Political Environment Anti-Union

A new report by Center for Economics and Policy Research (CEPR) has concluded that union membership in the United States is at an all-time low because of the “broad national political environment” and not, as some have theorized, because of globalization and technological changes.

One reason that so many American workers are vulnerable to bullying, harassment, and unfair termination is the low rate of unionization in the United States.

There is no law in the United States against workplace bullying and non-unionized workers are the mercy of a judicially created rule of law called the Employment at Will rule, which means they can be fired for any reason – even a bad one – as long as it does not violate a collective bargaining agreement, the law, or a recognized public policy.

Whatever one thinks of unions, there can be no denying that unions mean clout for workers.  Unions represent workers at the bargaining table, and they defend workers in grievance proceedings. Unions historically have led the way toward improving working conditions for all workers.

“In half of the rich countries we studied, the share of the workforce covered by a collective bargaining agreement has remained constant or even increased since 1980 –despite being exposed to the same kinds of pressures from globalization and technology that we experienced here in the United States,” said John Schmitt, a senior economist for the CEPR in Washington, D.C.

In a, 11/17/11 report entitled Politics Matter: Changes in Unionization Rates in Rich Countries, 1960-2010, Schmitt and co-author Alexandra Mitukiewicz review unionization data covering the last five decades for 21 rich economies.

The report demonstrates that national politics are a major determinant of national unionization rates in recent decades, more important than globalization and the new economy.

The researchers found that  countries typically identified with social democratic parties – Sweden, Denmark, Norway, and Finland – generally saw small increases in union coverage and only small decreases in union membership since 1980. Countries such as the United States, the United Kingdom, and other liberal market economies with less protective labor-market systems have generally experienced sharp drops in union coverage and membership. Countries referred to as continental market economies, including Germany and France, saw small drops in union coverage and moderate declines in union membership.

Of course, this probably comes as no surprise to public sector workers who are fighting to retain union bargaining rights, or to unions battling to keep American companies from relocating overseas or to states that are hostile to unions.

According to the U.S. Bureau of Labor Statistics, the union membership rate in the United States -the percent of wage and salary workers who were members of a union–was 11.9 percent in 2010, down from 12.3 percent a year earlier. The number of wage and salary workers belonging to unions declined by 612,000 to 14.7 million. In 1983, the first year for which comparable union data are available, the union membership rate was 20.1 per- cent, and there were 17.7 million union workers.

See No Evil at Penn State

Coach Joe Paterno and Penn State President Graham Spanier were fired, effective immediately, on Nov. 9, 2011 by the PSU Board of Trustees. The troubling culture at Penn State was in evidence when students sympathetic to Paterno erupted into violence at the news until they were subdued by police with tear gas. Meanwhile, more victims of alleged pedophile Jerry Sandusky surfaced. PGB

SEE NO EVIL …

In light of the horrifying and unfathomable nature of the pedophile scandal at Penn State University, it is easy to forget that Penn State is a workplace.

The leader sets an important tone for a workplace in terms of signalling what behaviors will and will not be tolerated.  Which raises a question.  What did Penn State President Graham Spanier know of the incident in 2002 in which Jerry Sandusky, a retired long-time football coach at Penn State, allegedly showered and engaged in sexual conduct with a young boy at Penn State’s  football building?

According to a grand jury report, Spanier said he was told that a staff member had reported that Sandusky was “horsing around” with a young boy in the shower in a way that made the staff member “uncomfortable.”  However, Spanier says that he did not  know that Sandusky was engaging in inappropriate sexual behavior with the boy.

Wasn’t it enough that Sandusky was engaging in horseplay with a young boy in the shower area?  That a staffer was made to feel “uncomfortable” witnessing the behavior?  Did Spanier have an obligation to inquire further?

Spanier obviously felt that something improper had occurred. In response to the incident, Spanier said he approved of a plan to take Sandusky’s locker room keys away and to inform him that he could not use Penn State’s athletic facilities with young people, an order that officials later agreed was unenforceable.  Was there any protocol at Penn State for investigating and disciplining alleged misconduct on campus?  Sandusky was still a professor emeritus at Penn State, and had an office there.

Sandusky is the founder of The Second Mile, a charity dedicated to helping impoverished youth who have absent or dysfunctional families. Sandusky allegedly abused at least eight boys through his contact with the club, which hosts sporting camps and events at Penn State.

According to a grand jury investigation, in addition to Spanier, the following adults were allegedly aware of the 2002 incident:

  • A 28-year old Penn State Graduate Assistant who said he saw Sandusky nude in the shower and thought Sandusky was having sex with a boy. (He reported the incident to Paterno.)
  •  The graduate assistant’s father.
  • Penn State Coach Joseph V. Paterno (who reported the incident to his bosses).
  • Penn State Athletic Director Tim Curley.
  • Penn State Senior Vice President for Finance and Business Gary Schultz.
  • Dr. Jack Rayovich, executive director of the Second Mile Club.

None of these people, including Spanier, reported Sandusky’s conduct to the police or to child protective services.

Incredibly, this was not the first time that Penn State officials had notice that Sandusky was engaging in questionable behavior with children in a shower on the campus.

Schultz told the grand jury that he knew that Sandusky was investigated by child protective services in 1998 for allegedly showering with young boys and behaving in a sexually inappropriate manner. According to the grand jury report:  “Schultz testified that the 1998 incident was reviewed by the University Police and ‘the child protection agency’ with the blessing of then-University counsel Wendell Courtney (who)  was then and remains counsel for The Second Mile.”

Spanier, who was appointed president in 1995, denied knowing of the 1998 University Police investigation of Sandusky.

There was yet another incident at Penn State in 2000 in which a janitor allegedly saw Sandusky having sex with another boy, this one aged 11 or 12.  The janitor  told his co-workers, who expressed fear they could lose their jobs, and then he told his immediate supervisor Jim Witherite. No one called the police that time either.

State police commissioner Frank Noonan was quoted Monday as stating:  “Somebody has to question about what I would consider the moral requirements for a human being that knows of sexual things that are taking place with a child, … Whether you’re a football coach or a university president or the guy sweeping the building. I think you have a moral responsibility to call us.”

Both Schultz and Curley have been arrested for allegedly lying to the grand jury and failing to report the alleged 2002 sexual assault to authorities as required by law.

Spanier may avoid arrest but it remains to be seen whether he can avoid responsibility for the tsunami wave of bad publicity that has washed over Penn State’s campus because the highest ranking officials there saw no evil.

What about Walmart?

Note: Gillane was sentenced to 96 years in prison on 12/14/11.

A jury this week found John Gillane, 46, the Walmart employee who shot and wounded three of his supervisors last year, guilty of seven felony counts, including two counts of attempted murder with a deadly weapon.

But what about Walmart? Does this incident say anything about the employment practices of America’s largest retail chain? Or was it just a fluke involving an unstable employee?

A nine-year Wal-Mart employee, Gillane told police that Walmart was opening a new store that was causing a cut-back in employee hours and his medical insurance costs had increased. He said he believed one of the supervisors he shot, Eric Hill, gave him a bad evaluation and thought it wasn’t fair because Hill didn’t know him well.

According to the Reno Gazette Journal, Gillane told police he was tired of being mistreated and wanted to “get even and embarrass Walmart.”

Interestingly, after the October 29, 2010 shooting, the victims reportedly said Gillane was well liked, had no work issues, and they were unaware that he disliked them.  The three have recovered from their physical injuries but testified they still feel pain and emotional distress from the incident.

In a taped interview with police, Gillane said he decided the night before that he was going to confront the managers. “Was I disgruntled? —- yeah, I was disgruntled. I was going to take on Goliath,” he said.

He went to Walmart at 7:15 a.m. with two guns and purchased a box of ammo. He hid in a bathroom stall and loaded a gun and waited.

Gillane said he went to the office of manager Richard Sanders, passing several employees whom he did not shoot. He said he displayed the gun and told  Sanders to call the other managers into Sander’s office. He planned to tell them to call  the corporate level at Walmart Stores Inc.  so he could “go over all this stuff, how they’re crapping on us. I knew I was going to get fired. Then everything went wrong.”

Gillane said he panicked when Sanders bolted.

Prosecutors portrayed Gillane as a ticking time bomb who was frustrated with life and intended to kill the supervisors and go out in a “blaze of glory.”

Clearly, Gillane’s problems were much larger than the superstore. He was broke, had recently been evicted, and was upset that two wives had left him for other women, and he rarely got to see his 5-year-old daughter. Gillane had threatened to commit suicide two weeks prior to the incident.

Gillane was also convicted of three counts of battery with a deadly weapon causing substantial bodily harm, assault with a deadly weapon and carrying a concealed weapon.  After deliberating more than seven hours, jurors failed to reach a decision on whether he intended to kill the first manager he shot, Sanders, whom he reportedly hated the most.

There is a long history in the United States of disgruntled employees taking up arms and shooting supervisors and co-workers.  A series of shootings by postal employees in the 1980s led to the term, “Going postal.”

In a 2000 report, a commission empaneled to investigate violence at the post office recommended that  USPS management, unions, and management associations overhaul the dispute resolution processes, which was a significant source of frustration and tension for employees and managers, and boost pay for non-management personnel.

Wal-Mart employs about one percent of the U.S. population and earns profits of more than $15 billion a year. The New York Times has reported that starting in 2012 all future part-time Wal-Mart employees who work less than 24 hours a week on average will no longer qualify for health insurance plans, and Wal-Mart is cutting its contributions to employees’ health savings accounts by 50 percent. Premiums for Wal-Mart employees are expected to increase from 17 to 61 percent.

A few years ago, Walmart expanded coverage for employees and their families after facing criticism that many of its 1.4 million U.S. workers could not afford or did not qualify for coverage — rendering  them eligible for Medicaid.

How the Justice Dept. Gets Away With It

 The U.S. Department of Justice is advertising for experienced, licensed “volunteer”  attorneys to work for a year or two without pay alongside Assistant U.S. Attorneys, who earn a starting salary of more than $75,000.

If such an  advertisement was placed by a private employer, it would raise questions of legality? How does the Justice Dept. get away with blatant exploitation of workers?

The Fair Labor Standards Act (FLSA) requires employers to pay workers the minimum wage and overtime except in a few limited circumstances – those who volunteer for religious, charitable, civic or humanitarian non-profit organizations and (you guessed it) individuals who volunteer to perform services for a state or local government agency.  The only time a for-profit employer can get away without paying a worker is when the worker is a so-called “intern,”

All of this comes at a time of high unemployment for lawyers, particularly graduating law school students.

The Wall Street Journal did a story on Sept. 2, 2011 stating there currently is less than one opening for every 100 working attorneys. Unemployment is a serious problem for attorneys, just as it is for every other occupation right now.  The unpaid “volunteers”  displace regular employees. Also, there is just something downright hypocritical about the situation. How can federal prosecutors go after employers who violate the FLSA with a straight face?

Finally, there is a great deal of “classism” in our society. We bemoan the immigrant farm worker who is cheated by the big farm corporation but it’s OK for some reason to exploit attorneys?  Is it some kind of misguided vanity that allows the bar to look at a situation such as this and fail to see the problem?

Without the  FLSA exemption, the use of unpaid Special Assistant U.S. Attorneys (SAUSA) would clearly violate the FLSA.

The SAUSA does not qualify as an intern because training is not the primary purpose of the SAUSA; because the government derives benefit from the SAUSA’s work; and, the SAUSA is doing the work of a regular employee and replaces regular employees.

The SAUSA is already a trained, licensed, experienced professional.  In fact, they have to have “outstanding” academic records and “superior” research and writing skills.   The SAUSA works alongside paid Assistant U.S. Attorneys doing legal research, drafting briefs, conducting hearings and trials, and attending judicial proceedings .  The “volunteer” gets nothing except the dim, uncertain hope of future employment.

Imagine a situation where a SAUSA, who is working for nothing, prosecutes a for-profit employer for failing to pay just wages and overtime.

The DOL issued a “fact sheet” last year listing the circumstances that dictate whether or not an intern must be paid. Essentially, a for-profit institution does not have to pay an employee whose work serves only his or her own interests.  The DOL listed six criteria to determine whether a worker is a bona fide intern:

  1. The internship is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

There is little question that a SAUSA does not qualify as an “intern” and that is probably why the SAUSA is not called an intern.

Ironically, the Justice Department advertisements assure that it is an “Equal Opportunity/Reasonable Accommodation” employer.

(Note: this is Part II of a story written on Sept. 7, 2011, Justice Department Seeks Law-Unteers)

U.S. Dept. of Justice Seeks Prosecutor Volunteers

(* Note: See Part 2 of this story, How the Justice Department Gets Away with It.)

 Are they kidding?

 The Office of the United States Attorney for the District of Connecticut is seeking applications from attorneys “who are willing to accept an unpaid temporary position” for up to a year doing legal research, drafting briefs, conducting hearings and trials, and attending judicial proceedings.  In other words, they’re seeking volunteer prosecutors who will work alongside paid prosecutors for nothing.

Only applicants with “outstanding academic records” will be considered.  Oh, and applicants must have at least one year of post J.D. experience.

 In what world is it ethically or morally sound to ask a law school graduate who is admitted to the bar of a state and experienced in the practice of law to work for up to a year gratis?

  It’s one thing to be an unpaid intern for a few weeks during the summer while attending law school to get experience and a line for the resume. It is quite another thing to be asked to labor alongside attorneys who are being paid, doing the same work, and meeting the same expectations. The word that comes to mind is exploitation.

One wonders what the U.S. Department of Justice would think about a large farming corporation that invites “volunteers” to work in the fields for a year for little or no pay?  (Is that legal?)

 These attorney volunteers are called “Special Assistant U.S. Attorneys (SAUSA).” They might as well be called “law-unteers.”

Connecticut is not alone in its quest for law-unteers. It’s a trend. Similar ads are posted by the U.S. Attorneys in Massachusetts, Wisconsin, Ohio, Michigan, Tennessee, Illinois, etc. (see http://www.justice.gov/careers/legal/attvacancies.html)

 The sad fact is that this “job” will appeal to  many recent law school graduates who cannot find anything better to do, after being sold a bill of goods by their law schools about a fictional legal job market with six-figure jobs aplenty for newly minted lawyers.

 According to the National Association for Law Placement, only about two-thirds of spring 2010 graduates had jobs requiring law licenses nine months later, a 15 year low. Overall, 87.4 percent of the class of 2010 had any sort of job nine months after graduation, including 11 percent who were working part-time or holding temporary jobs.

 Meanwhile, the typical student leaves law school nearly $100,000 in debt.  The situation is so bleak that the word is out and law school applications have dipped by about 10 percent.

Of course, there are young lawyers with rich parents who will gladly subsidize their offspring for a year of law-unteering at the U.S. Attorney’s Office. However, many lawyers who had to scrape through law school and are burdened with crushing debt will have to work a second or third job so they can law-unteer.

 The unstated premise of all of this is the dream – of a secure position in a respected profession that pays a decent salary and benefits and/or of working as a federal prosecutor on behalf of the United States of America.

 In its advertisement, the Connecticut U.S. Attorney’s Office says: “The SAUSAs will not be hired by this office as Assistant U.S. Attorneys at the conclusion of the SAUSAs’ terms. However, SAUSAs may apply for AUSA positions in the office after completing service as a SAUSA.”

 One might translate this to mean that any lawyer who fails to take advantage of  the incredible opportunity to work for nothing for a year will be at a disadvantage when competing for a full-time position because s/he will lack the experience of the law-unteer.

 And then, the coup de grace. The Connecticut U.S. Attorney states that the “preferred qualifications” for this law-unteer position are: “Prior litigation experience is preferred, but the positions are open to lawyers who are finishing judicial clerkships and to highly qualified lawyers who have recently graduated from law school.”  (Emphasis added).

The vast majority of recent law school grads and lawyers finishing judicial clerkships are under the age of 40. Suppose a retired attorney would like the opportunity to work for the Justice Department without salary? If you happen to be an older (egad!) attorney who is highly qualified it, forget it. Apparently the U.S. Justice Department does not feel compelled to follow the nation’s anti-discrimination laws, including the Age Discrimination in Employment Act, which prohibits discrimination against qualified applicants who are over the age of 40.  But maybe you can discriminate if the “job” is a mirage or a fallacy.

 This is an inside peek at government that Upton Sinclair would appreciate. Speaking about hogs and making sausage. “They had done nothing to deserve it; and it was adding insult to injury, as the thing was done here, swinging them up in this cold-blooded, impersonal way, without pretence at apology, without the homage of a tear. “

(Note: See follow up article written Sept. 14, 2011, How the Justice Department Gets Away With It)