Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Wednesday, October 23, 2013

Minnesota Law Review: The Future of Organized Labor

The Minnesota Law Review will host a one day sympsium, "The Future of Organized Labor:  Labor Law in the 21st Century" on October 25 in Mondale Hall on the law school campus in Minneapolis.  The keynote speakers are Craig Becker, general counsel for the AFL-CIO and G. Roger King of Jones Day in Columbus, Ohio. 

According to the law review's website, the symposium is at capacity and registration is closed.  Interested persons, however, may want to contact the law review for the symposium issue when it is released.

Craig Estlinbaum

October 23, 2013 in Conferences, Faculty, Labor Law, Law Review Articles | Permalink | Comments (0)

Tuesday, July 9, 2013

Court Finds That Retiree's Right To Health Insurance Vested At Time of Retirement

Retirees' rights to lifetime health benefits vested on their retirement and thus were subject to benefits cap that union negotiated when retirees were still active employees. Curtis v. Alcoa Inc., ____F.3d____(6th Cir. 2013). 

This is an important issue which courts are all of the map on.

Law review commentary would be most welcome. 

Mitchell H. Rubinstein

July 9, 2013 in Arbitration Law, Labor Law, Law Review Ideas | Permalink | Comments (0)

Sunday, March 24, 2013

Rare 2d Circuit Decision Holding Individual Shareholder Liable for ULP's

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Salm v. NLRB,____F.Appx. ____(2d Cir. Jan. 30,2013), is an important case. The 2d Circuit in an unreported decision affirmed the NLRB's remedial order which pierced the corporate veil and found individual shareholders personally liable for unfair labor practices. As the court explained:

In the context of federal labor law and enforcement of orders of the NLRB, it remains the
case that the “insulation of a stockholder from the debts and obligations of his corporation is the
norm, not the exception.” NLRB v. Deena Artware, Inc., 361 U.S. 398, 402-03 (1960). This
general norm, however, is not inviolate. To pierce the corporate veil, the NLRB applies the twoprong test laid out in White Oak Coal Co., 318 N.L.R.B 732, 734-35 (1995), enforced, 81 F.3d
150 (4th Cir. 1996). Under this test, the NLRB may pierce the corporate veil and impose
personal liability on a shareholder or owner if “(1) there is such unity of interest, and lack of
respect given to the separate identity of the corporation by its shareholders, that the personalities
and assets of the corporation and the individuals are indistinct, and (2) adherence to the
corporate form would sanction a fraud, promote injustice, or lead to an evasion of legal
obligations.” White Oak Coal, 318 N.L.R.B. at 735.
In analyzing the first prong, the NLRB examines a host of specific factors, including:
(1) whether the corporation is operated as a separate entity; (2) the commingling of funds
and other assets; (3) the failure to maintain adequate corporate records; (4) the nature of
the corporation’s ownership and control; (5) the availability and use of corporate assets,
the absence of same, or under capitalization; (6) the use of the corporate form as a mere
shell, instrumentality or conduit of an individual or another corporation; (7) disregard of
corporate legal formalities and the failure to maintain an arm’s-length relationship among
related entities; (8) diversion of the corporate funds or assets to noncorporate purposes;
and, in addition, (9) transfer or disposal of corporate assets without fair consideration.
Id. Of these, “[n]o one factor is determinative, and not all of these factors must be present.”
NLRB v. Bolivar-Tees, Inc., 551 F.3d 722, 728-29 (8th Cir. 2008). While based on one major
transaction, the Board rightly concluded that an analysis of these factors showed that Salm had
indeed abused the corporate form to such a degree—by drawing down virtually all of the assets
of the Domsey Trading Corporation for his personal use—that the first prong of the White Oak
had been met.
Mitchell H. Rubinstein

 

March 24, 2013 in Labor Law, NLRB | Permalink | Comments (0)

Wednesday, March 6, 2013

7th Circuit Authorizes Arrest of Owner For Contempt in Failing To Comply With NLRB Case

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NLRB v. HH3 Trucking, ___F.3d____, 194 LRRM 3266(7th Cir. Jan. 10, 2012), is one of those case you do not see very often. The owners of a company found to have committed a ULP refused to comply with an NLRB backpay order and were found in contempt. After they continued to refuse to comply, the court ordered their arrest. 

Mitchell H. Rubinstein

March 6, 2013 in Labor Law, NLRB | Permalink | Comments (0)

Monday, 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

January 21, 2013 in Labor Law | Permalink | Comments (0)

Sunday, January 20, 2013

2d Circuit Appears Sympathetic To Employee Who Did Not Testify Because of Pending Criminal Case

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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
discretion.

January 20, 2013 in Labor Law | Permalink | Comments (1)

Wednesday, December 12, 2012

DC Circuit Issues Major Decision On Withdraw of Recognition

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SFO Goodnite Inn v. NLRB, ____F.3d____ (D.C. Cir. Nov. 20, 2012). The D.C. Circuit enforced  a National Labor Relations Board order finding a California hotel improperly withdrew recognition from a UNITE HERE local, rejecting the hotel's argument that it lawfully relied on anti-union petitions signed by a majority of its employees.

Mitchell H. Rubinstein 

December 12, 2012 in Labor Law, NLRB | Permalink | Comments (0)

Friday, December 7, 2012

Will Michigan Become A RIght To Work State

December 7, 2012 in Labor Law | Permalink | Comments (0)

Tuesday, December 4, 2012

Secunda and Hirsch Labor Law: A Problem Based Approach (LexisNexis 2012)

Move over Cox, there is a new labor law text in town. It is Secunda & Hirsch, Labor Law: A Problem Based Approach (2012) and it should be available from LexisNexis anyday. Readers may be familar with Professor Secunda and Professor Hirsch's work. They are two of the four editors of Workplace Prof Blog, a blog we often quote and which this blog is modeled after. 

What makes this book so outstanding is that it updates everything and I mean everything. The book focuses on recent caselaw and recent issues. The book is written with the student in mind and also provides several problems which are designed to stimulate interest in labor law and make the student think. 

The book also covers all the classic cases and covers all the basic issues; it just does it better. Most importantly, the cases are edited and many presented in less pages than in other texts. The book also quotes from several important law review articles.

Congratulations Paul and Jeff. Everyone teaching labor law should consider this book for adoption. 

Mitchell H. Rubinstein

December 4, 2012 in Labor Law, Law Review Articles | Permalink | Comments (0)

Monday, December 3, 2012

Court Backs Arbitrator on Employee Raises; Union Won Award for Rollback of Increases

From The Nov. 29, 2012 Daily Labor Report:

A federal district court in Pennsylvania Nov. 26 upheld an arbitrator's ruling that a retail grocer violated its collective bargaining agreement with a United Food and Commercial Workers local by granting individual wage increases to unit employees without the consent of the union (Giant Eagle Inc. v. United Food & Commercial Workers Local 23, W.D. Pa., No. 12-cv-987, 11/26/12).

Judge Arthur J. Schwab of the U.S. District Court for the Western District of Pennsylvania granted summary judgment to UFCW Local 23 in a lawsuit brought by Giant Eagle Inc. under the Labor-Management Relations Act and the Federal Arbitration Act. Denying Giant Eagle's request to vacate the arbitration award, Schwab found the arbitrator acted within his authority in reaching a decision that could be rationally derived from the parties' labor contract.

A union forced to challenge unlawful unilateral wage increases is in a very difficult political position. I am sure that many do not challenge them. 

Mitchell H. Rubinstein

 

December 3, 2012 in Labor Law | Permalink | Comments (1)

Sunday, December 2, 2012

Census Bureau Releases EEO Data Regarding U.S. Labor Force Demographics

From the Nov. 29, 2012, Daily Labor Report:

The U.S. Census Bureau today began releasing its equal employment opportunity tabulation, a set of 107 tables describing the U.S. labor force, broken down by sex, race, and ethnicity, and searchable by geographic location, occupation, and other variables.

The data, which are based on the bureau's American Community Survey for 2006 through 2010, were compiled by Census at the request of four “sponsoring agencies,” the Equal Employment Opportunity Commission, the Labor Department's Office of Federal Contract Compliance Programs, the Office of Personnel Management, and the Justice Department Civil Rights Division's Employment Litigation Section.

Since the 1970s, Census has produced an EEO tabulation about every 10 years after conducting the decennial census. The most recent tabulation, then called the EEO special file, was released in December 2003.

Mitchell H. Rubinstein

December 2, 2012 in Labor Law | Permalink | Comments (0)

Saturday, December 1, 2012

Hostess Gets The Ok To Shutdown

A federal bankruptcy judge on Nov. 21 approved a bid by Hostess Brands Inc. to proceed with winding down its business and to alter key terms of labor contracts as it tries to sell off its assets (In re Hostess Brands Inc., Bankr. S.D.N.Y., No. 12-22052, order 11/21/12).

As my students all know,  under a Supreme Court case called Darlington, an employer has the right to go out of business, even if it is for anti-union reasons. 

When this occurs it is a no-win for anyone. However, I am sure that Hostess is going to sell its assets, including its trademarks for its brands for, pardon the pun, quite a lot of bread.

Mitchell H. Rubinstein

December 1, 2012 in Labor Law | Permalink | Comments (2)

Thursday, November 1, 2012

Walk Outs At Walmart

Reportedly, there have some been some walkouts at Walmart over working conditions. Though the devil is in the details, my students all know that if the walk out is over working conditions and if the employees are not being disloyal, there actions very well might be protected under Section 7 of the NLRA, notwithstanding the fact that Walmart is largely unorganized. Section 7 does not only apply to unionized employers.

Mitchell H. Rubinstein

November 1, 2012 in Labor Law | Permalink | Comments (1)

Sunday, July 22, 2012

Alaska Supreme Court Issues Major Decision Recognizing Labor Union Privilege

Alaska Supreme Court

The Alaska Supreme Court recognized a union-relations privilege in Peterson v. State of Alaska, No. S-14233, ___P.3d___, 2012 WL 2947636  (Alaska, July 20, 2012), Download Peterson .The Court held that "[b]ased on the strong interest in confidential union-related communications and statutory protection against unfair labor practices, we hold [the state labor relations act] impliedly provides the State's union employees a union-relations privilege."  The reasoning employed by the Court - that "the proper functioning of [a] mandatory grievance and arbitration system . . . requires some protection for confidential communications made for the purpose of facilitating the rendition of grievance-related representative services to the employee" and that recognizing a privilege "harmonizes [the state labor relations act]'s strong public policy in favor of contractual resolution of labor disputes with the civil discovery rules" - should be useful in other states and in other settings where this issue frequently arises.

A copy of the decision can be found Download Peterson Alaska SC Recognizes Labor Union Privil. This is a major decision. It is my hope that other states will follow suit. I wrote a law review article on this topic a few years ago, Is a Full Labor Relations Evidentiary Privilege Developing?, 29 Berkeley Journal of Labor and Employment Law 221 (2008), available here

Though this decision arose in the public sector, there is no reason why this decision would not be applicable to private employers. The policies behind the Alaska statute and the NLRA are virtually identical and the policies and need for the recognition of this privilege are certainly identical. 

Mitchell H. Rubinstein

 

July 22, 2012 in Labor Law, Law Review Articles, Law Review Ideas | Permalink | Comments (1)

Sunday, June 24, 2012

6th Circuit Issues Major Decision on Supervisory Status of Charge Nurses

Frenchtown Acquisition Co., Inc. v. NLRB, ____F.3d____(6th Cir. June 20, 2012), is a major decision. The 6th Circuit affirms the NLRB decision which found that charge nurses at a long-term-care and rehabilitation facility were not supervisors under the NLRA. 

The decision is particularly well written and is a primer on how to judge whether an individual is a supervisor. The court approves of the standard set forth in Oakwood Healthcare, 348 NLRB 686 (2006) which defined the term independent judgment as used in the statute.

Interestingly, in rejecting the employer's argument that the charge nurses had the right to discipline employees, the court held that "a single instance of discipline does not support a finding of supervisory status." The mere correction of an Aide work, without more was also not considered discipline. 

Additionally, interviewing a candidate for a position, does not indicate that you have the authority to hire, as those terms are defined in the Act.

All and all, this decision is worth a read for those of you interested in traditional labor law.

Mitchell H. Rubinstein

June 24, 2012 in Labor Law, NLRB | Permalink | Comments (0)

Friday, May 25, 2012

Maryland Joins Illinois in Recognizing a Labor Relations Privilege

Readers to this blog know that I am interested in the legal question of whether or not a labor relationsprivilege is developing. I have written two law review articles on this topic, the most recent of which is  “Is a Full Labor Relations Evidentiary Privilege Developing?

Maryland now joins Illinois as the only two states that have enacted, by legislation, a labor relations privilege. Senate Bill No. 97, effective Oct. 1, 2012, was recently signed into law by the Governor, here. The statute provides, with certain exceptions:

A labor organization or an agent of a labor organization may not be compelled to disclose any communication or information the labor organization or agent received or acquired in confidence from an employee while the labor organization or agent was acting in a representative capacity concerning an employee grievance

This is a major development and it is my hope that other states follow Maryland and Illinois' lead. Even without explicit legislation, as I argued in my law review article, there is need for courts to recognize a labor relations privilege. Public policy should encourage and support open and frank communications between bargaining unit employees and their unions. This would be healthy for both management and labor. With honest and frank communication, perhaps less industrial strife will occur. Open and honest communications may result in fewer grievances being filed and the filing of grievances with merit. 

 

Hat Tip: Jean Marc Favreau, Esq.

               Peer, Gan Geisler, Washington D.C. 

 

 

 

May 25, 2012 in Labor Law, Law Review Articles, Law Review Ideas | Permalink | Comments (0) | TrackBack (0)

Monday, March 12, 2012

2d Circuit Issues Important NLRB New Process Decision

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NLRB v. County Waste, ____F.3d____(2d Cir. Jan. 6, 2012), is an important post-New Process Steel case. The basic issue is whether the same two members who sat on the pre-invalid New Process panel can sit on the post-New Process Steel three person panel. The 2d held that they can. The court reasoned:

County Waste contends that pursuant to New Process Steel, the August 2010 Decision isunenforceable since two of the Board members that entered that decision also participated in thepanel that issued the February 2009 Decision.  This argument is unavailing.  In New ProcessSteel, the Supreme Court held that section 3(b) of the NLRA as amended by the Taft-HartleyAct, 29 U.S.C. § 153(b) (“Section 3(b)”),3 which sets out the Board’s quorum requirements and-6-delegation procedures, does not permit a two member panel of the Board to decide a case whenthe Board itself consists only of two members, 130 S. Ct. at 2638.  Nothing in the text of Section3(b) or the Supreme Court’s reasoning in New Process Steel addresses or even implicates howthe Board should handle cases that are vacated and remanded.  Moreover, it is well-establishedthat even a reversal on appeal does not preclude an adjudicator from deciding the same questionon remand.  Withrow v. Larkin, 421 U.S. 35, 57 (1975)  Here, it is undisputed that the August2010 Decision was issued by a three member panel of the Board.  Accordingly, the Board actedwithin its authority under Section 3(b).

March 12, 2012 in Labor Law, NLRB | Permalink | Comments (1)

Thursday, February 16, 2012

Taking Photos Can Be Concerted Activity

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NLRB v. White Oak Manor, No. 10-2122 (4th Cir., Oct. 28, 2011), is an interesting case which warrents law review commentary. You also cannot make these facts up. An employee wore a hat to work because she was embarrassed by a bad haircut, but a manager instructed her to remove the hat. The next day she returned to work and began taking photographs of other employees who wore hats and other clothing that violated the dress code. Some of the photos were taken with the photographed employees’ consent, while others were not. Upon hearing complaints from employees about having their photos taken and shared with other employees without consent, the company terminated the employee.  The NLRB and court held that the photographing effort was protected concerted activity because it centered on enforcement of the dress code, a working condition.  The court  wrote that the employee’s “grievance may have started as an individual gripe,” but it “evolved into a campaign to have the dress code enforced in a fair and equitable manner.”  

Mitchell H. Rubinstein

February 16, 2012 in Labor Law, Law Review Ideas, NLRB | Permalink | Comments (0)

Monday, January 23, 2012

Lockouts In the News

More Lockouts As Companies Battle Unions is an interesting New York Times article by Steven Greenhouse. It is about increased use of offensive lockouts by employers who then turn around and hire temporary replacement workers. As the article states:

The number of strikes has declined to just one-sixth the annual level of two decades ago. That is largely because labor unions’ ranks have declined and because many workers worry that if they strike they will lose pay and might also lose their jobs to permanent replacement workers.

Lockouts, on the other hand, have grown to represent a record percentage of the nation’s work stoppages, according to Bloomberg BNA, a Bloomberg subsidiary that provides information to lawyers and labor relations experts. Last year, at least 17 employers imposed lockouts, telling their workers not to show up until they were willing to accept management’s contract offer.

Mitchell H. Rubinstein

 

January 23, 2012 in Labor Law | Permalink | Comments (2)

Wednesday, December 14, 2011

Union Granted 10(j) Injunction In California

Baudler v. American Baptist Homes of the West, No. 11-2480, 2011 WL 2870464 (N.D. Cal. July 19, 2011), is an interesting case as you do not see them very often. A lower federal court in California held that the employer must rehire striking workers. 
A majority of union members went on strike, and the employer hired temporary replacements. Although the union offered to return to work unconditionally after five days, the facility made permanent job offers to the replacement employees. As a result, 38 of the 80 strikers were denied reinstatement to their original positions.
The union filed several unfair-labor-practice charges against the facility with the NLRB and obtained an an injunction for the duration of the NLRB proceedings to prohibit the employer from:
  • • Barring off-duty union members from entering the facility for union activity, while allowing access for other reasons (no-access rule).
  • • Refusing reinstatement to employees with union ties.
  • • Interfering with employees' right to engage in organizing activities.
Mitchell H. Rubinstein

December 14, 2011 in Labor Law | Permalink | Comments (0)