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Issue 10 · Spring 2015

NYU Labor & Employment Law NEWSLETTER of the NYU Center for Labor and Employment Law

Upcoming 68th Annual

NYU Conference on Labor

Inside... Upcoming 68th NYU Annual Conference on Labor

1

New EEOC Chair Jenny Yang (NYU ‘96)

2

Lee Seham (NYU ‘87): Varied Clientele

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Larry Cary, Noted Union and Benefits Lawyer

7

Harper, Estreicher & Griffith, Labor Law 8th ed: Cases, Matierals and Problems

by Professor Katie Griffith (NYU ‘04)

8

‘Depoliticizing’ the National Labor Relations Board: Administrative Steps by Professor Samuel Estreicher 9 Culture Corner: ‘Spaghetti Westerns asa Distinct Genre” by Alia Haddad

14

Labor Center News

15

A Labor and Employment Lawyer in the Air Force

by Colonel Martin T. Mitchell

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Meet our New Board Members

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Advisory Board

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TheNYUCenterforLaborandEmploymentLawis Speakers will pleasedtoannouncetheNYU68th AnnualConferenceonLabor,whichwillbeheldatNYUSchoolof include: LawonThursday-Friday,June4-5,2015.The2015 Conferencewillexplorecentralissuesoflaborand Hon. Richard Griffin, employmentlaw–Whoisanemployee?andWho General Counsel, NLRB istheemployer?TheNLRBGeneralCounsel’scom­ plaints against McDonald’s raises the question of when are firms “joint employers” of the same groupofworkers,whichalsoarisesunderthecivil rightslaw.Othercutting-edgeissuesinclude: ● When can companies classify service pro­ viders as independent contractors? In view of the Northwestern Univ. case, when must student athletes be treated as employees? Hon. Kent Hirozawa, ● When must owners like partners be classi­ Member, NLRB

fied as employees? ● Can individuals work without pay as in­ terns or volunteers? ● What new forms of worker organization are cropping up? ● What is the “$15 minimum wage” cam­ paign about? ● How are these issues treated abroad? Hon. Philip Miscimarra, Member, NLRB

Hon. David Weil, Administrator,

Wage-Hour Div. Dept. of Labor


New EEOC Chair Jenny Yang (NYU ‘96)

On Setember 1, 2014, President Barack Obama named Jenny Yang Chair of the US Equal Employment Opportunity Commission (EEOC). A 1996 graduate of NYU Law School, she has devoted her career to enforcing civil rights laws and ensuring fairness in the workplace. She has experience working in government, the private sector, and non-profit organizations.

Q:

What has your road to the EEOC been like? Although I have spent my career in a variety of settings in the private, government, and nonprofit sectors, my focus has been the same— to advance fairness and equality in the workplace. After graduating from NYU School of Law and completing a clerkship, I worked at the National Employment Law Project through a NYU Community Service Scholarship Fund. There, I assisted garment workers in addressing some of the persistent problems they faced, such as overtime violations and repetitive stress injuries. By working to understand the root causes of these challenges, we identified strategies, including impact litigation, public educa­ tion, and policy initiatives, to address the systemic problems in the industry. Jenny Yang, Chair of EEOC After that, I made my way to Washington D.C., where I worked as a Senior Trial Attorney with the U.S. Department of Justice’s Civil Rights Division for about five years. I had the opportunity to develop my investigative and litigation skills, working on individual and pattern or practice cases to enforce Title VII in state and local government workplaces. I then spent a decade in private practice, as partner of Cohen Milstein Sellers & Toll PLLC. I represented em­ ployees across the country in complex civil rights and employment actions. I saw how vital private enforcement is to ful­ filling the promise of our civil rights laws. As chair of the firm's hiring and diversity committee, I also gained an important perspective on the challenges employers confront in making hiring and other personnel decisions. Each of these past work experiences has provided a valuable perspective for me at the EEOC. What I have found most rewarding about our agency’s work is to see the impact our guidance, enforcement, and education efforts have in promoting greater compliance. Most employers aspire to comply with our anti-discrimination laws. The more informa­ tion we can provide on how to interpret and apply the law, as well as identify best practices, the more we can encour­ age employers to prevent discrimination from occurring. making your way to the EEOC always your goal, or did it change throughout the course

Q: Was of your career? Throughout my career I have seen the pivotal role that the EEOC plays in the enforcement of our antidisc­ rimination laws, but I did not necessarily set out to join the EEOC. In private practice, I filed charges with the EEOC on behalf of my clients and also worked alongside the agency in related cases. At DOJ, I litigated charges against pub­ lic employers that the EEOC had investigated and referred to us. Although I did not have any master plan on where I thought I’d end up, now that I am here at the EEOC, I can’t imagine a place I’d rather be. does your role at the EEOC compare to what you thought the role would be? Q: How I now have the responsibility for the operation of the entire agency. One of my priorities for our own work­ place is to ensure that we are a model employer. We know that as the EEOC, we must walk the walk and not just talk the talk. We are not only the agency charged with enforcing the nation’s anti-discrimination laws, but we are also an employer to over 2,200 people located in 53 offices around the country. It is a priority for me to ensure that we are recognizing the contributions of our people and ensuring opportunities for training, advancement, and meaningful work. One of my most important jobs is communicating. That includes fostering communication internally so that we can better collaborate for greater impact in achieving our common mission. The people who make up This agency have tremendous insight into how we can continue to do our work better, and to make our own 2


workplace better. A key takeaway is understanding how vital it is to open the lines of communication across our agency, to truly listen to employees and then implement these ideas. It is also critical for us to strengthen our external communication so that we share our work with those in the public we serve and hear from those in the employer and worker communities about the issues that are most important to them. We are taking advantage of social media to do this, and I’ve launched a series of Chair messages on our public website and Facebook page, the first of which focused on the importance of our media­ tion and conciliation efforts.

Q:

What do you hope to accomplish during your tenure as Chair of the EEOC?

This is a historic year for us as we celebrate our 50th Anniversary this July. This is the time to re-imagine

how we work to ensure that the EEOC: 1) expands our impact to achieve justice and equality; and 2) meets the

needs of the public we serve. Let me tell you what that means for us: We know that our work is not done. To ex­ pand our impact, we are leveraging our resources and engaging more workplaces across America in preventing

discrimination.

Strengthening EEOC’s systemic program is a key part of this effort. Today, EEOC’s systemic work is more

important than ever before. Our task now is to redouble our efforts by strengthening our infrastructure to ensure

our systemic work is vigorous, impactful, and coordinated around the country.

Our 50th Anniversary is also the time for a call to action – to engage more people of all backgrounds in our efforts.

All too often, any discussion about race or discrimination makes people uncomfortable, so we avoid the conversa­ tion. But, at the EEOC, our job is to tackle these issues head on. We know from our work across the country that

discrimination continues to exist in many forms, both egregious and more subtle. The events in Ferguson, Mis­ souri, New York, and many other communities have brought national attention to the tensions that remain. We

must find a way to engage our nation in a constructive and productive conversation about race and discrimina­ tion. Only then, can we begin to confront the stubbornly persistent challenge of discrimination today.

Our work around harassment is one example of our efforts to engage a broader group of people in our ef­ forts to prevent and remedy discrimination. This one issue is alleged in 30% of our charges and in many of our

federal sector complaints. Last month, at a public EEOC meeting on harassment, I launched a task force, co-chaired

by Commissioners Chai Feldblum and Victoria Lipnic, to convene employers, workers’ advocates, and academics

to identify effective strategies to prevent and remedy harassment in the workplace.

My second goal is for the EEOC to better serve the public, including by being more timely and responsive

to the public’s needs. We are investing in technology to streamline and automate services to the public. This in­ cludes systems that will allow employees and employers to check the status of charges online, to schedule intake

appointments electronically, and transform our current paper system into a digital charge system, which will free

up investigator time on what matters most, which is developing their investigations.

We are also working to ensure timely investigation of charges. We have an important statutory obligation

to accept every charge for filing and investigation; yet, we must decide the level of investigation and enforcement

and make these decisions as quickly as possible. These decisions are guided by the facts and the issues raised in

the charge and the potential impact of the enforcement action.

Who have your mentors been?

Q: I've had several mentors in my career, and I’ll share key lessons learned from two of them. Our former EEOC

Commissioner and Acting Chair, Stuart Ishimaru, is one of them. From him, I have learned that sometimes you need

to be prepared to fight to stand up for the principles that are most important, but often your greatest success will

come from working to persuade and inspire others to act.

Another important mentor is my former partner, Joseph M. Sellers, at Cohen Milstein Sellers & Toll PLLC.

From Joe I learned that you can’t be afraid to dream big. Of course, it’s also essential to ground yourself in reality, so

plan your ideal strategy, as well as several backup plans to ensure you accomplish as many of your goals as possible.

Even when the going may get tough, he remains a relentless optimist. That hope is what keeps you seeing your way

forward toward continued progress even in the face of daunting challenges.

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Steven Greenhouse (NYU ‘82):

Life at, and after, The New York Times

Steven Greenhouse was recently awarded the Lifetime Achievement Award from the Labor and Employment Relations Association. The NYU Labor Center has asked me to write a few words about my departure from The New York Times, where I had worked as a reporter for 31 years. I loved working at the Times, and I loved the labor and work­ place beat, which I had for 19 years. But when the Times offered a generous buyout, I, with considerable ambivalence, decided to take the buyout and leave the NYT last December. I am a famed workaholic, and I felt this gave me an opportunity to slow down. Also, I had two good journalist friends who died of cancer last year – like me, they were 63 – and I thought, it might be good to get off the very rapid merry-go-round that is life at the Times. I had worked as a newspaper reporter for three and a half years be­ fore attending NYU Law School. Before going to NYU, I had decided to leave journalism because newspapers were a crazy, poorly run industry, and I had always been attracted to the law. (Back in 1974, I had been accepted to both Columbia Journalism School and NYU Law, and at that time, I decided Steven Greenhouse (NYU ‘82), former to attend the former). While at NYU Law, as much as I liked the law, I real­ New York Times reporter ized that the practice of journalism was generally more fun – and at least to me, more existentially fulfilling – than the practice of law. So when an editor I knew at the Times offered me a re­ porting job after law school, I leapt at the chance. I had always dreamt of working at the Times. I well remember Professor Estreicher voicing regret that I was forsaking law for journalism, but he said I could easily return to the law so long as I did so within two years. But I loved the Times, and within five years, I was in the Paris bureau as European economics correspondent. Being a reporter in Paris was another lifelong dream. I covered everything from the Velvet Revolution in Prague to what it takes to become a three-star Mi­ chelin restaurant to the transformation of Russia and Poland to capitalism. After five years in Paris, I served in the NYT’s Washington bureau, where I covered the State Department and diplomacy. That was exciting and grueling, and I got more than my share of front-page stories, but I missed writing flesh-and-blood stories about people. When I heard that the labor beat was available, I applied for it -­ even though some friends told me that labor was dying and that I’d be an idiot to take such an unsexy beat. I told those friends that there were more than 100 million people working in the U.S., and if I couldn’t find a ton of meaty, compelling stories on that beat, then there’s something wrong with me. I began the labor beat in late 1995, writing about miserable housing conditions for farmworkers, Wal­ mart’s locking in workers at night, the labor movement’s struggles to reverse its decline, the inexcusable deaths of 1,129 workers in the Rana Plaza factory collapse in Bangladesh – and about a Dominican immigrant in Brook­ lyn who worked 11 hours a day for $33 a day. I covered corruption in the Teamsters, and I wrote about employ­ ers that brazenly broke the law to beat back unionization drives. I also wrote about exemplary employers like Costco and Patagonia that treated their workers like grown-ups, like prized assets, paying them well and pro­ viding excellent benefits While I toiled on the labor beat, my two wonderful children, Emily and Jeremy, kept telling me, “Daddy, you have to write a book.” Oh, the wisdom of children. I felt that I had developed such a vast, on-the-ground knowledge of the American workplace that I should indeed do a book, and I wrote “The Big Squeeze, Tough 4


Times for the American Worker.” It was published by Knopf in 2008, winning the Sidney Hillman award for best non-fiction book that year. In my post-Times life, I definitely miss the Gray Lady. I continue to do some freelancing for that amazing news organization and for other publications. I am also writing a second book; it will explore the often sorry state of the American worker, the woes of America’s labor unions and what will happen to U.S. workers, the U.S. econo­ my and the U.S. political system if labor unions continue to weaken. The book will examine another important is­ sue: as unions fade, who will speak for the American worker, who will fight to improve wages and working conditions. To me, in this era of wage stagnation and increasing income inequality, those are some of the biggest questions facing America today.

Lee Seham (NYU ‘87):

Varied Clientele

Lee Seham of Seham, Seham, Meltz & Petersen has a striking mix fl of clientele. In the airline industry, SSMP has worked for both foreign ag carriers and independent unions representing pilots, aircraft mechanics, and flight attendants. Mr. Seham had the privilege of representing Captain Chesley Sullenberger after his miraculous landing in the Hudson and was acknowledged in Sully’s biography. In the maritime industry, Lee’s firm represents a trade association – American Maritime Safety, Inc. – that counts almost 400 member companies. His maritime work has taken him throughout the country and to foreign ports in Bahrain, Dubai, Panama, Barcelona, Rome, Istanbul, and the military base of Diego Garcia – where he was told prolonged service on the isolated atoll turned a man either into “a Lee Seham,

hunk, a chunk, or a drunk.” Seham, Seham, Meltz & Petersen LLP

In the sports industry, he represents both the NBA Referees and the Major League Soccer Referees with the attendant obligation of wearing a suit and tie to most sporting events. And in conjunction with the Westchester Hispanic Coalition, his firm engages in federal litigation on behalf of undocumented workers who have suffered wage theft. Having lived for an extended period in Argentina, Mr. Seham is fluent in Spanish and conversant in Portuguese. “As a small firm, we have been able to serve both high-profile and cost-conscious clients. A key element of our success has been to adopt the view that legal fees should be treated as any other investment – the client should realize a greater value than the dollars he puts in.” He continues, “At times, that requires some creativity in the billing process. We operate with a mixed bag of hourly rates, monthly retainers, fixed fees for defined projects, and an occasional contingency. If someone has a need for legal service, we try to provide that service in a way that makes sense for both the client and the firm.” Mr. Seham, is a magna cum laude and Phi Beta Kappa graduate of Amherst College. He received his law degree from New York University School of Law, where he served on the NYU Law Review. He reports that the most-feared professor at NYU during his time there was Professor Samuel Estreicher. Mr. Seham is a frequent lecturer at trade association meetings on such varied topics as the Railway Labor Act, Americans with Disabilities Act, the Family Medical Leave Act, the Fair Labor Standards Act, drug testing issues, and the development of policies to prevent sexual harassment in the workplace. He finds his lectures at NYU symposia to be the most challenging since it is virtually impossible to be more provocative than Professor Estreicher. 5


Larry Cary, Noted Union

and Benefits Lawyer

Larry Cary has been practicing labor and employment law for 30 years. He received his Masters in Public Administration from NYU, with a concentration on health policy, planning, and administration, and his law degree from Brooklyn Law School. Mr. Cary has taught labor law at various institutions, including Cornell University and Hofstra University, and co-founded Cary Kane LLP with partner Walter M. Kane in 2004.

did you first become interested in labor law? Q: How I was first introduced to labor law as a teenager, watch­ ing my father. As part of the divorce settlement with his first wife, in order to marry my mother, he had to agree to sell his business to his soon-to-be ex-wife for very little money, but more importantly, he had to contract himself to continue to work for his ex-wife because without him, there was no busi­ ness. My [dad then got re-married], they went on a honey­ moon and came back, and [my father] promptly organized a Teamsters Local, because labor law voids individual employ­ ment agreements, and so he was able to get out from under that contract. As a teenager, I had some vague inkling of what unions do. For a while I worked as a stock boy while in college at Abraham & Straus (A&S), which was a large department store in Brooklyn on Fulton Street, now a Macy’s. A discussion came up about the fact that the company hadn’t given raises out…and I said to the other stock workers, ‘We should get a union.’ They said, ‘That sounds great, but what union should we get?’ and I said, ‘I don’t know, I’ll try to find one for you.’ I literally went to the yellow pages…and I came across District Larry Cary, Cary Kane LLP Council 37. I figure that sounds like a good union, and I call them up. The woman who answered explained that they represent the municipal employees, which I didn’t know, and that they were the wrong union…but she called me back a week later with United Store Workers, which had Bloomingdale’s, a Federated Department store. I spent the next four years of my life trying to organize a union at A&S, which is what [I con­ sider my] real college education was all about. I spent more time doing that than anything else. The union picked me up as an organizer when I got out of college, and my interest in the area was solidi­ fied. I went to law school many years later, but I went with the expressed intention of becoming a labor lawyer on the union side. I went to Brooklyn Law School because they had a very, very good labor law curriculum at the time. There were only two schools in New York—NYU and Brooklyn Law School—that had serious labor law curricula.

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were some milestone moments in your career? Q: What I’d say getting a job as a labor lawyer. I got out of law school in 1983, which was still heavily influenced by the Reagan recession, without getting a single interview, with one exception…The on­ ly interview I got was a legal services program in Pennsylvania organizing mushroom workers…I couldn’t afford to take the job, but I decide that I was going to practice labor law and it would make sense to have some money coming in. I had supported myself while I was in law school by teaching at the Center for Labor Studies in the Local No. 3 IBEW apprentice college program and so, because of my background, I knew a lot of people. I started to network to try to line up as many adjunct teaching jobs for the fall so I’d have some money coming in. The week before the bar exam I inter­ viewed for an adjunct job teaching undergraduates at Hofstra University. In the middle of the inter­ view, I realized they were interviewing me to be the director of the undergraduate degree program in trade union administration, to begin that September. The night before the bar exam I got a call offering me the job which I accepted. So all things considered,I went into the bar exam knowing I didn’t need to the bar in order to be employed in September, which was a great confidence boost. I did pass the bar, and I called an attorney I knew who worked for ACTWU (Amalgamated Clothing and Textile Workers Union), where I had worked the summer between 2L and 3L, and then part time during my third year. I called him up to find out if there were any possible job op­ portunities, and found that they were looking for a lawyer on the ACTWU joint board. I was hired without an interview to be the general counsel to a union with 8,000 workers and 14 pension and welfare funds…so then I had two jobs, I was general counsel to the union and I was also a full time professor. Luckily they were only about five or six blocks apart. So I was general counsel in the mornings and then a professor until about eight o’clock. I did that for two years. I wanted to be a lawyer, I didn’t want to be a professor, and so then I left the university and went full-time at the union thereafter. I was the only person under 50 working on the union joint board; I was 30-something. I was the only person with a college education let alone a law degree. I really felt I needed to go to an en­ vironment where I’d get better training. I handled everything, as I was the only lawyer. If you ever want to learn how to practice law, do it yourself with nobody to help you. I went to Vladeck, Waldman, Elias & Engelhard, PC because they were a great law firm, I went there for training. I worked there for 17 years, I went from the kid that nobody remembered my name to the senior labor partner, and then 10 years ago I founded my own firm, Cary Kane LLP.

advice do you have for someone who is getting into the field now? Q: What Representing unions is a difficult field because it’s a declining market, and it has been for some time. When I got involved 25 percent of American workers were in a union. Today in the private sector it’s seven percent. You will always make less on this side of the bar than you will by representing management. If you really want to represent unions, there has to be psychologi­ cal value to you for doing what you’re doing. If you don’t have that, it would be very difficult to continue to do it.

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Harper, Estreicher & Griffith,8th ed.

Labor Law: Cases, Materials and Problems

By Professor Kate Griffith (NYU ‘04), Cornell University ILR School The eighth edition of this widely used casebook continues its strong tradition. It provides in depth material that sets the framework for a rigorous analytical and practical study of labor law and policy. It updates the coverage of material to include changes in the law since the 7th edition and includes recent decisions of the courts and the National Labor Relations Board (NLRB) during the Obama administration. It adds a teacher’s manual and two new chapters to address global trends affecting the field of labor law: immigration to the U.S. and cross-border labor law. Joining this book as a third coauthor has reminded me why I remain passionate about the study of Labor Law, even though the percentage of the unionized workforce continues to dwindle in the United States. The in-depth study of labor law that the book fosters is an entry into a wide array of broader is­ sues that stretch beyond the boundaries of labor law as traditionally conceived. It provides perspective on debates about government intervention in the economy, the New Deal’s relevance in contemporary times and a broad range of separate areas of law. The book’s coverage of historical material, for instance, not only facilitates study of judicial resis­ tance to labor unions in the 19th century and to protective labor legislation in the years leading up to the New Deal. It also sets a framework for discussion of when the government can (as a constitutional mat­ ter) and should (as a policy matter) intervene in employer-employee relations. Few would dispute that there is often an inequality of bargaining power between individual employees and their employers, but, when, if ever, should the government intervene to address this inequality? How should the government mediate tensions between entrepreneurial freedom and protection of collective pressure and/or employ­ ee voice? Moreover, the book’s coverage of jurisdiction is not merely a study of who’s in and who’s out with respect to NLRA coverage. It challenges the student of labor law to grapple with how a New Deal stat­ ute—created in the context of an industrial economy when the concepts of who was an “employer,” and who was an “employee” were clearer—can adapt to a more service-based economy where businesses strategies challenge industrial-age concepts through increased use of temp agencies, subcontracting, franchising and outsourcing. It’s a book about labor law, but the cases give students a deeper understanding of other areas of law such as administrative law, employment law, First Amendment law, arbitration law, preemption law and antitrust law. In the employment law context, for instance, it facilitates a deeper understanding about what it means to “discriminate” based on a protected status (here participation in collective activi­ ty for mutual aid or protection) and the variety of theories on the nature and burdens of proof in such cases. The two new chapters expose students to two labor law issues that have gained importance in re­ cent decades. The immigration chapter addresses the NLRA’s treatment of unauthorized immigrant workers, its applicability to workplace-based political advocacy around immigration issues and to immi­ grant-based worker centers. This chapter’s treatment of worker centers gives instructors the opportuni­ ty to consider the NLRA’s relevance and applicability to new forms of organizing by self-proclaimed ‘non-union’ groups that organize workers around workplace concerns. Among other things, the CrossBorder Labor Law chapter provides a framework for the proliferation of labor law instruments that apply internationally, such as labor standards in U.S. trade law, the International Labor Organization, and pri­ vate sector initiatives including corporate codes of conduct and international framework agreements. It also provides materials on the extraterritorial reach of the NLRA to solidarity activity and other activity that occurs abroad. In sum, the new edition facilitates an in-depth study of American Labor Law and so much more. 8


‘Depoliticizing’ the National Labor

Relations Board: Administrative Steps

by Samuel Estreicher,* NYU Law Professor and

NYU Center for Labor and Employment Law Faculty Director

Complaints about the political forces arrayed against the basic labor laws and about the increasing “politicization” of the National Labor Relations Board are hardy perennials. The charge remains a constant, only those who level it differ depending on which party is in the White House. On the assumption that legisla­ tive change is not in the offing, what can the Board on its own do to improve its reputation in Congress and in the courts and, at the same time, enhance its effectiveness as the essential government agency to protect workers in dealings with their employers? I am using inverted commas in my title to assure the reader that I am not a naïve academic or, worse, a dithering idiot. The National Labor Relations Board (NLRB or Board) is the agency entrusted by Congress to enforce the National Labor Relations Act of 1935 (NLRA or Act). Politics have been an inescapable part of la­ bor law. This has been the case from the day the NLRA was enacted, marking, as it did, the first significant government intrusion into private employer decisionmaking. It remains so to this day—reflecting ever-con­ tested terrain between employees and their representatives and management. Although there are many ar­ eas for shared gains between labor and management, generally when the Board gets involved employees are seeking to organize a union or compel management to bargain with the union. At least in the short term, a win for employees or the union is a loss for management, and vice versa. The Board, if it is doing its best to enforce its organic statute, will often be viewed by disappointed par­ ties and their allies as “political” and by winning parties and their supporters as “effective” guardians of the law. Congress, on some level, intended a continuation of the political process within the NLRB1 by establish­ ing a multimember “independent” agency with the custom2 of the President appointing three members from his political party and two from the opposition party, rather than relying on the courts for enforcement. The charge of politicization contains a kernel of truth but is nearly always an overstatement. The members of the Board and the General Counsel, the other presidential appointee, are conscientious profes­ sionals aware of their distinct obligations in serving a public agency. Most cases involve relatively fact-specific applications of the Act by administrative law judges; these rulings stir little controversy and are summarily affirmed by three-member panels of the agency without dissent (and routinely enforced by the courts of ap­ peals). It is with respect to a relatively small number of cases and certain agency initiatives, such as the prom­ ulgation of national rules, where the law is either unclear or reversal of the agency law is being sought, and where Board members are likely to be especially responsive to their pre-NLRB political or ideological inclinations.3 It is this relatively narrow, yet important, sphere of the agency’s work that triggers the politici­ zation charge. * Dwight D. Opperman Professor of Law & Director, Center for Labor and Employment Law, NYU School of Law. I appreciate the comments of several current members of the NLRB, as well of those of former chair Wilma Liebman and NLRB attorneys John Colwell and Joan Flynn. All persisting errors are my fault. Copyright© 2015 by Samuel Estreicher. All rights are reserved. 1 See Samuel Estreicher, Policy Oscillation at the Labor Board: A Plea for Rulemaking, 37 ADMIN. L. REV. 163 (1985); Ralph K. Winter, Jr., Judi­ cial Review of Agency Decisions: The Labor Board and the Court, 1968 SUP. CT. REV. 53. 2 See Ronald Turner, Ideological Voting on the National Labor Relations Board, 8 U. PA. J. LAB. & EMP. L. 707, 709–11, 714–15 (2006). 3 Some members on occasion vote in politically unpredictable ways. See Joan Flynn, A Quiet Revolution at the Labor Board: The Transforma­ tion of the NLRB, 1935–2000, 61 OHIO ST. L.J. 1361, 1367–68 & 1408 tbl.2 (2000); Paul M. Secunda, Politics Not as Usual: Inherently Destruc­ tive Conduct, Institutional Collegiality, and the National Labor Relations Board, 32 FLA. ST. U. L. REV. 51, 102–05 (2004).

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It is difficult to say whether the Board is more political now than it was during, say, the Reagan administration (when the agency triggered a great deal of such criticism).4 Today, the charge is leveled by Republicans and employer representatives; then, the charge was leveled by Democrats and union representatives. There is reason to believe, however, that whatever the underlying factual reality may be, the charge now poses a greater threat to the NLRB’s future viability than it has in the past. The perception of a “politicized” agency seems stronger than ever. This is due to many causes, several of which are beyond the Board’s control of influence. One is the widening polarization fo the political parties; there are very few, if any, Republican Senators or Representatives that, as a general matter, support the NLRA. NLRA adherents among their ranks have for some time been a dying species and are now, for all practical purposes, ex­ tinct. Alongside that development, and perhaps abetting it, is the almost complete alignment of organized labor with the fortunes of one political party, the Democrats. A second factor is that most employers have no real stake in a vigorously enforced NLRA. Dealing with a union is a little bit like being struck by lightning. An increasingly small number of private employers have union-represented employees or realistically expect organizing drives in their future. Few such employers are clamoring for unionization to be extended to their competitors. Those affected by unionization efforts are intensely interested in stymieing the agency and are able, with the acquiescence of other companies, to urge the various trade associations to take a hard line in Congress and the courts against the Board. As for labor unions, they, too, have a much weaker stake in the NLRA. Union unfair labor practices, introduced by the 1947 amendments to the Act, are few in number because unions are less involved in traditional organizing campaigns involving labor picketing; preliminary injunctions against union violations these days are virtually unheard of. Instead, where organizing is occurring, unions tend to employ variants of the “corporate campaign” technique to wrest “neutrality and card check” agreements from target employers, thus bypassing NLRA processes altogether. If the unions have any interest in the Board, it is in enlisting the agency’s occasional assistance during bitterly fought collective bargaining disputes with employers or in advancing novel theories of employer responsibility to facilitate organizing. One consequence of these factors is the impact on the pool of people that might be attracted to serve on the Board and how the Board’s work product is regarded by judges and other decisionmakers. Today, few in the labor and employee relations community, whether they are practitioners, academics, or even professional neutrals,5 likely to be considered for an appointment to the agency come without firmly established views on most of the issues in contention. These professional take their job seriously and are open to the evidence and reasoned argument. But in the hard, politically tinged cases, they are not likely to depart from their prior conceptions. The decisions that issue in these hard cases are invariably seen, not entirely without cause, by the losing side as a product of political or ideological preferences. Another consequence is that Board innovation increasingly incites enormous, cascading controversy. When the Board ventures into new areas where the NLRA has not previously been applied (not in itself problematic)—for example, considering “employee” status for college football players or adjunct faculty or challenging “class action waiver” agreements in the nonunion sector as an interference with employee concerted activity—fuel is added to the fire. For the Board’s opponents in Congress and among allied trade associations, the choice is clear and unwavering: stop the agency in its tracks. Does the Board’s reputation affect its record in the courts? There is no discernible effect with respect to the routine, fact-specific cases that are grist for the NLRA mill. If there is an effect, it is in hard-fought cases in the courts of appeals—especially, the District of Columbia Circuit, where the alternative venue provision steers many Board orders for review. And it is with regard to the agency’s rulemaking efforts. It may be that the time has come for a legislative fix, for a fundamental alteration of the statutory scheme. Republican Senators Lamar Alexander and Mitch McConnell have authored a bill that would expand the agency to six members, require that any decision receive the support of four members to be valid, and 4 The movement away from appointing career government types to the Board is said to have begun with the Eisenhower administration and accelerated during the Reagan years. See James J. Brudney, Isolated and Politicized: The NLRB’s Uncertain Future, 26 COMP. LAB. L. & POL’Y J. 221 (2005); Flynn, supra note 3, at 1367–77. 5 There are relatively few professional neutrals in the labor relations sphere who are “acceptable” to both unions and employers. Of these, it is doubtful any would leave a lucrative arbitration practice to serve on the Board, where one’s public voting record could complicate post-NL­ RB engagements.

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ovide for immediate judicial review of NLRB General Counsel complaints.6 Professor Zev Eigen of Northwestern University School of Law and Sandro Garofalo of the Target Corporation have proposed transferring all adjudication of unfair labor practice complaints to the federal courts with the NLRB limited to holding elections and ruling on election objections.7 On February 23, 2015, fifty- two Republican senators approved a joint resolution, which soon thereafter passed the House in a largely partisan vote, disapproving of the NLRB regulation dealing with representation case procedure 8 and declaring that “such rule shall have no force or effect.” Predictably, President Obama vetoed the measure; an override has not been attempted. If past experience is any guide, these legislative seeds are not likely to bear fruit any time soon. It is very difficult to change laws under our federal system, and the NLRA, like Social Security, may be one of the “third rails” of U.S. Politics.10 But these stirrings should help us bear in mind the political winds that could fundamentally change the NL­ RA. Should anyone care? In my view, the state of the agency should be a concern not just to its personnel but to those who support the essential guarantees of the Act—that employees should be free of employer retaliation to engage in concerted activity for their mutual aid or protection and to select collective bargaining agents. A vibrant Board is needed not so much for the high-visibility, controversial cases but for the everyday holding of prompt elections, investigation of retaliatory discharge charges, and repair to the district courts for a preliminary injunc­ tion to reinstate workers discharged in the course of an of an organizing drive. If the Board’s overall reputation suffers, or if Congress deprives the Board of its adjudicatory function, the only resort for workers will be litigation in the courts where, unless they are supported by a union, they will have to fend for themselves without counsel; and, moreover, the law will confusingly, perhaps incoherently, develop district-by-district and lawsuit-by-lawsuit. But there is a problem, at least in perception, and the Board should be open to improvements in how it conducts its business. I have a few suggestions, none of which require a statutory amendment, that I hope the Board and its General Counsel will consider. The underlying objectives behind these suggestions are (1) furthering the relative stability of Board law, (2) improving the quality of Board decisions by expanding the sources of infor­ mation available to the agency, and (3) husbanding the political capital of the agency through prudential rules of abstention for disputes between parties in established collective-bargaining relationships. I. FURTHERING THE RELATIVE STABILITY OF BOARD LAW A. Rule of Four for All Policy Reversals By internal agreement, the members of Board would bind themselves, at least on an annual basis, to a Rule of Four: all cases coming to them contemplating or requiring a reversal of a prior NLRB decision would be heard by all five members and would require a vote of at least four members to take effect.11 I have previously argued for rulemaking for policy reversals.12 The proposal offered here does not require rulemaking. It would send a message to all affected by the Board’s work that the agency’s general policy is to preserve the stability of Board law, that

6 See Press Release, Lamar Alexander, Alexander Introduces “NLRB Reform Act” to Change the National Labor Relations Board from an Ad­ vocate to an Umpire (Sept. 16, 2014), available at http://www.alexander .senate.gov/public/index.cfm/pressreleases?ID=67fce1d6-ff3e­ 4d60-9d26-fe90444aba55. 7 See Zev J. Eigen & Sandro Garofalo, Less Is More: A Case for Structural Reform of the National Labor Relations Board, 98 MINN. L. REV. 1879 (2014). 8 Representation—Case Procedures, 79 Fed. Reg. 74,308 (Dec. 15, 2014) (to be codified at 29 C.F.R. pt. 101–103). 9 See S.J. Res. 8, 114th Cong. (vetoed Mar. 31, 2015); 161 CONG. REC. H1782–88 (daily ed. Mar 19, 2015); see also Memorandum of Disap­ proval Regarding Legislation Concerning the National Labor Relations Board Rule on Representation Case Procedures, 2015 DAILY COMP. PRES. DOC. 216 (Mar. 31, 2015). 10 The merits of these proposals is not the focus of this paper. The Eigen-Garafalo article does warrant further consideration. 11 This is similar in form to the “Rule of Three” the Board now follows for policy reversals. 12 See Estreicher, supra note 1.

11


policy reversals will be more exceptional than has been the case, and that some bipartisan support will be required to overturn a prior decision.13 B. Statement of Special Justification for Policy Reversals Again, by internal agreement, the Board would require that any decision to overrule a prior decision spell out what new evidence has come to light or what changed circumstances have occurred justifying such an overruling. A mere change in the composition of the Board or a judgment that the first decision was simply wrong would not be a sufficient justification.14 This is in line with the Supreme Court’s recent teaching in FCC v. Fox Television Stations, Inc.15: To be sure, the requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books. And of course the agency must show that there are good reasons for the new policy. But it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates. This means that the agency need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate. Sometimes it must—when, for example, its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account. It would be arbitrary or capricious to ignore such matters. In such cases it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.16

II. IMPROVING THE QUALITY OF BOARD DECISIONMAKING BY ENHANCING THE RANGE OF INFORMATION AVAILABLE TO THE AGENCY Despite the initial success of healthcare-bargaining unit rulemaking in the 1980s,17 and the Supreme Court’s unanimous endorsement of the agency’s authority to engage in legislative rulemaking,18 the Board is wary of further rulemaking initiatives. Three setbacks have led to this attitude: the legislative reaction to the singlelocation bargaining unit initiative during the Clinton administration,19 the rejection by two courts of appeals of the agency’s notice-posting rule,20 and the still uncertain future of its representation-case procedure rulemaking. This record may encourage the agency to re-embrace case-by-case adjudication as the less visible, less politically charged route for new policymaking.21 The Board, in my view, should not abandon rulemaking but learn from experience and craft rules that do a better job of accommodating conflicting interests. The substantive objections of the courts should be taken into account. For example, to deal with the District of Columbia Circuit’s criticism that the Board’s notice-positing rule impermissibly infringed on the right of employers to be free from “compelled speech,” the Board could relaunch a notice-posting rule22 that leaves out the fact-pattern illustrations and newfound, debatable remedial 13 An alternative to the Rule of Four would be for the Board to agree to publish annually an Agenda of

Issues of Board Law for Reconsideration, inviting commentary focused on particular issues, and then limit all policy reversals to issues that

appear on that list, with perhaps an exception for issues arising in the course of adjudication that require a policy reversal and which four

members are willing to vote for reversal.

14 This statement-of-justification requirement would generally be enforced by the Members themselves informing how they vote on the

proposed policy reversal. There may be cases where failure to provide such a justification may affect judicial review of the Board’s order.

15 556 U.S. 502 (2009).

16 Id. at 515–16 (citations omitted).

17 For an extensive overview of the Board’s first substantive rulemaking, see Mark H. Grunewald, The NLRB’ s First Rulemaking: An Exercise in

Pragmatism, 41 DUKE L.J. 274 (1991).

18 Am. Hosp. Ass’n v. NLRB, 499 U.S. 606 (1991).

19 Notice of Proposed Rulemaking, Appropriateness of Requested Single Location Bargaining Units in Representation Cases, 60 Fed. Reg.

50,146 (Sept. 28, 1995), withdrawn, 63 Fed. Reg. 8890 (Feb. 23, 1998).

20 See Chamber of Commerce of U.S. v. NLRB, 721 F.3d 152 (4th Cir. 2013); Nat’l Ass’n of Mfrs. v. NLRB, 717 F.3d 947 (D.C. Cir. 2013), over­ ruled in part on other grounds by Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014) (en banc) (overruling discussion of scope of

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)).

21 See Joan Flynn, The Costs and Benefits of “Hiding the Ball”: NLRB Policymaking and the Failure of Judicial Review, 75 B.U. L. REV. 387 (1995).

22 Notification of Employee Rights Under the National Labor Relations Act, 76 Fed. Reg. 54,006 (Aug. 30, 2011).

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provisions in the rejected rule. It would then make the case that the Board has the requisite statutory authority and that there are no serious Section 8(c) difficulties with such a stripped-down notice posting. There can be other situations where the Board might use a notice-and-comment procedure where the end result is not a rule but information that helps the Board consider important regulatory questions. I have suggested in previous writings.23 that the Board has authority, under an extension of the reasoning in Excelsior Underwear Inc.,24 after a representation election has been scheduled to afford the petitioning labor organization access, with appropriate security measures, to certain nonworking areas of the employer’s facility, such as the break room and cafeteria, to discuss with employees the merits of voting for the union in the upcoming election. The statutory goal of an informed employee electorate would be advanced by such limited mandatory access. A notice- and-comment proceeding could be used to test reactions among practitioners and to learn in-depth the practical, logistical issues that bear on the question before the Board. Equipped with such information, whether the Board addresses the issue in adjudication or rulemaking, its decision is likely to be a better decision on the merits and is more likely to receive a favorable review in the courts. Thought also should be given to revisiting the Gould Board’s use of advisory committees of labor and management representatives. Such committees need not represent merely one side but could instead be “mixed” committees of labor, management, and academics. 25 III. HUSBANDING THE POLITICAL CAPITAL OF THE AGENCY THROUGH PRUDENTIAL

RULES OF DEFERRAL/ABSTENTION FOR DISPUTES INVOLVING ESTABLISHED

COLLECTIVE BARGAINING RELATIONSHIP

This is a proposal for a broadening of Collyer-type26 deferral to arbitration: If the parties are in an established collective bargaining relationship and there is a good reason to believe that the parties’ dispute, even if nominally over a statutory question, is capable of being resolved in the parties’ agreed-upon arbitration process, the Board should stay its hand, reserving its jurisdiction for possible review of any award at the conclusion of the arbitration process. Thus, for example, a union’s unfair labor practice charge against a company considering the transfer of unit work to another location should be deferred to arbitration to determine whether the company has contractual authority to transfer the work. Theoretically, resolution of the contractual issue via arbitration may not fully resolve the statutory question, whether it is a claimed failure to bargain in good faith or a claimed discriminatory work relocation, but arbitration is likely to resolve many of the underlying factual issues and, as a practical matter, encourage the parties to resolve the underlying dispute.27 This proposal would only apply to disputes where resolution of the contractual issue would be helpful. It would not apply to questions of individual employee rights independent of the duty-to-bargain rights/prerogatives of the bargaining representative. Perhaps the Board could convene an advisory committee or negotiated rulemaking committee to consider possible extension of this Collyer approach to other disputes involving established bargaining relationships. The basic idea here is that disputes in an established relationship are best left for the parties to resolve on their own and, at the end of the day, the Board will not and should not change the outcome of the bargaining. Additionally, the theoretical existence of a statutory question is not a good enough reason for the Board to get involved when there is reason to believe that the parties’ agreed-upon arbitration process can resolve the dispute or is otherwise worth pursuing. CONCLUSION These are a few ideas to provoke discussion of ways the Board can improve its general reputation in Congress and the courts without compromising its core statutory responsibilities. 23 See Samuel Estreicher, “Easy In, Easy Out”: A Future for U.S. Workplace Representation, 98 MINN. L. REV. 1615, 1632–33 (2014); Samuel Estreicher, Improving the Administration of the National Labor Relations Act Without Statutory Change, 25 A.B.A. J. LAB. & EMP. L. 1 (2009). 24 156 N.L.R.B. 1236, 1239–40 (1966).

25 The Federal Advisory Committee Act, Pub. L. 92-463, 86 Stat. 770 (1972) (codified at 5 U.S.C. app. §§ 1–16 (2012)), sets up hurdles to cre­ ating such advisory committees, but they are not insurmountable. The Board should also consider using the procedures of the Negotiated

Rulemaking Act, 5 U.S.C. §§ 561–570a (2012), for certain recurring issues.

26 See Collyer Insulated Wire, 192 N.L.R.B. 837 (1971).

27 This proposal is in some tension with the Board’s recent 3–2 ruling in Babcock & Wilcox Constr. Co., 361 N.L.R.B. No. 132, 2014 WL

7149039 (Dec. 15, 2014), which tightens up post-arbitral review by the agency but does not appear to change pre-arbitral deferral under Col­ lyer and its progeny.

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Culture Corner: ‘Spaghetti

Westerns’ as a Distinct Genre

By Alia Haddad, Assistant Director of Operations of the NYU Center of Labor and Employment Law (MA in Cinema Studies, NYU Tisch ‘12) When we as Americans think of Western movies, images of gun-wielding John Wayne, Alan Ladd, and Burt Lancaster characters tend to pop into our heads as the often eponymous character saves both the girl he secretly loves but can never end up with and the community she lives in from danger. Themes of Manifest Destiny, the self-reliant American, and rightful and deserved justice run rampant throughout these movies. We conveniently forget that the type of justice these heroic characters bestow on their foes is in actuality a form of vigilante justice, and if we do not forget this, we explain it away, noting that it was inherent to a particular time and neces­ sary for the westward expansion and progress that we have benefited from today. In fact, we must do this because Westerns, and more specifically, American Westerns celebrate us, our founding, and our growth as a society, defects and all. What happens, though, when another culture directs and produces Westerns, using similar tropes but turning them on their heads? Take for example the Spaghetti Western, a term refer­ ring to Italian-made and produced Westerns, shot in large part in Spain. The very fact that West­ erns took hold in Italy is something of which we should take note. Popular in the mid-to-late-1960s, Spaghetti Westerns have many of the same place holders of an American Western – the gunslinger hero, the horse, the town in peril, the harsh landscape—yet none of the meaning behind it. The gunslinger, perhaps most notably played by current chair-enthusiast Clint Eastwood, is no longer a man guided by a strong moral code or a desire to help those who are too weak to help themselves. Instead, he is simply guided by one thing: money. Often coming in the guise of a bounty hunter, the Spaghetti gunslinger is incredibly cool, marked by a strong sense of machismo, and very skilled with a gun. He rides into town with money on his mind, engages in deception and foul play to make that money, and subsequently leaves, effectively destroying any semblance of said town. While in American Westerns the very notion of annihilating a town would be devastating, in the Spaghetti Western the town is just as corrupt as its hero figure. In fact, when Clint East­ wood’s The Man with No Name succeeds at the end of A Fistful of Dollars in effectively killing all occupants of the central town save for a few people before riding away on his horse, we feel no remorse, and instead a lightness and a sense of gratitude that these corrupt members of society are no longer with us. No Name comes into town and leaves the town the same way an American Western hero would—by horse—but what he does in the town is completely different. There is no saving the town from an outside danger. Instead the danger the town had once feared and ne­ cessitated the need for a John Wayne-like hero has already infiltrated the town so thoroughly that the only option is complete destruction. Outside of these themes, the horse and landscape play similar roles within Spaghetti West­ erns in that they are both strong tropes in the American Western that are included in Spaghetti Westerns without any of the same meanings associated with them. In the American Western the bond between the hero and his horse is very strong and tangible. Whole chapters of books and films are dedicated to showing this bond, often portrayed through the breaking of a horse as in 14


All the Pretty Horses and Hondo. In the Spaghetti Western however the horse is merely another tool with which the hero uses. He rides into town on his horse and leaves town on his horse, and other than being the center of a gun fight in A Fistful of Dollars, the horse really has no other place in the Italian variety of the genre. The landscape, too, is no longer characterized by sweep­ ing and grand images of majestic expanses of land with powerful natural structures rising from this landscape. Instead, the audience sees dusty, dry, and dead patches of land, mimicking the town that the hero ultimately destroys. In the American Western, the hero proves himself by showing his ability to handle nature and the landscape, as in Jeremiah Johnson or True Grit. In the Spaghetti Western the land is all but forgotten once the hero rides into town. These differences, while not exhaustive, go to show that the Spaghetti Western ought to be considered in its own right. The Western genre, as with most genres, changes and shifts over time: what we see with the Spaghetti Western is that it has almost turned in on itself in terms of the genre. We have the same center pieces that make up the genre, but they represent entirely different and often antithetical themes.

Labor Center News

The NYU Labor Center is now on Twitter! Our new Twitter account, @NYULaborCenter, posts news articles and im­ portant updates about current important information and upcoming Labor Center events. If you have any articles to contribute, please send them to Alia Haddad at alia.haddad@nyu.edu and be sure to follow us on Twitter for easy updates on Labor Center news!

15


A Labor and Employment Lawyer

in the Air Force

by Martin T. Mitchell, Colonel, USAF Colonel Martin Mitchell is a senior appellate military judge stationed at Joint Base Andrews, Maryland and an Associate Appellate Judge on the U.S. Court of Military Commission Review. Colonel Mitchell served in several specialized positions in Rosslyn, VA, including serving as a labor attorney, employment litigation attorney, and executive officer. In 2006, Colonel Mitchell returned to military justice and served as the Chief, Circuit Defense Counsel for the central circuit. He then served two con­ secutive tours as the Staff Judge Advocate at the 67th Network Warfare Wing at Lackland AFB, TX, and the 6th Air Mobility Wing at MacDill AFB, FL, before becoming a military trial judge at McChord Field, WA. As a lawyer for the Air Force Legal Operations Agency’s Labor Law Field Support Center (LLFSC), on a daily basis, I was assisting commanders and manage­ ment officials in workplace issues that have a direct impact on mission readiness and effectiveness. Anyone who has had a problematic co-worker, subordinate, or boss can readily understand the real world effects on Colonel Martin T. Mitchell the ability to get the job done. The mission of the LLFSC is “to provide the full spectrum of labor and employment law expertise to ensure maximum flexibility for commanders in employing the civilian workforce in support of Air Force operations.” The LLFSC has responsibility for Air Force labor and employment law matters around the world in federal court and before the Merit Systems Protection Board (MSPB), the Equal Employment Opportunity Commission (EEOC), the Federal Labor Relations Authority (FLRA)1 and labor arbitrators. Additionally, LLFSC attorneys advise senior leaders and policy makers on complex questions of labor/employment law. They also provide training, both in-residence and online, to fellow attorneys and paralegals. The LLFSC defends the Air Force in unfair labor practice (ULP) cases before the FLRA brought by unions. To provide a sense of the scope, unions represent about 120,000 of the Air Force’s full-time civilian employees. The LLFSC represents the Air Force in negotiability appeals, bargaining impasses, and scope of representation issues. The LLFSC defends the Air Force in cases before the EEOC, MSPB, OSC and other administrative agencies addressing issues on discrimination, prohibited personnel practices, whistleblow­ er protection and reprisal, and unemployment/workers’ compensation. LLFSC attorneys work closely with their counterparts at the Department of Justice in representing the Air Force’s interests in United

16


States District Courts, the Court of Federal Claims, the Federal Circuit Court of Appeals and court-ordered settlement conferences. A challenge for the military commander, and the LLFSC attorneys in supporting them, is understanding that different rules apply to different personnel. An active duty military member has rights under and is subject to the Uniform Code of Military Justice; a bargaining unit employee has rights under the collective bargaining agreement and the Civil Service Reform Act; an employee of a contractor is subject to discipline by his employer (not the commander). An active duty member may share a desk with a co-worker who has rights to bring complaints to the EEOC, MSPB and FLRA and sue in federal court; options which are not available to the active duty member. A commander may, with the best of intentions, run afoul of bypassing the union when resolving a work­ place dispute even when the workers directly affected are satisfied with the result. (See 67 FLRA 135). On any given day, I would be working with dedicated professionals in the civilian personnel office on proposed discipline that would result in MSPB jurisdiction, advising commanders and senior officials on labor relations, preparing for a deposition as part of discovery in a discrimination lawsuit in federal district court and negotiating with union officials regarding an alleged ULP. The LLFSC litigators and paralegals at the central office and the regional offices “defend against the entire spectrum of administrative and judicial challenges in labor and employment law.” *The views presented are those of the author and do not necessarily represent the views of Department of Defense, the U.S. Air Force, or its components.

1 Editor’s

Note: The FLRA is an independent administrative federal agency that was created by Title VII of the Civil Service Reform Act of 1978 (also known as the Federal Service Labor-Management Relations Statute). The statute allows certain non-postal federal employees to organize, bargain collectively, and participate through labor organizations of their choice in decisions affecting their working lives. The primary statutory responsibilities of the FLRA include resolving complaints of unfair labor practices, determining the appropriateness of units for labor organization representation, adjudicating exceptions to arbitrator’s awards, adjudicating legal issues relating to duty to bargain/negotiability, and resolving impasses during negotiations.

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Welcome New Board Members!

Stephen Sonnenberg practices employment law at Paul Hast­ ings LLP in New York. He works with a range of clients in both the United States and Asia on a variety of employment issues. did you decide to go into labor law? Was there anyQ: When thing in particular that led you to make this decision? When I realized what now sounds obvious: at the core of so many employment disputes are intense human emotions. I was a clinical social worker before I went to law school and had spent a decade learning how to help recognize, understand, and manage conflict, from a psychological standpoint. When I was a summer associate at Paul Hastings, I realized that practicing employment law was a natural fit. I was drawn to the human ele­ ment, the strong emotions that are often present in workplace disputes. I Stephen Sonnenberg was also in law school when harassment and discrimination claims Paul Hastings, LLP were often in the news. Like many others, I was captivated by the Senate confirma­ tion hearing for Justice Clarence Thomas.

What types of clients do you tend to represent? Do any of those clients present

Q: unique challenges for you in your practice?

I've had the privilege of representing many different types of clients, from companies with opera­ tions all over the world to individuals who were hoping not to lose their homes as a result of litigation. I practiced in Los Angeles for 13 years before returning home to New York City, and in California I repre­ sented a number of clients in the entertainment industry, financial services, and defense sector, really a cross section of the California economy. After I returned to New York in 2006 I focused more on the fi­ nancial services industry and my practice took on much more of an international flavor. Paul Hastings’ presence in Asia had expanded greatly and I quickly began representing employers headquartered in Ja­ pan with operations in the United States. I also made several client-related visits to China. I wouldn't say representing companies based in Asia is challenging, I would say it's fascinating. Add to the mix of employment law issues and associated human emotions an extra element—cultural differences and nu­ ances—and you have a wonderfully interesting practice.

the percentage of unionized workers has declined over the decades, how has that Q: As decline affected your practice, if at all? Actually, my experience is that traditional labor law issues are more central to practicing in New York than they were in California. The decline in union representation hasn't really affected my practice, though, because I have focused more on lawsuits grounded on discrimination, retaliation, harassment, and wage-and-hour law to a greater extent than union-management relations.

does your previous experience as a clinical social worker color your Q: How experience working in labor law? I'm fascinated by the juncture of employment law and psychology. Psychological issues shape counsels’ day-to-day advice regarding a variety of employment issues, play a central role in litigation, and influence damages analyses. They're critical to incentivizing employees, negotiating disputes, or trying an employment claim to a jury. What strikes me too often is the difficulty that lawyers and mental health professionals have in understanding each other, as if they speak a different language. They probably ana­ 18


lyze situations differently. Lawyers tend to focus on the facts and the evidence, what I’ll call the outside world. Mental health professionals focus on the inner world, the one populated by feelings, sometimes irrational, on unconscious motivations, and earlier life experiences. But all of us are, at bottom, engaged in a similar pursuit, trying to understand, for lack of a more articulate phrase, what really happened.

have your personal mentors been? Q: Who I've been very fortunate to have worked with tremendously talented and generous colleagues at Paul Hastings and I've learned from many more than I can name here. Paul Grossman and Nancy Abell became my mentors early on and to this day they are my trusted guides and friends. I also had several mentors in my first career who helped me to learn how to be a psychotherapist and how to become more self-aware. I'd like to think that has served me well as an attorney.

Michael Grenert (NYU ‘95) is a partner at Liddle & Robinson in New York. He has focused on employment law his entire career, and he primarily represents employees in the financial services industry. When did you decide you wanted to go into labor law? Was

Q: there anything in particular that led you to make this Decision?

It was a combination of things. In college, I did a lot of research and writing on civil rights issues, mostly focusing on school desegregation, so not directly in em­ ployment law but I knew I was interested in the field. Getting involved with employ­ ment law was sort of a bit of luck for me. I was lucky to have a contact at Liddle & Robinson, the firm where I work now. This is where I got my start—I worked here Michael Grenert the first summer of law school, and it really got me invested in employment law. Liddle & Robinson, L.L.P.

types of clients do you tend to represent? Do any of Q: What those clients present unique challenges for you in your practice? A lot of our clients are financial services professionals on Wall Street. I think it makes for an inter­ esting practice because you really have to learn the industry in order to communicate with clients effec­ tively. Part of the challenge is representing clients that tend to be sophisticated business professionals—they want to stay informed and be involved in the process, so it’s a learning experience for both our lawyers and our clients. Usually on the other side, we’re going up against big banks repre­ sented by huge corporate law firms. There’s usually a disparity in resources there, and that’s often true in employment law cases. So that’s one of the big challenges we have to face.

have your personal mentors been? Q: Who I’d say one of my mentors is Jeff Liddle—the Liddle of Liddle & Robinson. He started his firm in 1979, so he’s been doing this a long time. And one of the nice things about working at Liddle & Robinson, a plaintiff-side firm, is that it’s pretty sizeable. So at any given time there are about 20 lawyers, with multiple lawyers working on one case. When I was a junior lawyer just getting my start here, I always had multiple lawyers and partners to look to for guidance or help.

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Irwin Bluestein, Meyer, Suozzi, English & Klein, P.C. Irwin Bluestein has represented labor organizations and their related employee benefit plans for more than 40 years. Among his clients are unions and employee benefit plans in health care, higher education, newspaper and printing, and other industries . His representation of these clients includes collective bargaining, arbitration, litiga­ tion, and proceedings before the National Labor Relations Board and other federal and state administrative agencies; advising employee benefit plans regarding plan design and administration; drafting plan and trust documents, summary plan descriptions, and the like; addressing fiduciary compliance issues; merging funds and plans; and litigating withIrwin Bluestein drawal liability, delinquent contributions, and participant claims.

Meyer, Suozzi, English &

Mr. Bluestien counsels a number of single and multi-employer Taft-Hartley pension Klein, P.C. and benefit plans, and has negotiated extensively in connection with non-Taft-Hartley plans. He was recently involved in developing and obtaining approval of the first adjustable pension plan approved by the IRS, of which he is co-counsel. He has since been involved in establishing a second adjustable pension plan, of which he is also co-counsel. It is his hope that adjustable pension plans will help reverse the growth of 401(k) plans, which he considers anathema to the interests of workers and retirees. Before joining Meyer, Suozzi, Mr. Bluestein was a member of Vladeck, Waldman, Elias & Engelhard, P.C. He is a frequent speaker and instructor on labor law and employee benefits issues.

Todd Gutfleisch, Wechsler & Cohen LLP Todd Gutfleisch, a partner with Wechsler & Cohen, LLP, concentrates his practice in employment law and litigation. Mr. Gutfleisch represents clients in all aspects of the employ­ ment relationship, both within and outside the financial services industry. In addition to coun­ seling clients on their employment contracts and severance agreements, Mr. Gutfleisch negotiates and litigates compensation and related disputes, as well as claims of breach of con­ tract, unlawful termination, defamation, discrimination, whistleblowing, and retaliation. Mr. Gutfleisch has appeared before arbitration panels at FINRA (and its predecessors, the NASD and NYSE), and the American Arbitration Association. In addition, Mr. Gutfleisch has litigated cases in both state and federal trial and appellate courts. Mr. Gutfleisch also specializes in wage­ and-hour class actions, including claims for failure to pay overtime, incorrect designations, and Todd Gutfleisch Wechsler & Cohen, LLP unlawful deductions from compensation. Prior to joining Wechsler & Cohen, Mr. Gutfleisch was an Executive Director at JP Morgan Chase & Co. where he worked for almost 15 years representing the bank in a wide range of employment matters. Mr. Gutfleisch had primary responsibility for employment law issues in JP Morgan’s investment bank, and was responsible for all wage-and-hour class action litigation and compliance.

James Murphy (NYU ‘89), Spivak Lipton LLP Mr. Murphy joined Spivak Lipton LLP in 1992 and became a partner in 2000. He received his law degree from New York University School of Law in 1989, a Master’s Degree in Sociology from the University of Pittsburgh in 1975, and his undergraduate degree, cum laude, in Economics and Sociology from LaSalle College in 1973. Prior to attending law school, he was a rank-and-file union activist, organizer, staff representative, and elected officer with unions in the educa­ tion, health care, and telecommunications industries. Besides his regularly representing unions and employee benefit funds in litigation, negotiations, and regulatory compliance, Mr. Murphy also has extensive experience in counseling cli­ ents in regulatory investigations with various state and federal agencies and in representing clients as creditors in bank­ ruptcy proceedings. Beginning in January 2012, Mr. Murphy has served as the General Counsel of the New York City and Vicinity District Council of Carpenters. 20


New York University School of Law

Center for Labor and Employment Law

Advisory Board 2014-2015

Marshall B. Babson, Esq. Seyfarth Shaw LLP

Todd Gutfleisch, Esq. Wechsler & Cohen, LLP

Ex Officio

Lee F. Bantle, Esq. Bantle & Levy LLP

Jerome B. Kauff, Esq. Kauff McGuire & Margolis LLP

Esta R. Bigler, Esq. Cornell University, ILR School

Jonathan J. Ben-Asher, Esq. Ritz Clark & Ben-Asher LLP

Jeffrey S. Klein, Esq. Weil, Gotshal & Manges LLP

Hon. Kent Y. Hirozawa National Labor Relations Board

Laurie Berke-Weiss, Esq. Berke-Weiss Law PLLC

Jeffrey I. Kohn, Esq. O’Melveny & Myers LLP

Hon. Harry I. Johnson III National Labor Relations Board

Michael I. Bernstein, Esq. Bond, Schoeneck & King, PLLC

Frances Milberg, Esq.

Hon. Mark G. Pearce Chairman, National Labor Relations Board

Irwin Bluestein, Esq. Meyer, Suozzi, English & Klein, P.C. Frederick D. Braid, Esq. Holland & Knight LLP Ethan A. Brecher, Esq. Law Office of Ethan A. Brecher, LLC Mark E. Brossman, Esq. Schulte Roth & Zabel LLP Larry Cary, Esq. Cary Kane LLP Daniel E. Clifton, Esq. Lewis Clifton & Nikolaidis, P.C. Michael Delikat, Esq. Orrick, Herrington & Sutcliffe LLP Mark S. Dichter, Esq. Morgan Lewis & Bockius LLP Donald C. Dowling, Jr., Esq. K&L Gates LLP Eugene G. Eisner, Esq. Eisner & Associates, P.C. Daniel Engelstein, Esq. Levy Ratner, P.C. Zachary D. Fasman, Esq. Proskauer Rose LLP Eugene S. Friedman, Esq. Friedman & Anspach Laurence Gold, Esq. Bredhoff & Kaiser, P.L.L.C. Willis J. Goldsmith, Esq. Jones Day Michael E. Grenert, Esq. Liddle & Robinson, L.L.P.

James M. Murphy, Esq. Spivak Lipton LLP Wayne N. Outten, Esq. Outten & Golden LLP Andrew Peterson, Esq. Jackson Lewis LLP

Lynn Rhinehart, Esq. American Federation of Labor and Congress of Industrial Organizations

Associate Advisors

Mark D. Risk, Esq. Mark Risk P.C.

Karen P. Fernbach National Labor Relations Board, Region 2

Theodore O. Rogers, Jr., Esq. Sullivan & Cromwell LLP

Terrance Nolan, Esq. New York University

Martin Schmelkin, Esq. Goldman Sachs & Co.

James G. Paulsen National Labor Relations Board, Region 29

Lee R.A. Seham, Esq. Seham Seham Meltz & Petersen, LLP Susan P. Serota, Esq. Pillsbury Winthrop Shaw Pittman LLP

Preston L. Pugh, Esq. Pugh, Jones & Johnson, P.C. Justin M. Swartz, Esq. Outten & Golden LLP

Samuel S. Shaulson, Esq. Morgan, Lewis & Bockius LLP Ronald H. Shechtman, Esq. Pryor Cashman LLP Stephen P. Sonnenberg, Esq. Paul Hastings LLP Darnley D. Stewart, Esq. Outten & Golden LLP Scott J. Wenner, Esq. Schnader Harrison Segal & Lewis LLP Robert Whitman, Esq. Seyfarth Shaw LLP Daniel M. Young, Esq. Wofsey, Rosen, Kweskin & Kuriansky, LLP Pearl Zuchlewski, Esq. Kraus & Zuchlewski LLP

21

Emeritus John-Edward Alley, Esq. Ford & Harrison LLP Robert Battista, Esq. Littler Mendelson P.C. Ida Castro, Esq. V-Me Media, Inc. G. Peter Clark, Esq. Kauff McGuire & Margolis LLP Michael Curley, Esq. Curley & Mullen LLP Prof. Frederick Feinstein Office of Executive Programs, School of Public Policy, University of Maryland


Prof. Joan Flynn Cleveland State University Cleveland-Marshal College of Law

Prof. G. Mitu Gulati Duke University Law School

Sarah M. Fox, Esq. Bredhoff & Kaiser, P.L.L.C.

Prof. Jeffrey M. Hirsch University of Tennessee College of Law

Prof. William B. Gould IV Stanford Law School

Prof. Yoram Margalioth Tel Aviv University

Steven Hantler, Esq. American Justice Partnership

Dean Andrew P. Morriss Texas A&M University School of Law

Seth D. Harris, Esq. Cornell University, ILR School; Dentons US LLP

Prof. Jonathan R. Nash Emory University School of Law

New York University School of Law Associated Faculty Prof. William T. Allen Prof. Paulette G. Caldwell Prof. Cynthia Estlund Prof. Lewis Kornhauser Prof. Deborah Malamud

Prof. Daniel F. O'Gorman Barry University,

Dwayne O. Andreas School of Law

Prof. Richard Revesz

Prof. Richard B. Stewart

Meryl R. Kaynard, Esq. Queens College

Dean Sharon Rabin-Margalioth Radzyner School of Law,

The Interdisciplinary Center Herzliya (IDC)

Patricia Langer, Esq. NBCUniversal Inc.

Prof. César F. Rosado Marzán IIT Chicago-Kent College of Law

Henry D. Lederman, Esq. Littler Mendelson P.C.

Prof. Paul M. Secunda Marquette University Law School

David J. Reilly, Esq. Arbitrator-Mediator-Fact-Finder

Prof. David Sherwyn Cornell University School of Hotel Adminis­ tration

Reginald E. Jones, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Daniel Silverman, Esq. Silverman & Silverman, LLP Eric Taussig, Esq. Law Office of Eric Taussig

Research Fellows Prof. John T. Addison University of South Carolina, Moore School of Business Department of Economics Prof. Kati Griffith Cornell University, ILR School

Prof. Susan J. Stabile University of St. Thomas School of Law Prof. Michael Stein William & Mary School of Law Prof. Kerri L. Stone Florida International University College of Law Dean Michael J. Yelnosky Roger Williams University School of Law

Prof. Matthew Bodie Saint Louis University School of Law Prof. Ronald C. Brown University of Hawaii William S. Richardson School of Law Prof. Ross E. Davies George Mason University School of Law Prof. Zev Jacob Eigen Northwestern University School of Law

22

Prof. Laura Sager


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Center for Labor and Employment Law New York University School of Law 139 MacDougal Street, 4th Floor New York, NY 10012 Phone: (212) 992-8103 Fax: (212) 995-4769

Samuel Estreicher

Torrey L. Whitman

Dwight D. Opperman Professor of Law Director samuel.estreicher@nyu.edu (212) 998-6226

Coordinator torrey.whitman@nyu.edu (212) 992-8103

THE CENTER FOR LABOR AND EMPLOYMENT LAW was created in 1996 to establish a nonpartisan forum for debate and study of the policy and legal issues involving the employment relationship. The Center has four major objectives: 1. To promote workplace efficiency and productivity, while at the same time recognizing the need for justice and safety in the workplace and respecting the dig­ nity of work and employees 2. To promote independent, nonpartisan research that would improve under­ standing of employment issues generally, with particular emphasis on the connec­ tions between human resources decisions and organizational performance 3. To sponsor a graduate program for the next generation of law teachers and leading practitioners in the field 4. To provide a forum for bringing together leaders from unions, employees and companies, as well as representatives of plaintiff and defense perspectives, for in­ formal discussions exploring new frameworks for labor-management relations, workplace justice, fair and efficient resolution of employment disputes and repre­ sentation in the workplace 24


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