Labor Management Issues Still Simmering

Labor and Employment Law Conference

Today was day one of the 3rd annual ABA Labor and Employment Law Annual CLE Conference.  Like most conference events, this one comes complete with keynotes speakers and various breakout sessions.   Instead of being a conference for HR practitioners, this is a mainly a conference for lawyers.  This means a lot of the sessions are spent talking in case names and citations like 14 Penn Plaza LLC v. Pyatt, which was one of a number of labor and employment law case decisions handed down by the U.S> Supreme Court this year and reviewed by Kenneth Dau-Schmidt of Indiana University in the opening keynote.

This type of information is useful and informative for lawyers, but pretty dry to sit through all day long, and even worse to try and blog about.  So, in lieu of providing 6 dry and boring blog paragraphs, I decided to take notes on the things from each session that I found really surprising or interesting, or both.  So here are my interesting tidbits from each session that I attended today.

Top 5 issues in Employment Law

I found it a little odd that in a session called “Top 5 issues”, the panel talked about 4 issues which are of paramount importance at the Equal Employment Opportunity Commission.  These were:

• Genetic Information Non-discrimination Act (GINA)
  • Proposed regulations being finalized on Title II of the Act
  • Are people dealing with these cases yet?  Not so much.
  • GINA is a pro-active Civil Rights law, not a reactive one like most others.
  • Represents a huge challenge to EEOC. Requires training and education for agency and employers.
  • EEOC doesn’t expect to see a huge explosion of charges or litigation.

• Employment Non-Discrimination Act
  • “Gay Rights” bill – Congress held hearings on this proposed legislation. (I am very supportive of ENDA on a personal basis!)
  • Would add sexual orientation/sexual identity to Title VII (very important to members of the LGBT community and supported by the Obama administration)

• Family Responsibility Guidance
• ADAAA

Other important things going at EEOC

• Full complement of board members at the EEOC (finally?!?)
• Trying to change the way they do things at the EEOC
  • Have been struggling with financial resources
  • Finally able to hire 250 new practitioners
  • Able to do the real work they have been wanting to do and train people for their new approach

The new approach is that the EEOC is no longer a charge processing factory.  They now consider the EEOC to be a law enforcement agency!

That statement alone made this session worth attending.  If you have become blase about the EEOC, it is time to get over it.  They are resurgent in enforcement.  Coupled with their new systemic approach, this means HR professionals need to be aware of what is happening in your organization and vigilant.

A Conversation with the NLRB

This was a panel with the entire National Labor Relations Board in attendance.  That would be the complete 2 member board consisting of Wilma Liebman and Peter Schaumber.    Each gave opening comments before accepting questions from a panel and the audience.

Peter Schaumber

Schaumber has been thinking about the decline in organized labor membership.  According to Schanumber, this decline not due to employer resistance or employers committing excessive levels of Unfair Labor Practices.  He says it is more attributable to the loss of manufacturing jobs, the current high profile issues of some organized industries, a disinclination of many current workers to embrace the union model, and the development of a global economy.

Schaumber also observed that much of the current conversation of labor relations reform in the US revolves around the need to make it easier to organize.  Schaumber calls out organized labor for failing to give consideration to the possible need to revamp their business model to something more fitting with the realities of the present day economy. He then suggested some other approachs for discussion, including:

• Internal worker councils, such as are common in Europe
• Can unions  be more aligned with business?
• What would a labor law with this emphasis look like?
• Could following a more salutary approach change this paradigm?
• Obama board – will they change board law?
• Will they “Pass EFCA via the Board”?

He closed by saying it would be a grave mistake to undertake a wholesale reversal of  Bush board precedential board policy.  This would not promote collective bargaining.  The NLRB needs to be carefully balanced to represent the interests of parties, management and labor.  Stability in Board law is critically important in this economy.

Wilma Liebman

This is a time of great change, a time of great opportunity, a time of great uncertainty.   Supreme Court granted certiorari in a case to determine the status of a 2 member board.  She doesn’t think all 500 cases are at risk. Right now only 77 have been taken to Circuit Court for review.

Board would obviously decide what they would have to do if they were to lose in case.  Liebman believes the decision to proceed as a 2 member board was a good one.  Other issues facing the NLRB include:

• Uncertainty over the appointments of President Obama’s board nominees
• Looming uncertainty of labor law reform, when it will occur and what it might look like

Constant “flip flopping” may have been caused by extended 60 year period without reform by Congress.

Labor relations is a field of deep divisions.  Bush board was always divided.  3-2 splits and dissents were common.

Controversy has exacerbated the loss of confidence in the NLRB.  Resulted in a decline in trust of the Board.  Unions avoid the Board at all costs.  Deep divisions over EFCA and other types of labor law reform.  Liebman – this debate is welcomed, however rancorous.

There are constraints on the Board, whoever sits on the Board.  Liebman doesn’t think it likely that there will be fundamental changes from the Board itself.  This is much more likely to occur on Capitol Hill.

Union Response to Schaumber

Nancy Schiffer of AFL-CIO  termed it to be “stunning and breathtaking for a member of the board who has diminished coverage of the Act over the years of his service to present a critique of the Union movement right now without an equal critique on growing scorched earth policy in labor industry.  EFCA is a model for a less adversarial, more cooperative model of labor relations.”

Schaumber responded to this criticism by saying the NLRB has only one constituency:  employees.  Management and unions are customers.  Unions should encourage Board independence, not to serve the interests of any one stakeholder.

I know who you are and I read what you write:  Blogging, tweeting, GPS and e-mail

This was the title of the last session of the day.  The panel was mixed, with both labor and management side attorneys presenting.  Ironically, blogging was never mentioned.  There were many fireworks over the uses that management might find for these technologies, and whether or not employees needed to represented to avoid major issues.

It is clear that this is an area of developing practice for lawyers on both sides.  The lawyers who understand the technology are doing a lot of business giving advice to clients on both sides about social media concerns.  However, only about half the lawyers in the room had even a basic familiarity with sites like Facebook or Twitter.  Management attorney Eric Barnum gave some cautionary advice to the audience:  ”If you don’t understand this technology, you need to think really hard about advising clients in this area!”  Words for lawyers (and HR practitioners) to live by.

Labor-Management Rift Runs through it all

In all the sessions, there was an undercurrent of tension between the labor and management practitioners in the room.  It was noticeable by low key sniping and snide comments that took place over and over again.

It was an interesting first day.

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Tagged as: 1964 Civil Rights Act, ABA Conference, ADAAA, Civil and political rights, EFCA, Employment, employment law, employment non-discrimination act, Equal Employment Opportunity Commission, Labor and Employment Law, Labor Relations, Labour law, Law, LGBT, National Labor Relations Board, NLRB, Peter Schaumber, Wilma Liebman