Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Tuesday, April 8, 2014

NY Court of Appeals Issues Major Duty of Fair Representation Decision

Palladino v. CNY Centro, ___N.Y.3d___(April 8, 2014), is a major decision.  In a 5-2 decision the New York Court of Appeals affirms the dismissal of a duty of fair representation case brought against a labor union that refused to take a discharge case to arbitration. Why, because each and every member of the union did not ratify the decision. 

In so holding, the Court re-affirmed Martin v. Curran, 303 N.Y. 276 (1951) and quoted my article, Union Immunity from Suit in New York, 2 NYU J. L. & Bus. 641, 649 (2006).  The Court correctly reasoned that NY still follows the common law which does not consider unincorporated associations to be juristic entities. Liability remains with the individual union members.

The Court noted the critisim that the Martin rule has received and the fact that it is virtually impossible for any labor union in New York to have common law liability.

The Court, however, noted that Plaintiff could have filed a DFR improper practice under the Taylor Law. 

It is feels good to be cited by the Court of Appeals.

Mitchell H. Rubinstein


April 8, 2014 in Duty of Fair Representation, New York Law, Public Sector Employment Law, Public Sector Labor Law, Unions | Permalink | Comments (0)

Friday, January 24, 2014

Breaking News: BLS Releases 2013 Data on Union Membership

The BLS just released their annual survey of union membership. As ususal, the report is quite comprehensive and is available here.  Some of the highlights include:

    --Public-sector workers had a union membership rate (35.3 percent) more 
     than five times higher than that of private-sector workers (6.7 percent). 

   --Workers in education, training, and library occupations and in protective 
     service occupations had the highest unionization rate, at 35.3 percent for 
     each occupation group. 

   --Men had a higher union membership rate (11.9 percent) than women (10.5 
     percent). (See table 1.)

   --Black workers were more likely to be union members than white, Asian, or 
     Hispanic workers. 
--Among states, New York continued to have the highest union membership rate (24.4 percent), and North Carolina had the lowest rate (3.0 percent).

Mitchell H. Rubinstein


January 24, 2014 in Unions | Permalink | Comments (0)

Sunday, January 5, 2014

Attorney Labor Unions


A few years ago I wrote a short article about attorney labor unions.  Download Attorney Labor Unions

The point of that article is that attorneys are employees like anyone else. The rules are not any different simply because lawyers are involved. 

There is a battle going on in Ohio whether Assistant Directors of Law for the Civil Division in the City of Cleveland are eligible for unionization. The issue boils down to whether or not these attorneys are public employees as that term is defined in the Ohio statute. 

The City won round one in that the Ohio State Employment Relations Board held that the attorneys were not public employees because they act in a fiduciary capacity to public officals. A copy of the decision can be found by clicking  Download SERB's Order Dismissing Req. Recognition The decision is a bit disappointing in that the Board merely rubber stamped the ALJ decision. One would think that on an issue so important that the Board would have at least offerred an opinion. Although I do not practice in Ohio, I would imagine that this is significant in that a court may not pay as much deference to a decision of an ALJ.

An appeal has, in fact,  been filed in court. I would be interested in knowing if any readers are in attorney labor unions. If you are, leave a comment on this blog with a name of the union. You do not need to leave your name if you do not want too.

We will be following this important case.

Mitchell H. Rubinstein


January 5, 2014 in Public Sector Labor Law, Unions | Permalink | Comments (3)

Monday, November 4, 2013

7th Issues A Major Decision Concerning Union Release Time


In Titan Tire Corp. v. United Steel Workers (Nov. 1, 2013), the Seventh Circuit held that an arbitration award requiring the company to honor a contract provision requiring the payment of the full-time union salaries of covered employees who took leave to hold local union office was void as against public policy because it required payments that violate LMRA § 302.  Expressly disagreeing with the Third Circuit's decision in Caterpillar, Inv. v. UAW, 107 F.3d 1052 (3d Cir. 1997), the Seventh Circuit concluded that the level of compensation paid to the local officers under the terms of the collectively bargained union leave provision was so incommensurate with the officers' former employment at Titan as to not come within the 302(c)(1) for payments made "by reason of" former employment.  Chief Judge Wood, joined by two other circuit judges, dissented from denial of rehearing en banc.

A copy of the decision is available to be downloaded by clicking  Download Titan Tire v. United Steel Workers

This decision is 49 pages long and full of cites. Law review commentary on this important topic would be most welcome.


Mitchell H. Rubinstein

November 4, 2013 in Law Review Ideas, Unions | Permalink | Comments (0)

Tuesday, August 6, 2013

Union Stats maintains an extensive data base on union statistics. While much of this information is probably also available form the BLS, readers may find this web site useful.

Mitchell H. Rubinstein 

August 6, 2013 in Unions | Permalink | Comments (1)

Monday, July 22, 2013

Targeting Union Employees For Layoffs Violates The First Amendment

State Employee Bargaining Coalitation v. Roland, ___F.3d___( 2d Cir. May 31, 2013), is an important case. I am surprised that this case has not gotten alot of national press. The 2d Circuit holds that targeting Union employees for layoff violates the First Amendment. The court applies strict scrutiny and reasoned as follows:
We ourselves have stated thatit cannot “be questioned that the First Amendment’s protection of speech and
associational rights extends to labor union activities.” Conn. State Fed’n of Teachers v.
Bd. of Educ. Members, 538 F.2d 471, 478 (2d Cir. 1976); see also Int’l Longshoremen’s
Ass’n v. Waterfront Comm’n of N.Y. Harbor, 642 F.2d 666, 670 (2d Cir. 1981) (“The
First Amendment’s protection of the right of association extends to labor union
However, we have never articulated a standard for determining whether, and under
what circumstances, a public entity’s employment decisions violate this right to associate
in unions. With respect to a public employee’s right to associate with political parties, the
Supreme Court stated in Rutan v. Republican Party of Illinois that government employers
may not “condition[] hiring decisions on political belief and association . . . unless the
government has a vital interest in doing so.” 497 U.S. 62, 78 (1990); see also Branti v.
Finkel, 445 U.S. 507, 520 (1980) (holding that termination of public defenders because
they were not affiliated with Democratic Party violated First Amendment); Elrod v.
Burns, 427 U.S. 347, 372-73 (1976) (holding that public employees who alleged they
were discharged because they were not members of sheriff’s political party stated a First
Amendment claim); Keyishian v. Bd. of Regents, 385 U.S. 589, 609-10 (1967)
(invalidating state university system’s prohibition on membership in Communist Party).
The Supreme Court was concerned that the government would “wield[] its power to
interfere with its employees’ freedom to believe and associate,” Rutan, 497 U.S. at 76,
and noted that “conditioning public employment on the provision of support for the
favored political party ‘unquestionably inhibits protected belief and association,’” id. at
69, quoting Elrod, 427 U.S. at 359. It therefore held that hiring based on political party
affiliation was subject to strict scrutiny and must be “narrowly tailored to further vital
government interests.” Rutan, 497 U.S. at 74; see also Branti, 445 U.S. at 515-16
(requiring “an overriding interest of vital importance” to fire a public employee solely for
his private beliefs (citation and internal quotation marks omitted)).
Conditioning public employment on union membership, no less than on political
association, inhibits protected association and interferes with government employees’
freedom to associate. It is therefore subject to the same strict scrutiny, and may be done
only “in the most compelling circumstances.” Rutan, 497 U.S. at 76.

Mitchell H. Rubinstein

July 22, 2013 in Constitutional Law, First Amendment, Public Sector Labor Law, Unions | Permalink | Comments (0)

Saturday, April 27, 2013

Workers Memorial Day 2013

Matt Pelletier writes to tell us about Workers Memorial Day which is on April 28, 2013. He published a tribute page which is full of interesting information about OSHA. I did not know anything about Workers Memorial Day. He describes it as follows:

Workers memorial day is a commemoration day that is celebrated in the U.S and abroad each year on April 28th. It is meant to remember those who have been killed or left disabled as a result of an injury suffered at work. It’s an opportunity to recognize the preventable nature of most workplace accidents and bring greater awareness to safety campaigns and legislation.

His web page is certainly worth reading.

Mitchell H. Rubinstein

April 27, 2013 in Misc., Non-Legal, Unions | Permalink | Comments (1)

Saturday, February 16, 2013

NBA Union Executive Director Fired

The Executive Director of the NBA Players Union was recently fired. He allegedly engaged in a number of questionable practices and is subject to a criminal investigation as well as a investigation by the Department of Labor. Additional details can be found here.

Mitchell H. Rubinstein

February 16, 2013 in Unions | Permalink | Comments (0)

Wednesday, 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

The full report can be found here.

Mitchell H. Rubinstein

January 23, 2013 in Unions | Permalink | Comments (0)

Saturday, November 10, 2012

Court Allows USW to Proceed With Challenge To Recent Indiana Right-to-Work Legislation

An Indiana trial court ruled Oct. 16 that the United Steelworkers can pursue a legal challenge to the right-to-work legislation enacted in the state earlier this year, finding the court could not “categorically” rule “at this time” that the new statute does not violate the state constitution (United Steelworkers v. Daniels, Ind. Cir. Ct., No. 45C01-1207-PL-00071, 10/16/12). The statute is (H.B. 1001) which took effect March 14, 2012. 

Law review commentary on this important topic is encourgaged. Undoubtedly, there will be further appeals.

Mitchell H. Rubinstein

November 10, 2012 in Law Review Ideas, Unions | Permalink | Comments (0)

Thursday, August 16, 2012

The Future of Unions

On July 17, 2012, the NY Times ran an interesting story about the future of Unions, available here. The point of the article is that Unions need to change and that the Union of the future may be different from the Union of today. As the article states:    

                The future labor movement may have to give up organizing work site by work site. Its                 biggest political fight in the last few years — pushing a law to make it easier to organize a                 workplace — may be irrelevant. And fighting to create new barriers to foreign competition is                 probably a lost cause. Instead of negotiating for their members only, unions might do better                 pulling for better wages and conditions for all workers.

                Some scholars, like the economist Richard B. Freeman of the National Bureau of Economic                 Research, suggest the labor movement could take a page from the AARP’s playbook and                 become a lobbying group. German-like worker councils could discuss workplace issues with                 management, without negotiating over pay.

                Maybe unions don’t have to entirely give up collective bargaining but broaden it. A model                 might be the alliance between the A.F.L.-C.I.O. and the Domestic Workers Alliance of New                 York City to push for a bill of rights for nonunionized nannies and maids.

                In any event, 80 years from now, labor organizations will probably look as different as our                 current unions look when compared with the guilds of 80 years ago. Today’s strongest unions                 — of autoworkers and airline pilots — could easily be the weakest, decimated by international                 competition. Unions may well be strongest in hospitals, hotels and other businesses not                 exposed to international trade.

Mitchell H. Rubinstein


August 16, 2012 in Unions | Permalink | Comments (0)

Wednesday, August 1, 2012

National Labor College Closing, Well Sort of

For as long as I can remember, the AFL-CIO owned and operated the National Labor College. Located just outside of D.C., it was a place where union loyalists could get a quality education. As you can imagine, the college also offerred excellent classes on labor relations.

The New York Times is reporting that the AFL-CIO is selling the National Labor College. It just became too expensive, here. Well, all is not lost as the National Labor College will continue to offer online classes and may relocate soon.

Mitchell H. Rubinstein

August 1, 2012 in Colleges, Unions | Permalink | Comments (0)

Thursday, February 23, 2012

Indiana's New Right To Work Law Is Challenged

The Operating Engineers have filed a federal lawsuit seeking to enjoin the implementation of Indiana's new Right to Work law. Reportedly, the lawsuit is based upon Equal Protection and federal preemption grounds. A USA Today article which provides additional details is available here.

Mitchell H. Rubinstein

February 23, 2012 in Unions | Permalink | Comments (1)

Saturday, February 4, 2012

Indiana Is Now A Right To Work State

As reported earlier, the Indiana Senate passed right to work bill HB 1001 this week by a vote of 28 to 22. Governor Daniels signed the bill into law on 2/1. The text of the law can be found here.

Mitchell H. Rubinstein

February 4, 2012 in Unions | Permalink | Comments (0)

Wednesday, February 1, 2012

Breaking News

Indiana is about to be the first State in my adult lifetime to become a Right to Work State. 

Details here.

Mitchell H. Rubinstein

February 1, 2012 in Unions | Permalink | Comments (2)

Saturday, January 28, 2012

Union Membership In Private Sector Declines To Below 7%

On Jan. 27, 2012, the BLS released its annual set of statistics on unions. For those of us supportive of unions the news continues to not be good. Overall union membership declined to 11.8% from 11.9%. Public sector union membership is at 37% and private sector union membership is down to 6.9%. Among States, New York continues to have the highest union membership rate (24.1%) and North Carolina again had the lowest (2.9%). 7.6 million workers belong to unions in the public sector as opposed to 7.2 million in the private sector. 

Mitchell H. Rubinstein

January 28, 2012 in Unions | Permalink | Comments (0)

Saturday, January 21, 2012

The Changing Face of Unions

Redefining the Union Boss is an interesting Nov. 19, 2011 New York Time article. It highlights Susan Pope, who is the first woman to ever woman to run for President of the Teamsters. So are unions changing? Unions are simply a reflection of society. Society is becomming more white collar so I would expect more female union leaders. The Teamsters are certainly not a white collar workforce. Any time leaders such as Ms. Pope want to get involved, that is a great thing.

Mitchell H. Rubinstein 

January 21, 2012 in Unions | Permalink | Comments (1)

Tuesday, November 22, 2011

Major League Baseball-Employer Lawyers and Player's Union Lawyers

MLB as well as the Players Union pays their lawyers very well. The Am Law Daily ran a story about this on Nov. 19, 2011. The article only points out what the Union pays their lawyers. If you ask me, the Union lawyers have done a great job over the years and given the salaries that are paid in MLB, the amounts paid to their union lawyers are worth it. No, I am not one of them...

Mitchell H. Rubinstein



November 22, 2011 in Unions | Permalink | Comments (0)

Friday, July 22, 2011

Gov. Walker To Now Use Prison Labor

Remember Gov. Walker and Wisconsin. Whatever your views on the so called "Budget Repair Bill," you must admit that this guy is radical. He now wants to use prison labor to replace union labor with prison labor. The Cap Times reports:

Gov. Scott Walker ran for election on a promise to create 250,000 jobs during his first term in office. Now it seems some of that job growth has found its way to at least one county jail in Wisconsin.

Racine County Executive Jim Ladwig told several media outlets earlier this week he plans to add shoveling, landscaping and painting to the to-do lists of county inmates. Until recently, inmates were only allowed to cut the grass along highways.

That changed Wednesday when the state's controversial collective bargaining law took effect.

Read more:

Mitchell H. Rubinstein


July 22, 2011 in Public Sector Labor Law, Recent Developments, Unions | Permalink | Comments (3)

Wednesday, June 15, 2011

Wisconsin Supreme Court Upholds Union Busting Law

In case you have not heard (it has been all over the media), late yesterday afternoon the Supreme Court of Wisconsin reversed Dane County Circuit Court Judge Sumi’s decision. Act 10, Wisconsin's union busting law, becomes effective upon publication. he link to the decision is:

I am sure that this is not the end of the battle. But round one goes to Governor Walker

Mitchell H. Rubinstein

June 15, 2011 in Public Sector Labor Law, Unions | Permalink | Comments (0)