Thursday, June 18, 2015
Sam Estreicher (NYU) has just published Depoliticizing the National Labor Relations Board: Administrative Steps , 64 Emory L.J. 1611 2015). Here's the abstract:
Complaints about the political forces arrayed against the basic labor laws and about the increasing “politicization” of the National Labor Relations Board are hardy perennials. The charge remains a constant, only those who level it differ depending on which party is in the White House. On the assumption that legislative change is not in the offing, what can the Board on its own do to improve its reputation in Congress and in the courts and, at the same time, enhance its effectiveness as the essential government agency to protect workers in dealings with their employers?
Nick Ohanesian (Judge, Social Security Administration) has posted on SSRN his article (just published at 45 U. Mem. L. Rev. 245 (2014)) Does 'Why' or 'What' Matter: Should Section 302 Apply to Card Check Neutrality Agreements? Here's an excerpt from the abstract:
... In this article I will trace the histories of Section 302 and card check neutrality agreements. I will discuss how different courts have treated the application of Section 302 to card check neutrality agreements. Then I will look at the attempts to resolve the conflict between Section 302 and card check neutrality agreements by first looking at the issues of intent and whether card check neutrality agreements are covered by Section 302. Finally, I will propose looking at extrinsic evidence to decide on a case by case basis whether card check neutrality agreements run afoul of Section 302.
Wednesday, June 17, 2015
David Schwartz (NLRB, writing on his own behalf) has just posted on SSRN his article, The NLRA's Religious Exemption in a Post-Hobby Lobby World: Current Status, Future Difficulties, and a Proposed Solution, which is being published in the ABA Journal of Labor and Employment Law. The abstract:
This article discusses the relevance of the Supreme Court’s Hobby Lobby decision in relation to the National Labor Relations Act (NLRA). Writing as an individual and not on behalf of the NLRB, Mr. Schwartz reviews the broad issue of employment law in religious settings and the development of the NLRA’s religious exemption. He suggests a standard for application of the Board’s religious exemption designed to achieve an appropriate balance of the competing interests between employer's religious rights and employees' regulatory protections.
It's great to see someone address this issue. I've already been introducing Hobby Lobby in my labor law (and other courses), although it's hard to predict exactly how much it's going to impact those areas. But with Hobby Lobby and the NLRB's new Pacific Lutheran standard, the issue of religion and labor law will be quite interesting.
Thursday, June 11, 2015
Matthew Fletcher (Michigan St.) writes to update us on recent cases concerning the applicability of the NLRA to American Indian casinos. In NLRB v. Little River Band of Ottawa Indians Tribal Gov't (links are to Turtle Talk blog), the Sixth Circuit held that the Act applies to the Band's operation of a casino. In Chickasaw Nation & Teamsters Local 886, the NLRB declined jurisdiction over casino employees to avoid abrogating treaty rights.
Also of note, Matthew just posted on SSRN his essay A Restatement of Federal Indian Law?, 40:4 ABA Human Rights Magazine 23 (May 2015). The essay describes the ongoing restatement project on the law of American Indians being conducted by the American Law Institute.
Monday, May 4, 2015
Christine Neylon O'Brien (Boston College School of Management) has just posted on SSRN her article (forthcoming 66 Lab. L.J. (2015)) Am I Blue or Seeing Red? The NLRB Sees Purple When Employer Communication Policies Unduly Restrict Section 7 Rights. Here's the abstract:
This paper analyzes the National Labor Relations Board’s recent Purple Communications decision. There, the Obama Board found Purple Communication’s restrictions on employee use of its email system violated the National Labor Relations Act as employees were authorized to use the employer email system for work purposes but prohibited from using the email for concerted activities on nonworking time. The Purple Communications ruling has broad significance for employer email policies in the private sector because Section 7 of the NLRA protects employee rights to engage in concerted activity whether employees are unionized or not. The decision specifically overturned the Bush Board’s 2007 holding in Register Guard that employer property rights took precedence over employee Section 7 rights to communicate on employer email systems. This paper evaluates the parameters and implications of the Board’s recent decision on email, including the concerns raised by the dissenters regarding the application of the Board's rebuttable presumption. Practical solutions are recommended.
Wednesday, April 29, 2015
Seth Harris, Distinguished Scholar at Cornell's ILR School, has just posted on SSRN his article, Managing for Social Change: Improving Labor Department Performance in a Partisan Era, which will appear in the West Virginia Law Review. The abstract:
I saw Seth present this paper at a West Virginia University Symposium, and it was really interesting. That's right, it's about managerial performance measures and it was really interesting. Don't believe me? Read the article.
Tuesday, April 28, 2015
The annual Colloquium on Scholarship in Employment and Labor Law (COSELL) will be held at Indiana University Maurer School of Law, Sept. 11-12, 2015, in Bloomington, Indiana. This conference, now in its tenth year, brings together labor and employment law professors from across the country. It offers participants the opportunity to present works-in-progress to a friendly and knowledgeable audience.
Registration is now open at: http://www.law.indiana.edu/cosell.
If you’re planning to come, please go ahead and register now; you can fill in details about the project you will present later in the summer.
The conference is free, and we will provide all meals during the conference. Travel & hotel information is found on the website.
Please feel free to contact any of us with questions.
We will look forward to hosting you in Bloomington!
April 28, 2015 in About This Blog, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0)
Sunday, April 26, 2015
The first of no doubt many updates on the legal wrangling of the NLRB's new election rules. In Baker v. NLRB, a D.C. district court judge has denied plaintiffs' motion for a temporary restraining order stopping enforcement of the new rules, which went into effect on April 14, 2015. Of particular note is the court's finding that the plaintiffs had not shown a likelihood of winning on the merits. This is far from the final word, but a nice first step for the NLRB.
For a description of the major changes in the new rules, and an argument that those changes are quite modest in scope and effect, see my recent article, NLRB Elections: Ambush or Anticlimax?.
Hat Tip: Patrick Kavanagh
Recently, in Buckeye Florida, the NLRB invited briefing on whether to overturn its precedent prohibiting unions from charging nonmember employees for grievance processing. This is an issue in right-to-work states because, under current NLRB law (H.O. Canfield Rubber Co.), a union has a duty to pursue nonmember grievances the same as member grievances, but can't require nonmembers to pay anything for the service.
Given all the recent attacks on union security agreements (requiring dues), this is one way the NLRB can respond. Expect major outcries if the NLRB decides to allow unions to charge for grievance processing. However, it's not that easy to defend the current precedent. That line of reasoning is that grievance processing is a central part of collective representation, which is certainly a reasonable legal argument given that right-to-work laws are legal. That said, this is one area in which the non-labor expert is likely to feel more sympathetic to the union, which merely has to argue something along the lines of "we shouldn't have to work for free."
Wednesday, April 15, 2015
It's official. As of yesterday, the NLRB's new representation rules are now effective. Challenges are already raised, and more are likely to follow, so there's plenty more to come. In the meantime, if you're look for a primer on the major new changes, you can see my forthcoming article, NLRB Elections: Ambush or Anticlimax?, which will appear in the Emory Law Journal as part of its symposium on the NLRB at 80 years.
Wednesday, April 8, 2015
News is out today that Sharon Block, former NLRB Member of Noel Canning fame, will be working at the White House. She will be a senior advisor for labor and working families at the White House Office of Public Engagement.
Great to hear that my former colleague at the NLRB has moved such an important position.
Hat Tip: Patrick Kavanagh
Tuesday, April 7, 2015
This Friday, the Emory Law Review will host a symposium, The National Labor Relations Board After Eighty Years. The lineup, present company excluded, is impressive and includes all current NLRB members (plus a former Chairman) and the current NLRB General Counsel. In addition, several of the top labor academics will be presenting. As I can personally attest, the law review has already been working hard on getting the symposium issue ready for publication, so it should be out relatively soon.
Here's the symposium description, which appropriately gives thanks to Michael Green, who--in addition to the law review members--put this entire symposium together:
The Emory Law Journal is pleased to present a special symposium the Journal has put together with the invaluable assistance of Professor Michael Z. Green of the Texas A&M University School of Law. Our symposium will address the continued viability of the National Labor Relations Board as an administrative agency at the dawn of its eightieth anniversary. The decisions and actions of the Board have drawn increased scrutiny in the modern era, and even more so in the wake of President Obama's efforts to ensure the Board was comprised of a full contingent of members. But even before President Obama was elected, because the Board primarily develops its rules through adjudications its decisions have become quite controversial, no doubt in part as a result from the lack of legislative changes to guide the agency's actions over the past forty years. The NLRB’s effectiveness as it reaches its eightieth anniversary in 2015 represents an important legal question and a major concern for all those interested in labor law. This Symposium will assemble some of the most prominent labor law scholars in the country along with the NLRB Chairman and NLRB General Counsel and other members of the NLRB to assess the role of the Board today, what actions Congress may take with respect to the Board, and what the future of the Board might be. Specifically, our symposium will feature three panels, highlighted below.
Assessing the NLRB's Impact & Political Effectiveness
Charlotte Garden, Seattle University School of Law, “A Shot Across the Bow”: Politics and the Obama Board
Julius Getman, University of Texas School of Law, The NLRB, What Went Wrong, and Should We Try to Fix It?
William B. Gould IV, Stanford Law School, Politics and the Effect on the NLRB’s Adjudicative Process
Theodore St. Antoine, University of Michigan Law School, The NLRB’s Role Vis-à-Vis Courts
A Conversation with NLRB Members & General Counsel
Moderator: Professor Charles A. Shanor
Mark Gaston Pearce, Chairman
Richard F. Griffin, Jr., General Counsel
Kent Y. Hirozawa, Member
Harry I. Johnson, III, Member
Lauren McFerran, Member
Philip A. Miscimarra, Member
Opportunities for Improvement in Changing Times
Kenneth G. Dau-Schmidt, Maurer School of Law, Indiana University, Labor Law 2.0: The Impact of the New Information Technology on the Employment Relationship and the Relevance of the NLRA
Samuel Estreicher, NYU School of Law, Towards a Depoliticization of the NLRB: Administrative Steps
Michael Z. Green, Texas A&M University School of Law, Expanding Protections in the Non-Union Workplace: The New Age of the NLRB
Jeffrey Hirsch, UNC School of Law, NLRB Elections: Ambush or Anticlimax?
Monday, March 16, 2015
As we noted earlier, the UAW's attempt to organize graduate students at Columbia raised the potential for the NLRB reversing Brown University. As of Friday, that potential significantly increased. In two short decisions (I haven't been able to find them yet), the NLRB ordered a regional hearing on the UAW's petition to represent grad students at both Columbia and the New School. This procedural decision establishes a path for the NLRB to ultimately review whether the students are employees under the NLRA. Thus, these cases--in addition to the Northwestern University footballs players--means that we'll likely see a lot of collegiate student action at the Board for a while.
Sunday, March 1, 2015
Bill Herbert (Hunter College) and Alicia McNally (New York State PERB) have just posted on SSRN their article, Just Cause Discipline for Social Networking in the New Gilded Age: Will the Law Look the Other Way?. The abstract:
We live and work in an era with the moniker of the New Gilded Age to describe the growth in societal income inequality. The designation is not limited to evidence of the growing gap in wealth distribution, but also the sharp rise in employment without security, including contingent and part-time work. This article examines the state of workplace procedural protections against discipline as they relate to employee use of social media in the New Gilded Age. In our times, reactions to the rapid distribution of troublesome electronic communications through social networking tend to eclipse patience for enforceable workplace procedures. The advent of social media and the decline of job security have created a perfect storm that raises the question of whether labor law will look the other way when it comes to the principles of workplace fairness and justice.
The article begins with President William McKinley’s introduction of the doctrine of just cause discipline into American labor law in 1897, during the Gilded Age, at the same time that the common law at-will doctrine was continuing to gestate. McKinley’s unilateral executive action established principles that remain the cornerstone of just cause discipline: proper notice, a fair evidentiary investigation, an opportunity to be heard, and nondiscriminatory treatment. The article then turns to the development of just cause standards in the 20th Century, which added other elements such as notice of workplace policies and the use of progressive discipline. Lastly, the article examines how just cause principles should be applied to allegations of electronic misconduct in the New Gilded Age to ensure reasonable and prudent disciplinary results, employee acceptance of adverse employment decisions, and a decreased likelihood of litigated claims of unlawful discrimination.
I'll confess that I was totally unaware of McKinley's action. Learn about that move and the intersection of just cause and technology in this interesting article.
The National Center for the Study of Collective Bargaining in Higher Education's newest edition of the Journal of Collective Bargaining in the Academy is out. The peer-reviewed journal's latest includes the following articles:
- The Impact of Unionization on University Performance by Mark Cassell and Odeh Halaseh;
- Post-Recession CBAs: A Study of Wage Increases in the Agreements of Four State-wide Faculty Unions by Steve Hicks; and
- Academic Collective Bargaining: Patterns and Trends by Curtis R. Sproul, Neil Bucklew, and Jeffery D. Houghton.
Check it out!
Saturday, February 7, 2015
As readers know, the NLRB's General Counsel is pursuing an action against McDonald's that, along with its opinion in the Roundy's case, would somewhat expand the concept of joint employment under the NLRA. (Note that this article, which is otherwise good, mistakenly states that the NLRB has decided the issue.) It's actually unclear to me how significant the GC's analysis would be in practice, but it's clearly a change in a direction that employers don't like. As a result, the Senate recently held a hearing on the issue (there's a similar on the new representation rules that I'll post on once they happen later in the month).
Our emeritus blogger, Paul Secunda was one of the witnesses and seemed to do quite well). There are obviously arguments about where the line between single and joint employment should be, but I think the GC is reasonably concerned about having their cake and eating it too (or Big Macs). In other words, if corporations want more control over the employment practices of its franchises, it needs to take responsibility as well.
Friday, January 9, 2015
As student football players at Northwestern University press forward with their case at the National Labor Relations Board, the Michigan legislature has amended its statute governing public-employee collective bargaining to exclude student athletes at Michigan’s public universities. The amendment, now in effect, added the underlined text:
An individual serving as a graduate student research assistant or in an equivalent position, and a student participating in intercollegiate athletics on behalf of a public university in this state, or any individual whose position does not have sufficient indicia of an employer-employee relationship using the 20-factor test announced by the internal revenue service of the United States department of treasury in revenue ruling 87-41, 1987-1 C.B. 296 is not a public employee entitled to representation or collective bargaining rights under this act.
Michigan Complied Laws 423.201(1)(e)(iii). (Although the text of this provision also excludes graduate student research assistants, a federal district court declared that exclusion to violate article IV, section 24, of the Michigan Constitution. Toth v. Callaghan, 995 F. Supp. 2d 774 (E.D. Mich. 2014).)
Friday, December 19, 2014
Big Day at NLRB: General Counsel Issues Joint-Employer Complaint Against McDonald's and NLRB Issues Decision Changing Religious and Faculty Exemption Doctrines
A couple of big NLRB actions today. In the first, and as expected, the General Counsel issued consolidated complaints against McDonald's, alleging that the company is a joint employer along with its franchisees and therefore liable for numerous unfair labor practices (some of which have already been found to be meritorious). This is likely part of the GC's push in Browning-Ferris to revise the joint-employer doctrine, as well as a more aggressive argument that corporate control over franchises warrants joint-employer status. As far as the practical effect for the Board's recent moves, this case and Browning-Ferris is unparalleled. As much as the religious and faculty issues today are interesting and email captures the public's attention (and mine), far more companies and employees could be impacted by changes to the joint-employer doctrine. So this is one well worth watching.
In the second issue today, the Pacific Lutheran decision, the NLRB is getting a lot of bang for its buck, as it is changing two doctrines. The first is a new Catholic Bishop analysis for determining when religious schools and faculty should be exempt from NLRB jurisdiction. Under the new Pacific Lutheran standard, the NLRB will only decline jurisdiction when a university or college shows that it "holds itself out as providing a religious educational environment" (a requirement adopted from the D.C. Circuit's Great Falls decision) and shows that "it holds out the petitioned-for faculty members as performing a religious function." This latter requirement means that faculty must perform a "specific role" in the creation or maintenance of the school's religious education, as shown by evidence that might include job descriptions, employment agreements, faculty handbooks, and statements by the university. This new standard is likely to decrease the number of schools that can enjoy the religion exemption, although it's not clear to me at this point how big that effect will be.
The second is a revision of the Yeshiva University standard for determining when university faculty are managerial employees exempt from NLRA coverage. The NLRB describes this revision as an attempt to provide more guidance and predictability for parties concerned about the application of Yeshiva. The analysis is focused on Yeshiva's requirement that managerial faculty have broad and substantial decision-making authority, which the Board attempts to capture with five categories of university decision-making. Three of the categories are deemed more important to the university as a whole ("primary"): academic programs, finances, and enrollment management. The other two categories are less important to the university as a whole ("secondary"): academic policy and personnel policy and decisions. When determining whether faculty have control over these decisions, the Board will look to the actual exercise of control or ability to effectively recommend decisions. The result seems like to expand the number of faculty who will be covered by the NLRA, but the extent to which that's true will have to wait for its application in more cases.
A busy and important day for the NLRB. But, I don't expect it to be the last such day this year.
Hat Tip: Patrick Kavanagh
Tuesday, December 16, 2014
Yesterday, the NLRB issued a decision in Babcock & Wilcox, which changed its approach to arbitration deferral. Under the Board's previous "Olin" standard, it would defer to an arbitration decision if the contractual issue decided by the arbitrator is factuall parellel to the unfair labor proactice before the Board, the arbitrator was generally presented with the facts relevant to the ULP, and the award was not clearly repugnant to the NLRA. In reversing this standard, the Board argued that it did not adequately protect employees' NLRA rights because it allowed deferral when it was not clear that an arbitrator decided the statutory issue.
Under the new Babcock & Wilcox standard, the NLRB will defer to an arbitration award when the party arguing for deferral shows that the statutory issues were presented to the arbitrator, the arbitrator addressed the statutory issue or was prevented from doing so by the party opposing deferral, and NLRB law reasoanbly permits the award. Like the D.R. Horton case, this is another recent example where the Board has stressed the importance of NLRA rights in the face of pressure to favor arbitration.
Conflicts with arbitration usually fall arbitration's way before the Supreme Court, so expect a significant challenge to this new standard. That said, adjusting when to defer to arbitration is less of a direct challenge and more withing the Board's discretion, so this decision could well survive. Stay tuned.
Hat Tip: Patrick Kavanagh -JH
Friday, December 12, 2014
Doesn't the NLRB know this is a busy week for me? First was yesterday's e-mail decision in Purple Communications. Today, the NLRB released new final rules to reform the representation process. As readers are well aware, this is Version 2.0 for the representation rulemaking process, which was initially caught up in challenges over NLRB member appointments. The NLRB decided to drop the rules rather than fight the challenge. Some commentators (ahem) thought that the critics should beware of what they ask for because the NLRB could come back with stronger rules. The Board proposed just such a set of rules in February. The Board has now adopted them in a final rule. I haven't had time to compare the proposed and final rules side-by-side, but they look substantially the same at first glance.
Although these rules are somewhat broader than the ones in 2011, I should note that they aren't a surprise, as they track the NLRB initial proposed rules in 2011, which the Board eased back on a bit in their final rules. The Board's information site on this year's rules has a very helpful chart comparing the old and new rules that you should definitely check out (but doesn't copy well on the blog). Instead, I am copying the Board's summaries of the changes below; the full set of final rules is here.
One final note. In spite of what critics will argue, these rules do not set up "ambush elections." Instead, the NLRB is proposing modest reforms to eliminate unwarranted delay in the election process, both before an election is run and appeals to a completed election. They are also doing basic modernization reforms, such as allowing electronic filing and including e-mail addresses in the Exclesior list, among other things. There will still be plenty of time for unions and employers to express their views on unionization and for employees to make an informed decision. There will just be somewhat less time for employers fight the union with captive-audience meetings and other aggressive tactics, some of which are illegal but difficult to remedy. Employers will still have time for those strategies, just not as much. The rules will also lessen the amount of time that employers can stall after a union wins an election--time that is often vital to a union trying to maintain support. Finally, many critics will be people who argued against card-check elections by waving the banner of fair secret-ballot elections. This is exactly what the Board is doing here by making the secret-ballot process fairer and lessening unnecessary delay.
Hat Tip: Patrick Kavanagh
Here's the summary:
Modernizing Board Procedures
Electronic Filing/Communications – Parties may file documents, such as petitions, electronically, rather than by fax or mail. Parties and the NLRB’s regional offices can transmit documents electronically, rather than using slower or more expensive forms of communications, such as mail or express delivery services.
Election Voter List – The employer must include available personal email addresses and phone numbers of voters on the voter list in order to permit non-employer parties to communicate with prospective voters about the upcoming election using modern forms of communication.
Streamlining Board Procedure and Reducing Unnecessary Litigation
Identifying Disputed Issues – The non-petitioning parties will be required to respond to the petition and state their positions generally the day before the pre-election hearing opens. The petitioner will be required to respond to the issues raised by the non-petitioning parties at the opening of the hearing. Litigation inconsistent with the positions taken by the parties will generally not be allowed.
Litigation of Eligibility and Inclusion Issues – Generally, only issues necessary to determine whether an election should be conducted will be litigated in a pre-election hearing. A regional director may defer litigation of eligibility and inclusion issues affecting a small percentage of the appropriate voting unit to the post-election stage if those issues do not have to be resolved in order to determine if an election should be held. In many cases, those issues will not need to be litigated because they have no impact on the results of the election.
Post Hearing Oral Argument and Briefs – All parties will be provided with an opportunity for oral argument before the close of the hearing. Written briefs will be allowed only if the regional director determines they are necessary.
Review of Regional Director Rulings – The parties may seek review of all regional representation-case rulings through a single post-election request, if the election results have not made those rulings moot. The election will no longer be stayed after the regional director issues a decision and direction of election, in the absence of an order from the Board.
Review Standard for Post-election Issues – The Board will have the discretion to deny review of regional director post-election rulings, under the same standard that has governed Board review of regional director pre-election rulings for many years.
Increasing Transparency and Standardizing Board Process
Earlier and more complete information to the parties – When the petitioner files its petition, it will be required to simultaneously serve a copy of the petition, along with a more detailed Agency description of representation case procedures and an Agency Statement of Position form, on all parties identified in its petition in order to provide them with the earliest possible notice of the filing of the petition and Board procedures for processing those petitions. NLRB regional offices will serve a Notice of Hearing and a Notice of Petition for Election (along with a copy of the petition, description of representation case procedures and the Statement of Position form) on all parties. The non-petitioning parties will be required to respond to the petition (generally the day before the hearing opens) by filing with the regional director and serving on the other parties a Statement of Position identifying the issues they have with the petition. As part of its Statement of Position, the employer will be required to provide all other parties with a list of prospective voters, their job classifications, shifts and work locations.
Earlier and more complete information to employees - The employer is required to post a Notice of Petition for Election containing more detailed information on the filing of the petition and employee rights within two business days of the region’s service of the petition. The Notice of Election will provide prospective voters with more detailed information about the election and the voting process.
Scheduling of Hearings – Except in cases presenting unusually complex issues, pre-election hearings will generally be set to open 8 days after a hearing notice is served on the parties. Post-election hearings will generally open 14 days after objections are filed.