Tuesday, May 26, 2020
Chris O'Brien (Boston College - Carroll School of Management) has just posted on SSRN her article (forthcoming 12 William & Mary Business Law Review ___) Twenty-First Century Labor Law: Striking the Right Balance between Workplace Civility Rules that Accommodate Equal Employment Opportunity Obligations and the Loss of Protection for Concerted Activities Under the National Labor Relations Act. Here's the abstract:
This article outlines the current state of the law regarding conduct that, while otherwise protected by Section 7 of the National Labor Relations Act, nonetheless involves workplace profanity or offensive speech that potentially violates employer civility rules and equal employment opportunity laws, whether at work, on social media, or on a picket line. The paper considers recent appellate court and National Labor Relations Board (NLRB) decisions on this important issue, highlighting the NLRB’s own reconsideration of its standards as announced in its call for amicus briefs in the General Motors case, September 2019. The author recommends a solution that balances the important public policies underlying both the National Labor Relations Act and equal employment opportunity laws, as well as employer and employee rights to manage and work in a place with a desired level of respect and consideration for others.
This is a great topic and I'm very much looking forward to reading the article.
Sunday, March 22, 2020
Revitalizing Scholarship on Academic Collective Bargaining
Daniel J. Julius
A Different Set of Rules? NLRB Proposed Rule Making and Student Worker Unionization Rights
William A. Herbert and Joseph van der Naald
Labor Unions and Equal Pay for Faculty: A Longitudinal Study of Gender Pay Gaps in a Unionized Institutional Context
Rodrigo Dominguez-Villegas, Laurel Smith-Doerr, Henry Renski, and Laras Sekarasih
Does a Prolonged Faculty Strike in Higher Education Affect Student Achievement in First Year General Education Courses?
Stephen J. Jacquemin, Christine R. Junker, and Mark Cubberley
Maintaining peer-based faculty evaluation: a case study involving student surveys of teaching
Laura Murphy and Leah M. Akins
Examining the Employment Profile of Institutions Under the Mission-Driven Classification System and the Impact of Collective Bargaining
Louis Shedd, Stephen G. Katsinas, and Nathaniel Bray
Adjuncts and the Chimera of Academic Freedom
Deirdre M. Frontczak
Monday, January 27, 2020
Thanks to Jon Harkavy for word that the Clean Slate for Worker Power project has issued its final report A Clean Slate for Worker Power: Building a Just Economy and Democracy. Here's a brief excerpted description from Kelsey Griffin:
An initiative of Harvard Law School’s Labor and Worklife Program — called Clean Slate for Worker Power — released its final report Thursday calling to overhaul American labor laws and increase workers’ collective bargaining power. Law School Faculty members Sharon Block and Benjamin I. Sachs led the project. The initiative brought together leading activists and scholars to recommend policies aimed at empowering working people.
The report claims that an extreme concentration of wealth in the hands of few people has created economic and political inequality in the United States. It argues that current labor laws have fostered systematic racial and gender oppression. It also asserts that labor laws exclude vulnerable workers from vital labor protections and devalue the work performed by these workers.
Block and Sachs said they believe addressing this economic and political inequality would require a completely new system of labor law, rather than simply adjusting current policies. The report recommends that labor laws better enable working people to build collective organizations to increase their leverage with employers and in the political system. The policy recommendations aim to increase worker representation and inclusion by expanding the coverage of labor laws for independent contractors, as well as undocumented, incarcerated, and disabled workers. The report lays out an array of options for alternative worker representation in addition to labor unions, such as work monitors — employees who would ensure compliance with federal labor regulations.
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.
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.
Monday, October 21, 2019
Multinational corporations based in Europe have accelerated their foreign direct investment in the Southern states of the United States in the past quarter-century. Some companies honor workers’ freedom of association, respect workers’ organizing rights and engage in good-faith collective bargaining when workers choose trade union representation. Other firms have interfered with freedom of association, launched aggressive campaigns against employees’ organizing attempts and failed to bargain in good faith when workers choose union representation.
Today, the AFL-CIO is releasing a report by international labor law expert Lance Compa. The report examines European companies’ choices on workers’ rights with documented case studies in several American Southern states. In their home countries, European companies investing in the American South generally respect workers’ organizing and bargaining rights. They commit themselves to International Labor Organization core labor standards, Organization for Economic Co-operation and Development Guidelines, UN Guiding Principles, the UN Global Compact, and other international norms on freedom of association and collective bargaining. But they do not always live up to these global standards in their Southern U.S. operations.
Case studies on well-known companies like VW, Airbus, IKEA and large but lesser known ones like Fresenius and Skanska provide examples of companies that have followed a lower standard in their operations in the southern states where the region’s legacy of racial injustice and social inequality open the door to a low-road way of doing business. The report also makes clear that companies always have a choice and could choose to respect workers human rights.
César Rosado writes to tell us about an upcoming symposium at Chicago-Kent on Thursday, November 14, 2019: Alt-Labor Law: The State of the Law of the New Labor Movement. Here's a schedule of the symposium; here's a description:
This proposed symposium will bring together a group of highly accomplished scholars who have been writing about nontraditional labor organizing and other ways to break and redistribute economic power to describe the current state of the law pertaining to “alt-labor,” or what the volume will refer to as “alt-labor law.” Parts of alt-labor law lie within traditional labor and employment law, but a lot of it does not. Alt-labor law includes first amendment protections used by non-employee labor unions and worker centers, laws regulating non-for-profit associations, state laws dealing with industry wide-minimum wage setting and voluntary dues deduction, and anti-trust laws that impinge on the rights of independent contractor unions, among others.
This proposed volume of the Chicago-Kent Law Review volume will serve as a research tool for academics, policy makers, and legal practitioners. They will have, in one place, the state of the law of this fledgling legal field. The live discussion at Chicago-Kent will help these scholars learn about the disparate and discreet pieces of the law of alt-labor to enrich the final drafts of their articles. It will also attract a public interested in alt-labor, not least in Chicago, home of many very active alt-labor groups.
Thursday, September 19, 2019
Jonathan Harkavy (Patterson Harkavy) has just posted on SSRN two articles. First is his annual review of Supreme Court employment and labor decisions and cert grants. Second is a briefer article that offers a blueprint for lawyers representing workers and unions during fraught political times - e.g., right now. The articles and abstracts are below.
This article summarizes in detail all decisions of the Supreme Court of the United States from its October 2018 Term (2018-2019) that affect employment law, labor relations, employment arbitration and the employment relationship generally. The article also provides commentary on each of the decisions and on the Supreme Court's regulation of the employment relationship. The article also summarizes briefly the grants of certiorari in employment-related cases for the October 2019 Term and concludes with brief commentary on justice in the American workplace.
This article suggests approaches to dealing with the current anti-union climate in the American workplace. Building on examples of what union-side lawyers did when faced with the challenge of representing labor unions in Southern textile mills, the article makes a number of specific suggestions to counter what observers have termed a relentless assault on labor involving unchecked corporate power accompanied by income inequality and a decline in the well-being of working Americans. The article recommends, among other things, imposition of employer fiduciary responsibility for workers, a more clarion collective voice in the Supreme Court for working people, and increased use of state laws and federal antitrust laws to combat inequities in the workplace.
Friday, September 6, 2019
Today, the NLRB released another decision placing employer's property interests above NLRA rights. This time, in Kroger Ltd. Partnership, the NLRB addressed when an employer can exclude union and other nonemployees from its property, even though it lets other groups solicit in the same place. Like a lot of situations, the employer let the Girl Scouts, Salvation Army, Lions Club, and the Red Cross solicit on its property. But it prohibited a church group and a union that was encouraging a boycott of the store because of a labor dispute (a "primary boycott" which is protected activity under the NLRA). At issue was whether excluding the union was unlawful.
This is just a quick take, so I won't get too far into the weeds (those who want more, can check out this chapter). But the short version is that an employer can usually exclude nonemployees from its property, unless it does so in a "discriminatory" fashion. The question is what does "discrimination" mean? As the linked chapter describes, there are a lot of ways to define discrimination and the NLRB in Kroger takes a very narrow--i.e., pro-employer--view:
Under the standard we adopt today, to establish that a denial of access to nonemployee union agents violated the Act under the Babcock discrimination exception, the General Counsel must prove that an employer denied access to nonemployee union agents while allowing access to other nonemployees for activities similar in nature to those in which the union agents sought to engage. Consistent with this standard, an employer may deny access to nonemployees seeking to engage in protest activities on its property while allowing nonemployee access for a wide range of charitable, civic, and commercial activities that are not similar in nature to protest activities. Additionally, an employer may ban nonemployee access for union organizational activities if it also bans comparable organizational activities by groups other than unions.
Sound familiar? It should (although the Board didn't recognize the connection). This is very similar to the definition of "discrimination" the NLRB used in Register-Guard, which basically adopted the Seventh Circuit's holding that "the concept of discrimination involves the unequal treatment of equals":
[I]n 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
Register-Guard was the decision where the Board said that employees lacked a right to use employers' email. Later, Purple Communications reversed that part of the decision, but (oddly to my mind), it didn't touch the definition of discrimination. At the time, I predicted that the definition would spread to other contexts. I was a few years too early, but that's what I view as happening in Kroger. Although, to be fair, the standards aren't identical, as the NLRB in Kroger does explicitly reject the Second Circuit's standard that defines discrimination entirely on whether Section 7 communications are treated worse than non-Section 7 communications. That said, Kroger and Register-Guard both emphasize grouping of communication of a "similar character."
Also of note is footnote 5, where the Board distinguishes handbilling for a food drive versus a union handbilling to boycott the store. According to the NLRB, they're different because their "purposes" are different. Although one can try to shoehorn that statement as just differentiating purely communicative speech versus "commercial" union speech that has traditionally had fewer First Amendment protections, it sounds an awful lot like unconstitutional subject-matter discrimination. That's particularly true given how robust the Supreme Court's recent First Amendment jurisprudence has been recently. This case could be a test whether that jurisprudence applies equally or only when used against unions.
And let's be clear about the practical implications. If an employer has half a brain (or a quarter of an attorney's brain), it can easily come up with a classification that is sure to exclude unions, while allowing a lot of other organizations. For instance, "we don't allow 'membership organizations' to solicit." The Board doesn't even seem to require that classification to be in place before litigation--it's enough for the employer to come up with the line-drawing post-hoc. It's also nonsense under the NLRA. These cases are under Section 8(a)(1), which does NOT require intent on the employer's part. The "discrimination" exception exists because it undermines the employer's argument that the reason its excluding the union is for valid business purposes. Thus, if they allow Girl Scouts and a host of other groups, we should be very wary when they all of sudden claim that union solicitors are a problem. In that case, it's pretty clear that the problem is that it's a union soliciting, not the actual solicitation. And that's not a valid reason under the NLRA.
Also, more generally, this is another weight on the side of employer property interests, which are increasingly inhibiting employees' NLRA rights. Not the first time for sure, but it's disconcerting how much the NLRB (and, to be fair, the Supreme Court) has raised property interests, which are largely the province of state common law, over the federal statutory rights of employees.
Wednesday, August 28, 2019
Bill Herbert (CUNY - Hunter College) and Jacob Apkarian (CUNY - York College) have just posted on SSRN their empirical article You’ve Been with the Professors: An Examination of Higher Education Work Stoppage Data, Past and Present (forthcoming 23 EREPJ ___ (2019)). Here's the abstract:
This article analyzes work stoppage data in calendar years 2012-2018 involving academic and non-academic employees at higher education institutions. It contextualizes the recent data through a review of the history of unionization and strikes in the field of education along with faculty strike data for the period 1966-1994. The study contributes to the literature concerning unionization and collective bargaining in higher education and will be of value to those who study or are engaged in labor relations at colleges and universities.
We find that there was a total of 42 strikes and one lock-out involving faculty, graduate assistants, and non-academic employees in higher education during the seven-year period from 2012 to 2018. The largest number of strikes per annum was in 2018, which was more than double the number in 2017. Exactly one-half of all strikes during the seven-year period were by non-academic employees, one-third of the strikes by faculty, and one-sixth by graduate assistants. The states with the greatest number of strikes were Illinois, California, and Washington.
Faculty units affiliated solely with AFT participated in 29% of all faculty strikes during the period. An additional 13% of the faculty strikes involved units co-affiliated with AAUP and AFT. AFSCME and UAW played leading roles in strikes involving staff and graduate assistants during the period with AFSCME averaging one strike per year over the period.
There was a total of 14 faculty strikes with an average of 2.0 per year in the period 2012-2018, compared to a total of 172 faculty strikes with an average of 5.9 per year during the period 1966-1994. The average duration of faculty strikes during the 2012-2018 period was 2.9 days with a median of 3 days, as compared to the average strike duration of 13.9 days and median duration of 8.5 days for the period 1966-1994. Non-tenure-track faculty were involved in 93% of all faculty strikes in 2012-2018, seven strikes with tenure-track faculty and six without.
Friday, August 23, 2019
Today, the NLRB issued another major reversal, this time with regard to employees’ access to their worksite. The case is Bexar Performing Arts Center Foundation, which involved symphony employees who tried to peacefully hand out leaflets on the sidewalk outside the performing arts center where they usually worked. The problem? Their employer leased space from a third-party property owner, who called the police to remove them from the sidewalk.
In Bexar, the Board overruled two of its cases--New York New York and Simon DeBartolo—which held that employees in these generally had access rights to public areas of the worksite if they regularly worked for the employer (the symphony in Bexar), even if they did not work exclusively at the property in question. The property owner (the performing arts center) could still exclude those employees if it showed that the employees’ activity significantly interfered with the use of the property or was otherwise justified by other legitimate business reasons. The Board stated its new rule as follows:
[W]e hold that a property owner may exclude from its property off-duty contractor employees seeking access to the property to engage in Section 7 activity unless (i) those employees work both regularly and exclusively on the property and (ii) the property owner fails to show that they have one or more reasonable nontrespassory alternative means to communicate their message. Further, we will consider contractor employees to work “regularly” on the owner’s property only if the contractor regularly conducts business or performs services there. In addition, we will consider contractor employees to work “exclusively” on the owner’s property if they perform all of their work for that contractor on the property, even if they also work a second job elsewhere for another employer.
There are several important aspects to this rule. First, because it’s using the Supreme Court’s definition of “alternate means” from Lechmere, what the Board is really saying is “virtually never.” If you’re not regularly immersed in labor law, let me assure you that this is not an exaggeration. The Court has made clear that “reasonable alternate means” means any means to contact employees, no matter how ineffective. By way of example, the Court expressly cited that off-shore oil rigs or remote lumber camps might qualify, although with the better communications that exist now I’m not so sure that would even do it anymore.
Although it relies heavily on Lechmere, it completely mangles the reasoning behind the decision. The Supreme Court's holding in that case that non-employees (typically union organizers) almost always lack the right to access the employer's property for NLRA-protected activity was based on the premise that those non-employees only have an "indirect" Section 7 right to communicate with employees (a holding often, and justly, criticized, but one that I'm accepting as current law.) But, as McFerran’s dissent here and the Board in New York New Yorkemphasized, the "non-employees" in Bexararen't in the same position as the non-employee union organizers in Lechmere. These are employees of the employer with whom there is a labor dispute. And the only way for them to access their workplace is to access the third-party's property. In other words, these employees have a "direct" Section 7 interest under Lechmere.
This decision will have a significant impact, which I don’t always say (many reporters have heard me utter something along the lines of “although the labor law community, including me, may be up in arms about X decision, I’m not sure it will have that widespread of an impact . . . ."). But this decision substantially limits employees’ ability to access their worksite for NLRA activity if their employer leases the worksite. In other words, such employees may have effectively no option to handbill, picket, or engaging in any other NLRA-protected purposes at work. Think, for a moment, how many workplaces this impacts. Every mall, shopping center, apartment building with commercial space, etc. (heck, the number of Starbucks alone that fit the bill boggles the mind). Then think about employees who work at multiple sites, like janitors. None of them will be able to access the workplace to leaflet or engage in other protected conduct unless the property owner agrees. And few will in the face of resistance from the employer/lease who is paying rent.
In addition to drastically minimizing employees’ NLRA rights, it doesn’t make much sense from even a property rights view. If you're a property owner--say a mall--who leases to businesses, you should expect your property to be used for valid businesses uses. And those uses should include employee activity that is protected but the NLRA. Otherwise, what's to stop union-phobic employers from ensuring that they only lease their worksites from third-parties who will do the employers' bidding by excluding all off-duty employees engaging in NLRA activity? Or an employer with multiple worksite could ensure that its employees work at least once at another site, thereby violating the “exclusively” requirement (like the symphony employees here, who sometimes perform elsewhere).
Finally, this is part of a larger trend of elevating property interests above all others. Not a new trend to be sure (the Lochner-era being the most notable), but one that has picked up speed in recent decades. It's troubling, not only because there's no reason why property rights--which derive entirely from state law--should trump federal statutory rights. But also because they invariably, and no doubt intentionally, favor wealthy property owners over employees and others who are not so financially fortunate.
If you’re interested in this topic, you can read more about the background of Lechmere and other cases in my articles, Communication Breakdown: Reviving the Role of Discourse in Regulating Employee Collective Action and Taking State Property Rights Out of Federal Labor Law, or a more modern take on the tension between NLRA rights and property rights in these pieces: Worker Collective Action in the Digital Age; The Silicon Bullet: Will the Internet Kill the NLRA?; and Amicus Curae Brief to the NLRB in Rio All-Suites Hotel & Casino. As you can tell, this topic hits home for me (I actually excluded several other pieces). And I'm still waiting for the shoe to drop in Rio All-Suites, which deals with employees' use of its employer's electronic communications systems.
Tuesday, August 20, 2019
I have it on good authority from an Uber driver in Miami that Uber drivers have been using social media to organize what I will characterize as a "slowdown". Here's how it works: periodically throughout the day, Uber drivers pre-arrange with each other to shut off their Uber apps. This creates an immediate shortage of drivers (supply) relative to passengers (demand), resulting in surge pricing. Immediately after the surge pricing kicks in, the drivers turn their apps back on, thus capitalizing on the higher fares.
I'm not sure whether this has a direct impact on Uber, since the surge pricing is passed on to consumers -- and Uber's profit may be even higher with surge pricing. But if drivers are targeting Uber only, but not (e.g.) Lyft, that will put Uber at a competitive disadvantage. Even if not, the surge pricing may make traditional taxis more competitive.
Regardless, there are obvious labor law implications. My initial reaction is that this would not be an impermissible slowdown under the NLRA, since the drivers are nonunion and Uber calls them independent contractors. Is it "protected, concerted activity" -- i.e., does the NLRA protected the concerted, otherwise-protected activity of independent contractors?
Reactions are welcome!
Friday, August 9, 2019
This morning, the NLRB released a notice or proposed rulemaking affecting union elections. (Thanks to Robert Iafolla at Bloomberg Law for sending them my way and providing a good description of them.) At the outset, I'll note that these proposals, while important, aren't as central as the rules that govern how the more typical union elections are run and challenged. On to the proposals . . . .
1. Blocking Charge Policy. You can read more about this policy in my article discussing the current elections rules. The short version is that the NLRB has long had a policy refusing to hold an election until any alleged, non-trivial unfair labor practice charges have been dealt with. The rationale is that unresolved ULPs can interfere with a free and fair election (for instance, imagine if the employer was firing union supporters--that would improperly influence an election). The blocking charge policy has the most traction in union decertification elections because unions have effectively used this policy to delay those elections (sort of the flip side of employers dragging out initial union certification elections). As the Board majority noted in its proposed rules today, I'm sympathetic to the concern about union abuse of blocking charges and have been open to amending that policy as part of broader, substantive election reforms, but I'm not a fan of where the Board seems to be going.
The Board has announced that it proposes to adopt the General Counsel's "vote-and-impound" procedure, in which the Board would still hold the election, impound the ballots, and wait until after the ULP charges have been resolved to determine whether to open them. If the Board was quick to throw out ballots and rerun the election if it found merit to ULP charges, this rule might be OK, but I don't see that happening (and the proposal does say that if the Regional Director finds no merit to the ULP allegations, the ballots will be counted immediately). Instead, what I envision happening is the Board will be willing to use impounded ballots even in the presence of ULPs or other behavior that likely affected the election. For instance, if it finds a ULP and remedies it, will the Board rerun the election? If not, then the original ballots will remain tainted. The notice of proposed rule making obviously doesn't get into the details, but until I see something otherwise, color me skeptical. I would prefer instead new rules that made it somewhat harder to use a blocking charge to delay an election and/or capping the amount of time that a stay would remain in effect.
2. Voluntary Recognition Bar. Again, we don't know for sure what the Board will end up doing, but this sounds like deja vu all over again. As a reminder, the voluntary recognition bar is the NLRB's policy that mirrors the statutory election bar, which prevents a union election within 12 months after a prior one. The purpose of the bar is both to avoid too many disruptions to the workplace (usually after a union loss) and (if the union won) to give the union some time to work with an often-resistant employer to produce results before facing a potential decertification vote. But, if the employer voluntarily recognizes a union, rather than going through an NLRB-run election, then things are more malleable. Traditionally, the Board barred an election for a "reasonable period" after voluntary recognition (usually about 6 months). The Bush Board reversed that in Dana Corp., by allowing a decert petition immediately after voluntary recognition, for up to 45 days; the Obama Board then shifted back to the original rule in Lamon Gasket.
In the proposed rulemaking, the Board states it intends to reinstate the Dana Corp. rule. More troubling, the Board also makes a point to note that some commentators believe they should eliminate the bar in its entirety, which is disturbing. As the Board is well aware, unions have increasingly sought voluntary recognition because of their belief that the NLRB election process remains stacked against them. Eliminating the voluntary recognition bar will make that avenue less appealing . . . although probably still better than the NLRB process for unions that want to avoid it. So, while I'm not fan of Dana Corp., it's much better than eliminating discretionary election bars altogether.
3. Construction Pre-Hire Agreements. Section 8(f) of the NLRA provides a unique avenue for union recognition in the construction industry. Because that industry often involves numerous, short-term projects, the typical union recognition process doesn't fit well. In short, Section 8(f) allows an employer and union to enter into a "pre-hire" agreement that involves recognizing the union, even if there isn't a showing of majority union support (this is why you often see certain construction employers considered either "union contractors" or "non-union contractors"). Those agreements, however, can not permit any election bars. The Board has fluctuated over the years on how a union can convert an 8(f) recognition status to a more traditional Section 9(a) one, with the accompanying election bars. Currently, Board policy allows, under certain conditions (including the union's claim that it has evidence of majority support), for a union contract to provide 9(a) status. The D.C. Circuit has rejected this policy, and the Board is indicating that it is going to follow suit--requiring an actual showing of majority support.
Member McFerran has a length dissent, which is worth a read and explains some of the criticisms I've raised in more detail. And, to reiterate my self-plug, check out my article on NLRB elections, NLRB Elections: Ambush or Anticlimax?, for more explanation of some of these topics and as a preview of what might be another set of election rule proposals.
Sunday, June 9, 2019
Bill Herbert writes that about the Call for Papers for the 47th annual conference of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College. The conference will be held on March 29-31, 2020. The theme of the conference will be Inequality, Collective Bargaining, and Higher Education. Proposed papers, panels, or workshops are due September6, 2019 to 2020 Abstract Dropbox.
Check out the Call for Papers link to see all of the interesting topics being solicited, both for paper presentations and interactive workshops.
Thursday, May 16, 2019
Steven Greenhouse, long-time labor journalist for the New York Times, has a new book coming out just in time for your Labor Day gift-giving: Beaten Down, Worked Up: The Past, Present, and Future of American Labor (Knopf, forthcoming August 2019). Here's the publisher's description:
In an era when corporate profits have soared while wages have flatlined, millions of Americans are searching for ways to improve their lives, and they're often turning to labor unions and worker action, whether #RedforEd teachers' strikes or the Fight for $15. Wage stagnation, low-wage work, and blighted blue-collar communities have become an all-too-common part of modern-day America, and behind these trends is a little-discussed problem: the decades-long decline in worker power.
Steven Greenhouse sees this decline reflected in some of the most pressing problems facing our nation today, including income inequality, declining social mobility, the gender pay gap, and the concentration of political power in the hands of the wealthy. He rebuts the often-stated view that labor unions are outmoded--or even harmful--by recounting some of labor's victories, and the efforts of several of today's most innovative and successful worker groups. He shows us the modern labor landscape through the stories of dozens of American workers, from G.M. workers to Uber drivers, and we see how unions historically have empowered--and lifted--the most marginalized, including young women garment workers in New York in 1909, black sanitation workers in Memphis in 1968, and hotel housekeepers today. Greenhouse proposes concrete, feasible ways in which workers' collective power can be--and is being--rekindled and reimagined in the twenty-first century.
Wednesday, May 8, 2019
Congratulations to Sergio Gamonal C. (Univ. Adolfo Ibanez - Santiago) and César F. Rosado Marzán (Chicago-Kent) on the publication of their book Principled Labor Law: U.S. Labor Law through a Latin American Method by Oxford University Press. Here's the publisher's description:
The gig economy, precarious work, and nonstandard employment have forced labor law scholars to rethink their discipline. Classical remedies for unequal power, capabilities approaches, "third way" market regulation, and laissez-faire all now vie for attention - at least in English.
Despite a deep history of labor activism, Latin American scholarship has had scant presence in these debates. This book introduces to an English-language audience another approach: principled labor law, based on Latin American perspectives, using a jurisprudential method focused on worker protection. The authors apply this methodology to the least likely case of labor-protective jurisprudence in the industrialized world: the United States. In doing so, Gamonal and Rosado focus on the Thirteenth Amendment as a labor-protective constitutional provision, the National Labor Relations Act, and the Fair Labor Standards Act. This book shows how principled labor law can provide a clear and simple method for consistent, labor-protective jurisprudence in the United States and beyond.
Wednesday, March 20, 2019
In 2015 the National Labor Relations Board (NLRB or Board) said no to a union election petition filed by the Northwestern University football team. In doing so, the Board reversed the finding of a regional director below that the requirements of a valid petition were met, including a finding that the Northwestern football players were employees for purposes of the National Labor Relations Act (Act). Strangely, the Board on appeal did not hold that the football players were not employees, or that Northwestern was not an employer, or that the football team did not substantially affect interstate commerce. These are all of the typical reasons that the Board might say no to an election petition and decline jurisdiction. Rather, the Board refused to assert jurisdiction even though it admitted that Northwestern football players might be employees, Northwestern University is certainly an employer, and the Northwestern football team has a substantial effect on interstate commerce. Without much explanation, the Board simply stated that asserting jurisdiction would undermine labor stability and thus be inconsistent with the goals of the Act.
Curiously, there was no dissenting opinion despite the substantial findings of fact by the regional director finding the petition valid, and despite the fact that the decision was appealed to the liberally controlled Obama Board. This essay is the first substantive critique of the NLRB’s decision in the case. The essay looks carefully and deeply at each of the stated, as well as the unstated but implied, reasons for the decision. What the essay reveals is an administrative agency decision that neglects to make critical findings and arguments in support of the agency’s position against the petition. Also, the essay uncovers a flaw in the Board’s understanding of the limited scope of its discretion to decline jurisdiction in instances where the entity involved has a substantial effect on commerce. Essentially, this essay is the missing dissenting opinion in the case.
Thursday, March 14, 2019
First were the adjuncts at Duke. An now, adjunct faculty at Elon joined in the act by voting for union representation--112 to 68 in favor of representation by the SEIU. It's not clear whether the University will file election objections, although they have already noted that this is an option. However, given that some of the issues driving support for the union seem relatively easy to address (e.g., not allowing adjuncts to apply for full-time job openings), one has to wonder if it wouldn't make more sense at this point to simply deal with those issues and move on. But we shall see . . . .
This goes to show that even in a state that regularly vies for the lowest union density in the country, there is still labor activity going on.
Friday, March 8, 2019
Today--International Women's Day--every current player on the U.S. Women's Soccer team filed a sex discrimination suit against the U.S. Soccer Federation. The suit is also seeking class status that would cover players as far back as 2015. This is essentially the next step in an earlier complaint filed by players with the EEOC in 2016. The violations claimed are under the Equal Pay Act (paying women players less than male players for substantially the same work) and sex discrimination under Title VII (based on disparate wages and treatment in comparison to male players). The Washington Post summarizes some of the factual allegations listed:
In the lawsuit, the women claim that in 2016, U.S. Soccer made more than $17 million in unexpected profits thanks largely to the women’s team, while paying the women players substantially less than their male counterparts. According to the lawsuit, a comparison of pay schedules for the two teams shows that if each team played 20 exhibition games in one year, members of the men’s team could earn an average of $263,320 each, while women’s players could earn a maximum of $99,000.
The lawsuit also highlights differences in World Cup bonuses for the two teams. After 2014 World Cup, U.S. Soccer paid out a total of $5.375 million in bonuses to the men’s team, which lost in the round of 16. In 2015, U.S.Soccer paid out $1.725 million in bonuses to the women, who won their World Cup, the lawsuit states.
One interesting element is that many of these conditions are rooted in a 2017 collective-bargaining agreement, which U.S. Soccer is sure to cite. However, traditionally, there was an expectation that unions can't waive Title VII and similar rights. Of course, there also used to be the same expectation when it came to mandatory arbitration clauses covering Title VII and similar claims, which the Court later abandoned. So stay tuned.