Ariana R. Levinson's blog

Faculty Research at Central States Law Schools


I had the pleasure of presenting my manuscript, Industrial Justice:  Privacy Protection for the Employed yesterday at the Central States Law Schools Association 2008 Conference at Southern Illinois University (SIU).  My co-panelists, on the Labor and Employment Panel, Jeannette Cox, of University of Dayton, and Cheryl Anderson, of SIU, each presented interesting research on the recent amendments to the Americans with Disabilities Act.

Another presentation that may be of interest to some labor practitioners was that by Michael Rich, of Capital University.  The thesis of his presentation, Inform or Go to Jail:  Thirteenth Amendment Limitations on the Relationship Between Police and Confidential Informants, was that the use of certain types of informants violates the Thirteenth Amendment.

Doing Our Best-Without a Crystal Ball

Last week we read Chapter Ten in Labor Law Stories, Calvin William Sharpe, Marion G. Crain & Reuel E. Schiller's The Story of Emporium Capwell:  Civil Rights, Collective Action, and the Constraints of Union Power.  No practice tips jump out at me.  Instead, I simply share some of my reflections on the case and the story.

Emporium Capwell involved a group of black employees, represented by a union, who were discriminated against by their employer.  The union grieved the claims and planned to arbitrate each claim individually.  Some of the black employees, frustrated with the process of bringing claims individually rather than on a group basis, refused to participate in the arbitration hearings, boycotted the employer, and sought to speak directly with the employer about settling the dispute.  The employer fired the employees.  The attorney representing the employees filed a charge under the National Labor Relations Act (the Act).  And the case, thus, proceeded as a labor case.  (An employment discrimination case was also brought under Title VII thereafter.) 

In an opinion authored by Justice Marshall, the Supreme Court upheld the terminations.  Emporium Capwell stands for the doctrine of exclusivity.  The bargaining representative is the exclusive representative of the employees.  Minority groups have no right to deal with the employer.  Minority groups that engage in concerted activity in an attempt to pressure the employer into dealing directly with the minority group, rather than the union, lose the protection of the Act.

Over the past fifteen years, I've read Emporium Capwell at different times and for different purposes.  I seem to recall that as a student and young attorney, I found it frustrating that the employees were not permitted to engage in direct action and protest.  As I read it again, to prepare for class as the professor rather than as a student, I found the case no less challenging than when reading it for the first time, though for different reasons.  It raises a series of seemingly intractable related legal issues.  Is there some flaw in Justice Marshall's reasoning?  Isn't there some other means to insure that dissent groups do not deal directly with employers short of permitting, in the employer's discretion, the termination of the group's members?  Is arbitration a suitable forum for class-action or pattern and practice claims?  Can individual claims, whether in arbitration or court, have as significant an effect on remedying discrimination as class-actions or pattern and practice claims?  Can unions waive their members' rights to bring statutory employment discrimination claims?  If not, are employers free to circumvent the exclusive representative and deal directly with employees in order to obtain such waivers?  The list, raised by many before me, goes on . . .

My initial reaction to the tactical decision of the dissident group's attorney to file a charge with the National Labor Relations Board (NLRB), however, remains the same.  Why didn't the attorney file a charge with the Equal Employment Opportunity Commission instead? 

After reading the story, the tactical decision makes more sense.  The NLRB decisions at the time gave the lawyer plenty of reasons to believe that an exception to exclusivity might be made for groups that protested racial discrimination.  Indeed, the D.C. Circuit ruled in the dissident employees' favor.  And even the Supreme Court had recently indicated that union grievance and arbitration might not be the most suitable forum for resolving discrimination issues.  In hindsight, it would have only made sense to pursue the claim under Title VII rather than under the NLRA.  But with foresight, the attorney could not have known this.  Indeed, on more than one occasion, I have been told by skilled appellate attorneys that they made their best estimate about the course a court would follow, yet ultimately their best estimate was off base.  Of course-a best estimate cannot be expected to be a crystal ball.

Reliability of Authorization Cards and Other Moot Issues


Chapter five of Labor Law Stories, Laura J. Cooper and Dennis R. Nolan's The Story of NLRB v. Gissel Packing:  The Practical Limits of Paternalism is an interesting story to read as we head into the final weeks before the United States presidential election.  Gissel Packing established the rule that, when "pervasive unfair labor practices" make a fair representation election impossible, authorization cards can be used to establish that a majority of bargaining unit members desire union representation.  The opinion catalogued the reasons that authorization cards are not "inherently unreliable."  Thus, many of the arguments raised today to challenge Section 2 of the Employee Free Choice Act were soundly rejected in the well-reasoned Gissel Packing opinion well over thirty years ago. 

The chapter, however, raises another important but less well publicized issue for practicing attorneys to consider--an ethical issue.  "Why did a company lawyer argue his case before the high court without informing it that his client had gone out of business and the case against it was moot?"  The authors describe the seriousness with which the Supreme Court takes the Article III (of the United States Constitution) prohibition on hearing moot cases.  The Court requires attorneys "to inform the Court of facts that might cause mootness even if the lawyers believe that the case is not in fact moot."  Gissel Packing went out of business before the Supreme Court oral arguments, yet its attorney did not inform the Court.  The attorney "wanted the experience of arguing before the high court" and "thought his presence there would help defend . . . precedent favorable to his other food-industry clients."  Should self-interest or that of our client's on other cases ever justify blatant disregard of court rules?



Labor Law, Immigration, and Remedies - Practice Tip Three: Marshal the Facts


The final point that chapter ten illustrates well for practitioners is the importance of facts.  Two of my favorite sayings that I often share with my students are "the facts make or break the case" and "bad facts make bad law."  (I'm sure there are other sayings related to this point and welcome you sharing them with me.) 

When the discriminatee, whose real name may have been Samuel Perez, applied for a job under the name of Jose Castro, "he answered ‘yes' to the question ‘Are you prevented from lawfully becoming employed in this country because of visa or immigration status?'"  Thereafter, he "completed the I-9 Form establishing that his immigration status permitted him lawfully to work."  The Regional Attorney speculated that an office employee "explained to Castro that he could not be hired until he produced a birth certificate, picture ID, and Social Security card and that Castro went away and came back with the requested documents."  Yet the record in the case contained no such testimony.  Indeed, other than the question and I-9 form and documentation, "there was no evidence in the record as to whether" Hoffman knew Castro was undocumented or "had knowingly hired other undocumented workers."

In his post-hearing brief regarding compliance, McCortney argued that the evidence regarding Castro's immigration status was conflicted and that it was irrelevant whether Hoffman maintained a policy against hiring undocumented workers.  Yet by the time he argued in front of the Supreme Court, McCortney had recast Hoffman as "the innocent" employer who had no knowledge of Castro's undocumented status.  Perhaps a more factually developed record would have precluded that characterization of Hoffman.


Labor Law, Immigration, and Remedies - Practice Tip Two: The Moral Hazards of Threats


Chapter ten also raises the type of moral issue upon which the rules of professional responsibility are likely to provide little guidance.  McCortney "threatened to report Castro to the INS unless the Regional Attorney stipulated that Castro was an undocumented alien who had not been legally present in the United States since before he was hired at Hoffman Plastic."  The Regional Attorney refused to so stipulate, and it is unclear from the chapter whether McCortney reported Castro to the INS.  It is clear that, at the time of the compliance hearing, Castro was living in Texas, but, by the time of the Supreme Court decision, well over five years later, he was living in Mexico. 

Rule 4.4 of the Model Rules of Professional Conduct requires "Respect for Rights of Third Persons."  It states in pertinent part,  "(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person."

Is a threat like McCortney's legally ethical?  Moral?  Does it matter whether the threat is made without the intention of carrying it out? Or is it equally or more reprehensible to actually make do on such a threat?


Labor Law, Immigration, and Remedies – Practice Tip One: Listen to the Witness


Chapter ten of Labor Law Stories, Catherine L. Fisk and Michael J. Wishnie's The Story of Hoffman Plastic Compounds, Inc. v. NLRB:  Labor Rights Without Remedies for Undocumented Immigrants, in addition to addressing interesting and important doctrinal issues, raises three interesting practical points for attorneys.  I will discuss them in a series of brief posts.

The chapter illustrates the importance of listening to the witness you are examining and of deviating from your intended line of questioning, if necessary, to address the witness's responses.  While Hoffman is commonly known as the case establishing that undocumented workers who have been discriminated against in violation of the National Labor Relations Act (NLRA) are not entitled to backpay, it did not begin as a case about immigration status.  Originally, in front of the administrative law judge and the National Labor Relations Board, it was a traditional discrimination case. 

During the compliance phase (during which a hearing would be held "to determine the amount of backpay owed to" the discriminatee), Hoffman's attorney, Ryan McCortney, attempted to determine whether jail time would toll the backpay period and whether the discriminatee, Jose Castro, had the skills to mitigate any lost wages.  As part of this research, McCortney verified the birth certificate Castro had used to apply for work and rejected the possibility that Castro was undocumented.  At the compliance hearing, however, McCortney began to suspect during direct examination that he had the wrong Jose Castro.  He knew that the Castro described in the relevant birth certificate had tattoos on his arm.  McCortney asked Castro whether he had tattoos and discovered he did not.  McCortney concluded that the wrong Jose Castro was present at the hearing.  But it does not appear that McCortney then followed up with questions about why Castro had used someone else's birth certificate.  Instead, it finally occurred to McCortney "that Castro had borrowed the birth certificate because he was not a legal immigrant" during the Regional Attorney's cross-examination when Castro said "he had only two years of formal education while a young child in Mexico."     

In the ordinary case, such surprises during direct examination are unlikely.  Nevertheless, the case well illustrates the proposition that we must always listen to our witness during examination.  For instance, if it is direct examination and the witness forgets something of significance, we must use a closed question to elicit the information.  Or, if it is cross examination and the witness's response is unexpected, we must decide whether to ignore it, strike it as nonresponsive, seek recantation, or impeach.

Arguing a Labor Case - Research Your Judge


In chapter eight of Labor Law Stories, "The Story of Electromation:  Are Employee Participation Programs a Competitive Necessity or a Wolf in Sheep's Clothing?" Robert B. Moberly recounts a story of an appellate oral argument that will motivate all of us not to let the task of researching the judge before whom we are appearing slide, even when working on a tight deadline. 

Electromation is a case dealing with whether and under what conditions an employer may establish employee participation committees without violating the National Labor Relations Act, also known as the Wagner Act after its sponsor in the Senate.  Electromation v. NLRB, 35 F.3d 1148 (7th Cir. 1994). 

Moberly describes the oral argument in front of the Seventh Circuit Court of Appeals on Electromation's petition to set aside the Board's order in the case.  The tale is that during the argument Electromation's attorney argued that the Board's decision "was not the way Senator Wagner wanted the Act to be interpreted."  Unfortunately for the attorney, Judge Hubert L. Will, who would author the court's decision in the case, had the inside scoop.  He responded, "‘young man, I was on Senator Wagner's staff, and that is exactly the way he intended the Act to be interpreted."


"Industrial Justice: Privacy Protection for the Employed"


I have recently posted my manuscript Industrial Justice: Privacy Protection for the Employed (forthcoming Cornell Journal of Law and Public Policy) on SSRN. 

I hope that a wide constituency of readers will find the article useful.  If you are involved in drafting legislation providing protections for employees from electronic monitoring, or protections of off-duty activity, or you are a clerk or judge interpreting such statutes, I hope you will check out the manuscript.  I also hope that those devising privacy policies for employers and those dealing with privacy issues in the union workplace will find the manuscript useful.  I welcome comments from scholars and practitioners interested in the topic.

Here is the abstract:

One hundred eighteen years ago Samuel Warren & Louis D. Brandeis proclaimed that technological change necessitated new protections for the right to privacy.  Today, new protections for the right to privacy are called for once again because, in the American workplace, technological change continues unabated and little privacy is afforded employees from employer monitoring using the technology.  Moreover, employers are disciplining and terminating employees based on information uncovered by monitoring.  Recently, many employees have been terminated for off-duty blogging.  Employees are often disciplined for using e-mail for personal reasons while at work.  And global positioning systems ("GPS") have been relied on to discipline drivers and other employees. 

This is the first academic article to provide a detailed review of labor arbitration decisions governing the right to privacy from employer monitoring in over thirty years.  The article uses the decisions, on employee privacy and technologies such as GPS, e-mail, and the Internet, as a springboard to propose privacy protections in the non-Union private sector workplace.  It, thus, fills a gap in the academic literature.  The framework suggested provides the greatest protection for off-duty behavior, intermediate protection for on-duty expression of thought, such as through computer usage, and baseline protection for on-duty actions.  It could be implemented through legislation of minimum rights or mandates for employers to adopt safe-harbor policies.

Strikebreakers & the Limits of Stare Decisis

Last week, the Kentucky Supreme Court held a question and answer sessions for the students here at the University of Louisville, Brandeis School of Law.  One student asked a question about whether the court, which consists of very experienced judges but relatively new justices, will follow stare decisis.  A discussion ensued about the value of stare decisis.  It maintains certainty and predictability for all those governed by the laws.  Then, one justice pointed out that there are exceptions to stare decisis, including when changed circumstances call for a revision in the law.


In labor law, the so called "Mackay doctrine" raises the issue of the limits of stare decisis.  The doctrine was first stated as dicta by the U.S. Supreme Court in 1938.  The Mackay doctrine permits employers to permanently replace economic strikers, those who strike to put pressure on their employer to accept the economic terms proposed by their union.  (The other type of striker is termed an unfair labor practice striker, a person who strikes because of employer conduct unlawful under the National Labor Relations Act.)  NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938). 


In chapter one of Labor Law Stories, The Story of NLRB v. Mackay Radio & Telegraph Co.:  The High Cost of Solidarity, Julius Getman and Thomas C. Kohler point out that circumstances have changed dramatically since 1938.  The right to strike is subject to more severe restrictions and "the ability of employers in general to cope with a strike without hiring permanent replacements has significantly improved."  For many, strike breaking has become an acceptable business tactic.  Moreover, "[b]y the mid 1960's, the Mackay doctrine had become obviously inconsistent with the interpretation of Section 8(a)(3) [which prohibits employers from discriminating in order to discourage union membership] developed by the Board and the courts."  Thus, several considerations indicate that the Board and the courts should deviate from stare decisis and overrule the longstanding doctrine.  The doctrine relies on outdated dicta incompatible with changed circumstances and other current law; and one very reason for having an expert agency, such as the Board, is to adapt the law to such changes.


If there is a second lesson to be drawn from this chapter, it is, perhaps, the power of checks and balances.  The hope remains that, if the Board and the courts will not deviate from stare decisis, a new administration will reintroduce legislation, which has failed to pass to date, to overturn the Mackay doctrine. 

Telling Stories About Labor - Check Your Facts

My labor law students are, individually or in teams of two, reading and presenting on chapters from Labor Law Stories.  The book, well-known to labor law professors, would be enjoyable leisure time reading for any labor or employment attorney. 


I will post a tid-bit, which may be of particular interest to practitioners, from each chapter.  We started with the chapter Kentucky River at the Intersection of Professional and Supervisory Status:  Fertile Delta or Bermuda Triangle?, written by Marley S. Weiss.  For any of you who are familiar with wage and hour laws, you know the importance of categorizing an employee as exempt or non-exempt.  A similar issue when dealing with the National Labor Relations Act is whether an employee is a professional or a supervisor.  Professionals are entitled to the protection of the Act while supervisors are not.  NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001) deals with this issue.


Weiss asserts that the "majority opinion was almost entirely divorced from the facts of the case," and most readers would agree.  Weiss also believes that the majority quoted "the lower court's opinion as though it accurately described the facts."  The majority explained that the lower court had reasoned that "the Board had erred by classifying ‘the practice of a nurse supervising a nurse's aid in administering patient care' as ‘routine.'"  Yet the facility involved had no nurse's aids working in it at all.  While we might debate whether the majority intended by this statement to make any representation about the facts of the case, the statement is certainly susceptible to Weiss's interpretation. 


It reminds me of how on many occasions when the cases I was involved in as a union side attorney made it into the news, the name of the union or other basic information was reported somewhat inaccurately.  But, after all, journalists are only human.  We all make simple mistakes.


Indeed, one thing that I have frequently found myself telling my students is that judges, even Supreme Court justices, are human too.  Opinions can contain errors.  They may be factual errors about the case being decided or errors about the facts, holding, or reasoning of a prior decision.  For this reason, I tell my students not to rely unthinkingly on a court's interpretation of a prior decision.  Instead, verify the interpretation by reading the prior opinion on one's own.