Monthly Archive: January 2013

Jan 29

Labor Relations and the Future of Professional Baseball Symposium Transcript Published

The transcript of Labor Relations and the Future of Professional Baseball, a symposium hosted by the St. John’s University School of Law’s Center for Labor and Employment Law, has been published by the Seton Hall University School of Law Journal of Sports and Entertainment Law. (22 Seton Hall J. of Sports & Entertainment L. 164.)  The symposium was held on November 18, 2011 and was widely attended by practitioners and students alike.

“I am thankful to the Seton Hall Journal of Sports and Entertainment Law for publishing the transcript of the symposium and to all those who took part in making the event a success,” said Professor David Gregory, Executive Director of the Center for Labor and Employment Law.   Jack Newhouse and Melissa Schneer, Class of 2012 officers of the St. John’s Law Labor and Law Society, were the driving forces of the Conference.  “The day provided an inside look at the history and current status of labor relations in the sport of baseball, as well as spirited debate about the course of its future.  It is my hope that the transcript will provide those who were not able to attend the opportunity to gain the insights and knowledge that came out of the symposium.”

The conference highlight was a keynote speech by Professor William B. Gould, IV of the Stanford Law School and former Chairman of the National Labor Relations Board during the Clinton Administration. He shared his childhood memories of baseball, and mapped out the development of the players union, from efforts to unionize in 1946 to the Messersmith-McNally arbitrations in 1975. (Id at 173-84.)  He also shared his thoughts on the future of baseball, including potential changes in drug testing and drafting. (Id at 187-90.)  Professor’s Gould’s remarks were followed by a panel discussion that covered a wide range of topics, including drug testing, international players, and what role considerations of giving back to the community should have in the collective bargaining discussion. (Id at 193-239.)

“The Labor Relations and Baseball symposium provides a terrific platform for our next major event.  Friday, April19, 2013, will be devoted to a day long panel discussion on the Role of Arbitration in Professional Sports.  Several of the world’s great arbitrators are confirmed speakers and our distinguished alumnus Gene Orza is confirmed as the program moderator.  It will be free of charge and open to the community,” said Professor David Gregory.

Anyone interested in obtaining a copy of the Journal issue in which the November 18, 2011 transcript appears should contact the Seton Hall Journal of Sports and Entertainment Law at: Seton Hall School of Law, 1 Newark Center, Newark, NJ 07102.  Phone: 973-642-8239.

Jan 23

Remembering Marvin Miller: A Glimpse Inside the Memorial of a MLBPA Legend

Fellow Student-Author Krystyna Baumgartner and I had the privilege of attending the Major League Baseball Players Association’s (“MLBPA”) memorial for Marvin Miller on Monday, January 21st at NYU’s School of Law. The memorial was a glorious tribute to the life and legacy of one of the most important and successful leaders in labor history.

 

The memorial featured thirteen speakers with clips of Marvin Miller inserted in between. The first speaker was Richard Moss, prominent General Counsel of the MLBPA after Miller was elected Executive Director in 1966.  Moss stated that Miller was especially gifted in explaining difficult concepts in a way that everyone could understand, without talking down to the listener, a skill that was echoed by speakers throughout the night.

 

Executive Director of the National Hockey League Players Association, Donald Fehr, also spoke. Fehr reflected on the emotional side of Marvin Miller that he deliberately concealed from the public. Miller was a brilliant tactician, even outside the negotiating room. For example, Fehr noted that Miller would intentionally speak quietly in order to make the players strain to pay attention.  Fehr also notably addressed why Marvin Miller is still remembered today, more than 30 years after he retired. He argued that Miller built the MLBPA into a symbol of what a union could be, if run properly. Since former President Regan’s firing of 11,000 striking air traffic controllers in 1981, there has been a general acceptance of attack on labor unions from management, which continues today. Despite the hostile environment, the MLBPA successfully struck in 1981 and 1994.  Finally, Fehr stated that Miller’s work to get individual members to take ownership of their union is the reason for the MLBPA’s success and claimed that unions in other industries would be much better off today if they were run with similar principles.

 

Of particular interest was the bevy of both current and former players in attendance. Speakers included Hall of Fame members Dave Winfield and Joe Morgan. Many players echoed sentiments that Miller’s most difficult job was to organize a group of individuals who feared for their job security if they joined a union and who wanted to focus on playing baseball rather than deal with labor relations issues. It took several years for the players to realize what could be gained from union solidarity. Buck Martinez and Jim Bouton described Miller as an educator. Current Director of Player Relations, Tony Clark, noted the lasting appreciation that the players have for Marvin Miller and the principles he stood for, inviting several current players in attendance to stand. Just about every single player expressed his offense to Miller’s exclusion from the Hall of Fame.

 

Finally, the clips of Marvin Miller were especially poignant. During his vignettes Miller expressed pride in his involvement with numerous unions and noted the value of speaking to each and every member. He also noted the conditions players faced prior to taking ownership of their union, and cautioned the players to not take their current position for granted. Miller stressed that educated, involved union members are necessary for the continuing success of the MLBPA.

Jan 22

St. John’s Students Win 4/6 NYSBA Labor & Employment Section Awards

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On January 26, 2013, the Labor and Employment Law Section of the New York State Bar Association will present three third-year students from St. John’s, Amanda Jaret, Andrew Midgen, and Alyssa Zuckerman, with awards at its annual meeting.

Amanda Jaret, Secretary of the Labor and Employment Law Society and Junior Fellow for the Center for Labor and Employment Law, is the first place winner of the Samuel M. Kaynard Memorial Student Service Award and second place winner in the Dr. Emanuel Stein and Kenneth D. Stein Memorial Writing Competition for her paper, titled “Other Mutual Aid Or Protection”: Collective Legal Claims as Concerted Activity in D. R. Horton, Inc. and Beyond. Amanda has worked as a research assistant and Junior Fellow for the Center during her entire tenure at St. John’s, supported by the 2011 John Boyd Scholarship, the 2012 Professor Lawrence Joseph Scholarship, and the Cesar Chavez Memorial Scholarship, awarded to the graduating third-year law student with the highest grades in the labor and employment law curriculum. She has worked for the United Auto Workers in Detroit, Michigan and for Cohen, Weiss and Simon LLP, a union-side labor law firm.

Andrew Midgen, Co-President of the Labor and Employment Law Society and Junior Fellow for the Center for Labor and Employment Law, is the first place winner of the 2012 Dr. Emanuel Stein and Kenneth D. Stein Memorial Writing Competition. His winning paper, titled The Future Scope of the Antitrust Exemption in Professional Sports, addresses a controversial and developing area of labor and employment law that has captured national attention during recent collective bargaining agreement negotiations for professional sports teams and players in the National Football League and, most recently, the National Hockey League. Among Andrew’s previous honors and accomplishments are the Inaugural Borrelli and Associates Scholarship and prestigious internships with UNITE HERE! Local 100, the United States Department of Labor Office of the Solicitor, and the National Labor Relations Board Division of Judges.

Alyssa Zuckerman, Co-President of the Labor and Employment Law Society and Junior Fellow for the Center for Labor and Employment Law, is the second place winner of the 2012 Samuel M. Kaynard Memorial Student Service Award. One of Alyssa’s chief initiatives as Co-President includes the successful launch of a new blog, the Center for Labor and Employment Law Forum (this blog). The Service Award also recognizes her consistently impressive leadership of the Society and the many successful events she has coordinated for the Center during her time at St. John’s. Alyssa has also received many other notable honors for her contributions to labor and employment law, including the 2012 Coca-Cola Refreshments Scholarship, which enabled Alyssa to work as a Summer Associate with Coca-Cola’s Labor Relations Department, the Cesar Chavez Memorial Scholarship, and an internship with Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, a workers’ compensation law firm.

These three students follow in the footsteps of many of their predecessors who have received similar recognition from the New York State Bar Association. The students’ successes are a testament to the strength of St. John’s labor and employment law curriculum and the stalwart guidance and mentoring of Professor David L. Gregory.

Jan 21

Drop the Puck: An Overview of the New NHL CBA

The National Hockey League (NHL or League) has officially begun its new season.  As pucks dropped across the NHL Saturday night, a new collective bargaining agreement (CBA) was in effect.  Negotiating the agreement led to a lockout which lasted more than one hundred days[1] and had far reaching costs (as discussed here).  Much of the previous CBA will remain unchanged, however, there have been some important changes made to certain aspects of the relationship between the League and the National Hockey League Players Association (NHLPA or Union).  These changes are highlighted below.

The new CBA is a ten-year agreement[2], making it the longest agreement to be signed between the League and the Union[3].  Each side has a right to terminate the agreement in 2019[4].

Two of the central sticking points during negotiations – the division of hockey-related revenue and a pension plan for players – were resolved through the new agreement[5].  Under the previous CBA hockey-related revenue (HRR) was divided with a slight advantage for the players, who received 57%[6].  The new agreement splits HRR evenly between the players and the League[7].  Additionally, a defined benefit pension plan will be created[8].  A defined benefit plan is one that provides recipients with retirement benefits for the remainder of their lives[9].

Along with a new split in HRR, the agreement creates a new structure for revenue sharing, including the creation of a Revenue Sharing Oversight Committee (the Committee)[10].  The revenue sharing pool will equal 6.055% of HRR per year and will obtain half of its funds from the ten teams that have the highest gross revenue[11].  The remainder of the funds will be made up of money from league revenue and gate receipts for playoff games[12].  The Committee will control the revenue sharing program and will exercise oversight authority over any team that generates less than 75% of the league average in gate revenues[13].  The new agreement also creates an Industry Growth Fund (the Fund) which will provide assistance to any team that is struggling with generating revenue[14].

Individual player contracts (called Specific Player Contracts or SPCs) will remain the same for the remainder of the 2012-13 season, despite the shortened season[15].  After the end of this season, any player contract that provides for a lower salary for any given season that is lower than the minimum salary for that season will be adjusted so that the player receives the minimum[16].  The minimum salary begins at $525,000 and increases to $550,000 for next season[17].  After that, it increases by an additional $25,000 every two years until it jumps by $75,000 between the 2016-17 and 2017-18 seasons[18].  It then increases by $50,000 every other year until the end of the contract[19].  After four seasons players will be eligible for salary arbitration under the system that existed in the previous CBA[20].  The existing system of free agency is also carried over to the new agreement, meaning after seven seasons or at the age of 27 players become free agents and are able to talk to any team[21].

In addition to minimum salaries for individual players, the new CBA creates payroll ranges for the teams[22].  The upper limit, midpoint, and lower limit are set for the first two seasons, after which the three amounts are set through a formula[23].

The new CBA divides the discussion of discipline into two distinct sections – on-ice discipline and off-ice discipline[24].  The amount of fines that may be levied against a player for on-ice infractions is increased[25].  Further, the new agreement provides for an appeals process players can access if they are subject to discipline[26].  The first step in appealing on-ice discipline is going to the Commissioner; in certain cases, there may be an additional right to have an appeal heard by a neutral arbitrator[27].  There are a number of reasons a player may be disciplined for off-ice conduct, including participating in conduct that can ultimately harm the game of hockey[28].  In such a case a player may be subject to a range of penalties, from suspension to paying a fine to the nullification of the player’s contract[29].  If a player wishes to appeal discipline for off-ice conduct, the appeal goes directly to a neutral arbitrator[30].  The standard of review for all disciplinary appeals is substantial evidence[31]

The final major area covered by the new CBA is health and safety concerns.  The agreement begins by tackling substance abuse through a review of the Substance Abuse and Behavioral Health Program (the Program)[32].  A player who tests positive for drugs at “dangerous levels” must be referred to the program; the agreement sets a deadline by which the Program must create a definition of “dangerous levels[33].”  The list of banned substances is expanded and the testing program is expanded[34].  Additionally, the parties commit to a study of HGH testing[35], something that has been controversial in many professional sports.  Players will now be subject to four types of testing: testing during training camp, “team testing” during the regular season, random individual testing (which can occur at any point, including during the off-season), and testing based on reasonable belief the player is using a banned substance[36].  In order for the final type of testing to be utilized, probable cause must exist[37].  Importantly, a player who refuses to comply with drug testing is seen as having tested positive[38].  The strict liability provisions found in the old CBA remain in effect but the new agreement changes the defenses available to players who test positive[39].

The new CBA creates an Owner-Player Relations Committee which will meet at least twice each year to discuss a multitude of issues that affect both parties and the game of hockey as a whole[40].  Given the difficulty the two parties seemed to have during the most recent negotiations and lockout, this type of committee will hopefully help to foster a better working relationship between the League and the Union.

The remainder of the changes deal with issues like how a team may conduct fitness testing, how long training camps may last, the number of days off players get during the season, the amount of insurance coverage players and their families are eligible to receive, and other playing conditions[41].

The new CBA between the NHL and the NHLPA alters some significant portions of the relationship between the parties.  It is a document of compromise.  The players lost 7% of the HRR they received under the old agreement and the owners had to agree to the creation of a defined benefit pension plan.  However, each side received in return something that was important to it.  It will be interesting to see how some of the open-ended issues are resolved (i.e.: testing for HGH) and how the new provisions end up impacting the game.


[1] Katie Strang, NHL, union have tentative agreement, ESPN, January 8, 2013, available at http://www.espn.go.com/nhl/story/_/id/8817955/nhl-nhlpa-reach-tentative-agreement.

[2] NHLPA, Summary of Terms, January 10, 2013, available at http://www.cdn.agilitycms.com/nhlpacom/PDF/Summary-of-Terms-1-10-13.pdf.

[3] NHLPA Staff, NHL, NHLPA Sign Collective Bargaining Agreement, Press Release, January 12, 2013, available at http://www.nhlpa.com/news/nhl-nhlpa-sign-collective-bargaining-agreement.

[4] NHLPA, Summary of Terms, supra at note 2.

[5] Rick Baert, NHL players score new defined benefit plan, Pensions & Investments, January 21, 2013, available at http://www.pionline.com/article/20130121/PRINTSUB/301219982/nhl-players-score-new-defined-benefit-plan.

[6] Steve Zipay, NHL, players reach tentative deal; ratification would end lockout, Newsday, January 6, 2013, available at http://www.newsday.com/sports/hockey/nhl-players-reach-tentative-deal-ratification-would-end-lockout-1.4412276.

[7] NHLPA, Summary of Terms, supra at note 2.

[8] Id.

[9] Colleen E. Medill,  Introduction to Employee Benefits Law: Policy and Practice (2011).

[10] NHLPA, Summary of Terms, supra at note 2.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Id.

Jan 19

The Silence of the Arenas: The Tangential Costs of Labor Disputes

The National Hockey League (NHL or League) lockout is over, having lasted 113 days.[1]  Since it began, the lockout has led to the cancellation of 510 games[2] and the annual Winter Classic game, which should have been played at the turn of the new year[3].  Hockey fans will once again be able to watch their favorite teams compete, as a shortened season is scheduled to begin this weekend[4].  Although it is now a footnote in the history of labor-management relations in the NHL, the most recent lockout has provided an important reminder of the economic impact labor strife can cause.

Of course, the League and the National Hockey League Players Association (NHLPA or Union) both stood to lose a significant amount of money as a result of the lockout.  In an uninterrupted season, over 1,200 games are played[5].  Each game represents an estimated $975,000 in ticket sales alone[6].  The math works out to a total loss of $497.25 million over the course of the lockout.  In addition to lost ticket revenue, the League is losing around a quarter of its sponsorship revenue[7].  The Union has also suffered economic losses.  As of early January the players had lost six out of the thirteen paychecks they usually receive during a season[8].

But there are often costs associated with labor disputes that reach beyond the primary parties to the dispute.  This was certainly the case with the NHL lockout.  In addition to lost revenue from merchandise and concession sales at the arenas during games, the businesses surrounding the arenas have been impacted by the cancellation of games.  In Boston, one parking garage operator estimated a revenue loss of $6,000 for each game that was not played[9].  The nearby bars and restaurants were losing approximately $1 million per cancelled game[10].  In Pittsburgh, it is projected that city businesses lost a collective total of $2.2 million per cancelled game on top of the roughly $15.2 million lost as a result of losing traffic from four preseason games that were not played[11].

Local businesses were not the only entities affected by the lockout.  The municipalities in which the arenas are located also felt the sting of lost revenue.  In New York, Nassau County, home of the New York Islanders, was expected to lose around $1 million from lost tax revenue if the entire season was lost[12].  The expected loss is based on the $1.12 million the County received in hockey-related revenue in 2010; the sources of the revenue included sales tax, parking fees, and concession sales[13].  In Ohio, Columbus and Franklin Counties, which share hosting duties for the Columbus Blue Jackets, projected tax losses between $3 million and $4 million if the NHL season was ultimately cancelled[14].  The losses would be the result of unrealized income and sales tax receipts[15].  It is unclear how much tax revenue was lost by the three counties as a result of the lockout.

The decline in revenue for local restaurants, bars and other businesses that resulted from the NHL lockout is important not only for the survival of individual businesses, but also for the strength of local economies.  Once businesses start losing money and owners are unsure of when, if ever, the source of the lost revenue will return, they must make some choices.  One of these choices may ultimately be to reduce the size of its workforce.  If this occurs, there will be a further impact on the economy of the area as a result of the now-unemployed individuals having less money to spend.  The decrease in revenue to local restaurants and retailers will also have a trickle-down effect on other businesses in the supply chain.  With fewer customers, and ultimately fewer dishes served, restaurants may not order as much food as they would when they are routinely overbooked in the hours before or after a hockey game.  Stores in the area that saw increased sales as a result of the foot traffic of individuals going to and from the games may not be able to turn around merchandise as quickly and, therefore, will not need to order from their suppliers as often or in the same quantities.  Similarly, municipalities that lost revenue as the result of the lockout may have to make tough choices about how to fill the budgetary gaps left by the lost revenue.  The municipality may have to decide to lay off workers, to cut back on providing certain services, or to raise taxes in order to replace the revenue while maintaining a balanced budget.

The costs of a labor dispute can be high for the parties to the dispute, with each side ultimately losing income in one form or another.  But, as the recent NHL lockout has illustrated, there are also resulting costs for other entities that rely on the continued business and operation of the relationship between the two parties in order to help generate revenue.  These tangential costs are often lost in the focus on the progress, or lack thereof, being made by the employer and union that are attempting to reach a settlement, but can have wide-ranging impacts on local communities.


[1] Katie Strang, NHL, union have tentative agreement, ESPN, January 8, 2012, available at http://www.espn.go.com/nhl/story/_/id/8817955/nhl-nhlpa-reach-tentative-agreement.

[2] Id.

[3] Pat Leonard, NHL lockout that’s putting Winter Classic on ice is costing more than just one game, New York Daily News, December 29, 2012, available at http://www.nydailynews.com/sports/hockey/winter-classic-killing-lockout-costs-game-article-1.1229608.

[4] Ira Podell, NHL Lockout Over, Training Camps Set To Open Ahead of 2013 Season, Huffington Post, January 12, 2013, available at http://www.huffingtonpost.com/2013/01/13/nhl-lockout-over-training-camp_n_2465497.html.

[5] Joshua Berlinger, This Is How Much the Lockout Has Cost the NHL So Far, Business Insider, October 4, 2012, available at http://www.businessinsider.com/the-nhl-just-cancelled-the-first-two-weeks-of-the-regular-season-and-its-going-to-cost-them-at-least-xxxxx-2012-10.

[6] Id.

[7] Gregg Krupa, NHL lockout’s true cost is staggering, Detroit News, December 24, 2012, available at http://www.detroitnews.com/article/20121224/OPINION03/212240356.

[8] Steve Zipay, NHL, players return to bargaining, Newsday, January 2, 2013, available at http://www.newsday.com/sports/hockey/nhl-players-return-to-bargaining-1.4396453.

[9] Associated Press, NHL lockout costs Boston businesses millions, Boston Herald, December 27, 2012, available at http://www.bostonherald.com/business/business_markets/2012/12/nhl_lockout_costs_boston_businesses_millions.

[10] Id.

[11] Staff, NHL lockout’s cost to Pittsburgh business: $2.2M a game, Pittsburgh Business Times, October 26, 2012, available at http://www.bizjournals.com/pittsburgh/blog/morning-edition/2012/10/nhl-lockouts-cost-to-pittsburgh.html.

[12] Robert Brodsky and Randi F. Marshall, Officials: NHL lockout could cost LI economy $60 million in revenue, Newsday, September 16, 2012, available at http://www.newsday.com/sports/hockey/officials-nhl-lockout-could-cost-li-economy-60-million-in-revenue-1.4008466.

[13] Id.

[14] Lucas Sullivan, NHL lockout has tax cost, The Columbus Dispatch, December 23, 2012, available at http://www.dispatch.com/content/stories/local/2012/12/23/nhl-lockout-has-tax-cost.html.

[15] Id.

Jan 14

Federal Judge, Former EEOC Lawyer, Offers Clerkship… for Free

Judge William Martinez, a 2010 appointee to the United States District Court for the District of Colorado, recently solicited applications for year-long federal clerkships. Martinez is provided funding for two clerkships, but he desired a third. Without federal funding for a third applicant, Judge Martinez seeks an individual willing to work for no salary. The position was advertised as a “gratuitous service appointment.” To obtain employment, a candidate would have to waive any claim to compensation of any form.

The Fair Labor Standards Act (“FLSA”) establishes several standards to protect workers, including the imposition of a minimum wage for covered nonexempt employees. The federal minimum wage is currently $7.25 per hour.

In order for this minimum wage provision to apply, the employment at issue must be covered by the FLSA, of which there are two forms: “enterprise coverage” and “individual coverage.” Employment as a federal judicial clerk appears to constitute enterprise coverage, which includes employment with “the Government of the United States.”[1]

In addition, the worker must be nonexempt. FLSA Section 213(a) lists a significant number of exemptions, however even the “learned professional exemption” would not apply as the worker will not be compensated in excess of $455 per week.[2]

Further, in order for the FLSA to apply there must be an employment relationship with an “employer” and an “employee.” Essentially, employers often argue that the worker is an independent contractor rather than an “employee.” Courts have utilized the “economic realities test” for the purposes of the FLSA.[3]

The factors considered are as follows:

  • The extent to which the services in question are an integral part of the employer’s business
  • The permanency of the relationship
  • The amount of the alleged contractor’s investment in facilities or equipment
  • The nature and degree of control by the principal
  • The alleged contractor’s opportunities for profit and/or loss
  • The amount of initiative, judgment or foresight in open market competition with others required for success of the independent enterprise
  • The degree of independent business organization and operation

The factors substantially support there being an employment relationship here, rather than a clerk constituting an independent contractor.

Finally, the government can analogize to unpaid internships, which have been permitted under FLSA if satisfying certain requirements. These factors are considered in light of the FLSA’s definition of “employ,” defined as “suffering or permitting to work.”[4]

The criteria are as follows:

  • The training is similar to the training which would be given in an educational environment
  • The experience is for the benefit of the trainee
  • The trainee does not displace any regular employee and works under close supervision of existing staff
  • The employer providing the training derives no immediate advantage from the activities of the trainee and in some cases its operations may be impeded
  • The trainee is not necessarily entitled to a job at the conclusion of the training
  • Both the employer and the trainee understand that the trainee will not be paid any wages for their time spent as a trainee.

If any of one these criteria are not met, the worker would be considered an employee under the FLSA and therefore entitled to minimum wage.[5]

Under these circumstances, there is the potential that these factors will be met and therefore this employment relationship would be exempt from FLSA minimum wage requirements. The strictness with which a court evaluates these factors would play a crucial role.

As Professor Paul Campos notes, this employment relationship may violate “the letter and spirit of the FLSA.”

“Hiring one person to do a paid job, while at the same time hiring another person through exactly the same hiring process to do exactly the same job, but not paying him or her to do it, is precisely what the statute was designed to prohibit.”[6]

However, at this point it is unclear how this observation fits into the criteria regulating unpaid internships.

A major problem with this entire calculation may be the unwillingness of the law clerk to cooperate in any action against the employer. Considering the state of the legal job market, many will surely apply for a prestigious position like this one regardless of compensation. Law students frequently take internships that probably violate the FLSA. As Professor Campos wisely observes, this “is just another way of ensuring that only the children of the rich have access to [prestigious legal jobs].”[7]

 

 

h/t: http://www.salon.com/2012/11/21/a_judge_searches_for_free_labor/?source=newsletter



[1] See 29 U.S.C. § 203(x)

[3] See e.g. Donovan v. DialAmerica Mktg. Inc., 757 F.2d 1376 (3d Cir. 1985)

[4] See 29 U.S.C. § 203(g)

[5] See Walling v. Portland Terminal Co., 330 U.S. 148 (1947)

[6] http://www.salon.com/2012/11/21/a_judge_searches_for_free_labor/?source=newsletter

[7] http://www.salon.com/2012/11/21/a_judge_searches_for_free_labor/?source=newsletter

 

Jan 13

University Employees May Be Fired for Speech that Contradicts University Policies

On December 17, 2012 the Sixth Circuit held that the speech of a high-level Human Resources official, who wrote publically against the very policies that her government employer charged her with creating, promoting, and enforcing, is not considered protected speech under the First Amendment.[i]

The case involved Plaintiff-Appellant Crystal Dixon, the interim Associate Vice President for Human Resources for two merged campuses: the University of Toledo (the “University”) and the Medical College of Ohio (the “College”). Dixon’s controversial speech was prompted by an editorial in the Toledo Free Press entitled, “Gay rights and wrongs” that implicitly compared the civil-rights movement with the gay-rights movement.[ii] The article also discussed the disparity between the University employees who received domestic-partner healthcare benefits and College employees who did not.[iii]

In response, Dixon wrote an op-ed column entitled “Gay rights and wrongs: another perspective.” Dixon rejected the comparison between the gay-rights movement and the civil-rights movement, stating “I cannot wake up tomorrow and not be a Black woman….[yet] thousands of homosexuals make a life decision to leave the gay lifestyle.”[iv] With regard to the disparate treatment of University and College employees, Dixon wrote that while the University was working to address the issue, the claim that homosexual employees were being denied benefits “avoids the fact that ALL employees across the two campuses regardless of their sexual orientation, have different benefit plans.”[v] As a result of her editorial, Dixon was terminated because her speech was considered in direct contradiction to University policies and procedures and placed her ability to lead at risk.[vi]

After the Northern District of Ohio granted summary judgment in favor of Defendants Lloyd Jacobs, University President, and William Logie, Vice President for Human Resources and Campus Safety, Dixon appealed to the United States Court of Appeals for the Sixth Circuit.[vii]

The Sixth Circuit’s decision focused on Dixon’s First Amendment retaliation claim. Using the burden-shifting framework, the Court analyzed whether the speech was protected. In order to find that Dixon’s speech was protected Dixon needed to show that: (1) her speech was a matter of public concern; (2) her speech was not made pursuant to her official duties as Associate Vice President of Human Resources; and (3) her free speech interests outweighed the efficiency interests of the government as employer pursuant to the Pickering balancing test.[viii] However, if the presumption set forth in Rose v. Stephens applies then the Pickering balance test is presumed to favor the government as a matter of law.[ix] The Rose presumption applies when a discharged employee (1) holds a confidential or policymaking position, and (2) has spoken on a matter related to political or policy views.

The court ruled that the Rose presumption applied. Examining the inherent duties of the position, rather than Dixon’s actual tasks, the court determined that the first prong of Rose requiring Dixon to hold a confidential or policymaking position was satisfied. The court found that Dixon had “appointing authority” and was responsible for “recommending, implementing, and overseeing human resource policies and procedures that support the university’s strategic direction,” “representing the University in relevant employee relations actions” before federal and state agencies, and “answering grievances, issuing disciplinary and corrective action, serving on various task forces, supervising approximately forty employees, overseeing benefits administration, setting compensation, and making presentations at town-hall meetings.”[x] The court also determined that the second prong of speaking on a political or policy issue was satisfied because Dixon’s public statement “directly contradict[ed] several…substantive policies instituted by the University” regarding promoting diversity and providing a safe environment for the LGBT community.[xi] Therefore, the court affirmed the district court’s grant of summary judgment.

The Sixth Circuit’s ruling has considerable implications for University officials. The first element of Rose requires the discharged employee to hold a confidential or policymaking position. However, universities are generally large institutions with thousands of students. This requires many university officials to have discretionary authority. Each department of a university could have one or more people in charge of implementing policies and overseeing employees. Therefore, in a university setting, a significant number of employees may find that they fall under the first prong of Rose as a result of their job responsibilities, despite the fact that this prong is intended to be limited to specific categories of individuals.

Additionally, the second prong of Rose requires the discharged employee to have spoken on a matter related to political or policy views. Yet,higher education institutions usually have written policies on numerous issues that in some way relate directly or indirectly to the school. Depending on the size of the university and the breadth of its policies, policymaking employees could have their right to free speech unreasonably restricted, especially since the Sixth Circuit’s decision implies that the second prong of Rose will apply whenever a policymaking employee speaks on an issue that contradicts a university policy. This is certainly a concern for university employees who are scholars, like professors, since a restriction on their ability to write freely could also damage the idea of universities as research institutions. Therefore, the Sixth Circuit’s overly broad ruling may encompass situations it was not intended to address.



[i] Dixon v. Univ. of Toledo, No. 12-3218, 2012 WL 6554693, *1 (6th Cir. Dec. 17, 2012).

[ii] Id.

[iii] Id.

[iv] Id. at *2.

[v] Id.

[vi] Id. at *3.

[vii] Id.

[viii] Id. at *4.

[ix] Id. at *5.

[x] Id. at *6.

[xi] Id. at *7.

Jan 03

Irrelevant! Irrelevant on All Counts! – But You Still Have to Respond: The NLRB’s Order in IronTiger Logistics, Inc.

On October 23, 2012, the National Labor Relations Board (NLRB or the Board) issued an order in IronTiger Logistics, Inc. and International Association of Machinists and Aerospace Workers, AFL-CIO[1].  The case was decided by a three-member panel of the Board; the panel consisted of Chairman Pierce and Members Hayes and Block[2].  The case centered on whether IronTiger had violated Section 8(a)(1) and Section 8(a)(5) of the National Labor Relations Act (NLRA or the Act).  The NLRB affirmed the ruling of the Administrative Law Judge (ALJ), which held a violation did occur[3].

IronTiger Logistics, Inc. (IronTiger) is based out of Kansas City, Missouri, and “employs approximately 100 employees at four locations[4].”  The main business of IronTiger is moving freight[5].  The company has a close relationship with another company, TruckMovers.com, Inc. (TruckMovers), which assigns loads to both IronTiger drivers and TruckMovers drivers[6].  IronTiger’s drivers are unionized; TruckMovers’ drivers are not unionized[7].  The union and IronTiger signed a Letter of Agreement which clarified that any loads that were given to TruckMovers drivers would not be considered IronTiger loads, meaning the loads were not work that was being subcontracted by IronTiger to avoid using union drivers[8].

The union began to suspect that the dispatching process was not working as it was supposed to.  It believed IronTiger was not placing all of the available loads on its dispatch board and that, as a result, TruckMovers drivers were getting assignments that should have been going to union drivers[9].  The union filed a grievance on March 29, 2011, and a few weeks later requested information pertaining to the loads that had been assigned to all drivers by TruckMovers, which IronTiger provided[10].  The union then requested additional detailed information regarding the loads on the list IronTiger had provided; in part, the union requested the name of the driver that had been assigned to each load, the destination each load was delivered to, and “relevant communication” from the entities receiving each load[11].  After IronTiger did not respond to the request for additional information, the union filed an unfair labor practice claim with the NLRB[12].  Eventually, IronTiger responded to the union’s request by stating that the information about the loads assigned to TruckMovers drivers had no bearing on the union’s claim, as those drivers were not members of the union[13].  IronTiger further stated that it did not have to provide the information requested pertaining to its drivers, members of the union, because the shipments in question had already been delivered and, therefore, the information being requested was not relevant[14].

Section 8(a)(5) of the Act places a duty on the employer to respond to requests from the union for information that is relevant to the union complying with its responsibilities to its members[15].  The employer must provide the response in a “timely manner[16].”  The ALJ held that the information requested by the union in this case was “presumptively relevant” to the union’s objective[17].  As such, IronTiger was required to respond to the union’s request in a timely manner, even if the response simply explained why IronTiger believed it did not have to provide the information to the union[18].  The ALJ further held that the information the union had requested was, indeed, irrelevant to the union’s claim and, therefore, IronTiger was not required to provide the information[19].

The Board upheld the ALJ’s determination, stating that the issue in this case was whether IronTiger had to respond to the request, not whether IronTiger had to provide the requested information[20].  The Board cited a “well-established corollary” to Section 8(a)(5) which requires an employer to respond to a request for information from a recognized union, regardless of whether the employer believes it must actually provide the information that has been requested[21].  The information being requested must only be presumptively relevant to trigger the duty of the employer to respond[22].  In the Board’s view, it is appropriate to place the burden on the employer to respond because the employer “is in a clearly superior position to ensure that a dispute is avoided[23].”

Member Hayes dissented to the order, stating his belief that the corollary to Section 8(a)(5) cited by the majority does not exist, but rather that information is either relevant or irrelevant[24].  In the case that the information is irrelevant, the employer should not be required to respond, according to Member Hayes, because it would open the door for unions to request information for strategic reasons that have no bearing on collective bargaining[25].


[1] Case 16-CA-027543.

[2] Id.

[3] Id at 1.

[4] Id at 4.

[5] Id.

[6] Id at 1.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id at 2.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id at 3.

[24] Id.

[25] Id.