who all have senators on the Senate Finance Committee, to participate:

Republican Members:

Grassley (Iowa), Hatch (Utah), Nickles (Oklahoma), Lott (Mississippi), Snowe (Maine), Kyl (Arizona), Thomas (Wyoming), Santorum (Pennsylvania), Frist (Tennessee), Smith (Oregon), Bunning (Kentucky).

Democratic Members

Democrats: Baucus (Montana), Rockefeller (West Virginia), Daschle (South Dakota), Breaux (Louisiana), Conrad (North Dakota), Graham (Florida), Jeffords (Independent – Vermont–aligned with the Democrats on the committee for representation and (generally) voting purposes), Bingaman (New Mexico), Kerry (Massachusetts), and Lincoln (Arkansas).

And if one of the listed Representatives represents your Congressional district, we really need you as well to contact these key Representatives on the House Ways and Means Committee:

Republican Members:

Rep. Clay Shaw (FL-22), Rep. Rob Portman (OH-2), Rep. Jerry Weller (IL-11), Rep. Kevin Brady (TX-8), and Rep. Paul Ryan (WI-1).

While the Civil Rights Tax Relief Act competes with thousands of other bills for the attention and support of Congress, we are confident that we are on track for success. In fact, the full Senate included the attorneys’ fee provision of the bill in its version of the President’s Tax Bill that passed earlier this year! Although this was progress, it was unfortunately dropped from the final legislation. Since that time, thanks to a major push by organizations such as Workplace Fairness & NELA, in conjunction with support from such quarters as the U.S. Chamber of Commerce and the American Bar Association, our chances of passing the CRTRA are now greater than ever.

If you haven’t done so already, please also take the time to sign up for email alerts on the Civil Rights Tax Relief Act and other Workplace Fairness legislative efforts. Sign up here. You can also help us spread the word, and involve supportive friends and family members, by using our Tell-a-Friend feature. If you’re an employee rights attorney, and would like to learn more about NELA’s efforts or send your Action Alert through NELA, visit NELA’s Virtual Lobby Day page.

Even though you are not in Washington, DC, you can play a very key role in supporting the efforts of those who are there lobbying. Just imagine the impact in Congressional offices when the office is simultaneously flooded with calls and e-mails about the very same issue. It definitely lends credence to those who are there lobbying on behalf of this issue when they say that they’re only one of many who care about this issue. Even if you’ve already sent a letter, it’s time to reinforce the importance of getting this legislation passed NOW, before Congress goes home for the holidays. The time is now, so please help us today!

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