Thursday, December 19, 2019
I’ve now had a chance to do a more careful read of Rio, which confirmed my earlier sense that both the majority and dissent have almost fully adopted the early positions of Register Guard and Purple Communications, respectively (although Rio does, as it should, appear to expand its logic to all electronic communications, rather than just email). This is not a surprise and, from a selfish point of view--at least while I’m trying to get through a stack of exams--makes it easier for commentators like me, as there’s not much new going on. I did want to comment more on one issue, however.
One argument that I’ve advocated since 2007 was that the combination of Supreme Court precedent and basic property law mandated the outcome of electronic communication cases. I’ve now seen a Board majority twice try to get around this argument and, to put it mildly, I haven’t been impressed. First, in Register Guard, the Board relied on a smattering of personal property cases involving things like a bulletin boards and photocopiers. I took down these cases in a subsequent book chapter, noting that they were essentially a bunch of cases, initially analyzing a different issue, self-citing each other and were ultimately based on an ALJ’s line of dicta in a single case. The Board in Purple Communications agreed, but in Rio the Board reaffirmed those cases, albeit while implicitly recognizing their weakness by briefly trying to defend them with an argument that it admits the cases themselves never relied on. But, really, Rio abandons those decisions as a basis for its electronic communications ruling. Instead, it relies on a second argument, one that finds that employer’s personal property rights trump employees’ Section 7 of the NLRA right to communicate. That’s the argument that I want to focus on here.
Let me start with some undeniable truths:
- Under the Supreme Court’s Republic Aviation decision, employees have a right to engage in NLRA speech while at work, with certain limits on the time and place. This is in spite of employers’ interest in controlling use of its real property.
- Under the Supreme Court’s Lechmere decision, non-employees almost never have right to engage in NLRA speech while on employer-controlled property.
- In Lechmere, the Court made crystal clear that the difference between its line of reasoning and Republic Aviation is whether or not the speaker is an employee. If so, Republic Aviation and the right to communicate on employer property usually exists; if not, Lechmere allows employers to exclude non-employee speech in almost all cases.
OK, a pause for a moment. At this point, employers and Board Members arguing that employees lack the right to use employer have a problem: the fact that the cases involve employees. The Supreme Court has made clear that employees, as opposed to non-employees, have right to engage in NLRA communications that typically trumps employer property interests. So, to get around this, one would need to either conclude that electronic communications involve either diminished NLRA interests or expanded employer property interests. The Board hasn’t tried to do the former, as they can’t—the Supreme Court has boxed them in with Lechmere and Republic Aviation. Thus, the Board in Rio, as it did earlier in Register Guard, has tried the latter. And here’s where I want to jump back in with a couple more truths.
- Under Republic Aviation, employers’ real property interests cannot be used to bar employees’ NLRA rights to communicate. They can limit communications to non-work time, for instance, but the Court is clear that when employees are already legitimately at work, real property interests (which, remember, is a legally granted interest) are outweighed by employees’ NLRA rights (another legally granted interest).
- Under basic property law, real property interests are stronger than personal property interests. A principle point on this is that personal property trespass requires a showing of harm, while real property trespass assumes such harm.
The Board in Rio seems to be disputing this final truth, although all it really does is cite a couple of law review articles that criticize the requirement that personal property trespass require a showing of harm in cases involving electronic property. The Board in Rio also argues that even if a trespass isn’t actionable under common law, it doesn’t mean that there is a right to such trespass. I have no dispute with that comment on its own, but it doesn’t have any relevance here because employees’ right to use electronic communications is coming from the NLRA, not state property law. Even if you accepted the Board’s implication that real property and personal property are on the same footing (which you shouldn’t do, because it’s wrong), that gets you . . . back to Republic Aviation. The only way one can honestly argue that Republic Aviation doesn’t apply is to conclude that property interests are entitled to more protection than real property interests. The Board doesn’t even pretend to do this. Indeed, it’s really stretching to find anything that might sound like the two property interests are on similar footing.
Here’s where I differ from Member McFerran’s dissent. She says that there is no Supreme Court precedent that requires the Board to rule either way on the electronic communications issue. That’s incorrect in my view. The logic of Republic Aviation, Lechmere, and basic property law does require a specific result: that employees’ use of employer electronic communications be treated at least as favorably as employee communications under Republic Aviation. There is some play in the distinctions that the Board has made between oral and written communications, which I’ve discussed before but won’t get into now. But the bottom line is that unless the Court abandons the employee/non-employee distinction that is the foundational difference between Republic Aviation and Lechmere, the decision in Rio is flat-out wrong. No policy deference exists that allows the Board to conflict with Supreme Court precedent. And the Board certainly can’t overrule state property law—something, as it has shown frequently, is not in its expertise.
I very much look forward to this case going up for appellate review. I certainly won’t predict that a court won’t enforce Rio, but I will argue strenuously that it shouldn’t. No matter what one thinks of the policies at stake in electronic communications cases, the Supreme Court’s rulings in this area lead to one, and only one, possible result. That’s the conclusion in Purple Communications that, under normal circumstances, employers cannot bar employees from engaging in NLRA-protected communications on employer equipment.
Wednesday, December 18, 2019
It is with great sadness that I write to report (thanks, Mitch Rubinstein, for letting me know) the passing of long-term and much-beloved Professor David Gregory (St. John's). Here's an excerpt from his law school obituary. Remembrances in the form of comments to this post would be much appreciated.
David L. Gregory  served as the Law School’s Dorothy Day Professor of Law from in 1982 to 2017.
Professor Gregory came to St. John’s after working as an equal employment opportunity counselor with the Postal Service, a labor relations representative with Ford Motor Company, and an attorney with a prominent management labor and employment law firm in Detroit. He brought a keen intellect, a love of teaching and learning, and an encyclopedic knowledge of rock and roll to the classroom, where he enthralled generations of students.
And his students were always at the heart of Professor Gregory’s endeavors at the Law School, where he founded the Center for Labor and Employment Law with a focus on the importance, and the sanctity, of doing good work in the world. “The Center strives to show students, by engagement and example, that they can be successful practitioners who also give back to their communities,” Professor Gregory said early on.
Under his leadership, the Center met its mission with a range of offerings, from courses in Employment Discrimination, Labor and Employment Arbitration, Public Sector Labor and Employment Law, and ERISA to international conferences and symposia in Dublin, at the University of London, and at Cambridge University, to distinguished guest speakers at the Law School―including three chairs of the National Labor Relations Board, a Solicitor General of the United States, a former EEOC chairman, AFL-CIO presidents, His Eminence Edward Cardinal Egan, the former Archbishop of New York, and Cesar Chavez, founder of United Farm Workers of America, among others.
Tuesday, December 17, 2019
NLRB Flips Again on E-Mail, Concluding that Employees Typically Lack the Right to Use Employer E-Mail for NLRA Communications
Today, the NLRB issued its decision in Rio All-Suites Hotel, which concluded that employees typically lack the right to use employer provided e-mail under the NLRA. The Board explictly adopted the rationale of the earlier Register-Guard decision which held the same and overruled the subsequent Purple Communication, which had reversed Register-Guard. Given that the the Board is literally rehashing prior arguments (this issue is now on the official "flip-flop" list), I'm going to follow its lead and rehash my prior commentary on the issue. I'll claim exhaustion as a defense--I've written extensively about this topic (see, e.g., here, here, and here), including an amicus brief in Rio. And I'll no doubt do the same when the Board flips again.
One note before I get to the self-plagarism: A small victory in Rio is that the Board didn't pursue the First Amendment claim the Member Johnson advocated in his Purple Communications dissent. I thought it was a weak claim, but definitely one that the Board could've pursued.
When Register-Guard was first issued, I blogged the following about the decision, which--based on a skim of Rio--remains applicable today. There is one addition in Rio, which is "an exception to the Register Guard rule in those rare cases where an employer’s email system furnishes the only reasonable means for employees to communicate with one another." I'm honestly not sure this is new, because in Register Guard the Board seemed to suggest the same thing (while disclaiming it in a footnote)--which essentially, and incorrectly as McFerran's dissent notes, applies the Lechemere non-employee test to an employee activity situation. On to the rehash:
. . . The majority, in finding for the employer . . . took an overly restrictive view on the importance of emails, which was no shock given the oral argument. However, it also decided to reverse its precedent with regard to discriminatory conduct under Section 8(a)(1) and adopt a nonsensical position that only the Seventh Circuit has used. First, with regard to the email policy, the majority concluded that:
An employer has a “basic property right” to “regulate and restrict employee use of company property.” Union Carbide Corp. v. NLRB. The Respondent’s [employer's] communications system, including its e-mail system, is the Respondent’s property and was purchased by the Respondent for use in operating its business. The General Counsel concedes that the Respondent has a legitimate business interest in maintaining the efficient operation of its e-mail system, and that employers who have invested in an e-mail system have valid concerns about such issues as preserving server space, protecting against computer viruses and dissemination of confidential information, and avoiding company liability for employees’ inappropriate e-mails.
Whether employees have a specific right under the Act to use an employer’s e-mail system for Section 7 activity is an issue of first impression. In numerous cases, however, where the Board has addressed whether employees have the right to use other types of employer-owned property—such as bulletin boards, telephones, and televisions—for Section 7 communications, the Board has consistently held that there is “no statutory right . . . to use an employer’s equipment or media,” as long as the restrictions are nondiscriminatory. . . .
In contrast to the employer’s policy at issue in Republic Aviation, the Respondent’s [policy] does not regulate traditional, face-to-face solicitation. Indeed, employees at the Respondent’s workplace have the full panoply of rights to engage in oral solicitation on nonworking time and also to distribute literature on nonworking time in nonwork areas, pursuant to Republic Aviation and Stoddard-Quirk. What the employees seek here is use of the Respondent’s communications equipment to engage in additional forms of communication beyond those that Republic Aviation found must be permitted. Yet, “Section 7 of the Act protects organizational rights . . . rather than particular means by which employees may seek to communicate.” Guardian Industries Corp. . . . Republic Aviationrequires the employer to yield its property interests to the extent necessary to ensure that employees will not be “entirely deprived,” of their ability to engage in Section 7 communications in the workplace on their own time. It does not require the most convenient or most effective means of conducting those communications, nor does it hold that employees have a statutory right to use an employer’s equipment or devices for Section 7 communications.
The majority's analysis here is weak. The personal property cases that the majority cites to over and over in its decision are very thin reeds, as none of them engaged in any real analysis of the issue (it's a classic string of "it's well-established that . . ." statements which, if you keep going back, are based on little more than an un-cited throwaway line by an ALJ). Moreover, the idea that an employer can control use of its personal property any way it chooses is counter to property law. As chattel, personal property has less protection than real property (which the Supreme Court has held that employer's don't have full control of vis a vis labor rights). The NLRB's distinguishing of Republic Aviation also sounds disturbingly like the Supreme Court's nonemployee solicitation analysis in Lechmere--which even the Court took pains to differentiate from the employee solicitation context of Republican Aviation. Finally, as I've written about at great length, I could not disagree more with the majority's rejection of the dissent's argument that email has so dramatically effected the workplace that it's worth a special rule. The dissent would adopt a rule that would presume that restrictions on email use are unlawful absent special circumstances. I'm obviously supportive, given that I argued for that exact rule.
It is also important to note that Rio leaves Register-Guard's narrow view of the discrimination exception to this rule. I never understood why the Obama Board in Purple Communications left that undisturbed, but that piece of Register-Guard has now remained the same for a while I've described that exception as follows:
The circuit courts have been all over the place in trying to define what "discrimination" means in the solicitation context. To quote my own summary of the various definitions of discrimination, which include: "giving access to all groups but unions; allowing only work-related or isolated charitable solicitations; allowing all charitable solicitations; and favoring one union over another or allowing distributions by employers, but not unions." The Board adopted the last of these, which is the Seventh Circuit's approach (and which the Board had previously refused to follow under its non-acquiescence policy):
In Guardian Industries, the court started from the proposition that employers may control the activities of their employees in the workplace, “both as a matter of property rights (the employer owns the building) and of contract (employees agree to abide by the employer’s rules as a condition of employment).” Although an employer, in enforcing its rules, may not discriminate against Section 7 activity, the court noted that the concept of discrimination involves the unequal treatment of equals. The court emphasized that the employer had never allowed employees to post notices of organizational meetings. Rather, the nonwork-related postings permitted by the employer consisted almost entirely of “swap and shop” notices advertising personal items for sale. The court stated: “We must therefore ask in what sense it might be discriminatory to distinguish between for-sale notes and meeting announcements.” The court ultimately concluded that “[a] rule banning all organizational notices (those of the Red Cross along with meetings pro and con unions) is impossible to understand as disparate treatment of unions.”
Thus, in order to be unlawful, discrimination must be along Section 7 lines. In other words, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status. For example, an employer clearly would violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees
In the end, Rio is disappointing, but not surprising. And almost certainly not the last word once a new adminsitration comes in. Also, I am very curious to see what an appellate court does with the rule. As I explained, I think its directly in conflict both with Supreme Court precedent and basic property law. So a court could reject the rule. Note that the D.C. Circuit didn't approve of Register Guard, reversing it on another issue. So we shall see . . . .
Friday, December 13, 2019
This morning, the NLRB released new election rules. There seems to be a major administrative law issue here because the NLRB didn’t engage in formal notice-and-comment rulemaking. They defended that approach in their rule, but I’m not sure they’re able to change a rule that was promulgated via notice-and-comment without going through the same procedure. To be clear, I really mean that I’m not sure—but some quick check-ins with folks who know more administrative law than me makes me think that I’m right on this. But we’ll have to see. I’ll note that this is a double-edged sword. If the NLRB is successful here, then a future Board can change them back again without notice-and-comment. This also highlights some hypocrisy, as opponents of the 2014 rules and their predecessor made numerous criticisms based on process, including that the notice-and-comment rulemaking that occurred wasn’t enough. Those criticisms ring hollow now.
As a reminder, in 2014, the NLRB promulgated several changes to its representation election procedures, which we’ve described before (e.g., here and here and here) and I explored in my article, NLRB Elections: Ambush or Anticlimax? My conclusion in that article was that most of the changes were modest, sensible updates to the NLRB’s election process that would provide somewhat faster elections and probably wouldn’t change the outcomes much, if at all. Much to my surprise, my prediction was spot on. The union win rate has been essentially unchanged. Moreover, the time it takes from an election petition to the election itself when down a modest two weeks or so (about 37 days to 22.5 days) in uncontested elections and down about three weeks in contested elections (about 59 days to 35.5 days). Similar modest reductions occurred for certification. Moreover, the new rules reduced elections with major (more than 100 day) delays to about only 10% of all cases.
Despite the modest impact of the 2014 election rules, reversing them has remained a goal of many employer groups and the Trump NLRB, which has been telegraphing its intent to revisit them. Today, they’ve done it, largely in rolling back the 2014 rules to the pre-2014 framework. A quick run-down of the major changes, based on a quick look at the new rules:
- The deadline for pre-election hearings go from 8 calendar days after an election petition is filed to 14 businessdays, with the possibility of an extension of time.
- The deadline for employers to post election notices goes from 2 business days to 5 business days.
- Non-petitioning parties' (that is, employers in new elections ad unions in decertification elections) statements of petitions goes from around 7 calendar days to 8 business days after the region issues a notice of a hearing.
- The regions now must generally address questions regarding eligible votes and bargaining unit determinations in a pre-election hearing, rather than a post-election hearing under the 2014 rules. This is a change that, in some cases, will have more impact than it may appear at first blush, as it gives the non-petitioning party incentive to raise these issues early—even if the argument is weak—simply to add delay.
- Parties’ again have right to file post-hearing (and pre-election) briefs, which was eliminated as a matter of right in 2014. The briefs are due no less than 5 business days after a hearing and can be extended to 10 business days.
- Regions are now told to normally schedule elections no earlier than 20 business days after election order ("direction of election"), unless parties’ consent to a faster timetable. This is another particularly impactful change.
- Unlike under the 2014 rules, the Region will not automatically impound contested ballots until issues are resolved.
- The deadline for exclesior lists (list of voting employees' contact info that employers must give to unions) goes from 2 business days to 5 business days.
- Regions are not to certify election results if there is a pending request for review. This is another change that will allow non-petitioning parties to create signification delays.
This is one of those labor law issues where it looks like one side cares more about a “win” than any real impact. As we’ve seen, the union win rate in elections haven’t really changed under the 2014 rules, which is the ultimate result that parties care about most. So, much of this move seems to be checking off a goal of employer-side interests who objected to the 2014 rules. That said, increasing delay itself is a benefit to non-petitioning parties (which are usually employers, but can be unions), in that it allows more time before the potential of a disfavored outcome. Indeed, in her dissent, Member McFerran states that these changes means that the quickest an election can be certified moves from 28 days after an election order to 78 days. And that represents the real impact of these rules. Remember: the NLRA’s explicitly stated policy is to promote employees’ ability to freely choose collective representation. Delaying their ability to do so for no apparently good reason conflicts with that policy.
Thursday, December 5, 2019
Hot off the presses is The Cambridge Handbook of U.S. Labor Law for the Twenty-First Century, edited by Richard Bales and Charlotte Garden.
The publisher summarizes:
Over the last fifty years in the United States, unions have been in deep decline, while income and wealth inequality have grown. In this timely work, editors Richard Bales and Charlotte Garden - with a roster of thirty-five leading labor scholars - analyze these trends and show how they are linked. Designed to appeal to those being introduced to the field as well as experts seeking new insights, this book offers a politically diverse range of solutions, from the radical, such as a complete overhaul of federal labor law, to the incremental, including reforms that could be undertaken by federal agencies on their own.
I'll be pressing our library to get a copy of what couldn't be a timelier contribution.
Monday, December 2, 2019
Zach Harned (Stanford student) and Hanna Wallach (Microsoft Research) have just posted on SSRN an interesting article entitled Stretching Human Laws to Apply to Machines: The Dangers of a 'Colorblind' Computer (forthcoming Florida L. Rev.). Here's the abstract:
Automated decision making has become widespread in recent years, largely due to advances in machine learning. As a result of this trend, machine learning systems are increasingly used to make decisions in high-stakes domains, such as employment or university admissions. The weightiness of these decisions has prompted the realization that, like humans, machines must also comply with the law. But human decision-making processes are quite different from automated decision-making processes, which creates a mismatch between laws and the decision makers to which they are intended to apply. In turn, this mismatch can lead to counterproductive outcomes.
We take antidiscrimination laws in employment as a case study, with a particular focus on Title VII of the Civil Rights Act of 1964. A common strategy for mitigating bias in employment decisions is to “blind” human decision makers to the sensitive attributes of the applicants, such as race. The same strategy can also be used in an automated decision-making context by blinding the machine learning system to the race of the applicants (strategy 1). This strategy seems to comply with Title VII, but it does not necessarily mitigate bias because machine learning systems are adroit at using proxies for race if available. An alternative strategy is to not blind the system to race (strategy 2), thereby allowing it to use this information to mitigate bias. However, although preferable from a machine learning perspective, this strategy appears to violate Title VII.
We contend that this conflict between strategies 1 and 2 highlights a broader legal and policy challenge, namely, that laws designed to regulate human behavior may not be appropriate when stretched to apply to machines. Indeed, they may even be detrimental to the very people that they were designed to protect. Although scholars have explored legal arguments in an attempt to press strategy 2 into compliance with Title VII, we believe there lies a middle ground between strategies 1 and 2 that involves partial blinding—that is, blinding the system to race only during deployment and not during training (strategy 3). We present strategy 3 as a “Goldilocks” solution for discrimination in employment decisions (as well as other domains), because it allows for the mitigation of bias while still complying with Title VII. Ultimately, any solution to the general problem of stretching human laws to apply to machines must be sociotechnical in nature, drawing on work in both machine learning and the law. This is borne out in strategy 3, which involves innovative work in machine learning (viz. the development of disparate learning processes) and creative legal analysis (viz. analogizing strategy 3 to legally accepted auditing procedures).