Sunday, July 9, 2017
Many thanks to Dennis Nolan (South Carolina emeritus; NAA) for forwarding Sylvain Cypel, Macron’s California Revolution, which has a detailed discussion of French President Emmanuel Macron's plans for French labor law. Here's an excerpt:
Continuing deindustrialization has shut millions of older employees out of the job market. And unemployment among the young is beating all records: at the end of April 2017, the number of officially registered jobseekers hit 5,836,000—the same number as in the United States, a country with five times France’s population! For the past forty years, whether governed by the right or the left—or even during short periods of “cohabitation”—neither side has been able to curb unemployment.
[N]ew macroniste politicians closely follow their leader’s core socioeconomic philosophy: that in today’s world, the people who rise to the top, or at least stay afloat, are those who’ve succeeded in adapting to the relentless process of globalization and its technological disruptions. There will be less and less room for job security and more and more for people who have a capacity for innovation and adaptation. Gone are lifelong professional careers. Likewise gone are rigid job descriptions and fixed work schedules. In this, Macron once again embodies a very American way of thinking. And he believes that France has to catch up to the current reality of the labor force.
But the first real test of the new president’s mandate will be the new labor law that he intends to issue as an executive order, before asking France’s parliament to vote on it. Macron wants to move fast. He wants to take advantage of the “big bang” of his election and his opponents’ stunned paralysis to abolish much of the existing French labor code, which, because of powerful labor unions, was designed to cater to the best-protected employees—especially those in heavy industry—and has long been skewed toward the interests of workers in general at the expense of greater flexibility and efficiency for private enterprise. Just how far does he mean to take this? Clearly, as far as he can.
The real question is whether Macron is ready to take on the unions or will seek to compromise with them. His approach to economic reform has been well known since his tenure as economics minister (2014–2016): a major deregulation of existing laws to allow employers to practice less “rigid” employment and hiring policies, including fewer restrictions on salaries and working conditions. These measures, he argues, are essential if there is to be a revival of the French job market. Employers, who are also asking for a freer hand in firing workers, claim these measures will bring a reduction in labor costs. The corollary to these ambitions, and the condition for their success, is a significant reduction of what remains of the unions’ power, already enormously diminished. (Fifty years ago, 22 percent of all employees were union members, while that number is currently 7.7 percent, according to the OECD).
When Macron tried to put these reforms into effect as economics minister under François Hollande, he encountered very strong resistance from the unions and from the public itself. After a series of protest marches and demonstrations, the law had to be issued by Prime Minister Valls, through a procedure designed to avoid a parliamentary vote, which it seemed quite unlikely to pass. Today the basic problem is much the same. The unions are so hostile to reforming the labor market because, behind the apparent “change,” it is possible to glimpse a policy that’s been at work for a long time already. Ever since 1984, all governments, right and left, have worked tirelessly to shatter administrative and legal “rigidity” with respect to hiring and firing. And yet, France’s steadily worsening joblessness has never been brought under control. Even worse, in France as in nearly all the rest of the Western world, inequality has become ever more deeply entrenched, in lockstep with the deterioration of middle-class purchasing power. It’s not hard to imagine, therefore, that the unions might once again be the front line of resistance to still more radical measures to deregulate the labor market.
Friday, June 23, 2017
Jonathan Rauch has written The Conservative Case for Unions in the Atlantic. Congratulations to Matt Dimick (Buffalo) for a prominent mention, and for Rauch's discussion of Dimick's work on the Ghent System. Here's an excerpt from the article:
All workers do not suffer equally from the decline of unions: In today’s fragmented, hypercompetitive, and globalized workplace, high-powered professionals enjoy more autonomy and respect than ever. Less educated workers, by contrast, have lost agency and, in many cases, dignity. Edward Luce of the Financial Times puts the problem well in his new book, The Retreat of Western Liberalism: “In survey after survey, the biggest employee complaint is being treated with a lack of respect. Whether they work in an Amazon warehouse, serve fast food, or sit in a … customer-service cubicle, they feel diminished by how they are treated.” That has implications not just for the well-being of workers, but for the health of capitalism and even of democracy.
In America, the modern conservative movement was founded on anticommunism and antiunionism. Senator Barry Goldwater (“Mr. Conservative”) built his career bashing unions. President Ronald Reagan, although a former union leader himself, made his bones by breaking the air-traffic controllers’ union. Just this past February, Republicans succeeded in their long push for a right-to-work law in Missouri. But the conservative war on unions is beginning to look like a Faustian bargain. If 2016 taught us anything, it was that miserable workers are angry voters, and angry voters are more than capable of lashing out against trade, immigration, free markets, and for that matter liberal democracy itself.
Saturday, June 17, 2017
Congratulations to Steve Ware (Kansas) and Ariana Levinson (Louisville) on the publication of their new book Principles of Arbitration Law (Concise Hornbook Series, available July 2017). Here's the publisher's description:
The Concise Hornbook Principles of Arbitration Law is an authoritative and extensively cited treatise on arbitration. It thoroughly discusses general arbitration law―from federal preemption of state law to the formation, performance, and enforcement of arbitration agreements―and provides in-depth coverage of specialized law governing international arbitration and labor arbitration. The last few decades have witnessed the growth of a large body of legal doctrine―from statutes, judicial decisions, and other sources―focused on arbitration. This Concise Hornbook summarizes that body of law, so should be useful to lawyers and scholars researching arbitration law and to students learning about arbitration.
I haven't yet received a copy of the book, but know from reviewing the draft of the labor law chapter that it will be top-flight.
Sunday, June 11, 2017
The Center for Contemporary Labour Law (CCLL) is a new labor-focused Center directed by Professor Giorgi Amiranashvili of Tbilisi State University in Tbilisi, Georgia. The goals of CCLL include (1) educational and scientific research activities, (2) dialogue & collaboration with all actors in the labor field, (3) consultative activities, and (4) collaboration with foreign experts and institutions.
Founding members include Prof. Amiranashvili, Prof. Dr. Andrea Borroni (Italy); Assoc. Prof. Dr. Vakhtang Zaalishvili (Georgia); Ph.D. Candidate Tornike Kapanadze (Georgia). Other members include Assoc. Prof. Dr. Elena Sychenko (Russian Federation); Prof. Dr. Francesco Bacchini (Italy); Prof. Dr. Roberta Caragnano (Italy); Dr. Marco Seghesio (Italy); Assoc. Prof. Dr. Nicos Trimikliniotis (Cyprus); Prof. Rick Bales (U.S.).
CCLL has hosted several lectures at Tbilisi State, including:
- Prof. Dr. Andrea Borroni & Prof. Dr. Francesco Bacchini on “The position of Labour law in the private law system”.
- Assoc. Prof. Dr. Elena Sychenko was held at Ivane Javakhishvili Tbilisi State University on “The European Convention on Human Rights as a Source of Labour Law”.
- Mr. Kari Tapiola, Special Advisor to the Director General of the International Labour Organization, on “The Role of International Labour Standards in strengthening Social Justice and Economic Efficiency”.
Sunday, May 21, 2017
Michael Green has been burning the midnight scholarship oil recently. He has posted two articles to SSRN in the last month: The Audacity of Protecting Racist Speech under the National Labor Relations Act, forthcoming 2017 U. Chicago Legal Forum, and Can NFL Players Obtain Judicial Review of Arbitration Decisions on the Merits When a Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?, forthcoming NYU J. Legislation and Public Policy. He also has a forthcoming paper in SMU Law Review on Racial Prejudice in ADR in the Workplace (SSRN post coming soon). Congrats, Michael!
Thursday, May 11, 2017
Reports are out today of two probable nominees to the NLRB. According to Politico's Morning Report report, the president intends to nominate William Emanuel and Marvin Kaplan, and both are currently undergoing FBI background checks. Emanuel is an attorney at Littler Mendelson's L.A. office, while Kaplan has been working in the federal government, currently at the Occupational Safety and Health Review Commission and earlier as Republican counsel for the House Education and the Workforce Committee. An interesting note is that Bill Seaton had been rumored to be on the shortlist and it's possible that having worked as a "union buster" may have worked against him (or not, no one's saying at this point).
Thursday, April 27, 2017
Anne-Marie Lofaso (West Virginia) has just posted on SSRN her article, Workers Rights as Natural Human Rights, which is to be published in the University of Miami Law Review. The abstract:
We live in an increasingly polarized world: one summed up by President Clinton, “we’re all in this together;” the other summed up by then-presidential candidate Trump, “I alone can fix it.” These world views have implications for workers and how the future workplace is ordered. In this Article, I explore the idea that a natural human rights approach to workplace regulations will tend to favor the we’reall-in-this-together view, whereas the Lochnerian or neoliberal view tends to favor an individualistic world view.
The Article’s six-step analytical approach starts with a historical analysis of labor law jurisprudence, concluding that U.S. labor laws must be filtered through a law-and-economic lens of U.S.-styled capitalism to predict the outcomes of legal disputes and to expose human rights infirmities inherent to that approach. In step two, I explore T.H. Marshall’s account of citizenship, concluding that Marshall’s rights-based rubric is too limited to fully explain workers’ rights, which tend to cut across the full gamut of human rights. In step three, I expand upon Marshall’s work to build a framework for evaluating workplace laws based on the worker as a citizen of the labor force who has human rights. I do this using two methodologies: (1) comparative legal analysis between U.S. law and international human rights standards; and (2) jurisprudential analysis of fundamental values within a rights-based framework. In step four, I modify John Rawls’s famous thought experiment to include a veil of empathy. In that modified experiment, I conclude that participants in the original position behind a veil of empathy would generate values underlying human rights, namely autonomy (to become part author of one’s work life) and dignity (to be treated as a person always as an end and never merely as a means). In step five, I apply this human rights approach to show that workers’ and employers’ interests conflict at the interests-level and, more fundamentally, at the values-level. I conclude that these conflicts are primarily over the distribution of that which labor and capital create. This distributional question is fundamental a question of moral and political justice, which will and does have real political consequences. In step six, I set forth a path along which this research project should explore.
Check it out!
Friday, April 7, 2017
The book is the first Canadian text to explore in depth all three regimes of work law, including Common Law, Regulatory Law, and Collective Bargaining Law and it emphasizes the interaction between the three regimes. For those interested in understanding Canadian work law, this is the book. Also, you might be interested in knowing that the book was written to be accessible to non-lawyers, including the thousands of business, HRM, industrial relations, labour studies students learning work law in Canada. I wrote it because I frequently teach business students and there was no book in Canada that explained the law of work in a sophisticated, contextual manner but that doesn’t also assume the readers have already studied law for a year or two. Finally, the book also extends the subject matter beyond most labor law texts, by including chapters on subjects such as work and intellectual property law, work and privacy law, trade law, immigration law, and bankruptcy law.
Tuesday, March 28, 2017
Bill Herbert (Hunter College) recently did an interview with Radio Higher Ed: "A Primer on Unionization and Collective Bargaining in U.S. higher Education Institutions." According to the summary:
This primer on collective bargaining in higher education traces historical developments of unionization in public and private institutions as well as among tenure track, non-tenure-track faulty and graduate students. In the last five years, unionization activity has increased over 25% in the private sector, mostly in adjunct faculty units. While institutions can participate in voluntary collective bargaining activities, agreements in a formal collective bargaining context include clear rules applicable to the entire bargaining unit and enforcement mechanisms. The emergence of micro bargaining units (department level activity), and specifics of the unionization process are discussed. Specific unions that work with higher education institutions are named. Mandatory subjects in the collective bargaining process include salary, hours, healthcare, pension, professional development grievance, antidiscrimination, academic freedom, tenure, use of facilities, appointment and reappointment details, leaves, holidays, evaluations, personnel files, disciplinary actions, research and fellowship monies. Institutions may resist unionization due to flexibility limitations, institutional concept of shared governance and fiscal implications that may result from compensation negotiations. It is likely that unionization will continue to increase for non-tenure track faculty in the private sector. Regularity of access to faculty by students may be aided by collective bargaining.
Check it out!
Monday, March 27, 2017
Participation in American labor unions have changed radically, albeit incrementally, over the last fifty years. Private-sector union density has declined five-fold, whereas public-sector density has increased almost as significantly. Today, unions rarely strike and in much of the country they are politically impotent. As traditional manufacturing declines and is replaced by on-demand work, unions risk becoming a historical footnote.
This article ties the decline in union density and power to macroeconomic trends that are highly troubling in an advanced democracy, such as rising income inequality and the failure of wage growth to keep pace with GDP growth. It next reviews the traditional prescriptions that labor scholars have advocated to reverse labor’s decline. Finally, it proposes three new radical fixes: authorizing criminal prosecution for willful violations of labor law, expanding labor protections to on-demand workers, and reversing the legal presumption that workers are not represented by a union unless they affirmatively opt in.
Rick has some interesting recommendations in the article, so definitely worth checking out.
Wednesday, March 22, 2017
Yesterday, the Supreme Court ruled (6-2) in NLRB v. SW General. The Court held that once President Obama nominated Lafe Solomon to be the NLRB's General Counsel, he could no longer serve in his current capacity as Acting General Counsel. This is because of a provision in the Federal Vacancies Act which says that someone can only serve in an acting capacity for a covered position if they served as first assistant to that position for at least 90 days in the previous year. Because Solomon was the Acting GC--not its first assistant--when nominated, he could not continue as Acting GC.
The two dissenters (Sotomayor & Ginsburg) would have held that this provision applies only to individuals who are first appointed as acting officials--not, as was the case with Solomon, those who were already acting once nominated. In addition to a textualist argument, they stressed historical examples similar to what happened with Solomon as well as the history of the Federal Vacancies Act, which was prompted by President Clinton's nomination of Bill Lan Lee to the DOJ's Department of Civil Rights. Scotusblog has a an informative description of the case.
Under the decision, once the President nominated Solomon, he became ineligible to serve as Acting GC. This begs the larger question: what to do about all of his actions during that time (Jan. 5, 2011-Nov. 4, 2013)? Unless I missed it in the decision, the Court doesn't say anything about the practical consequences of its decision. As a result, its probably best to consult the D.C. Circuit decision, which the Court affirmed. That case vacated an unfair labor practice charge. But what of all of the other functions of the GC's office? For instance the certification of elections? Theoretically, this could be an issue for a host of other actions. The D.C. Circuit noted that the NLRB could have, but didn't, argue that the ULP in SW General was made by a regional director acting upon a delegation of authority from Solomon. If challenged, I would expect the NLRB to raise that argument, at least with regard to non-ULP cases, and maybe those too. But the NLRB may not have to rely solely on this argument. At the end of the D.C. Circuit's decision, it emphasized what it saw as an important limiting feature of its decision:
Finally, we emphasize the narrowness of our decision. We hold that the former Acting General Counsel of the NLRB, Lafe Solomon, served in violation of the FVRA from January 5, 2011 to November 4, 2013. But this case is not Son of Noel Canning and we do not expect it to retroactively undermine a host of NLRB decisions. We address the FVRA objection in this case because the petitioner raised the issue in its exceptions to the ALJ decision as a defense to an ongoing enforcement proceeding. We doubt that an employer that failed to timely raise an FVRA objection—regardless whether enforcement proceedings are ongoing or concluded—will enjoy the same success. See 29 U.S.C. § 160(e); Andrade, 729 F.2d at 1499.
This caveat notwithstanding, I do expect parties to raise SW General to try to vacate orders. I think the D.C. Circuit is right that those arguments should not prevail, but I anticipate some extra work for the NLRB to litigate this issue for a while. Also, I'm curious how many parties raised an FVRA argument--any readers have any insight on this?
Friday, March 17, 2017
Jeff Hirsch (North Carolina) and Joe Seiner (South Carolina) have just posted on SSRN their extraordinarily timely article A Modern Union for the Modern Economy, ___ Fordham Law Review ___(forthcoming 2018) Here's the abstract:
Membership in traditional unions has steeply declined over the past two decades. As the White House and Congress are now completely Republican controlled, there promises to be no reversal of this trend in the near future. In the face of this rejection of traditional bargaining efforts, several attempts have been made to create alternative “quasi-union” or “alt-labor” relationships between workers and employers. These arrangements represent a creative approach by workers to have their voices heard in a collective manner, though still falling far short of the traditional protections afforded by employment and labor law statutes.
This Article critiques one such high-profile, quasi-union effort in the technology sector—the Uber Guild. While the Guild does not provide any of the traditional bargaining protections found in the National Labor Relations Act (NLRA), it offers Uber drivers some input over the terms and conditions under which they work. Falling somewhere between employment-at-will and unionization protected under the NLRA, the Uber Guild is a creative attempt to help both workers and the company to better understand how they can improve the working relationship.
This Article navigates the Uber Guild and other nontraditional efforts that promise a collective voice for workers in the face of a precipitous decline in union membership. Closely examining the implications of these existing quasi-union relationships, this Article explores how workers in the technology sector face unique challenges under workplace laws. We argue that these workers are particularly well situated to benefit from a nontraditional union model and explain what that model should look like. While there can be no doubt that a traditional union protected by the NLRA is the optimal bargaining arrangement, we must consider the enormous challenges workers in the technology sector face in obtaining these protections. A modern union is needed for the modern economy.
Wednesday, March 15, 2017
Charlotte Garden (Seattle U.) has just published in The Atlantic Unions Are Wondering: Resist or Assist? Congrats to Charlotte for taking this topic -- which we all know is important -- to a wider audience (or, as she said in a Facebook post: "in which I convinced The Atlantic to let me write about NLRA Section 8(b)(4) for them"). Here's an excerpt:
The first month of the Trump administration was mostly a discouraging one for labor unions. Since taking office, the president has frozen federal hiring (though he did pledge to hire 15,000 border patrol agents) and restated his support for a national “right to work” law that would disrupt unions’ funding mechanisms. He also sought the confirmation of Andy Puzder, a fast-food CEO who’s not fond of minimum-wage or overtime rules, to head the Department of Labor, only to see him withdraw amid public outcry.
Still, some within the labor movement have cheered Trump’s use of the presidential bully pulpit to harangue employers who send jobs overseas, and voiced optimism about Trump’s stated desire to “buy American and hire American.”
This has left many labor unions with a decision about how best to serve their members going forward: Should they try to get along with Trump, in the hope that they will be able to help guide his efforts to court working-class voters? Or should they take to the streets alongside progressives calling for workplace-based actions, like the recent nationwide strikes by women and by immigrants?
Sunday, February 26, 2017
Kathy Stone (UCLA) has just published Unions in the Precarious Economy:
How collective bargaining can help gig and on-demand workers (American Prospect, 2/21/17). In it, she discusses various types of precarious workers, including workers in the retail, restaurant, and hospitality industries, as well as workers who perform "gigs" as independent contractors for internet platform companies. She gives examples to show how various types of precarious workers can benefit from forming unions and bargaining collectively. Here's an excerpt:
The various forms of on-demand work tend to defeat the protections of our system of labor regulation, which assumes that employees have regular payroll employment. Seemingly, unions are also not much help, since they, too, are based on the assumption of regular jobs. But if we dig a little deeper, there is a long history of unions protecting their members from employers’ efforts to force workers to bear all the risks and costs of fluctuating demand. This is true in industries as varied as construction, airlines, hotels, and entertainment.
If the Trump administration changes rules and laws to weaken traditional unions—which it is almost certain to do—these new strategies become that much more important. Some of these are unions that organize and collectively bargain under the terms of the National Labor Relations Board. But others, in the world of so-called alt-labor, use worker centers, associations, and other worker-empowerment strategies that are not technically unions. If the Trump administration changes rules and laws to weaken traditional unions—which it is almost certain to do—these new strategies become that much more important.
Thursday, February 23, 2017
Many thanks to Matthew Dimick for contributing this guest post:
A few weeks ago, OnLabor.org featured a post I wrote about the Ghent system and progressive federalism. At the end of that post, I referred to “other avenues for Ghent-type experiments” beyond the main one discussed in the article, which would require changes in the current federal-state cooperative system of unemployment insurance. Mentioning these “other avenues” prompted several queries from readers, and I will use this opportunity here at the Workplace Prof Blog to talk about those.
First, some background. To remind readers, the Ghent system is a form of union-administered (but government paid-for) unemployment insurance that has a substantial, positive impact on the rate of union membership in the countries that have it. What makes the Ghent system a prospect for union revitalization in the US is the system of unemployment insurance we have here, which basically incentivizes states to adopt, finance, and administer their own unemployment-insurance systems subject to federal guidelines and oversight by the Secretary of Labor. It also helps that states are given more latitude under federal labor law preemption when it comes to the design and administration of unemployment insurance.
I originally wrote about the Ghent system for a law review article in 2012, after Democrats had lost control of Congress, which had effectively ended any prospect of passage for the Employee Free Choice Act. Yet as long as a Democrat remained in the White House, a reform like the Ghent system at the state level didn’t need approval from a Republican Congress. I doubt Obama’s tenure is the last we will see of divided government, so I still think it is worth thinking about a progressive-federalist reform like the Ghent system. Yet since a Trump administration probably forestalls that avenue for now, it is also worth dwelling on “other avenues,” as I suggested in my other post.
One alternative is take a purely private route to a Ghent system. Despite its weakness in terms of union density, the US labor movement still has vast resources and expertise gained through administering health and pension funds. Can these resources be leveraged to create a subsidized and supplemental system of unemployment insurance for workers? Without the government subsidy and because it wouldn’t be a worker’s exclusive source of unemployment insurance, this proposal certainly wouldn’t have the impact of a full-blooded Ghent system. Yet historically, unions have filled this function, and it played an important part in the origins of the Ghent system, which was created when a municipal government came to the rescue of a union unemployment insurance fund depleted by an economic downturn.
A private option need not supply unemployment insurance. The Freelancers Union has had notable success in providing health, dental, life, and disability insurance to workers who join the union. The main difference between the Freelancers Union and a traditional labor union is that the former does not collectively bargain. It is understandable why the Freelancers Union has made this choice. At the same time, a labor organization that combined both mutual aid and bargaining functions is a powerful ideal.
Moving even further from the insurance realm, union-administered and employer- or government-funded job training also seems like a possibility. Workforce development is a goal the business community can get behind. And unions already have a template in the highly successful Culinary Academy of Las Vegas, a consortium of local hotel casinos and unions that provides job training to union members. Working closely with the union’s hiring hall, the CHA does many things the Ghent system does in terms of cultivating union membership.
In short, there are indeed many other avenues available for experimenting with Ghent-type institutions that worker advocates should consider—even with a Trump in the White House.
Wednesday, February 22, 2017
In September of last year, a Texas jury, on the basis of erroneous instructions from the judge, ordered an SEIU local union of janitorial workers to pay $5.3 million in damages to a cleaning company called Professional Janitorial Services (“PJS”). This union-destroying order was based on statements made years ago as part of the Houston Justice for Janitors campaign, a campaign that succeeded, against enormous odds, in winning contracts for building cleaners in a notably hostile jurisdiction.
The implications of the verdict are devastating. Local unions of low-wage employees cannot pay multi-million dollar jury verdicts and continue to function (as evidenced by the recent bankruptcy filing of the union defendant in the PJS case), If permitted to stand the Houston verdict will inevitably have a chilling effect on labor speech during organizing campaigns. And unions must be able to organize effectively’ during these trying times, if the labor movement is to survive.
Defamation verdicts in state courts like that against the Houston janitors call for a long-overdue reexamination of the Supreme Court’s unfortunate decision in Linn v. Plant Guard Workers, 383 US 53 (1966). The Court in Linn upheld by a five to four vote the exercise of state jurisdiction in a libel suit arising from a union organizing drive. Justice Clark, who wrote the majority opinion, insisted that such jurisdiction would not pose a threat to a union’s right of speech so long as state jurisdiction was “limited to redressing libel issued with knowledge of its falsity, or with reckless disregard of whether it was true of false.” Although he recognized the importance of a broad right of speech generally in labor disputes, Justice Clark concluded that where malice was found ‘the exercise of state jurisdiction … would be a ‘merely peripheral concern of the Labor Management Relations Act.’”
Four justices dissented. They pointed out that the Courts standard was vague and could easily be interpreted to cover actions intended to be protected by the National Labor Relations Act by simply pleading that the offending statements were made with malice. And they predicted accurately that the majority opinion ‘both underestimates the damage libel suits may inflict on the equilibrium, and overestimates the effectiveness of the restraint which will result from superimposed requirements of malice and special damages.’
The recent PJS verdict illustrates the wisdom of the dissenting justices and the danger to unions implicit in state court defamation suits arising from union organizing efforts. The statements (circulated in fliers and other campaign materials were directed at the legal rights of workers . They described allegations of actual PJS employees in a then-pending Fair Labor Standards Act case and in unfair labor practice proceedings before the National Labor Relations Board. The ultimate goal of the union’s statements and actions was not to inflict economic harm on PJS but to establish a collective bargaining relationship with it – a goal promoted by Section 2 of the NLRA. Far from being evidence of malice were the very sort of speech protected by the US Constitution and Section 7 of the NLRA. The trial judge failed to analyze the contested speech in terms of the language or policy of either the NLRA or the US Constitution and instead encouraged the jury to find defamation on the basis of irrelevant material. For example:
- The trial court allowed the company’s lawyers (over union objection) to rest the bulk of their case on two completely irrelevant and prejudicial pieces of evidence that should never have been admitted—an outdated SEIU “campaign manual” that was not in effect during the Houston campaign and that no one involved in the Houston campaign had ever seen, and an unrelated lawsuit by a different employer in a different jurisdiction alleging different claims against SEIU arising out of a different campaign that had not even begun as of 2006.
- The trial court presented the jury not the actual union flyers and statements at issue in the case but, instead, abbreviated and inaccurate summaries of those materials written by the court itself. Thus, an accurate union statements that “A new lawsuit filed on behalf of current and former employees of [PJS] charges that the company engaged in unlawful business practices and violated federal law” was reformulated in the judge’s question to the jury “Did the SEIU Local 5 disparage the business of PJS by publishing that PJS systematically failed to pay its employees for all hours worked?”
Similar errors abound. It is difficult to imagine a verdict that more blatantly overrides basic employee rights and traditional Constitutional policies. The wisdom of the dissenting Linn Justices was once more illustrated. It is time to either overrule the Linn decision or to provide for more careful regulation of state court defamation in cases arising from union organizing campaigns.
Fortunately, the union has indicated it will appeal and raise many of the issues identified above. One hopes that an appellate court will stand up for free speech and the long recognized and well-established rights of workers.
Saturday, January 28, 2017
Bill Herbert (Hunter College) has posted on SSRN his article, The Winds of Changes Shift: An Analysis of Recent Growth in Bargaining Units and Representation Efforts in Higher Education, which is being published in the Journal of Collective Bargaining in the Academy. The abstract:
This article analyzes data accumulated during the first three quarters of 2016 regarding completed and pending questions of representation involving faculty and student employees in higher education. It is part of a larger and continuing National Center research project that tracks faculty and graduate student employee unionization growth and representation efforts at private and public institutions of higher learning since January 1, 2013.
The data presented in this article demonstrates that the rate of newly certified units at private colleges and universities since January 1, 2016 far outpaces new units in the public sector. There has been a 25.9% increase in certified private sector faculty units over the number of private sector units identified by the National Center for the Study of Collective Bargaining in Higher Education and the Professions in 2012, while the increase in the public sector has been 2.1%. The largest number of newly certified units involves non-tenure track faculty at private non-profit institutions. The second largest group of new units in higher education involves tenured and tenure-track faculty at public institutions. The average final election tallies demonstrate strong support for unionization among higher education faculty: 72.8% among private sector tenured/tenure-track and contingent faculty, and 73.3% among public sector tenure-track and contingent faculty.
The article demonstrates that unionization efforts by private sector tenured and tenure-track faculty and faculty continue to be adversely impacted by two judicially-created doctrines, despite modifications made to the applicable standards in a 2014 National Labor Relations Board decision. It also examines pending and completed unionization efforts by graduate and research assistants in light of the recent NLRB decision finding that private sector graduate student employees are entitled to the associational rights guaranteed under federal labor law.
Among other things, the article highlights some of the unique characteristics of collective-bargaining in higher education. Of course, a new Board may shift some of these trends by, for example, flipping again on the question of graduate students' status as employees.
Friday, January 27, 2017
Unlikely, but Charlie Morris (SMU emeritus) engages in some thoughtful, self-described wishful thinking. His essay over at onlabor is How President Trump Could Surprise with Improvement for the NLRB and a Boost for the Middle Class. Here's an excerpt:
Considering that [President Trump] won his election with the critical votes of many union men in Michigan, Ohio, Pennsylvania, and Wisconsin, what position will he likely take toward organized labor? Probably no one, including Trump himself, knows the precise answer to that question, or whether he will continue or worsen the GOP’s endemic negative attitude toward unions. My own view of what he might do—which is colored by my hope as to what I think he should do—stems from his previous labor-relations experience and public statements..., plus my tentative consideration and appraisal of his basic nature—which seems to be the same as President Obama’s, who said “I don’t think he is ideological. Ultimately he is pragmatic.” .... I would therefore like to believe that he will apply [such pragmatism] to matters involving labor-relations, especially since he claims to “have great relationships with unions” and has expressed his disdain for so many major policies of the Republican establishment—but in truth I will be totally surprised if that happens. If, however, Trump should prove to be a non-ideological President who will oppose key elements of the establishment—though his announcements of major appointments to date suggest otherwise—he should be amenable to allowing the NLRB to function according to its true statutory policy rather than treating it in the manner of his Republican predecessors, all of whom appointed critical numbers of Board Members and NLRB General Counsels who were opposed to the NLRA’s basic policy of favoring collective bargaining, a practice that contributed substantially to the Board’s failure to adequately enforce the Act.
Yesterday, the NLRB announced that the president has appointed NLRB Member Philip Miscimarra as chairman. According to the announcement:
“It is an honor to be named NLRB Acting Chairman by the President,” Miscimarra said. “I remain committed to the task that Congress has assigned to the Board, which is to foster stability and to apply the National Labor Relations Act in an even-handed manner that serves the interests of employees, employers and unions throughout the country.”
Miscimarra also recognized former Chairman Mark Gaston Pearce for his service on the Board. Pearce will continue as a Board Member in a term expiring on August 27, 2018 and has served as a Board Member since 2010 including Chairman since 2011. The Board also currently includes Board Member Lauren McFerran, whose term expires on December 16, 2019. Two Board Member seats are currently vacant.
Miscimarra has served as a Board Member since August 7, 2013. He was nominated by President Obama on April 9, 2013, and he was approved unanimously by the Senate Committee on Health, Education, Labor and Pensions on May 22, 2013. He was confirmed by the Senate on July 30, 2013, and his current term expires on December 16, 2017.
Before joining the Board, Acting Chairman Miscimarra was a Senior Fellow at the University of Pennsylvania’s Wharton Business School in the Wharton Center for Human Resources, and a labor and employment law partner with Morgan Lewis & Bockius LLP in Chicago. He also previously worked as a labor and employment attorney with Seyfarth Shaw LLP, Murphy Smith & Polk PC (now the Chicago office of Ogletree, Deakins, Nash, Smoak & Stewart, PC), and Reed Smith Shaw & McClay (now Reed Smith LLP).
Miscimarra received his Juris Doctor from the University of Pennsylvania Law School; a Masters in Business Administration from the University of Pennsylvania’s Wharton Business School; and a Bachelor of Arts degree from Duquesne University.
I got a chance to meet Chairman Miscimarra at a conference a couple of years ago. Although we don't always agree on the issues, I thought he was very thoughtful and had some useful insights from his time in practice.
Friday, January 13, 2017
Today, the Supreme Court announced that it would review the NLRB's D.R. Horton rule, which concludes that employment class action waivers can violate Section 8(a)(1) of the NLRA. The Court consolidated a group of cases under review that we be familiar to readers of the blog: NLRB v. Murphy Oil, Ernst & Yong v. Morris, and Epic System v. Lewis. Should be an interesting case and here's hoping that my follow blogger Charlie Sullivan and his co-author Tim Glynn picks up a Supreme Court citation on the way.
We'll keep you posted on the oral argument and developments that follow.