January 7, 2011
Profs Walk the Line at SF Hilton
We mentioned here that a group of law profs were protesting the Association of American Law Schools' (AALS) decision to hold its annual conference at the San Francisco Hilton, which is in the middle of an ongoing labor dispute. A resolution to discourage the AALS from holding future conferences at hotels with ongoing labor disputes was defeated yesterday afternoon. That didn't stop a group of profs from joining a picket line, as you can see here. Even as I type this, Jack Getman is preparing to speak at a law prof rally in support of the boycott, timed to coincide with the AALS presidential luncheon.
January 5, 2011
New NLRB Nominations
President Obama just sent two NLRB nominations to the Senate: Lafe Solomon for General Counsel and Terry Flynn for former Member Schaumber's Republican seat. Their bios, from the NLRB's press release:
Lafe Solomon, a career attorney at the National Labor Relations Board, was named Acting General Counsel of the NLRB by President Obama as of June 21, 2010. As the NLRB’s top investigative and prosecutorial officer, the General Counsel has supervisory authority over all Regional Offices and guides policy on issuing complaints, seeking injunctions, and enforcing the Board's decisions. Mr. Solomon began his NLRB career as a field examiner in Seattle in 1972. After taking a break to pursue a law degree, hereturned to the NLRB as an attorney in the Office of Appeals. He transferred to the Appellate Court Branch in 1979. In 1981, Mr. Solomon joined the staff of former NLRB Board Member Don Zimmerman, and in the coming years he went on to work for another nine Board Members, including Donald Dotson, Robert Hunter, John Higgins, James Stephens, Mary Cracraft, John Raudabaugh, William Gould, Sarah Fox and Wilma Liebman. Mr. Solomon received a B.A. degree in Economics from Brown University in 1970 and a J.D. from Tulane University in 1976.
Terence F. Flynn is currently detailed to serve as Chief Counsel to NLRB Board Member Brian Hayes. Mr. Flynn was previously Chief Counsel to former NLRB Board Member Peter Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the National Labor Relations Act. From 1996 to 2003, Mr. Flynn was Counsel in the Labor and Employment Group of Crowell & Moring, LLP, where he handled a wide range of labor and employment issues, including collective bargaining negotiations, litigation of unfair labor practices, defense of ERISA claims, and wage and hour disputes, among other matters. From 1992 to 1995, he was a litigation associate at the law firm David, Hager, Kuney & Krupin, where he counseled clients on federal, state, and local employment and wage hour laws, NLRB arbitrations, and other labor relations disputes. Mr. Flynn started his law career at the firm Reid & Priest, handling labor and immigration matters from 1990 to 1992. He holds a B.A. degree from University of Maryland, College Park and a J.D. from Washington & Lee University School of Law.
January 4, 2011
DOL Agencies to Host Web Chats on Regulatory Agendas
Officials at seven of the U.S. Department of Labor's agencies this week will host live Web chats and, in one case, a conference call to discuss their respective regulatory agendas. These events are open to the public and members of the press. The Labor Department's entire regulatory agenda was published in the Dec. 20, 2010, issue of the Federal Register.
- Tuesday, Jan. 4: Employee Benefits Security Administration Web chat, 2 to 3 p.m. EST.
- Wednesday, Jan. 5: Mine Safety and Health Administration conference call, 10:30 a.m. EST. Conference call-in number: 800-619-3527, passcode: 49374. Occupational Safety and Health Administration Web chat, 2:30 to 3:30 p.m. EST.
- Thursday, Jan. 6: Employment and Training Administration Web chat, noon to 1 p.m. EST. Wage and Hour Division Web chat 2 to 3 p.m. EST.
- Friday, Jan. 7: Office of Labor-Management Standards Web chat, noon to 1 p.m. EST. Office of Federal Contract Compliance Programs Web chat, 1:30 to 2:30 p.m. EST.
To participate in the Web chats, visit http://www.dol.gov/regulations.
Update on Law Profs and the Boycott at AALS
Rachel Arnow-Richman (Denver) writes:
A quick update on the events surrounding the Hilton boycott and a request for volunteers. As you know, Gary Peller, Karl Klare and Mike Seidman have been working tireless[ly] both to support Unite/HERE and to bring home the message to AALS about the need to respect the consumer boycott. At the moment they are looking for (1) attendees at a rally of law professors supporting the boycott on Friday during the AALS presidential luncheon, and (2) volunteers to participate on the line at other times during the conf in support of the union. Finally, we are also looking for faculty members to attend the AALS House of Representatives meeting on Thursday at 5:15 pm to support the Section’s resolution on hotel labor disputes. More details about each of these needs follows.
(1) The rally will take place Friday, Jan. 7 outside the Hilton from 12:25-12:45 pm. Professor Jack Getman will be speaking.
(2)Volunteers are also requested for the following time slots:
Wed. 1:30 p.m. to 2:30 p.m.
Thur., 8-9 a.m.
Fri. 8-9am, 11-12:15 p.m., and 1 to 2 p.m.
Volunteers are not asked to assume any organizational or leadership role. The aim is simply to ensure a law professor presence at other times during the conference. To volunteer please email Mike Seidman.
(3) On Thursday at 5:15pm, the House of Representatives will hold its meeting (located in the Embarcadero, 3rd floor, Parc 55). On the agenda is the resolution, co-sponsored by Gary Peller and myself offering a “sense of the community” that AALS should avoid scheduling any events in hotels under picket, boycott, strike, etc. Although this is a non-binding resolution, the Executive Committee has issued a strong memo to the delegates opposing adoption. A half hour has been allotted for discussion of the resolution at the meeting (beginning at 5:50 pm). Any AALS faculty member may attend, and I hope many of you will choose to participate.
For additional information about all of the various efforts and events being scheduled by and for law faculty in support of the union boycott, please go to here.
Recently Published Scholarship
- Justin C. Sorrell, Rehabilatative Employees and the National Labor Relations Act, 52 Wm. & Mary L. Rev. 607 (2010).
January 3, 2011
R.I.P. Eric Schmertz
During the past holiday and new years period, it came to our attention that labor arbitrator and former Dean of the Hofstra Law School, Eric Schmertz, had passed away. Although I never had the pleasure of meeting Eric, Mitch Rubinstein of the Adjunct Prof Law Blog wrote a moving tribute. Here are a few of his words:
The New York Times reported on December 22, 2010 that Eric Schmertz passed away at age 84, here. Eric was one of the most respect labor arbitrators in the country and certainly, in New York. He was involved in many major private and public sector cases. He also served as NYC Labor Commissioner, as a Member of the NYC Office of Collective Bargaining and as a Member of PERB. But public service was only a small part of his life.
May his memory be for a blessing for his family and friends.
First Annual American University Labor & Employment Law Forum Symposium: "The 'New' American Workday: How 9-5 has become 24/7"
Jennifer Brown, Editor-in-Chief of the Labor & Employment Law Forum at American University - Washington College of Law, sends us word about their First Annual American University Labor & Employment Law Forum Symposium: "The 'New' American Workday: How 9-5 has become 24/7."
The symposium will address the rampant expansion of the American workday. Presenters will discuss solutions currently available to regulate the length of the workday under the Occupational Health and Safety Act, the Fair Labor Standards Act, the National Labor Relations Act, and through collective bargaining. Panels will include discussions on the non-traditional workday, unpaid interns, domestic workers, compensation for the use of mobile devices, and several industry-specific concerns.
The symposium will be held on April 18, 2011 from 9 am to 5 pm in Room 603 of the American University Washington College of Law, located at 4801 Massachusetts Avenue, NW, Washington, DC 20016. There is no charge for registration, but registration is required. Online registration available at: https://www.wcl.american.edu/secle/cle_form.cfm. CLE credit is available for a fee of $95.00.
As part as this symposium, there is also a call for papers. The Forum will publish articles presented or related to this symposium. Articles may address one of the topics noted above. The Forum will consider traditional law review articles, as well as recent development pieces and shorter essays. The ideal length for submissions is 25 pages (double-spaced, including footnotes), although both shorter and longer submissions are welcome. Footnotes should be formatted according to the latest edition of The Bluebook.
Accepted articles will appear in Volume 1, Issue 3, with expected publication shortly after the symposium takes place. Submissions will be accepted for publication based on both the quality of the article and the Forum's publication restraints. The Forum ultimately reserves the right to make offers of publication to papers submitted. Please note that in order to meet publication deadlines, no articles submitted after February 1, 2011, will be considered for publication. Submissions will be accepted through ExpressO as well as e-mail. All essays, articles, and questions regarding publication can be emailed to firstname.lastname@example.org.
January 2, 2011
AALS Labor & Employment Dinner
There is a dinner scheduled for L&E folks at the AALS Annual Meeting. It will be after the Labor Relations and Employment Law program on Friday, January 7, with people meeting at nearby First Crush at 6:30. The cost is $63.82 (less expensive than the cancelled lunch at the Hilton) for a three course dinner, a glass of wine or beer, taxes, and tip; you can see the menu in the following link and special dietary needs can also be accomodated (Download Dinner Menu First Crush). Please let Ann McGinley know by email (email@example.com) ASAP if you plan on attending, as she needs to know the numbers by Tuesday to maintain our reservation.
Public-Sector Unions Feeling More Pain
Across the nation, a rising irritation with public employee unions is palpable, as a wounded economy has blown gaping holes in state, city and town budgets, and revealed that some public pension funds dangle perilously close to bankruptcy. In California, New York, Michigan and New Jersey, states where public unions wield much power and the culture historically tends to be pro-labor, even longtime liberal political leaders have demanded concessions — wage freezes, benefit cuts and tougher work rules.
It is an angry conversation. Union chiefs, who sometimes persuaded members to take pension sweeteners in lieu of raises, are loath to surrender ground. Taxpayers are split between those who want cuts and those who hope that rising tax receipts might bring easier choices.
And a growing cadre of political leaders and municipal finance experts argue that much of the edifice of municipal and state finance is jury-rigged and, without new revenue, perhaps unsustainable. Too many political leaders, they argue, acted too irresponsibly, failing to either raise taxes or cut spending.
A brutal reckoning awaits, they say.
This is bad news, and it's only going to get worse. It's terribly unfortunate that unions are being scapegoated for politicians' past and present underfunding of pension and benefit accounts.
For the entire article, see Public Workers Facing Outrage as Budget Crises Grow.
A MacNeil Labor Law 2-Fer
Michael MacNeil (Carleton U) has just posted on SSRN a pair of articles on Canadian Labor Law that will be of significant interest to U.S. labor law scholars also. The first is Freedom of Association in a Free Enterprise System: Wal-Mart in Jonquière (vol. 15, 2010, Canadian Labour and Employment L.J.), and the second is Solidarity, Unconscionability, and Enforcement of Union Fines: Birch v. Union of Taxation Employees, Local 70030 (Canadian Bus. L.J., vol. 49, 2010).
Here are the respective abstracts:
Freedom of Association
After a union was certified to represent employees at a Wal-Mart store in Jonquiere, Quebec, in 2004, the union and Wal-Mart bargained to impasse. When the union obtained an order requiring that the dispute be submitted to arbitration, Wal-Mart announced that it would close the store and subsequently did so. The union and the dismissed employees initiated a range of unfair labour practice complaints challenging the closing and the dismissals. Two of these complaints were eventually reviewed by the Supreme Court of Canada in 2009, and in the leading decision in Plourde v. Wal-Mart, the Court concluded that no remedy was available to the dismissed employees under certain sections of the Quebec Labour Code which provided for reinstatement where workers have been dismissed for exercising rights under the Code. This paper first examines Wal-Mart’s well-documented pattern of resistance to unionization. It then considers whether the majority’s position is defensible in the light of the wording of the Quebec statute, the Court’s previous commitment to the purposive interpretation of statutory unfair labour practice provisions, and its recent commitment to protecting collective bargaining as an important derivative of the guarantee of freedom of association in the Canadian Charter of Rights and Freedoms. Particular attention is paid to the origins of the idea, especially in the United States, that an employer has the right to close a business even in order to avoid a union, and to how that idea has been addressed by labour boards across Canada.
In the case of Birch v. Union of Taxation Employees, Local 70030, the Ontario Court of Appeal refused to enforce a disciplinary fine imposed on union members who had crossed a picket line established in support of a legal strike. The union had followed all of the applicable constitutional rules in imposing the fine, but the Ontario Court concluded that enforcement of the fine would be unconscionable. This case comment explores the Court’s reasoning, noting a move towards the use of unconscionability as the ground for limiting enforcement of penal contractual clauses, rather than an outright rejection of such clauses. It nevertheless notes that the Court’s reasoning leaves a number of unanswered questions, including whether unconscionability should be determined at the time of contract formation or in the context of the contractual breach, and whether all union fines would be considered unconscionable, or just the ones imposed in this case. The comment notes the unique nature of a union constitution as a contract, and describes other alternatives, such as the legislative scheme in Saskatchewan, that might permit the enforcement of reasonable union fines.