Saturday, August 5, 2006

Flight Attendants Poised to Strike; Northwest to Seek Injunction

Afalogo_clear_1 Images_59

What will happen if the flight attendants at Northwest strike?  Does a federal bankruptcy judge have the legal authority to order the flight attendants back to work, and to fine them if they continue striking?  The law provides no certain answer.  I think the judge will enjoin the strike, but I hope he doesn't.

A bankrupt Northwest Airlines has, with the blessing of the bankruptcy judge, rejected its collective bargaining agreement with its flight attendants and unilaterally imposed its own contract. This is permitted by section 1113 of the bankruptcy code, which provides that a bankruptcy court may permit a debtor to reject or modify a collective bargaining agreement if rejection or modification is "necessary to permit the reorganization of the debtor." 

The flight attendants have voted on and rejected Northwest’s unilaterally-imposed contract. The flight attendants have given a fifteen-day notice of "targeted work actions using random, unannounced strikes." Jewel Gopwani, of the Detroit Free Press, indicates that Northwest will going to court Wednesday to request an injunction prohibiting the flight attendants from striking (see her article forthcoming early next week).

If the judge issues such an injunction, the terms of the injunction probably will contain an explicit penalty for violating the injunction. For example, the judge might impose the same kind of penalty that broke the New York subway strike over the Christmas holidays last year – impose a hefty per-day fine both on the flight attendants’ union and on individual strikers.  However, the law is unclear whether the bankruptcy judge has the legal authority to enjoin a flight attendants’ strike. The flight attendants would argue that (1) the flight attendants’ contractual obligation not to strike (the no-strike clause in the collective bargaining agreement) was rejected by Northwest when Northwest rejected the rest of the collective bargaining agreement, and (2) any injunction would be prohibited by the Norris-LaGuardia Act, a 1932 statute that broadly prohibits federal courts from enjoining strikes. That statute was passed at a time when federal courts were routinely using federal antitrust law to justify strike-breaking injunctions. The airlines' counter-arguments would be (1) that the Bankruptcy Code gives the bankruptcy court the authority to issue injunctions to protect the assets of the debtor airlines – i.e., that the Bankruptcy Code overrides the Norris-LaGuardia Act; and (2) that the Railway Labor Act requires the parties to make every reasonable effort to reach an agreement before striking and that the flight attendants haven’t done that here.

Thus, the law is unsettled. If the judge issues an injunction, I would expect the flight attendants to immediately challenge it either on appeal or in a mandamus action.

Something else Northwest might do is to petition the National Mediation Board to recommend the creation of a Presidential Emergency Board (PEB).  A PEB is authorized by a special provision of the Railway Labor Act (RLA).  It is designed to encourage the parties to resolve their disputes, and to protect the public from catastrophic disruptions caused by railroad and airline strikes. Once a PEB is created, the parties must maintain the “status quo.” That certainly means no strike. But it might mean that the flight attendants gets their original collective bargaining agreement back (i.e., that the status quo should be defined as prior to Northwest’s rejection of the collective bagaining agreement. Thus, this possibility poses a major risk for Northwest, which is probably why its pursuing the injunction first.  Also, it’s unclear whether Northwest is permitted to ask for a PEB – the PEB provisions in the RLA are designed to kick in when an existing collective bargaining agreement has expired and the parties are unsuccessfully trying to negotiate a new one. The current situation is very different.  The collective bargaining agreement hasn’t expired at all.  Northwest, with the bankruptcy courts' blessing, has rejected it. I think that gives the flight attendants a good argument that they should be permitted to strike unhindered. But a federal bankruptcy judge, concerned primarily with avoiding liquidation of the airline, might not see it that way.

So – what will happen? The only thing the judge is likely to do from the bench on Wednesday is to order the parties back to the bargaining table. He’ll wait awhile to rule on Northwest's request for an injunction, hoping the parties will reach an agreement and he won’t have to rule at all. If there’s no agreement, I predict he’ll issue the injunction. He’s a bankruptcy expert – not a labor relations expert – and his top priority is to get Northwest back on its feet, and a heavily-publicized disruption in service won’t do that.

But I think that would be the wrong decision. The only bargaining power unions have is the power to (threaten a) strike. If that’s taken away, then the clock on American labor relations will effectively be turned back to the late 1800s and early 1900s, when federal courts routinely  issued injunctions prohibiting strikes, unions struck anyway because they had nothing left to lose, and the result often was at best major disruptions in production and at worst blood in the streets.


August 5, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Top-5 International Employment & Labor Law SSRN Downloads

Top-5 Benefits/Compensation//Pension SSRN Downloads

Friday, August 4, 2006

Wachter on Labor Unions as a Corporatist Institution in a Competitive World

Mwachter Michael Wachter (Penn) has posted on NELLCO his forthcoming piece: Labor Unions: A Corporatist Institution in a Competitive World.

Here's the abstract:

Union membership, as a percentage of the private sector workforce, has been in decline for 50 years. I argue that the cause of this unrelenting decline is due to a single fundamental factor - the change in the

United States

economy from a corporatist-regulated economy to one based on free competition.

Most labor commentators have explained the decline by a confluence of unrelated economic and legal forces. In my approach, to understand the causes of the decline in union membership it is critical to return to the period of the original growth in union power; that is, to the New Deal. In examining the differences in the economy between today and the New Deal, one must look not only to labor law, but to also to corporate law and antitrust. For unions to be successful, the goals of labor law need to be consistent with the goals of corporate law and antitrust. While the goals were consistent in the 1930s, they are in conflict today.

You can download this interesting perspective on the current state of labor unions in this country at this link.


August 4, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

The Use of Sanctions in Employment Discrimination Cases

Gavel_13 Here is a case I've been following for a number of years both because one of my law school colleagues has assisted in this case, but also because I had a similar case pending before the 11th Circuit until it was recently was voluntarily dismissed. has the basics of the case:

A federal appellate court has overturned nearly $400,000 in sanctions imposed against Fort Lauderdale, Fla., employment lawyers William and Karen Amlong for bringing an allegedly frivolous sexual harassment suit against the Denny's restaurant chain.

The sanctions order was issued in March 2000 by U.S. District Judge Joan Lenard in Miami against one of the top South Florida firms representing plaintiffs in employment cases. It was one of a series of stiff sanctions issued by South Florida federal judges against plaintiffs attorneys that many observers said chilled lawyers from bringing such cases in federal court.

The Amlongs were representing a former female employee of Denny's, Floride Norelus, who claimed that she was repeatedly raped by her managers.

In a 2-1 decision Monday, an 11th U.S. Circuit Court of Appeals panel in Atlanta found that Lenard should have either relied on the evidentiary findings of the federal magistrate judge -- who said that no sanctions be imposed -- or that Lenard should have held her own hearing before making a decision.

The panel remanded the case to Lenard, stating that she should either accept the magistrate judge's recommendation against sanctions or conduct her own hearing.

The case is Amlong & Amlong, P.A. v. Denny's, Inc.,  No. 04-14499 (11th  Cir., July 31, 2006).

This case obviously has important implications for the use of Rule 11 and Section 1927 sanctions in employment discrimination cases.  Many feel that because so many frivolous employment discrimination claims are brought in the federal courts that it is necessary to have the ability to sanction egregious attorney behavior in these cases.  On the other hand, the plaintiff's bar believes that such large sanctions will deter attorneys from accepting all but slam-dunk employment discrimination cases.

The problem in this case appeared to be two-fold: (1) the magistrate judge found that the attorneys' conduct was not sanctionable; and (2) the district court disagreed without making her own findings. 

Besides these more obvious points, there is also some dispute about what the legal standard should be in these sanction cases.  Some have suggested it should be objective bad faith, but other insist a subjective element should also be present before sanctions are applied. If the district judge ends up imposing sanctions again on remand, look forward for there to be an appeal on what the proper standard is for imposing sanctions in these cases.

Hat Tip:  How Appealing


August 4, 2006 in Employment Discrimination | Permalink | Comments (2) | TrackBack (0)

Liebman, Schaumber, and Meisburg on Their Way to Reappointment to Their NLRB Positions

Liebman1 Update from Ross' Employment Law Blog:  "The Senate has confirmed Peter C. Schaumber and Wilma B. Liebman to be Members of the National Labor Relations Board for 5-year terms and Ronald Meisburg to be NLRB General Counsel for 4 years."

From the Labor Law Blog:

Yesterday, President Bush nominated current Member Wilma B. Liebman [pictured left] to another five-year term on the NLRB.  Liebman's current term expires August 27, 2006.

If Liebman is confirmed and serves out her term, she will become the third-longest-serving Member in the Board's 71-year history behind John Fanning (served 25 years) and Howard Jenkins (served 20 years). Here is a post that summarizes some Board decisions in which Member Liebman disagreed with her fellow Democrat, Member Walsh.

Since this original post, the Senate HELP committee has unanimously approved the nominations of Liebman, Member Peter Schaumber, and General Counsel Ronald Meisburg, and now the full Senate needs to vote on these nominations.

Members Dennis Walsh and Peter Kirsanow, currently serving under recess appointments, have not been brought up for official re-nomination and confirmation yet.  This is probably because their recess appointments do not expire until late 2007.


August 4, 2006 in Beltway Developments | Permalink | Comments (0) | TrackBack (0)

Comair Flight Attendants Appeal

Images_57 Teamsters Local 513, representing Comair flight attendants, yesterday appealed a bankruptcy judge's order permitting the airline to abrogate its collective bargaining agreement with the flight attendants.  Meanwhile, the pilots' and mecanics' unions say their concessionary contracts with Comair are void.  Those contracts were contingent on Comair obtaining $8.9 million in concessions from the flight attendants -- something Comair has not accomplished.  For more, see Alexander Coolidge's article in this morning's Cincinnati Enquirer.


August 4, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Thursday, August 3, 2006

NLRB Photography Flip-Flop

Camera_1 The NLRB has recently decided that a union's photographing of employees engaged in protected activity is to be analyzed under the same rule as an employer's photographing.  This was a reversal of a prior Board decision (which, itself, reversed an even earlier Board decision) that analyzed photographing by unions and employers differently.  Under the most recently overturned rule, a union's photographing was not presumed to be grounds for overturning an election unless accompanied by an express or implied threat or other coercion.  Now, however, both a union's or an employer's photographing of protected conduct presumptively warrants a new election.  The Board explained the change this way:

By adopting different standards for union and employer photographing of employees engaged in Section 7 activity, the Board’s [prior] decision . . . marked a significant departure from established precedent. After due consideration, we have concluded that the [prior] rationale cannot withstand careful scrutiny. To the contrary, the rationale for finding that unexplained photographing has a reasonable tendency to interfere with employee free choice applies regardless of whether the party engaged in such conduct is a union or an employer. Thus, the disparate treatment embraced by the [prior] Board cannot be squared with the Act’s fundamental principles. Accordingly, we overrule [the prior decision] and restore the appropriate standard, i.e., that in the absence of a valid explanation conveyed to employees in a timely manner, photographing employees engaged in Section 7 activity constitutes objectionable conduct whether engaged in by a union or an employer.

Elsewhere, the majority recognized--but, ultimately rejects--the idea that employer photgraphing is more coercive then union photographing.  Like the dissent, I have a difficult time swallowing that conclusion.  As the dissent states:

What is missing from the majority’s analysis . . .  is any real grasp of the very different positions that unions and employers occupy with respect to employees, in terms of campaign access, economic relationship, and potential for coercion. As the [prior] Board [decision] explained, unions have far less access to employees and far less opportunity to coerce them. To the extent that the Board must weigh a party’s legitimate needs and interests in photographing employees against the potential for interfering with employee free choice, the balance is simply not the same for unions and employers. The majority gets it wrong with respect to both sides of the scale. As a result, the use of a legitimate organizing tool is now practically prohibited.

The dissent also wisely quotes from the Supreme Court's Gissel decision, which held that the Board's analysis of employer threats "must take into account the economic dependence of the employees on their employers.”  I would expect this oft-cited quote to be a centerpiece of any appeal by the union.

One other interesting point:  the reversed decision was actually a decision made in the same case.  The D.C. Circuit had remanded that decision, asking the Board to deal with another, similar Board decision.  The unfortunate result is that this 2006 decision--which presumably will go back to the D.C. Circuit--was based on conduct that occurred in 1995.  Hard to say that the employees have benefited at all by this litigation.


August 3, 2006 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Shapiro on Common Law Judging versus Error Correction in the Supreme Court

Cshapiro_web Carolyn Shapiro (Chicago-Kent) has posted on SSRN her recent article in the Washington and Lee Law Review: The Limits of the Olympian Court: Common Law Judging versus Error Correction in the Supreme Court.

Here's the abstract:

Throughout its history, the Supreme Court has struggled to control its caseload and to avoid becoming a court of error correction. Instead, it applies its resources to matters of particular national importance and to promoting uniformity in the law. This Article argues that the Court's approach to maintaining uniformity fails to provide adequate guidance to the lower courts.

The Court focuses on resolving disagreements among the lower courts over what rules and standards to apply. But the Court largely ignores the question of whether those directives are applied in a consistent or predictable way. As a result, there are areas of law, particularly areas governed by standards (as opposed to rules), that are chaotic and unpredictable.

This Article explains the historic and institutional reasons for the Court's approach and discusses its consequences. Specifically, the Article demonstrates that without guidance about how to apply standards, lower court judges, particularly in fact-intensive areas of law with large numbers of cases, may find it difficult or impossible to identify all factually analogous precedents, leading to incoherent and inconsistent results. The Article uses the law of summary judgment in employment discrimination as an extended example of this phenomenon. Finally, the Article proposes a new approach for the Supreme Court. The Article explores three particular mechanisms, each of which requires the Court to apply standards itself. These mechanisms rely on some of the traditional strengths of common law judging, and they provide the Court with valuable tools to promote the rule of law values of uniformity and predictability in the lower courts.

You can download this highly interesting take on how the Supreme Court should provide standards for lower courts (including in the area of summary judgment in employment discrimination cases) at this link.


August 3, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

"Stonewalled" in a "Department from Hell"

Bullying reports this morning about a $1.5 million dollar verdict for a woman who faced extreme workplace bullying at her English employer:

A London court awarded a former Deutsche Bank employee $1.53 million in damages, saying she had been the victim of deliberate bullying by staff, according to Reuters. Helen Green, a former company secretary assistant, said she was "mobbed" and "stonewalled" by a "gang of four women" in a "department from hell," according to the report. "On any view, the behavior of the women was oppressive and unreasonable," Justice Robert Owen said, according to Reuters. The judge found the bank breached its duty of care by failing to protect Green from abusive behavior, although the German bank denied breach of statutory duty or bullying. The $1.53 million award covers lost earnings, psychiatric injury, disadvantage in the labor market, loss of future earnings and pension and compensation for other losses, including private medical insurance, gym membership, and medical bills.

Of course, this begs the question on whether such a claim would be recognized under the employment laws of the United States.  It would seem to have to come under a same-sex harassment theory under Title VII or a state analogue, which may be a difficult standard to meet because there would have to be a showing that the women perpetrating the harassment disliked the victimized woman because she did not live up to certain stereotypical norms, rather than it just being a personality conflict. 

It may be that what we really need is a separate cause of action to address bullying in the workplace.


August 3, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 2, 2006

Colbert Report Takes on the NLRB and Supervisory Status

ColbertRonald Turner (Houston) sent me this hilarious clip (you will need to download the plug-in to view and then once there type in "solidarity" in the search box at the top right part of the page) from the Colbert Report in which in the "The Word" segment Stephen Colbert, a self-professed labor law fanatic, discusses the word "solidarity" in light of the supervisory status cases pending before the NLRB.

My favorite line: "It's time for management and labor to put aside their differences and come together as management to exploit labor."


August 2, 2006 | Permalink | Comments (1) | TrackBack (0)

Moss on A New Economic Analysis of Confidential Settlements

Scottmoss_3 Scott Moss (Marquette), sometime blogger and all-around good guy, has posted on SSRN his forthcoming piece entitled, Illuminating Secrecy: A New Economic Analysis of Confidential Settlements.

From the abstract:

Even the most hotly contested lawsuits typically end in a confidential settlement forbidding the parties from disclosing their allegations, evidence, or settlement amount. Confidentiality draws fierce criticism for harming third parties by concealing serious misdeeds like discrimination, pollution, defective manufacturing, and sexual abuse. Others defend confidentiality as a mutually beneficial pay-for-silence bargain that facilitates settlement, serves judicial economy, and prevents frivolous copycat lawsuits. This debate is based in economic logic, yet most analyses have been surprisingly shallow as to how confidentiality affects incentives to settle. Depicting a more nuanced, complex reality of litigation and settlement, this Article reaches several conclusions quite different from the economic conventional wisdom - and absent from the existing literature.

First, contrary to the conventional wisdom that banning confidentiality would inhibit settlement, a ban may promote early settlements. No ban could effectively cover settlements reached before litigation, so any ban would incentivize parties to settle confidentially pre-filing - and such early settlements save more litigation costs. Second, a ban would affect high- and low-value cases differently, depending on whether publicity-conscious defendants worry more about one big settlement or several small ones. Third, more settlement data could help parties settle and also, by decreasing litigation uncertainty, deter frivolous litigation. Fourth, more settlement data could reveal which companies engage in unlawful practices, yielding more efficient decisions by consumers, workers, and investors who otherwise engage in over-avoidance when unable to distinguish hazardous from safe goods.

In sum, a confidentiality ban would decrease settlements of cases already in litigation but it would have many countervailing positive effects: increasing pre-filing settlements; deterring frivolous lawsuits, and improving product and job market decisions.

As many of the examples Scott uses in his paper concern employment discrimination confidential settlement agreements, Scott's interesting economic analysis of confidentiality provisions and settlement agreements will surely benefit labor and employment types.  You can download the article at this link.


August 2, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

The "Meaningful" Distinction Between Defined Benefit Plans and Defined Contribution Plans

401k_2_5 It has been roundly assumed in the wake of the massive amount of freezing of defined benefit plans in the past few years by both financially healthy and unhealthy employers (the number of defined benefit pension plans offered by private employers in the US has shriveled dramatically since the mid-1980s, from 112,000 to about 30,300), that defined contribution plans, controlled largely by employees, represent the future for employee pensions.

Not so quick says this article from which highlights why some employers are not only continuing to offer a defined benefit plan, under which the employer retains most of the responsibility for the employee's pension, but why other employers are just beginning to offer such plans.

Why? Well, the article explains the important factors to consider in deciding when a defined benefit plan may be more appropriate for a given employer:

Of course, appreciating what a defined benefit plan can do for your company and its employees, and finding a way to afford it, are two different matters. Industry experts legitimately can debate whether a defined contribution plan is cheaper to administer than a defined benefit offering, but there is little question that offering a defined benefit plan that yields meaningful pension benefits for retirees costs more to fund than a typical 401(k) plan where the employer kicks in 3% or so of an employee’s salary. “Realistically, if employers were able to contribute somewhere between 5% and 6% of payroll, they could have reasonably attractive defined benefit plans,” says Zimpleman. “If they were able to get it up to the 8% or 9% range, they would have very adequate plans.”

Therein lies the rub for many defined benefit proponents—comparing the costs of a defined benefit plan that yields “meaningful benefits” with the costs of a defined contribution program whose design may be “typical” but, nonetheless, likely would fall well short of a comparable “meaningful benefits” test.

It is, however, the measure of benefits that defines the essence of a defined benefit plan, and the ensuing costs to employers of providing those benefits has continued to escalate, even as the proportion of retirees to workers tilts—not in favor of those workers that employers want to attract and retain, but toward workers who no longer are active workforce participants. Consider that, in 1985, according to the Pension Benefit Guaranty Corporation, which insures private pension plans, only about 28% of participants in single-employer defined benefit plans were inactive.

Food for thought as Congress is on the verge of passing comprehensive pension reform.  It will be interesting to see if, and when, the legislation is passed whether it will lead to further freezing of defined benefit plans or will allow for more employers to provide "meaningful benefits" to their employees.


August 2, 2006 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

A Tricky Question Concerning Professor Unionization

Pointpark Inside Higher Ed this morning has a report on a recent DC Circuit Court opinion, Point Park College v. NLRB, No. 05-1060 (D.C. Cir. Aug. 1, 2006), which address whether faculty at a small college in Pittsburgh, Point Park College, could form a union.  Ever since the Yeshiva decision from the Supreme Court in 1980, the determination has revolved around how much power professors exercise in the university environment or, put another way, if they are managers not covered by the NLRA. 

The DC Circuit decision takes the NLRB to task for not making the proper findings to determine whether a union of professors was appropriate:

A federal appeals court ruling Tuesday is the latest to consider attempts by faculty unions (or would-be unions) to win the legal right to collective bargaining. The ruling — involving the faculty union at Point Park University — didn’t offer a definitive opinion on whether faculty members at the Pittsburgh institution could unionize.

The three judge panel of the U.S. Court of Appeals for the District of Columbia Circuit criticized the National Labor Relations Board for the way it gave the go-ahead for a union. The appeals court said that while the NLRB official who considered the case offered evidence to show that Point Park faculty members had less authority than those of Yeshiva 25 years ago, he also offered contradictory evidence, and failed to sufficiently explain the NLRB’s rationale. The ruling returns the case to the NLRB, which could offer a more detailed analysis of why a union should be allowed, or could reverse itself.


August 2, 2006 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Northwest Flight Attendants Give Strike Notice

Afalogo_clear Yesterday's post reported that Northwest's flight attendants' union (AFA-CWA) had rejected Northwest's proffer of a contract.  Yesterday, the union gave notice of its intent to, in 15 days, begin "targeted work actions using random, unannounced strikes."  Here's the union's press release.


August 2, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 1, 2006

Congratulations to Us!

Roger Alford (Pepperdine) has ranked Workplace Prof Blog the 15th most-popular law blog.  Link to his top-25 list at Blogs Grow Up.

Thanks to Carol Furnish for sending a link our way.


August 1, 2006 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Harris on Disabilities Accommodation, Transaction Costs, and Mediation

Harris_5 Seth Harris (New York Law School) has posted on SSRN his forthcoming piece which will appear along with a collection of pieces in The Americans with Disabilities Act: Empirical Perspectives: Disabilities Accommodation, Transaction Costs, and Mediation:  Evidence From the EEOC's Mediation Program.

Here are some excerpts from the abstract:

This paper examines whether mediators' job is different and more difficult when workers and employers are negotiating over a disabilities accommodation issue as compared with negotiations over other employment discrimination issues. The mediator's job includes getting the parties to exchange information, and at times acquire information, and to accept the new information as relevant to their expectations about the negotiation's results. This paper focuses on transaction costs in disabilities accommodations negotiations that might make this aspect of the mediator's job more difficult. Specifically, if the information needed in disabilities accommodations negotiations is more complex, more extensive, and more closely held by the parties, the mediator's job in those negotiations will be more difficult. 


The evidence suggests three conclusions about what the differences are. First, information exchange is more difficult in disabilities accommodations negotiations. Second, the mediators' role in proposing solutions and providing information about possible solutions is more critical to disabilities accommodations negotiations. Finally, disabilities accommodations negotiations are more likely to be stalled and frustrated by employers' biases against disabilities accommodations.

You can download this interesting article at the intersection of disabilities law and ADR here.

Hat Tip:  Disability Law Blog


August 1, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Future Uncertain for Northwest as Flight Attendants Reject Contract

Northwestairlines_a320212_n353nw_786_474_2 Things just got a little more complicated for Northwest Airlines's bankruptcy reorganization.  According to Yahoo! News through the AP:

Northwest Airlines Corp. remains at contract loggerheads with its flight attendants union, an impasse that could lead to random work actions against the carrier and complicate its bankruptcy reorganization.

Northwest said a strike — which could spook travelers and send them to rival airlines — would be illegal and that it would seek a court order to block one. The Association of Flight Attendants pledged to give 15 days' notice before any strike.

The sparring came Monday after the airline's 9,300 flight attendants rejected a wage-cutting contract.

Northwest has sought $1.4 billion in annual labor savings as it reorganizes under Chapter 11 of the bankruptcy code. Flight attendants are the last union at Eagan-based Northwest, the nation's fifth-largest carrier by the standard industry measure, without a wage-cutting contract. But the airline's deals with pilots and ground workers don't take effect until there's a new contract for flight attendants, too.

Northwest has now already unilaterally imposed a new contract (similar to the one rejected) and the flight attendants are threatening to implement its CHAOS (Create Havoc Around Our System) program. According to the AP, "The union has described the tactic as using random, unannounced strikes on certain flights or certain gates."

The legality of such work actions on the flight attendant's part will almost certainly face a challenge.


August 1, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Researching DOL ALJ Decisions

This is courtesy Carol Furnish, Assistant Director for Instruction & Outreach Services, Chase Library:

Three approaches can be used to find ALJ decisions.

  1. A researcher can use a full-text search to look for a word or phrase.  At present researchers can use the OALJ Search Page for generalized searches of the OALJ web site.  OALJ is working with the Office of Public Affairs on an enchanced implementation of the FAST search engine for OALJ's materials.
  2. A researcher can use OALJ's "Docket Search." Docket Search is the web front end of OALJ's Document Management System (DMS).  DMS pushes ALJ decisions to the web site for public access one day after issuance, except that LHWCA decisions are posted five business days after issuance.  Docket Search is a fast way to find decisions if you already know the case number, the name of a party, or the date of the decision. Docket Search, however, is only comprehensive back to the fall of 2000 when OALJ implementated its DMS.
  3. A researcher may wish to browse the OALJ Electronic Law Library. The Law Library contains caselists of published decisions and reference works such as newsletters, case digests and Judges' Benchbooks.  Such resources cannot substitute for a party's own research into the statutory, regulatory, and case law authorities, but it can help focus a research session.  See Disclaimer.  The caselists are valuable because they contain case history known to OALJ about individual adjudications and because they link to legacy documents not available from Docket Search.

ARB Decisions

The Administrative Review Board (ARB) is the Department's appellate body for most of the cases heard by OALJ other than Black Lung and Longshore cases.  OALJ hosts the decisions of the Administrative Review Board on its web site.  They are available for full-text searching and browsing in the same manner as the ALJ decisions.  In addition, they are available in caselists organized by month of issuance and by the name of the first non-DOL party.

Prior to the establishment of the ARB, the types of cases its reviews were heard directly by the Secretary of Labor, a Deputy or Assistant Secretary, or various now defunct Boards.  Most of these decisions having precedential value are available on the OALJ web site through full-text searching or the OALJ Law Library caselists and other materials.  ARB decisions are not comprehensively available in OALJ's Docket Search, although this capacity is being developed.

BRB Decisions

The Benefits Review Board (BRB) hears appeals of ALJ decisions under the Black Lung Benefits Act and the Longshore and Harbor Workers' Compensation Act.  These decisions are housed on the Main DOL web site and are available on caselists linked from the e-Judication Web Portal.  BRB decisions can be assessed both by full-text searching [e-Judication FAST or BRB FAST] and by browse functions similar to those available in OALJ's law library.  The BRB is developing with OPA a database search. Researchers may also find references to BRB decisions in the BRB Law Library or the OALJ law library Black Lung and Longshore collections.

The e-Judication FAST search engine will soon enable a researcher to conduct a full-text search of both BRB and ALJ materials simultaneously, but at present it is necessary to search the ALJ and BRB materials separately. ECAB Decisions

OALJ does not have jurisdiction over FECA matters.  Thus, for the most part ECAB decisions are not relevant to matters before this office.  If a researcher wishes to access ECAB decisions, they are available from the e-Judication Web Portal.


August 1, 2006 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Monday, July 31, 2006

Zisk Becomes Associate Dean at Charleston

Faculty_zisk_hi_res300 Nancy Zisk has been named Associate Dean for Academic Affairs at Charleston School of Law.

Zisk joined Charleston when it opened in 2004 to teach Torts and Employment Law.  In April of this year, students named her "Professor of the Year."

Zisk earned her bachelor's degree and law degree from Duke.  Formerly in private practice in D.C. with Akin Gump and Ross, Dixon & Bell, she specialized in employment and complex insurance coverage litigation.  She also served as a sole practitioner in Fairfax County, Virginia.


July 31, 2006 in Faculty News | Permalink | Comments (0) | TrackBack (0)