Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Thursday, March 12, 2015

Graduate Assistant Strike at NYU

Graduate Assistants at NYU have been on strike for awhile. An article discussing the strike and NYU's recent threats from Inside Education can be found here

As readers to this blog as well as my former students all know, in Brown University, the NLRB held that Graduate Assistants were not employees; rather they were primarily students and therefore not protected under the NLRA.

This issue is again pending before the NLRB and I would not be surprised if the Obama Board reverses the Bush Board's Brown decision. But, we will have to wait and see.

Mitchell H. Rubinstein


March 12, 2015 in Labor Law, News, NLRB | Permalink | Comments (0)

Wednesday, February 25, 2015

Attorney Strike


Several years ago, I published a short article where I explained that attorneys are employees too and are entitled to the same protections as everyone else. You can download a copy of that article at no charge here.

The reality is that there are very few attorney labor unions. Frankly, there should be much more because many attorneys work under deplorable conditions. In early February, attorneys at MFY Legal Services went on strike. Their strike was recently settled

I bring this to you attention as another example of the importance of unions to the working people of this country which include attorneys. 

Mitchell H. Rubinstein

February 25, 2015 in Labor Law | Permalink | Comments (4)

Friday, December 5, 2014

NY Times Labor Reporter Steve Greenhouse Takes Buyout

Politico reports that NY Times Labor Reporter Steve Greenhouse took a buyout.

As the article states:

Steven Greenhouse, the labor correspondent for the New York Times, took a buyout this week. That decision immediately reduced by 50 percent the number of reporters at major U.S. newspapers who cover labor full-time—even as the dismal situation of the American worker becomes a central preoccupation for American politicians and policymakers. 


To some extent, labor reporters are falling victim to the very same workplace trends they cover. “Newspapers are under the gun financially,” observes Greenhouse, “and they’ve laid off a lot of workers.” Editors, he said, don’t view labor as “the sexiest beat.”

Labor coverage’s decline—like that of labor unions—long predates print journalism’s circulation slide. At Newsweek, for instance, as long ago as 1985, covering labor was no more than an entry-level job. Bob Cohn (today president and chief operating officer at the Atlantic, then my fellow grunt at Newsweek) became labor and workplace correspondent at the tender age of 22. Back then, he and I would swap wisecracks about what a backwater the beat had become.

Read more:

I only met Steve, who is a trained lawyer himself, a few times. Congratulations Steve! Hopefully, the NY Times will recognize the importance of hiring a new labor reporter.

Mitchell H. Rubinstein

December 5, 2014 in Labor Law, News | Permalink | Comments (3)

Wednesday, November 12, 2014

Indiana Supreme Court Upholds Right To Work Law

The Indiana Supreme Court upheld the law’s constitutionality in a 5-0 decision in Zoeller, et al. v. Sweeney, et al., (Nov. 6, 2014). The decision reverses a lower court decision that previously declared the law unconstitutional. 

Indiana’s Right to Work law prohibits employers from requiring union membership or the payment of dues as a term or condition of employment. A knowing or intentional violation of the law subjects the violator to a Class A misdemeanor.

Mitchell H. Rubinstein

November 12, 2014 in Interesting Cases, Labor Law | Permalink | Comments (0)

Friday, August 1, 2014

Pres. Issues Exec Order Requiring Fed Contractors To Disclose Labor Violations

The President signed an executive order requiring prospective contractors to disclose to agencies violations of 14 federal wage and hour, discrimination, health and safety, family and medical leave, labor and other workplace laws.

The Fair Pay and Safe Workplaces executive order, applying to new federal contracts of more than $500,000 starting in 2016. Additional information can be found on this White House fact sheet.

Mitchell H. Rubinstein

August 1, 2014 in Labor Law | Permalink | Comments (0)

Friday, May 30, 2014

Employee Who Resigns Because of Sexual Harassment is Eligible for Unemployment

Matter of Gascon, ___A.d. 3d ___(3rd Dep't. May 29, 2014), is an interesting case. As we all know, if an employee resigns, he is not eligible for unemployment. But, what if he or she resigns because of sexual harassment. Such employees would be eligible for unemployment. As the court stated:

        Whether a claimant has left employment for good cause so as to qualify for unemployment         insurance benefits is a factual issue to be resolved by the Board and its determination will be         upheld if supported by substantial evidence (see Matter of Petrov [Bragard Inc.Commissioner         of Labor], 96 AD3d 1339, 1339 [2012]; Matter of Garside [Commissioner of Labor];, 73 AD3d         1420, 1420 [2010]). Based upon claimant's testimony concerning various and continuing         incidents  of sexual harassment by the owner and, in particular, a final incident that         precipitated         her departure  from employment, we find that the record contains         substantial [*2]evidence   supporting the Board's  determination (seeMatter of Grace     [Astrocom Elecs., Inc.—Commissioner          of Labor];, 69 AD3d 1156, 1157 [2010]; Matter of     Braband [RF Tech.—Sweeney];, 239 AD2d 627, 628 [1997]). Although  the owner denied         engaging in the conduct alleged by claimant, and the  employer provided statements of         other employees indicating that they had no knowledge of the allegations of sexual         harassment, this evidence presented a credibility determination for the  Board to resolve . . 


May 30, 2014 in Labor Law, New York Law | Permalink | Comments (0)

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

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


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

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

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

Wednesday, December 12, 2012

DC Circuit Issues Major Decision On Withdraw of Recognition


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)