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Editor: Mitchell H. Rubinstein
New York Law School

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Tuesday, July 31, 2007

NYC Agrees to Settle Cases Over the Internet

The July 31, 2007, New York Law Journal in a story entitled "City's New Contract With Cybersettle Expands Types of Cases" reports that the City will be attempting to settle some cases over the internet. The article states:

Cybersettle, which allows for the negotiation of settlements over the Internet, has signed a new three-year contract with New York City, expanding the types of cases that may be submitted to its system. The new eligible cases include medical malpractice and subrogation claims. Since 2004, the city has used Cybersettle to attempt to resolve auto accident, sidewalk and other personal injury claims. Under Cybersettle's format, the city and its adversaries submit offers and demands confidentially over the Internet, and whenever an offer exceeds the demand a settlement is reached, with the plaintiff getting a bonus of half the difference between its demand and the city's higher offer. If the city's offer does not meet the plaintiff's demand, the two sides have the option of going to another round of bidding.

Additional information about Cybersettle can be found on its web site which is available here.

This looks like an innovative use of the internet to settle cases.

Mitchell H. Rubinstein

July 31, 2007 in Legal News | Permalink | Comments (0) | TrackBack (0)

Does Congress Have The Authority To Issue Pardons?

Bruce Fein wrote an interesting July 26, 2007 article for slate.com questioning whether Congress has the power to issue Pardons. Available here. The answer, of course, is that power is reserved to the President of the United States. Never-the-less, how can Congress attempt to issue a Pardon? Through its pocketbook powers.   

The amendment that passed last night, sponsored by Reps. Ted Poe, R-Texas, and Duncan Hunter, R-Calif., provides: "None of the funds made available under this Act shall be used by the Bureau of Prisons to incarcerate Ignacio Ramos or Jose Alonso Compean." But the Constitution entrusts the power to pardon offenses against the United States or to commute sentences exclusively to the president. The enumerated legislative powers do not hint at a concurrent authority in Congress. Pardons or commutations, moreover, have invariably been associated with law enforcement as opposed to law-making. In the 1872 case United States v. Klein, the Supreme Court held unconstitutional an attempt by Congress to subtract from the legal effect of a pardon.

Contrary to a common assumption, the power of the purse does not give this amendment any greater claim to constitutionality. . .

Politics as usual in the U.S. Congress. This may, however, make for an interesting constitutional law review article.

Mitchell H. Rubinstein

July 31, 2007 in Law Review Ideas, News, Oddly Enough, Legal | Permalink | Comments (0) | TrackBack (0)

NJ Supreme Court Confirms The Use Of Hybrid Test To Determine Employee Status Under Whistleblower Law

Njsupremes On July 25, 2007, the New Jersey Supreme Court in D'Annunzio, D.C. v. Prudential Insurance Co., 2007 WL 2118789 (July 25, 2007), issued an important 5-1 decision interpreting employee status under the state whistleblower statute, known as the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 ("CEPA")

The CEPA was enacted after the N.J. Supreme Court decision in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980), which recognized that an at will employee could have a public policy cause of action against his employer. This statute was enacted to encourage employees to report illegal or unethical workplace activities. Thus, the statute prevents employers form taking adverse employment actions against any "employee" who exposes an employer's criminal, fraudulent or corrupt activities. The question the court dealt with was the line between a protected employee and an unprotected independent contractor.

Ultimately, the court adopted a hybrid test of employee status that incorporates the common law right to control test and the economic realities test. Under this standard, non-traditional workers, such as professionals, are more likely to be considered employees. The court adopted this liberal standard because of the statute was considered social legislation. Thus, a chiropractic medical director who signed an independent contractor agreement, was given and office and specific instructions by Prudential was considered an employee notwithstanding the fact that he also had a private practice.

It is often difficult to determine whether or not an individual is an employee. I previously wrote a law review article outlining the various employment status tests and the conflicting court decisions. Our Nation's Forgotten Workers: The Unprotected Volunteers 9 U. Pa. J. Lab. & Empl. L. 147 (2006). 

This New Jersey case should certainly be considered with respect to any employment status litigation in New Jersey.

Mitchell H. Rubinstein

Hat Tip: Linsey Routledge    

   

July 31, 2007 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Abner Louima Case Police Officers Not Entitled To Their Jobs Back Even Though Their Convictions Were Reversed On Appeal

Under New York law, police officers who are convicted of a felony automatically lose their jobs. What happens if their conviction is overturned on appeal? In Bruder v. Kelly, Index No. 114501 (N.Y. Co. 2007)(Branstein, J.S.C.), a case arising from the famous Abner Louima case (which involved police officers physically assaulting a suspect in a police precinct), the court held that reinstatement was not authomatic and was discretionary.

A reversal of a conviction does not mean that an employee is innocent or subject to non-criminal employment related discipline.  The Second Circuit, which reversed the criminal convictions, also indicated in dicta that the officers impeded the criminal investigation, but that conduct was not charged. That dicta by the Second Circuit was enough justification for the court to conclude that the City did not act arbitrary and capriciously in refusing to reinstate the police officers.

A New York Law Journal article about this case is available here (free registration required).

Mitchell H. Rubinstein   

July 31, 2007 in Current Events | Permalink | Comments (0) | TrackBack (0)

Psychological Comfort and Care to an Unconscious Parent Protected Under FMLA

Bell v. Prefix, Inc., No. 05-74311, 2007 U.S. Dist. LEXIS 52837 (E.D. Mich. July 23, 2007)(registration required) is an important FMLA case because it holds that a child providing  psychological comfort and care to an unconscious parent is protected by the FMLA.

As my employment law students know, while this might seem like a common sense proposition, the courts have not been uniform because the FMLA requires that the leave be necessary "to care" for the parent and the issue is what does "to care" for mean. The law is clear that merely visiting a sick relative is not protected, but the courts' have not yet done a comprehensive job defining what "to care" for means.

Hat Tip: The FMLA Blog

Mitchell H. Rubinstein 

July 31, 2007 in Employment Law | Permalink | Comments (0) | TrackBack (0)

2007 New York Bar Examination Essays Recovered!

The July 31, 2007, ABA Journal Law News Now is reporting that all 2007 New York Bar examination essays have been recovered. The New York Law Journal is reporting this as well. Adjunct Law Prof Blog previously reported about some horror stories with respect to students taking their exams on laptops. That posting is available here.

Now how about this for a bar examination question. Because it first appeared that student essays may have been lost, is there a cause of action for negligent infliction of emotional distress and if so, who are the proper defendants and how should liablity, if any, be apportioned?

Mitchell H. Rubinstein   

July 31, 2007 in Law Students | Permalink | Comments (1) | TrackBack (0)

Concurring Opinions Law Professor Blogger Census Leaves Us (Me) Out!

Concurring Opinions just posted an excellent survey of law professor blogging which is worth a look.

Unfortunately, however, they left me, the Editor of this blog, out. They included one of our associate editors, Eric A. Lustig, but did not the other, Associate Dean Gail Levin Richmond. Therefore, I do not know how accurate their data is.

Update: Concurring Opinions has sent me an email to state that their survey only included FT profs. It seems to me that by excluding adjuncts, (to my knowledge I am the only adjunct in the country that runs a blog designed mainly for law professors), the data is incomplete. In any event, at least Concurring Opinions timely responded.

MItchell H. Rubinstein 

July 31, 2007 in Blogs, Faculty | Permalink | Comments (2) | TrackBack (0)

Breaking News! House Passes Ledbetter Amendment to Title VII, the ADA, ADEA and the Rehabiliation Act of 1973

On July 30, 2007, the House approved H. R. 2831 by a vote of 215-187 which amends Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans With Disabilities Act of 1990, and the Rehabilitation Act of 1973 to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.

This Bill is intended to legislatively over-rule the Supreme Court's decision in Ledbetter v. Goodyear, 550 U.S. __(2007) which I previously discussed here. In Ledbetter, the Supreme Court issued a  5-4 decision holding that the 180/300 day time period to file a charge of discrimination with the EEOC runs from the date the discriminatory decision was initially made as opposed to when the employee actually received her paycheck.

Before this Bill was passed, President Bush indicated that he will veto this legislation. The President's statement is available here. The President strongly oppposes this legislation, reasoning in part:

Meaningful statutes of limitations in these sorts of fact-intensive cases are crucial to the fair administration of justice. The prompt assertion of employment discrimination permits employers to defend against – and allows employees to prove – claims that arise from employment decisions instead of having to litigate claims that are long past. In such cases, evidence often will have been lost, memories will have faded, and witnesses will have moved on.

Moreover, effective statutes of limitations benefit employees by encouraging the prompt discovery, assertion, and resolution of employment discrimination claims so that workplace discrimination can be remedied without delay.

Mitchell H. Rubinstein

July 31, 2007 in Discrimination Law, Recent Developments | Permalink | Comments (1) | TrackBack (0)

Monday, July 30, 2007

The Suffolk County Fair Share for Health Care Act Aimed At Walmart Is Preempted By ERISA

Edny On October 25, 2005, Steve Levy, as Suffolk County Executive, signed into law the Suffolk County Fair Share for Health Care Act, Suffolk County, N.Y., Reg. Local Law §§325-1 to 7 (2005) (the "Act"). As originally enacted, the Act required certain large retail stores selling groceries, to make "health care expenditures" for their employees equivalent to not less than $3.00 per hour worked by their employees in Suffolk County.

Walmart and others challenged this statute as being preempted under ERISA. In a lengthly opinion, Judge Arthur Spatt of the Eastern District of New York in Retail Industry Leaders Association v. Suffolk County, ___F. Supp. 2d __ (E.D.N.Y. 2007)(registration required) agreed. The court reasoned:

As in Shaw and Egelhoff, the present Act would interfere with employers' administration of their ERISA plans because employers would have to vary benefits for New York employees; the law would inhibit the administration of a uniform plan nationwide; and the law would disrupt uniform plan administration. In order to comply, employers would be required to alter their ERISA plans to meet the spending requirements of the Act. Moreover, "differing state regulations affecting an ERISA plan's system for processing claims and paying benefits impose precisely the burden that ERISA pre-emption was intended to avoid." Egelhoff, 532 U.S. at 150.

As such, "the Act has an obvious 'connection with' employee benefit plans and so is preempted by ERISA." Fielder, 475 F.3d at 193-94.

ERISA preemption is one of the most difficult fields of law to analyze. This is also an important decision which will certainly be appealed and may even wind up in the Supreme Court.

Mitchell H. Rubinstein


July 30, 2007 in Employee Benefits Law | Permalink | Comments (0) | TrackBack (0)

Employer Denied Summary Judgement Over Modification of Welfare Plan Because of Defective Notice

5thcir What benefits are injured employees entitled to? The answer depends upon the terms of a disability plan that the employer may or may not have. Can the employer change the terms of that welfare plan? Yes, so long as the employer gives the requisite notice. ERISA requires that "a summary of any material modification in the terms of the plan . . .shall be written in a manner calculated to be understood by the average plan participant and shall be furnished [within 60 days] 29 USC Sec. 1022(a).

Is first class mail sufficient? Yes, but it is dangerous to rely on the mail for lack of proof. Courts look to the method of mailing as opposed to whether the employee actually received the notice. In Custer v. Murphy Oil, ___F. 3d ___ (5th Cir. July 24, 2007), the employer was denied summary judgment because it did not provide any evidence about the actual mailing of the amendment. Instead, it produced testimony that the benefits department stuffed envelopes and gave them to the mail room. That was not sufficient in light of the fact that plaintiff produced three other employees who did not get the notice. Moral of the story is that mailing does not mean simply placing the envelope with the mailroom.

Thus, the plaintiff, who worked for the employer for 23 years before he became permanently disabled was able to state a claim. Perhaps, the most interesting part of this case concerned footnote 3 where the court questions what type of remedy is available to plaintiff. The court does not decide this issue, but notes the different approaches of courts.

Mitchell H. Rubinstein          

July 30, 2007 in Employee Benefits Law | Permalink | Comments (0) | TrackBack (0)

Washington Supreme Ct.-Felons Not Denied Constitutional Right to Vote

In many states convicted felons loose their right to vote-at least for a certain period of time. A July 26, 2007 Associated Press article which was picked up by Find Law entitled "WA Court: Felons Must Pay Fines to Vote" describes a Washington state Supreme Court case which held that felons who serve their full prison sentence must pay all of their court imposed fines before their right to vote will be restored.

This seems like a common sense ruling and it I find it surprising that this issue actually divided the court (6-3). Unfortunately, I do not believe that most convicted felons care much about their right to vote so I do not seem much practical utility with this court decision.

Mitchell H. Rubinstein

July 30, 2007 in Recent Developments | Permalink | Comments (0) | TrackBack (0)

Liza Minnelli's Employment Related Legal Cases

On June 28, 2007, the N.Y. Appellate Division First Department decided two employment related cases concerning actress Lizi Minnelli.

In the first decision, Soumayah v. Minnelli, ___A.D. 3d ___(1st Dept. 2007), the court held that Minelli's body guard and assistant hired in 1994 at $238,00 per year failed state a cause of action for quantum meruit. Plaintiff alleged that he performed services for Minnelli while she was on tour that were outside the scope of his regular assignments for which he is owed $89,000. The court did not address the plaintiff's other claims against Minnelli and the company through which she conducts her business, for assault and battery, sexual harassment, retaliatory discharge and wrongful termination.

In the second decision, Minnelli v. Soumayah, ___A.D. 3d ___ (1st Dept. 2007),  the court held that plaintiff Minnelli stated a cause of action against defendant for breach of contract because the contract prohibited the disclose of confidential information, reasoning: 

Defendant had a contractual obligation not to disclose confidential information he might have acquired during the course of his employment with plaintiff. Construing the pleadings liberally and accepting the facts alleged as true (see Wiener v Lazard Freres & Co., 241 AD2d 114, 120 [1998]), the court correctly determined that the complaint states a cause of action for breach of contract based on defendant's alleged violation of this agreement not to make such [*2]unauthorized disclosures, and for breach of fiduciary duty (see Mandelblatt v Devon Stores, 132 AD2d 162, 167-168 [1987]).

Even well known actors have employment law problems.

Mitchell H. Rubinstein

July 30, 2007 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Adjunct Legal Writing Position at Golden Gate Law School in San Francisco

Goldengatels Legal Writing Prof Blog has posted an announcement that Golden Gate Law School in San Francisco is looking for adjunct legal writing professors. The posting provides the following information about the position:

"Golden Gate University School of Law in downtown San Francisco is looking for adjuncts to teach the first-year Legal Writing and Research course.  Sections meet once a week on Fridays from 10:15 a.m. to 12:15 p.m. or from 1:00 p.m. to 3:00 p.m.

"The fall course is two credits, and the spring course is one credit.  Both semesters focus on research and analysis in predictive memos.  Salary is $1,800 per credit.  Adjuncts may teach one or two sections.

"Applicants should have three years of practice experience and be good legal writers.  Teaching experience is a plus but not required.

"Please contact Debbie Mostaghel at 415-369-5337 or email dmostaghel@ggu.edu as soon as possible.

"The school anticipates paying an annual academic year base salary in the range:  adjunct appointment paying less than $10,000  (Salary is $1,800 per credit.  Adjuncts can teach one or more sections.)"

For those living in the area who want to break into adjunct law teaching, this is an opportunity to consider.

Mitchell H. Rubinstein

July 30, 2007 in Appointment Information, Adjunct | Permalink | Comments (0) | TrackBack (0)

Chief Justice Roberts Hospitalized After Suffering a Seizure

Chief Justice Roberts sufferred a seizure earlier today and currently hospitalized. The Washington Post has reported:

Arberg [a Supreme Court spokesperson] said Roberts suffered "a benign, idiopathic seizure," medical terminology for an attack whose origin is unknown. She said Roberts suffered a similar episode in 1993.

Seizures are any "sudden, abnormal electrical activity" in the brain, according to background information posted online by the National Institute of Neurological Disorders and Stroke, part of the National Institutes of Health.

Linda Greenhouse has also written an article about the Chief Justice's hospitalization for the New York Times which is available here. Ms Greenhouse discusses the possible medical underlying causes in more detail than the Washington Post article. She quotes one doctor as saying the Chief Justice has epilepsy. The article also states that the seizure could have been caused by a host of different medical reasons, including a brain tumor. 

I am a bit surprised that nothing is appearing on the Supreme Court's web site. We can only hope that this condition is not serious and wish Chief Justice Roberts (age 52) well.

Mitchell H. Rubinstein

July 30, 2007 in Legal News | Permalink | Comments (0) | TrackBack (0)

Top 10 Law Professor Blogs Ranked This Month By Justia

By University of Toledo College of Law Professor Howard M. Friedman.
Last Updated: July 30, 2007 - Rank This Week: 15
Covers business, law, economics and society. By Professors Gordon Smith, Christine Hurt, Vic Fleischer, Fred Tung, and Lisa Fairfax.
Last Updated: July 30, 2007 - Rank This Week: 18
By Professors Dan Markel, Ethan J. Leib, Rob Howse, Paul Horwitz, Rick Garnett, Matt Bodie, Steve Vladeck and Orly Lobel.
Last Updated: July 30, 2007 - Rank This Week: 22
Covers Internet, technology and online marketing legal issues. Published by Santa Clara University School of Law Professor Eric Goldman.
Last Updated: July 30, 2007 - Rank This Week: 25
By Eugene Volokh, Dale Carpenter, David Kopel, David Bernstein, David Post, Erik Jaffe, Ilya Somin, Jim Lindgren, Jonathan Adler, Kevan Choset, Orin Kerr, Randy Barnett, Russell Korobkin, Sasha Volokh, Stuart Benjamin, Todd Zywicki & Tyler Cowen.
Last Updated: July 30, 2007 - Rank This Week: 28
By Wayne State University Law Professor Peter J. Henning and Stetson University Law Professor Ellen S. Podgor.
Last Updated: July 30, 2007 - Rank This Week: 29
By UC Davis School of Law Professor Kevin R. Johnson, Professor Bill O. Hing and Professor Jennifer Chacón.
Last Updated: July 30, 2007 - Rank This Week: 35
Covers federal civil practice and procedure. By University of Richmond Professor A. Benjamin Spencer.
Last Updated: July 30, 2007 - Rank This Week: 37
By Northern Kentucky University Law Professor Richard Bales and University of Mississippi Law Professor Paul M. Secunda.
Last Updated: July 30, 2007 - Rank This Week: 53
Mitchell H. Rubinstein 

July 30, 2007 in Blogs, Faculty | Permalink | Comments (0) | TrackBack (0)

Attorney General Has One Week To Fix Testimony Given Under Oath

Ag_gonzales_small_2  On Face the Nation, Senator Patrick Leahy D-Vermont, and Chair of the U.S. Senate Judiciary Committee stated that Attorney General Alberto Gonzales, a former Judge, is being given a week to "correct" his testimony before Congress about the Bush administration's wiretapping activities. As CBS News Reports in the above story:

He has a week to correct it if he wants," Sen. Patrick Leahy, D-Vermont, said. "If he doesn't correct it, then I think that there are so many errors in there that the pressure will be very, very heavy, whether it's a special prosecutor, special counsel efforts within the – within the Congress."

Appearing before the Senate Judiciary Committee on Tuesday, Gonzales repeatedly and emphatically said the president's secret warrantless domestic spying program was not the subject of internal disagreement in 2004 within the Bush administration. But FBI Director Robert Mueller, appearing Thursday before the House Judiciary Committee, said it was.

Now Senate Democrats are calling for a perjury investigation, claiming Gonzales has, "at a minimum," provided "half-truths and misleading statements" in testimony to Congress, most recently over secret surveillance. The Bush administration says it still supports Gonzales and that his testimony didn't contradict Mueller's.

Whether Attorney General Gonzales committed perjury is not what interests me. What I find stunning is that he is being given a "second chance" to correct his sworn testimony. Since when do witnesses get tryouts! If Gonzales really committed perjury, I cannot believe the Democrats would let him off that easy. Therefore, it appears to me that nothing will come of this.

Mitchell H. Rubinstein

July 30, 2007 in Current Events | Permalink | Comments (0) | TrackBack (0)

Sunday, July 29, 2007

Catholic Diocese of San Diego in Bankruptcy Court Over Sexual Abuse Cases

A July 26, 2007 Associated Press article entitled "S.D. Catholics Ask Judge to Intervene" reports that  a group that asserts that it represents more than 1 million Roman Catholics asked a bankruptcy judge to prevent the San Diego diocese from closing or selling churches, schools and charities to settle sex-abuse cases. It appears that this group, known as Parishioners for Churches and Schools is seeking to formally intervene in the bankruptcy proceeding. As the article states:

If the motion for intervention by the parishioners' group is granted, it would be the first such legal claim by parishioners in a bankruptcy proceeding for a U.S. diocese, according to Thomas Califano, a lawyer for the parishioners' group.

More than 140 plaintiffs who claim they were abused are seeking a settlement of about $200 million from the diocese. Their attorneys have sued the diocese in the bankruptcy court for allegedly shielding land and other holdings worth millions through transfers to parishes and schools.

Church officials deny they have hidden or illegally transferred resources. The diocese filed for Chapter 11 bankruptcy protection Feb. 27.

Mitchell H. Rubinstein

July 29, 2007 in Legal News | Permalink | Comments (0) | TrackBack (0)

Family-Leave Values

The July 29, 2007, New York Times Magazine published an interesting article by Eyal Press entitled "Family-Leave Values" which is well worth reading. In this lengthly and comprehensive article, the author details real life employment problems that many parents have experienced because of their family responsibilities. As the article states:

Until recently, lawsuits claiming workplace discrimination because of family care-giving obligations were rare — in part because, however harsh it may seem to lose your job under circumstances like Deonarain’s, employers could often get away with it. The 1993 Family and Medical Leave Act guarantees workers some unpaid time off in the event of a serious health problem, after the birth of a child or to care for a sick family member, but the law’s scope is limited. (It doesn’t cover companies with fewer than 50 employees, for example. Computer Literacy World had just under 50 at the time.) And no federal antidiscrimination statute exists that explicitly protects family caregivers in the workplace.

But what constitutes discrimination in the eyes of the law is changing. And one reason it’s changing is that the ranks of people like Karen Deonarain have grown. Since the mid-1990s, the number of workers who have sued their employers for supposed mistreatment on account of family responsibilities — becoming pregnant, needing to care for a sick child or relative — has increased by more than 300 percent. More than 1,150 such lawsuits have been filed in federal and state courts, a trend that has not gone unnoticed in the business world, not only because companies are well aware of the negative publicity lawsuits can generate but also because numerous plaintiffs have walked away with hefty damage awards. In one case, a jury granted $11.65 million to a hospital maintenance worker who was penalized for having to care for his elderly parents. In Ohio recently, a jury awarded $2.1 million to an assistant store manager who was demoted because she has several kids.

The workers pressing such claims have invoked a dizzying array of laws to prove they were mistreated. Some have relied on Title VII of the 1964 Civil Rights Act, which a number of courts have ruled prohibits not only overt sex discrimination but also seemingly neutral policies that have a disparate impact on women. Others have invoked the 1990 Americans With Disabilities Act, which covers both individuals with disabilities and, to a lesser extent, the people who care for them. Others still have drawn on the many state and local laws passed in recent years to safeguard the rights of employees with families.

This article highlights the limits of the FMLA and the ADA and perhaps might lead some states to enact additional pro-family legislation. It is surely needed.

In May 2007, the EEOC issued enforcement guidelines Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities which researchers may also want to consult.

Hat Tip: Workplace Prof Blog where Professor Jeff Hirsch offers some additional insights about this important subject.

Mitchell H. Rubinstein

July 29, 2007 in Employment Law, Law Review Ideas, Recent Developments | Permalink | Comments (0) | TrackBack (0)

In Intra-Circuit Splits, Which Decision Governs?

Howard Bashman wrote an interesting article for the June 30, 2007 law.com entitled "Commentary: In Intra-Circuit Splits, Which Decision Governs?" which Civil Procedure buffs should take note of.   

Mr. Bashman writes about what most litigators experience in practice. Namely, judges are human and they make mistakes. This article addresses the issue of how conflicting intra-circuit appellate decisions should be treated. Mr. Bashman summarizes existing law as follows:

With at least one notable exception, most every federal appellate court takes the position that where two of its own rulings conflict on a point of law, the ruling that issued first controls in the absence of rehearing en banc. And if the earlier decision reached the wrong result, that earlier decision can be overruled by means of an en banc proceeding. Although three-judge panels may be powerless to overrule one another, the court sitting en banc has the power to overrule any of the court's earlier three-judge panel rulings.

The one notable exception is the 8th U.S. Circuit Court of Appeals, which follows the policy that where two conflicting three-judge panel rulings exist, the next three-judge panel confronted with the same issue is free to follow whichever of the two earlier decisions it views as better reasoned. The 8th Circuit reiterated this approach in a decision issued just last week.

Mr. Bashman concludes that courts should reject the 8th Circuit approach, reasoning:

Nevertheless, it is when an intra-circuit conflict exists that the need is greatest for certainty concerning what rule is the law. A federal appellate court can satisfy the need for certainty only by enforcing the policy that the first three-judge panel ruling to decide an issue provides a definitive resolution unless overturned by the court en banc. As a result, the 8th Circuit in an appropriate case should abandon its minority view that a three-judge panel, when faced with conflicting 8th Circuit authority, may follow the decision it believes best, instead of being bound by the decision that issued the earliest.

  Personally, I think the 8th Circuit got it right. We should let judges be judges. If a decision is wrong, there is no reason that it should be followed. The first decision may also be dated. In any event, this is an important issue that is ripe for law review commentary. 

Mitchell H. Rubinstein

July 29, 2007 in Law Review Ideas | Permalink | Comments (0) | TrackBack (0)

NLRB Overturns Election Because of Supervisor ProUnion Conduct

Nlrb As most students of labor law know, NLRB elections are suppose to be conduct under laboratory conditions. If there is any undue influence or election conduct, the experiment is held again. This is known as the General Shoe doctrine. One of the most troublesome type of case in recent years concerns how to treat pro-union conduct of supervisors. In Madison Square Garden, 350 NLRB No. 8 (June 28, 2007), a divided Board reaffirmed its Harborside standard. The Board described this standard as follows:   

The Harborside Board took the opportunity of the remand to rearticulate Board law and formulated a two step inquiry to apply in cases involving objections to an election based on pro-union supervisory conduct.

1) Whether the supervisor’s pro-union conduct reasonably tended to coerce or interfere with the employees’ exercise of free choice in the election. This inquiry includes: a) consideration of the nature and degree of supervisory authority possessed by those who engage in the pro-union conduct and b) an examination of the nature, extent, and context of the conduct in question.

2) Whether the conduct interfered with freedom of choice to the extent that it materially affected the outcome of the election, based on factors such as (a) the margin of victory in the election; (b) whether the conduct at issue was widespread or isolated; (c) the timing of the conduct; (d) the extent to which the conduct became known; and (e) the lingering effect of the conduct Id. at 909.

While largely reaffirming established Board precedent, in examining the nature, extent, and context of the supervisors’ conduct under the first prong of the Harborside standard, the Board held with respect to the supervisory solicitation of authorization cards that “absent mitigating circumstances” such solicitations have “an inherent tendency to interfere with the employee’s freedom to choose to sign a card or not” and thus “may be objectionable.” Id. at 911. In so holding, the Board reversed its prior law concerning supervisory solicitations of authorization cards.

Thus, the Board majority had little difficulty in overturning the election because supervisors handed out authorization cards and made several statements in support of the union. The sole Democrat on panel, Member Wilma Liebman would have allowed the union victory to stand because the supervisors did not engage in any type of threatening behavior.

Once again, a NLRB decision is divided along party lines.

Mitchell H. Rubinstein    

July 29, 2007 in Labor Law | Permalink | Comments (1) | TrackBack (0)