In the future you may notice more Texocentric blog posts. That's because while LaborRelated exists on the World Wide Web (a series of tubes), this blogger has relocated to Texas. My family and I have been in the DFW area before and it's good to be back. I'm happy to join the labor and employment law blogging community of Texas where two bloggers that I've been following for years are based: Michael Maslanka of Work Matters, and Michael Fox of Jottings by an Employer's Lawyer. Please recommend any other Texas labor and employment blogs.
So, in honor of being in Texas, here is a song, Corpus Christi Bay, from a Texas musician, Robert Earl Keen. The song really is more about brothers and drinking than about labor and employment law, but it does have a work theme and includes a mention of a union.
And in case you were wondering, John David's favorite part about moving to Texas? Moving boxes!
The New York Times reports on a very strange strike. The striking workers were foreign students holding J-1 visa who came to work for two months and travel for a while. They were working as temporary workers for a Hershey contractor in Palmyra, PA. From the NY Times description, they seemed to be wealthier students from poorer nations who had paid between $3500 and $6000 for the opportunity to come to America, practice English, make money for two months and travel. Some of the students were studying things like medicine in their home countries and did not go for being paid (after deductions for housing and fees) $200/week for manual labor.
Philip Miles at Lawffice Space has a nice post about a Notre Dame study which showed that agreeableness was negatively correlated with income. In other words, mean people, especially mean guys seem to end up getting paid more than nice people who tend to finish last. Miles muses about whether nice will become a protected class. But I don't know, while they are getting paid better, the study also found that less agreeable people were more likely to have been fired. Miles also posted a clip of a local news spot with on the street reporting in none other than Fort Worth, Texas (Cowtown Diner is featured).
The study, Do Nice Guys – and Gals – Really Finish Last? The Joint Effects of Sex and Agreeableness, largely focuses on gender as a factor in the agreeableness pay differential, with the pay gap between low agreeable men and high agreeable men being larger than the gap between low agreeable and high agreeable women. Both the gender specific and nongender specific aspects are interesting.
The study mentions, among others this possible explanation for the gap:
...because people low in agreeableness do not prize smooth interpersonal interactions as a basic goal and, in fact, value competition, they may be more likely to behave in ways that advance their interests relative to others.
It mentions some research about which employees are more likely to positively challenge the status quo:
There is evidence that, although people high in agreeableness engage in more altruistic behaviors at work (LePine & van Dyne, 2001; Ilies, Scott, & Judge, 2006), they are less likely to enact voice behaviors that constructively challenge existing practice (LePine & van Dyne, 2001).
Some slightly disturbing (if not surprising) research about how anger and being critical of others helps in climbing:
Amabile and Glazebrook (1982) found that people who were highly critical of others were rated as more competent than those offering favorable evaluations.
...in an experimental study, Tieden (2001) found that people recommended a higher-status position and higher pay for job applicants who expressed anger—a display that is more likely among disagreeable people (Jensen-Campbell, Knack, Waldrip, & Campbell, 2007; Meier & Robinson, 2004)
Of note:
agreeable individuals were slightly less likely to have been fired from their job (β = -.08, p < .05)
In my quick skim, I didn't see the direct comparison of agreeableness between men and women- all of the comparisons seemed to be normalized.
It's time to nominate your favorite legal blogs. I would tell you which blogs I am nominating, but then it could look like I was entering into some kind of gentleman's agreement. Gentleman's agreements are against the rules.
Let's be honest, this blog is probably not top 100 material at this point. But, if I get enough nominations, I promise to post more frequently and create more animations. Does one post a week and one animation a month sound like a deal? Hopefully, it doesn't sound like a gentleman's agreement.
In November, I posted about Kiewit Power Constructors, 355 NLRB No. 155 (2010) and included an animation I made of the case. Today, the DC Circuit affirmed that decision with style. Judge Griffith's opinion is quite colorful; you've got to love the way that he brought hockey fights and basketball drives into this already interesting subject matter.
The judge framed this Atlantic Steel-line case this way:
When Kiewit Power Constructors Company warned its electricians that their morning and afternoon breaks were too long, two of them responded that things would “get ugly” if they were disciplined, and one said that the supervisor had “better bring [his] boxing gloves.” Each was fired. The National Labor Relations Board (NLRB) reinstated both workers, finding that in context their statements were not physical threats, but were merely figures of speech made in the course of a protected labor dispute.
The Court affirmed the Board, reasoning,
To state the obvious, no one thought that Judd and Bond were literally challenging their supervisor to a boxing match. Once we acknowledge that the employees were speaking in metaphor, the NLRB’s interpretation is not unreasonable. It is not at all uncommon to speak of verbal sparring, knock-down arguments, shots below the belt, taking the gloves off, or to use other pugilistic argot without meaning actual fisticuffs. What these words stand for, of course, is a matter of context. Compare, e.g., http://www.youtube.com/watch?v=3NklthJ7foI (last visited July 6, 2011) (the Capitals’ Alex Ovechkin literally dropping gloves to fight the Rangers’ Brandon Dubinsky), with http://www.youtube.com/watch?v=1xMgbhl2DAk (last visited July 6, 2011) (describing Vice Presidential candidate Sarah Palin as promising that the “gloves are coming off” in the 2008 election), and Jonathan Weisman, Obama’s Gloves Are Off — And May Need to Stay Off, WASH. POST, Apr. 23, 2008, at A1. Indeed, such metaphors are part and parcel of competitive spirit. See http://www.youtube.com/watch?v=R6mqFMdhDe4 (describing college basketball phenom Jimmer Fredette as “destroy[ing]” an opponent with his combination of longrange proficiency and acrobatic drives).
Yep, that was a series of citations to Youtube, see below.
...To be sure, Judd and Bond’s statements were intemperate, but they did not involve the kind of insubordination that requires withdrawing the Act’s protection. It would defeat section 7 if workers could be lawfully discharged every time they threatened to “fight” for better working conditions. See Sw. Bell Tel. Co., 694 F.2d at 978 (upholding NLRB’s determination that employee’s repeated statement—“I’m going to see that [expletive] fry”— was “at most . . . ambiguous,” [...]); Vought Corp., 273 N.L.R.B. at 1295 (employee’s statement to supervisor that “I’ll have your ass” was no more than a threat to file a grievance or to report the supervisor to higher management), enforced, 788 F.2d 1378 (8th Cir. 1986).
I guess in the interest of full disclosure, I should mention that years ago I worked as a laborer for Kiewit Construction. I never had any problems and I learned a lot in my short stint, but "bring your boxing gloves" is a lot milder than some of the expressions that were thrown my way...
Here is my animation followed by the youtube clips the judge cites:
My animation, based loosely on the case.
"Capitals’ Alex Ovechkin literally dropping gloves to fight the Rangers’ Brandon Dubinsky"
Sorry, can't embed this one, but here is the link http://www.youtube.com/watch?v=1xMgbhl2DAk
"describing Vice Presidential candidate Sarah Palin as promising that the “gloves are coming off” in the 2008 election"
"describing college basketball phenom Jimmer Fredette as “destroy[ing]” an opponent with his combination of long-range proficiency and acrobatic drives"
Rick Bales at Workplace Prof linked to an article from Business Insider about the way that smart phones are making workplace secret recordings more common. The article contains this quote:
Katrina Patrick, a Houston lawyer who represents aggrieved employees, says that more than 50 percent of the people who come to her office bring digital evidence. "I'm more surprised when someone comes into my office without digital evidence," she says.
Reading Patrick's remark, makes me think of the Casey Anthony trial and the CSI effect. The CSI effect occurs when jurors come to demand more forensic evidence in criminal trials which raises the standard of proof for prosecutors. Are labor and employment cases going to be decided by jurors who don't feel comfortable without science in the equation or wonder things like, "If the boss kept saying stuff like that, why didn't she just record it with her cell phone?"
It's time to nominate your favorite legal blogs. I would tell you which blogs I am nominating, but then it could look like I was entering into some kind of gentleman's agreement. Gentleman's agreements are against the rules. 
