January 24, 2013
D.C. Circuit Remands NLRB Rulings on T-Shirt, Provocative Language Policy
From the Daily Labor Report, Dec. 14, 2012:
The District of Columbia Circuit remands an unfair labor practice case to the National Labor Relations Board, finding the board failed to explain its conclusions that Medco Health Solutions of Nevada Inc. interfered with employee rights by asking an employee to remove a union-sanctioned T-shirt and by maintaining a ban on insulting, provocative, and confrontational messages on employee clothing (Medco Health Solutions of Las Vegas Inc. v. NLRB, D.C. Cir., No. 11-1282, 12/14/12).
Writing for the court, Judge Williams says the company made a "straightforward" argument that pharmacy worker Michael Shore wore a shirt that was insulting to Medco and harmful to the company's effort to attract and retain customers, who occasionally toured the facility where Shore worked. NLRB found Medco's claim of harm to customer relations lacked evidentiary support, but Williams says the board failed to adequately explain what evidence was required.
Profology and Other Adjunct News
The Rochester Democrat and Chronicle reports that Bob Ertischek, an adjunct professor at Monroe Community College in Rochester, has created a social media network for people working in higher education. The site is called Profology. The site describes itself as "a place where faculty and other higher education professionals can meet, exchange ideas and work to improve pedagogy, research, classroom technology and assessment, and more." The platform actually opened in beta in 2011, and went fully operational sometime last year, but I just heard about it, so it's news to me. And now, maybe to you.
IRS and Adjuncts
The IRS noted in the Federal Register that "educational organizations generally do not track the full hours of service of adjunct faculty, but instead compensate adjunct faculty on the basis of credit hours taught." In short, most colleges are only paying part-time instructors for time spent in a classroom, and nothing for time spent grading or preparing.
The Treasury Department and the IRS are considering and "invite further comment on how best to determine the full-time status of employees" like educators, who may work many hours after students leave the classroom.
Correctly classifying adjunct, part-time or non-tenured faculty has taken on increased importance as the Affordable Care Act provisions relating to employer coverage come into effect.
Adjuncts and Governance
A joint subcommittee of the Association’s Committee on Contingency and the Profession and the Committee on College and University Governance, approved a final version of a report, "The Inclusion in Governance of Faculty Members Holding Contingent Appointments." The report includes a broad range of recommendations designed to address the fact that more and more teaching at college and universities is performed by adjunct, part-time or non-tenured faculty. Collene Flaherty at Inside Higher Ed has a summary and commentary on the report here.
January 23, 2013
Breaking News. Unionization Rates Continue to Decline
On January 23, 2013, the BLS released its annual report on the rate of unionization. Overall, the rate of unionization feel from 11.8% to 11.3%. Public sector workers had a 35.8 percent membership rate while the rate on unionization in the private sector dropped to 6.6%.
Significantly, however, union members continue to earn more than there non-union counterparts. As the report states:
In 2012, among full-time wage and salary workers, union members had median usual weekly earnings of $943, while those who were not union members had median weekly earnings of $742. In addition to coverage by a collective bargaining agreement, this earnings difference reflects a variety of influences, including variations in the distributions of union members and nonunion employees by occupation, industry, firm size, or geographic region.
The full report can be found here.
Mitchell H. Rubinstein
New In Print: Reviewing Law Reviews
The California Law Review has published The Brennan Center Jorde Symposium on Constitutional Law in its December 2012, issue, with articles by Judge Diane P. Wood, Judge Marsha S. Berzon and Professor Kevin M. Quinn. The DePaul Law Review's Winter 2012 issue includes the 17th Annual Clifford Symposium on Tort Law & Social Policy: "Festschrift for Robert Rabin." Drake Law Review has published two recent sumposia issues - a Constitutional Law Symposium titled "Constitutionalism and the Poor," and the Ninth Annual American Judicature Society Symposium: "Lawyers, Judges and Money: Evolving Legal Issues Surrounding Spending on Judicial Elections."
Duke Law Journal's December 2012, issue is a Special Symposium Issue on Custom and Law. The December 2012, Florida Law Review includes the Dunwoody Distinguished Lecture in Law titled "Judicial Review, Constitutional Interpretation, and the Democratic Dilemma: Proposing a 'Controlled Activism' Alternative," by Martin H. Redish and Matthew B. Arnould.
The November 2012, George Washington Law Review is a special issue, "Commemorating the 100th Anniversary of Farrand's Records of the Federal Convention." Volume 100, No. 4 of the Kentucky Law Journal includes a symposium on state court funding, with a keynote address by Erwin Chemerinsky. The Review of Litigation, Volume 31, Number 4, includes a symposium on class action lawsuits.
Volume 42, Number 4, Seton Hall Law Review includes a symposioum titled, "Implementing the Affordable Care Act: What Role fo Accountable Care Organizations?" Volume 57, Number 3, South Dakota Law Review includes a symposium on the government speech doctrine. Villanova Law Review's Volume 57, Number 3 includes the Norman J. Shachoy Symposium, "U.S. Taxation of Offshore Activity and Regulation of Executive Compensation." The Summer 2012, University of Arkansas at Little Rock Law Review includes the Ben J. Altheimer Symposium, "eConflicts Resolved: Evaluations of Legal Solutions to Information-Age Conflicts." The November 2012, Vanderbilt Law Review includes a symposium, "Supply and Demand: Barriers to a New Energy Future."
Some Colleges Cut Adjunct Hours Over Health Care Act
Sam Baker (The Hill) reports:
Colleges and universities are reportedly cutting the hours their adjunct professors work in an effort to avoid the employer mandate in President Obama's signature healthcare law.
The Wall Street Journal noted the trend Friday, saying a handful of smaller schools in Ohio and Pennsylvania have begun to cap the number of courses adjunct professors can teach, so that they don't end up working more than 30 hours per week.
The healthcare law requires employers to offer coverage to all employees who work more than 30 hours, or pay a penalty to the IRS.
January 22, 2013
Members of the State's Security Guard Advisory Council are State officers or employees for the purposes of Public Officers Law §17
Public Officers Law §17 provides for the defense and indemnification of State officers and employees sued in a civil action or proceeding in any state or federal court for acts or omissions involving the performance of their official duties.
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein
Vermont Law School Cost-Cutting Continues
Last November, the Law School announced the buy-out program, which at least to date has not been extended to faculty. At Above The Law, however, Stacey Zaretsky, in a short blurb, suggests Vermont's cost-cutting days may not entirely be over, and the faculty may not fare so well in the next round of cuts (the link is behind a paywall).
Vermont Law School, a private, unaffiliated law school, is the only law school in the State of Vermont.
January 21, 2013
California Supreme Court Upholds Peaceful Labor Picketing on Private Sidewalks
From the Los Angeles Times today, this interesting decision on peaceful labor picketing on private sidewalks by the California Supreme Court:
Signature gatherers and protesters may be ejected from privately owned walkways outside a store, but labor unions may picket there peacefully, the California Supreme Court decided Thursday. The state high court unanimously agreed that private walkways in front of stores, unlike public areas in shopping malls, are not open forums accessible to anyone who wants to assemble to express a view. But the justices split, 6 to 1, in upholding two state laws that prevent courts from issuing injunctions against peaceful labor pickets on private property. The laws protecting labor pickets are justified "by the state's interest in promoting collective bargaining to resolve labor disputes," Justice Joyce L. Kennard wrote for the court California "may single out labor-related speech for particular protection or regulation" as an exercise in the economic regulation of labor relations, Kennard wrote.
Reprinted from Workplace Prof Blog
Mitchell H. Rubinstein
NLRB Issues Major Decision Imposing Bargaining Obligation Over Discipline Before Union Reaches Conract
Alan Ritchey Inc., 359 N.L.R.B. No. 40, 12/14/12 [released 12/19/12]), is a major NLRB decision. The time after a union is certified until it reaches its first contract is often long and difficult. This decision holds, for the first time, that an employer MUST bargain with the union BEFORE imposes major discipline on unit employees notwithstanding the fact that a CBA has not been reached. As the NLRB stated:
Not every unilateral change that affects terms and conditions
of employment triggers the duty to bargain.
Rather, the Board asks “whether the changes had a material,
substantial, and significant impact on the employees’
terms and conditions of employment.” Toledo
Blade Co., 343 NLRB 385, 387 (2004) (emphasis
added). This test is a pragmatic one, designed to avoid
imposing a bargaining requirement in situations where
bargaining is unlikely to produce a different result and,
correspondingly, where unilateral action is unlikely to
suggest to employees that the union is ineffectual or to
precipitate a labor dispute. We draw on this basic principle,
adjusted to fit the present context, today. Disciplinary
actions such as suspension, demotion, and discharge
plainly have an inevitable and immediate impact on employees’
tenure, status, or earnings. Requiring bargaining
before these sanctions are imposed is appropriate, as
we will explain, because of this impact on the employee
and because of the harm caused to the union’s effectiveness
as the employees’ representative if bargaining is
postponed. Just as plainly, however, other actions that
may nevertheless be referred to as discipline and that are
rightly viewed as bargainable, such as oral and written
warnings, have a lesser impact on employees, viewed as
of the time when action is taken and assuming that they
do not themselves automatically result in additional discipline
based on an employer’s progressive disciplinary
system. Bargaining over these lesser sanctions—which
is required insofar as they have a “material, substantial,
and significant impact” on terms and conditions of employment—
may properly be deferred until after they are
January 20, 2013
2d Circuit Appears Sympathetic To Employee Who Did Not Testify Because of Pending Criminal Case
Carnegie Linen v. NLRB, ___F.3d___(2d Cir. Nov. 29, 2012), is an interesting case. I bring it to your attention because it concerned a party who refused to participate because of a pending criminal matter. My understanding of the law was that if an individual refuses to testify in a civil matter, that can be used against him in that case. The 2d Circuit may have opened up a small crack to this argument, however, when it stated:
Finally, Petitioner claims that the ALJ’s denial of its request for adjournment violated
due process. Petitioner moved to adjourn until the conclusion of criminal charges filed against
Perlson, stemming from the coffee-throwing incident that the ALJ found violated Section
8(a)(1). Petitioner argues that, until the criminal charges have concluded, Perlson could not
testify without violating his Fifth Amendment right to avoid self-incrimination. Petitioner
argues that this required adjournment. However, we have held that “the granting or denial of a
continuance is a matter within the trial examiner’s discretion.” NLRB v. Interboro Contractors,
Inc., 432 F.2d 854, 860 (2d Cir. 1970). In this case, the ALJ adjourned the hearing for more than
six months to accommodate Perlson’s involvement in the criminal case; the ALJ denied a request
for a further adjournment after the criminal case itself was postponed for an additional two
months. In proceeding with the unfair labor practice hearing, the ALJ declined to draw a
negative inference against Petitioner due to Perlson’s failure to testify. Other witnesses testified
about the coffee incident on behalf of Petitioner. Accordingly, the ALJ did not abuse his