Thursday, March 27, 2014
The Wall Street Journal's Law Blog has a helpful roundup of media commentary on the decision by the NLRB's regional counsel that Northwestern football players were employees and eligible to bargain collectively, which Jason and Jeff posted about yesterday. Jon Hyman, the Ohio Employer's Blog, offers his thoughts here. Tom Crane, San Antonio Employment law blog, has posted this. Former guest blogger, Joseph Mastrosimone (Washburn), offered his perspective earlier this year in this post at the Huffington Post.
If you prefer to listen to commentary, here is an interview of Joe Slater (Toledo) on the Scott Sands show on Toledo's WSPD.
In the scholarship category, Thomas Frampton and Nicholas Fram wrote A Union of Amateurs: A Legal Blueprint to Reshape Big-Time College Athletics, published in the Buffalo Law Review, outlining the case for the players. The article argues that oft-overlooked Seattle Opera case, affirmed by the DC Circuit, provides the strongest support for the players--and it was relied upon by the regional director in the Northwestern decision.
I'm sure many readers of the blog have also contributed to stories or have written on the subject--let us know. Post them in the comments or send me an email, and I'll add them to the list.
Sunday, March 9, 2014
Stephanie Greene and Christine Neylon O'Brien (both Boston College - Business) have just posted on SSRN their timely article (forthcoming Am. Bus. L.J.) The NLRB v. The Courts: Showdown Over the Right to Collective Action in Workplace Disputes. Here's the abstract:
When employees sign employment agreements, they are most likely not concerned about a mandatory arbitration provision forbidding them from engaging in class or collective actions. The United States Supreme Court has shown a strong preference for enforcing arbitration agreements, even when they foreclose rights to collective action. The National Labor Relations Board, however, has found that individual employment agreements may not prevent employees from engaging in protected concerted activity in both union and nonunion environments. The Board ruled in D.R. Horton that individual, as opposed to collectively bargained, arbitration agreements that are a condition of employment, may not bar collective action through both arbitral and judicial forums. The Board reasons that Section 7 of the National Labor Relations Act mandates the preservation of rights to collective activity, and that the Supreme Court’s strong preference for individual arbitration must accommodate the text and legislative history of the Act. Despite the Board’s decision, most federal courts have declined to strike down mandatory arbitration agreements that foreclose collective action, even when it means undermining rights under federal wage and hour statutes as well as employees’ NLRA rights. The authors support the NLRB’s interpretation as the correct and preferred framework for analysis of NLRA challenges to forced individual arbitration. The authors maintain that the courts should recognize that the Board’s decision is consistent with Supreme Court precedent and adopt the reasoning of the NLRB to preserve substantive federal statutory rights of private sector employees.
I agree, but am not optomistic.
Friday, March 7, 2014
- The NLRB will hold public meetings on its new election rules proposals. Requests to speak are due March 10 and the meetings are scheduled for April 10 & 11. The transcripts from the previous set of meetings, while containing a lot of the usual suspects, actually had some useful testimony, so it's not just a pro forma procedural hurdle.
- Here we go again. Apropos to the above entry, after the NLRB proposed again its original set of election rules, Republicans in Congress attack. This time a House hearing. The main objection appears to be faster elections (what they call "ambush elections"), although the claim that they could be held in as little as 10 days doesn't look accurate to me.
- I'm late on this one, but the NLRB is relocating. HQ is moving from the 14th & L location that I new so well to a building on the Capitol riverfront. At least they'll be able to catch more Nationals games.
- After the Scott Walker e-mail release, it became known that a state doctor was fired for having modeled thongs in the past. Jason Walta asks whether she might have a claim under the Wisconsin statute that protects the "use or nonuse of lawful products off the employer's
premises during nonworking hours." See the lengths we'll go to try to tease Paul, our emeritus Wisconsinite, back onto the blog?
Hat Tip: Patrick Kavanagh.
Sunday, March 2, 2014
Labour Law Research Network Conference
University of Amsterdam
25-27 June 2015
The Labour Law Research Network (LLRN), established in 2011, is comprised of 46 research centres from all over the world dedicated to the study of labour law. One of the objectives of the LLRN is to hold bi-annual international conferences that will be entirely academic (dedicated to the presentation and discussion of original papers); entirely about labour law (broadly conceived); and will allow cutting-edge topics to surface from the participating scholars themselves, in a non-hierarchical way.
Each conference is organised by a different research centre from among the LLRN members. The inaugural LLRN conference was held on June 2013 at Pompeu Fabra University in Barcelona. We are delighted to announce that the second LLRN Conference, to be held on June 25-27, 2015, will be organised by the Hugo Sinzheimer Institute (HSI) at the University of Amsterdam.
Matthew Fletcher, Kathryn Fort, and Wenona Singel have just posted on SSRN their article Tribal Disruption and Labor Relations. Matthew has been posting on Indian Law topics over at Turtle Talk for several years now, and he's been kind enough to send me a heads-up whenever he's posted something labor-related. He also has the distinction of being a key player in the ALI's forthcoming Restatement of Indian Law.
Here's the abstract:
In recent years, Indian tribes have begun to assert treaty rights to govern labor relations within the reservation, most notably in Indian gaming operations. The National Labor Relations Board and several national labor unions have asserted, with a large degree of success, that the National Labor Relations Act governs labor relations in tribal casinos.
This paper addresses several aspects of the tribal-federal-labor relationship through the lens of tribal disruption theory. Professor Wenona Singel has argued, drawing from institutional economics theory, that labor relations law and policy is static, with unions and the NLRB preferring to rely upon Great Depression-era federal law to decide labor disputes arising in Indian country – not because federal law is substantively preferable to tribal law, but because it is known and predictable. These actors reject tribal labor relations legal regimes despite the possibility that tribal law may be substantively preferable to all parties.
Tribal disruption theory offers an alternative view of how to resolve these ongoing labor disputes, one preferable to the uncertain and high stakes litigation.
Tuesday, February 25, 2014
I am excited to announce the kick-off of a new speaker series in labor and employment law, sponsored by the Labor and Employment Law Program at Marquette University Law School.
We are really starting the program off with a bang.
On March 27th, in conjunction with the Third Annual ERISA National Conference at Marquette, Assistant Secretary of Labor and head of the Employee Benefit Security Administration (EBSA) Phyllis Borzi will be speaking about the Affordable Care Act. You can register here.
Finally, on April 8th, Professor Takashi Araki, former Dean and Professor of Law at the University of Tokyo Law School and Visiting Professor this semester at Harvard Law School, will be coming to speak about contemporary topics in Japanese employment law. You can register here.
All events are scheduled at noon and include lunch.
Monday, February 24, 2014
Given the amount of attention leading up to the VW-Chattanooga vote, it's no surprise that the aftermath has been heated as well. Following the UAW's narrow loss, the biggest news is the union's filing of eletcion objections with the NLRB. The actual objections petition is well worth a read. I followed the election pretty closely, but was still amazed at some of the statements by Tennessee politicians, especially Sen. Corker who might feel especially charged given his role in bringing VW to Chattanooga while he was mayor. In any event, there's a plausible third-party interference claim here, especially given Corker's repeated statements that he heard from VW itself that it would decide against expanding production at the plant if the union won. It'll be interesting to see if VW takes any position before the Board.
In related news, Steven Greenhouse has a good recap on the events as of last week,primarily from the UAW's viewpoint. Also, Cesar Rosado Marzan (Chicago-Kent) takes the glass-half-full view by stressing the possibility of filing ILO charges and VW bargaining with the UAW as a minority union. Given the outcry leading up to the vote, could you imaging the reaction if VW started dealing with the union after it lost a vote?
Hat Tip: Tom Cochrane
Friday, February 21, 2014
Last spring, the Wefel Center for Employment Law at Saint Louis University held a fantastic symposium on Teaching Employment and Labor Law. I can say that with appropriate modesty because I had very little to do with it. The symposium was organized by Tonie Fitzgibbon, my amazing colleague, who has been the Director of our center for twenty years, and who was the Assistant Director at its inception. I'm pretty sure it was my colleague Miriam Cherry's idea, and Matt Bodie, Elizabeth Pendo, and I all agreed it would be a good topic. In addition to us, Marion Crain and Pauline Kim (Wash. U.), Rachel Arnow-Richman (Denver), Laura Cooper (Minnesota), Marty Malin (Chicago-Kent), Nicole Porter (Toledo), Joe Slater (Toledo), and Kerri Stone (Florida International) all gave presentations.
The Saint Louis University Law Journal has just published the papers connected with the symposium, so now everyone can read about what we who were there got to hear. From the table of contents:
Teaching Employment and Labor Law Symposium
Susan A. FitzGibbon
Teaching Employment and Labor Law
A Holistic Approach to Teaching Work Law
Marion Crain & Pauline T. Kim
Employment Law Inside Out: Using the Problem Method to Teach Workplace Law
Teaching Employment Discrimination Law, Virtually
Miriam A. Cherry
A Proposal to Improve the Workplace Law Curriculum from a Compliance Perspective
Nicole Buonocore Porter
Teaching the Post-Sex Generation
Kerri Lynn Stone
You should check them out.
February 21, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, Labor Law, Pension and Benefits, Public Employment Law, Scholarship, Teaching | Permalink | Comments (1) | TrackBack (0)
Wednesday, February 19, 2014
Faculty members at the University of Illinois at Chicago have called a 2-day strike, to last today and tomorrow, to help raise awareness of the contract negotiation issues with the trustees. See here for a general description, here for what many of the issues are, here for an opinion piece about the role of public higher education in a city with serious income inequality, and here and here for a description by some faculty members about why they are striking.
The issues sound very similar to issues at lots of universities, although somewhat magnified by the student population UIC serves: lack of sufficient numbers of faculty to serve a group of students at the lower end of the socioeconomic scale, many of whom are immigrants, may be first-generation college students, and may be working their way through school; lack of status, job protection, and sufficient pay for a good chunk of faculty; salary compression, stagnant pay, and a lack of other support for tenured faculty. On the other side are state budgetary pressures and a lack of public support for higher education.
These issues seem inseparable from other employment and wealth trends and whether there are such things any more as public goods. Has higher education always been this much of a mess, and I just didn't know because I didn't work there?
Friday, February 14, 2014
The votes are in, and VW-Chattanooga employees have voted 712-626 against representation by the UAW (participation was 89%). As has been frequently noted in the news, this could have been a ground-breaking vote in many ways. One of the most obvious is that it would have represented a breakthrough as the UAW finally gains a foothold in the foreign-owned Southern automaking industry. Moreover, the labor-management relationship was to model itself on a German-style works council.
Although important, I found the "foothold" point to be the less important one. In many ways, this situation is unique to a German company with long ties to one of the more powerful unions in the world (IG Metal). Even if the vote had gone the other way, there was no reason to assume that unionization would've spread to other plants in the South.
More interesting was that the proposed relationship between VW and the UAW looked extremely promising. Many commentators (including yours truly) have argued in favor of more cooperative labor-management relationships and it would've been really interesting to see how it developed. But it was not to be.
Thursday, February 13, 2014
Michael Duff (Wyoming) has posted on SSRN his forthcoming piece in the Catholic University Law Review entitled: ALT-Labor, Secondary Boycotts, and Toward a Labor Organization Bargain.
Here is the abstract:
Recently, workers led by non-union labor advocacy groups, popularly labelled “ALT-Labor,” have been staging strikes and other job actions across the low wage economy. Some observers see this activity as the harbinger of a reinvigorated labor movement or, more generally, as audacious dissent by low wage workers with nothing to lose. Others view the activity cynically as an exercise in futility, a struggle against inexorable market forces that refuse to pay $15 per hour to a fast food or big box retail worker. This article takes a different tack, presuming (implicitly using history as its guide) that employers will respond to ALT-Labor in a historically typical manner — by seeking labor injunctions and civil damages in courts.
Labor injunctions are available under certain sections of the Labor Management Relations Act (LMRA) when “labor organizations” violate those sections. This article specifically considers whether ALT-Labor groups, though not unions in the traditional sense, are nevertheless “labor organizations” under the LMRA capable of violating the secondary boycott provisions of the statute. If ALT-Labor groups have the requisite status to commit these violations, they may be subject to federal court injunction and civil damages under the LMRA.
The article concludes that ALT-Labor’s labor organization status is uncertain and will turn on a given group’s explicit statement of a “labor organization-like” purpose, and on whether it behaves like a statutory labor organization. Litigation premised on the labor organization status of an ALT-Labor group therefore poses risk for both sides, business and ALT-Labor.
The article accordingly proposes that unions and business strike a deal by agreeing to narrow the labor organization definition. Employers have wanted to narrow the definition for decades in order to establish workplace committees that have consistently been found presumptively unlawful. Unions, on the other hand, have historically resisted a narrowing of the definition because of the 1930s historical specter of the “company union”: “fake” unions set up by employers to confuse workers into thinking they have real representation when they do not. However, the article contends that the companies in which fake unions were once a concern are vanishing artifacts, and that unions should therefore compromise on the labor organization definition to protect a dynamic, emerging new type of workforce from labor law used as a sword.
This is really a must-read for anyone thinking seriously about labor law reform in the United States and a presents a realistic way forward for unions in the current political and legal environment.
Check it out!
Tuesday, February 11, 2014
Friend of the blog Wendy Greene (Cumberland, Samford U) writes to tell us of an upcoming conference at UCLA that might interest our readers. The topic is Race, Labor, and the Law, the sponsor is the UCLA Institute for Research on Labor and Employment, and the program looks great:
Friday, February 28, 2014
8:00 AM - 8:10 AM
- Chris Tilly, Ph.D. | Director, UCLA Institute for Research on Labor and Employment; Professor of Urban Planning, UC Los Angeles
8:10 AM - 8:55 AM
- Ruben J. Garcia, J.D., LL.M. | Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas
- "The Relationship Between Racism and Anti-Union Animus"
9:00 AM - 10:30 AM
Transformation of the Labor Movement
- Héctor Cordero-Guzmán, Ph.D. | Professor of Sociology and Urban Education, School of Public Affairs, Baruch College, City University New York
- "Worker Center, Worker Center Networks, and the Promise of Protections for Low Wage Workers under the FLSA"
- Victor Narro, J.D. | Project Director, Center for Labor Research and Education, Institute for Research on Labor and Employment, UC Los Angeles
- Saru Jayaraman, M.P.P., J.D. | Director, Food Labor Research Center, University of California, Berkeley; Co-Founder & Co-Director, Restaurant Opportunities Center United
- "Racial Segregation in the Restaurant Industry: Challenges & Opportunities"
10:35 AM - 12:05 PM
Panel A: The Politics of Prison and Labor: How Incarceration Affects Reentry, Employment Opportunities, and the Labor Movement as a Whole
- Kelly Lytle Hernandez, Ph.D. | Associate Professor of History, UC Los Angeles; Director, UCLA Department of History's Public History Initiative
- Marta Lopez Garza, Ph.D. | Professor of Gender and Women's Studies and Chicana/o Studies, California State University, Northridge
- "When Will the Punishment End?"
- Heather Ann Thompson, Ph.D | Associate Professor of History and African American Studies, Temple University
- "Making Mass Incarceration Matter to the American Labor Movement"
Panel B: Bringing Workers Into Focus: Worker Cooperatives, Black-Latino Relations in the Workplace, and Racial Alliance Building in the Labor Movement
- Jassmin Poyaoan | J.D. Candidate, UCLA School of Law, UC Los Angeles
- Vanessa Ribas, Ph.D. | Assistant Professor of Sociology, UC San Diego
- "The Value of Being Negro, the Cost of being Hispano: 'Disposability' and Challenges for Cross-Racial Solidarity in the Workplace"
- Alexandra Suh, Ph.D. | Executive Director, Koreatown Immigrant Workers Alliance (KIWA)
12:05 PM - 1:05 PM Lunch
1:05 PM - 2:35 PM Concurrent Panels
Panel A: Intimate Labor
- Mireille Miller Young, Ph.D. | Associate Professor of Feminist Studies, UC Santa Barbara
- "Illicit Eroticism: The Politics of Intimate Labor in Black Women's Porn Work"
- Grace Chang, Ph.D. | Associate Professor of Feminist Studies, UC Santa Barbara
- Elena Shih | Ph.D. Candidate in Sociology, UC Los Angeles
- "Rehabilitating Intimate Labor: Transnational Racial Formations of 'Good Work' in Human Trafficking Rescue"
Panel B: Labor Law Through a Critical Race Theory Lens
- Maureen Carroll, J.D. | Greenberg Law Review Fellow, UCLA School of Law, UC Los Angeles
- "Privilege and Invisibility in Labor Practice"
- Nayla Wren | J.D. Candidate, UCLA School of Law, UC Los Angeles
- Sanjukta Paul, M.A., J.D. | Attorney & Clinical Teaching Fellow, UCLA School of Law, UC Los Angeles
- "Normative Obstacles to Empowerment Lawyering in the Workers Rights Context"
2:40 PM - 4:40 PM Concurrent Panels
Panel A: Intersectional Analysis of Women in Low Wage Labor, Organizing, and Combating Workplace Discrimination
- Sarah Haley, Ph.D. | Assistant Professor of Gender Studies, UC Los Angeles
- Eileen Boris, Ph.D. | Hull Professor and Chair, Department of Feminist Studies, UC Santa Barbara
- "(In)Visibility and the Color of Home Care: Law, Recognition, Justice"
- D. Wendy Greene, J.D., LL.M. | Professor of Law, Cumberland School of Law, Samford University
- Ellen Reese, Ph.D. | Professor of Sociology and Chair of Labor Studies, UC Riverside
- "Intersecting Inequalities Among Latina/o Warehouse Workers in Inland Southern California: Challenges and Prospects for Justice"
Panel B: Safe Jobs, Healthy Jobs, Good Jobs
- Anne E. Fehrenbacher MPH | Ph.D Student in Community Health Sciences, UC Los Angeles
- "Job Insecurity and Quality of Life: Testing a Causal Model of Job Stress Proliferation Moderated by Race, Gender, and Education"
- Kevin Riley, MPH, Ph.D | Director of Research and Evaluation, UCLA Labor Occupational Safety & Health (LOSH), Institute for Research on Labor and Employment, UC Los Angeles
4:45 PM - 5:45 PM Wine and Cheese Reception
Saturday, March 1, 2014
9:20 AM - 9:25 AM
- Pamela A. Izvănariu, J.D., LL.M. | Director of Research & Development, UCLA Institute for Research on Labor and Employment, UC Los Angeles
9:25 AM - 11:15 AM
Labor and Employment Issues Facing Indigenous Peoples in the U.S.
- Matthew L.M. Fletcher, J.D. | Professor of Law & Director of the Indigenous Law & Policy Center, Michigan State University
- "On Treaties and Internal Tribal Sovereignty"
- James Kawahara, J.D. | Adjunct Professor in Practice, UCLA School of Law, UC Los Angeles; Attorney, Kawahara Law P.C.
- "Judicial Application of Federal Labor and Employment Laws to Indian Tribes When Congress is Silent: What Fills the Vacuum?"
- Lynn Stephen, Ph.D. | Professor of Anthropology and Director of the Center for Latino/a and Latin American Studies, University of Oregon
- "Indigenous Mexican Workers in the U.S.: Labor Conditions, Health, and Identity"
- David Kamper, Ph.D. | Associate Professor and Chair of American Indian Studies, San Diego State University
- "The Work around Tribal Sovereignty: Negotiating Notions of Labor, Jobs, & Class in Tribal Governmental Gaming and Economic Development"
11:20 AM - 1:10 PM
Race, Labor, and Immigration
- Hiroshi Motomura, J.D. | Professor of Law, UCLA School of Law, UC Los Angeles
- "Race, Labor, and the Making of Immigration Outside the Law"
- Sameer Ashar, J.D. | Clinical Professor of Law, Irvine School of Law, UC Irvine
- "Immigration Enforcement, Race, and Resistance"
- Shannon Gleeson, Ph.D. | Associate Professor of Latin American and Latino Studies, UC Santa Cruz
- "Precarious Labor, Tenuous Rights: Lay v. Legal Conceptions of Justice at the Workplace"
- David Cook-Martin, Ph.D. | Associate Professor of Sociology, Grinnell College
- "A House Divided: Labor and its Contrasting Roles in Shaping Ethnically Selective Immigration Law in the Americas"
1:10 PM - 2:10 PM Lunch
2:10 PM - 4:00 PM Worker Voice, Labor Speech
- Leticia M. Saucedo, J.D. | Professor of Law, UC Davis
- Camille Gear Rich, J.D. | Associate Professor of Law, Gould School of Law, University of Southern California
- "Post-Racial Hydraulics: The Role of the Fair Labor Standards Act in the Repackaging of Race and Gender Discrimination Claims"
- Nicholas Espiritu, J.D. | Staff Attorney, National Immigration Law Center
- Catherine Fisk, J.D. | Chancellor's Professor of Law, Irvine School of Law, UC Irvine
- "Worker Voice and Labor Speech After Harris v. Quinn and Citizens United: Why Unions Should Have the Same Free Speech Rights as Corporations and Why the Supreme Court Thinks They Do Not"
4:00 PM - 4:45 PM
- Ian F. Haney-López, J.D., M.P.A. | John H. Boalt Professor of Law, UC Berkeley
- "Dog Whistle Politics/Dog Whistle Racism"
If you will be in the area, it seems like a great opportunity to hear from a broad mix of subject areas, disciplines, topics, academics, and people in the field. For more information and to register, see here.
Monday, February 10, 2014
In another sign that the 5-member NLRB is ready for business, the Board has put out two separate calls for briefs on three separate issues: deferral to arbitration awards, faculty status as employees, and jurisdiction over religous universities. All of these are perennial issues that have been hard fought over the years. The announcements (links above) contain more info on filing briefs.
The announcement for the deferral issues states, in part:
The National Labor Relations Board (NLRB) invites interested parties to file briefs . . . to determine whether or not the Board should continue, modify or abandon the Olin/Spielbergstandard for deferral to arbitration awards.
Under the existing standard, the Board defers to an arbitration award when (1) the arbitration proceedings are fair and regular; (2) all parties agree to be bound; and (3) the arbitral decision is not repugnant to the purposes and policies of the Act. Spielberg Mfg. Co., 112 NLRB 1080 (1955). Further, the arbitral forum must have considered the unfair labor practice issue. The Board deems the unfair labor practice issue adequately considered if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice issue. Olin Corp., 268 NLRB 573 (1984). The burden of proof rests with the party opposing deferral.
The NLRB General Counsel has asked the Board to adopt a different standard. Under his proposal, the party urging deferral would bear the burden of demonstrating that (1) the collective-bargaining agreement incorporates the statutory right, or the statutory issue was presented to the arbitrator, and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue. If the party urging deferral makes that showing, the Board would defer unless the award was clearly repugnant to the Act.
The announcement for the regious university jurisdiction and faculty status states, in part:
The National Labor Relations Board is inviting briefs from interested parties on two questions: whether a religiously-affiliated university is subject to the Board’s jurisdiction, and whether certain university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded managerial employees.
The case is Pacific Lutheran University (19-RC-102521). . . . In its invitation, the Board listed three questions to be addressed concerning jurisdiction, including what test the Board should apply under NLRB v. Catholic Bishop, 440 U.S. 490 (1979), to determine whether self-identified “religiously affiliated educational institutions” are exempt from the Board’s jurisdiction, and what factors the Board should consider in determining the appropriate standard for evaluating jurisdiction under that case. The Board listed nine questions that the briefs should address concerning the standard under NLRB v. Yeshiva University, 444 U.S. 672 (1980).
It appears that there is going to be a lot of important things coming from the Board, so it looks to be an interesting year.
Wednesday, February 5, 2014
The NLRB has just announced that it is proposing new election rules. To be more accurate, it is proposing the identical set of reforms that it proposed on June 11, 2011. We described those proposals here, which were ultimately watered down when the Boar finalized its election rules. Of course, as readers well know, the NLRB faced many challenges to those rules, particularly based on procedural objections, which led it recently to withdraw the rules. As we have noted, opponents to these reforms should've been careful what they ask for, as the challenges gave the Board a good excuse to go back to the drawing board and come out with more robust changes, which it is now doing. For those disappointed by the watering down of the June 2011 proposals, this is a possible silver lining to the entire issue.
From the NLRB's announcement:
The National Labor Relations Board announced today that it is issuing proposed amendments to its rules and regulations governing representation-case procedures. In substance, the proposed amendments are identical to the representation procedure changes first proposed in June of 2011. A Notice of Proposed Rulemaking (NPRM) will appear in the Federal Register tomorrow. The proposals are intended to enable the Board to more effectively administer the National Labor Relations Act. Specifically, the NPRM presents a number of changes to the Board’s representation case procedures aimed at modernizing processes, enhancing transparency and eliminating unnecessary litigation and delay. Issuance of the proposed rule was approved by Board Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer. Board Members Philip A. Miscimarra and Harry I. Johnson III dissented. . . .
“I believe that the NPRM first proposed in June of 2011 continues to best frame the issues and raises the appropriate concerns for public comment,” Pearce said. He stressed that the Board is reviewing the proposed changes with an open mind: “No final decisions have been made. We will review all of the comments filed in response to the original proposals, so the public will not have to duplicate its prior efforts in order to have those earlier comments considered. Re-issuing the 2011 proposals is the most efficient and effective rulemaking process at this time.”
“Unnecessary delay and inefficiencies hurt both employees and employers. These proposals are intended to improve the process for all parties, in all cases, whether non-union employees are seeking a union to represent them or unionized employees are seeking to decertify a union,” Pearce said. “We look forward to further exchanges of ideas to improve the processes in a way that will benefit workers, employers and all of the American people.”
The reforms the Board will propose would:
- allow for electronic filing and transmission of election petitions and other documents;
- ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process;
- streamline pre- and post-election procedures to facilitate agreement and eliminate unnecessary litigation;
- include telephone numbers and email addresses in voter lists to enable parties to the election to be able to communicate with voters using modern technology; and
- consolidate all election-related appeals to the Board into a single post-election appeals process.
Tuesday, January 28, 2014
ESPN this morning reported that a group of college football players at Northwestern have filed a representation petition with the NLRB, seeking to be recognized for bargaining purposes. More stories here and here. Northwestern's response here, and the NCAA's here. Mike McCann (New Hampshire) weighs in here. The biggest hurdle for the players will be in demonstrating that they are employees for purposes of the NLRA, which ties into debates about whether college athletes in revenue generating sports should be paid and others.
Monday, January 27, 2014
Bill Herbert sends word of the e-publication of Volume V of the Journal of Collective Bargaining in the Academy (JCBA). JCBA publishes on collective bargaining (in its broadest sense) in a university setting in three distinctive genres: scholarly articles, opinion pieces, and “notes from the field” practitioner pieces to share the practical workings of collective bargaining. JCBA is an open access, peer-review online publication of the National Center for the Study of Collective Bargaining in Higher Education and the Professions. JCBA welcomes submission of scholarly articles for future volumes from a wide community of university and college faculty, graduate students, post-doctoral scholars, administrators, union leaders and representatives and other others with an interest in collective bargaining and representation issues in the academy.
- “Positive Collaboration: Beyond Labor Conflict and Labor Peace,” by former National Center for Collective Bargaining in Higher Education and the Professions Executive Director Richard Boris.
- “Shelter from the Storm: Rekindling Research on Collective Bargaining and Representation Issues,” by current National Center Executive Director William Herbert.
- “Organizational Culture, Knowledge Structures, and Relational Messages in Organizational Negotiation: A Systems Approach,” by Vincent P. Cavataio and Robert S. Hinck.
- An analysis of messages from both sides in the most recent negotiations at Central Michigan University.
- “Collective Begging at Its Best: Labor-Management Relations in South Dakota,” by Gary Aguiar.
- An article from the union perspective on the gains in the last round of negotiations in the South Dakota system.
- "Bargaining Market Equity Adjustments by Rank and Discipline,” by Jonathan P. Blitz and Jeffrey F. Cross.
- "Negotiating For Curriculum & Class Size, 2011-13: One Faculty Union’s Perspective,” by Amy Rosenberger and Steve Hicks.
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
Monday, January 13, 2014
My former colleague at the NLRB, and current National Education Association staff counsel, Jason Walta, let me know that the NEA is hiring for staff counsel. You can get all the info here [Download OGC Staff Counsel 2014]. The basics:
NEA seeks an experienced attorney to join the team in the NEA Office of General Counsel. The NEA Office of General Counsel works on a diverse array of legal matters to advance NEA’s overall mission including litigation, regulatory and advocacy matters. . . . Applicants for the NEA Staff Counsel position should be interested in a position involving both substantial litigation and in house advice and counsel work. . . . [A]pplicants should be experienced and adept at resolving the array of legal issues that an in house counsel operation must handle, ranging from providing legal advice in ongoing organizing, legislative and coalition efforts, to resolving disputes with vendors and providing advice on contract terms and arrangements. We are looking for an experienced attorney who is interested in working collaboratively in a congenial environment to craft and pursue creative litigation and advocacy strategies to advance the interests of NEA and its members.
- J.D. from an accredited law school required.
- Six or more years of legal practice, including experience as a senior staff counsel, partner, or litigator.
- Excellent oral and written advocacy skills including public speaking skills and appellate brief writing.
- Substantive knowledge of, and practice in, federal and state labor and employment law, federal and state constitutional law, and an ability to serve as a generalist providing advice and counsel on general operations matters as needed.
- Ability to perform complex legal analytical work.
- Demonstrated ability to work independently as well as within a team.
- Self-motivated and able to manage a variety of tasks concurrently.
- Demonstrated creativity in crafting innovative legal strategies to advance the interests of workers and their representatives.
- Ability to work in a fast-paced environment, managing litigation independently and with expertise.
- Ability to collaborate and work in a collegial environment.
- Desire to participate as a key player in developing and litigating cases to move forward the cause of public education and the interests of NEA members and affiliates.
- Strong analytical, interpersonal, and communication skills.
- Healthy respect for colleagues, employees, and superiors.
- A sense of humor.
To Apply: Please forward a letter of interest in the NEA Staff Counsel position, your salary history or salary requirement, a resume and two recent significant writing samples to Kelli Brown at email@example.com or Kelli Brown, NEA Office of General Counsel, NEA, 1201 16th Street NW, Washington DC 20036. References are required of all candidates.
The National Education Association is an equal opportunity/affirmative action employer and encourages women, minorities and persons with disabilities to apply.
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