Tuesday, January 21, 2014
The Supreme Court heard oral arguments to day in Harris v. Quinn. According to SCOTUSblog, the expected attack by conservatives against union mandatory dues occurred. The surprise is the Justice Scalia apparently exhibited less enthusiasm for reversing Abood than his conservative colleagues. In contrast, the liberal Justices apparently showed real concern that the Court would outlaw public unions ability to seek dues from all employees they represent.
To the extent that there's a silver lining (and I'm not sure there's one at this point), the argument seemed to focus on the uniqueness of public sector collective-bargaining. In particular, several Justices (with the apparent exception of Scalia) seemed receptive to the argument that public-sector unionism is more about affecting public policy than typical collective bargaining. I don't buy that argument and, even if I did, I'm not convinced that under the Court's precedent, it would mean that mandatory dues is prohibited by the First Amendment. But that appears to be where several Justices are headed. Whether there a 5 of them is the question. Even if there are, the tenor of this argument suggests that the ruling will not affect the private sector. For now at least. Which is not to say that eliminating mandatory dues in the public sector won't be a significant harm to the labor movement.
Hat Tip: Patrick Kavanagh
Monday, January 20, 2014
We've been following the talks between the UAW and VW's Chattanooga plant for a while now, especially the possibility that the parties will end up with a works council-style system (e.g., see here and here). As expected, groups such as the National Right to Work Lega Defense Foundation are already attacking the possible relationship--arguing, among other things, that they would violate Section 8(a)(2). Matt Finkin (Illinois) and Thomas Kochan (MIT) just published an op-ed in the LA Times, arguing that a works council arrangement would be legal in the U.S. An excerpt:
For years, labor law, labor economics and labor-management researchers like us have urged experimentation with works councils in the United States. Volkswagen and the United Auto Workers are proposing to do just that at Volkswagen's Tennessee plant. This could be a watershed in American labor relations, one that rejects the outmoded adversarial doctrines that have built up in U.S. labor law and practice. And it signals management and labor support for a new model of cooperation and partnership.
Unfortunately, the National Right to Work Legal Defense Foundation and others are opposing this effort by arguing that such cooperation would violate U.S. labor law's 1935 ban on sham or "company" dominated unions.
A comparison of German and American labor law makes it clear they are dead wrong. . . .
For what it's worth, I've been researching this and related issues for some time, and completely agree that there is no Section 8(a)(2) issue with a well-designed bargaining relationship. But before we find that out VW, the UAW, and the employees will have to finally make all this speculation come to fruition. So stay tuned.
Hat Tip: Wilma Liebman
Friday, January 17, 2014
- Steven Greenhouse (NY Times) has an interesting article today on business groups going after worker groups. A main thrust of the criticism has got a serious "pot calling the kettle black" side, as the business groups don't seem to like the fact that unions are giving to support to worker groups. A more serious argument is that these worker groups should be regulated like unions. In most cases, I don't think there's much to this argument on the substance (much of the activity is pure speech). A bigger question though is that I still believe that unions should be doing more to fight some of the legal restrictions on their activity. As the Supreme Court has lowered the "economic speech" bar, unions need to also take advantage. The business groups may, ironically, force the issue if the keep up these attacks.
- Also in the NY Times, earlier in the month, was an op-ed from writer Will Blythe (who wrote a fantastic book on the Carolina-Duke basketball rivalry) on his refusal to sign an anti-disparagement agreement in exchange for two weeks severance pay when he was laid off. As Blythe notes, his role as a writer makes such a clause particularly offensive, but it's nice to see someone bring this out in the open. The growth of these clauses, as well as non-compete agreements, shows the limits of the neoclassical economic model and its theory that "bad" employers will pay for their behavior because employees will avoid them. If employees can't say their employee was bad--or even leave to get another job--that economic model falls apart. Finally, as Michael Duff noted, these clauses raise possible issues under Costco and Flex Frac, although being part of a severance agreement probably means that they're lawful.
- Matt Bodie notes the 9th Circuit's recent decision in Hariharan v. Adobe. The court affirmed class certification for about 60,000 Silicon Valley employees, which allege that Apple, Google, Adobe, and other employers violated antitrust law by conspiring to supress pay by not recruiting each others' workers. A case worth monitoring.
Monday, January 13, 2014
The Supreme Court heard arguments in Noel Canning today. I don't have the transcript yet, but based on several reports, the NLRB recess appointments are looking like they will be struck down. That's not a big surprise. What's really in question is how the Court will strike them down. I still hold out hope that they will limit themselves to the pro forma recess issue, and SCOTUSBlog's summary gives some reasons to think that could happen. However, it also notes reasons to think that the Court might go further and adopt some or all of the D.C. Circuit's broad, textualist approach.
One thing I haven't heard being discussed was the possibility of declining jurisdiction under the political question doctrine. I've raised this as a possibility, but I haven't seen anything suggesting it's gained any traction, much less got any mention today. Let me know if you've heard otherwise.
Hat Tip: Patrick Kavanagh
Monday, January 6, 2014
Today, the NLRB announced that it will not seek Supreme Court cert. for its notice posting rule. Two circuit courts had struck down the rule, one of which was largely on extremely broad First Amendment grounds, so there was a chance that, even if not a full victory, the NLRB could have narrowed its loss. For whatever reason, the NLRB blinked. From the announcement:
The National Labor Relations Board (NLRB) has decided not to seek Supreme Court review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post a notice of employee rights in the workplace.
The NLRB remains committed to ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act. Therefore, the NLRB will continue its national outreach program to educate the American public about the statute.
The U.S. Court of Appeals for the District of Columbia Circuit stated: “[I]t is also without question that the Board is free to post the same message [that is on the poster at issue] on its website.” The workplace poster remains available on the NLRB website. It may be viewed, displayed and disseminated voluntarily. In addition, the NLRB has established a free NLRB mobile app for iPhone and Android users to provide the public with information about the National Labor Relations Act.
I'm not going to lie: I'm disappointed that the NLRB didn't bring this to the Supreme Court. I understand that they thought their chances of winning is slim. However, I do think there was value in challenging the D.C. Circuit's incredibly broad rule. Of course, that's easy for me to say . . . .
Thursday, January 2, 2014
Today, Fiat announced that it was buying Chrysler. Under the deal, which followed signficant negotiations, Fiat will pay $4.35 billion to the UAW retiree health care fund, which had owned part of Chrysler since it left bankruptcy under the bailout of the auto industry in 2009. This amount is far less than Daimler-Benz spent in 1988 ($36 billion) and Cerberus in 2007 ($7.4 billion).
No word on the extent, if any, that the new ownership will affect labor relations, so stay tuned.
Friday, December 13, 2013
Early yesterday morning, Chai Feldblum was re-confirmed to another 5-year term at the EEOC. Congratulations, and great news for the EEOC, which will remain fully staffed. Chai has been a great resource for the Commission, having been instrumental in negotiating the ADA and ADAAA, an expert on ENDA, and a voice for cooperation and public outreach with Commissioner Lipnic.
Tuesday, December 10, 2013
Today, the NLRB agreed to voluntarily dismiss its D.C. Circuit appeal of a district court's dimissal of its election rules. As former NLRB General Counsel, Ronald Meisburg, wrote about the dismissal, this is probably an indication that the NLRB is planning on re-doing the election rules.
The district court opinion relied on the objecting NLRB member's refusal to participate in the promulgation process which, according to the court, denied the NLRB a quorum (there were a total of three memebrs at the time). This issue, plus the Noel Canning dispute, has put many NLRB actions under a procedural cloud for a while. I completely agree with Meisburg that taking another look at the election rules and promulgating them with a Board that is free of doubt is the best path. Indeed, opponents of the new rule may find themselves with reforms they like even less, with fewer procedural objections.
Hat Tip: Patrick Kavanagh
Today, the Supreme Court dismissed the Mulhall case (see here, here, and here) as improvidently granted. There was a dissent by Justice Breyer (joined by Justices Kagan and Sotomayor). The dissent noted that the Court was concerned about the possibility that the case was moot (because the agreement in question expired) or that the plaintiff lacked standing (because he lived in a right-to-work state). The dissent would have preferred that the Court rule on these questions and, if either apply, vacate the Eleventh Circuit's decision to remove any precedential value.
The dissent also raised another possible procedural hurdle: whether Section 302 grants a private right of action. You can file this argument under "what's good for the goose, is good for the gander." The dissent noted that the Court long ago said such a right of action existed, but then noted that the Court's jursidprudence has since become much more restrictive against recognizing private rights of action.
For a case that ultimately had no decision, Mulhall has been extraordinarily interesting. Expect to see many of these questions raised again soon.
Monday, December 9, 2013
As we recently noted, Boeing employees rejected a proposal that was offered by Boeing, and seemingly supported by IAM union officials, to give job guarantees for current employees in exchange for significant cutbacks for newer and future employees. Today, the Washington Post's Wonkblog examines recent challenges to the current IAM officials and gives some more background to the Boeing offer.
Apparently, the Department of Labor is forcing IAM to re-run its leadership elections for failure to adequately notify members--the only re-run for union top officials in 2012. The disagreements between the challengers and incumbents reflect many other internal union discussions in this difficult environment, so this issues will likely be more familiar to readers of this blog than average readers of the Post. That said, the internal strife at IAM seems serious--serious enough to help prompt Boeing workers spurn the offer. There also appears to be open resentment against the union's spending and salaries of top officials. Again, not a new issue, but one that we might expect to surface more as unions struggle to keep members. This is where the democracy issue seems most relevant. Although, at times, LMRDA union requirements can appear harassing more than anything else, the need to maintain some level of union democracy is important for unions themselves. Obtaining buy-in from members and allowing for new officials, and the ideas they bring, are but a few of the benefits that democracy can bring to unions. It's not surprising that some unions--just like other organizations, as the article notes--have entrenched officials, but the fewer instances of this, the better the labor movement will be.
The Supreme Court just released an order stating that the oral argument time for NLRB v. Noel Canning has been extended by 30 minutes to an hour and a half. According to SCOTUSblog:
The NLRB will now have forty-five minutes, Noel Canning, the business firm involved in the case, will have thirty minutes, and the Senate’s Republican leader, Sen. Mitch McConnell of Kentucky, will have fifteen minutes. McConnell and forty-four other GOP senators are in the case to defend the role of the chamber’s minority in reviewing presidential appointments.
The argument will be on January 13 and it looks to be an exciting one.
Hat Tip: Patrick Kavanagh
Wednesday, November 27, 2013
Those of you you read the post below on the NYU-UAW deal may have noticed in the embedded link some quotes from friend-of-the-blog, Bill Herbert. In doing so, you mave noticed that he has a new affiliation as he's just moved from the NYPERB to the National Center for the Study of Collective Bargaining in Higher Education and the Professions, where he is now serving as Executive Director. He'll also be a Distinguished Lecturer at Hunter College. Here's a press release on the move:
Effective November 21, 2013, Bill Herbert was appointed as a Distinguished Lecturer at Hunter College, City University of New York and as the new Executive Director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions. Prior to his recent appointment, Bill was Deputy Chair and Counsel at the New York State Public Employment Relations Board.
For over four decades, the National Center for the Study of Collective Bargaining in Higher Education and the Professions has served as a national labor-management center dedicated to studying the use of collective bargaining for advancing higher education and the working conditions of faculty and staff in colleges and universities. The National Center believes that the study of collective bargaining is essential for a knowledge-based dialogue concerning labor-management and educational issues, and is critically important for reasoned societal debate that will lead to social progress. It is comprised of labor and management professionals, practitioners, and scholars interested in studying contemporary and historical labor-management issues, best practices in collective bargaining, legal and legislative developments, and public support for higher education. It provides a clearinghouse and forum for scholarly research and ideas concerning labor relations, collective bargaining and labor law issues related to higher education. The National Center will be holding its 41st annual conference on April 6-8, 2014 at the CUNY Graduate Center: http://www.hunter.cuny.edu/ncscbhep The theme of the conference is Achieving Successful Results in Higher Education through Collective Bargaining.
Tuesday, November 26, 2013
- UPDATE: News was just released news that NYU and the UAW have agreed to an AAA-run election for teaching assistants. As part of the deal, the UAW will drop charges it filed with the NLRB and NYU promised to remain neutral. Also, the deal does not establish an election for research assistants. The election could happen early next year.
- The Supreme Court granted cert. today to determine if for-profit corporations can object to the contraception mandate of the ACA based on religious objections. Sure, it's not directly an employment case, but if the Court sides with the companies here, it will be a big change from what has long been a presumption against for-profit businesses avoiding employment mandates on religious liberty grounds.
- Last week, Boeing workers rejected a proposal by the company to give job guarantees for current employees in exchange for significant cutbacks for newer and future employees. That's a big turnaround from what has been a trend as of late in many unionized workplaces.
- Also last week, the Eleventh Circuit sided with the NLRB on the recess appointments issue. This probably doesn't have much of an impact given the Supreme Court's grant of cert. in Noel Canning, but it provides another voice on the Board's side.
Hat Tip: Michael Duff , Patrick Kavanagh, & Bill Herbert
Tuesday, November 19, 2013
It's almost Thanksgiving, so that means more issues over protests at Walmart and other stores over working conditions during Black Friday sales. This time, the NLRB's General Counsel has announced that it has finished its investigation of charges against Walmart for its treatment of employees involved in the protests last year. According to the NLRB:
The Office of the General Counsel found merit to alleged violations of the National Labor Relations Act against Walmart, such as the following:
- During two national television news broadcasts and in statements to employees at Walmart stores in California and Texas, Walmart unlawfully threatened employees with reprisal if they engaged in strikes and protests on November 22, 2012.
- Walmart stores in California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington unlawfully threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests.
- Walmart stores in California, Florida, Missouri and Texas unlawfully threatened, surveilled, disciplined, and/or terminated employees in anticipation of or in response to employees’ other protected concerted activities.
The Office of the General Counsel found no merit, absent appeal, to alleged violations of the National Labor Relations Act against Walmart, such as the following:
- Walmart stores in Illinois and Texas did not interfere with their employees’ right to strike by telling large groups of non-employee protesters to move from Walmart’s property to public property, pursuant to a lawful Solicitation and Distribution policy, where the groups contained only a small number of employees who either did not seek to stay on Walmart’s property or were permitted to remain without non-employee protesters.
- Walmart stores in California and Washington did not unlawfully change work schedules, disparately apply their policies, or otherwise coerce employees in retaliation for their exercise of statutory rights.
This is obviously still early int he process, and it's not as if Walmart will settle, so there's a long way to go on these complaints. But it could be an interesting case to watch, particularly as a high-profile example of nonunion employees being protected by the NLRA.
Theodore Eisenberg (Cornell), who has been studying trends in civil rights and employment litigation for nearly thirty years, has just posted on SSRN his article Four Decades of Federal Civil Rights Litigation. Here's the abstract:
Civil rights cases constitute a substantial fraction of the federal civil docket but that fraction has substantially declined from historic peaks. Trial outcomes, as in other areas of law, constitute a small fraction of case terminations and have changed over time. The number of employment discrimination trials before judges has been in decline for about 30 years, a trend also evident in contract and tort cases. The number of employment trials before juries increased substantially after the enactment of the Civil Rights Act of 1991 but has been in decline since 1997. In constitutional tort cases, the number of judge trials has been declining for about 30 years; the number of jury trials has been reasonably constant over that time period. Civil rights plaintiff win rates at trial have been steady in both judge trials and jury trials for at least a decade. The success of civil rights litigation, as measured by trial win rates and settlement rates, has been quite low compared to contract and tort cases. Median awards in civil rights trials have increased more than the rate of inflation but median trial awards in both constitutional tort cases and employment cases are below the awards in contract cases and tort cases.
Wednesday, November 13, 2013
Today, the Supreme Court heard arguments in Unite Here v. Mulhall, which addresses whether neutrality and card-check agreements, among others, run afoul of Section 302. I haven't had a chance to review the argument transcript, but based on reports of the argument, it seems to be falling along the expected lines. As usual, Justice Kennedy appears to represent the swing vote and his statement that Mulhall's argument "is contrary to years of settled practices and understandings" should give unions some hope. That said, many of the Justices seemed disturbed by part of the deal in which the union said it would contribute $100,000 to promote a referendum that the employer supported. This echoes my previous concern about this case and why the union would seek cert. Although the Court may not hold all neutrality and similar agreements to fall under Section 302, they might well hold that other exchanges--particularly ones involving significant expenditures--do. Jack Goldsmith makes a similar point in his post at On Labor.
Finally, the standing issue (resulting from, among other things, the fact that the case is in a right-to-work state) was clearly on the mind of some Justices. Thomas Frampton (a recent Berkeley grad) may score himself a Supreme Court cite with his recent essay arguing this standing point.
Hat Tip: Patrick Kavangh & James Young (whose colleague at NRTWLDF argued on behalf of Mulhall)
Tuesday, November 5, 2013
After years of no news, it looks like there is suddenly movement on the Employment Non-Discrimination Act. The current version, introduced in both the House (H.R. 1755) and the Senate (S. 815) on April 25th of this year, was voted out of committee in July and then had stalled, when Monday, the Senate overwhelmingly voted to invoke cloture and move forward to a vote. The Senate version is expected to pass as early as this week.
John Boehner has apparently said that he'll oppose the bill in the house, arguing that it will lead to frivolous litigation and hurt small businesses. Another frequent critique of the legislation is that it will interfere with religious freedom, although it does not apply to religious organizations that are allowed to discriminate on the basis of religion under Title VII.
Interestingly, according to polls, most people support a ban on LGBTQ discrimination, and in fact 80% of those polled think this protection already exists. There are certainly arguments that Title VII's ban on sex discrimination prohibits at least some discrimination on the basis of sexual orientation and identity (see here, here, and here for some of the EEOC's views supporting that). But the courts have not always agreed, and according to this infographic, only 21 states (and DC) have a ban on sexual orientation discrimination while 16 states (and DC) ban discrimination on the basis of gender identity.
The oral argument in Sandifer v. US Steel occurred today, with Eric Schnapper (U. Wash.) arguing for the plaintiffs. At issue is the meaning of "clothes" in FLSA donning and doffing cases, in particular, whether certain safety-related attire should be consider "clothes." This is important, because of the rule that donning and doffing "clothes" at the beginning or end of the day is not on-the-clock activity that requires wage payments.
Based on some reports, it looks like the Court may be skeptical of the employees' arguments. But, as we know, you can never sure.
For more background on the case, see the SCOTUSBlog entry.
Hat Tip: Patrick Kavanagh
The oral argument for Noel Canning has been scheduled fro January 13, 2014. It should be quite a lively argument, so stay tuned.
Hat Tip: Patrick Kavanagh
Tuesday, October 29, 2013
Today the Senate voted to confirm Richard Griffin General Counsel for the NLRB, 55-44. This makes it official that the Board--for now at least--has a full complement of confirmed presidential appointees. How long this lasts is anyone's guess, but if any agency deserved some stability, it's the NLRB. It's announcement of the confirmation, including a well-deserved thanks to now-former Acting GC, Lafe Solomon:
“Today’s Senate vote to confirm Richard F. Griffin, Jr. as General Counsel will ensure the NLRB’s ability to enforce the National Labor Relations Act. The Act guarantees the right of private sector workers to organize and bargain collectively with their employers and to participate in concerted activities to improve their pay and working conditions.
“Having served as a staff attorney and as a member of the Board, Mr. Griffin has a wealth of experience in labor law and a deep understanding of the National Labor Relations Act. On behalf of the NLRB, I welcome him back and know that he will play a vital role in ensuring that we continue to provide excellent service to the American people.
“The Agency and the American people owe a debt of gratitude to Lafe E. Solomon, who began his career at the NLRB in 1972 and has served so ably as the Acting General Counsel since June of 2010. His courage and dedication to the mission and to improving the efficiency of the Agency during his term as Acting General Counsel was extraordinary. I know that all the dedicated public servants who work for the Agency in headquarters and regional offices throughout the country appreciate his long record of service and significant accomplishments at the NLRB.”
Hat Tip: Patrick Kavanagh