Friday, August 11, 2017

Herbert & Freeman on the Taylor Law at 50

Herbert Josh-freemanBill Hebert (Hunter College) and Joshua Freeman (Queens College and CUNY Graduate Center) appeared on New York Public Radio's Brian Lehrer Program on Wednesday to discuss New York's public sector collective bargaining law, which is celebrating its 50th anniversary on September 1, 1967. The segment is tied with a program that will be taking place at Hunter College's Roosevelt House Public Police Institute in Manhattan on September 26. The program is being co-sponsored by Roosevelt House, the National Center for the Study of Collective Bargaining in Higher Education and the Professions, and the Joseph S. Murphy Institute for Worker Education and Labor Labor Studies. Other participants in the Taylor Law program will be Marty Malin, Joe McCartin, Kim Philips-Fein and Marilyn Sneiderman.

rb

August 11, 2017 in Labor Law | Permalink | Comments (1)

Wednesday, August 9, 2017

Bisom-Rapp, Bodie Cited in WSJ Article Re: Fired Google Engineer

GYesterday, Jeff posted on Google Engineer Files NLRB Complaint Regarding Post-Memo Termination. Today's Wall Street Journal quotes Susan Bisom-Rapp (TJSL) and Matt Bodie (SLU) extensively on the viability of the engineer's claims. Here's an excerpt:

Thomas Jefferson School of Law Prof. Susan Bisom-Rapp, who researches employment discrimination law, said while she disagreed with Mr. Damore’s views, she could envision potential legal arguments he could make to invoke the NLRA.

That Mr. Damore’s letter doesn’t appear to be drafted in concert with other Google employees doesn’t in itself mean the law cannot be invoked. Protections can be triggered by a single employee trying to rally colleagues around a wider workplace issue.

Mr. Damore could try to argue that he’s “protected in expressing himself in an effort to engage in dialogue with co-workers about Google’s diversity efforts,” said Prof. Bisom-Rapp.

However, “an employee gripe or complaint standing alone, without that call to fellow employees to gather together, is not enough,” said Julie Totten, an employment defense lawyer with Orrick, Herrington & Sutcliffe LLP in Sacramento.

Labor law also forbids employers from firing a worker for alleging an unfair labor practice, making the timing of Mr. Damore’s formal complaint potentially relevant in a legal dispute, said Prof. Bisom-Rapp.

Legal experts said federal antidiscrimination law could offer Mr. Damore another possible, albeit narrow, legal avenue. His memo suggested Google is engaging in reverse discrimination, citing “special treatment for ’diversity’ candidates.” Title VII of the 1964 Civil Rights Act bans employers from retaliating against workers for complaining about unlawful workplace discrimination.

“You would have to show what Google is doing is illegal. That would be difficult,” said Prof. Matt Bodie, an employment law scholar at Saint Louis University Law School and a former NLRB field attorney.

The NLRB generally doesn’t impose remedies beyond reinstatement of employment and back pay, Mr. Bodie said.

The full WSJ article is available at Jacob Gershman & Sara Randazzo, Fired Engineer Likely to Face Obstacles in Challenging Google, WSJ 8/9/17.

August 9, 2017 in Employment Discrimination, Faculty News, Labor Law | Permalink | Comments (1)

Tuesday, August 8, 2017

Google Engineer Files NLRB Complaint Regarding Post-Memo Termination

This case has managed to hit a bunch of labor and employment issues: A Google engineer first released a memo criticizing Google's diversity efforts and, among other things, arguing that women were biologically less suited to be engineers. It was reported within the last 24 yours that the engineer has now been fired and is exploring legal options. What those might be are questionable. Because Google is a private employer, there are no constitutional free speech rights. However, the engineer will want to explore any company policies or rules that might be interpreted as establishing contractual rights to speak one's mind or enjoy certain procedures before discipline (Google, in contrast, is already alleging that the engineer has violated its corporate conduct policies). The engineer might also have a Title VII retaliation claim if he can argue that he was objecting to illegal activity by Google, but without more facts, that seems a stretch at this point.

Interestingly, the one claim I've seen thus far is under the NLRA. There are two complaints really. First, the engineer apparently filed a complaint with the NLRB prior to his termination. I'm not sure what adverse action he's alleging, but presumably, he's also arguing that his memo was concerted and protected conduct. He does seem to be talking about workplace issues, but whether there was concerted action is less clear. It sounds like he released the memo on a company listserv, so he might be viewed as trying to instigate group action or there might have been follow-up conversations that establish concerted action, but it's not clear at present. And even if it was, Google can still argue that the memo was disruptive enough to overcome the engineer's NLRA rights. Second, the engineer alleges that his termination was in retaliation for the initial complaint. If it could prove that was Google's motivation, then it's a pretty clear violation of the NLRA. But I suspect Google won't have trouble showing that the memo--not the NLRB complaint--was the cause of the termination.

All interesting issues, so watch out for what comes next. Of course, some sort of settlement may be the most likely, as Google would probably prefer that everyone be talking about other things.

-Jeff Hirsch

August 8, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Wednesday, August 2, 2017

Kaplan Confirmed to NLRB; Emanuel Vote Pushed Back

Today, the Senate confirmed Marvin Kaplan as the newest member to the National Labor Relations Board by a 50-48 vote, bringing the Board an even Democratic/Republican split. Reports are that the vote on William Emanuel, which will produce a Republican-majority NLRB will occur after the August recess.

-Jeff Hirsch

August 2, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Monday, July 31, 2017

Call for Papers - The Taylor Law at 50

Friend-of-blog Lise Gelernter (SUNY Buffalo) sends along the following CALL FOR PAPERS:

The Taylor Law at 50: Bright Spots and Pressure Points .The New York State Public Employment Relations Board (PERB) and the Taylor Law 50th Anniversary Committee are pleased to invite submissions for a special conference recognizing New York’s Taylor Law and its substantial influence on public sector labor relations over the past 50 years. The conference will take place May 10-11, 2018 in Albany, NY.  Practitioners and scholars interested in presenting their work at the conference should submit an abstract of a proposed paper or session by September 15, 2017. Abstracts should be no longer than 1,000 words and should include a detailed description of the focus of the proposed paper or session, its relevance to the conference, and its contribution to the study or practice of public sector labor relations. In addition, session abstracts should also include a list of invited participants and their proposed presentations.  Prospective contributors are encouraged to contact PERB Chair John Wirenius (JWirenius@perb.ny.gov), Lise Gelernter (gelernt@buffalo.edu), William Herbert (wh124@hunter.cuny.edu), or Ariel Avgar (aca27@cornell.edu) with any question or inquiries regarding this call for papers. Paper and session abstracts should be submitted via email to taylorlaw50@cornell.edu. Authors will be notified by December 15 if their paper or session has been accepted to the conference. 

For this conference we especially welcome submissions that shed new light on key aspects of the Taylor Law, its application, and its consequences for public sector labor relations. We also encourage submissions that provide a comparative perspective based on evidence from other states or countries. We welcome submissions from practitioners, scholars, policy makers across a wide array of disciplinary domains including, but not limited to, law, history, economics, sociology, political science, labor relations, and human resources.

This looks like a great conference and I strongly encourage anyone interested to apply! 

- Joe Seiner

July 31, 2017 in Conferences & Colloquia, Labor Law, Labor/Employment History | Permalink | Comments (0)

Wednesday, July 19, 2017

New Edition of Labor Law: A Problem-Based Approach

LLCongratulations to Paul Secunda, Jeff Hirsch, and Mike Duff on the publication of the second edition of Labor Law: A Problem-Based Approach (2d ed. 2017). Here's the publisher's description:

The problem-based approach of Labor Law: A Problem-Based Approach moves beyond lectures, the Socratic teaching model, and the casebook method, while developing the critical reasoning skills required to be a successful attorney. The problem-based pedagogical method will directly help students by synchronizing the way labor law is taught with the way it is typically tested. The book is updated through the end of 2016 and features the most important cases, documents, and articles for students to become proficient in the practice of American private-sector labor law.

rb

July 19, 2017 in Book Club, Books, Labor Law | Permalink | Comments (0)

Wednesday, July 12, 2017

Unions in the South

It's no secret that unions have faced especially difficult conditions in the South. That's why two recent stories showing signs of success for union efforts in the South caught my attention (or at least one story of success and one of hopefulness.

First is a new collective-bargaining agreement between Duke University and a unionized group of non-tenure-track faculty represented by SEUI. The faculty still need to vote on the agreement, but it looks to be very beneficial to them--significant pay increases and job security--and is expected to pass. Second is a recent election petition at a Mississippi Nissan plant. We've obviously been down this road before, but the demographics and conditions at the plant, particularly the large percentage of African-American workers, makes this a vote to watch. Of course, we've seen union support drop off significantly prior to elections, so we'll have to see what happens.

-Jeff Hirsch

July 12, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Sunday, July 9, 2017

Macron's Plans for Labor

MacronMany thanks to Dennis Nolan (South Carolina emeritus; NAA) for forwarding Sylvain Cypel, Macron’s California Revolution, which has a detailed discussion of French President Emmanuel Macron's plans for French labor law. Here's an excerpt:

Continuing deindustrialization has shut millions of older employees out of the job market. And unemployment among the young is beating all records: at the end of April 2017, the number of officially registered jobseekers hit 5,836,000—the same number as in the United States, a country with five times France’s population! For the past forty years, whether governed by the right or the left—or even during short periods of “cohabitation”—neither side has been able to curb unemployment.

...

[N]ew macroniste politicians closely follow their leader’s core socioeconomic philosophy: that in today’s world, the people who rise to the top, or at least stay afloat, are those who’ve succeeded in adapting to the relentless process of globalization and its technological disruptions. There will be less and less room for job security and more and more for people who have a capacity for innovation and adaptation. Gone are lifelong professional careers. Likewise gone are rigid job descriptions and fixed work schedules. In this, Macron once again embodies a very American way of thinking. And he believes that France has to catch up to the current reality of the labor force.

...

But the first real test of the new president’s mandate will be the new labor law that he intends to issue as an executive order, before asking France’s parliament to vote on it. Macron wants to move fast. He wants to take advantage of the “big bang” of his election and his opponents’ stunned paralysis to abolish much of the existing French labor code, which, because of powerful labor unions, was designed to cater to the best-protected employees—especially those in heavy industry—and has long been skewed toward the interests of workers in general at the expense of greater flexibility and efficiency for private enterprise. Just how far does he mean to take this? Clearly, as far as he can.

The real question is whether Macron is ready to take on the unions or will seek to compromise with them. His approach to economic reform has been well known since his tenure as economics minister (2014–2016): a major deregulation of existing laws to allow employers to practice less “rigid” employment and hiring policies, including fewer restrictions on salaries and working conditions. These measures, he argues, are essential if there is to be a revival of the French job market. Employers, who are also asking for a freer hand in firing workers, claim these measures will bring a reduction in labor costs. The corollary to these ambitions, and the condition for their success, is a significant reduction of what remains of the unions’ power, already enormously diminished. (Fifty years ago, 22 percent of all employees were union members, while that number is currently 7.7 percent, according to the OECD).

When Macron tried to put these reforms into effect as economics minister under François Hollande, he encountered very strong resistance from the unions and from the public itself. After a series of protest marches and demonstrations, the law had to be issued by Prime Minister Valls, through a procedure designed to avoid a parliamentary vote, which it seemed quite unlikely to pass. Today the basic problem is much the same. The unions are so hostile to reforming the labor market because, behind the apparent “change,” it is possible to glimpse a policy that’s been at work for a long time already. Ever since 1984, all governments, right and left, have worked tirelessly to shatter administrative and legal “rigidity” with respect to hiring and firing. And yet, France’s steadily worsening joblessness has never been brought under control. Even worse, in France as in nearly all the rest of the Western world, inequality has become ever more deeply entrenched, in lockstep with the deterioration of middle-class purchasing power. It’s not hard to imagine, therefore, that the unions might once again be the front line of resistance to still more radical measures to deregulate the labor market.

rb

July 9, 2017 in International & Comparative L.E.L., Labor Law, Workplace Trends | Permalink | Comments (0)

Friday, June 23, 2017

The Conservative Case for Unions

YellowJonathan Rauch has written The Conservative Case for Unions in the Atlantic. Congratulations to Matt Dimick (Buffalo) for a prominent mention, and for Rauch's discussion of Dimick's work on the Ghent System. Here's an excerpt from the article:

All workers do not suffer equally from the decline of unions: In today’s fragmented, hypercompetitive, and globalized workplace, high-powered professionals enjoy more autonomy and respect than ever. Less educated workers, by contrast, have lost agency and, in many cases, dignity. Edward Luce of the Financial Times puts the problem well in his new book, The Retreat of Western Liberalism: “In survey after survey, the biggest employee complaint is being treated with a lack of respect. Whether they work in an Amazon warehouse, serve fast food, or sit in a … customer-service cubicle, they feel diminished by how they are treated.” That has implications not just for the well-being of workers, but for the health of capitalism and even of democracy.

In America, the modern conservative movement was founded on anticommunism and antiunionism. Senator Barry Goldwater (“Mr. Conservative”) built his career bashing unions. President Ronald Reagan, although a former union leader himself, made his bones by breaking the air-traffic controllers’ union. Just this past February, Republicans succeeded in their long push for a right-to-work law in Missouri. But the conservative war on unions is beginning to look like a Faustian bargain. If 2016 taught us anything, it was that miserable workers are angry voters, and angry voters are more than capable of lashing out against trade, immigration, free markets, and for that matter liberal democracy itself.

rb

June 23, 2017 in Labor Law, Labor/Employment History, Workplace Trends | Permalink | Comments (0)

Saturday, June 17, 2017

Ware & Levinson on Arbitration Law

Arbitration lawCongratulations to Steve Ware (Kansas) and Ariana Levinson (Louisville) on the publication of their new book Principles of Arbitration Law (Concise Hornbook Series, available July 2017). Here's the publisher's description:

The Concise Hornbook Principles of Arbitration Law is an authoritative and extensively cited treatise on arbitration. It thoroughly discusses general arbitration law―from federal preemption of state law to the formation, performance, and enforcement of arbitration agreements―and provides in-depth coverage of specialized law governing international arbitration and labor arbitration. The last few decades have witnessed the growth of a large body of legal doctrine―from statutes, judicial decisions, and other sources―focused on arbitration. This Concise Hornbook summarizes that body of law, so should be useful to lawyers and scholars researching arbitration law and to students learning about arbitration.

I haven't yet received a copy of the book, but know from reviewing the draft of the labor law chapter that it will be top-flight.

rb

June 17, 2017 in Arbitration, Books, Labor Law, Scholarship | Permalink | Comments (0)

Sunday, June 11, 2017

New Center for Contemporary Labour Law (CCLL) Established in Tbilisi

Logo_Transparent (2)The Center for Contemporary Labour Law (CCLL) is a new labor-focused Center directed by Professor Giorgi Amiranashvili of Tbilisi State University in Tbilisi, Georgia. The goals of CCLL include (1) educational and scientific research activities, (2) dialogue & collaboration with all actors in the labor field, (3) consultative activities, and (4) collaboration with foreign experts and institutions.

Founding members include Prof. Amiranashvili, Prof. Dr. Andrea Borroni (Italy); Assoc. Prof. Dr. Vakhtang Zaalishvili (Georgia); Ph.D. Candidate Tornike Kapanadze (Georgia). Other members include Assoc. Prof. Dr. Elena Sychenko (Russian Federation); Prof. Dr. Francesco Bacchini (Italy); Prof. Dr. Roberta Caragnano (Italy); Dr. Marco Seghesio (Italy); Assoc. Prof. Dr. Nicos Trimikliniotis (Cyprus); Prof. Rick Bales (U.S.).

 

CCLL has hosted several lectures at Tbilisi State, including:

  • Prof. Dr. Andrea Borroni & Prof. Dr. Francesco Bacchini on “The position of Labour law in the private law system”.
  • Assoc. Prof. Dr. Elena Sychenko was held at Ivane Javakhishvili Tbilisi State University on “The European Convention on Human Rights as a Source of Labour Law”.
  • Mr. Kari Tapiola, Special Advisor to the Director General of the International Labour Organization, on “The Role of International Labour Standards in strengthening Social Justice and Economic Efficiency”.

rb

June 11, 2017 in International & Comparative L.E.L., Labor Law | Permalink | Comments (1)

Sunday, May 21, 2017

Michael Green: Sleepless in Fort Worth

GreenMichael Green has been burning the midnight scholarship oil recently. He has posted two articles to SSRN in the last month: The Audacity of Protecting Racist Speech under the National Labor Relations Act, forthcoming 2017 U. Chicago Legal Forum, and Can NFL Players Obtain Judicial Review of Arbitration Decisions on the Merits When a Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?, forthcoming NYU J. Legislation and Public Policy. He also has a forthcoming paper in SMU Law Review on Racial Prejudice in ADR in the Workplace (SSRN post coming soon). Congrats, Michael!

rb

May 21, 2017 in Arbitration, Employment Discrimination, Labor Law, Scholarship | Permalink | Comments (0)

Thursday, May 11, 2017

New NLRB Nominees?

NLRBReports are out today of two probable nominees to the NLRB. According to Politico's Morning Report report, the president intends to nominate William Emanuel and Marvin Kaplan, and both are currently undergoing FBI background checks. Emanuel is an attorney at Littler Mendelson's L.A. office, while Kaplan has been working in the federal government, currently at the Occupational Safety and Health Review Commission and earlier as Republican counsel for the House Education and the Workforce Committee. An interesting note is that Bill Seaton had been rumored to be on the shortlist and it's possible that having worked as a "union buster" may have worked against him (or not, no one's saying at this point).

-Jeff Hirsch

May 11, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Thursday, April 27, 2017

Lofaso on Workers Rights and Natural Human Rights

Anne-Marie Lofaso (West Virginia) has just posted on SSRN her article, Workers Rights as Natural Human Rights, which is to be published in the University of Miami Law Review.  The abstract:

We live in an increasingly polarized world: one summed up by President Clinton, “we’re all in this together;” the other summed up by then-presidential candidate Trump, “I alone can fix it.” These world views have implications for workers and how the future workplace is ordered. In this Article, I explore the idea that a natural human rights approach to workplace regulations will tend to favor the we’reall-in-this-together view, whereas the Lochnerian or neoliberal view tends to favor an individualistic world view.

The Article’s six-step analytical approach starts with a historical analysis of labor law jurisprudence, concluding that U.S. labor laws must be filtered through a law-and-economic lens of U.S.-styled capitalism to predict the outcomes of legal disputes and to expose human rights infirmities inherent to that approach. In step two, I explore T.H. Marshall’s account of citizenship, concluding that Marshall’s rights-based rubric is too limited to fully explain workers’ rights, which tend to cut across the full gamut of human rights. In step three, I expand upon Marshall’s work to build a framework for evaluating workplace laws based on the worker as a citizen of the labor force who has human rights. I do this using two methodologies: (1) comparative legal analysis between U.S. law and international human rights standards; and (2) jurisprudential analysis of fundamental values within a rights-based framework. In step four, I modify John Rawls’s famous thought experiment to include a veil of empathy. In that modified experiment, I conclude that participants in the original position behind a veil of empathy would generate values underlying human rights, namely autonomy (to become part author of one’s work life) and dignity (to be treated as a person always as an end and never merely as a means). In step five, I apply this human rights approach to show that workers’ and employers’ interests conflict at the interests-level and, more fundamentally, at the values-level. I conclude that these conflicts are primarily over the distribution of that which labor and capital create. This distributional question is fundamental a question of moral and political justice, which will and does have real political consequences. In step six, I set forth a path along which this research project should explore.

Check it out!

-Jeff Hirsch

April 27, 2017 in Labor and Employment News, Labor Law, Scholarship | Permalink | Comments (0)

Friday, April 7, 2017

Doorey's New Book: The Law of Work

WorkCongratulations to David Doorey (York-Osgoode) on the publication of his new book The Law of Work: Complete Edition  (Emond Publishing 2017). Here's a brief description from David: 

The book is the first Canadian text to explore in depth all three regimes of work law, including Common Law, Regulatory Law, and Collective Bargaining Law and it emphasizes the interaction between the three regimes.   For those interested in understanding Canadian work law, this is the book.  Also, you might be interested in knowing that the book was written to be accessible to non-lawyers, including the thousands of business, HRM, industrial relations, labour studies students learning work law in Canada.  I wrote it because I frequently teach business students and there was no book in Canada that explained the law of work in a sophisticated, contextual manner but that doesn’t also assume the readers have already studied law for a year or two.   Finally, the book also extends the subject matter beyond most labor law texts, by including chapters on subjects such as work and intellectual property law, work and privacy law, trade law, immigration law, and bankruptcy law. 

rb

April 7, 2017 in Book Club, Employment Common Law, International & Comparative L.E.L., Labor Law, Scholarship | Permalink | Comments (0)

Tuesday, March 28, 2017

Herbert on the History of Higher Ed Collective Bargaining

Bill Herbert (Hunter College) recently did an interview with Radio Higher Ed: "A Primer on Unionization and Collective Bargaining in U.S. higher Education Institutions." According to the summary:

This primer on collective bargaining in higher education traces historical developments of unionization in public and private institutions as well as among tenure track, non-tenure-track faulty and graduate students. In the last five years, unionization activity has increased over 25% in the private sector, mostly in adjunct faculty units. While institutions can participate in voluntary collective bargaining activities, agreements in a formal collective bargaining context include clear rules applicable to the entire bargaining unit and enforcement mechanisms. The emergence of micro bargaining units (department level activity), and specifics of the unionization process are discussed. Specific unions that work with higher education institutions are named. Mandatory subjects in the collective bargaining process include salary, hours, healthcare, pension, professional development grievance, antidiscrimination, academic freedom, tenure, use of facilities, appointment and reappointment details, leaves, holidays, evaluations, personnel files, disciplinary actions, research and fellowship monies. Institutions may resist unionization due to flexibility limitations, institutional concept of shared governance and fiscal implications that may result from compensation negotiations. It is likely that unionization will continue to increase for non-tenure track faculty in the private sector. Regularity of access to faculty by students may be aided by collective bargaining.

Check it out!

-Jeff Hirsch 

 

March 28, 2017 in Labor and Employment News, Labor Law, Public Employment Law, Union News | Permalink | Comments (0)

Monday, March 27, 2017

Bales on Resurrecting Labor

Our own Rick Bales (Ohio Northern) has just posted on SSRN his new article, Resurrecting Labor, which will be published int he Maryland Law Review. The abstract:

Participation in American labor unions have changed radically, albeit incrementally, over the last fifty years. Private-sector union density has declined five-fold, whereas public-sector density has increased almost as significantly. Today, unions rarely strike and in much of the country they are politically impotent. As traditional manufacturing declines and is replaced by on-demand work, unions risk becoming a historical footnote.

This article ties the decline in union density and power to macroeconomic trends that are highly troubling in an advanced democracy, such as rising income inequality and the failure of wage growth to keep pace with GDP growth. It next reviews the traditional prescriptions that labor scholars have advocated to reverse labor’s decline. Finally, it proposes three new radical fixes: authorizing criminal prosecution for willful violations of labor law, expanding labor protections to on-demand workers, and reversing the legal presumption that workers are not represented by a union unless they affirmatively opt in.

Rick has some interesting recommendations in the article, so definitely worth checking out.

-Jeff Hirsch

March 27, 2017 in Labor and Employment News, Labor Law, Scholarship | Permalink | Comments (0)

Wednesday, March 22, 2017

Supreme Court Rules Against NLRB in Vacancies Act Case

Supreme CourtYesterday, the Supreme Court ruled (6-2) in NLRB v. SW General. The Court held that once President Obama nominated Lafe Solomon to be the NLRB's General Counsel, he could no longer serve in his current capacity as Acting General Counsel. This is because of a provision in the Federal Vacancies Act which says that someone can only serve in an acting capacity for a covered position if they served as first assistant to that position for at least 90 days in the previous year. Because Solomon was the Acting GC--not its first assistant--when nominated, he could not continue as Acting GC.

The two dissenters (Sotomayor & Ginsburg) would have held that this provision applies only to individuals who are first appointed as acting officials--not, as was the case with Solomon, those who were already acting once nominated. In addition to a textualist argument, they stressed historical examples similar to what happened with Solomon as well as the history of the Federal Vacancies Act, which was prompted by President Clinton's nomination of Bill Lan Lee to the DOJ's Department of Civil Rights. Scotusblog has a an informative description of the case.

Under the decision, once the President nominated Solomon, he became ineligible to serve as Acting GC. This begs the larger question: what to do about all of his actions during that time (Jan. 5, 2011-Nov. 4, 2013)? Unless I missed it in the decision, the Court doesn't say anything about the practical consequences of its decision. As a result, its probably best to consult the D.C. Circuit decision, which the Court affirmed. That case vacated an unfair labor practice charge. But what of all of the other functions of the GC's office?  For instance the certification of elections?  Theoretically, this could be an issue for a host of other actions. The D.C. Circuit noted that the NLRB could have, but didn't, argue that the ULP in SW General was made by a regional director acting upon a delegation of authority from Solomon. If challenged, I would expect the NLRB to raise that argument, at least with regard to non-ULP cases, and maybe those too. But the NLRB may not have to rely solely on this argument. At the end of the D.C. Circuit's decision, it emphasized what it saw as an important limiting feature of its decision:

Finally, we emphasize the narrowness of our decision. We hold that the former Acting General Counsel of the NLRB, Lafe Solomon, served in violation of the FVRA from January 5, 2011 to November 4, 2013. But this case is not Son of Noel Canning and we do not expect it to retroactively undermine a host of NLRB decisions. We address the FVRA objection in this case because the petitioner raised the issue in its exceptions to the ALJ decision as a defense to an ongoing enforcement proceeding. We doubt that an employer that failed to timely raise an FVRA objection—regardless whether enforcement proceedings are ongoing or concluded—will enjoy the same success. See 29 U.S.C. § 160(e); Andrade, 729 F.2d at 1499.

This caveat notwithstanding, I do expect parties to raise SW General to try to vacate orders. I think the D.C. Circuit is right that those arguments should not prevail, but I anticipate some extra work for the NLRB to litigate this issue for a while. Also, I'm curious how many parties raised an FVRA argument--any readers have any insight on this?

-Jeff Hirsch 

 

 

March 22, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (1)

Friday, March 17, 2017

Hirsch & Seiner: Unions Deserve a Place in the Uber Economy

Hirsch  SeinerJeff Hirsch (North Carolina) and Joe Seiner (South Carolina) have just posted on SSRN their extraordinarily timely article A Modern Union for the Modern Economy, ___ Fordham Law Review ___(forthcoming 2018) Here's the abstract:

Membership in traditional unions has steeply declined over the past two decades. As the White House and Congress are now completely Republican controlled, there promises to be no reversal of this trend in the near future. In the face of this rejection of traditional bargaining efforts, several attempts have been made to create alternative “quasi-union” or “alt-labor” relationships between workers and employers. These arrangements represent a creative approach by workers to have their voices heard in a collective manner, though still falling far short of the traditional protections afforded by employment and labor law statutes.

This Article critiques one such high-profile, quasi-union effort in the technology sector—the Uber Guild. While the Guild does not provide any of the traditional bargaining protections found in the National Labor Relations Act (NLRA), it offers Uber drivers some input over the terms and conditions under which they work. Falling somewhere between employment-at-will and unionization protected under the NLRA, the Uber Guild is a creative attempt to help both workers and the company to better understand how they can improve the working relationship.

This Article navigates the Uber Guild and other nontraditional efforts that promise a collective voice for workers in the face of a precipitous decline in union membership. Closely examining the implications of these existing quasi-union relationships, this Article explores how workers in the technology sector face unique challenges under workplace laws. We argue that these workers are particularly well situated to benefit from a nontraditional union model and explain what that model should look like. While there can be no doubt that a traditional union protected by the NLRA is the optimal bargaining arrangement, we must consider the enormous challenges workers in the technology sector face in obtaining these protections. A modern union is needed for the modern economy.

rb

March 17, 2017 in Labor Law, Scholarship, Workplace Trends | Permalink | Comments (0)

Wednesday, March 15, 2017

Garden in The Atlantic on Trump and Unions

GardenCharlotte Garden (Seattle U.) has just published in The Atlantic Unions Are Wondering: Resist or Assist? Congrats to Charlotte for taking this topic -- which we all know is important -- to a wider audience (or, as she said in a Facebook post: "in which I convinced The Atlantic to let me write about NLRA Section 8(b)(4) for them"). Here's an excerpt:

The first month of the Trump administration was mostly a discouraging one for labor unions. Since taking office, the president has frozen federal hiring (though he did pledge to hire 15,000 border patrol agents) and restated his support for a national “right to work” law that would disrupt unions’ funding mechanisms. He also sought the confirmation of Andy Puzder, a fast-food CEO who’s not fond of minimum-wage or overtime rules, to head the Department of Labor, only to see him withdraw amid public outcry.

Still, some within the labor movement have cheered Trump’s use of the presidential bully pulpit to harangue employers who send jobs overseas, and voiced optimism about Trump’s stated desire to “buy American and hire American.”

This has left many labor unions with a decision about how best to serve their members going forward: Should they try to get along with Trump, in the hope that they will be able to help guide his efforts to court working-class voters? Or should they take to the streets alongside progressives calling for workplace-based actions, like the recent nationwide strikes by women and by immigrants?

rb

March 15, 2017 in Labor Law, Workplace Trends | Permalink | Comments (1)