November 20, 2012
Secunda & Hirsch, Labor Law: A Problem Based Approach
Congratulations to Paul and Jeff on their new book, Labor Law: A Problem Based Approach (LexisNexis 2012), complete with video promotional materials.
From the more traditional promotional materials:
Labor Law: A Problem Based Approach covers the essential introductory labor law topics on organizing, collective bargaining, and concerted activities. It also includes materials for advanced labor law classes on topics such as: individual rights in a labor union, union security clauses, and federal preemption. The problem-based approach of this exciting new Book provides practical experience to students in the day-to-day practice of labor law.
Labor Law: A Problem Based Approach emphasizes recent labor law developments and controversies including: NLRB election and posting rules, the Boeing controversy, and recent attempts at labor law legislative reform. And, it is also highly interactive with hyperlinks to blogs, law review articles, government web sites, and other digitized sources.
The authors of Labor Law: A Problem Based Approach bring more than twenty-years of combined experience in practice, teaching, and scholarship in labor law to the book. Professor Hirsch is former appellate attorney for the National Labor Relations Board, while Professor Secunda is former management-side labor law attorney at several major law firms.
Recording RantsThe ubiquity of devices capable of recording conversations gives renewed importance to surreptitious taping, although in most states it remains legal for one participant in a conversation to record it
without informing the other. But in those states (about a dozen) where it is not legal, issues touching on the employment relationship will continue to arise. Memories of Linda Tripp. Last month, Carroll v. Merrill Lynch, was handed down by the Seventh Circuit involving unauthorized taping under an Illinois statute.
While the backstory is more involved, the case boiled down to the recording of a profanity-laced phone tirade on Thanksgiving by one Merrill Lynch employee to another at his home. The latter’s wife recorded the call, and she and her husband played it back at Merrill the next day before reporting it to the police. Merrill promptly fired the caller, who promptly sued Merrill and the husband and wife.
The claim against the couple was violation of the Illinois law prohibiting recording without consent of all parties. Plaintiff’s claim against Merrill was based on the theory that Merrill violated the statute when its agent requested and listened to the previously recorded conversation. Merrill successfully argued that, because the originally recordation was exempt from the statute, the subsequent playback was also exempt.
Anyhow, the court affirmed summary judgment against the plaintiff because Illinois has a statutory exception allowing recordation when the recording party has a reasonable suspicion that a crime is being, or is about to be, committed. Given the extremeness of the plaintiff’s language, the
court found that the wife fell within that exception.
There are a number of subsidiary issues that might be worth exploring in another setting, but the main take-away from the opinion is that it's dangerous -- even if not necessarily wrongful -- for employees to record threatening conversations from co-workers in a number of states. And it is dangerous -- but not necessarily wrongful -- for employers to act on the basis of such conversations.
From the employer’s standpoint, maybe the safer course would have been not to listen to the recorrding but rather to ask the caller about it. After all, the contents of the call are fair game even if the recording isn’t. That said, it might be too much to ask a manager to forebear listening to this kind of thing while HR and Legal figure out whether it’s appropriate to do so.
As important, some other state eavesropping laws -- Delaware, Florida, Maryland, Massachusetts,
Montana, New Hampshire, Pennsylvania -- all lack an express “fear of crime” exception (although one might be judically added).
Thanks to my RA, Allison Martin, for her help on this.
November 19, 2012
Wal-Mart's Union Worries for Black Friday?
In a sign that recent union campaigns against Wal-Mart are beginning to have an effect, Wal-Mart has just filed a charge with the NLRB asking for an injunction against planned Black Friday pickets at the company's stores. Wal-Mart's argument is that the union--more precisely, one of its alleged affiliates--is conducting these pickets as part of a demand for representation. Based on what I've read thus far, I don't see it, but check out this article from the Nation which, no matter your view on the topic, provides a very good description of the issues, including quotes from a who's-who lineup. An article by Steven Greenhouse is worth reading as well. Finally, Michael Duff points out this video related to the protests.