October 6, 2007
Top-5 International Employment & Labor Law SSRN Downloads
- Vivek Wadhwa, Guillermina Jasso, Ben Rissing, Gary Gereffi, & Richard B. Freeman, Intellectual Property, the Immigration Backlog, and a Reverse Brain-Drain: America's New Immigrant Entrepreneurs, Part III (1180).
- Keith Cunningham-Parmeter, Fear of Discovery: Immigrant Workers and the Fifth Amendment (165).
- Yaraslau Kryvoi (photo above), Why European Trade Sanctions Do Not Work (56).
- Laurence R. Helfer, Monitoring Compliance with Un-Ratified Treaties: The ILO Experience (53).
- David J. Doorey, Can Factory List Disclosure Improve Labour Practices in the Apparel Industry?: A Case Study of Nike and Levi-Strauss (41).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Sharon Reece, ERISA Preemption and Fair Share Legislation (116).
- David I. Walker, Unpacking Backdating: Economic Analysis and Observations on the Stock Market Option Scandal (112).
- Brett McDonnell, Two Goals for Executive Compensation Reform (61).
- Shlomo Benartzi (left), Ehud Peleg (right), & Richard H. Thaler, Choice Architecture and Retirement Savings Plans (52).
- Fayez A. Elayan, Thomas O. Meyer, & Jennifer Li, Expensing Executive Stock Options: The Agency Problem and Structure of Management Compensation (51).
October 5, 2007
WVU Sports Law Conference
Congratulations to the organizers of the conference, "Reversing the Field: Examining Commercialization, Labor, and Race in 21st Century Sports Law," held at West Virginia University College of Law. I just returned from moderating a star-studded (the others, not me) panel on the use of economic weapons in sports and really enjoyed what I saw of the conference. The American Constitutional Society filmed all of the proceedings and, I believe, will make them available. If you have any interest in sports law, it's definitely worth seeing.
Call for Participation for Law & Society Conference
First, Where and When
The 2008 Annual Meetings of Law and Society Association (LASA) and the Canadian Law and Society Association (CLSA/ACDS) will be held jointly Thursday, May 29 through Sunday, June 1, at the Hilton Bonaventure and Marriott Chateau Champlain hotels in the historic and vibrant city of Montreal. Here is the link to the Call for Participation for the 2008 joint meetings of LASA and CLSA, which will be held in Montreal, Canada from May 29 through June 1st, 2008.
As in the past, I will try to assemble coherent panels from the paper proposals you submit.
HERE ARE THE DETAILS FOR CRN 8 PAPERS AND PANELS.
First, here is what I do.
I solicit your ideas of papers you would like to present and volunteers to chair a panel or to be a discussant. I then assemble panels and include all proposals sent to me.
I do not – and cannot – submit your proposals to the LASA. You have to do this through the LASA website. Details for the procedure are there. But that is down the road.
I send the information on panels I have assembled out to you a couple weeks before they are due, so you have time to register your papers and panels with Law and Society before the due date . . . .
* What you need to do now
Panel or Paper Proposals or volunteering to chair or be a discussant - are due to me by Friday, Nov. 16.
If you are submitting a paper send me ONLY a title and /or a description of 25 words or less - just enough so I can understand the topic. *Do not send me an abstract. You will submit your abstract later only when you submit your paper as part of a panel.* You can change your title later - even after you submit it to LASA.
If you have created a panel, please send me the names and email contact information for the participants. and the titles of their papers. This will help me have an overall sense of the panels we will be creating. Let me know if you have room for additional panelists.
* E-mail your papers topics or panels or other questions to Ellen Dannin - firstname.lastname@example.org. I participated in Law & Society in Baltimore in 2006 and it was a wonderful conference for the labor and employment community.
Wayne State to Host Labor Law Symposium
Wayne State University Law School will host the 15th annual Bernard Gottfried Memorial Labor Law Symposium on Wednesday, Oct. 24, 2007. Sponsored by the WSU Law School, the National Labor Relations Board, Region Seven, and the State Bar of Michigan Labor and Employment Section, the symposium will highlight workplace issues. Specific breakout sessions, led by national labor relations experts, include: “Now Who is a Supervisor? Oakwood Healthcare et al;” "The NRLA and the Employee Free Choice Act: What the 21st Century Will Bring;” “Use of E-mail in the Workplace;” “Picketing and Other Secondary Boycott Activity;” and “Section 10(J) Relief and Other Remedies.” Here is a complete schedule and registration form.
October 4, 2007
The NLRB Cuts Back on Salt(ing)
wave of 3-2 NLRB decisions continues. This
time, in Toering Elec. Co., 351 N.L.R.B. No. 18 (Sept. 29, 2007), the
Board concluded that an applicant for a job is not protected by
Section 8(a)(3) unless the applicant is “genuinely interested” in obtaining the job. The majority’s primary concern are
salts who apply for jobs in the hopes of provoking litigation.
At issue is
Section 2(3)’s definition of “employee,” because all employees are protected by
Section 8(a)(3)’s prohibition against discrimination. In concluding that only those
applicants who are genuinely interested in obtaining a job meet the definition
of employee, the majority stated that salts who lack this interest do not have
the economic relationship with the employer that the NLRA was intended to
There is no economic aspect, actual or anticipated, to [these salts’] relationship with the employer. Neither in the present nor in the future do they “depend upon the Employer, even in part, for their livelihood or for the improvement of their economic standards. They do not work [or intend to work] for hire and thus the Act’s concern with balancing the bargaining power between employer and employees does not extend to them.” [WBAI Pacifica Foundation.] Thus, job applicants who lack a genuine interest in seeking an employment relationship are not employees within the meaning of Section 2(3).
majority sought further support for this interpretation from Section 10(c)’s
policy against punitive damages and other “windfalls.” Such a policy "supports holding that
only those job applicants who were actually deprived of employment
opportunities" by discrimination is protected by the NLRA. The majority also emphasized that the General
Counsel had the burden of proving genuine interest.
(you don’t need me to tell you who they are) argued that the majority is in
conflict with both the NLRA, as well as NLRB and Supreme Court precedent. For example, the Board’s FES decision specifically rejected Member Brame’s argument that the
General Counsel should have to show that job applicants had a bona fide
interest in employment. Moreover, the
Supreme Court’s “Town & Country decision also makes clear that
unless a salting campaign is accompanied by acts of violence, sabotage, or
other unlawful or indefensible conduct, there is no basis for claiming that it
is statutorily unprotected—much less that salts, as a class, are not statutory
employees.” The dissent also rejected the majority’s worry that salts may be
disloyal to the employer, arguing that that concern may be addressed on a
case-by-case basis and doesn’t warrant a presumption that all salts would be
I suppose I
shouldn’t be surprised, but I’m dumbfounded by this decision. The majority’s new burden for all refusal to hire cases is a far
bigger stick than is needed to address its hostility to union salting
campaigns—campaigns that the Supreme Court, appellate courts, and past Boards
had all approved. The majority’s defense
of its new burden simply falls apart in light of the broad interpretation that
Section 2(3) has long enjoyed. I have a
lot of problems with most of the Board’s numerous reversals in the past few
months, but this one seems especially indefensible.
taken five years, but the NLRB has finally issued a decision in the remand from
the Supreme Court’s 2002 decision in BE&K
Constr. Co. (325 N.L.R.B. No. 29 (Sept. 29, 2007)). In originial BE&K,
the Court stuck down the Board’s previous interpretation of Bill Johnson’s—that all reasonably based, yet unsuccessful, lawsuits filed in
retaliation against union activity violated the NLRA. However, the Court explicitly left open
“whether the Board may declare unlawful any unsuccessful but reasonable based suits
that would not have been filed but for a motive to impose the costs of the
litigation process, regardless of the outcome, in retaliation for NLRA
On remand, the 3-member Board majority closed this door, concluding that "the filing and maintenance of a reasonably based lawsuit does not violate the [NLRA], regardless of whether the lawsuit is ongoing or completed, and regardless of the motive for initiating the lawsuit." The rationale for this conclusion was that
[The Supreme Court’s decision in] Bill Johnson’s held that an ongoing, reasonably based lawsuit could not be enjoined as an unfair labor practice even if the lawsuit had a retaliatory motive. The Court deemed this holding to be necessary to safeguard the fundamental First Amendment right to petition. . . . Th[is] principle, in our view, [is] equally applicable to both completed and ongoing lawsuits. When a plaintiff files a lawsuit, he does not know whether his claim will prevail. His lawsuit—even if reasonably based—may not succeed. As the Supreme Court found in this case, declaring a reasonably based, unsuccessful lawsuit to be an unfair labor practice burdens the First Amendment right to petition. . . . Consequently, the prospect of liability for an unfair labor practice would reasonably tend to chill a prospective plaintiff from exercising the fundamental First Amendment right to petition. This chilling effect on the right to petition exists whether the Board burdens a lawsuit in its initial phase or after its conclusion[.]
dissenters (Members Liebman and Walsh) objected that the majority fully closed
a door that the Court purposely left open. They also disagreed with the majority’s argument that there is no
difference between an ongoing and a completed lawsuit. In a completed suit, according to the
dissent, the First Amendment rights have already been vindicated and should not
stand in the way of the ULP finding. The
dissent accepted the view that some meritless retaliatory suits will be
protected under the balance between First Amendment and Section 7. However, they objected to the majority’s
categorical rule that none of these types of suits will constitute a ULP.
It is worth
noting the basis for lawsuit that the majority found was “reasonably based” (a
finding confirmed by the Supreme Court and conceded by the NLRB’s General
Counsel). This dispute arose from
various trade unions' attempts delay the modernization of a steel mill by
nonunion BE&K. The union used
lobbying, handbilling, picketing, and the filing a state health and safety
violations complaints. As summarized by
the BNA’s Daily Labor Report (subscription required), BE&K and the mill
“sued the unions in federal court, initially alleging violation of Section 303 of the Labor-Management Relations Act for an illegal secondary boycott and later adding an antitrust claim. The district court granted summary judgment to the union on some of the boycott allegations, twice dismissed amended complaints, imposed sanctions under Federal Rule of Civil Procedure 11, and granted summary judgment to the unions on the antitrust claim. The mill operator dropped its claims.”
I agree with the dissenter’s objection to categorically declaring that no retaliatory suits with merit will ever constitute a ULP. These cases involve employers who have been found to have used a lawsuit as a means to interfere with protected activity under the NLRA. Given that “meritorious” is broad definition, it seems more appropriate to keep open the possibility that, for example, a barely meritorious case filed as part of a widespread pattern of interference with collective rights might be considered a ULP.
Long on Title VII Retaliation and Employer-Initiated Investigations
Alex Long, my new colleague at the University of Tennessee (and a blogger at Prawsblawg), has posted on SSRN his article forthcoming in the Florida Law Review, The Troublemakers Friend: Retaliation Against Third Parties and the Right of Association in the Workplace. This article is particularly timely, as it discusses among other things the exact question raised in the Crawford case pending before the Supreme Court: whether Title VII's prohibition against retaliation extends to an employee fired for participating in an employer-initiated internal investigation. His abstract states:
Title VII theoretically provides virtually unlimited protection from retaliation for one kind of workplace troublemaker – the employee who files a formal charge of discrimination. However, the protection from retaliation enjoyed by such individuals is significantly less when the troublemaker resorts to an employer's internal process for resolving discrimination complaints prior to the filing of a formal charge of discrimination. And what of the coworker who assists the troublemaker in pursuing such an internal grievance? Or the coworker who simply has some type of relationship with the troublemaker who files a formal charge of discrimination? What protection from retaliation do such individuals enjoy under federal law? As it turns out, in many cases the answer is little to none.
In analyzing the issue of whether to permit retaliation claims based on an individual's association with or assistance to a coworker who has engaged in protected activity, the only policy value courts typically discuss is the goal of maintaining access to the statute's remedial mechanism. That maintaining access to such mechanisms is the primary purpose of anti-retaliation provisions is beyond question. However, this Article argues that there is another value that is implicated in these cases that routinely goes unmentioned; namely, the policy in favor of encouraging (or, at a bare minimum, not discouraging) employees from associating with one another. This Article argues that in addition to the goal of permitting unfettered access to remedial mechanisms, one of the goals of anti-retaliation provisions in employment discrimination statutes should be not just to permit but to actually encourage workers to meet and discuss management-employee relations and to provide aid to one another. In so doing, courts may help foster the sense of solidarity that may prevent the creation of hostile work environments from developing in the first place and that may allow for more effective resolutions of discrimination complaints that have already been filed.
Read it now and you'll be able to say that you knew it before it was cited by the Supreme Court.
Sandra Sperino (Cincinnati) has just posted on SSRN her article (forthcoming St. Louis U. L.J.) Complying with Export Laws Without Importing Discrimination Liability: An Attempt to Integrate Employment Discrimination Laws and the Deemed Export Rules. Here's the abstract:
The federal deemed export rules prohibit certain individuals from receiving any information about certain technologies without the required license, even if those individuals are otherwise authorized to work within the United States. In other words, employers who deal with technology or software subject to export control may be considered to be illegally exporting such technology or software, simply by allowing certain foreign nationals to work with or gain information about the restricted items.
This article will attempt two moderately simple tasks and one more difficult. The first task is to identify the tensions that exist between the deemed export rules and the federal anti-discrimination statutes, creating awareness about potential issues that might arise if employers use general human resources advice, while neglecting deemed export requirements.
Second, the article will attempt to demonstrate how employers who want to become involved in the complex deemed export regime can do so, consistent with the federal anti-discrimination statutes. While concern exists that employers complying with the deemed export rules may be placing themselves in violation of Title VII and IRCA, this article argues that, in most cases, employment screenings for deemed export requirements should not yield liability under either Title VII or IRCA.
The third task is more complex. To comply with deemed export law, an employer must obtain an employee-specific export license prior to making the restricted technology available to the foreign national. The required licenses often take months to obtain, and, it may be difficult or impossible for employers to obtain such licenses for certain employees. To comply with the deemed export requirements in a hiring or promotion context, the employer would be required to limit an employee's job responsibilities to non-export controlled work or to place the foreign national employee on unpaid leave until the government made its decision on whether to issue the license. This places the employer in the position of leaving certain tasks unperformed or requiring other employees to take on additional job responsibilities during the interim, causing project delays.
Once an employer becomes involved in the deemed export regime, it has responsibilities to ensure that the employee's access to technology remains within the granted license and that all of the conditions of the license continue to be met. This article argues that, consistent with the federal anti-discrimination statutes, employers should be able, in certain instances, to choose not to hire, assign, or promote certain foreign nationals, simply because to do so would trigger the employer's involvement in the legally perilous, complex, and uncertain deemed export regime. Additionally, the article argues that employers should be allowed to engage in a cost-benefit analysis regarding whether the value added by particular job positions merits involvement with the deemed export regime.
To be clear, this article does not advocate that all employers begin to consider national origin or country of citizenship when hiring. Nor does it advocate that an employer should be able to use the deemed export rules as a pretext for discrimination based on national origin or citizenship. Rather, the article demonstrates that neither Title VII nor IRCA prohibit an employer from refusing to hire an individual, if the reason for that decision is a desire to avoid becoming involved in the deemed export regime.
I'll be at Texas Wesleyan School of Law in Fort Worth for the next several days, attending Wingspread VIII. Wingspread is a collaborative organization dedicated to helping law schools and other professional schools establish pipeline programs to enhance diversity. Here's a brief description:
Wingspread involves a group of over 40 law-schools working with teams that includes P-20 educators, the bench, and the bar, all committed to working collaboratively across the educational continuum to improve the participation, persistence, and success of diverse students in high school and college. The goal of the group is to enhance these students’ aspirations and capacity to move into positions in the legal profession and in the leadership of the nation.
Sarah Redfield (Pacific, Pierce) is the inspiration and expert.
October 3, 2007
Recently Published Scholarship
The Labor Lawyer
Volume 23, Number 1, Summer 2007
- Daniel B. Tukel (left), Testing Accommodation: Is a ‘Level Playing Field’ Unfair?, p. 1.
- Scott Silverman, The Impact of Recent NLRB Decisions on Supervisory Status, p. 11.
- Robert Sprague, Googling Job Applicants: Incorporating Personal Information into Hiring Decision, p. 19.
- Paul E. Bateman (center), Concerted Activity – The Intersection Between Political Activity and Section 7 Rights, p. 41.
- Sean W. Colligan (right), In Good Measure: Workforce Demographics and Statistical Proof of Discrimination, p. 59.
- Wesley Kennedy & Angie M. Cowan, A Touch of ‘Class’ – Immigration and the Intersection of Politics and Protected Section 7 Activity, p. 99.
October 2, 2007
Supreme Court Lets Ruling on Religious Private Employers and State-Mandated Birth Control Law Stand
Not surprisingly, at least to me (see below), the Supreme Court did not grant cert. this past Monday in a case decided by the New York Appeals Court with significant implications for constitutional rights of private religious employers, employee benefits, and employment discrimination against women.
We wrote about the case of Charities of Diocese of Albany v. Serio way back in January 2006. There, we wrote:
The New York State Appellate Court has just ruled that religious private employers (not otherwise qualified for an exemption under the refusal clause) who do not believe in contraception must nevertheless abide by a New York state mandated benefit law (N.Y. Ins. Law §§ 3221, 4303, 4322 (Enacted 2002)) which requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception. The opinion in Catholic Charities of Diocese of Albany v Serio (NY App. Jan 12, 2006) can be found here.
Thereafter, in October of 2006, we further wrote:
the New York Appeals Court (New York's highest appellate court) yesterday decided to affirm the intermediate appellate court based mainly on federal and state free exercise analysis. You can access that decision here. I don't think there is anything momentous on the federal side of things, so I wouldn't expect the case to be accept by the United States Supreme Court if cert is filed.
And like a blond squirrel finding an acorn, my prediction turned out to be right a year later:
The Supreme Court on Monday declined to enter a church-state dispute over whether some religious organizations can be forced to pay for workers' birth-control health insurance benefits, a growing trend in the states.
The court let stand a New York court ruling upholding a state law that forces religious-based social service agencies to subsidize contraceptives as part of prescription drug coverage they offer employees.
Perhaps, this issue will still go away as the result of ERISA preemption if these religious hospitals self-insure and seek to avoid the state-mandated benefit laws through that legal maneuver. But the question would still remain whether these religious hospital health plans are "church plans" not subject to ERISA by operation of Section 4(b).
The Transfer of Collective Bargaining Agreements File to Employment Standards Administration
The Document Service at the Institute of Workplace Studies at Cornell University's School of Industrial and Labor Relations reports on an administrative change concerning where union collective bargaining agreements will be kept in the federal government:
As a result of Secretary's Order 42007, issued in May 2007, the authority for maintaining the Department of Labor's collective bargaining agreements file has been transferred to the < http://www.dol.gov/esa/> Employment Standards Administration. The Bureau of Labor Statistics had been responsible for maintaining this file since 1947.....
The entire hard-copy file of collective bargaining agreements is now at ESA and the agreements will be available soon from their website in PDF format. Until then, the collective bargaining agreements are temporarily still available in PDF format from the BLS website: < http://www.bls.gov/cba/cbaindex.htm
OK, is this just an administrative move or can someone with some knowledge point out whether something more insidious or impactful is afoot?
Retaliation for Reporting Age Discrimination in Federal Employment: The Supreme Court Case of Gomez-Perez v. Potter
One of the cert grants issued last week was in the case of Gomez-Perez v. Potter, a case concerning whether the age discrimination provisions for federal employees implicitly includes anti-retaliation protections for reporting such conduct.
Myrna Gomez-Perez, a 45-year-old employee of the U.S. Postal Service, filed an age discrimination complaint after her supervisor denied her transfer request. After filing her complaint, Gomez-Perez alleges her supervisors and co-workers retaliated against her, and that her hours were drastically reduced. She appealed a summary judgment ruling against her in the U.S. District Court for Puerto Rico, which did not reach the question of whether the ADEA’s private cause of action for federal employees alleging age discrimination implicitly includes a retaliation cause of action.
On appeal, the First Circuit noted that the parallel ADEA provision governing private employers expressly provides for retaliation claims and reasoned that Congress would have said so explicitly had it intended for a similar cause of action against federal employers. The Court was not persuaded that Congress meant to prohibit “discrimination and retaliation” when it said merely “discrimination,” and held that the ADEA does not include a cause of action for retaliation by federal employers. In so holding, the First Circuit disagreed with the D.C. Circuit’s holding in Forman v. Small that Congress intended the ADEA’s mandate that federal employment decisions “shall be made free from any discrimination based on age” to include a ban on retaliation for age-discrimination allegations.
The issue in this case, as well as the Section 1981 race discrimination case of Humphries is whether retaliation protection can be read into a statute that only talks about discrimination. In the Title IX Smith case from 2005, the Court did just that and it will be interesting to see how the Court will potentially distinguish the Smith case from the federal employee ADEA case and the Section 1981 race case.
It may have something to do with the difference in legislation enacted under the spending clause (Title IX) and legislation enacted under the Commerce Clause (ADEA) or Section 5 of the 14th Amdt (Section 1981), but I'm not sure how the exact reasoning would go, except that Spending Clause legislation has been found to be more contractual in nature (see the Title IX sex harassment cases of Gebser and Davis) and maybe it is easier to imply a retaliation provision in such circumstances.
This is all speculation, but my gut tells me this conservative Court only took these cases to find that no retaliation claims exist in these circumstances. This Court is not big on implying statutory causes of action and the swing-vote in the Title IX Smith case, Justice O'Connor, has been replaced by the far more employer-friendly Justice Alito.
Oral argument is expected in January. My prediction: judgment for the employers, 5-4, for in both Gomez-Perez and Humphries.
Transgender Inclusion May Spell Trouble for ENDA
After early reports that the Employee Non-Discrimination Act (ENDA), which adds sexual orientation and gender identity to the protected classifications under Title VII, had the best chance to pass Congress yet, discouraging new stories are surfacing about a delay on a vote on the House version of the bill (via FoxNews.com):
Legislation to criminalize workplace discrimination against gays, lesbians and bisexuals — but not cross-dressers or people who have had sex-change surgery — has stalled in the House after an impassioned outcry against excluding anyone from the bill.
"We are one community, and we demand protections for all of us, and nothing else will suffice," said Matt Foreman, executive director of the National Gay and Lesbian Task Force.
But House Democrats said while they have the votes to pass a bill banning workplace discrimination against gays, lesbian and bisexuals, they don't have the votes if so-called transgendered people are included.
"There is more resistance to protection for people who are transgender than for people who are gay, lesbian and bisexual," Rep. Barney Frank, D-Mass., said in a statement. "This is not a good fact, but ignoring bad facts is a bad way to get legislation passed."
To me, although I disagree with excluding gender identity and expression from ENDA, it does not seem that transgendered people have yet gained the same public acceptance as other members of the LBGT community. The question of the day is whether it is better to fight for ENDA without protection, at least initially, for the transgendered or whether it should be all or nothing as far as including every group in the legislation.
BTW, the use of the word "criminalizing" in the first sentence of the above passage is clearly wrong. ENDA is not about enacting criminal law, but civil liability for unlawful workplace discrimination based on sexual orientation and gender identity and expression.
NLRB Cuts Back on Voluntary Election Bar
The NLRB's decision in the much-anticipated Dana Corp., 351 N.L.R.B. No. 28 (Sept. 29, 2007) case is out. In this case, the Board reconsidered its approach to the voluntary recognition bar. For forty years, pursuant to the Keller Plastics case, the Board had barred for a "reasonable time" (usually around 6 months) any attempt to decertify a union that had been voluntarily recognized by an employer. In Dana Corp., the current Board (3-2) didn't completely eliminate the voluntary recognition bar with regard to employee- or rival union-initiated decertification petitions, but it came close. Now, when a union is voluntarily recognized, whether or not a card-check or neutrality agreement existed,
no election bar will be imposed after a card-based recognition unless (1) employees in the bargaining unit receive notice of the recognition and of their right, within 45 days of the notice, to file a decertification petition or to support the filing of a petition by a rival union, and (2) 45 days pass from the date of notice without the filing of a valid petition.
The majority stated that it wasn't questioning the legality of voluntary recognition; however, this case is one of a growing line of decisions in which the Board has repeatedly undermined and questioned the validity of such recognition. The Board bases its decision on the need "to provide greater protection for employees’ statutory right of free choice and to give proper effect to the court- and Board-recognized statutory preference for resolving questions concerning representation through a Board secret-ballot election."
Members Liebman and Walsh vehemently disagree with the majority's reasoning, as stated in the opening of their dissent:
Sadly, today’s decision will surely enhance already serious disenchantment with the Act’s ability to protect the right of employees to engage in collective bargaining. As the majority recognizes, the Board’s task in these cases is to balance the Act’s twin interests in promoting stable bargaining relationships and employee free choice. But the appropriate balance was struck 40 years ago, in Keller Plastics, and nothing in the majority's decision justifies its radical departure from that well-settled, judicially approved precedent. The voluntary recognition bar, as consistently applied for the past four decades, promotes both interests: it honors the free choice already exercised by a majority of unit employees, while promoting stable bargaining relationships. By contrast, the majority's decision subverts both interests: it subjects the will of the majority to that of a 30 percent minority, and destabilizes nascent bargaining relationships. In addition, the majority's view fails to give sufficient weight to the role of voluntary recognition in national labor policy and to the effect of existing unfair labor practice sanctions to remedy the problems the majority claims to see.
Among the dissent's many objections to the majority's reasoning is that the window period is "a “Catch 22” for the union. [T]he knowledge that an election petition may be filed gives the employer little incentive to devote time and attention to bargaining during the first 45 days following recognition. Yet, if unit employees perceive that nothing is being accomplished in that initial bargaining, it stands to reason that they may be more likely to sign an election petition and even, ultimately, to vote against the union—even if they previously had supported it." As the dissent notes, this pressure on the union to produce results against a recalcitrant employer, while having to fear a quick decert petition is what the recognition bar is supposed to avoid.
I support the idea of maximizing employee free choice and the advantages of a free and fair election. However, I find the Board's use of these ideas to be disingenuous. The current majority has done nothing to rectify the obvious imbalance that exists in Board-run elections; to the contrary, they seem intent on minimizing employee choice whenever it is to the employers' advantage. There is a lot of room for real NLRA reform in this area--reform that would truly maximize employees ability to freely choose to unionize and to refuse to unionize. But, at this point, the battle is little more than each side trying to maximize whatever advantage they can muster.
Also of note is the dissent's quotation of James Budney's
(Ohio State) article, Neutrality Agreements and Card Check Recognition:
Prospects for Changing Paradigms, 90 Iowa L. Rev. 819 (2005).
Jury Verdict in Isiah Thomas Harassment Case
The New York Times is reporting that a jury has found that Knicks coach Isiah Thomas
sexually harassed a former marketing executive and that Madison Square Garden fired her in retaliation for complaining that Thomas had made unwanted advances toward her and had subjected her to verbal insults.
The jury, in federal district court in Manhattan, also ruled that the former executive, Anucha Browne Sanders, is entitled to damages from the Garden. The judge directed the jurors to return today to begin hearing arguments about how much the Garden will have to pay her in punitive damages. They will decide on compensatory damages later. Browne Sanders is seeking $10 million.
Jurors could not, however, decide whether Browne Sanders should be paid damages by Thomas, so on that matter, the judge ruled a mistrial, a partial victory for the coach.
Thomas says: "I am very innocent."
UPS and Teamsters Agree to Multiemployer Pension Withdrawal
Steven Greenhouse of the New York Times reported yesterday:
The International Brotherhood of Teamsters announced last night that it had reached a tentative five-year contract with the United Parcel Service that calls for sweeping changes in the pension plan for many workers.
Under the accord, which covers 238,000 drivers and other workers, U.P.S. would be allowed to withdraw from the Central States pension plan, which was notorious for corruption in the 1960s and 1970s, but is now known for being underfunded.
Union and company officials hailed the agreement, saying it would help protect the pensions of the 44,000 active U.P.S. employees in the plan. Because of underfunding, the trustees in that multiemployer plan have reduced pension payments to retirees since 2003 . . . .
Unhappy with the high annual expenses of paying into the Central States plan, U.P.S. obtained the blessing of the union and the pension trustees to withdraw, but to do so it must first pay $6.1 billion to shore up the plan.
Actuaries estimate that the plan is underfunded by 49 percent, and with the $6.1 billion contribution, will remain 30 percent underfunded.
As Greenberg points out, "[t]he deal is part of a wave of corporate efforts, including the recent General Motors deal, to revamp pension and health care obligations."
This is just the beginning, folks.
Hat Tip: Jennifer Wright
Levit on Mega-Cases, Diversity, and the Elusive Goal of Workplace Reform
Nancy Levit (UMKC) has posted on SSRN her piece forthcoming in the Boston College Law Review: Mega-Cases, Diversity, and the Elusive Goal of Workplace Reform.
Here's the asbtract:
Employment discrimination class action suits are part of a new wave of structural reform litigation. Like their predecessors - the school desegregation cases in the 1950s, the housing and voting inequalities cases in the 1960s, prison conditions suits in the 1970s, and environmental lawsuits since then - these are systemic challenges to major institutions affecting large segments of the public. This article explores the effectiveness of various employment discrimination remedies in reforming workplace cultures, promoting corporate accountability, and implementing real diversity.
Reviewing the architecture and aftermath of consent decrees in five major employment discrimination cases - the cases against Shoney's, Texaco, Home Depot, Mitsubishi, and Coca-Cola - the article evaluates the ways in which consent decrees have changed over time and the lessons learned from the implementation of these settlements. Mega-Cases identifies several hallmarks of more promising settlements and then compares the features of consent decrees in those landmark cases with recent social science literature on remedies that do - and do not - make a difference in workplace inclusivity. Emerging research in organizational sociology has found that, strikingly, diversity training has a negligible effect on the admission of women and minorities to the ranks of corporate management, but that structures requiring accountability (such as affirmative action plans, diversity managers and financial incentives) are effective in increasing diversity.
The final part of the article addresses resistance to change. Unsurprisingly, in those situations in which corporations seemed most committed to changing their cultures regarding equity and diversity, the consent decrees seemed to work most effectively. The question is what to do about corporations and executives who seem unwilling to change - especially if they don't have the resources of a mega-corporation and particularly if diversity training doesn't seem to produce results. An answer may be to develop an understanding that diversity is good for business. The socio-economic literature makes a strong case that employee diversity creates very favorable economic consequences for corporations. While most major corporations seem aware of the economic benefits of having their workforces resemble the demographics of the nation, smaller companies are less responsive to the need for diversity.
One danger of promoting the market support for diversity is that exclusively economic arguments can overshadow the moral or philosophical case for gender and racial justice. A very legitimate question is whether one of the more promising methods of promoting diversity is effective only at the risk of losing the soul of the anti-discrimination principle?
I had the good fortune of reading Nancy's paper and listening to her present this paper at the SEALS conference in Amelia Island this past August. It is a great read and asks some very important questions about the future of eradicating unlawful employment discrimination from the halls of corporate America.
Supreme Court Seeks Solicitor General's Input on Cert. Petitions
It is looking like this might be quite a Supreme Court term for the labor and employment area. Paul has posted on several cases for which the Court has already granted cert. (here, here, and here). Now comes word that the Court is seeking input from the Solicitor General on four other pending cases. Although not certain, asking for a SG brief dramatically increases the odds that the Court will grant cert. The cases involved are described below (links to BNA Daily Labor Report, subscription required):
Meachem v. Knolls Atomic Power Lab., No. 06-1505 -- whether an employee bringing a disparate impact claim under the ADEA has the burden of proving that the employer did not rely on a reasonable factor other than age.
Crawford v. Metro Gov't of Nashville & Davidson County, No. 06-1595 -- whether Title VII's prohibition against retaliation extends to an employee fired for participating in an employer-initiated internal investigation.
AT&T Pension Benefit Plan v. Call, No. 06-1398 -- whether an employer is entitled to deference for its determination that the actuarial assumptions it used to calculate lump-sum distributions were not considered accrued benefits.
Geddes v. United Staffing Alliance Employee Med. Plan, No. 06-1458 -- whether a nondiscretionary standard of review applies in an ERISA action when the benefit plan administrator delegates its discretionary authority to someone who is not a fiduciary.
These are all very interesting issues (even the ERISA ones), so my guess is that most, if not all, will be granted cert. Stay tuned.