1) Thanks to NEA Alaska, Sex
Harassment Doesn't Have to Be About Sex. The U.S.
Ninth Circuit Court of Appeals ruled that harassing conduct against female
employees can violate Title VII of the Civil Rights Act even if it has
nothing to do with sex. The case involves current and former employees of
NEA Alaska. The decision overturned a summary judgment in favor of NEA
Alaska and NEA itself that such conduct had to include sex-based content.
Three female employees filed an Equal
Employment Opportunity Commission (EEOC) complaint against NEA Alaska in
2000. EEOC investigated and filed suit against the union in 2001. In 2002,
NEA was added to the suit.
All the legal and administrative actions
stem from alleged conduct by Thomas Harvey who, at the time of the
incidents, was an interim assistant executive director of NEA Alaska.
According to the complaint, "The record reveals numerous episodes of Harvey
shouting in a loud and hostile manner at female employees. The shouting was
frequent, profane, and often public. The record shows little or no
provocation for these episodes."
Harvey is also accused of lunging across
a table at an employee and shaking his fist at her, and on another occasion,
coming up behind her, grabbing her shoulders and yelling "get back to your
The female employees testified that they
felt physically threatened and panicked in Harvey's presence. A male NEA
Alaska employee also testified to the "general fear of the women at our
The court saw the main question as
"whether Harvey's treatment of women differed sufficiently in quality and
quantity from his treatment of men to support a claim of sex-based
discrimination," concluded that it was a "triable question of fact," and
thus reversed the summary judgment, remanding the case.
Additionally, the court reinstated NEA
as a defendant, ruling that the national union will need to make its case
that it "did not exercise sufficient authority and control over Harvey's
conduct" to be responsible for his alleged behavior.
As a postscript, Harvey is no longer an
interim assistant executive director. He is the current executive director
of NEA Alaska, charged with overseeing all of the union's staff. His salary
is paid by NEA, through the national union's state executive director
2) Ninth Circuit Rules for Employer
Free Speech Regarding Unionization. The U.S. Ninth
Circuit Court of Appeals ruled that a California statute "chills employers
from exercising their free speech rights" when it comes to union organizing
campaigns. The court determined that the guarantees of the National Labor
Relations Act preempted the state law.
The state law prohibited private
employers who received more than $10,000 in state funds from using any
portion of that income "to assist, promote, or deter union organizing."
Additionally, the state attorney general or any private citizen could file
suit against a suspected violator and receive damages, attorney's fees and
costs. The accused, however, could not regain attorney's fees or costs if he
or she were exonerated.
"Under the guise of preserving state
neutrality, the statute operates to impel employers themselves to take a
position of neutrality with respect to labor relations," wrote Judge Robert
Judge Beezer further concluded that
unions could use the threat of lawsuits, not to prevail on their merits, but
to "obtain bargaining leverage in a labor dispute." The lawsuit provisions
"comes dangerously close to rendering employers' financial records an open
book," Judge Beezer wrote, granting unions "additional leverage in
advocating for a unionized workforce and place additional pressure on an
employer to simply recognize a given union."
The opinion (No. 03-55166) is available
in full on the
court's web page.
3) AFT Raises the White Flag in
Puerto Rico. If you missed
Friday's story in Intercepts, here are the highlights:
EIA has reported (exclusively for a long, long time -- see
here for example), AFT's efforts to regain control of the disaffiliated
Federación de Maestros de Puerto Rico (FMPR) have been defeated at every
turn. The national union conceded defeat by shutting down the web page of
its administratorship, and
overnighting a letter to FMPR President Rafael Feliciano Hernandez on
Wednesday, notifying him that AFT was revoking FMPR's affiliation!
Additionally, the AFT Executive Council terminated the administratorship
over FMPR (which never took practical effect anyway), and included pointed
reference to FMPR's "substantial debt to the AFT" for previous loans and
"between 17 and 18 months back per capita" to be repaid by September 23.
FMPR previously acknowledged its loan debt to AFT, but is unlikely to pay
back dues when it has always maintained it disaffiliated in September 2004.
Nevertheless, AFT is now out 32,000 members. Any odds on when we'll see the
press release on that news?
4) Associated Press Covers
Washington Staff Picket Line. You heard it here
last week, and it went off as planned. Employees of the Washington Education
Association (WEA), along with staffers from other Western states, set up an
informational picket line in front of WEA headquarters last Friday and
Saturday while the union's board of directors met inside. Gene Johnson of
the Associated Press covered the story.
"They have very regressive proposals on
the table," said staff union president Lucinda Young. "We work very hard to
get cost-of-living adjustments and fair contracts for our teachers. We're
just trying to get the same thing for ourselves."
Johnson then went to union management
for its side of the story. "Armand Tiberio, the WEA's executive director,
said the union must strike a balance between the financial interests of its
workers and of its dues-paying members," wrote Johnson.
That's a very reasonable statement. Now
replace "union" with "school district" and "its dues-paying members" with
"taxpayers" and explain how the statement becomes unreasonable to WEA.
5) No Stories on This Trend.
When teachers at the Philadelphia Performing Arts Charter School voted 15-5
to unionize in December 2003, the
result was lauded by the Pennsylvania Federation of Teachers
and the AFT. In May 2005, the Philadelphia Inquirer
ran a story headlined "More charter teachers look toward unionizing."
But it appears to have been a mirage.
Soon after the Inquirer article, the teachers at Russell Byers
voted 21-3 against union representation. Last week, teachers at the
Philadelphia Performing Arts Charter School
voted 20-5 to boot PFT, after less than two years in the union.
There is no reason to believe this is a
trend either. But EIA suspects we'll see more restraint about seeing trends
with the results in this direction.
6) The Best Union Story Ever.
this Las Vegas Weekly story on September 13, but if you haven't
seen it yet, it's well worth a look. Read how the United Food and Commercial
Workers union is outsourcing its
picketing to non-union workers, at a sub-standard pay rate with no benefits,
in unsafe conditions, with no transportation or means to leave the premises,
in order to protest the poor jobs inside Wal-Mart, where workers make twice
7) Quote of
"Of course, raising questions about the steps-and-lanes
system is a ferocious attack on teachers so we can't do that! (Incidentally,
one reader writes to ask why you can criticize American policy in Iraq and
still support the troops but not raise questions about these contracts
without being a teacher basher? Good question…)" – from the
September 15 Eduwonk.com.