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 . . . .
Wednesday, December 25, 2013
Charlotte Garden (Seattle) and Matt Bodie (SLU) write to tell us that a group of labor law professors is submitting an amicus brief in support of the union and state respondents in Harris v. Quinn, currently pending before the U.S. Supreme Court. As many of you may know, the case is about whether Illinois may allow certain home health care workers to elect a union as their exclusive representative and require represented workers to pay an agency fee.
If you would like to see a copy of the brief in order to decide whether you would like to sign on to it, please contact Charlotte at firstname.lastname@example.org by Saturday, Dec. 28.
Friday, December 13, 2013
Sam Estreicher (NYU) has brought to our attention a draft of a paper, emanating from the text of his remarks at the University of Minnesota Law Review Symposium on the Future of Organized Labor this past fall, entitled: Easy In, Easy Out: A Future for U.S. Workplace Representation.
Here is the Introduction:
This paper proposes an amendment to our basic labor laws that I call “easy in, easy out.” Essentially, representation elections—secret-ballot votes to decide whether employees want union representation and whether they want to be represented by the particular petitioning labor organization(s)—in relatively broad units, would, over time, become automatic. Every two years (unless the union achieved a collective bargaining agreement, in which case every three years) the employees in the unit would have, after a required showing of interest, an opportunity to vote in a secret ballot whether they wish to continue the union’s representation, select another organization, or have no union representation at all. Petitioning labor organizations and employers would be required to share certain specified information, in electronic form, with the voting employees. The theory is to make representation elections more like general political elections, to make it easier to vote in a union (if that is the employees’ preference), and to vote the union out if the employees no longer believe the bargaining agent is accountable to them or worth the dues they pay. Other aspects of the labor laws would continue unchanged.
This is clearly a provocative proposal and one that is likely to have supporters and detractors alike. For his part, Sam does admit this is somewhat of a quixotic enterprise, given the current state of American labor law. Nevertheless, the paper offers an interesting mixture of labor law theory, comparative analysis, and out-of-the-box thinking, and all should give it a read.
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
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.
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)
Wednesday, November 6, 2013
Sam Bagenstos has brought to my attention his new article in the Michigan Law Review entitled: Employment Law and Social Equality.
Here is the abstract:
What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation.
Against both of these positions, this Article argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or entrenching social status hierarchies—and that it is justifiable even if it imposes meaningful costs on employers.
This Article argues that the social equality theory can help us critique, defend, elaborate, and extend the rules of individual employment law. It illustrates this point by showing how concerns about social equality, at an inchoate level, underlie some classic arguments against employment at will. It also shows how engaging with the question of social equality can enrich analysis of a number of currently salient doctrinal issues in employment law, including questions regarding how the law should protect workers’ privacy and political speech, the proper scope of maximum-hours laws and prohibitions on retaliation, and the framework that should govern employment arbitration.
Very interesting new meta-theory on what animnates employment law. As an ERISA guy, I think Sam's social equality theory equally applies to how the law should protect employee benefit plan participants and beneficiaries from opportunitistic behavior by plan administrators, plan sponsors, and their third party advisors and consultants.
An important new contribution to employment law theory that should be on the top of any workplace prof's reading list.
Tuesday, November 5, 2013
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
Thursday, October 31, 2013
Hunter College and the National Center for the Study of Collective Bargaining in Higher Education and the Professions have announced the preliminary program for the 41st Annual National Conference at CUNY Graduate Center, New York. The theme is Achieving Successful Results in Education through Collective Bargaining.
- Wilma Liebman (former NLRB Chair)
- Samuel Estreicher (NYU)
- MOOCs and On-Line Instruction
- Impact on Pedagogy, Collective Bargaining, Report from California and Intellectual Property
- Social Media in Higher Education
- Academic Freedom, Statutory Protections and Best Labor-Management Practices
- Contingent Faculty in Higher Education
- Educational Results, Labor Organizing and Collective Bargaining
... and much more.
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
Sunday, October 6, 2013
Catherine Fisk (University of California, Irvine School of Law) and Ben Sachs (Harvard Law) has recently posted on SSRN their forthcoming article in the U.C. Irvine Law Review entitled: Restoring Equity in Right to Work.
Here is the abstract:
Under United States labor law, when a majority of employees in a bargaining unit chooses union representation, all employees in the unit are represented by the union. Federal law, moreover, requires the union to represent all workers in a bargaining unit equally with respect to both collective bargaining and disciplinary matters. As a general rule, federal law enables unions to require employees to pay for the services that unions are obligated to provide them. Twenty-four states, however, have enacted laws granting union-represented employees the right to refuse to pay the union for the services that federal law requires the union to offer. As such, the intersection of federal labor law and state right to work laws results in a mandate that unions provide services for free to any employee who declines to pay dues.
This paper proposes three approaches to addressing this feature of U.S. labor law. First, the paper argues that under a proper reading of the NLRA states may not prohibit all mandatory payments from workers to unions. In particular, the paper shows that states must permit collective bargaining agreements requiring so-called objectors (or nonmembers) to pay dues and fees lower than those required of members. Second, the paper argues that in right to work states federal law ought to relax the requirement of exclusive representation and allow unions to organize, bargain on behalf of, and represent only those workers who affirmatively choose to become members. This proposal would implement a members-only bargaining regime in right to work states. Third, the paper contends that the NLRB ought to abandon its rule forbidding unions from charging objecting nonmembers a fee for representation services that the union provides directly and individually to them.
Given the recent discussion on this blog and elsewhere concerning the US Supreme Court recently taking cert. in the public sector, non-NLRA Harris case and the fragile continuing existence of Abood, this is a timely and relevant article providing a number of interesting theories on how right-to-work state laws and the NLRA should be interpreted so as to be consistent with one another and on how to provide a more equitable approach in this crucial area of labor law.
Thursday, October 3, 2013
The National Center for the Study of Collective Bargaining in Higher Education and the Professions housed at Hunter College, the City University of New York (CUNY) is conducting a Call For Papers for its 41st Annual National Conference: Achieving Successful Results in Higher Education through Collective Bargaining set for April 6-8, 2014 at the CUNY Graduate Center.
The National Center’s mission brings together academic managers, unionists, analysts and scholars in all of its activities, which include a national conference and workshops, publications, and training for grievance administration and arbitration. We seek collegial outcomes at our National Conference and in all our activities. An Advisory Board of ten academic administrators and an equal number of union leaders directs the National Center’s work. The annual National Conference is broadly attended by a national audience. Last year there were over 300 attendees.
Thursday, September 26, 2013
David Doorey (York Univ. (Canada)) and Wilma Leibman (former NLRB Chair, visiting at Cornell LER) completed a short survey of their Canadian and American undergrad business students taking employment law this term. The survey asked for their views on such things as minimum wages, unions, and income inequality. David concedes the results are unscientific, but interesting nonetheless.
What I find most interesting about the results personally is that although both Canadian and American students support minimum wage increases, the Canadian students were much more in support of unions and collective bargaining rights than their American counterparts.
Check out the entire survey for all the results.
Wednesday, September 25, 2013
Freeman Guest-Blog Post: Death of an Adjunct Sparks Discussion on the Challenge of Precarious Employment in Higher Ed
I am happy to introduce below a very interesting guest post today by Harris Freeman (Western New England) on the tragic death of an adjunct faculty member at Duquesne and its labor and employment law implications. PS
This past weekend, NPR’s Weekend Edition ran a story on the death of Margaret Mary Vojtko, an 83-year old adjunct French professor at Duquesne University, and that school’s refusal to recognize the vote of its adjuncts to unionize. After 25 years of teaching French as an adjunct, Duquesne dismissed Vojtko this past spring; she was earning about $10,000 a year without benefits or health insurance. At the time of her termination, Vojtko, who was undergoing cancer treatment. supported the adjunct union backed by the United Steelworkers. In June, the Duquesne adjuncts, who comprise nearly half the faculty in the school’s liberal arts college, won a an NLRB-sponsored election. Duquesne immediately challenged the vote claiming that its status as a religious institution exempts it from any obligation to bargain with the adjunct union. The NLRB rejected the university’s position, and Duquesne has appealed. Editorials and news articles on Vojtko’s passing and the unionizing effort peppered the Pittsburgh media.
The NPR story went viral on social media, rekindling the longstanding criticisms of labor and many others in higher ed who raise a host of concerns regarding the ballooning number of adjunct faculty that are now essential to the running of most large colleges and universities. The numbers are stark. The American Association of University Professors reported in 2011 that 70% of college faculty worked outside the tenure track; in 1975 it was 43%. Part-time teachers in higher ed number more than 760,000 or about half of the non-tenured teaching faculty. NPR reports average yearly pay for adjuncts, professionals with Ph.Ds, Masters and J.D.s - often itinerant “roads scholars” teaching at multiple institutions – is between $20,000 and $25,000.
In this environment, adjunct organizing keeps gaining steam. This past spring adjunct organizing conferences sponsored by SEIU and the Steelworkers Union occurred respectively, in Boston, a veritable hub of the higher ed industrial complex, and Pittsburgh. In Boston, the home of 13,000 adjuncts, SEIU Local 500 is pursuing a city-wide, cross campus organizing strategy. Already, some larger state university systems, (e.g., University of Massachusetts) have accreted adjuncts into existing faculty unions and some small private colleges (e.g., New School for Social Research, New York; Emerson University, Boston and Georgetown, Washington D.C.) have recognized adjunct unions. In fact, SEIU Local 500 now claims that it represents the majority of adjuncts in the Washington D.C. area.
What may be new is that the current discussion of the work conditions facing adjuncts comes on the heels of a national dialog on the ills of precarious employment that keeps widening as a result of temps, part-timers, and other low-wage employees organizing and speaking out. In recent months, the major news outlets covered job actions and strikes by warehouse temps doing the grunt work for retailers in the global logistics sector and the coordinated protest strikes of low-wage workers employed at America’s ubiquitous fast-food outlets.
This information and these events provide much grist for the teaching mill in any workplace law course and a cautionary tale for all academics. In this context, recall that the ABA is considering removing the requirement of tenure for law school accreditation. The downward pull of precarious work in mainstream labor markets has a long reach that should cause all tenured faculty and others in the academy with some form of job security to take a closer look at what is happening at their law school, college, or university.
Wednesday, September 18, 2013
In spite of some initial doubts about its viability, Richard Griffin's nomination as NLRB General Counsel is looking up. Today, it advanced out of the Senate Labor Committee on a 13-9 vote (only one Republican voted "yes"). But even Sen. Alexander, who voted "no," stated that he had "no doubt" that Griffin's will be confirmed. This seems to indicate that Republicans have no plans to filibuster or otherwise block the nomination. Apparently, there's no timetable on bringing his nomination for a full vote in the Senate.
Hat Tip: Patrick Kavanagh
Wednesday, September 11, 2013
Thanks to Laura Cooper (Minnesota) for sending along a note about Sweeney v. Zoeller, Ind. Super. Ct., No. 45D01-1305-PL-52, order 9/5/13), in which an Indiana trial court held that the Indiana right-to-work law is unconstitutional under the state constitution because it compels unions to provide services to workers who do not pay for those services. Here's an excerpt from the decision:
The services provided by a union in representing employees include negotiating and enforcing collective bargaining agreements, [which are paid for] by the payment of dues, and are not something required generally of all citizens.... In fact, federal law ensures that nonmembers who obtain the benefits of union representation can be made to pay for them. [The right-to-work law makes it] a criminal offense for a union to receive just compensation for particular services federal law demands it provide to employees.
Thursday, September 5, 2013
This wasn't unexpected, but the D.C. Circuit made it official: the court today denied the NLRB's petition for rehearing and en banc review in NAM v. NLRB [I've just got access to the rehearing denial at the moment]. This was the notice posting case that we blogged about quite a bit when it came out.
Given the D.C. Circuit's political makeup, there was only a small hope that it would take the case en banc. I do think there's a good chance the Supreme Court will grant cert. How they might treat a case is up in the air, of course. The 5-member majority is obviously not a fan of labor, so it's a good bet that the rule will remain struck down somehow. However, I think there's a decent chance the Court would not be willing to write such a sweeping decision as the D.C. Circuit's.
Hat Tip: Patrick Kavanagh