Greatra Mayana

Career & Employment Opportunities

“Union Representation in Employment Arbitration”


you All right welcome everybody to a another
installment of the clip yet yield dispute resolution workshop series we
are delighted today to have a law professor from the University of
Richmond of law school what makes her unique in this series is
that she is not an ADR specialist she’s a labor and employment law
specialist but she teaches among other things
ADR in the workplace and I think you’re going to enjoy her presentation
professor Ann Hodges is also teaches in addition to the areas of labor and
employment law feminist legal theory and nonprofit organizations she has served
on the Editorial Board of the employee rights and employee policy journals in
1996 she’s been a member of the Labor Law Group an invitation-only nonprofit
organization for scholars and practitioners dedicated to producing
high-quality materials to prepare our students to practice labor and
employment law since 2007 and I served on this editorial committee since 2011
in addition this has jumped out at me she is co-founder of the legal
information network for cancer link a nonprofit organization that assists
cancer patients and their families with the business side of cancer professor
Hodges received the University of Richmond’s distinguished dedicated
educator award in 1995 and again in 2009 and received the black law students
associations really Elmore award in 2006 so with that it’s my privilege and honor
to present you professor Ann Hodges from the University of Richmond Law School
Thank You Anne well thank you very much and I’m
delighted to be here with you today I’m gonna talk about a proposal that I have
relating to arbitration and essentially my proposal focuses on employment
arbitration and argues that unions should represent workers in employment
arbitration and I want to I know some of you are our labor and employment folks
and some of you are not so I do want to first of all make this distinction
between labor arbitration and employment arbitration so I come at this my area of
practice was labor law before I came into teaching and I spent a number of
years doing labor arbitration I represented unions I did more than 100
labor arbitrations in which I represented unions and disputes under
collective bargaining agreements and in the area of labor arbitration it’s been
around since the early part of the 20th century and really took off in the 1940s
and has been a feature of collective bargaining agreements ever since that
time almost all collective bargaining agreements provide for arbitration to
resolve disputes under the agreement and those arbitrations are done by unions
and employers so you have the Union on one side the employer on the other side
they come in they arbitrate the case about you know how to interpret the
collective bargaining agreement and my experience with labor arbitration was
overwhelmingly positive I think it’s a great way to resolve disputes
it’s more fun in my view than litigation because you could be more creative you
aren’t so constrained by very technical kinds of rules of evidence but you can
get to the heart of the dispute and and by and large over all the arbitrations I
did the arbitrator’s were excellent I can to cases that are sort of burned in
my brain that the only ones I can remember one I won when I thought I
should have lost and the other one I lost when I thought I should have won
and other than that I always felt like I got the right decision
or it was close enough that I was comfortable with the decision so in that
context I think it was an excellent process it works really well but now it
has moved out of the labor arena into what we call employment arbitration into
the non-union workplace and it has been much more controversial there some of
you may have read this is very timely this series in the New York Times there
was a three-part series about arbitration and of course consumer
arbitration is getting a lot of publicity as well but but employment
arbitration is very much like consumer arbitration in one aspect of it and that
is I kind of I like to divide employment arbitration really into two parts one
employment arbitration is between high level executives and employers and they
negotiate the agreement on a relatively equal basis because it’s an executive
it’s someone who has to empower some money they negotiate an agreement to
arbitrate any disputes and I think that works relatively well the other type of
employment arbitration and this is the one
that I’m talking about is where an employee goes to work for an employer
and the employer essentially says either at the time of hiring or sometimes later
if you want to work here or if you want to continue to work here you will agree
to arbitrate any disputes regarding your employment including any kind of legal
claims that you have they all have to go into arbitration and that’s where my
focus is employment arbitration it’s been controversial because of the
imbalance of power between these employees for whom essentially this is a
contract of adhesion and the employer the employer writes all the rules for
these kinds of arbitrations sometimes the rules are balanced
sometimes they’re not sometimes they’re overwhelmingly
favorable to the employer in some cases a court will set aside an arbitration
agreement that is so overwhelmingly favorable to the employer that it is
completely unfair and there are a variety of bases on which a court might
set that aside but by and large the courts will enforce these agreements
even though their contracts of adhesion even though there’s an imbalance of
power between the employees and the employer and employers are increasingly
adopting these unilateral arbitration agreements and one big spur for the
increasing adoption has been the area of class actions and what employers do in
these agreements is they say you must arbitrate any disputes you have with
regarding your employment and you can only arbitrate individually you cannot
arbitrate as a class what this does for the employer of course is get the
employer out from under class actions and employers don’t like class actions
for all sorts of reasons they’re expensive they’re costly
there’s lots of controversy over whether at least some of them are viable kinds
of claims there’s an argument that employers are kind of being held up by
these arbitration claims because they’re so expensive that they settle them
regardless there’s a lot of controversy over class actions but with an
arbitration agreement an employer can preclude employees from bringing a class
action what this does is make it much more difficult for the employees to get
any sort of representation in arbitration particularly for lower wage
employees and particularly for employees who have small claims like wage claims
for example an employee who maybe is denied overtime pay that he or she is
entitled to even if that goes on for several years that claim might be worth
let’s say ten thousand dollars no lawyer is going to take that individual claim
because the potential recovery is too small the employee can’t pay the lawyer
except on a contingency basis the contingency on that is too small you
know maybe they’re going to get fees but lawyers very much worry about
arbitration because there’s no guarantee that the arbitrator is going to apply
the same standards that a court would and so plaintiffs employment lawyers shy
away from these cases where arbitration is required and particularly the you
know the plaintiffs employment bar they’re running a business they have to
make money so they’re going to take the very strong cases they’re going to take
the class actions they’re going to take the cases of employees that have higher
pay because they can either pay upfront or the recovery is greater so there are
a lot of people a lot of employees that are forced to
agree to employment arbitration and then can’t get any sort of representation
even if the arbitration agreement provides for allows them to have
representation most of the time they can’t afford it and if you look at the
data significant percentages of employees that even bother to go to
arbitration don’t have representation in arbitration so so that’s the the problem
that I’m addressing with this proposal and I my proposal as I mentioned earlier
is that unions take on representation of employees who are not under a labor
contract with a collective bargaining agreement but employees who work in
non-union facilities but have these employment arbitration agreements and
and the goals of my proposal are two one is growing the labor movement and the
other is access to justice and I pretty much describe the access to justice
problem in setting this up that the employees can’t get representation the
growing the labor movement piece this is why I think this proposal should appeal
to unions because the idea is that the unions would recruit members from among
non-union employees these members would join the union one of the benefits of
the joining the union would be they get representation in any dispute they have
with their employer under one of these arbitration agreements if that’s a
pretty significant benefit I came to this
in part because of seeing how this worked in the public sector in Virginia
and other similar kinds of states in Virginia bargaining in the public sector
is illegal government employees have no right to bargain government employers
cannot legally bargain with unions and yet the teachers union as one example in
Virginia has a huge number of members despite the fact that they can’t bargain
with school districts one of the ways that they recruit and maintain members
is because they offer legal representation so that if a teacher is
fired if the school district tries to take away tenure if the teacher is sued
by a student or a parent they have legal representation and that is an enormous
benefit that’s worth all the dues you ever pay if you have one legal dispute
there’s no way you could pay for a lawyer from with a lifetime of union
dues so my thought was well maybe this will work also in the private sector
maybe for unions in the private sector this would be a way to grow their
membership and provide a service to folks so that’s where the idea came from
why will this work and why do I think it’s a good thing
well unions have a lot of experience in arbitration I talked about labor
arbitration the two processes are not exactly the same because one is disputes
under collective bargaining agreements two their contractual disputes and in
some ways it’s an extension of the collective bargaining process in the
other we’re talking about legal disputes by and large so there are some
differences in the process but unions have experienced Union lawyers union
representatives have experienced in representing employees in arbitrary
so they can take that experience into the employment arbitration arena unions
can provide some balance to what’s known as the repeat player effect and this is
the idea again one of the criticisms of labor arbitration I mean of employment
arbitration is that you have employers that are repeat players so employers are
doing this over and over again that experience means that employers win more
often in employment arbitration now we don’t it’s pretty clear that
repeat players win more that employees do better when the employer is not a
repeat player and particularly when the employer hasn’t arbitrated before that
particular arbitrator before we don’t know exactly why that’s the case it may
be just that the employers have experience in arbitration so that
experience makes them more likely to win it may be that the employer is better at
picking arbitrators because of that experience and the employee who’s never
done this before doesn’t have a sense of how to pick an arbitrary even if they
have a role in choosing the arbitrator they don’t have any experience on which
to base a decision it may be that arbitrators or some arbitrators are currying favor with the repeat player
and there’s certainly some cases some anecdotal examples where arbitrators
that ruled against employers got yanked from arbitration panels and some certain
arbitration providers and not triple-a or the ones that you have heard of I
think they’re very careful and have very balanced procedures certainly some
arbitration providers some some don’t so there that may be a factor as well but
whatever the factor is whatever the cause is
if the union is there the union is also a repeat player so like labor
arbitration then you have to repeat players you have two parties that have
experience and so that may balance out that effect from the union’s point of
view this can demonstrate to workers the value of membership in the Union
so if they represent a worker in a workplace and they win an arbitration
case all the other workers in that company see that the union represented
this person and that they won so that then helps the Union build membership it
also benefits the Union to enforce the law because for the Union in unionized
workplaces it’s clear that you know a lot of research data shows that union
workers tend to be more likely to enforce the law to bring claims and that
of course adds a cost to the employer that isn’t there where the law isn’t
enforced so from the union’s point of view anytime you can increase
enforcement of the law that benefits the Union and then the last point on this
slide I think this can be a part of campaign to either end this kind of
employment arbitration or reform this kind of employment arbitration so it is
a fair process for both sides as I said I like arbitration
I think arbitration is a great method of dispute resolution so I think if it was
if it was balanced it could be a great method for employers and
if it worked like labor arbitration I think it could be very positive there is
a fairly significant campaign – and this kind of conditional employment
arbitration that’s conditioned on employment or employment that’s
conditioned on employment arbitration regardless of what the effort is I think
the union can help build that kind of a movement to make this sort of
arbitration work so it’s not just about providing a service to workers it’s
about a movement and I think for me looking at this next slide the
challenges for unions I think unions have to be a labor
movement and not a service provider so this can’t just be about providing a
service you you pay your dues you get a lawyer it has to be for this to be
successful for unions to actually build the labor movement it has to be about a
movement so you news have to be very careful that this is an effort to build
membership so that those people who are using this process are actually engaged
in the process and engaged in the union so that’s one challenge for unions not
to just be yeah you pay your dues you get a lawyer another challenge is just
convincing employees that this is worth it one of the issues with employment
arbitration has been even when employees are given the ability to opt out of
employment arbitration often they don’t why don’t they they don’t understand
what it is they’re agreeing to what it is they’re giving up maybe they’re just
afraid to say no to their employer but whatever the reason even when people
have the choice to opt out they don’t then you know five years down the road
there have a sexual harassment claim and they go to a lawyer and the lawyer says
sorry you know I’m not going to represent you because you have an
arbitration agreement and you can’t go to court you have to go to arbitration
and the employees like what I didn’t realize that’s what I was fighting when
I signed this agreement so I think the union has the challenge of educating
employees about what these arbitration agreements mean and convincing them that
there is value in paying dues to a union in order to have this option for
representation but this is what unions do right they organize people and they
have organizers and so their organizers have to go out and convince people that
this is something that is of value another challenge for unions is is
liability so what sort of liability would the Union have if for example
someone was dissatisfied with their representation in arbitration in labor
arbitration the remedy is that the Union owes it’s not just its members but
anybody who is in the collective bargaining unit a duty of fair
representation they have to represent everyone in the bargaining unit fairly
in good faith and without discrimination if they fail to do so they can be sued
for breach of the duty of fair representation but the duty of fair
representation applies because employees in collective bargaining units can’t
represent themselves they are represented by the Union the union is
their exclusive representative in this situation that I posit that’s not the
case you would choose to have the Union represent you so it’s not altogether
clear that the duty of fair representation would apply and then the
question is what would might be some sort of breach of contract
action might be some action for negligence some common law claim but
it’s something that unions have to think about in adopting a program like this
that there is this potential for liability another issue is unauthorized practice
of law unions use union representatives all the time in arbitration
I mean sometimes they use lawyers but sometimes they use a union
representatives when when I first thought about this I was like I don’t
first practice of law but unions do this all the time in some states there’s
actually a provision that allows union representatives to do this and others
haven’t addressed it nobody files claims saying you know this is an authorized
practice of law I assume because employers don’t care if the union
representative shows up instead of the union’s lawyer they’re not going to go
file a claim that there’s unauthorized practice of law the employees don’t
think of that so it just doesn’t come up but in this situation I can see it
coming up because I wouldn’t an employer file a claim for unauthorized practice
of law when the union shows up in the employment arbitration when they don’t
have a collective bargaining agreement to represent the employee so I think the
unions have to figure out what the unauthorized practice of law rules are
in the jurisdiction and who can represent the workers and the famous you
arises with out-of-state lawyers as well so so that’s a problem that you’d have
to deal with financing the program is another issue so people pay union dues
you have to get enough peace you have to set the dues and a level that people
will pay but it’s probably not going to be enough to pay for all the claims that
you have so how do you how do you finance this
and there are a variety of different ways I don’t want to take up too much
time talking here but you sometimes you can get legal fees but you have to set
up the program so that you’re not violating bar rules by getting legal
fees so I think the Union if the Union is using lawyers the legal fees that
come back to the Union have to be set aside just for legal claims the lawyers
have to have independence in representing folks so there I think
there are ways to deal with this finance issue you could depend on you know what
representation use whether you use union representatives whether you use lawyers
whether you staff lawyers versus outside lawyers but unions have to figure out
the financing piece this has to be financially viable I’m gonna skip the
objectionable conduct because I don’t think it’s a big issue terminated an
employee’s is the other one and that is a lot of legal claims are filed by
people who have been fired because that’s when people sue right they mostly
they don’t sue their employer while they’re still employed for I think kind
of obvious reasons so if the unit is trying to build membership doing this it
might not work as well if the employee who is being represented it’s gone from
the workplace so that they’re not pulling in other workers showing other
workers that this is something of value so they have to figure out ways to do
that and it’s possible that more workers who are still employed if they had
representation might actually bring these claims but we don’t know that so
I think this is my last slide and I’ll go through this one and they’ll open it
up for questions and discussion so when a Union sets up this program there a
variety of things they have to think about who’s eligible for assistance and
when so can I join the Union I got fired can I now go join the Union and get
legal representation that’s gonna be a problem if it works that way because you
need people paying in overtime in order to finance the program so you have to
figure out eligibility you have to figure out how to set the dues I
mentioned this little earlier so that it’s financially viable you have to
figure out what the scope of assistance is so are you just representing folks in
arbitration or for example if this is a terribly one-sided arbitration agreement
that you think a court might set aside will the Union represent the employee in
court to try to get the arbitration agreement set aside and what type of
claims are covered are you going to cover all employment claims are there
going to be some limits on the kinds of claims also I think there has to be a
way for the Union to say yes or no to representation and and the I know the
NEA Teachers Union National Education Association does that they have their
lawyers actually will decide whether to represent someone in a case and they do
represent most everyone but if someone has a truly frivolous case then the
Union shouldn’t be obligated to expend resources when there really isn’t a
claim so you have to set some parameters and this has to be said I think upfront
so that people know when they are paying these dues you know how is the decision
going to be as to what out whether or not I’ll be
represented in particular types of claims and then that leads us really to
the next one is you know who’s gonna do this who’s gonna do the representation
and this really ties very much back into the financial piece and also into the
unauthorized practice of law issue so you could use attorneys and they could
be their in-house attorneys staff attorneys or they could be referrals
lots of unions refer cases out I was a union lawyer I worked for a law firm we
represented a whole lot of different unions so it could be but the most of
the unions I I worked with also had staff lawyers so this plays into the
financial piece as well it’s probably cheaper to use your staff lawyers
because you’re paying them a salary as opposed to paying by the hour but on the
other hand in today’s legal climate and you know having talked to some unions
that do this they feel like they can negotiate some pretty favorable
agreements with outside counsel for representation so it may depend on that
the other thing I think you could do is have a separate legal services plan and
one thing that’s appealing about doing that is you could set up the unions
could set up a nonprofit organization that does this what’s the advantage of
that law students get loan forgiveness if they work for a nonprofit
organization so if you oh $100,000 in law school loans if you go to work for a
union or a law firm that represents unions you got to pay back off that
whole $100,000 if you go to work for a non-profit you pay 10 percent of your
salary for 10 years and the rest of its forgiven that’s a huge benefit and
unions might be able to get lawyers to work
for an organization and represent workers doing that and that also helps
deal with some of the issues about improper influence over the lawyers I
mean I think you can set it up so that doesn’t happen even if they are staff
lawyers but it’s easier if they’re a separate organization so that’s another
possibility unions could also partner with other organizations like worker
centers there are a lot of worker centers these days that are have worker
members but they’re not really unions and they do provide some legal services
to workers so perhaps partnering with some of those
organizations or with other legal aid providers of various sorts so that’s
another possibility you know some of these issues if you can get legal fees
and you use a staff lawyer sometimes you can get market rate legal fees even
though the staff lawyer was not being paid by the hour so that would be a way
for the Union to get more money in that they could use for representing other
workers I mean it would have to be used for representing other workers but that
would be an advantage to using staff lawyers using union representatives is
the other option I talked a little bit about this before they do this all the
time on your labor agreements and I think they could do particularly fairly
straightforward cases I mean a very complex employment discrimination case
might be very difficult for a union representative to do an overtime pay
claim that’s basically factual and the law is pretty clear I think a union
representative could do that fairly easily and if you had a whole lot of
workers that have the same kind of wage claim that would otherwise be a
class-action you know have a lawyer try a couple of these cases get a model and
then union representatives could go in and try other
cases in the same vein you know involving the same issue for other
workers it’s definitely cheaper I think for the Union to use union
representatives than lawyers but they do have to deal with the unauthorized
practice of law question and it’s possible they also they can use union
representatives in either earlier stages of a process if their earlier stages of
the process or they could use them as kind of paralegals investigators some of
those kind of things and you can you can get legal fees actually for paralegals
as well so so that’s another possibility other than the other possibility I think
is you could train folks to represent themselves and some worker centers are
doing this with low-wage workers kind of training them empowering them to
represent themselves in these cases so it’s another thing that would be
possible I think all of this would have to be clear to people up front that is
you can have a hybrid model so that some cases get a lawyer some cases get a
union representative some cases are self representation but that has to be clear
to the workers up front so that they don’t come in and say oh I paid all this
money and I thought I was going to get a lawyer and now you’re telling me I get a
union representative instead so it has to be clear upfront how these decisions
are made what the decisions are those kind of things but I think it could work
and I mean the last thing I say is you could roll this out as a pilot program
you could do it in one particular area and see if it worked and I hope someday
some union will try it I’ve had I’ve talked to other groups about this and I
get people who are interested and ask lots of questions talk about it but as
far as I know nobody’s actually tried it so we’ll see well thank you and I’m gonna open up for
questions I realized that in the introduction I didn’t agree with myself
and I’m Charlie Pillsbury I’m co-director of the center on dispute
resolution here at Quinnipiac law school and I’m pleased to introduce a professor
cast Carolyn Kass who’s a co-director at the center here and also this program
again as the Quinnipiac Yale dispute resolution workshop series and my Yale
counterpart Noah Messing apologizes for not being here today but again it’s Noah
and I who take responsibility for selecting the speakers and again we’re
delighted to have it in here I’d like to open it up now for for questions for the
audience well obviously that’s a that’s a real
significant question I think for purposes of this to me it doesn’t really
matter if they have an arbitration agreement then I would think they from
the point of view of the Union they should open it up to anybody even and
there are lots of issues of Mis classification that’s one of the big
issues that arises and if someone is misclassified as an independent
contractor when really they are an employee they’re gonna have all kinds of
legal claims you know because they’re not being paid overtime they’re not
being given the benefits they’re entitled to
they probably they don’t have workers compensation insurance I mean there any
number of claims they may have it in some states like California for example
there are all sorts of state claims that they may have like payment of business
expenses and so I don’t see any reason why the Union shouldn’t open this up to
to anybody who has an arbitration agreement
the company repair company things is an employer onto themselves because
they are essentially working for themselves mm-hmm yeah I think that
doesn’t really matter for purposes of this if and again if they have an
employment arbitration agreement I guess the other piece is you know what and
this is a scope of assistance things that I didn’t specifically mentioned but
so you know does is the union gonna represent folks in legal claims if they
don’t have arbitration that would be another design of the program question
but my my primary focus is the employment arbitration piece if any lawyers tried to preempt you by
putting in a clause in the arbitration implemented most of them oh sorry yeah the question
was have any employers tried to preempt this by putting in a clause that says
that there couldn’t be union representation I think that would be a
possibility if this became prevalent I think there might be some issues with
respect to that under the National Labor Relations Act because employees have a
right under the National Labor Relations Act to engage in union activity on the
other hand they might be able to say you can’t have representation at all most of
these programs provide for representation and the reason they do
that I think is so it is a fair and balanced program so that it’s not set
aside by the court but I can see employers if this became common trying
to figure out a way to set up the agreement so that the union
representative can’t come in I can see a National Labor Relations Act challenge
to that potentially but one way they could do it is to say nobody gets
representation so the employer comes in on its own the employee comes in so it’s
this and some there are actually some providers that say this now if the if
the employee doesn’t bring a lawyer the employer won’t have a lawyer there’s
some agreements that provide that now for example so yes I can see employers
trying to get around it in that way one of the Jews to be the articles of
the New York Times was that the arbitrator providers were very biased
towards the employers because it’s a repeat it’s their full-time job she had
to get referrals that well I think oh the question was that
the New York Times piece one of the points that the New York Times piece
made was that that employers are repeat players and the system employers and
businesses because this applies to consumers as well I’m sure every one of
you is a party to some arbitration agreement because you click something
online because your credit don’t look at your credit card agreement that you get
that fine print arbitration agreement if you ever put anybody in a nursing home
arbitration agreement they’re everywhere I saw one the other day my husband
ordered something online it was like a 14 dollar piece of plastic and it came
with an arbitration agreement really they’re everywhere
so the the point that this the New York Times series made is I mean these
businesses are doing this over and over again and so the arbitrator’s want to
get picked again so their incentive is rule for the business because the the
employee the consumer is not going to be back before that arbitrator again but I
think what this helps deal with that because the union unions are going to be
a repeat player so that employee may not be back
but that union may well be back and so if the union is helping to choose the
arbitrator then you know being favorable to the employer means that the union is
going to knock them off I mean that’s what happens in labor arbitration do
they share the cost it depends I mean the employer writes
these arbitration agreements so it depends on what is in the arbitration
agreement sometimes they share the cost a lot of
times employers will pick up almost the whole cost of this because of the
concern that employees may not be able to afford it and courts have said if the
employee can’t vindicate the employee consumer whoever can’t vindicate his or
her statutory rights in arbitration because of the cost then the court will
not enforce the arbitration agreement what does that mean exactly I think we
don’t know very much about what that means it’s the burden on the employee to
show that it’s so costly that they can’t possibly do it what the result of that
has been that that a lot of employers say they’ll pick up the whole cost now
that the arguments about that as well right because if the employers paying
for it is there an incentive to rule for the
employer because of that but I think when you look at employee I mean most of
the employees we’re talking about in in this kind of arbitration they can’t
afford to pay half of an arbitrator and if they go to court they don’t I mean
the judge is paid for by their taxes and our taxes so you don’t have to pay the
judge to try your particular case the problem with pay issue is that there was
a case a couple of years ago I think was 2013 an antitrust case in the Supreme
Court in which a group of small businesses sued American Express in a
class action and a trust claim and their arbitration agreement said they couldn’t
bring a class action the plaintiffs these small businesses argued that they
couldn’t afford to vindicate their statutory rights in individual claims
because it would cost I think it was three hundred thousand dollars to bring
in an expert in an antitrust case so each one of these small restaurants
would have to spend three hundred thousand dollars for their expert in
each individual case whereas if they have a class action they share the cost
of that and the Supreme Court said essentially that’s not good enough to
set aside the agreement the fact that you can’t afford to bring an individual
claim too bad essentially is what the Supreme Court said so I think with that
case it’s not altogether clear when at least the Supreme Court would find that
the cost of an arbitration was such that an employee couldn’t vindicate statutory
rights but again a lot of employers do pay most of the cost in these agreements
agreements isn’t the prohibition against
class-action arbitrations a violation of the national
absolutely is it the prohibition on class actions and arbitration agreements
a violation of the National Labor Relations Act I think it absolutely is
the NLRB has so held the reason for that for those of you who are not Labor
lawyers is that the National Labor Relations Act the whole purpose of the
National Labor Relations Act is to allow employees to join together as a group to
get some change in their terms and conditions of employment and of course
that’s exactly what this is they are joining together in a class to bring a
claim and it’s very clear the Supreme Court has said the National Labor
Relations Act protects employees rights not just to you know approach their
employer but also to engage in legislative activity to engage in
litigation that is all protected activity under the statute so I think
the NLRB is absolutely right but the courts are not going along with the
board the board has maintained this position through a series of several
cases the Fifth Circuit has twice rejected it there are several cases out
there there’s one of the Second Circuit I think there’s one of the Eighth
Circuit that are there actually on brief I was talking about this earlier with a
couple of folks actually signed some of the amicus briefs there because I’ve
written on this in this area as well but the judges you know telling folks
earlier I did a presentation to the Fourth Circuit judges and one of the
things I talked about was the this in all our be case called DR Horton in
which the board held this and the Fourth Circuit Judges this was both the Court
of Appeals judges and the district court judge was in the Fourth Circuit
they were just downright appalled and angry that the NLRB could possibly tell
them that contract they wanted to enforce was illegal just like an army
can’t tell us what to do so yes I think you’re right I don’t know what’s gonna
happen Manny and I were talking about this
earlier he thinks the Supreme Court couldn’t avoid ruling for the employees
here right I mean the less statute is very very clear it’s just very clear but
you know these courts are saying but the Federal Arbitration Act Trump’s the
National Labor Relations Act question in terms of this program that
was suggesting that unions might set up to be able to
these arbitration about the labor movement you mentioned that in Virginia
teachers cannot get the benefits of a collective bargaining relationship so we
join unions to be able to give legal pipe workers intention mm-hmm do you
know if for example the unions have set up a different type of category for
those that are joining just for legal representation that these charges less
dues and how does that sort of worked out at the gym you know um no I mean I
think each state may set up their own dues structure under the the NEA I don’t
know if they set them differently but but they do other things in Virginia as
well I mean they don’t just do legal representation they do a lot of
legislative work trying to get for example the pension benefits are
legislatively provided so they do lobbying with respect to that they do
lobbying with respect to tenure statutes they deal with school boards in some
places in Virginia they actually negotiate with school boards and they
have memoranda of understanding but they’re not legally enforceable it is
only because the school board if the school board wants to comply with it
they do and if they don’t they don’t so they actually do other kinds of things
as well but I I do not know if the dues structure is dependent on that now they
do provide legal representation in other states also it’s not just Virginia but
but what has interested me about Virginia is how many teachers join the
Union when they can’t bargain you

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