Workplace Prof Blog

Wisconsin Recall Post-Mortem: Implications for Labor

As one of the few labor law professors here in the State of Wisconsin, and as a close election watcher, I think it is incumbent upon me to give my two cents on the meaning of the Walker recall election for the labor movement in Wisconsin and in the United States.

Although Governor Walker survived the recall with a 53%-46% margin, there are a number of points I wish to emphasize:

1) First and foremost, the Citizens United decision played a huge role.  Walker raised some $31 million for the recall (much from out-of-state billionaires like the Koch Bros) while Barrett raised only $ 4 million. Given the 8-1 disparity in spending, perhaps it is surprising that there was a not a bigger win for Walker.  Also, these numbers belie the sometime allegation of conservatives that unions are raking in huge sums of cash through union dues.  Citizens United primarily favors large corporate donors, plain and simple.

2) I think that the result might have been more about the recall process then saying anything about Walker's agenda or labor's future.  Truth be told, a good segment of the Wisconsin electorate never bought into the idea that a recall was appropriate even if they were against Walker's policies (exit polls from Wisconsin show that 60% of voters think recalls are inappropriate except for malfeasance -- not just when you disagree with policies).   Indeed, when one considers that 19% of Walker voters (according to exit polls) were planning to vote for Obama in November, that makes a lot of sense if one considers that people do not like special process elections like the one we had last night.  So, in short, surviving a recall is not the same as winning an election.

3) Union voters came out in droves to vote (from 26% of electorate in 2010 to 32% of the electorate last night). Yet, and this is important, the labor vote was not monolithic.  Some 36% of union voters (again, according to exit polls) voted for Walker.  Many union members, especially those in the police and firefighter union are Republicans, so no surprise there. But there is anecdotal evidence tha some union members who did not approve of Walker's anti-labor policies, still voted for him in the recall, saying that a recall was not the appropriate process given the situation.  Again, the recall may be more about people being against special process elections than anything else.

4) Silver linings?  Two.  (a) Obama did very well in exit polls (winning 45%-38%) among the voters. Although Obama has been far from a great President for labor, he is still a much better option for labor types than Romney; (b) the State Senate flipped back to Democratic control which means even though the Senate has no planned sesssions for the rest of the year, Walker will be unable to hold special sessions to discuss right-to-work legislation and other conservative agenda items. However, elections occur in Nov. 2012 again for all state assembly seats and some state senate seats, and the important thing for Dems will be to hold the Senate majority for Jan. 2013. If they can, Walker's agenda will be dead in the water for the last two years of his governorship.

5) What does the recall mean for Walker?  Although some say he should be emboldened and bolstered by the victory, his victory speech last night sounded a conciliatory tone. Whether his words are sincere or they result from his realizing that he can't govern by fiat anymore, is anyone's guess.  He also might recognize that he is very much the target of a John Doe investigation and still may be indicted.  Either way, I doubt that he is a viable Vice President candidate given his pending legal issues, his polarizing nature, and the unlikelihood that Romney could win Wisconsin.

6) Finally, what impact, if any, does Walker's recall victory have on other states considering similar labor law reforms. Personally, I think the impact will be small. If anything, the lesson of Wisconsin is that one can get more bees with honey than vinegar. Although most of Walker's labor reforms remain in place (though legal challenges are still pending), Walker, and allied state Senators, have had to endure a year's worth of recall efforts that wasted their time and money.  For other Governors contemplating similar changes, the lesson should be not to go Walker's route if they want to avoid the problems that he has faced. One also has to remember that the Wisconsin recall did not take place in a vacuum and that just last November, Ohio voters resoundingly defeated an anti-collective bargaining bill. So, I think the ripple effects will be miminal in other states from this recall, given the totality of results across the states, and we won't know for sure how aggressive GOP Republican governors will be on the labor front until the voters have spoken again in November.

So, in all, not a good night for Democrats and their labor allies in Wisconsin.  A fatal blow? No. Unions, private and public, will live to fight another day. Union values are too important for many in Wisconsin and elsewhere in the country. And at the end of the day, 1.1 million Wisconsonites voted to recall one of the nation's most anti-labor, pro-corporate Governors in the country.

Am I making lemonade out of lemons? Perhaps. But it would be mistake to draw too many definitive conclusions for the labor movement or for the Presidential election in November based on the Wisconsin recall experience.

PS

Mom Enough

Lisa Belkin's commentary, No, I Am Not Mom Enough in response to Time Magazine's cover featuring a woman who breastfeeds her three-year-old son with his mouth on her breast, is well worth a read. So is this one on Jezebel.

MM

Secunda on the Wisconsin Public Labor Dispute

Our own Paul Secunda (Marquette) will be speaking at the Centre for Labour Management Relations of Ryerson University in Toronto on April 16. From the school's website advertising the event:

The enactment in June 2011 of Wisconsin Act 10, legislation that eliminated most collective bargaining rights for most public employees in Wisconsin, did not necessarily follow from the economic conditions surrounding the global recession. The argument here is that it was a blatant power grab with political, social and economic implications. Governor Walker's claim that Act 10's anti-collective bargaining approach was required to balance Wisconsin's budget is belied by two unassailable facts.

First, there were a number of provisions in the law, including an annual union recertification requirement and an anti-dues checkoff provision, which had absolutely nothing to do with cost-savings.

Perhaps even more tellingly, when Act 10 was finally enacted by the State Legislature, Walker and his allies employed a legislative procedure which could only be utilized if Act 10 did not have any impact on state fiscal policy. In short, Governor Walker used the global economic crisis, and Wisconsin's budget situation more specifically, as a ruse to enact a punative bill against public sector unions.

Although unions and their allies have drafted, and continue to draft, procedural and substantive legal challenges to Act 10 based on state open meeting laws and constitutionally-based freedom of association and equal protections provisions, these legal challenges have so far been unsuccessful. If such efforts continue to be unsuccessful, it indeed may be a long time before any real public sector collective bargaining will be permitted in Wisconsin. The subsequent loss of workplace rights not only adversely impacts public sector workers, but also the citizens of Wisconsin who will be that much poorer for having to live in a society where internationally-recognized rights of association and collective bargaining are not taken seriously.

MM

Wasserman on Hosanna-Tabor and Jurisdiction

And in keeping with the federal courts/Supreme Court theme, Howard Wasserman (Florida International) has a really interesting essay on the Supreme Court's holding in Hosanna-Tabor Lutheran School v. EEOC that the ministerial exception is not jurisdictional in PENNumbra: Prescriptive Jurisdiction, Adjudicative Jurisdiction, and the Ministerial Exception. From the introduction:

Hosanna-Tabor correctly characterized the ministerial exemption as a limitation on the merits of the employment discrimination claim.  I repeatedly argued for this position before the Court entered the mix, including in this Essay, which was written and accepted for publication in October 2011 (before the Court discovered unanimity and thus was able to decide the case fairly quickly).  But the Court’s jurisdictionality footnote was entirely conclusory, failing to explain why the issue controls whether the plaintiff’s allegations entitle him to relief rather than whether the court has power to hear the case.

It thus remains to unpack why the exemption is, in fact, a merits doctrine.  First, doing so demonstrates the correctness of the conclusion in  Hosanna-Tabor, putting to rest any normative dispute on the issue.  Second, mischaracterization of the ministerial exemption resulted from the same category errors that plague characterization of other legal issues; this issue illustrates nicely the routine conflation of jurisdiction and merits and courts’ failure to maintain clean lines between doctrines and underlying concepts. While the Court’s conclu-sion that the exemption is merits-based might be enough to signal lower courts on future jurisdictionality issues, actual analysis and explanation may better enable them to understand and recognize the limits of what goes to jurisdiction and, inversely, the breadth of what goes to substantive merits.

This Essay, I hope, provides that analysis.

I haven't had a chance yet to read the whole thing carefully, but what I've seen so far is a great discussion of an issue vexing to courts, litigants, and scholars alike.

MM

What the Experts are saying …. Ken Dau-Schmidt

Today, begins the start of a series of workplace law professor essays on the Restatement of Employment Law. These essays stem from a meeting of law professors in Chicago in November to discuss the on-going Restatement project.  Each of these essays are from individuals who spoke at the conference. In addition, Chief Reporter Sam Estreicher and his Associate Reporters have been invited to submit their own expert essays and may do so in the future.

PS

We begin today with Professor Ken Dau-Schmidt of the Indiana-Bloomington (Maurer) Law School:

On November 18-19, 2011, a group of labor law experts gathered to provide the second critique on the Restatement of Employment Law Project of the American Law Institute.

This conference taking place at the American Bar Foundation in Chicago, follows a previous conference held at Hasting Law School in February 2009.

When the first draft of the proposed restatement came out in 2006, the Labor Law Group sponsored a session on the ALI’s proposal at which both Mike Harper and Matt Finkin spoke.  After that session, there was sufficient concern among the experts in the field about the project that the Labor Law Group drafted a petition requesting reconsideration of the project and circulated it among members of the academy. The petition signed by sixty-two members of the legal academy was submitted to the ALI membership at their annual meeting.  The petition did not result in a major rethinking of the project; it did result in postponement of the approval of the initial draft by the ALI membership for one year. 

The Labor Law Group used that year to plan the Hastings conference and provide a more detailed critique of the ALI drafts up to that date. Working committees addressed the issues raised in Chapters 1, 2, and 4 of the proposed Restatement.  The resulting papers were published in 13 Employee Rts & Employment Policy J. (April 2009).  The ALI reporters and advisors were all invited to attend the Hastings conference and participate in the discussion.  Although none of the reporters attended the Hastings meeting, the meeting was attended by one member of the Council and a number of the projects’ advisers. Later, Timothy Glynn, Mike Zimmer, and Charlie Sullivan put together a panel at Seton Hall where the reporters heard some of the criticisms. 

These several critiques yielded criticisms of two general forms.

The first form of criticism was that the project was in some way fundamentally misguided.  For example, several commentators argued that the employment relation is evolving so quickly that it is too early to take a meaningful look backward in a Restatement.  These critics argued that a restatement at this time could not capture the dynamic changes in the law, or worse might serve to discourage further evolution of the law.  Others argued that the restatement project was fundamentally flawed because it had no unifying theme or theory to motivate a restatement of employment law that would be separate and complete.  The argument is that, in order to get a restatement of employment law that is internally consistent and consistent with the other related restatements of contract tort and agency, one would have to discuss why employment law is distinct from other areas of law and why a separate restatement would be needed by considering the underlying purpose of employment law.  Some went so far as to propose unifying principles around which employment law could be organized.  Alan Hyde said that the field could be unified around the idea of protecting employees’ rights.  Matt Finkin said that the field could be unified around the principle of protecting employees against exploitation because they typically have less power in the employment relationship.  The reporters and membership of the ALI have decided not to follow these advisory opinions and suggestions.  Thus there is currently no unifying theory among the various chapters that are proposed. 

The second form of criticism has been to consider the project on its own terms, in other words, to assess how well the reporters are doing in drafting a restatement of employment law that accomplishes what the ALI purports to do through restatements. 

I went back and looked at the ALI’s Reporters’ handbook which sets for the ALI’s objectives for reporters in drafting a restatement.  The general statement of these objectives is that in its restatements, the ALI seeks an authoritative consensus, among academics, practitioners and judges, on what the law is or on what it ought to be that is both internally consistent and consistent with other restatements.  In other words the ALI is seeking both a positive statement of what the law currently is, as well as a normative or aspirational statement about what the law should be.  Although the reporters should generally follow the doctrine in the majority of states, where it is necessary to make the restatement logical and consistent, both internally and with other restatements, the reporters can choose the “better rule” even where it is the minority rule, or does not yet exist in the common law. 

Trying to draft an appropriate positive restatement of the law among 50 odd jurisdictions is difficult enough, let alone figuring out what the law “ought” to be.  One narrow view of the normative objective would be to merely simplify or make consistent the common law.  In this case the approach would be to make small little changes “hammering out the dents” in the law in order to produce consistency.  However there is also a broader view of the normative role that the proposed Restatement can choose the minority rule if it proves to be logically better, and certainly if there is a trend in that direction.

            So far the critics have had more luck in critiquing the draft restatement on its own terms. The most visible success is in the area of the doctrine of the “inevitable disclosure” of trade secrets, which is now omitted from the restatement draft.  The reporters have also adopted a very limited form of the doctrine of self-publication of defamation in the employment context in response to criticisms that were made at the Seton Hall conference. Also at Seton Hall, a lot of criticisms were focused on privacy concerns and how to make a common law right to privacy real and meaningful when the employer can easily get consent from employees and because the employer can shape the employees’ expectations of privacy.  Matt Bodie has now added a section on employee to the privacy draft, so there has been some movement in response to this criticism.  Bodie’s draft on employee autonomy has little express basis in existing cases which poses an interesting question of the tension between the positive and the normative purposes of the ALI restatement.  Should the critics be happy that Bodie’s draft now makes more sense than the common law on the subject, or criticize it because it does not have adequate support in existing cases?

*************************************************************************

As Matt Finkin has said, a restatement of employment law will inevitably be a “dog’s lunch” of odds and ends which might not be that appealing, but as Charlie Sullivan has said the question is how to make that lunch as palatable as possible.

Secunda talks to Marketplace

Our own Paul Secunda was interviewed today on NPR's Marketplace. In Can Verizon hear them now? | Marketplace From American Public Media, the topic was the Verizon strike, now on day 3. The story also lays out the high profits Verizon has been making, and the split between the landline and wireless business. Paul points out that the union is fighting for the middle class and against rising inequality. Listen to the whole thing or read the transcript for more. 

Great points and congratutions.

MM

SEALS Recap

One of the best things about the annual conference of the Southeastern Association of Law Schools (besides the lovely environs) is the Labor and Employment Law programming, and this year was no exception. There were three panels and a discussion group all devoted to labor and employment issues. Each one gave us lots to think about, and the level of discussion was excellent. Feel free to chime in with additional impressions (for those who were there) or questions in the comments.

On Thursday was:

• Collective Bargaining Issues as Several Sports’ Labor Contracts Expire
  • Moderator: Professor Jonathan Cardi, Wake Forest University School of Law
    • Speakers: Professor Gabriel Feldman, Tulane University Law School; 
    • Professor Robert Barry, Boston College Law School; 
    • Professor Timothy Davis, Wake Forest University School of Law; 
    • Professor William Gould, Stanford University School of Law

Then on Friday, 

• The State of Labor and Employment Law in Light of Recent Supreme Court Decisions
  • Moderator: Professor Jeffrey Hirsch, University of North Carolina School of Law
    • Speakers: Professor Theresa M. Beiner, University of Arkansas at Little Rock, William H. Bowen School of Law;
    • Professor Henry Chambers, Jr., University of Richmond School of Law;
    • Professor Cynthia Nance, University of Arkansas School of Law;
    • Professor Suzette Malveaux, The Catholic University of America: Columbus School of Law;
    • Professor Marcia McCormick Saint Louis University School of Law

• Discussion Group: Should Employment Claims Continue to Be Arbitrated?
  • Moderator: Professor Ariana Levinson, University of Louisville, Louis D. Brandeis School of Law
    • Discussants: Professor Richard Bales, Northern Kentucky University, Salmon P. Chase College of Law;
    • Professor Kristen Blankley, University of Nebraska College of Law;
    • Professor Thomas Burch, The University of Georgia School of Law; 
    • Professor Andrea Doneff, Atlanta's John Marshall Law School; 
    • Professor Michael Green, Texas Wesleyan University School of Law; 
    • Professor Dennis Nolan, University of South Carolina School of Law; 
    • Professor Marcia McCormick, Saint Louis University School of Law; 
    • Professor Kathryn Sabbeth, University of North Carolina School of Law; 
    • Professor Steven Ware, University of Kansas School of Law; 
    • Professor Michael Yelnosky, Roger Williams University School of Law

• Twombly & Iqbal in the Workplace
  • Speakers: Benjamin Cooper, The University of Mississippi School of Law; 
  • Professor Suzette Malveaux, The Catholic University of America: Columbus School of Law; 
  • Professor Joseph Seiner, University of South Carolina School of Law; 
  • Professor Suja Thomas, University of Illinois College of Law

I missed Thursday's panel, so I can't comment on the focus of that discussion, but if any readers were there, please chime in in the comments. Friday's summary of the Supreme Court cases focused on North American Stainless, the third-party retaliation case, Staub, the cat's paw case (and we all agreed that was a terrible analogy); Whiting, Arizona's immigration-employment law case; Wal-Mart, the gender class action, and Concepcion, the arbitration case. Not only was each case interesting on its own, but the comparison and contrasts between them were fascinating.

The arbitration discussion group had a very broad focus on how arbitration works or should work in the employment law (rather than labor) context. Discussants came from a variety of perspectives, and the discussion involving members of the audience was especially interesting. It is not clear that management or employee advocates are as interested in arbitration as they once were.

Finally, the panel on Iqbal and Twombly was very illuminating about the effects those decisions have had on employment discrimination cases. Maybe not surprisingly, employment discrimination case dismissals have risen significantly at a greater rate than other types of cases since Twiqbal, as the two Supreme Court decisions have come to be known. At the same time, the conditions may be getting riper for rule reform in the next few years to reverse those effects.

MM

Feuer on CIGNA v. Amara and the Use of ERISA §502(a)(1)(B) to Enforce Benefit Terms Used in SPD

Albert Feuer, a friend of the blog, brings to our attention his new brief article, “CIGNA v. Amara: Supreme Court Unconvincingly Rejects Use of ERISA §502(a)(1)(B) to Enforce Benefit Terms Used in SPD.” This article appeared in the July 18, 2011 issue of the Tax Management Weekly Report. 

Unlike most other commentators, Albert does not focus on the scope of the relief the Supreme Court majority held was available, but rather on the relief all the participating Justices seemed to hold was unavailable. 

The abstract may be found at http://ssrn.com/abstract=1889404.

PS

Lurie on the ERISA case of Cigna Corp. v. Amara

Alvin Lurie recently prepared a critique of the Breyer and Scalia opinions in U.S. Supreme Court ERISA case of Cigna Corp. v. Amara.  This piece was initially posted as a “guest article” on BenefitsLink. Here is the link and a snippet:

The CIGNA decision (CIGNA Corp. v. Amara et al., 2011 U.S. LEXIS 3540, 179 L.Ed.2d 843), handed down by the Supreme Court on May 16, did not have the trappings of a cause celebre — just a holding under ERISA that misstatements in the summary plan description of a pension plan did not provide the grounds for a recovery at law. The holding of the Court was unanimous, all eight justices participating in the decision agreeing on the SPD issue. (The 6–2 division of the Court noted in the title of this article did not pertain to the SPD issue, but rather to a minority view of the grounds on which the decision should — or, more accurately should not — be rested.) The SPD holding in itself may be surprising to some, perhaps, albeit not earth-shaking. But the 6–2 split of the majority and concurring opinions will cast a long shadow, and might even foretell a breakdown in the exquisitely detailed and compartmentalized provision of civil remedies available for the enforcement of ERISA's "reticulated" provisions (to recall the Supreme Court's eloquent term for ERISA on one of its first encounters with the statute in the leading Nachman case). Therein lies the real interest in and importance of the case.

Check out the whole piece. Very interesting.

PS

More Commentary on Wal-Mart

Great commentary on Wal-Mart continues to be posted. Check out this contribution by Michael Waterstone (Loyola). He has some excellent points, including this one,

an important undercurrent is the divergent views on the role of employment discrimination and the acknowledgement of unconscious bias. Justice Ginsberg explicitly acknowledges unconscious discrimination and stigma as providing the glue to allow widespread discretion to open the door for company-wide bias ("The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects. Managers, like all humankind, may be prey to biases of which they are unaware"). Justice Scalia, on the other hand, seems unwilling to move beyond anything less than a formal policy of discrimination on a group-wide basis, suggesting that managers will generally follow policies and not discriminate ("Surely most managers in a corporation that forbids sex discrimination would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all.").

Read the whole thing for more!

MM

Wal-Mart Commentary Roundup

After yesterday's decision, there have been a bunch of great editorials and commentary by Workplace Profs. Among them, this piece by Nancy Levit (UMKC) and Naomi Cahn (George Washington) in the Huffington Post. The NY Times Room for Debate hosted several great short pieces too. Suzette Malveaux (Catholic) on the backpay issue; Matt Bodie (SLU) on the Court's desire to get employment cases out of the courts; Ralph Richard Banks (Stanford) on group equality; John Elwood (advisor to the SCOTUS Litigation Clinic, Virginia) on why the decision was not surprising; Tanya Hernandez (Fordham) on Wal-Mart being too big to sue; Richard Primus (Michigan) on the Court's push away from a structural view of discrimination; and Melissa Hart (Colorado) on the Court's hostility to discrimination cases.

Nice work and congratulations to all!

MM

Fischl on “Running the Government Like a Business”: Wisconsin and the Assault on Workplace Democracy

Michael Fischl (UConn has published in the Yale Law Review Online a timely and must-read piece: “Running the Government Like a Business”: Wisconsin and the Assault on Workplace Democracy.

(Michael helpfully points out to those with middle-aged eyes that the downloadable pdf version is infinitely easier to read, though the footnote formatting is not nearly so nifty.)

Michael's fundamental point, with which I wholeheartedly agree, is that, "the stakes in Wisconsin have less to do with the bona fides of budget crises and benefits packages than with something a great deal more fundamental: the struggle between democratic governance and authoritarian control in the American workplace."

Read the whole piece. Well worth the time. I guarantee this: Michael will challenge the way you think about this issue.

PS

Stone on Publicity as a Mechanism of Social Change

Kerri Stone (Florida International) has a very thought provoking post at PrawfsBlawg about employment discrimination and the power of publicity. She recounts a story from Long Island that began as a letter and a post on one woman's blog, a post about the harassment and constructive discharge of a gay employee at a Long Island Starbucks she witnessed. The post went viral, and Starbucks has pledged to investigate and take any steps necessary to remedy the problem.

The statements of the supervisor and other employees who participated in the incident focused on their hostility to his openness about being gay and who he was dating. If this employee lived in most other states, he could try to make a claim under Title VII, that his supervisor objected to his conduct only because he was male--that a woman who dated men would not have been subject to harassment and discharge. These cases are challenging, though, given the reluctance of courts to allow Title VII to be construed to protect on the basis of sexual orientation. (For example, see Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006). New York, though, makes this case easier by prohibiting discrimination on the basis of sexual orientation as well, so that it will not be as difficult for him to demonstrate that he was harassed because of his protected status.

Kerri's point in her post (you should read the whole thing) focused on the power of public scrutiny to make change. I wholeheartedly agree (and have said so here and here, and will say so again soon at least a couple more times). No matter what the cause of discrimination -- animus, intolerance, ignorance, implicit biases -- shining a light on the behavior is one of the things, sometimes the only thing, that can shift the underlying attitudes that caused the person to act. If only we could provide this kind of scrutiny more often in a way that doesn't simply get lost in all of the noise out there from the 24-hour news cycle and social media.

MM

Adams on Canadian Fraser Freedom of Association Case

The Supreme Court of Canada handed down the Fraser farmworker freedom of association decision last week. Roy Adams (McMaster (Hamilton, ON) has graciously agreed to share his thoughts about the decision on this blog.

Here's a taste:

On April 29th the Supreme Court of Canada finally handed down its decision on the bargaining rights of Ontario farm workers. In Ontario (Attorney General) v. Fraser the court split 5-2-1-1. Lots of descriptions of the various opinions will no doubt soon appear on the web. This comment focuses almost entirely on the majority decision.

The majority overturned the decision of the Ontario Court of Appeal written by Ontario Chief Justice Warren Winkler. That court had ruled Ontario’s Agricultural Employees Protection Act (AEPA) to be unconstitutional because it did not provide for union recognition based on “majoritarian exclusivity,” the general principle found in labour relations acts across the country, and because it failed to specify a dispute resolution mechanism for disputes over contract negotiations and for the settlement of contract interpretation disputes and because it did not explicitly contain provisions requiring good faith bargaining.

In its Fraser decision, the Supreme Court found that Judge Winkler had gone too far in requiring the province to legislate the major provisions of the “Wagner Act Model” found in general private sector labour legislation across the country. The major deficiency that the majority found in the AEPA was the absence of a clause that explicitly requires agricultural employers confronted by “representations” made by an employee association to engage in a “good faith” process. The majority of the court “affirmed that bargaining activities protected by s. 2(d) [the Charter’s freedom of association clause] in the labour relations context include good faith bargaining on important workplace issues...” which are “not limited to a mere right to make representations to one’s employer, but requires the employer to engage in a process of consideration and discussion to have them considered by the employer.” (para. 40). The majority went on to say that “One way to interfere with free association in pursuit of workplace goals is to ban employee associations. Another way, just as effective, is to set up a system that makes it impossible to have meaningful negotiations on workplace matters.” (para 42) . . . .

My reading of the majority decision is that the Tribunal is now required to assess any dispute about the operation of the relevant paragraphs against the bargaining in good faith guidelines outlined by the SCC in Health Services (2007). “Section 2(d),” the majority in Fraser said referring to Health Services, “requires the parties to meet and engage in meaningful dialogue. They must avoid unnecessary delays and make reasonable effort to arrive at an acceptable contract...” (41) Although in referring to the operative clauses in the AEPA 5(6) and (7), the majority conservatively said that “any ambiguity” should be “resolved by interpreting them as imposing a duty on agricultural employers to consider employee representations in good faith,” they also said (again referring to general principles established in Health Services) that 2(d) creates a “right to collective bargaining.” Although some employer-side law firms are making much of the phrase “consider employee representations in good faith,” I think that when read in its entirety the decision means that the government, through the Tribunal, must do more than require the employer to read demands “in good faith,” say “no” and move on.

You can read the rest of Roy's insightful comments about this important decision on worker's freedom of association rights at this link.

PS

the Supr Crt of Canada handed down its farmworker freedom of assn decision last week. Yesterday I posted a comment on line about that decision.

Secunda on NLRB's Complaint against Boeing

Congrats to our own Paul Secunda whose letter to the editor appeared on Friday in the Seattle Times. Responding to an editorial by Kathleen Parker that appeared earlier in the week, which called the complaint "political" even though retaliating against unions is "technically" a violation of the law and analogized the move to the civil war, Paul points out that all the NLRB is doing is enforcing a fairly straightforward violation of federal law. Great point, Paul!

MM

Secunda on Doorey: Transnational New Governance

  Our own Paul Secunda has a nice post at Jotwell (Journal of Things We Like Lots) reviewing David Doorey's (York Univ.) article, In Defense of Transnational Domestic Labor Regulation, 43 Vand. J. Transnat'l L. 953 (2010). Here's a bit from the post:

In his new paper, In Defense of Transnational Domestic Labor Regulation, Professor David Doorey has written a meticulously footnoted and researched article on an important issue that is increasingly facing modern democratic economies: to what extent should such countries seek to use their influence to improve labor practices in economically-developing countries?  As Doorey explains, the answer is not as simple as merely deciding you want a labor side agreement to the latest free trade agreement.  No, in addition to more formal legislative enactments, Doorey thoroughly explains the developing trend of using techniques which exist outside of formal state action, but nevertheless serve to influence and regulate working conditions and employer-employee relationships in third-world countries.

Paul critiques some of David's conclusions about the feasibility of this approach for protecting labor standards. Read both Paul's post and David's article--they're excellent.

MM

Hart & Secunda in NYT

Congratulations to Melissa Hart (Colorado) and our own Paul Secunda (Marquette), whose 2009 Fordham Law Review article on social framework evidence was quoted heavily in a New York Times article on Wal-Mart v. Dukes, which the Supreme Court will hear tomorrow. The article focused on the use of sociology and expert testimony by William Bielby (U. of Ill. at Chicago) in the class certification decision.

Great work!

MM

More on the Triangle Fire and Workers Today

As Jeff noted yesterday, today is the 100th anniversary of the fire at the Triangle Shirtwaist Factory in New York City. It was the largest industrial accident in NYC history, and I think remains the second largest industrial accident in U.S. history.

With this anniversary come a number of excellent documentaries on the subject. Earlier this month, PBS's American Experience series (from WGBH in Boston) explored the fire, and you can watch that program and access many original materials here. HBO also has a documentary on the fire, and its website provides links to useful resources as well. For more in the way of documents, if you're interested, check out Cornell's ILR School site devoted to the fire, and UMKC has documents from the trial of the factory owners as part of its famous trial series online. The tragedy helped to mobilize people to push harder for protective labor legislation in New York and across the country, efforts that had already been underway, but which gained significantly greater momentum.

This anniversary is particularly interesting juxtaposed against today's current labor climate. We have the examples of the recent legislative efforts to strip public workers of collective bargaining rights in a number of states, but most visibly in Wisconsin. And in my own current state of Missouri, there seems an outright revolution in the works. We have a movement called "Fix the 6," proposed by business interests in the state. The program touches on some tax and broader tort reform issues, but primarily focuses on employment. The legislative agenda seeks to limit awards and make it harder for employees to get to trial in employment discrimination cases (h/t Erin Clark, for links to a summary of the legislation and this anti-legislation video), to roll back whistleblower protections (h/t Roger Goldman for the link to this article), and to repeal automatic increases to the minimum wage to keep pace with inflation. In addition to these, there was a bill to make union security clauses in collective bargaining agreements illegal--the so-called right to work legislation. While the right to work bill stalled in the Missouri Senate, the discrimination legislation has passed the House, and the whistleblower legislation has passed the Senate.

I'm struck, as likely many readers of this blog are, by all of this movement, much of it flying in the face of opinion polls, and wonder, why now and what does it mean? All of these bills are labeled as making our state more competitive for industry--as job-creating measures. Has the Great Recession made legislators think that workers (or seeking-work-ers) are so desperate that they will vote against their self interest in one sense--we often do, so maybe that's right--in the hopes that the resulting largesse to company profits will trickle down to them? Is this the kind of race to the bottom that might demonstrate that Brandeis' notion of states-as-laboratories has serious limitations at least when it comes to measuring justice values against scarce economic resources?

Are these multi-layered efforts going on in other states too? I'd love to hear about it or your thoughts in the comments.

MM

Leonard on 7th Circuit Ruling That US Court Has Jurisdiction to Hear Employment Discrimination Case Involving French Lesbian Flight Attendant

Thanks to Arthur Leonard (New York Law) for letting us cross-post this blog post on this interesting case out of the 7th Circuit Court of Appeals involving issues of jurisdiction, extraterritoriality, and employment discrimination law.

Here's the post from the Leonard Link Blog (a blog you should certainly add to your blog readers):

Feeling its way through an interesting jurisdictional and procedural thicket, a panel of the U.S. Court of Appeals for the 7th Circuit ruled yesterday in Rabé v. United Air Lines, Inc., 2011 WL 677946 (Feb. 28, 2011), that U.S. District Judge Rebecca R. Pallmeyer (N.D.Ill.) erred when she dismissed on jurisdictional grounds an employment discrimination suit brought by a French national who had been employed by United Air Lines as a foreign-based flight attendant.  The plaintiff, a lesbian who was discharged after reaching age 40, claimed discrimination on the basis of national origin, age, and sexual orientation, in violation of, respectively, Title VII of the Civil Rights Act of 1964 (national origin), the Age Discrimination in Employment Act (ADEA) (age), and the Illinois Human Rights Act (sexual orientation).  Her suit in federal district court was premised on diversity of citizenship (which includes suits between foreign nationals and U.S. corporations), and venue premised on United's corporate headquarters being in Chicago.

United argued that the federal court lacked jurisdiction, because as a non-resident of the United States, the plaintiff was not protected from discrimination under these U.S. and state statutes. 

According to the opinion for the court by Circuit Judge Hamilton, "United hired [plaintiff Laurence] Rabé in November 1993 to work in France out of the company's Paris hub.  She signed an individual employment contract at United's headquarters in Chicago, Illinois.  The contract specified that her work would 'be performed on board United's aircraft registered in the USA as they operate on routes throughout the Company's worldwide system,' and that the aircraft would 'constitute the establishment where' she performed her employment.  The individual contract also required Rabé to join the Association of Flight Attendants, the American labor union that represents United flight attendants."  The contract specifically provided that the terms of her employment would "be governed exclusively by applicable United States law, including the Railway Labor Act and the [collective bargaining] agreement," and that jurisdiction "over all employment-related claims" would be exclusively in the courts of the US and Illinois.  The contract required that Rabé execute a handwritten note acknowledging her acception of the choice of law and jurisdictional provisions.

She was transferred to United's Hong Kong base in 1997, and claims that 90 percent of her flights were to or from the US.  After a brief period away from United on furlough beginning in 2002, she returned subject to the same contract terms in 2005, based in Hong Kong and working flights between Asian destinations.  She was fired in April 2008, after she turned 40, ostensibly for misusing travel vouchers, which charge she claimed was a pretext for discrimination.  She alleged that the supervisor who initiated the investigation leading to her discharge had made anti-gay statements in her presence and insinuated his belief that she was a lesbian.

The circuit court rejected the district court's reasoning that as a non-resident Rabé was not covered by US discrimination laws and so could not sue in US courts, finding that the cited statutes would apply to this case because of the contract choice of law terms, and that there was no jurisdictional question here because jurisdiction in the case was premised on diversity, not on federal question jurisdiction.  Thus, the discrimination claims were actionable in federal court because the contract between Rabé and United made them actionable as terms of the contract, not because of any application on their own as statutes. 

Much of the evidence offered in litigating the dismissal motion related to the question of how often her work for United took her within the territory of the US, since United's theory of the case was that she could only claim to be covered by these statutes when she was in the US.  Under the court of appeals' theory of the case, that was irrelevant. 
"Under United's theory," wrote Judge Hamilton, "Rabé would not be protected by the employment discrimination laws of any country.  We understand the impulse to make an explicit choice of law in a contract when the parties' international relationship could result in prolonged and expensive arguments about choice of law in the event of a dispute.  That is as true for employment contracts as it is for sophisticated business-to-business contracts.  But we see no reason to interpret a contractual choice-of-law provision as effectively excluding the employee from the protection of public laws and policies as fundamental as those embodied in employment discrimination laws." 

The court cited for support the Restatement (Second) of Conflict of Laws § 187(3), and its prior ruling in Peters v. Gilead Sciences, Inc., 533 F.3d 594 (7th Cir. 1008), holding an employer to its promise to extend to an employee the coverage of an employment discrimination law even though a statutory exception would have excluded the employee from coverage.  Said the court, "For our purposes in this case, the key point of the Peters decision is that an employer may agree by contract to extend statutory legal protections to an employee who might not be covered by the statute itself."  Since subject matter jurisdiction was premised on diversity rather than federal question jurisdiction, it was irrelevant that Rabé was not "covered" as such by US laws as a non-resident employee of United, at least as far as the district court's jurisdiction to hear the case went. 

The circuit court also rejected United's argument that the discrimination claims were preempted by the Railway Labor Act (the federal statute governing collective bargaining in the airlines as well as railroads), finding that her contract specifically provides that any claims would be determined by reference to federal or state law, not by reference to the collective bargaining agreement.

The bottom line: A remand to the district court "for further proceedings on the merits of Rabé's Title VII, ADEA, and Illinois Human Rights Act claims, recharacterized as claims for breach of contract and/or promissory estoppel."

Interestingly, as Art points out, the court's opinion lists Ms.Rabé as representing herself pro se, while United is represented by national employment law powerhouse Seyfarth Shaw LLP (attorney Gary S. Kaplan).  Art concludes: "So the flight attendant outgunned the big national law firm - with a little help from the court, one presumes."

PS

An AALS Sonnet, AALS Shame, and Other Thoughts from the SF Hilton Picket Line

  Given the charge of reflexive moral exhibitionism by James Young on Rick's post this past Friday on the picketing by law professors and others at the San Francisco Hilton during the recent annual meeting of the Assocation of American Law Schools (AALS), I thought rather than answer James directlty, I would try to show some of the emotion and heart on display in solidarity with the Hilton HERE Local 2 hotel workers for obtaining a better contract this past Friday at a rally and on the line.  

I thought long and hard about whether to post my AALS Sonnet which I read publicly at the Law and Humanities Section panel on Saturday morning in San Francisco and whether to post Professor Rachel Arnow-Richman's inspiring speech at the rally, but with Rachel's permission, I publish both here.  Sure, some like James, will jeer at some ivory-towered-types like us engaging in what they might believe is facile righteous indignation.  But I believe all human beings must work hard to develop a space or a place between righteous indignation and shame over not saying anything, and that is what I seek to do in this post. In addition to being real to myself, my hope is that this post also provides a good example for students and others who have read this blog over the years.

An AALS Sonnet

by Professor Paul M. Secunda

I was filled with rage,
AALS, shame!
Workers' rights a mess,
Professional Progressives against us.

Prager, Hanson, and Olivas
Why is there so little trust?
Lawprofs are human beings too,
Concerned with worker dignity through and through.

Will union rights live to fight another day?
Labor profs ready to walk away.
Full of frustration and distrust,
Thinking of not coming next year, better off.

I am today filled with rage,
But future tomorrows light my way.

Remarks at Local HERE 2 San Francisco Hilton Hotel Rally

by Professor Rachel Arnow-Richman

Friends and Colleagues, Organizers and Workers, I am so honored to stand before you today.

My awe and appreciation for everything you have done has deepened (as has my faith in your ultimate success) each day that I myself have worked to try to relocate this conference.

And let me tell you why.

First the good news – through the hard work of the people like Karl Klare, Gary Peller, Riddhi Mehta-Neugebauer, and David Harlan, over 2/3 of the AALS conference has been relocated out of the Hilton!

Next the bad news – In the course of trying to achieve this result, we have seen AALS engage in depressingly familiar tactics:  Beginning with stonewalling, delay, replacing principled faculty who refused to appear in the Hilton with other speakers. Do you recognize any of these moves? 

These tactics – straight out of the anti-union management playbook – culminated last night in a refusal to adopt a non-binding resolution asking AALS to do more next time to avoid siting a hotel in the midst of an active labor dispute.  What was their rationale?  That it would impair their “organizational flexibility” and cost millions of dollars that would ultimately come out of our pockets as dues-paying members.

This response has been the cause of tremendous frustration and indignation for principled faculty.  But luckily for us AALS is not our employer. 

Imagine for just a moment that these games were being played not by a professional society with whom we voluntarily affiliate, but by the company who paid our salaries, a company that had the right to set the terms and conditions of our employment, to terminate us at will.

If you can imagine that and imagine the courage it would take to be as outspoken as we have been in those circumstances, then you begin to imagine the circumstances under which Local 2 is waging its battle. 

And you might also come to appreciate the importance of our role as faculty in that struggle. 

You the professors have a special duty to stand up for these brave workers.  Not only are we as faculty committed professionally (through our research and teaching) to the cause of justice, but we enjoy a freedom of speech, a security in our employment, and a voice in the governance of our workplaces that is unheard of in the contemporary economy.  If those of us who enjoy the privileges and security of academic employment don’t speak out on behalf of these workers who will? 

So I call on all of the law professors to honor this boycott and to stand in solidarity with these incredibly brave women and men of Unite/HERE! Local 2. 

PS