Wednesday, November 30, 2011
If you thought you saw pigs flying overhead today, it may be because of this story: the NLRB case against Boeing may be settling. According to reports, the union officials and Boeing have reached a tentative settlement that would have a new airplane built in Washington State. This is a different plane than the one being built in SC, but is apparently enough to satisfy the union. If the members ratify, the union will then inform the Board that it no longer has an issue with Boeing. Although General Counsel Solomon could still pursue the case, that's unlikely. Indeed, he was quoted as describing the agreement as a "very significant and hopeful development." He didn't say the case would end--he noted that after ratification, "we will be in discussions with the parties about the next steps in the process"--but I doubt that he is masochistic enough to pursue the case after the parties have settled.
Hat Tip: Dave
[UPDATE2: The meeting has now adjourned with--surprise--Pearce and Becker voting to proceed with the rule and Hayes voting against. Next step is the final draft of the rule, the Board vote to accept it or not, and if accepted to publish it.
UPDATE: Based on language by Pearce and Becker, as well as info from a reader, Member Hayes is at the meeting. I'm glad to hear it, as I think the Board will be much better served by his criticism at the meeting, rather than a Wisconsin-like circus. He actually talked about why he ultimately decided not to, such as not considering himself obstructionist, the recognition that a new member could make that action useless, and most importantly, that resigning would take the attention away from the rule itself.]
You can get a webstream of the meeting here. I can't tell for sure whether whether Member Hayes is there (bad resolution), but it doesn't look like it.
Chairman Pearce also noted that long-time labor attorney Andrew Kramer (who did a lot of work on the election rule issue), as well as a Board employee whose name I didn't catch, have passed away.
Tuesday, November 29, 2011
Q: What do the amendments in the Chairman’s resolution provide for?
A: The Chairman’s resolution contains six procedural amendments, all aimed at reducing unnecessary litigation in election cases before the Board:
- The National Labor Relations Act provides for a pre-election hearing to determine whether there exists a “question of representation” to be resolved by an election. Currently, parties can raise issues at the hearing that are not relevant to that question, which can result in unnecessary, expensive, and time-consuming litigation for the Board and all parties. The first proposed amendment gives the hearing officer authority to limit the hearing to matters relevant to the question of whether an election should be held.
- Most cases involve only routine issues based on well-known principles of Board law. In such cases, regional directors can reach a fair and sound decision based on the record from pre-election hearing, including closing arguments. Parties may currently file briefs after the hearing, but the briefing adds nothing to the regions’ decision-making process in such routine cases and substantially increases the parties’ litigation costs. The second proposed amendment authorizes the hearing officer to decide whether to permit briefing depending on whether the case presents issues that would benefit from it.
- The Board’s current rules require parties to file two separate appeals to seek Board review of pre-election issues and issues concerning the conduct of the election, respectively. Appeals concerning pre-election issues must be filed before the election, and are often subsequently mooted by the results of the election. The third amendment reduces unnecessary litigation by consolidating the two appeals into a single post-election procedure and by avoiding altogether appeals of issues that become moot as a result of the election.
- The fourth amendment follows directly from the third, by ending the practice of delaying the scheduling of elections to permit time for a pre-election appeal. (In any event, even under the current rules, the delay does not serve its stated purpose because the Board typically permits the election to be conducted and directs that the ballots be impounded while it considers the appeal.)
- In keeping with the effort to avoid multiple appeals in a single case, the fifth amendment would narrow the circumstances in which a request for special permission to appeal to the Board would be granted. Such permission would be granted only in extraordinary circumstances when it appears that the issue addressed in the appeal would otherwise evade review. (Board review would remain available following the election on all issues for which permission to appeal was denied or not sought.)
- The sixth amendment would simplify appeal procedures and avoid litigation of appeals that do not present a serious issue for review. It would do this by giving the Board discretion to hear and decide any appeals to the election process, whether they concern pre-election or post-election issues.
Q: What parts of the original proposed rule are not included in the Chairman’s proposal?
A: The original proposal represents a comprehensive initiative aimed at modernizing and streamlining the Board’s procedures in representation cases from beginning to end. It includes dozens of proposed amendments of the Board’s rules affecting many aspects of representation proceedings. The Chairman’s resolution includes only six procedural changes, leaving the vast majority of the proposed amendments for continued consideration by the Board. Among the many proposed amendments not included in the Chairman’s proposal are the electronic filing of petitions, the requirement that hearings be set for 7 days after service of the notice of hearing, the requirement of a statement of position filing, inclusion of email addresses and phone numbers in the voter list, and the change of the period for filing the voter list from 7 to 2 work days.
Although there will obviously still be objections, part of this list is far more modest than even my conservative guess (at least what I thought was conservative). For instance, electronic filing and new election dates seemed more doable to me. On the other hand, some things I thought doubtful are included, such as eliminating pre-election Board reviews and limiting the topics for a pre-election hearing. The big question now is what Member Hayes will do. Stay tuned . . . .
Doorey on Doorey on Decentred Regulation and Fast-Track Collective Bargaining to Improve Employment Standards Compliance
David Doorey (York - Canada) has just posted on SSRN his new article forthcoming in the Osgoode Hall Law Journal: Good Employer, Bad Employer: Decentred Regulation and Fast-Track Collective Bargaining to Improve Employment Standards Compliance.
Here is the abstract:
The North American workplace law model is broken, characterized by declining collective bargaining density, high levels of non-compliance with employment regulation, and political deadlock. This paper explores whether "decentred" regulatory theory offers useful insights into the challenge of improving workplace law effectiveness. It argues that the dominant political perspective today is no longer Pluralist or Neoclassical, but 'Managerialist'. Politicians with a Managerialist orientation reject the Pluralist idea that collective bargaining is always preferred, and the Neoclassical view that it never is. Managerialists accept a role for employment regulation and unions, particularly in dealing with recalcitrant employers who mistreat their employees.
The fact that Managerialists and Pluralists agree on this latter point creates a space for potential movement on workplace law reform. A law that encourages high road employment practices, while fast-tracking access to collective bargaining for low road employers could both encourage greater compliance with employment regulation, while also facilitate collective bargaining at high risk workplaces. This paper examines lessons from decentred regulatory scholarship for the design of a legal model designed to achieve these results. In particular, it develops and assesses a “dual regulatory stream” model that restricts existing rights of employers to resist their employees' efforts to unionize once they have been found in violation of targeted employment regulation.
The North American workplace law model is indeed broken, and this paper provides additional methods and insights from the new governance model to help repair our broken system. Count me still skeptical of self-regulatory approaches in the workplace, but Doorey's paper looks to be a must-read for anyone considering alternatives to workplace reform in Canada and the United States.
Following the NLRB's announcement that it would soon vote on some of the proposed election rules, a fight has broken out between the lone Repulican on the Board, Brian Hayes, and Chairman Pearce. There is a big disagreement about the extent to which the Democratic majority have allowed Hayes to participate (he argues that they haven't; Pearce says he refused to participate). Hayes has gone so far as to write a letter to the Chair of the House Education and the Workforce Committee alleging that the majority won't tell him which changes they are considering and have refused to share all the comments receive; Pearce has refuted those allegations as well. Finally, rumors are swirling that Hayes may resign to drop the Board to two members and thwart its power to issue a rule.
This incident raises a host of issues. It's unclear at this point what's really been happening, but Hayes' allegations obviously raises procedural questions that could provide ammunition for those challenging the rule. Moreover, if Hayes doesn't resign but, asanother rumor has suggested, merely refuses to participate in the vote, there is a question whether the Board would still meet its quorum requirements.
Stay tuned--there's a lot more to come.
Hat Tip: Patrick Kavanagh
Bloomberg reports this morning that American Airlines parent AMR Corp. (AMR) has filed for bankruptcy "after failing to secure cost-cutting labor agreements and sitting out a round of mergers that dropped it from the world’s largest airline to No. 3 in the U.S." This will set off another fight about whether companies can use bankruptcy to back out of collective bargaining agreements. The company has filed in Manhattan -- not Texas, where it's headquartered -- presumably at least in part because the federal courts in Manhattan have used bankruptcy to nuke CBAs (but cf. Frontier Airlines). I've written on the legal issue -- see 2001 Michigan St. L. Rev. 1145 -- but if anyone's looking for a timely article/note topic, this would be a great one.
Monday, November 28, 2011
Michael Waterstone recently posted a blog item on GINA that described a talk he gave in Ireland on genetic discrimination. The full post is well worth reading, but I'll copy a small part that I found to be particularly interesting:
Ultimately, as passed, GINA is both modest and revolutionary. Modest, because it just prohibits discrimination on the basis of genetic information in employment and the provision of health insurance. There are large legal issues relating to genetic information and genetic privacy that GINA does not touch: the preference of parents for certain genetic features in unborn children, the use of genetic information in life insurance policies, and the use of stem cells to further genetic science. Yet GINA is also revolutionary: usually, in our antidiscrimination law, Congress looks backward, building a record of discrimination in a particular area before it acts. Yet despite widespread fears of genetic discrimination, GINA was passed without much evidence that this was actually occurring on a large scale. To critics, this meant it was a "remedy in search of a problem." To supporters, GINA represented a rare opportunity for the law to get out ahead of a problem and proactively create a culture that this type of discrimination is not acceptable.
Paul Secunda (Marquete; visiting Wisconsin) has just posted on SSRN his article The Perceptible Disconnect between the Global Economic Crisis and the Wisconsin Public Sector Labor Dispute of 2011. Here's the abstract:
The enactment in June 2011 of Wisconsin Act 10, legislation that eliminated most collective bargaining rights for most public employees in Wisconsin, did not necessarily follow from the economic conditions surrounding the global recession. The argument here is that it was a blatant power grab with political, social, and economic implications. Governor Walker’s claim that Act 10’s anti-collective bargaining approach was required to balance Wisconsin’s budget is belied by two unassailable facts. First, there were a number of provisions in the law, including an annual union recertification requirement and an anti-dues checkoff provision, which had absolutely nothing to do with cost savings. Perhaps even more tellingly, when Act 10 was finally enacted by the State legislature, Walker and his allies in the legislature employed a legislative procedure which could only be utilized if Act 10 did not have any impact on state fiscal policy. In short, Governor Walker used the global economic crisis, and Wisconsin’s budget situation more specifically, as a ruse to enact a punitive bill against public sector unions.
Although unions and their allies have drafted, and continue to draft, procedural and substantive legal challenges to Act 10 based on state open meeting laws and constitutionally-based freedom of association and equal protections provisions, these legal challenges have so far been unsuccessful. If such efforts continue to be unsuccessful, it indeed may be a long time before any real public sector collective bargaining will be permitted in Wisconsin. The subsequent loss of workplace rights not only adversely impacts public sector workers, but also the citizens of Wisconsin who will be that much poorer for having to live in a society where internationally-recognized rights of association and collective bargaining are not taken seriously.
This piece discusses this historic moment in Wisconsin public sector labor law in three parts. The first section describes the story of the enactment of Wisconsin Act 10 in chronological order. The second section then considers whether the global recession in fact lead inevitably to the enactment of Act 10. Finally, the third section concludes by normatively arguing for robust public sector bargaining rights in Wisconsin and throughout the United States.
Saturday, November 26, 2011
The New York Times reports:
With handshakes, sighs and weary smiles, the N.B.A. and its players resolved a crippling labor dispute, allowing them to reopen their $4 billion-a-year business in time for the holidays. A 66-game season will start on Christmas Day, ending the second-longest lockout in league history.
The deal was reached at about 3 a.m. Saturday, on the 149th day of the lockout, after a final 15-hour bargaining session at the law offices of Weil, Gotshal and Manges.
On nearly every count, the deal favors the owners, who had sought all along to overhaul the system. The players made significant concessions, including a reduction of up to $300 million year in salaries, $3 billion over the life of the agreement.
The deal will feature a 50-50 split of revenues, but with the possibility of the players making as much as 51 percent or as little as 49, depending on whether the league exceeds or falls short of projections. The players had been earning 57 percent.
Friday, November 25, 2011
Marley Weiss (Maryland) is issuing the last call for papers for the CRN 8 - Labor Rights sessions at Law and Society's Hawai'i meeting, June 5-8, 2011. If you'd like to be included, please email her immediately.
Roger Ian Abrams (Northeastern) et al. have just posted on SSRN A Roundtable Discussion for the Digital Age: Brady v. NFL. This roundtable discussion, still pertinent given the current NBA labor dispute, includes Ed Edmonds (Notre Dame), Gabe Feldman (Tulane), Clark Calvin Griffith, Robert A. McCormick (Michigan State), Matt Mitten (Marquette), Gary Roberts (Tulane University), Stephen F. Ross (Penn State). It's at 29 Entertainment and Sports Lawyer (2011); here's the abstract:
This is a digital roundtable discussion, conducted through e-mail during the 2011 NFL lockout, between several leading sports, labor, and antitrust law professors and professionals discussing aspects of that lockout. At the heart of the debate was the Brady v. NFL lawsuit.
Richard Moberly (Nebraska College) & Lindsey Wylie have just posted on SSRN their chapter (forthcoming in WHISTLEBLOWING AND DEMOCRATIC VALUES) An Empirical Study of Whistleblower Policies in United States Corporate Codes of Ethics. Here's the abstract:
Companies have issued Codes of Ethics (also called Codes of Conduct) for decades, and these Codes increasingly have contained provisions related to whistleblowing. For example, Codes often encourage or even require corporate employees to report incidents of misconduct they witness. Code provisions describe the types of misconduct employees should report and provide numerous ways for employees to make reports. Moreover, companies use Codes to promise employees that they will not retaliate against whistleblowers. Indeed, because these whistleblowing provisions have become an important part of a corporation’s internal control and risk management systems, they merit closer examination to determine exactly what they require and promise. Accordingly, this chapter describes the results of the first comprehensive empirical study of whistleblower provisions contained in United States corporate Codes of Ethics.
Wednesday, November 23, 2011
- Allowing small employers to fire employees without legal oversight, if the employer pays the employee a severance.
- Making people work for two years before they could make a claim for unfair dismissal - up from one year at present.
- Reducing the 90 day consultation period for 100+ layoffs at a single establishment.
- Allowing employers to have frank off-the-record conversations about poor performance.
- Requiring all Tribunal Claims to go to ACAS [Advisory, Conciliation and Arbitration Service] before being allowed to go to Tribunal (at present claims go to Tribunal and ACAS are involved after the claim has been sent to the Tribunal unless the parties ask ACAS to become involved in pre-claim conciliation on their own initiative).
- Creating a rapid resolution scheme to resolve simple cases in less than 3 months.
Griffin Toronjo Pivateau (Okla. St. Business) has just posted on SSRN his article Private Resolution of Public Disputes: Employment, Arbitration, and the Statutory Cause of Action (forthcoming Pace L. Rev.). Here's a summary:
I wrote this paper in response to the Supreme Court's decision in Rent-A-Center v. Jackson. The aspect of that decision that most struck me was the Court's continued insistence on viewing arbitration in employment through a contractual perspective ("the employee made a deal and should stick to it"). This struck me as disingenuous. There are numerous aspects of the employment relationship that are not subject to contract -- wages, hours, workplace safety, antidiscrimination laws. So why then, for arbitration, a slavish devotion to contract principles?
The "simple" answer to this question, of course, is Section 2 of the FAA, which provides that arbitration agreements are "...valid, irrevocable, and enforceable, save upon such grounds as exist ... for the revocation of any contract." But that doesn't answer the question of why this statutory provision is interpreted as overriding subsequent statutory provisions which, for example, grant a jury-trial right to Title VII plaintiffs.
I'm just back from Chicago where I was fortunate enough to be invited to the Experts' Meeting on the new Restatement. (Rick Bales posted the Conference Agenda a few days ago, and Cynthia Nance [nancecy] tweeted from the Conference).
As everyone on Workplace Prof knows, the ALI's in-progress Restatement of Employment Law has been highly controversial, and some criticism continued at our meeting. On the other hand, participants from the practicing bar (Joe Garrison and Paul Tobias) thought that, while not perfect, the Restatement was overall proving helpful to employee rights. In any event, the project is nearing, if not completion, at least the final stages, with two major chapters -- Privacy and Remedies -- still mostly up for grabs.
Privacy (which includes Defamation and Autonomy) has made a lot of progress thanks to the creative work of Matt Bodie, but still is subject to potential change on a number of important points. While Matt Finkin remains deeply skeptical of the whole enterprise, he identified a number of areas in the current draft where the project can be improved.
Remedies, which is Sam Estreicher's responsibility, is still in the formative stage and I know Sam would welcome suggestions on what areas it might address, given that the Restatement is focused on common law questions.
Perhaps needless to say, the Conference generated a number of suggestions on these areas, not to mention revisiting a number of other issues. Ken Dau Schmidt reviewed the history of the Restatement from the perspective of the Labor Law Group. As for the duty of loyalty question, that generated so much debate on the floor of the ALI, Mike Selmi, Alan Hyde, and Catherine Fisk were all critical in different ways of the balance the current draft has taken of loyalty and non-competes.
As for remedies, Alan suggested that the law ought to better compensate the harm caused by loss of a job; for example, currently such recovery for economic harm rarely accounts for the on-going consequences of the loss of a job. And I addressed the "faithless servant" doctrine. Perhaps not surprisingly, the law, which limits employee remedies against employers to compensation, defined narrowly, sometimes allows employers remedies against employees who breach their duty of loyalty (without regard to whether they are at will or have a term contract) that can far exceed any harm the employee's breach may have caused.
Still on remedies, Bob Covington argued that most areas of employment common law don't raise distinctive remedies questions, and Marley Weiss argued for a unified theory of employmenet law remedies that would reconsider basic questions such as the common law's historic refusal to order reinstatement.
While it's impossible to sum up a day and a half of intensive discussions among very knowledgeable people, I think there was consensus that the tension between "restating" and improving the common law, which exists in any area, was especially problematic in the employment arena. For example, as Matt Finkin argued, there is very little common law protective of employee privacy, but drawing on constitutional and statutory sources to fashion a coherent normative system is in tension with a "restatement" project.
I know I speak for everyone in attendance in thanking Lea VanderVelde for herding this particular collection of cats and Northwestern (Kim Yuracko) and Loyola Chicago (Mike Zimmer) for hosting us so impressively. Lea also featured several of her students who created impressive wikis to help assess the state of the at-will doctrine across the various states. Finally, our discussion was definitely improved by the reactions of two representatives (Judge Laura Stith of the Missouri Supreme Court and Justice David Wiggins from Iowa) fom the sector to whom Restatements are most pointedly directed, the judiciary
Tuesday, November 22, 2011
56 South Dakota Law Review (2011)
- Roger M. Baron, "Consumer Protection" and ERISA, p. 405.
- Roy F. Harmon, An Assessment of New Appeals and External Review Processes - ERISA Claimants get "Some Kind of Hearing", p.408.
- Robert E. Hoskins, Equitable Estoppel as a Remedy Under ERISA, p. 456.
- John Morrison and Jonathan McDonald, Exorcising Discretion: The Death of Caprice in ERISA Claims Handling, p. 482.
- Radha A. Pathak, Discretionary Clause Bans & ERISA Preemption, p. 500.
- Peter K. Stris and Victor A. O'Connell, Enforcing ERISA, p. 515
- Amy Thompson, Ask and You Shall Receive: ERISA's Remedies for Non-Disclosure, p. 254.
- Tiffany R. Timmerman, Hardt v. Reliance Standard Life Insurance Co.: Breathing New Life into Claimant's Ability to Obtain Attorney's Fees Under ERISA's Civil Enforcement Provision, p. 549.
Monday, November 21, 2011
Bill Herbert sends us this link to the NYT story Redefining the Union Boss:
Troublemaker, better known as Sandy Pope, is the first woman to run for the presidency of the Teamsters, against the powerful, three-term incumbent, James P. Hoffa.
Odds are that Ms. Pope will lose — final results are due today. But whatever the outcome, Ms. Pope represents a new face of labor, one that increasingly is female. In this “We are the 99 percent” moment, when corporate profits are up and wages flat, a handful of women are challenging the old, mostly male world of union bosses.
Unions, of course, have been in retreat for years. But Ms. Pope and several other women, notably Rose Ann DeMoro, of National Nurses United, and Mary Kay Henry, of the Service Employees International Union, are pushing back. Their ascendance has rekindled hope that organized labor maybe, just maybe, could stage a comeback.
But not discrimination-free. Dennis Nolan sends us a link to this post from The Volokh Conspiracy:
Here’s what is alleged in the Complaint in Hyatt v. Berry Plastics Corp. (N.D. Ga. filed Nov. 8, 2011) — recall that these are just the plaintiff’s allegations:
- Hyatt’s employer kept a safety calendar that marked the number of consecutive days that the workplace was accident-free. Employees were required “to write the number off of the safety calendar onto a sticker and are to wear the sticker throughout the work shift” (I’m quoting the Complaint here).
- “As the number of safely worked days crept into the range of the 600’s, Plaintiff began discussing with his co-workers and supervisors that he could not wear the number 666 as this number was the sign of the beast and his religious beliefs forbid him from wearing this number. Plaintiff sincerely believed that wearing a sticker with the number ‘666’ on it would be abandoning his beliefs and his God, and would subject Plaintiff to damnation and would force Plaintiff to abandon his religious beliefs.”
- Plaintiff asked a manager for a religious accommodation on day 666, but the manager allegedly responded that “Mr. Hyatt’s beliefs were ridiculous, and that Mr. Hyatt could go to work with a ‘666’ on his safety sticker or face a three (3) day suspension.” Plaintiff decided to take the three-day suspension, but was then fired for refusing to work on day 666.
Plaintiff is now suing, claiming the employer violated Title VII of the Civil Rights Act by refusing to reasonably accommodate his beliefs, and retaliated against plaintiff for asserting his rights.