Another Periodic Update

Foster Farms workers walked out (downed tools? downed feathers?) yesterday over unfair labor practices by the poultry producer.

At this point, most readers have probably seen this article on Wal-Mart's benefits memo, which proposes to cut employee benefits even further. While admitting that 46% of Wal-Mart associates' offspring are uninsured, they suggest ways of hiring younger, more physically able employees in order to save on health insurance costs. Presumably they are not hoping that Wal-Mart employees' kids will ever work at Wal-Mart.

The Archive of Internal Medicine is reporting that workers who have justice at work have a reduced risk of coronary disease. So while having a union might give an employer a heart attack, its safe for workers!

It's not so good for your health to be a labor leader in the Philippines, though. Ricardo Ramos, a labor leader in the Philippines, was murdered yesterday, just one day after left-wing activist in that country was also murdered.

I Suppose We Can Call it Good News

Elaine Chao has announced the following:

Statement of U.S. Labor Secretary Elaine L. Chao On Lifting of the Davis-Bacon Act Suspension WASHINGTON-U.S. Secretary of Labor Elaine L. Chao issued the following statement on the lifting of the Davis-Bacon Act suspension.

In response to the unprecedented devastation caused by Hurricane Katrina, the President temporarily suspended the Davis-Bacon Act as part of an administration-wide effort to remove as many barriers as possible to aid the recovery efforts in the impacted areas. Upon review of current conditions in the declared areas the administration will re-instate Davis-Bacon Act provisions, effective November 8.

Well, yahoo. The idea that D-B needed to be suspended in the first place is so f--king preposterous that it should not be hailed as a victory, although I guess it will be, because I cannot think of another occasion when this administration has (1) done something right or (2) admitted it was wrong. And that little Katrina apology that Dubya made does not count. Apologizing only to the extent you may be responsible is like saying, "I'm sorry that you got mad at me."

An Evolving Update

I have been away from my blog for over a week because the actual demands of being a labor lawyer have drained my interest - momentarily - the rest of the labor movement. But there's an interesting article on the cover of the New York Times Week in review on the decline of black membership in labor unions. Various causes for the decline are cited, including loss in auto manufacturing jobs, and the increase in Latino workers in the service industry. Both the AFL-CIO and Change to Win have declined to target African-Americans specifically in their new organizing plans.

SEIU, along with 400 organizations, has unveiled Wal-Mart Watch, to "scrutinize" and "reform" Wal-Mart.

There is a very long but interesting debate on union democracy over at The Working Life. Usually debates on that topic are navel-gazing affairs conducted by folks who are not in leadership or not even in a union, but this debate seems to be broader, including folks actually involved in their union leadership, and others willing to take the reformists and leaders to task for the failure of the debate to deal with democracy in the context of new organizing.

Over the course of the day, I will be updating this post with other news. Please check back later.

Bad News for Anti-Union Employers

It's a little difficult to post news about one's own personal achievements but I thought it was only fair warning to let the Anti-Union Employers of America (a.k.a. Wal-Mart) know: the partners at my firm voted unanimously to make me a partner this evening, and, I suppose, through my enthusiasm, I have accepted. So, wooo-hooo!!!

I apologize for my recent absence from The Union Lawyer. I have been very busy with work and family the past week but will make every effort over the next few days to bring el bloggo up to speed on the latest in union fashions.

A Different Kind of Labor Law

Ms. Magazine is reporting on a new CA law that bans the shackling of female inmates while they are in labor, delivery and recovery. It's pretty sick to imagine that we even needed this law. . .

The NLRB's Hobson's Choice

You never really know what the Board is going to do when the competing interests before them are both darlings of the left (at least in the mind of conservatives). So it's interesting to see that the Board upheld a union's right to organize workers at an Indian casino in Connecticut.

I hope their brothers and sisters in Vegas can give them a hand at winning a terrific first contract, as they just did at Wynn Las Vegas and Aladdin. UNITE-HERE are reported to have gained 6,000 members in the past few months in Vegas, with projections for more contracts and members coming in 2006 and 2007.

The Strike Diary Joins the 21st Century

SEIU United Healthcare Workers - West has set up a strike blog for its members and the general public to chronicle its labor dispute and strike against Sutter Health, Inc. and California Pacific Medical Center in San Francisco. The blog includes posts from UHW president Sal Rosselli, who notes that its not his first strike, but it is his first blog.

Sutter Health is under investigation by the Department of Justice for possible illegal contracting practices. Meanwhile, UHW and other unions just signed a 5-year contract with Kaiser Permanente that includes 13% increases for 82,000 workers. Rosselli calls the contract the best contract in the country.

New Union Rep-Member Privilege

Illinois passed a law in June amending their code of civil procedure to create an evidentiary privilege for communications between union representatives and bargaining unit members. With some exceptions, this privilege will be similar to the attorney-client or doctor-patient communication privilege. This is the first (and hopefully not the last) state to adopt such a privilege. For more information see here.

I have argued (as have many others) that unions already have this privilege, and a related "work product" type privilege under the NLRA for bargaining strategy, organizing tactics, membership lists, etc. See, Berbiglia, Inc. 233 NLRB 1476, 89 LRRM (BNA) 1369 (1977); Champ Corp., 291 NLRB 803, 817, 131 LRRM 1555, 1561 (1988), enforced, 933 F.2d 688 (9th Cir. 1990).

In Berbiglia, the Board stated: "Requiring the Union to open its files to Respondent would be inconsistent with and subversive of the very essence of collective bargaining and the quasi-fiduciary relationship between the union and its members. If collective bargaining is to work, the parties must be able to formulate their positions and devise strategies without fear of exposure."

The Board also held in Wright Electric, Inc. that employers may not seek the identities of union activists and supporters without violating 8(a)(1) of the Act. 327 NLRB 1194, 163 LRRM 1077 (1999). NLRB v. Robbins Tire & Rubber Co. protects identities of union supporters and "salts". 437 U.S. 214 (1995). NAACP v. Alabama ex rel. Patterson permits "associational privacy" protecting members of organizations from being identified as members of that organization. 357 U.S. 449, 462 (1958).

In Harvey’s Wagon Wheel v. NLRB, the Court held that even statements of union representatives, and not just employees, deserved protection from disclosure: Statements of union representatives and agents of the employee, for example, should normally be protected from disclosure as a matter of law. Otherwise, the danger of their withholding relevant information for fear of exposing crucial material regarding pending union negotiations would be manifest. 550 F.2d 1139, 1143 (9th Cir. 1977).

Garner provides an evidentiary privilege for materials used in union elections. 102 F.R.D. 108, 109 (M.D.Tenn 1984).

The attorney-client privilege that union lawyers have with their union clients extends to the members as long as there is some legal information or context in some part of the discussion. By legal context I mean: legal training, arbitration prep, hearing prep, bargaining and negotiations caucuses and prep, etc etc. So everything we do. Let me know if you need those cites.

You can tell I ganked all this out of a brief I wrote a few months ago. I hope it helps others, and I hope other states take the step that IL just took. I am sure that Gov. Schwarzenegger would veto that kind of legislation right now in CA, but we will encourage our clients to propose this at the next chance they have.