March 22, 2008
Desegregating NFL Coaches
Jeremi Duru (Temple) has just posted on SSRN his article (forthcoming Virginia Sports & Entertainment L.J.) The Fritz Pollard Alliance, the Rooney Rule, and the Quest to "Level the Playing Field" in the National Football League. Here's the abstract:
The National Football League (the "NFL" or the "League"), like the National Basketball Association ("NBA") and Major League Baseball ("MLB"), has a long history of racial exclusion. And like these other long-standing American professional sport leagues, desegregation among players preceded desegregation among coaches. As slowly increasing numbers of minorities assumed NBA head coaching positions and MLB managing positions toward the end of the twentieth century, however, minority NFL coaches were less likely to receive head coaching opportunities than their basketball and baseball counterparts. Indeed, as of 2002, only two minorities held head coaching positions in the thirty-two team NFL, and only five, including those two, had held head coaching positions during the League's modern era. Four years later, however, the NFL had more than tripled its number of minority head coaches and shone as a model for other athletic institutions seeking to provide head coaching candidates equal employment opportunity. This article seeks to explore the history of racial exclusion in the NFL, the particular barriers minority coaches seeking NFL head coaching positions have faced, and the effort to level the playing field for such coaches.
Yes, indeed -- and in this regard, the NFL serves as a model not only for other sports leagues, but other industries as well.
Top-5 International Employment & Labor Law SSRN Downloads
- Heike Schweitzer, Competition Law and Public Policy: Reconsidering an Uneasy Relationship: The Example of Art. Section 1 (38).
- Marie-Ange Moreau (photo above), European Solidarity and Labour Law: Some Thoughts Stemming from the Question of Restructuring in Europe (11).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Richard L. Kaplan, Top Ten Myths of Social Security (247).
- Edward A. Zelinsky, Golden Gate Restaurant Association: Employer Mandates and ERISA Preemption in the Ninth Circuit (134).
- Jesse M. Fried, Hands-Off Options (90).
- Albert Feuer, Who Is Entitled to Survivor Benefits From ERISA Plans? (82).
- Martin Lipton (photo above), Some Thoughts for Boards of Directors in 2008 (79).
March 21, 2008
Senator Durbin for NYLS Coelho Lecture
New York Law School has announced that its 4th Annual Tony Coelho Lecture in Disability Law and Employment Policy will be delivered by Senator Dick Durbin. The lecture is sponsored by the school's Justice Action Center and the Labor and Employment Program, which is directed by Seth Harris.
Fourth Annual Tony Coelho Lecture in Disability Employment Law & Policy with Guest Lecturer Senator Richard J. Durbin
Monday, April 14, 2008, 8:30 a.m.–11:00 a.m.
Stiefel Reading Room, New York Law School
Presented by New York Law School's Justice Action Center
Senator Dick Durbin is the Assistant Majority Leader of the United States Senate and the senior U.S. Senator from Illinois
Senator Durbin has a distinguished record of working to break down the barriers that exclude people with disabilities.
For information about this event in a text-only format, please visit www.nyls.edu/coelho. For further information, please call (212) 431-2314.
Secunda on Law School Lateraling
Paul last week posted on SSRN his essay Tales of a Law Professor Lateral Nothing. His essay fills a huge void in the literature, and it says something about both the demand in the academy for information about lateraling, and the quality of Paul's essay, that after only a week the essay has 500+ downloads and counting. Here's the abstract:
This Essay seeks to uncover the mysterious world of the law professor lateral hiring market, which has become increasingly important in the last number of years as law schools seek to build their reputations in this U.S. News & World Report world through the hiring of prominent faculty members.
Although the advice and guidance given in this Essay are sometimes written with tongue firmly in cheek, I do attempt to accomplish two important objectives here. First, there has been scarcely anything written about the lateral hiring market for law professors, as opposed to the cottage industry that has been devoted to the entry-level law professor hiring market. This Essay methodically takes the lateral-to-be professor through every step of the lateral process from the first-person perspective of one who has been on the market for three years and successfully lateraled this past year.
Second, and perhaps more importantly, I want to contribute to the process of bringing back to legal academic writing the form of the first-person narrative. Like my colleague, David Case, I believe that, the narrative voice is an important, and perhaps underutilized, tool in deconstructing the arbitrary processes of the legal academic hiring market. See David Case, The Pedagogical Don Quixote de la Mississippi, 33 U. Mem. L. Rev. 529, 530 n.2 (2003).
Paul's essay is both informative and an entertaining read. Paul's humor, often at his own expense, significantly enhances his description of the process. Way to go, Paul!!!
Barker to be Appointed to EEOC
The White House announced this afternoon that the president intends to nominate Alabama attorney Constance Barker to the Equal Employment Opportunity Commission. If confirmed, she would fill the remainder of a five-year term through June 2011.
Barker is with Capell & Howard law firm in Montgomery and previously was general counsel for the Mobile County Board of Education and is a former prosecutor. She received her bachelor's degree from the University of Notre Dame and her law degree from the University of Alabama in 1977.
This is from her firm's bio: "She represents a broad cross-section of commercial, manufacturing, retail and professional firms. Her clients include manufacturing plants, retail businesses, medical groups, physicians, real estate development and investment firms, and an architectural and engineering firm. Her efforts are equally focused on the prevention of discrimination claims and the defense of lawsuits. She works closely with corporate clients to guide their decision-making process through the mine fields of potential discrimination liability."
Good to see that she is a management attorney with substantial experience in counseling employers on how to avoid employment discrimination disputes before they develop into full fledge litigation. This was always the most enjoyable part of my practice when I was on the management-side of things.
Tipping Leads to Racial Pay Disparities?
A few years back, I got interested in taxicab tipping – and what influences how much people tip. So together with Fred Vars and Nasser Zakariya, I collected data on more than 1,000 cab rides in New Haven, C.T. and crunched the numbers. The study (published in The Yale Law Journal) found — after controlling for a host of other variables — two independent racial effects:
1. African-American cab drivers, on average, were tipped approximately one-third less than white cab drivers.
2. African-American and Hispanic passengers tipped approximately one-half the amount white passengers tipped.
African-American passengers also seemed to participate in the racial discrimination against African-American drivers. While African-American passengers generally tipped less, on average they also tipped black drivers approximately one-third less than they tipped white drivers . . . .
However, a new study co-authored by the world’s leading number cruncher on tipping, Michael Lynn, has found a similar effect in a Southern restaurant. His article, “Consumer Racial Discrimination in Tipping: A Replication and Extension” is based on 140 surveys that he and his co-authors:
…collected during three lunch shifts (11:00 a.m. to 4:00 p.m.) at a [large national chain] restaurant located in the southern United States.
Focusing on just blacks and whites, the study once again found that:
Consumers of both races discriminated against black service providers by tipping them less than white service providers.
Ayres then gives us the employment discrimination law angle: "But as a law professor what is most interesting about Lynn’s article is his suggestion that an employer might be held liable under Title VII of the Civil Rights Act for establishing a tipping policy that has a disparate impact against African-American employees . . . But the harder question is whether the racial disparate impact of tipping is legally justified by the legitimate interest of businesses to enhance customer service."
Very thought-provoking article, with some interesting tidbits about the history of tipping practices in this country. Should tipping be curtailed to prevent discriminatory impacts in pay practices?
Big Firms Boost Maternity Leave
The ABA Journal online version is reporting that about a dozen large firms have boosted their maternity leave from 12 to 18 weeks. Paid leave for fathers who are primary caregivers has also increased at a number of firms, as has leave for adoptive parents who are primary caregivers. If only we can move beyond the "primary caregiver" requirement, or recognize that both parents can be equal caregivers (or extend this beyond the largest lawfirms), we may be making real progress.
This is pretty serious progress, too, though. When I had my first child, parents were lucky enough to have two weeks of paid leave. At least that leave was given regardless of whether the parent was a primary caregiver or not.
More Bad News for Starbucks
In the midst of sliding stock prices, Starbucks has been ordered by a court in California to pay over $100 million in back tips and interests according to this report at CNN.com. Apparently, the company was requiring that tips for baristas be shared with shift supervisors, which violated California state law that prohibits managers and supervisors from sharing in employee gratuities. Filed by one barista, the case gained momentum when it was certified as a class action, comprised of as many as 100,000 former and current baristas in California's stores.
Not surprisingly, Starbucks is appealing and has asked for a stay pending the appeal. It has critiqued the brevity of the judge's opinion, which is apparently only four paragraphs long, noting that the judge failed to consider unfairness to shift supervisors. I'm inclined to agree with the named plaintiff on this one:
"I feel vindicated," [the named plaintiff] said in a written statement released by attorneys. "Tips really help those receiving the lowest wages. I think Starbucks should pay shift supervisors higher wages instead of taking money from the tip pool."
March 20, 2008
Baworowsky on Theoretical Foundations of First and Fourteenth Amendment Protection of Corporate Religious Speech
Julie Marie Baworowsky (Notre Dame student) has posted on SSRN her forthcoming note in the Notre Dame Law Review entitled: From Public Square to Market Square: Theoretical Foundations of First and Fourteenth Amendment Protection of Corporate Religious Speech.
Here's the abstract:
Should corporate religious expression receive protection under the Fourteenth Amendment's Due Process Clause and under the First Amendment's Speech Clause?
Case law or legal literature has never examined this issue, despite government's increasing burdens on corporate religious speech. Constitutional free speech doctrines therefore present an innovative and potent tool for civil rights attorneys and corporate counsel. Moreover, increasing corporate social responsibility through religion depends upon the right to free religious expression.
This Note examines the theoretical foundations of corporate religious speech rights through the lens of traditional corporate and associational theory. It rejects two corporate law theories denying corporate religious speech rights (artificial entity and contractarian) as outmoded conceptions no longer applicable to modern corporations. This Note finds that the natural entity theory is the only theory supporting corporate religious speech rights.
This Note also discusses how the First and Fourteenth Amendments may protect corporate religious speech. It illustrates how corporate theories have affected Supreme Court corporate speech cases, draws analogies from precedents protecting corporate political speech, and shows how a variety of free speech theories justify corporate religious speech protection. As a result, statutes like Title VII or New Jersey's Worker Freedom from Employer Intimidation Act must avoid infringing upon corporate religious speech rights. These conclusions receive support from our nation's historical commitment to religious pluralism.
This is a provocative piece which argues for a greater role for religion in the workplace. I have argued elsewhere that I am not a big fan of corporate chaplains or any form of religious harassment (proselytizing) in the workplace. I also think it is dangerous to give constitutional status to corporate rights as that would undermine the civil rights protections in laws like Title VII and the civil liberties protection like those found in the New Jersey law discussed above.
In short, where as corporate speech makes sense to me because corporations must speak to the public about their products, their employees, and other matters of interest, corporate religious expression is not similarly necessary or inevitable. I remain more comfortable with religion being practiced, and being protected by the Constitution, on an individual-basis, whether in public or private.
Of Employment Discrimination, § 1983, Mixed Motives, and Qualified Immunity
The Eleventh Circuit issued a decision this week in Rioux v. City of Atlanta, which involved a Deputy Fire Chief who was demoted after, while off-duty, he grabbed a subordinate by his coat lapels and chastised him for arriving late to a fire. Rioux, the Deputy Fire Chief, was white, and he brought a race discrimination claim under § 1983 against the city's Fire Chief and the city's Chief Operating Officer in their individual capacities. Those individuals would not be liable under Title VII, which is probably why Rioux chose this route. Rioux alleged that he was demoted not for this conduct but because the Chief Operating Officer, the Fire Chief and an organization of African American firefighters wanted to replace him with an African American to achieve a racial balance among the upper ranks of the Atlanta Fire Department.
The Eleventh Circuit held that Rioux had provided evidence of a prima facie case of race discrimination and presented sufficient evidence of pretext (just like in a race discrimination case under Title VII). Despite this, Rioux could not survive summary judgment, the Eleventh Circuit found, because the Fire Chief and Chief Operating Officer were entitled to qualified immunity. This is one major difference between Title VII and § 1983. There is no qualified immunity defense in Title VII. Still, the results should rarely differ between the two statutes. The qualified immunity inquiry is whether the state actor knew or reasonably should have known that he or she was violating the plaintiff's clearly established constitutional or federal statutory rights. And it is usually clear that where an employer engages in disparate treatment on the basis of race, that employer, if a state actor, is violating the equal protection clause.
The qualified immunity analysis asks first whether the state actor violated the plaintiffs constitutional rights, and if so, then asks whether those rights were clearly established at the time of the action. And here's where the analysis gets confusing. The Eleventh Circuit found that Rioux had a constitutional right not to be demoted because of his race, and it even found that this right was clearly established at the time that the defendants acted. It then found, though, that the evidence could suggest that the defendants had mixed motives. Here's where we get to the second difference between § 1983 and Title VII. Mixed motives in a Title VII case leads to liability, but less relief awarded. Mixed motives in a § 1983 case is a complete defense. So, the court reasoned, that the right to be free from an adverse employment action driven by mixed motives was not clearly established:
No jury could find that a reasonable fire chief and chief operating
officer would never have demoted Rioux but for a discriminatory intent. . . . The
record here, as in Foy, undisputably establishes that Appellees were motivated at
least in part by lawful justifications, supported by the independent investigations
conducted by OPS and the Law Department, investigations which these two
decisionmakers were not a part of and which there is no evidence they
This analysis seems way more cumbersome than it needed to be. Why even get to the qualified immunity question, or the second prong of the qualified immunity question, if it were clear from the outset that this was a mixed motives case? If it was a mixed motives case, and there was no genuine issue of material fact that the motives were mixed, Rioux cannot survive summary judgment on the substance of his § 1983 claim. He was deprived of no constitutional right. That second prong of qualified immunity--the clearly established part--is really reserved for situations in which the law has changed between the time that the action happened and the time that the court is analyzing the conduct or where the court in this particular case is holding for the first time that the conduct violated constitutional rights.
By using qualified immunity to get to this result, it seems that the Eleventh Circuit further clouded an already technically challenging analysis. All of which supports my view that courts and lawyers love to create and use these technical analytical minefields when they are neither necessary nor desirable.
Bales and Plowman on Compulsory Arbitration as Part of a Broader Employment Dispute Resolution Process
Rick Bales (Chase-N. Ky.) (left) and Jason Plowman (Wash. U. St. Louis student) (right) have posted on SSRN their forthcoming article in the Hofstra Labor & Employment Law Journal: Compulsory Arbitration as Part of a Broader Employment Dispute Resolution Process: The Anheuser-Busch Example.
Here's the abstract:
Federal and state reporters are filled with examples of lopsided arbitration agreements drafted by employers with the apparent intent of discouraging employees from successfully bringing valid claims. The case reporters contain far fewer examples of employment dispute resolution programs that are carefully designed to ensure that employees receive a fundamentally fair forum for the resolution of their employment disputes, for the obvious reason that employees are less likely to challenge these programs. Similarly, most scholarly commentary focuses on the overall merits and demerits of employment arbitration, or on problems posed by particular provisions often found in employment arbitration agreements, but not on employment dispute resolution programs that are designed with an eye toward employee fairness. Both the case law and the legal commentary, therefore, provide an arguably distorted picture of extant employment dispute resolution programs - from these perspectives, all the apples look rotten.
This article begins from the premise that much can be learned from closely examining a well-drafted and -implemented employment dispute resolution program. Such a program can (1) provide scrupulous employers with a model for drafting fair, ethical, and enforceable dispute resolution programs; (2) provide a benchmark to courts in their decisions of whether to enforce other employment dispute resolution programs; and (3) serve as a reminder that not all the arbitral apples are rotten. This article examines in detail the Dispute Resolution Program of Anheuser-Busch, and finds that it is possible for an employment dispute resolution program culminating in binding arbitration simultaneously to serve (1) the employer's goal of containing employment litigation costs, (2) the employee's goal of access to a fair forum for resolving employment disputes, and (3) both parties' goal of promoting the non-adversarial resolution of employment disputes.
The findings of this article are particularly important now that Congress appears increasingly likely to consider statutory amendments prohibiting predispute employment arbitration agreements. This article should not, however, be taken as a blanket endorsement of employment arbitration. We argue merely that employment arbitration can be fair to employees, not that employment arbitration is necessarily, or even usually, fair.
This piece is a welcome counterpoint to the growing cries in the academy to banish mandatory arbitration from the employment law context. My own question is: how do we incent employers to self-regulate in this fair manner beyond mere education of the potential benefits?
Empirical Study of Discipline & Discharge Cases in Labor Arbitration
Laura Cooper (U. Minn. Law), Mario Bognanno (U. Minn. Mgmt), and Stephen Befort (U. Minn. Law) have just posted on SSRN their study (forthcoming as a book chapter in the NAA 2007 Proceedings) How and Why Labor Arbitrators Decide Discipline and Discharge Cases: An Empirical Examination. Here's the abstract:
This book chapter summarizes the preliminary findings of what may be the most comprehensive collection of discipline and discharge arbitration decisions ever subject to systematic analysis. Since the early 1980s, arbitrators on Minnesota's Bureau of Mediation Services (BMS) roster have been required to file a copy of their decisions with the BMS regardless of the source or sector of their appointment. The authors of this chapter coded information concerning 2,055 discipline and discharge cases decided between 1982 and 2005, as well information about the arbitrators who decided those cases. The size of the data base and the large variety of coded survey items permits empirical testing of many assertions in the arbitration literature about the nature of discipline and discharge decision-making. In some respects, our findings support the conclusions in the literature about arbitral decision-making and in the empirical studies on which some of those conclusions were based, but in other respects our results challenge those statements and studies.
These findings examine such issues as the impact of last chance agreements, burden of proof standards, the Seven Tests of Just Cause, and individual arbitrator characteristics, as well as the prevalence of reinstatement without back pay awards.
Among the common assumptions challenged by the empirical findings:
- That arbitrators typically retain jurisdiction when they issue back pay awards.
- That the Seven Tests are highly influential in actual assessment of just cause.
- That arbitrators frequently invoke heightened proof requirements, such as “clear and convincing evidence” and “beyond a reasonable doubt”, even in cases where employees have been charged with criminal conduct.
This is an extraordinarily important piece of empirical work, and should be of interest to labor scholars, arbitrators, and party advocates.
Green on Encouraging Post-Dispute Agreements to Arbitrate
Michael Green (Texas Wesleyan) has just posted on SSRN his article (Nev. L. Rev.) Measures to Encourage and Reward Post-Dispute Agreements to Arbitrate Employment Discrimination Claims. Here's an excerpt from the abstract:
Some commentators have argued that the only realistic opportunity for employers and employees to agree to arbitrate occurs before the dispute arises and will never occur after the dispute becomes a reality. This paper examines that postulate, disputes its validity, and asserts that even if employers and employees do not have strong incentives to agree to arbitrate after a dispute arises, then Congress (which is already seriously considering banning pre-dispute arbitration agreements) must step in to provide such incentives. Only Congress can give arbitration a new chance as a valid and viable dispute resolution tool when the parties agree to it after a statutory employment discrimination dispute arises. Within this paper, the author suggests incentives that Congress could create to inspire both employers and employees to agree to arbitrate their statutory employment discrimination claims after a dispute arises.
I had the pleasure of seeing Michael present this article at UNLV's symposium on the FAA. He gives needed attention to a topic much-neglected in the literature.
BJELL Launches New Website
Tracy Talbot, outgoing Internet Editor of the Berkeley Journal of Employment & Labor Law, writes to inform us that the Journal has launched a new website. The new site contains information on our upcoming events (NLRB Board Member Wilma Liebman is speaking today!), and the Journal is in the process of posting its publications on the website. Check it out.
Employment Application Humor
March 19, 2008
Oral Transcript Analysis of Chamber of Commerce v. Brown
Today, the U.S. Supreme Court heard oral arguments in the NLRA preemption case of Chamber of Commerce v. Brown. We have previously posted about this case (here, here, and here), but Ross Runkel provides a nice summary of the background:
California Gov't Code Section 16645.2 bars a private employer who is a "recipient of a grant of state funds" from using the funds "to assist, promote, or deter union organizing." Similarly, Section 16645.7 bars "a private employer receiving state funds in excess of [$10,000] in any calendar year on account of its participation in a state program" from using such funds "to assist, promote, or deter union organizing."
Sitting en banc, the 9th Circuit held that these two sections are not preempted by the National Labor Relations Act under either Machinists preemption (Lodge 76, International Ass'n of Machinists v. Wisconsin Employment Relations Commission, 427 US 132 (1976)) or Garmon preemption (San Diego Building Trades Council v. Garmon, 359 US 236 (1959)). The US Supreme Court is reviewing the 9th Circuit judgment. The question presented in the certiorari petition: "Is the State of California’s regulation of noncoercive employer speech about union organizing, California Assembly Bill 1889, Cal. Gov’t Code §§ 16645.2, 16645.7, preempted by federal labor law?"
In an increasingly hostile environment for unions in the federal context, unions are increasingly looking for assistance from states in their battles to have a fair chance to organize employees into unions. Although I have not written directly on this topic, it also may have an impact on Worker Freedom legislation, outlawing employer captive audience speeches, which many states have considered recently (I must point out though that I argue strongly that even an adverse decision in Brown should not doom Worker Freedom legislation.)
On to the oral transcript. Some thoughts and impressions from the transcript:
1. Even before the Court began its inquiries, I wondered how the Justices would do with a very complex statutory scheme which none of them have an over familiarity with (traditional labor cases are few and far between at the Court these days). On the other hand, this is essentially a preemption case, and this Court can't seem to get enough of these and rule in favor of preemption of state efforts. Query: how does the Court's rulings in the preemption area square with its recent notions concerning federalism and the strong role of state rights in that system?
2. Two people I know are arguing this case for the various sides. Willis Goldsmith, who I've met through the NYU Center for Labor and Employment Law, at the Retaliation and Whistleblowers conference last year. And Mike Gottesman, my former professor of contracts, torts, and constitutional law at Georgetown Law Center and one of my favorite professors. In my paper on Workplace Captive Audience speech, Mike is mentioned throughout based on his ground-breaking paper in the early 1990s about how to reform NLRA preemption doctrine. No one better could argue this case for Brown. And Mike has his share of successes at the Supreme Court (including a previous preemption case I saw him argue in person at the Supreme Court back on a bitterly cold day in 1995).
3. Justice Scalia will be voting for the Chamber of Commerce here (surprised?). He stated that he did not believe that the state financial accountability was neutral on unionization: "I think the reason you're not paying for this activity is because you don't like this activity." Glad to see Scalia mellowing with age. Chief Justice Roberts agreed and noted that "precious few" employers take the side of union. What I find fascinating about their arguments is that these staunch formalists are making a "practically speaking" argument here, but only when it allows them to oppose unions and support business interests. More evidence of conservative judicial activism?
4. Equally unsurprising is Justice Breyer's support of California's law: "Say: Go ahead, speak, speak, just not on our nickel." Justice Ginsburg concurred and added that if the federal government can restrict use of its money, why can't states? Counsel for the Chamber, Willis Goldsmith, argued that the same rules do not apply to the federal and state governments: "The state has no business making labor policy. This statute is anything but neutral." He continues, and this is the overarching point of the Chamber, "[the California statute] statute interferes dramatically with NLRA protected rights," though I'm not sure if it is a Garmon or Machinists argument he is attempting. The Government, arguing with the Chamber, agrees: "State laws that restrict speech regarding unionization frustrate that fundamental national policy and are therefore pre-empted, as this Court held in Linn." Chief Justice Roberts leads the Government through why this a regulatory program and not a proprietary program a la Boston Harbor.
5. Goldsmith also said: "I think all labor lawyers would agree, and that is that, under the National Labor Relations Act, all parties to a union election or any issue between a union and an employer have the right to speak in a noncoercive way." Well, I'm a labor lawyer, and although Section 8(c) basically guarantees the right of employers to speak in a non-coercive way, it does not require states to have to pay for that speech. In other words, I see this case like Locke v. Davey in the Establishment Clause context: states are permitted to fund constitutional rights, but do not have to. Gottesman makes this point in an exchange with Roberts:
MR. GOTTESMAN: That is not the State's policy, and the preamble to the statute does not say: the State disapproves of employers spending money. What it says --
CHIEF JUSTICE ROBERTS: No, but the policy -- the policy is they don't want employers to talk about unionization.
MR. GOTTESMAN: No. They don't want them to spend them the employer's money -- the State's money to talk about unionization.
Gottesman 1, Roberts 0.
6. Another issue is whether the statute is saved by the Boston Harbor proprietor exception to NLRA exemption, when the state acts as a market participant in passing laws for fiscal concerns. Goldsmith says Boston Harbor is inapplicable because California was attempting to set up labor policy here, not save money. Here is the heart of the Government's argument: "if [California]'s denying benefits for the purpose of advancing labor policy in an area where Congress has said there is to be no regulation, that's pre-empted, and that's doubly pre-empted here where the labor policy that the State is advancing is directly contrary to the Federal labor policy that Congress and the Board have enunciated." So they are arguing Machinists preemption on one hand and Garmon on the other.
7. At the outset, Justice Souter challenges Gottesman: "I'm not sure why you characterize California as financing one side of a debate, because -- and this I think is sort of the nub of the disagreement between the two sides here -- their argument is that a State can determine what it wants to buy with its money, but what California is doing is telling its contractor what it can do with the money after the State has got what it paid for." In other words, this is not a case like Rust v. Sullivan, a government speech doctrine case, but something else. Gottesman disagrees vehemently: "what the court of appeals pointed out is that the Petitioners did not move for summary judgment on the ground that you're forbidding us from using our money. They moved for summary judgment solely on the ground that it was the obligation of the State to give them money that they could use for these purposes . . . . It said that when we give you grant money, don't use that money for this purpose. Now, the State gives them the money up front, before they have provided the services. And that's true universally."
8. Scalia, with Gottesman's help, gets to the issue: "The issue here is whether the policy that California is trying to implement --namely, we do not want the employer to -- in its view --disrupt the -- the labor management relations by -- by opposing union -- unionization." Response:
MR. GOTTESMAN: Because there is no Federal labor policy that requires States to use State treasury money to finance a party who is engaged in this debate. That's why this is just like Rust. . . . . [Much later in the transcript]: It would be very odd to believe -- and this is, after all, implied pre-emption -- that it was Congress's intent without mentioning it to say that it is the obligation of States to provide funding to employers to do this.
And further conversation with Justice Stevens on this topic:
JUSTICE STEVENS: It does require that this -- it arguably requires that this area of combat between labor and management be unregulated.
MR. GOTTESMAN: Right. And this is not regulation, for the very reasons that this Court in Regan and Rust and in a whole line of cases had said that it is not regulation to simply say, we the government are not going to pay for this activity. That's all that California is saying in this case: we are not going to pay for it. It's the policy of the State not to interfere in these union organizing drives; therefore -- and this is the precise words of the preamble -- "for this reason, the State should not subsidize."
9. And because this might be heading to a 4-4 split which Kennedy might decide (for a change), the all important reading of Kennedy's first remarks on page 42 and then these remarks on page 54 (of a 70 page transcript):
JUSTICE KENNEDY: But on that point you're in disagreement with the Ninth Circuit, and --
MR. GOTTESMAN: Yes, we are. The Ninth Circuit misunderstood Boston Harbor. It thought Boston Harbor created two boxes that represented the whole world. You're either a market participant or you're a regulator. That's not what Boston Harbor said, if you go back and look at it. What Boston Harbor said, if you regulate you are vulnerable to pre-emption arguments; if you are not regulating, then you are free of pre-emption concerns.
JUSTICE KENNEDY: So the principal rationale for the Ninth Circuit's opinion is incorrect in your view?
MR. GOTTESMAN: Well, it's not -- no. The Ninth Circuit also talked about the First Amendment and got it right. It said when it talked about the dissent had said what this State is doing is violating the First Amendment, and the Ninth Circuit's response is no, that's not right. All this is is withholding a subsidy, and the First Amendment cases are clear: that's not regulation of a speech.
10. Finally and FWIW, I think all Justices (except for Justice Thomas who didn't speak) spent too much time on how the California law will be administered. This is a question for remand and not before the Court. The sole issue is: Does a state have the obligation to fund a federal statutory right of an employer or its agents. Answer: No.
This is a tough one to predict because Kennedy gave no sense where he is leaning. Also, Justice Souter seemed unusually skeptical of California's argument. No guts, no glory: 6-3 finding (incorrectly) the California law is preempted. Scalia writes the majority opinion and Breyer (for Ginsburg and Stevens) writes the dissent. I think Gottesman did a masterful job with the cards that he was dealt.
Gely & Chandler: Empirical Work on Card Checks
Rafael Gely (Cincinnati, en route to Missouri) and Timothy Chandler (LSU Business) have just posted on SSRN their article (forthcoming Fordham Urb. L.J.) Card Check Recognition: New House Rules for Union Organizing? Here's the abstract:
A significant policy debate has been occurring regarding union organizing methods in the United States. This debate focuses on the appropriateness of granting union recognition based on majority support as demonstrated by union authorization card signatures, also known as card checking. Despite their importance, little has been written in the academic literature about the experiences of unions and employers with the use of the card check organizing process. This Article seeks to fill this gap. We collected data on every organizing event the AFL-CIO publicly reported between 1998 and 2005. The list of events includes government-conducted elections, card checks, and other events. While the data are not exhaustive of all union organizing events, the data provide a more comprehensive view of the recent experience with card checks than other currently available sources. The data also allow us to evaluate some of the justifications that have been advanced in support of the proposed changes to existing law, as well as to explore the possible consequences of those changes.
Gely and Chandler are correct to point out that there is very little in the academic literature about this increasingly important method of union organizing. Their empirical findings are quite significant. They find, for example, that although card checks have not yet replaced traditional elections as the predominate method of union organizing, card checks have become extremely important for some particular unions, and in some particular industries.
Red Sox Strike
First my beloved Red Sox win another World Series and now they give me a great example to use in class. The Red Sox players voted unanimously today to refuse to play a spring training game to protest a compensation dispute involving their coaches. The matter was settled quickly and the game began after about an hour's delay.
Very briefly, the Red Sox and Oakland A's had agreed (in a split vote) to play some exhibition games in Japan. Apparently, they understood that their coaches would also receive the same $40,000 appearance fee that the players were getting for the trip. Once they learned that MLB did not intend to give the coaches that fee, the Red Sox unanimously voted not to play today or go to Japan until the matter was resolved. Not surprisingly, that happened very soon after the game was supposed to start. I don't know what the details of the ultimate settlement are, but I'm willing to bet that the coaches are getting exactly what the players thought they were entitled to.
Schaumber To Be New NLRB Chairman
No doubt recognizing that the Cubs have a better chance of winning the World Series than past Chairman Battista and the other pending NLRB nominations have of getting confirmed before the election, the administration has announced that it will designate a new chairman. The choice isn't a surprise, as the current two-member Board has only one Republican: Peter Schaumber, whose term extends to August 27, 2010. You can see the Board's press release here.