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Editor: Mitchell H. Rubinstein
New York Law School

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Thursday, July 31, 2008

International Labor Organization Issues Decision Finding That Graduate Students Are Employees

Last month, the ILO issued a decision holding that graduate students are employees. A copy of that decision is available here Download ilo.pdf. The decision is not binding because the United States has not ratified the requsite international treaty. The UAW and AFL-CIO filed a complaint with this organization.

The decision provides in part:

804. The Committee observes that the Government emphasizes that graduate teaching and research assistants should be considered as being primarily in an educational relationship with their university, while the complainant asserts the specifically employment aspects of their relationship to the university. The Committee considers that, while there may be some linkages between the educational and employment relationship of graduate teaching and research assistants to their university, a series of other concrete elements leads the Committee to consider that graduate teaching and research assistants, in so far as they are workers, should, like all other workers, enjoy the right to bargain collectively over the terms and conditions of their employment, excluding academic requirements and policies, so as to protect and promote their occupational interests. In that capacity, this right should include being represented in
negotiations by the union of their choice and having sufficient protection for the exercise of their trade union rights. Thus, the Committee requests the Government to take the necessary steps, including legislative, if necessary, to ensure that graduate teaching and research assistants, in their capacity as workers, are not excluded from the protection of freedom of association and collective bargaining. The Committee requests to be kept informed of progress made in this respect.
The Committee’s recommendation
805. In the light of its foregoing conclusions, the Committee invites the Governing Body to
approve the following recommendation:
The Committee requests the Government to take the necessary steps, including legislative, if necessary, to ensure that graduate teaching and research assistants, in their capacity as workers, are not excluded from the protection of freedom of association and collective bargaining. The Committee requests to be kept informed of progress made in this respect.

I am not sure why the AFL-CIO and the UAW filed a complaint. My guess is that they thought this decision would have some type of impact on the NLRB. However, I do not see that happening. 

Mitchell H. Rubinstein

July 31, 2008 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Daddy Track For Associates

Daddy Track is an interesting July 1, 2008 American Lawyer article about paid paternity leave being given to law firm associates. As the article states:

Real men put their careers on hold for babies. At some of the most profitable and hard-driving law firms in the nation, paid paternity leave for new dads-ranging from two to ten weeks-is now the norm, a perk as basic as a shiny BlackBerry.

More striking is that men under 40-even those with partnership aspirations-aren't hesitating to take the leave, according to interviews with lawyers at nearly a dozen firms. At Kirkland & Ellis, 78 men at the 1,300-lawyer firm took paternity leave in 2007. About 50 of them took four-and-a-half weeks, says partner Jay Lefkowitz, a member of the firm's management committee. He notes that the firm now offers six weeks of paid paternity leave and that "the numbers [of people taking the leave] have been increasing."

This is certainly a welcomed development.

Mitchell H. Rubinstein

July 31, 2008 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Casualties of War

Casualties of War is an interesting July 1, 2008 article from the American Lawyer (registration required). It is about some of the difficulties our wounded veterans returning from Iraq face. The article discusses how a number of major law firms are offering pro bono services for our vets. As the article states:

Disabled veterans face a blizzard of paperwork when they return home, and, until recently, little legal support. But as the toll from Afghanistan and Iraq mounts, more lawyers are stepping in to help.

Mitchell H. Rubinstein

July 31, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Article on Labor Relations Privilege Makes SSRN List of Top 10 Downloads

I am pleased to announce that my article "Is a Full Labor Relations Evidentiary Privilege Developing?" 29 Berkeley Journal of Labor and Employment Law 231 (2008) was just  listed on SSRN's Top Ten download list for EL: Employment Statutes (Topic). It can be downloaded for free here.

Mitchell H. Rubinstein

July 31, 2008 in Law Review Articles | Permalink | Comments (0) | TrackBack (0)

Running Debate With Attorney Gerry Spence About His Posting "Defrauding Our Nation's Lawyers

I seem to be running a debate with famed attorney Gerry Spence about his article "Defrauding our Nation's Lawyers." If you follow the link, you can see, Gerry's orginal posting, my response as well as responses from others. My latest posting is as follows:

Gerry:
You still miss my point. Law schools do not exist to only train trial lawyers. There is a necessary academic part of law. Law students have to learn how to read cases and to distinguish between majority and dissents. The law is not only about telling a story or arguing facts. Much of advocacy is arguing the law; what it is and what it should be.
With respect to the “story,” law is about telling your client’s story in an organized manner.
While I agree with you about the quality of many lawyers’ briefs, just imagine the alternative. Have you read many pro se briefs lately?? It is very difficult to make head or tails out of their claim.
That is one reason why we need individuals to be trained in law school. Law is also a reflection of society and politics. As you know, the law is not a plain piece of paper. It changes. We need to train lawyers to be able to adopt to these changes and to think on their own. That is what it means to think like a lawyer.

Mitchell H. Rubinstein

July 31, 2008 in Lawyers | Permalink | Comments (4) | TrackBack (0)

Wednesday, July 30, 2008

11th Upholds Statute Which Exempts Students From Having To Recite Pledge of Allegiance If Parents Consent

11thcir Frazier v. Winn, ___F.3d___(11th Cir. July 23, 2008), is an important decision concerning the Pledge of Allegiance. A Flordia statute exempted students from having to recite the pledge with parental permission. The 11th held that this requirement did not violate the First Amendment.

The court held that this statue did not violate freedom of expression on its face. The parents has a fundamental right to control their children's upbringing. The court held that the statute was neutral on the pledge in that it deferred to the parent's expressed desire. The court also held that the state's interest in recognizing and protecting parental rights was sufficient to justify the restriction of somee student freedom of speech.

This decision was well written. The issue presented in this case is considerably easier than the broader question involving whether students can be forced to recite the Pledge. This is because the issue of parental rights is involved in this case.

Ultimately, I believe the Supreme is going to hold that students can be required to recite the Pledge for two reasons. First, we have a very conservative Supreme Court. Second, the Court has in recent years repeated recognized that student First Amendment rights are more restrictive than that of adults.

This issue is not going to go away and is an important one to watch.

Mitchell H. Rubinstein

July 30, 2008 in Education Law | Permalink | Comments (0) | TrackBack (0)

Conduct of Union Organizing Committee Not Attributed To Union

Nlrb_2 Foxwoods Resort Casino, 352 NLRB No. 92 (June 30, 2008), demonstrates an important principle of labor law. Not all conduct of employees can be attributed to their union. It is only where the employees act as agents for the union, that the union can be held responsible for their conduct. As the Board explained:

The Employer argues that Johnson was an agent of the Union under the doctrine of apparent authority. In Corner Furniture Discount Center, 339 NLRB 1122, 1122 (2003), the Board stated: Apparent authority results from a manifestation
by the principal to a third party that creates a reasonable
basis for the latter to believe the principal has
authorized the alleged agent to perform the acts in
question. Either the principal must intend to cause
the third person to believe the agent is authorized to
act for him, or the principal should realize that his
conduct is likely to create such a belief.
Employee members of an in-plant organizing committee
are not, per se, agents of the union. See Cornell
Forge Co., 339 NLRB 733 (2003); Advance Products
Corp., 304 NLRB 436 (1991). Indeed, the Board has
found activities such as distributing literature, soliciting
signatures on authorization cards, and talking to fellow
employees about the union insufficient to make employees
general agents of the union. The burden of proving agency is on the party asserting it. Millard Processing Services, 304 NLRB 770, 771 (1991), enfd. 2 F.3d 258 (8th Cir. 1993), cert. denied 510 U.S. 1092 (1994). Here, assuming arguendo that John
son engaged in objectionable list keeping, the Employer
failed to prove that her conduct was attributable to the
Union.
The employee organizing committee was a group of
about 105 employees who spoke to coworkers about the
Union, distributed literature, and met with union representatives to discuss working conditions and issues and
to help identify coworkers who might be prounion. Any
employee who wanted to call herself a member of the
committee could do so.
The evidence does not show that the committee members
were the Union’s primary conduits of communication
to employees or that union representatives were generally
absent from the campaign. See, e.g., Corner Furniture,
supra at 1123 (noting that the employee in question
was not the union’s only conduit to employees; emphasizing
the active role played by the union’s paid representative).
Rather, the Union maintained a substantial presence throughout the campaign, beginning the campaign
with a staff of 10 to 15 organizers and increasing
that number to about 50 by the week of the election.

Mitchell H. Rubinstein

July 30, 2008 in NLRB | Permalink | Comments (1) | TrackBack (0)

Employer Statement That It Would Not Grant Wage Increase While Negotiating A CBA Is An Unfair Labor Practice

Nlrb Wal-Mart Stores, 352 NLRB No. 103 (June 30, 2008), is an important NLRB decision to be aware of. Usually, an employer threatens to withhold some type of wage increase if a union is elected. Here, the employer was not as brazen. Instead, he stated that he would not give the union an increase during contract negotiations. That statement was also unlawful. As the Board stated:

Although we agree with the judge’s 8(a)(1) finding, we
do not agree with the legal standard on which he relied.
The judge relied on precedent setting forth the obligations
of an employer to maintain the status quo as to
wages and benefits during a union organizing drive. As
we explained in Sam’s Club, 349 NLRB No. 94, slip op.
at 6 (2007), “an employer faced with a union organizing
drive is required to proceed with an expected wage or
benefit adjustment as if the union were not on the scene.”
Here, however, the question posed by the employees
focused on the postcertification period, and asked what
would happen to employee merit increases “while they’re
waiting on a contract” to be negotiated. The legal standard
applicable to wage increases in this context, as set
forth in NLRB v. Katz, 369 U.S. 736 (1962), and Daily
News of Los Angeles, 315 NLRB 1236 (1994), enfd. 73
F.3d 406 (D.C. Cir. 1996), cert. denied 519 U.S. 1090
(1997), is that when employees are represented by a
labor organization, their employer may not make
unilateral changes in their terms and conditions of
employment. Id. As set forth in Jensen Enterprises,
339 NLRB 877 (2003):
[F]ollowing its employees’ selection of an exclusive
bargaining representative, an employer may not
unilaterally discontinue a practice of granting periodic
wage increases. . . .
Hence, an employer’s statement that wages will
be frozen until a collective-bargaining agreement is
signed violates Section 8(a)(1) of the Act if the employer
has a past practice of granting periodic wage
increases. Such an announcement suggests to employees
that the employer intends to unilaterally take
away benefits and require the union to negotiate to
get them back. (citations omitted)10
The Respondent’s answer to the question submitted by
its employees clearly violated its obligations under Katz
and Daily News. As in Jensen Enterprises, it told employees
that it would not grant them merit increases during
negotiations for a collective-bargaining agreement.
Accordingly, we affirm the judge’s finding that the Respondent’s
answer constituted a threat to withhold an
established benefit and violated Section 8(a)(1).

Mitchell H. Rubinstein

July 30, 2008 in NLRB | Permalink | Comments (0) | TrackBack (0)

8th Provides Short Primer On Racial Harassment

8thcir O'Brien v. Dept. of Agric., ___F.3d___(8th Cir. July 16, 2008), provides a nice primer on the law of racial harassment under Title VII, which is very similar to sexual harassment. In a suit brought under Title VII claiming hostile work environment based on race discrimination and retaliation, summary judgment for defendant is affirmed where: 1) plaintiffs' working conditions were not so severe or pervasive that they rose to the level of a racially hostile work environment; 2) the constructive discharge claims were premised on the same allegations as the hostile work environment claims and were therefore insufficient; and 3) plaintiff's retaliation claims failed to establish a prima facie case. As the court stated:

Appellants contend that the district court failed to consider the totality of the
circumstances, examining instead only a few instances of Trice’s alleged harassment.
Hostile work environment claims are assessed based on the totality of the
circumstances, Vajdl v. Mesabi Acad. of KidsPeace, Inc., 484 F.3d 546, 551 (8th Cir.
2007); however, Appellants seem to argue that the sheer number of alleged instances
of harassment must equate to a racially hostile work environment. We disagree. The
frequency of the alleged harassment is only one of the relevant factors in determining
whether it was sufficiently severe or pervasive. Harris, 510 U.S. at 23. We also
consider “its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Id. Despite the hyperbolic and conclusory nature of Appellants
supporting affidavits, Trice’s actions, as alleged, lack the requisite severity to be
actionable. See Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841, 846 (8th
Cir. 2006) (“To be actionable, the conduct complained of must be extreme in nature
and not merely rude or unpleasant.”) (emphasis added).
Basically, the allegations may be distilled to verbal harassment and increased
scrutiny. Therefore, we find entirely unconvincing Appellants’ attempt to analogize
this case to Jackson v. Flint Ink N. Am. Corp., 382 F.3d 869 (8th Cir. 2004) and
Mems v. City of St. Paul, Dept. of Fire & Safety Servs., 224 F.3d 735 (8th Cir. 2000),
two cases in which this court reversed the district court’s grant of summary judgment
for the employer on hostile work environment claims. The plaintiff in Jackson was
an African-American factory worker who faced his name being written in a shower
at his workplace with an arrow connecting his name with a burning cross and a KKK
sign. 382 F.3d at 870. Mems involved African-American firefighters who: were
required to leave the station promptly at the end of a shift and respond to all calls
wearing full protective gear, while white firefighters were not; endured the display of
racially offensive cartoons; and suffered the destruction of their property. 224 F.3d
at 738-39.

Mitchell H. Rubinstein

July 30, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 29, 2008

Former Prof Looses Claim That NYU Must Give His Son Admission "Courtesies"

Flomenbaum v. NYU, ___Misc. 3d___ (N.Y. Co. June 23, 2008)Download Flomenbaum.doc , is an interesting case.

A doctor at NYU School of Medicine had an employment dispute concerning his tenure. It was eventually resolved by an agreement giving the doctor retroactive tenure and giving his children "the same courtesies" as active or retired tenured faculty member with regard to tuition reimbursement and admission. You guessed it; the doctors son applied for admission to NYU's undergraduate college and was denied admission. Thereafter, he commenced an action for breach of contract.

The plaintiff lost. NYU established that it complied with the agreement. The plaintiffs assertations that it did not consider certain "courtesies" was rejected as conclusionary. 

This case illustrates an important benefit of an academic appointment. Children of faculty at some schools are given courtesies with respect to admission and tuition. At certain schools, this may be a very valuable benefit.

Mitchell H. Rubinstein

July 29, 2008 in Education Law | Permalink | Comments (1) | TrackBack (0)

Famed Attorney Gerry Spence Launches Blog

Famed attorney Gerry Spence has his own blog, called Gerry Spence's Blog, what else?  He wrote a July 28, 2008 article entitled Defrauding our nation’s lawyers which accuses our nations law schools of fraud. Why? Because law schools do not teach lawyers to be trial lawyers. As Gerry states:

I could teach an eighth-grader in twenty minutes how to brief a case. Yet for all three years in most law schools the casebook method of learning the law is still in.  The matriculating young lawyer is as qualified to represent a client with the education he has suffered through as a doctor who has never seen a patient, who has never held a scalpel in his hand and who learns surgery by having read text books about it and becomes skilled in surgery, if ever, after having stacked up piles of corpses who represent his pathetic learning process.

Gerry you miss the point of law school. First, not everyone wants to be a trial lawyer.  The skills of an appellate lawyer, a corporate lawyer and a labor lawyer are often different than that of a trial lawyer. To borrow your doctor analogy, heart surgeons are different than family doctors.

Second, law school is not a trade school. It is not intended to magically transform students into lawyers in three years. Pardon the pun, by law school is about learning how to think, learning how to research and learning how to write in a legal manner.

And, by the way, I would like to see you teach an 8th grader brief a case!

Mitchell H. Rubinstein

July 29, 2008 in Blogs, Legal | Permalink | Comments (2) | TrackBack (0)

Professor Obama

Obamabutton The July 30, 2008 New York Times published an interesting story about Obama time as a law school professor at Univ of Chicago Law School entitled As a Professor, Obama Enthralled Students and Puzzled Faculty. The article states that Obama taught for 12 years and his mentor was Judge Abner J. Mikva. The article describes some of Obama's courses as follows:

At the law school, Mr. Obama taught three courses, ascending from lecturer to senior lecturer, a title otherwise carried only by a few federal judges. His most traditional course was an elective in the due process and equal protection areas of constitutional law. Mr. Obama’s voting rights class traced the evolution of election law, from the disenfranchisement of blacks to gerrymandering to contemporary debates over race-based districting and campaign finance. Mr. Obama was so interested in the subject he helped Richard Pildes, a professor at New York University, develop what is now a leading casebook in the field.

His most original course, a historical and political seminar as much as a legal one, was on racism and law. Mr. Obama improvised his own textbook, including classic cases like Brown v. Board of Education, but also essays by Frederick Douglass, W.E.B. Dubois, the Rev. Martin Luther King Jr. and Malcolm X, as well as conservative thinkers like Robert Bork, himself a product of the school.

Mitchell H. Rubinstein

July 29, 2008 in Politics | Permalink | Comments (1) | TrackBack (0)

2d Denies Enforcement To NLRB Order Which Allowed Literature Distribution At Shopping Mall

2dcirseal Salmon Run Shopping Center v. NLRB, ___F.3d___ (2d Cir. July 18, 2008) denied enforcement to an NLRB order which required a shopping mall operator to allow a union to distribute literature on mall premises. The court held that the mall operator did not improperly discriminate against the union under section 7 of the National Labor Relations Act. Remarkably, under this court's analysis the employer's anti-union motive was irrelevant. The court reasoned:

In deciding whether discrimination had been proven in the instant case, the Board focused
on the mall operator’s actions, which it viewed as demonstrating an intent to disfavor union
activity. It concluded that “the decision to exclude was based upon the mere fact that the Union
is a union seeking to engage in labor-related speech.” Of particular significance to the Board was
that the mall operator “did not know what the [Union’s] literature would say.” Because the
Board’s focus was on the mall operator’s motives and not on a comparison of the treatment of
speakers on a subject that section 7 protects, we conclude that the Board’s interpretation was not reasonable.
The focus of the discrimination analysis under section 7 of the Act must be upon
disparate treatment of two like persons or groups. See Guardian Indus. Corp. v. NLRB, 49 F.3d
317, 319 (7th Cir. 1995) (“A person making a claim of discrimination must identify another case
that has been treated differently and explain why that case is the same in the respects the law
deems relevant or permissible as grounds of action.” (internal quotation marks omitted)). The
standard for assessing discrimination must take account of the general rule that a private property owner need not provide a forum for expression on its property and may be arbitrary and
inconsistent in its selection of speakers. See Hudgens, 424 U.S. at 520-21.
To amount to Babcock-type discrimination, the private property owner must treat a
nonemployee who seeks to communicate on a subject protected by section 7 less favorably than
another person communicating on the same subject. The disparate treatment must be shown
between or among those who have chosen to enter the fray by communicating messages on the
subject, whether employers or employees. Under this standard, a mall operator could not allow
Dick’s to defend its contractors’ use of carpenters who were paid below area standard wages but
not allow the Carpenters’ Union to tell its side of the story. It could not allow a competing union
to distribute organizational literature but preclude the Carpenters’ Union from doing so. The
solicitation of Muscular Dystrophy donations by firefighters or the distribution of educational
promotional materials on Higher Ed Night do not serve as valid comparisons to the Carpenters’
Union distribution of literature touting the benefits of its apprenticeship programs or decrying the failure of a mall tenant to pay area standard wages. Only the “rare case” satisfies Babcock’s
inaccessibility exception, Lechmere, 502 U.S. at 537, and it may be that the same holds true
under our interpretation of the discrimination exception.

Mitchell H. Rubinstein

July 29, 2008 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Monday, July 28, 2008

Clandestine Surveillance Of Employee Defeats FMLA Claim

7thcirseal Vail v. Raybestos Products, ___F.3d___ (7th Cir. July 27, 2008), is an important FMLA decision.

An employer's off-duty police officer clandestine surveillance provided the employer with an honest suspicion that an employee was not using her medical laeve for the intended purpose of the leave due to her migraine headaches. Thus, the plaintiff employee's claim that the employer interfered with her FMLA rights by terminating her for abuse of leave was precluded. The officer saw the employee working for her husband's lawn-mowing business the next moring after she had taken medical leave for her evening shift.  As the court reasoned:

We have interpreted this to mean that an employer has not violated the FMLA if it
refused to reinstate the employee based on an “honest
suspicion” that the she was abusing her leave. Id.; Kariotis,
131 F.3d 680-81.
Here, Raybestos has clearly made this showing. Though
the use of an off-duty police officer to follow an employee
on leave may not be preferred employer behavior,
employers have certainly gone further than Raybestos.
See, e.g., Kariotis, 131 F.3d at 681 (hiring private investigators
to videotape employee). In any event, the information
gleaned from Sergeant Largent’s reconnaissance
was sufficient to give Raybestos an “honest suspicion”
that Vail was not using her leave “for the intended purpose.”
Vail had taken medical leave for her October 6,
2005 evening shift. The next morning, the off-duty police
officer saw Vail working for her husband’s lawn-mowing
business. Raybestos received this information after it
already suspected that Vail was gaming her leave in order
to work for her husband’s business. So when it heard
information consistent with what they suspected she
was doing while on leave, Raybestos decided to terminate
her. Vail’s call later that day—after a day of mowing
under Sergeant Largent’s gaze—stoked this suspicion.
As a result of this “honest suspicion,” Raybestos
did not violate Vail’s rights under the FMLA.

This decision appears to have been a "no brainer" and I am surprised that it made its way to the 7th Circuit.

Mitchell H. Rubinstein

July 28, 2008 in FMLA | Permalink | Comments (1) | TrackBack (0)

4th Denies Enforcement To NLRB Decision and Holds Employer Lawfully Withdrew Recognition

4thcir NLRB v. B. A. Mullican Lumber and Mfg. Co., No. 07-2028, 07-2063, ___F.3d___ (4th Cir. July 25, 2008), is an interesting circuit court opinion which reversed the decision of the NLRB

Specifically, the NLRB's application for enforcement of a decision ordering respondent-employer to recognize union is denied, and employer's cross-petition for review granted, where: 1) employer advanced substantial objective evidence, consistent with the standard articulated in Levitz Furniture Co. of the Pacific, 333 N.L.R.B. 717, 725 (2001), and sufficient to demonstrate that, more likely than not, production employees no longer supported the union; and 3) General Counsel of the Board did not challenge or contradict the evidence.

The decision is well written and lengthly. It reviews the law concerning when an employer can withdraw recognition from an incumbent union.The court summarized the law and the evidence which ultimately was found sufficient to establish a good faith doubt of the unions continuing majority status as follows:

Levitz held that "an employer may rebut the continuing presumption
of an incumbent union’s majority status, and unilaterally withdraw
recognition, only on a showing that the union has, in fact, lost
the support of a majority of the employees in the bargaining unit."
333 N.L.R.B. at 725. Under Levitz, the employer must prove loss of
majority status "by a preponderance of the evidence," id., and to make
that showing, the employer must present "objective evidence that the
union has lost majority support," id. (emphasis added); see also id. at
723 ("some objective evidence"). In articulating this objectiveevidence
standard, Levitz overruled the prior subjective standard by
which an employer could withdraw recognition from a union if the
employer had a "good-faith doubt" as to whether the union continued
to enjoy majority support. See id. at 721; Transpersonnel, 349 F.3d
at 187 . . .
In this case, Mullican Lumber presented the following evidence in
support of its claim that the Union had lost majority support:
First, it received information from the Union negotiator that the
production employees were circulating a decertification petition, and
from the NLRB that the petition had in fact been filed with the NLRB
on September 17, 2001, indicating under NLRB rules that at least
30% of the employees no longer supported the Union.
Second, at least four named employees in the bargaining unit,
inquiring when decertification would proceed, made statements to
Mullican Lumber’s plant manager that the Union no longer had the
support of a majority of the employees.
Third, an additional number of unnamed production employees
told Mullican Lumber’s plant manager that a majority of the Company’s
production employees did not support the Union and asked why
decertification had not proceeded.
Fourth, unnamed employees advised Mullican Lumber’s plant
manager that only four or five employees attended Union meetings
and the members had for months not elected a president after the former
president left his employment at the plant.
Fifth, James Carroll, the production employee who actually prepared
and filed the decertification petition with the NLRB and thereby
had first-hand knowledge of it, wrote Mullican Lumber in May 2002,
informing the Company specifically that a majority of the production
employees "no longer want[ed] to be represented by the United Mine
Workers of America" and that "114 out of 220 employees have signed
decertification slips noting they no longer want to be represented by
the United Mine Workers of America."
Sixth, Mullican Lumber recognized that, on the day after the decertification
petition was filed, the Union sought retroactively to ratify
an incompletely negotiated collective bargaining agreement in an
effort to nullify the decertification petition. In addition, the Union
filed ongoing "blocking charges" that had the well-understood effect
of delaying the Board’s ability to consider the decertification petition.
And seventh, the Union never disputed Mullican Lumber’s assertion
that the Union lost majority support.

Mitchell H. Rubinstein

July 28, 2008 in NLRB | Permalink | Comments (0) | TrackBack (0)

Waivers Limiting Workers' Time to Sue Draws Fire

Waivers Limiting Workers' Time to Sue Draws Fire is an interesting July 21, 2008 National Law Journal article. It's about a growing number of employers who require new employees to sign agreements shorting the statute of limitations to bring claims against the corporation. As the article states:

A growing number of employers are adding a controversial element to their job applications: a waiver in tiny print that says employees can sue the company only within six months of a particular incident. That waives their rights to any contrary statute of limitations provided under state and federal laws, a tactic that is stirring yet more workplace controversy and litigation.

Management-side lawyers see the waivers as a good tool to help employers better manage lawsuits in a more predictable fashion, and ward off more claims by giving people less time to sue. But the tactic has employee-rights attorneys reeling.

The article is fairly short, but does cite to some case law which has apparently upheld these practices. I am not so sure that these waivers will ultimately be upheld.  The Supreme Court in  Hall Street Associates v. Mattel, Inc. held that parties cannot expand the scope of judicial review under the FAA. The same result may apply here. This issue is ripe for law review commentary.

Mitchell H. Rubinstein

July 28, 2008 in Employment Law, Law Review Ideas | Permalink | Comments (0) | TrackBack (0)

The Important Role of Notary Publics

'Can You Notarize This?' Taking the Notary Job Seriously is an important July 18, 2008 New York Law Journal article about the role and importance of notary publics. Though the authors recognize that the notarial function is often overlooked and even compromised, notarys play and important function in verifying the signature on documents. The article explains that notarys are suppose to perform the following functions:

Require that the signer be physically present before the Notary for signature (which aids in a Notary's ability to detect forgery if it appears that the affiant is taking an inordinate amount of time or care in signing);5

(ii) Verify, through photo identification or personal knowledge, that the signer is who he or she claims to be;6

(iii) Obtain the oath or acknowledgment of the signer that he or she has signed the document willingly and is aware of its contents (e.g., Do you solemnly swear that the contents of this affidavit subscribed by you is correct and true?7); and

(iv) Sign the document and print, typewrite or stamp, in black ink, the words "Notary Public State of New York," the name of the county in which the Notary is qualified, and the date upon which his commission expires. Notaries commissioned in Bronx, Kings, New York, Queens, or Richmond County must also indicate the Notary's commission number.

Best practices would also suggest that the notary maintain a journal record of each notarial act, including the date, affiant's name and signature, title or type of document notarized, method of identification used, and a physical description of the affiant.

While such efforts may seem incredibly onerous in light of the already document-saturated, fast-paced environment in which most of us practice, consider for a moment how useful such information will be if the notary is then ever called to testify as to the notarial act years later

Mitchell H. Rubinstein

July 28, 2008 in Civil Law | Permalink | Comments (3) | TrackBack (0)

Sunday, July 27, 2008

NLRB General Counsel Memo on Political Advocacy

Nlrb On July 22, 2008, the General Counsel issued a memo on “ULPs Involving Political Advocacy,” Memorandum GC 08-10, available here. This memo was apparently triggered by the GC's consideration of charges protesting the discipline of employees who participated in nationwide demonstrations opposing pending immigration legislation. 

In a nutshell, this GC Memo finds that attendance at rallies concerning employment-related immigration matters is protected but that leaving work to attend rallies is not.  The reason given is that, since the employer cannot directly affect immigration laws, such a work stoppage/leaving-work does not constitute a strike.  It analogizes to workers leaving work to attend a union meeting, which is not protected
activity. 

The GC believes that the following factors/issues need to be considered when analyzing these types of cases.

1)  Does a particular political advocacy falls within the “mutual
aid or protection” clause, considering the following factors:  is the
issue/proposal/legislation specific or general; is it issue-related or
candidate/party-related; is there a nexus between the subject matter of
the advocacy and a specifically identified employment-related interest,
working condition, or on-going labor-management dispute.  [The
immigration demonstrations were considered to be for “mutual aid or
protection.”]
2)  Is the means employed to carry out the advocacy protected, using
the following guidelines: (a) “mutual aid and protection” advocacy
engaged in during nonwork time in nonwork areas is protected absent
disruption or interference with discipline; (b) discriminatory enforcement of facially valid work rules or past practices, based upon the content of the advocacy, violates the Act;
(c) on-duty “mutual aid and protection” advocacy, including leaving
or stopping work, is subject to restrictions imposed by lawful and
neutrally-applied work rules

The GC concluded that although the immigration rallies were in support of employees’ working conditions, they were not protected, reasoning workers did not leave work for the purpose of obtaining some improvement in their working conditions from their own employer; workers were not withholding their services as an economic weapon in their employment relationship; and the work stoppage was not directed at an employer who had control over the subject matter of the dispute.

Professor Paul Secunda, over at Workplace Prof Blog, commented as follows:

Personally, I am troubled by the direct nexus test advocated for here.  I think Eastex and its progeny give more leeway to employees to advocate for political issues that may impact the workplace.

This proposed test also gives with one hand and takes away with another: it protects political activity related to employment, but then say a worker can be fired if he or she walks off the job to support that political activity?  Isn't the NLRB  charged with protecting Section 7 activity and not protecting employers?

I think Paul hit the issue on the button and I agree wth him. This is an important issue to watch. Some law review commentary on this issue would  also be welcomed.

Mitchell H. Rubinstein

July 27, 2008 in Law Review Ideas, NLRB | Permalink | Comments (0) | TrackBack (1)

More men filing workplace lawsuits

More men filing workplace lawsuits is an interesting July 28, 2008 National Law Journal article (registration required). As the article states:

The macho man image is dying in the workplace.

Employment and family law attorneys say a growing number of men are filing a wide variety of workplace lawsuits, suing over everything from more leave time to care for their children to sexual harassment.

The Equal Employment Opportunity Commission notes that in 2007 it saw a record number of sexual harassment complaints filed by men. Men accounted for a record 16% of all sexual harassment complaints, nearly double the 9% figure in the early 1990s.

On the parental leave front, lawyers note, a growing number of men are filing Family Medical Leave Act (FMLA) claims, many of them single dads with more responsibilities at home. Others are simply asserting their desires to spend more time with their children.
Lawyers are calling this a byproduct of the father's rights movement . . . .

Mitchell H. Rubinstein

July 27, 2008 in Employment Law | Permalink | Comments (1) | TrackBack (0)

ADR and Mandatory Arbitration in Workplace

Michael Weber, Rise of ADR for Workplace Disputes, NYLJ June 17, 2008 is worth of read.  The article first briefly reviews the state of the law concerning mandatory arbitration of workplace dispute. However, most of the article is devoted to describing the advantages and disadvantages of mandatory arbitration. As the article states:

A simple review of advantages and disadvantages of arbitration is only the first step in deciding whether to adopt an arbitration program. Before adopting a policy requiring arbitration of employment disputes, an employer should also carefully analyze whether adoption of such a policy for its nonunion employees makes sense economically and in terms of current employee relations. Some of the factors that should be considered are the following:

• What is the employer's past history with respect to employment disputes? Because arbitration is generally less costly than litigation, an employer that has had one or more large judgments against it in employment actions has more of an incentive to adopt an arbitration policy than an employer that has never had an employment-related lawsuit filed against it.

• Has the employer been involved in litigation? If an employer has had a limited number of cases filed against it, it may not want to introduce a new procedure and advise employees that they now have a right to file for arbitration which alerts them to the idea that they have a simple mechanism to initiate claims. Employers who do contemplate adopting arbitration policies need to know that although the same discovery techniques are available in arbitrations as in litigation, discovery is often less extensive and contentious in arbitration. Litigation is also typically more costly than arbitration. . .

Mitchell H. Rubinstein

July 27, 2008 in Articles | Permalink | Comments (0) | TrackBack (0)