Workplace Prof Blog

Chat with ILO Director General Guy Ryder

 Desiree LeClerq (Cornell ILR) sends an invitation to an online fireside chat with ILO Director General Guy Ryder this Thursday, 15 October, 08:30am Eastern Time. The discussion will address a range of issues, including rising unemployment, the impact of the crisis on migrant and informal workers, the impact of trade agreements on workers, and gaps in social protection. The final portion will be open to audience questions. Desiree will moderate. Registration is free and is available here.

rb

AFL-CIO & SEIU File ILO Complaint Against U.S. Government

Thanks to Lance Compa for circulating this: The AFL-CIO and SEIU have filed a complaint with the ILO Committee on Freedom of Association against the Trump administration for violations of ILO standards on Freedom of Association in connection with the Covid-19 crisis in the workplace. Here is a Washington Post article on the complaint; here is the complaint itself.

rb

 

Slinn on Protected Concerted Activity in Canada & the U.S. During a Time of COVID

Sara Slinn (York - Osgoode) has posted on SSRN her timely and well-written article Protected Concerted Activity and Non-Unionized Employee Strikes: Worker Rights in Canada in the Time of COVID-19, 57 Osgoode Hall L.J. ___. Here's the abstract: 

During the pandemic employees in the US have engaged in a wave of strikes, protests and other collective action over concerns about unsafe working conditions, and many of these involved non-unionized workers in the private sector. Similar employee protests were notably absent in Canada. This article examines the differences in labour legislation between the US and Canada which may help to explain these diverging experiences, primarily: the National Labor Relations Act (NLRA) section 7 protection for concerted activity, and the NLRA section 502 ability for a good faith strike due to abnormally dangerous conditions for work. This article outlines and compares the situation of, and consequences for, three categories of workers engaging in a strike over fears of workplace safety: unionized employees, non-unionized employees, and non-employees, such as independent contractors under the NLRA compared to under the Ontario Labour Relations Act (OLRA), as generally representative of Canadian labour legislation. In the final section, this article considers how a statutory provision similar to the NLRA protected concerted activity provision might be incorporated into Canadian labour legislation such as the OLRA. It also considers some more fundamental questions that such changes might prompt policymakers to reconsider, including: the focus of our statutory system on “organizing” collective action to the exclusion of “mobilizing” collective action, and questions about the potential role of minority unionism in our labour legislation system.

rb

Fisk to Deliver Genest Lecture at York-Osgoode

Sara Slinn (York-Osgoode Hall) informs us that Catherine Fisk (Berkeley) will be delivering the Pierre Genest Memorial Lecture October 6th at 4pm EDT, entitled "Protection by Law, Repression by Law: Bringing Labor Back Into Law and Social Movement Studies". Registration is here.

rb

Cambridge Handbook of U.S. Labor Law ... Now in Paperback

The Cambridge Handbook of U.S. Labor Law for the Twenty-First Century is now available in paperback. The list price is $34.99, but there's a 20% discount for ordering from this site and entering the code LAW3820 at checkout. Here's the publisher's description:

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 demonstrates how federal labor law is failing today’s workers and disempowering unions; how union jobs pay better than nonunion jobs and help to increase the wages of even nonunion workers; and how, when union jobs vanish, the wage premium also vanishes. At the same time, the book offers a 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.

rb

Webinar: Labor Rights Under the USMC (the new NAFTA)

I hope many of you will join me in attending [virtually] the webinar The USMCA (the new NAFTA): Moving to Effective Enforcement of Labor Rights, on Thursday, 17 September 2020 12:30-1:30 (EST). Here's a brief description:

The United States-Mexico-Canada Agreement, replacing NAFTA, came into force on July 1. There are important changes to the Labor chapter and the introduction of a rapid response mechanism in the Dispute Resolution chapter. This novel mechanism provides a new labor rights enforcement approach and it is the first of its kind in a U.S. free trade agreement. The panelists will cover topics including the complaints mechanisms, burden of proof, the ILO fundamental rights and core conventions link, and the impact on national labor laws.

The webinar is being offered by the U.S. Branch of the ISLSSL and the International Interest Section of U.S. - LERA. Here's a more detailed description of the program is available here; you can register here. Membership in neither organization is required.

rb

Webinar on Arbitrating Global Labor Disputes

Lance Compa, Senior Lecturer, Cornell ILR, sends this invitation to participate in a presentation and panel discussion of a new arbitration template for stakeholder-brand agreements in the global supply chain. If you want to ensure that the food you eat, and clothes and products you buy, are made with fair labor, you will want to sign up for this.

A new proposal aims to provide a streamlined and cost-effective dispute resolution system that “puts the enforcement” into enforceable brand agreements between labor advocates and global firms.

Drawing on their experience under the Bangladesh Accord and similar labor standards agreements, four prominent labor rights advocacy groups – International Labor Rights Forum, Worker Rights Consortium, Clean Clothes Campaign and Global Labor Justice – unveiled in June 2020 model arbitration clauses for disputes.

Join us on Friday 17 July from 11 a.m. to noon EST for a live presentation from drafters of the proposal--Katerina Yiannibas of Columbia Law School, Lance Compa of Cornell University ILR School and Ben Hensler of the Worker Rights Consortium--plus a panel discussion on its uses in apparel, food and other sectors.

The New Conversations Project is organizing this event as part of the Cornell ILR School’s Scheinman Institute on Conflict Resolution.

We hope you’ll join us on 17 July. Remember to register here.

rb

The Current Status of [Online?] Labor Arbitration

Amy Schmitz (Missouri) asked me to write a blog post for Arbitrate.com on the current status of labor arbitration, so I thought I'd cross-post it here:

In March 2020, many states imposed stay-at-home orders because of the covid-19 pandemic. Most labor arbitration hearings were postponed. However, as it became clear that the pandemic would not be going away quickly, arbitrators and parties began to consider online hearings. A consensus quickly emerged that Zoom would be the online platform of choice because it, unlike most other platforms, has the functionality to create breakout rooms. The National Academy of Arbitrators (NAA) and Federal Mediation and Conciliation Service (FMCS) quickly organized a series of online tutorials for arbitrators on how to schedule and run a Zoom hearing.

One issue that quickly arose was whether an arbitrator could require a hearing to be conducted online over the objection of one of the parties. The position of the American Arbitration Association currently is that such a decision should be left to the discretion of the arbitrator. The NAA has provided this guidance in Opinion No. 26 (April 1, 2020):

In the absence of a collective bargaining agreement or an ad hoc agreement of the parties prohibiting such an arrangement, an arbitrator in exceptional circumstances, without violating the Code [of Professional Responsibility for Arbitrators of Labor-Management Disputes], may order that a matter proceed by way of video hearing in whole or in part without mutual consent and over the objection of a party. In doing so, the arbitrator must determine that a video hearing is necessary in order to provide a fair and effective hearing. * * *

When the issue arises, the arbitrator’s first recourse should be to assist the parties in reaching a mutually acceptable resolution in the prehearing process. * * *

If agreement is not reached and it is necessary for the arbitrator to decide the issue of whether a matter will proceed by way of a video hearing over an objection, the arbitrator must consider the applicable circumstances and context of the request. Where, for example, a global pandemic makes it virtually impossible for an in-person hearing to be safely conducted, that factor may weigh in favor of the video hearing option, particularly if the hearing has been postponed previously, a party in opposition is non-responsive or declines to provide a reasonable explanation, and/or the case involves continuing liability or time sensitive matters, such as an emergency health and safety issue. Government travel restrictions and family and health considerations of counsel or witnesses may also weigh in the arbitrator’s decision to order or not order a video hearing. The factors favoring a video hearing may, in the arbitrator’s judgment, be offset by countervailing factors, such as a party’s lack of necessary equipment, difficulty in preparing and marshaling witnesses, or other limiting considerations. Further, the substance of the grievance might suggest to the arbitrator that a delay to allow for an in-person hearing does not seriously prejudice the rights of the parties.

As a practical matter, labor arbitrators have been reluctant to order online arbitration hearings over the objection of a party absent a showing that delay would result in significant prejudice. However, it is not yet clear whether this trend will continue. Some states have almost completely re-opened. Even in these states, however, arbitrators, advocates, parties or witnesses may be older or immunocompromised and therefore reluctant to meet in person. Many courts have postponed civil hearings and trials or moved them online, and arbitrators sometimes follow the practice of local courts. But if there is a new surge in cases, parties may become frustrated with further delay and more amenable to online hearings.

It also is not yet clear whether any move toward online hearings will be permanent or merely a temporary response to what we hope will be a short-lived pandemic. Most arbitrators and advocates still seem to strongly prefer in-person hearings, believing that such hearings give the advocates and witnesses a better opportunity than online hearings to “tell their story”. However, as arbitrators and advocates become more proficient with the technology, and experience firsthand the cost savings (especially in reduced travel) and convenience of online hearings, such hearings likely will become much more common than they were before the pandemic even if in-person hearings remain the norm.

rb

O'Brien on EEO Civility Rules & Concerted Activity

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.

rb

Latest Issue of the Journal of Collective Bargaining in the Academy

Readers may want to check out the latest issue of the Journal of Collective Bargaining in the Academy, "Some Impacts on Faculty: 50+ Years of Academic Collective Bargaining and Counting": https://thekeep.eiu.edu/jcba/  Here's the table of contents.

Op-Eds

Revitalizing Scholarship on Academic Collective Bargaining
Daniel J. Julius

Organizing of Teaching Faculty in Private Higher Education Bucks a Long-Standing Historical Trend in American Unionization
James Castagnera

Articles

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

Strong Fusion of Social Unionism and Normative Contract Negotiations: A Square Peg in a Round Hole?
Barry Miller

Practitioner Perspectives

The California Faculty Association: Keeping Racial and Economic Justice at the Forefront
Jennifer Eagan

Adjuncts and the Chimera of Academic Freedom
Deirdre M. Frontczak

Jeff Hirsch

Clean Slate Project Issues Report

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.

rb

The Property Problem in the NLRB's Email Case

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:

1. 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.
2. Under the Supreme Court’s Lechmere decision, non-employees almost never have right to engage in NLRA speech while on employer-controlled property.
3. 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.

1. 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).
2. 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.

Jeff Hirsch

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 . . . .

Jeff Hirsch

NLRB Reverses 2014 Election Rules Without Formal Rulemaking

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.

Jeff Hirsch

Report: European Corporate Investment and Workers' Rights in the American South

The AFL-CIO released today the above-titled report, authored by Lance Compa (retired Cornell ILR; currently visiting at San Diego Law):

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.

rb

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.

rb

A Harkavy 2-Fer

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.

2019 Supreme Court Commentary: Employment Law

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.

A Modest Blueprint for Representing Working People and Labor Unions in Fraught Times

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.

rb

NLRB Expands Employers' Ability to Exclude Union Speech

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.

-Jeff Hirsch

Strikes in Higher Ed

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.

rb

NLRB Reverses Precedent on Employees' Off-Duty Access to Worksites

 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.

-Jeff Hirsch