ISSUE 1 • FALL 2007 FALL • 1 ISSUE CONTENTS

1 60TH ANNUAL LABOR CONFERENCE Faculty and audience examine retaliation and whistleblowing in 2-day conference NYU Labor & 3 INAUGURAL AWARDS DINNER Peter Hurtgen receives Center’s Award of Appreciation for his contributions to the field Employment MARVIN MILLER ROUNDTABLE 4 Unique baseball legend returns to his alma mater to discuss MLBPA NEWSLETTER OF THE CENTER FOR LABOR AND EMPLOYMENT LAW 5 ABA JOINT PROGRAMS Law Center and ABA team up for Litigation Workshop and Mid-Winter New York University School of Law Meeting 10TH FEDERAL JUDGES 6 WORKSHOP IJA-Labor Center Program explores issues dominating federal dockets JUDICIAL REVIEW Estreicher 9 indexes Supreme Court Decisions without getting political 9 HOLLAND ROUNDTABLE Dutch study group meets with DOL, EEOC and NLRB attorneys to discuss differences and similarities NYU 60th Annual Conference on DEPARTMENT OF LABOR 9 TRAINING Center holds Training Labor Examines Retaliation and Program for DOL attorneys at New York Regional Office Whistleblowers in the Workplace 9 PROGRAM ON RECENT NLRA Paul M. Secunda, University of Mississippi School of Law DEVELOPMENTS Inflatable rats and grad students were topic of discussion during active dialogue N MAY 31 AND JUNE 1, OVER 200 ATTORNEYS, in Washington government officials and academics partici­ 10 2007–08 CALENDAR pated in the NYU Center for Labor and Employ­ 11 CENTER PUBLICATIONS ment Law’s 60th Annual Conference on Labor 15 IN MEMORIAM on NYU’s campus in New York City. The labor Everett E. Lewis Judith P. Vladeck conference is the premier event sponsored by the Center and Morris P. Glushien O typically involves a good cross section of the members of the 18 ADVISORY BOARD Center’s Advisory Board. The focus of this year’s conference 20 COMMUNITY NEWS was retaliation and whistleblowing in the workplace. Welcomed 20 CONTACT THE CENTER by conference organizer and Center Director Professor Samuel 23 CONTRIBUTION FORM Estreicher of the NYU School of Law, attendees were treated 24 ABOUT THE CENTER to six panels over two days on nearly every aspect of the law The Center for Labor on retaliation and whistleblowing. • In addition, former NLRB and Employment Law Board Chairman Peter Hurtgen, senior vice president of labor relations of the Stop & Shop Supermarket Companies, and formerly of Morgan Lewis & Bockius, was honored for his The first panel discussed anti- for lawyer whistleblowers under the retaliation law after the Supreme Sarbanes-Oxley Act. Court’s decision in Burlington Northern The fourth panel, moderated by Daniel v. White. Michael Bernstein of Bond, Clifton of Lewis, Clifton & Nikolaidis, Schoeneck & King moderated a panel focused on retaliation provision in the consisting of Zachary Fasman of Paul, union environment under the National

Hastings, Janofsky & Walker and Wayne Labor Relations Act (NLRA). Daniel Left: Hon. Jonathan Outten of Outten & Golden. Their talks O’Gorman of Ford & Harrison discussed L. Snare, acting From left to right: solicitor, U.S. Samuel Estreicher, focused on what constitutes a judicially the right of non-unionized employees to Department of Labor Jonathan Ben-Asher, cognizable adverse employment action be free from retaliation for work-related Willis Goldsmith, Right: Hon. Wilma John Fullerton III, for purposes of retaliation law and the complaints under the NLRA. Peter Liebman, member of and Michael Delikat growing disagreement among various Clark, an experienced regional NLRB the NLRB courts about the limits on employee attorney now with Kauff, McClain & protections under retaliation law in McGuire, addressed non-suit and release contributions to labor and employment law, with Bruce Raynor, different contexts. Professor David Sherwyn of the Cornell provisions in collective bargaining and severance agreements. Nine other leading practitioners and academics will provide  president of UNITE HERE, providing after-dinner remarks. University School of Hotel Administration, and a NYU Labor Former AFL-CIO General Counsel Laurence Gold of Bredhoff additional commentary on retaliation and whistleblowing law  Conference participants also heard from luncheon speakers Center research scholar, provided commentary. & Kaiser concluded with remarks on the current state of anti- in this country and around the world. Contributors include Acting Solicitor for the Department of Labor Jonathan Snare The first panel focused on statutory retaliation protections retaliation protections in the traditional labor context. Professors Eric Schnapper of the University of Washington and Member Wilma Liebman of the National Labor Relations under Title VII and other laws. The second panel, which Starting the second day of the conference, overall School of Law, Deborah Brake of the University of Pittsburgh Board, with introductory remarks from former Board Member Frederick Braid of Holland & Knight moderated, concentrated moderator Jeffrey Kohn of O’Melveny & Myers welcomed the Law School, Richard Moberly of the University of Nebraska Marshall Babson of Hughes Hubbard & Reed. on federal and state whistleblower protection statutes. The conference participants back for another day of dialogue. School of Law, Jonathan Macey of Yale Law School, Terry first panelist, Eric Taussig, former vice president and associate Moderated by Lloyd Chinn of Proskauer Rose and with lively Dworkin of the University of Indiana Business School, Cynthia general counsel for Philip Morris (now Altria), who currently commentary provided by Robert Herbst of Beldock Levine Estlund of NYU School of Law, Richard Carlson of South Texas serves as an arbitrator, mediator and legal consultant, & Hoffman, the fifth panel explored the implications of the College of Law, Orly Lobel of the University of San Diego Law 60th Annual provided a comprehensive overview of the different types Supreme Court’s decision in Garcetti v. Ceballos for public School, and Erica Collins of Paul Hastings.• CONFERENCE ON LABOR of federal whistleblowing claims available under federal employee whistleblowers and First Amendment retaliation statutory law. Michael Curley of Morgan Lewis then reviewed claims. Professor Paul Secunda of the University of Mississippi st Panel state whistleblower protection, noting the key distinctions in School of Law discussed the diminishment of public employee 1 Anti-Retaliation Under Federal and State state laws and discussing specific state laws in depth. Next, speech rights in light of Garcetti and how the recognition of Discrimination and Wage-Hour Laws; Implications Ethan Brecher of Liddle & Robinson addressed whistleblower public employer expressive association rights in the Court’s The Labor Center of Burlington Northern v. White claims before the NASD and NYSE and the relative success Solomon Amendment decision could further reduce employee claimants have had obtaining redress for adverse actions protections. Barbara Spain, a member of the U.S. Merit Celebrates Peter J. Hurtgen nd Panel sustained as a result of resisting or complaining about Systems Protection Board, then offered insight into how eld on the evening of the first day Developments in State and Federal Whistleblower 2 unlawful conduct by their employers. Charles Fournier, whistleblower complaints by federal employees are handled of the 60th annual conference, the Labor Protection Laws employment counsel for NBC Universal, and Eugene Friedman by her agency and the federal courts. Center’s inaugural awards dinner celebrating rd Panel of Friedman & Wolf offered spirited commentary. The penultimate panel of the conference considered distinguished contributions to the field of labor 3 Developments Under the Sarbanes-Oxley Act The conference’s third panel turned to emerging developments under state wrongful discharge law. Moderated and employment law was a signal success. developments in whistleblowing law under the Sarbanes- by Pearl Zuchlewski of Kraus & Zuchlewski, she and Cornell HAccompanied by many notable guests and faculty, the Center th Panel Oxley Act (SOX). Moderated by Michael Delikat of Orrick, Professor Sherwyn examined whistleblowing and retaliation celebrated the very special role played in our field by the Anti-Retaliation Protections Under the NLRA and 4 Herrington & Sutcliffe, panelists Willis Goldsmith of Jones issues under the common law of various state court Honorable Peter J. Hurtgen. Collective Bargaining Agreements Day and John Fullerton of Sullivan & Cromwell, along with jurisdictions. Peter Hurtgen, a former partner in the labor and th Panel commentator Jonathan Ben-Asher of Beranbaum, Menken, The final session brought back Dennis Duffy, former employment law firm Morgan Lewis & Bockius, focused 5 Government Whistleblowers; Implications of Ben-Asher & Bierman, all considered whether the law was employment counsel for Time Warner and now with Baker his practice on representing senior management in labor Garcetti v. Ceballos effectively protecting those who engaged in whistleblowing & Botts in Houston, who presented the ethical issues matters, particularly with respect to complex issues activity involving the reporting of fraud against shareholders. confronting the in-house labor and employment lawyer. involving collective bargaining and the NLRA. From 2002 th Panel While Delikat focused on preliminary reinstatement orders Plaintiff counsel Darnley Stewart of Bernstein Litowitz Berger until December 31, 2004, Hurtgen served as the director Developments Under State Wrongful Discharge Laws 6 under SOX and other emerging legal developments under the & Grossman provided commentary. of the Federal Mediation and Conciliation Service (FMCS), th Panel law, Goldsmith discussed investigating and defending against All of these panelist presentations will be memorialized and from 1997 to 2002 as both a member and chair of the 7 Ethical Issues for In-House Employment and whistleblower claims and Fullerton analyzed the important in a volume, edited by Professor Secunda, to appear next NLRB. He is also an emeritus member of the Labor Center’s Transactional Lawyers principle of “protected activity” under the law. Finally, year entitled: Retaliation and Whistleblowers: Proceedings advisory board. As of July 1, 2007, Peter J. Hurtgen joined Ben-Asher identified the practical and difficult implications of New York University 60th Annual Conference on Labor. Stop & Shop Supermarket Companies, a subdivision of The first panel discussed anti- for lawyer whistleblowers under the retaliation law after the Supreme Sarbanes-Oxley Act. Court’s decision in Burlington Northern The fourth panel, moderated by Daniel v. White. Michael Bernstein of Bond, Clifton of Lewis, Clifton & Nikolaidis, Schoeneck & King moderated a panel focused on retaliation provision in the consisting of Zachary Fasman of Paul, union environment under the National

Hastings, Janofsky & Walker and Wayne Labor Relations Act (NLRA). Daniel Left: Hon. Jonathan Outten of Outten & Golden. Their talks O’Gorman of Ford & Harrison discussed L. Snare, acting From left to right: solicitor, U.S. Samuel Estreicher, focused on what constitutes a judicially the right of non-unionized employees to Department of Labor Jonathan Ben-Asher, cognizable adverse employment action be free from retaliation for work-related Willis Goldsmith, Right: Hon. Wilma John Fullerton III, for purposes of retaliation law and the complaints under the NLRA. Peter Liebman, member of and Michael Delikat growing disagreement among various Clark, an experienced regional NLRB the NLRB courts about the limits on employee attorney now with Kauff, McClain & protections under retaliation law in McGuire, addressed non-suit and release contributions to labor and employment law, with Bruce Raynor, different contexts. Professor David Sherwyn of the Cornell provisions in collective bargaining and severance agreements. Nine other leading practitioners and academics will provide  president of UNITE HERE, providing after-dinner remarks. University School of Hotel Administration, and a NYU Labor Former AFL-CIO General Counsel Laurence Gold of Bredhoff additional commentary on retaliation and whistleblowing law  Conference participants also heard from luncheon speakers Center research scholar, provided commentary. & Kaiser concluded with remarks on the current state of anti- in this country and around the world. Contributors include Acting Solicitor for the Department of Labor Jonathan Snare The first panel focused on statutory retaliation protections retaliation protections in the traditional labor context. Professors Eric Schnapper of the University of Washington and Member Wilma Liebman of the National Labor Relations under Title VII and other laws. The second panel, which Starting the second day of the conference, overall School of Law, Deborah Brake of the University of Pittsburgh Board, with introductory remarks from former Board Member Frederick Braid of Holland & Knight moderated, concentrated moderator Jeffrey Kohn of O’Melveny & Myers welcomed the Law School, Richard Moberly of the University of Nebraska Marshall Babson of Hughes Hubbard & Reed. on federal and state whistleblower protection statutes. The conference participants back for another day of dialogue. School of Law, Jonathan Macey of Yale Law School, Terry first panelist, Eric Taussig, former vice president and associate Moderated by Lloyd Chinn of Proskauer Rose and with lively Dworkin of the University of Indiana Business School, Cynthia general counsel for Philip Morris (now Altria), who currently commentary provided by Robert Herbst of Beldock Levine Estlund of NYU School of Law, Richard Carlson of South Texas serves as an arbitrator, mediator and legal consultant, & Hoffman, the fifth panel explored the implications of the College of Law, Orly Lobel of the University of San Diego Law 60th Annual provided a comprehensive overview of the different types Supreme Court’s decision in Garcetti v. Ceballos for public School, and Erica Collins of Paul Hastings.• CONFERENCE ON LABOR of federal whistleblowing claims available under federal employee whistleblowers and First Amendment retaliation statutory law. Michael Curley of Morgan Lewis then reviewed claims. Professor Paul Secunda of the University of Mississippi st Panel state whistleblower protection, noting the key distinctions in School of Law discussed the diminishment of public employee 1 Anti-Retaliation Under Federal and State state laws and discussing specific state laws in depth. Next, speech rights in light of Garcetti and how the recognition of Discrimination and Wage-Hour Laws; Implications Ethan Brecher of Liddle & Robinson addressed whistleblower public employer expressive association rights in the Court’s The Labor Center of Burlington Northern v. White claims before the NASD and NYSE and the relative success Solomon Amendment decision could further reduce employee claimants have had obtaining redress for adverse actions protections. Barbara Spain, a member of the U.S. Merit Celebrates Peter J. Hurtgen nd Panel sustained as a result of resisting or complaining about Systems Protection Board, then offered insight into how eld on the evening of the first day Developments in State and Federal Whistleblower 2 unlawful conduct by their employers. Charles Fournier, whistleblower complaints by federal employees are handled of the 60th annual conference, the Labor Protection Laws employment counsel for NBC Universal, and Eugene Friedman by her agency and the federal courts. Center’s inaugural awards dinner celebrating rd Panel of Friedman & Wolf offered spirited commentary. The penultimate panel of the conference considered distinguished contributions to the field of labor 3 Developments Under the Sarbanes-Oxley Act The conference’s third panel turned to emerging developments under state wrongful discharge law. Moderated and employment law was a signal success. developments in whistleblowing law under the Sarbanes- by Pearl Zuchlewski of Kraus & Zuchlewski, she and Cornell HAccompanied by many notable guests and faculty, the Center th Panel Oxley Act (SOX). Moderated by Michael Delikat of Orrick, Professor Sherwyn examined whistleblowing and retaliation celebrated the very special role played in our field by the Anti-Retaliation Protections Under the NLRA and 4 Herrington & Sutcliffe, panelists Willis Goldsmith of Jones issues under the common law of various state court Honorable Peter J. Hurtgen. Collective Bargaining Agreements Day and John Fullerton of Sullivan & Cromwell, along with jurisdictions. Peter Hurtgen, a former partner in the labor and th Panel commentator Jonathan Ben-Asher of Beranbaum, Menken, The final session brought back Dennis Duffy, former employment law firm Morgan Lewis & Bockius, focused 5 Government Whistleblowers; Implications of Ben-Asher & Bierman, all considered whether the law was employment counsel for Time Warner and now with Baker his practice on representing senior management in labor Garcetti v. Ceballos effectively protecting those who engaged in whistleblowing & Botts in Houston, who presented the ethical issues matters, particularly with respect to complex issues activity involving the reporting of fraud against shareholders. confronting the in-house labor and employment lawyer. involving collective bargaining and the NLRA. From 2002 th Panel While Delikat focused on preliminary reinstatement orders Plaintiff counsel Darnley Stewart of Bernstein Litowitz Berger until December 31, 2004, Hurtgen served as the director Developments Under State Wrongful Discharge Laws 6 under SOX and other emerging legal developments under the & Grossman provided commentary. of the Federal Mediation and Conciliation Service (FMCS), th Panel law, Goldsmith discussed investigating and defending against All of these panelist presentations will be memorialized and from 1997 to 2002 as both a member and chair of the 7 Ethical Issues for In-House Employment and whistleblower claims and Fullerton analyzed the important in a volume, edited by Professor Secunda, to appear next NLRB. He is also an emeritus member of the Labor Center’s Transactional Lawyers principle of “protected activity” under the law. Finally, year entitled: Retaliation and Whistleblowers: Proceedings advisory board. As of July 1, 2007, Peter J. Hurtgen joined Ben-Asher identified the practical and difficult implications of New York University 60th Annual Conference on Labor. Stop & Shop Supermarket Companies, a subdivision of view of many of us who have been in the sports world for a A Different Kind of while, is the most deserving person not currently in the Hall of NYU Labor Center– Fame. The answer to that question is Marvin Miller. Marvin is Baseball Legend simply one of the most influential people ever to be involved ABA Joint Programs in the history of baseball.” Born on April 14, 1917, in the Bronx, Miller grew up in he Center for Labor and Employment Brooklyn, not far from Ebbets Field, which naturally made Law has a history of working with the American him a devoted supporter of the Brooklyn Dodgers and a Bar Association in organizing training programs baseball fan for life. He received a B.S. in economics from and ABA conferences to benefit both the whole New York University in 1938 and served as the MLBPA’s field of labor and employment law and the executive director from 1966-82. He transformed the TABA community. In 2007, the Center and the ABA jointly ran player’s union into one of the strongest unions in the the Litigation Skills Workshop for the Employment Lawyer United States. His previous experience as chief economist in tandem with the ABA’s Technology in the Practice & and negotiator for the United Steelworkers proved a Workplace Committee Midwinter Meeting. valuable training ground for the labor leader that would On February 2, 2007, a diverse group of attorneys and law transform baseball’s status quo. professionals gathered in the Lester Pollack Colloquium for  In 1965, baseball pitching legend Robin Roberts approached the Litigations Skills Workshop. Starting with case assessment

Marvin Miller returns Miller with the chance to actively work in the game he and pleading strategies and pitfalls, the first panels discussed Royal Ahold N.V., an international to his alma mater, NYU. loved. The players then elected Miller to head their players’ investigation, witness preparation, effective depositions, supermarket operator, as senior association, a position previously held by management- electronic discovery issues, and summary judgment motions. vice president of labor relations. n April 4, 2007, New York University approved officials. His first task in office was “to organize the After lunch, the second set of panels concluded the day with Also gracing the event was our and the Center for Labor and Employment first legitimate trade union in professional sports.” jury selection, effective direct, introducing documentary renowned guest speaker Bruce Law hosted a roundtable discussion led At the time of his appointment, the average salary was evidence, evidentiary objections, effective cross-examinations Raynor, president of UNITE HERE, by Marvin J. Miller. According to Hank $19,000 and no player was paid more than $100,000. “The and opening and closing arguments. Professor Estreicher the union representing nearly half Aaron, “[he] is as important to the history of owners had long since entered into an illegal agreement (NYU Law), Lloyd Chinn (Proskauer Rose), and Arnold H. a million workers in the hospitality, Obaseball as Jackie Robinson.” Miller is the former executive that no one could get more that $100,000 a year. It Pedowitz (Pedowitz & Meister) co-chaired the program. gaming, apparel, textile, retail, director of the Major League Baseball Players Association didn’t matter who you were.” Miller was outraged by A number of advisory board members served on the distribution, food service and (MLBPA). Entering the field of contract negotiation at a their collusion to prevent a free market adjustment of workshop panels, among them Jeffrey Klein (Weil, Gotshal laundry industries in North time when ballplayers lived with a minimum salary of salaries. Owners were used to the idea that a player had & Manges), Pearl Zuchlewski (Kraus & Zuchlewski), Mark America. In his address, Raynor $6,000 and “an endless string of one-year renewals,” he no power on his own, and that they, the owners, could Risk (Mark Risk, P.C.), Scott J. Wenner (Schnader Harrison expressed his thoughts on whether was among the first to end those dismal conditions. The decide everything. Miller led the union through three major Segal & Lewis), Willis Goldsmith (Jones Day), Robert Herbst Top: Samuel Estreicher and organized labor might not be Labor Center welcomed Marvin Miller in the Law School’s strikes, the first one lasted 13 days in 1972, the second (Beldock Levine & Hoffman) and Kenneth Thompson Peter J. Hurtgen better off without the Labor Board, Furman Hall, where he spoke to students studying law and during spring training in 1980 and the third followed in (Thompson Wigdor & Gilly). Lloyd Chinn both served as a Above: Bruce Raynor, President insisting that the “government the sports business. ESPN’s The Game 360’s Fran Healy 1981 and lasted for 50 days. In time, labor has come to program co-chair and spoke about effective depositions of UNITE HERE labor relations environment” has also took part in the roundtable discussion, drawing from be seen as a critical partner to the commercial success of during one of the panels. become “dysfunctional.” Raynor further stated that, after his own experience and interviews with the people who professional baseball. On April 25–27, 2007, the Center again teamed up with the the next presidential election, American unions will need had interacted with Miller. According to The Game 360, • ABA on the Annual Technology in the Practice & Workplace to decide if they want to continue the NLRB structure or if “[Miller] has influenced professional sports in America more Committee Midwinter Meeting to discuss the impact of they would be better off without it. than anyone else, yet he remains anonymous to sports technology on both practices and the workplace. NLRB After dinner, Professor Estreicher presented Mr. Hurtgen fans everywhere.” Regional Director Wayne Gold later stated that “the splendid the Center for Labor and Employment Law’s Award of The Game 360 and the Center’s Ben Eisenman organized accommodations of the Pollack Colloquium proved to be a Appreciation, saying, “People are always honored too late the opportunity for NYU students to meet this significant most appropriate setting for two days of outstanding and in life” and that the Center sought to deviate from that figure in professional sports. Jeffrey Klein, partner at Weil well-received presentations from a host of leading national norm. Special thanks go to Mark Dichter from Morgan Gotshal & Manges, a Labor Center board member and a sports and international experts addressing a range of subjects.” Lewis, the Honorable Wilma Liebman from the NLRB, law expert, provided further insights during the roundtable. Divided into five modules, the conference gave an overview Zachary Fasman from Paul, Hastings, Janofsky & Walker “Lots of people in the sports world often want to talk in terms of the new developments and the impact those developments and Willis Goldsmith from Jones Day, who took the time of trivia. One of the most important trivia questions that have made on the practice of law and the workplace to speak at the event and helped the Center for Labor everyone should know the answer to is the following: Name environment. The first module discussed the use of law- and Employment Law make this evening a success. The the person most eligible, who should be in the hall of fame related blogs and the related legal issues. A subsequent generosity of the law firms just mentioned and Proskauer but who is not there? I’ll give you a hint: that person never module provided an overview of the new Federal Rules of Rose merit special notice. • hit a baseball, never threw a pitch, but unquestionably, in the Two baseball legends in their own rights: ESPN’s Fran Healy and Miller Civil Procedure. The panel offered practical information view of many of us who have been in the sports world for a A Different Kind of while, is the most deserving person not currently in the Hall of NYU Labor Center– Fame. The answer to that question is Marvin Miller. Marvin is Baseball Legend simply one of the most influential people ever to be involved ABA Joint Programs in the history of baseball.” Born on April 14, 1917, in the Bronx, Miller grew up in he Center for Labor and Employment Brooklyn, not far from Ebbets Field, which naturally made Law has a history of working with the American him a devoted supporter of the Brooklyn Dodgers and a Bar Association in organizing training programs baseball fan for life. He received a B.S. in economics from and ABA conferences to benefit both the whole New York University in 1938 and served as the MLBPA’s field of labor and employment law and the executive director from 1966-82. He transformed the TABA community. In 2007, the Center and the ABA jointly ran player’s union into one of the strongest unions in the the Litigation Skills Workshop for the Employment Lawyer United States. His previous experience as chief economist in tandem with the ABA’s Technology in the Practice & and negotiator for the United Steelworkers proved a Workplace Committee Midwinter Meeting. valuable training ground for the labor leader that would On February 2, 2007, a diverse group of attorneys and law transform baseball’s status quo. professionals gathered in the Lester Pollack Colloquium for  In 1965, baseball pitching legend Robin Roberts approached the Litigations Skills Workshop. Starting with case assessment

Marvin Miller returns Miller with the chance to actively work in the game he and pleading strategies and pitfalls, the first panels discussed Royal Ahold N.V., an international to his alma mater, NYU. loved. The players then elected Miller to head their players’ investigation, witness preparation, effective depositions, supermarket operator, as senior association, a position previously held by management- electronic discovery issues, and summary judgment motions. vice president of labor relations. n April 4, 2007, New York University approved officials. His first task in office was “to organize the After lunch, the second set of panels concluded the day with Also gracing the event was our and the Center for Labor and Employment first legitimate trade union in professional sports.” jury selection, effective direct, introducing documentary renowned guest speaker Bruce Law hosted a roundtable discussion led At the time of his appointment, the average salary was evidence, evidentiary objections, effective cross-examinations Raynor, president of UNITE HERE, by Marvin J. Miller. According to Hank $19,000 and no player was paid more than $100,000. “The and opening and closing arguments. Professor Estreicher the union representing nearly half Aaron, “[he] is as important to the history of owners had long since entered into an illegal agreement (NYU Law), Lloyd Chinn (Proskauer Rose), and Arnold H. a million workers in the hospitality, Obaseball as Jackie Robinson.” Miller is the former executive that no one could get more that $100,000 a year. It Pedowitz (Pedowitz & Meister) co-chaired the program. gaming, apparel, textile, retail, director of the Major League Baseball Players Association didn’t matter who you were.” Miller was outraged by A number of advisory board members served on the distribution, food service and (MLBPA). Entering the field of contract negotiation at a their collusion to prevent a free market adjustment of workshop panels, among them Jeffrey Klein (Weil, Gotshal laundry industries in North time when ballplayers lived with a minimum salary of salaries. Owners were used to the idea that a player had & Manges), Pearl Zuchlewski (Kraus & Zuchlewski), Mark America. In his address, Raynor $6,000 and “an endless string of one-year renewals,” he no power on his own, and that they, the owners, could Risk (Mark Risk, P.C.), Scott J. Wenner (Schnader Harrison expressed his thoughts on whether was among the first to end those dismal conditions. The decide everything. Miller led the union through three major Segal & Lewis), Willis Goldsmith (Jones Day), Robert Herbst Top: Samuel Estreicher and organized labor might not be Labor Center welcomed Marvin Miller in the Law School’s strikes, the first one lasted 13 days in 1972, the second (Beldock Levine & Hoffman) and Kenneth Thompson Peter J. Hurtgen better off without the Labor Board, Furman Hall, where he spoke to students studying law and during spring training in 1980 and the third followed in (Thompson Wigdor & Gilly). Lloyd Chinn both served as a Above: Bruce Raynor, President insisting that the “government the sports business. ESPN’s The Game 360’s Fran Healy 1981 and lasted for 50 days. In time, labor has come to program co-chair and spoke about effective depositions of UNITE HERE labor relations environment” has also took part in the roundtable discussion, drawing from be seen as a critical partner to the commercial success of during one of the panels. become “dysfunctional.” Raynor further stated that, after his own experience and interviews with the people who professional baseball. On April 25–27, 2007, the Center again teamed up with the the next presidential election, American unions will need had interacted with Miller. According to The Game 360, • ABA on the Annual Technology in the Practice & Workplace to decide if they want to continue the NLRB structure or if “[Miller] has influenced professional sports in America more Committee Midwinter Meeting to discuss the impact of they would be better off without it. than anyone else, yet he remains anonymous to sports technology on both practices and the workplace. NLRB After dinner, Professor Estreicher presented Mr. Hurtgen fans everywhere.” Regional Director Wayne Gold later stated that “the splendid the Center for Labor and Employment Law’s Award of The Game 360 and the Center’s Ben Eisenman organized accommodations of the Pollack Colloquium proved to be a Appreciation, saying, “People are always honored too late the opportunity for NYU students to meet this significant most appropriate setting for two days of outstanding and in life” and that the Center sought to deviate from that figure in professional sports. Jeffrey Klein, partner at Weil well-received presentations from a host of leading national norm. Special thanks go to Mark Dichter from Morgan Gotshal & Manges, a Labor Center board member and a sports and international experts addressing a range of subjects.” Lewis, the Honorable Wilma Liebman from the NLRB, law expert, provided further insights during the roundtable. Divided into five modules, the conference gave an overview Zachary Fasman from Paul, Hastings, Janofsky & Walker “Lots of people in the sports world often want to talk in terms of the new developments and the impact those developments and Willis Goldsmith from Jones Day, who took the time of trivia. One of the most important trivia questions that have made on the practice of law and the workplace to speak at the event and helped the Center for Labor everyone should know the answer to is the following: Name environment. The first module discussed the use of law- and Employment Law make this evening a success. The the person most eligible, who should be in the hall of fame related blogs and the related legal issues. A subsequent generosity of the law firms just mentioned and Proskauer but who is not there? I’ll give you a hint: that person never module provided an overview of the new Federal Rules of Rose merit special notice. • hit a baseball, never threw a pitch, but unquestionably, in the Two baseball legends in their own rights: ESPN’s Fran Healy and Miller Civil Procedure. The panel offered practical information and advice from experienced employment law practitioners, Clockwise, from far left: Hon. Denise L. Cote, focusing on client obligations, the best practices and solutions Pearl Zuchlewski, Ted Rogers for management, as well as the retention and destruction of Mark Dichter, Darnley Stewart, Hon. Denny Chin electronic data. A mock e-discovery hearing concluded the EEOC Commissioner Stuart Ishimaru first day of panels. The Honorable Judge P. Kevin Castel from the U.S. District Court for the Southern District of New York their presentations on the impact of new served as the presiding judge, while Michael J. Gray from federal rules, the breadth of the problem Jones Day and Adam T. Klein from Outten & Golden served as of preservation duty, micro data, sanctions, attorneys for the defense and the plaintiff, respectively. and the inadvertent disclosure of privileged Bernstein Litowitz Berger & Grossman generously material. Following the third panel, Frederick sponsored a reception at the end of the first day. The second D. Braid of Holland & Knight introduced the day of the conference began with module three, which dealt program’s luncheon speaker, the Honorable with the impact of technology in the workplace, discussing Stuart J. Ishimaru, commissioner of the U.S. health and safety issues regarding the use of technology, Equal Employment Opportunity Commission. particularly employees’ stress caused by the usage of this Commissioner Ishimaru has recently joined  technology. Furthermore, the panelists covered potential legal the Labor Center’s advisory board as an ex  claims connected with permitted uses of new technologies. officio member. They then moved on to discuss employee privacy issues, Willis Goldsmith of Jones Day and Anton concentrating on where the line should be drawn between G. Hajjar of O’Donnell, Schwartz, and privacy and the use of technology in the workplace, with Hon. Bernice B. Donald, a Anderson discussed NLRA and ERISA preemption issues in the particular emphasis on the use of GPS and RFIDs to monitor Tenth Annual district court judge for the fourth panel of the Workshop. Goldsmith and Hajjar focused and track products and property and the use of biometric Western District of Tennessee, their presentations on whether New York and California technology for security and timekeeping purposes. NYU Workshop on Joseph D. Garrison of Garrison, so-called “neutrality” laws are preempted by federal labor The next to last panel offered a comprehensive analysis Levin-Epstein, Chimes & law and whether ERISA preempts state laws requiring the and discussion of the Register Guard debate, featuring Jones Employment Law Richardson, and Kathleen provision of health care insurance. Special issues in FLSA opt- Day’s Andrew Kramer and Bredhoff & Kaiser’s Larry Gold. The McKenna of Proskauer in actions and EEOC representative suits, issues-only classes, NLRB is expected to deliver its decision in the Guard Publishing Rose opened the Workshop nationwide classes, supervising settlements, and class action Co., d/b/a The Register-Guard case, in which the Board will for the Federal with their discussion of waivers in arbitration agreements were discussed in the determine the scope of the NLRA Section 7 rights to employer case management issues, Workshop’s fifth panel, led by Southern District Judge Denny policies with respect to the use of emails. The decision is Judiciary in particular pro se cases, Chin, Mark Dichter from Morgan Lewis & Bockius and Darnley likely to have substantial implications regarding the NLRA he tenth annual Workshop on summary judgment, and Stewart of Bernstein Litowitz Berger & Grossman. in the technological workplace. The fifth and final module Employment Law for Federal Judges took technology. Acting as the The last panel of the day covered court–based or –annexed ended the conference with a discussion on the ethical issues place on March 12-13, 2007. Sponsored jointly panel’s moderator, Garrison mediation of employment disputes. Southern District Judge involving the use of technology. The panel explored the topic by NYU’s Center for Labor and Employment offered his thoughts on case Loretta A. Preska, Donna Malin of Johnson & Johnson and through a series of hypothetical situations created by the use Law and its Dwight D. Opperman’s Institute of management techniques Wayne Outten led this panel and rounded off the first day of of technology in today’s world. The diverse panel provided the TJudicial Administration, and the U.S. Federal Judicial Center, and suggested models of the Workshop. perspectives of law practice risk management, defense, and this program provides federal judges with the opportunity to interrogatories, requests for March 13, the second day of the Workshop, began with a counsel of practitioners and the developing ethics rules. examine the labor and employment issues that increasingly production, and protective orders. discussion of the cutting-edge developments in sex and racial According to Doug Dexter, chair of the Technology in the dominate their dockets. The second panel, which included Hon. John G. Koeltl of the discrimination cases. The Hon. Laura Taylor Swain, a district Practice and Workplace Committee and partner at Farella Forty-five federal judges from around the country U.S. District Court for the Southern District of New York, Anne court judge for the Southern District of New York, Mindy Braun + Martel, the Center for Labor and Employment Law convened to discuss case management, evidence issues, L. Clark of Vladeck, Waldman, Elias & Engelhard and Kenneth G. Farber of Farber Legal and Scott J. Wenner of Schnader and its valued faculty “provided the perfect location and use of experts, electronic discovery, labor law and A. Margolis of Kauff, McClain & McGuire, discussed evidence Harrison Segal & Lewis considered stereotyping, adequacy intellectual base to draw legal expertise to the program. As ERISA Preemption, court-based/annexed mediation of issues and the use of experts. The panel focused on stray of anti-harassment policies, “disparate impact” challenges a result, the panelists and attendees engaged in thoughtful employment disputes, class and collective actions, sex and remarks, comparators, statistics, direct evidence, prior bad to subjective promotion decisions, family and medical leave, dialogue regarding the technology issues that are changing racial discrimination and jury instruction. acts, Rule 412, the use of mental health experts, economists personal liability of corporate officers, the scope of §1981 both the American workplace and the practice of law.” Since the program’s inception in 1998, the Workshop and CPAs on damages, “social framework” testimony and the actions, and third-party retaliation claims. Several of the Center’s board members actively has aimed to bring together experienced judges with use of statistical proof of discrimination. The Workshop’s final panel focused on jury instructions, participated in the Labor Center-ABA technology program, practitioners and academics to frame the discussion Electronic discovery was the topic of the third panel. The with the Hon. Frederick Block of the U.S. District Court for including Bredhoff’s Larry Gold, Hon. Wayne Gold, director around federal judges’ needs, and to provide guidance and Hon. Denise L. Cote, a district court judge for the Southern the Eastern District of New York, Robert L. Herbst of Beldock of the NLRB region, Darnley Stewart from Bernstein time for reframing issues, theories, and perceptions about District of New York, Theodore O. Rogers Jr. of Sullivan & Levine & Hoffman, and Zachary Fasman of Paul, Hastings, Litowitz, and Mark Risk.• employment law cases. Cromwell and Pearl Zuchlewski with Kraus & Zuchlewski focused Janofsky & Walker leading the panel.• and advice from experienced employment law practitioners, Clockwise, from far left: Hon. Denise L. Cote, focusing on client obligations, the best practices and solutions Pearl Zuchlewski, Ted Rogers for management, as well as the retention and destruction of Mark Dichter, Darnley Stewart, Hon. Denny Chin electronic data. A mock e-discovery hearing concluded the EEOC Commissioner Stuart Ishimaru first day of panels. The Honorable Judge P. Kevin Castel from the U.S. District Court for the Southern District of New York their presentations on the impact of new served as the presiding judge, while Michael J. Gray from federal rules, the breadth of the problem Jones Day and Adam T. Klein from Outten & Golden served as of preservation duty, micro data, sanctions, attorneys for the defense and the plaintiff, respectively. and the inadvertent disclosure of privileged Bernstein Litowitz Berger & Grossman generously material. Following the third panel, Frederick sponsored a reception at the end of the first day. The second D. Braid of Holland & Knight introduced the day of the conference began with module three, which dealt program’s luncheon speaker, the Honorable with the impact of technology in the workplace, discussing Stuart J. Ishimaru, commissioner of the U.S. health and safety issues regarding the use of technology, Equal Employment Opportunity Commission. particularly employees’ stress caused by the usage of this Commissioner Ishimaru has recently joined  technology. Furthermore, the panelists covered potential legal the Labor Center’s advisory board as an ex  claims connected with permitted uses of new technologies. officio member. They then moved on to discuss employee privacy issues, Willis Goldsmith of Jones Day and Anton concentrating on where the line should be drawn between G. Hajjar of O’Donnell, Schwartz, and privacy and the use of technology in the workplace, with Hon. Bernice B. Donald, a Anderson discussed NLRA and ERISA preemption issues in the particular emphasis on the use of GPS and RFIDs to monitor Tenth Annual district court judge for the fourth panel of the Workshop. Goldsmith and Hajjar focused and track products and property and the use of biometric Western District of Tennessee, their presentations on whether New York and California technology for security and timekeeping purposes. NYU Workshop on Joseph D. Garrison of Garrison, so-called “neutrality” laws are preempted by federal labor The next to last panel offered a comprehensive analysis Levin-Epstein, Chimes & law and whether ERISA preempts state laws requiring the and discussion of the Register Guard debate, featuring Jones Employment Law Richardson, and Kathleen provision of health care insurance. Special issues in FLSA opt- Day’s Andrew Kramer and Bredhoff & Kaiser’s Larry Gold. The McKenna of Proskauer in actions and EEOC representative suits, issues-only classes, NLRB is expected to deliver its decision in the Guard Publishing Rose opened the Workshop nationwide classes, supervising settlements, and class action Co., d/b/a The Register-Guard case, in which the Board will for the Federal with their discussion of waivers in arbitration agreements were discussed in the determine the scope of the NLRA Section 7 rights to employer case management issues, Workshop’s fifth panel, led by Southern District Judge Denny policies with respect to the use of emails. The decision is Judiciary in particular pro se cases, Chin, Mark Dichter from Morgan Lewis & Bockius and Darnley likely to have substantial implications regarding the NLRA he tenth annual Workshop on summary judgment, and Stewart of Bernstein Litowitz Berger & Grossman. in the technological workplace. The fifth and final module Employment Law for Federal Judges took technology. Acting as the The last panel of the day covered court–based or –annexed ended the conference with a discussion on the ethical issues place on March 12-13, 2007. Sponsored jointly panel’s moderator, Garrison mediation of employment disputes. Southern District Judge involving the use of technology. The panel explored the topic by NYU’s Center for Labor and Employment offered his thoughts on case Loretta A. Preska, Donna Malin of Johnson & Johnson and through a series of hypothetical situations created by the use Law and its Dwight D. Opperman’s Institute of management techniques Wayne Outten led this panel and rounded off the first day of of technology in today’s world. The diverse panel provided the TJudicial Administration, and the U.S. Federal Judicial Center, and suggested models of the Workshop. perspectives of law practice risk management, defense, and this program provides federal judges with the opportunity to interrogatories, requests for March 13, the second day of the Workshop, began with a counsel of practitioners and the developing ethics rules. examine the labor and employment issues that increasingly production, and protective orders. discussion of the cutting-edge developments in sex and racial According to Doug Dexter, chair of the Technology in the dominate their dockets. The second panel, which included Hon. John G. Koeltl of the discrimination cases. The Hon. Laura Taylor Swain, a district Practice and Workplace Committee and partner at Farella Forty-five federal judges from around the country U.S. District Court for the Southern District of New York, Anne court judge for the Southern District of New York, Mindy Braun + Martel, the Center for Labor and Employment Law convened to discuss case management, evidence issues, L. Clark of Vladeck, Waldman, Elias & Engelhard and Kenneth G. Farber of Farber Legal and Scott J. Wenner of Schnader and its valued faculty “provided the perfect location and use of experts, electronic discovery, labor law and A. Margolis of Kauff, McClain & McGuire, discussed evidence Harrison Segal & Lewis considered stereotyping, adequacy intellectual base to draw legal expertise to the program. As ERISA Preemption, court-based/annexed mediation of issues and the use of experts. The panel focused on stray of anti-harassment policies, “disparate impact” challenges a result, the panelists and attendees engaged in thoughtful employment disputes, class and collective actions, sex and remarks, comparators, statistics, direct evidence, prior bad to subjective promotion decisions, family and medical leave, dialogue regarding the technology issues that are changing racial discrimination and jury instruction. acts, Rule 412, the use of mental health experts, economists personal liability of corporate officers, the scope of §1981 both the American workplace and the practice of law.” Since the program’s inception in 1998, the Workshop and CPAs on damages, “social framework” testimony and the actions, and third-party retaliation claims. Several of the Center’s board members actively has aimed to bring together experienced judges with use of statistical proof of discrimination. The Workshop’s final panel focused on jury instructions, participated in the Labor Center-ABA technology program, practitioners and academics to frame the discussion Electronic discovery was the topic of the third panel. The with the Hon. Frederick Block of the U.S. District Court for including Bredhoff’s Larry Gold, Hon. Wayne Gold, director around federal judges’ needs, and to provide guidance and Hon. Denise L. Cote, a district court judge for the Southern the Eastern District of New York, Robert L. Herbst of Beldock of the NLRB region, Darnley Stewart from Bernstein time for reframing issues, theories, and perceptions about District of New York, Theodore O. Rogers Jr. of Sullivan & Levine & Hoffman, and Zachary Fasman of Paul, Hastings, Litowitz, and Mark Risk.• employment law cases. Cromwell and Pearl Zuchlewski with Kraus & Zuchlewski focused Janofsky & Walker leading the panel.• Judging the Supreme Court Without Grinding a Political Axe Dutch Labor Officials Center and NLRB Samuel Estreicher, NYU School of Law 2005–06 term. A score of 1 is awarded whenever the Court Explore the American stablishing political criteria for judging decides the case on the issue presented by the petition as framed Co-Host Program the Supreme Court’s work is a hopelessly unsatisfying by the ruling below and the facts of the case and does not purport System E endeavor as long as we reserve the right to have different to hold more than is necessary to address that issue. on Recent Board political views and legal philosophies and the Court continues If the Court purports to decide other, broader issues, it pril 25, 2007—A group of 30 labor to have a completely discretionary docket. I propose, instead, receives a score of 0. On the other hand, when the Court hears officials from the Dutch Ministry of Social Affairs Developments a more limited criterion that may generate a measure of a case and fails to address a fairly presented issue on which A and Employment attended a meeting with several agreement: In the cases that it accepts for plenary review, does it granted certiorari, it also receives a score of 0, because U.S. Department of Labor managers from the New York Matthew Bodie, the Court decide what it has to and no more than it has to? the Court made a discretionary choice to avoid deciding an region. The event was hosted by NYU’s Center for Labor St. Louis University School of Law In other words, does the Court reach out for issues that the important issue. The Court heard nine cases in the 2005–06 and Employment Law. Members of the Labor Center case does not properly present or deliberately avoid deciding term in the labor and employment area. The maximum score advisory board, along with several speakers from the U.S. arch 23, 2007—Inflatable rats and issues that are both properly presented by the case and it could have received was 9. It instead received a grade of 4. Department of Labor, the National Labor Relations Board, grad students were just two of the topics important (as evidenced by the Court’s grant of certiorari)? I will apply the same criteria next summer to the Court’s and the Equal Employment Opportunity Commission helped for discussion at the Center’s Program  In the accompanying table, I apply this criterion to labor and output during the 2006–07 term and see if it fares better. lead an informative and captivating roundtable discussion. on Recent NLRA Developments. The  employment cases argued and decided during the Court’s Stay tuned. • The Honorable Alvin Blyer and the Honorable Celeste program was held March 23 at the NLRB’s Mattina, Regional Directors of the National Labor Relations Mheadquarters in Washington, D.C. Co-hosted by the National ESTREICHER’S JUDICIAL PERFORMANCE INDEX Board and associate members of the Center’s Advisory Labor Relations Board, it offered a special opportunity 2005–06 SUPREME COURT LABOR AND EMPLOYMENT DECISIONS Board, as well as Patricia Rodenhausen, Regional Solicitor for Board attorneys, academics, former board members, Non- Net for the U.S. Department of Labor, also participated in the and members of the union and management bar to share Case Issue Judicial Restraint Decision? Score meeting with the Dutch labor officials. thoughts on cutting-edge issues in labor law. IBP v. Alvarez, 126 S. Ct. Whether time walking and waiting to don and doff Decided issues presented No 1 • 515 (2005) protective equipment is compensable time under The Labor Board’s Margaret Browning Courthouse was Portal-to-Portal Act packed, with several overflow rooms added, for the three- , VOLUME 35, NO. 3, SPRING 2007. Arlaugh v. Y&H Corp., Whether Title VII’s 15-or-more employee Decided issues presented No 1 hour program. The format was two paper presentations by 126 S. Ct. 1235 (2006) requirement for employer coverage is jurisdictional labor law scholars, followed by commentary from an eight- Domino’s Pizza v. Whether a sole shareholder and president of Decided issues presented No 1 person panel. Professor Michael Harper of Boston University McDonald, 126 S. Ct. company denied a contract for racial reasons can first presented his paper, “Some Examples of the Exercise 1246 (2006) sue under 42 U.S.C. § 1981 despite the absence of a contractual relationship with defendant of Administrative Discretion at the Bush Board.” The paper Training Program for examined recent NLRB decisions through the lens of Supreme Garcetti v. Ceballos, 126 Whether job-required speech is protected by the Decided broader issue of whether No 0 LABOR AND EMPLOYMENT LAW S. Ct. 1951 (2006) First Amendment speech “pursuant to job duties” is the U.S. DOL Regional Court administrative-deference opinions in Chevron and protected by the First Amendment Brand X. Harper created a tripartite analytical structure to Mohawk Industries Whether a corporation and its agents that do Dismissed petition and remand for Yes 0 Solicitor’s Office characterize Board statutory interpretations as (1) mandated v. Williams, 126 S. Ct. not conduct or participate in affairs of a larger proceedings consistent with Ideal by the NLRA, (2) the most reasonable interpretation of the 2016 (2006) enterprise constitute an “enterprise” under the Steel Supply Corp. v. Anza, n September 15, 2006, the Center for NLRA, or (3) a reasonable exercise of administrative discretion Racketeer Influenced and Corrupt Organizations Act 126 S. Ct. 1991 (2006) for Labor and Employment Law held its Training delegated by Congress. Using this structure, Harper discussed Whitman v. Department Whether federal employee is barred by Case remanded for lower court Yes 0 of Transportation 126 5 U.S.C. § 7127(a) from pursuing constitutional to explore jurisdictional and O Program for Regional Solicitor’s Office, U.S. the Board’s recent decisions on Weingarten representation S. Ct. 2014 (2006) claim against employer preclusion issues Department of Labor. Marla S. K. Bergman from rules for non-union employees; the employee status of private United States v. Whether § 5 of the Fourteenth Amendment Decided only whether complaint Yes 0 Jones Day and Robert L. Herbst from Beldock Levine university graduate students; bargaining units involving jointly Georgia, 126 S. Ct. 877 abrogates state’s Eleventh Amendment immunity as alleged constitutional violations & Hoffman addressed the audience. Ms. Bergman employed workers; and the supervisory status of nurses. (2006) applied to prison inmates suing under Title II of the without deciding independent presented on special issues involving electronic discovery Harper concluded that when it comes to deciding the degree Americans with Disabilities Act force of ADA claims and electronic evidence, while Mr. Herbst spoke to of deference, courts and commentators would need to rethink Burlington Northern v. Whether a materially adverse change in terms of Decided broader issue, not Yes 0 White, 126 S. Ct. 2405 employment is sufficient to establish an “adverse presented by the facts, of whether the attending DOL attorneys about direct and cross- the bright-line distinction between an agency’s statutory (2006) employment action” under Title VII or whether an an “adverse employment action” examination of witnesses at trial. interpretation and its exercise of delegated discretion. “ultimate employment decision” is needed need be job-related at all, as long Patricia Rodenhausen, regional solicitor, Region II, U.S. Professor Matthew Bodie of St. Louis University gave the as it is reasonably likely to deter Department of Labor, and co-chair of the Training Program second presentation on “Conflict Between the NLRB and protected activity complimented the group: “Once again, [the] energy and the Courts: Resolution or Amplification?” In his discussion Sereboff v. Mid Atlantic Whether claim by a plan fiduciary for Decided issue presented Yes 1 Medical Services 126 S. reimbursement from plan beneficiary from excellence at the Center has inured to the professional of recent Board and federal court decisions, Bodie drew Ct. 1869 (2006) money received from third party constitutes development and benefit of our lawyers.” a distinction between “high volume” and “low volume” “equitable relief” under § 502(a)(3) of the Employee • conflicts. He noted that high volume conflicts, such as nurses’ Retirement Income Security Act COPYRIGHT © 2007 BY THE AMERICAN BAR ASSOCIATION. REPRINTED WITH PERMISSION.

“JUDGING THE SUPREME COURT WITHOUT GRINDING A POLITICAL AXE” BY SAMUEL ESTREICHER PUBLISHED IN supervisory status and the use of inflatable rats, received Judging the Supreme Court Without Grinding a Political Axe Dutch Labor Officials Center and NLRB Samuel Estreicher, NYU School of Law 2005–06 term. A score of 1 is awarded whenever the Court Explore the American stablishing political criteria for judging decides the case on the issue presented by the petition as framed Co-Host Program the Supreme Court’s work is a hopelessly unsatisfying by the ruling below and the facts of the case and does not purport System E endeavor as long as we reserve the right to have different to hold more than is necessary to address that issue. on Recent Board political views and legal philosophies and the Court continues If the Court purports to decide other, broader issues, it pril 25, 2007—A group of 30 labor to have a completely discretionary docket. I propose, instead, receives a score of 0. On the other hand, when the Court hears officials from the Dutch Ministry of Social Affairs Developments a more limited criterion that may generate a measure of a case and fails to address a fairly presented issue on which A and Employment attended a meeting with several agreement: In the cases that it accepts for plenary review, does it granted certiorari, it also receives a score of 0, because U.S. Department of Labor managers from the New York Matthew Bodie, the Court decide what it has to and no more than it has to? the Court made a discretionary choice to avoid deciding an region. The event was hosted by NYU’s Center for Labor St. Louis University School of Law In other words, does the Court reach out for issues that the important issue. The Court heard nine cases in the 2005–06 and Employment Law. Members of the Labor Center case does not properly present or deliberately avoid deciding term in the labor and employment area. The maximum score advisory board, along with several speakers from the U.S. arch 23, 2007—Inflatable rats and issues that are both properly presented by the case and it could have received was 9. It instead received a grade of 4. Department of Labor, the National Labor Relations Board, grad students were just two of the topics important (as evidenced by the Court’s grant of certiorari)? I will apply the same criteria next summer to the Court’s and the Equal Employment Opportunity Commission helped for discussion at the Center’s Program  In the accompanying table, I apply this criterion to labor and output during the 2006–07 term and see if it fares better. lead an informative and captivating roundtable discussion. on Recent NLRA Developments. The  employment cases argued and decided during the Court’s Stay tuned. • The Honorable Alvin Blyer and the Honorable Celeste program was held March 23 at the NLRB’s Mattina, Regional Directors of the National Labor Relations Mheadquarters in Washington, D.C. Co-hosted by the National ESTREICHER’S JUDICIAL PERFORMANCE INDEX Board and associate members of the Center’s Advisory Labor Relations Board, it offered a special opportunity 2005–06 SUPREME COURT LABOR AND EMPLOYMENT DECISIONS Board, as well as Patricia Rodenhausen, Regional Solicitor for Board attorneys, academics, former board members, Non- Net for the U.S. Department of Labor, also participated in the and members of the union and management bar to share Case Issue Judicial Restraint Decision? Score meeting with the Dutch labor officials. thoughts on cutting-edge issues in labor law. IBP v. Alvarez, 126 S. Ct. Whether time walking and waiting to don and doff Decided issues presented No 1 • 515 (2005) protective equipment is compensable time under The Labor Board’s Margaret Browning Courthouse was Portal-to-Portal Act packed, with several overflow rooms added, for the three- , VOLUME 35, NO. 3, SPRING 2007. Arlaugh v. Y&H Corp., Whether Title VII’s 15-or-more employee Decided issues presented No 1 hour program. The format was two paper presentations by 126 S. Ct. 1235 (2006) requirement for employer coverage is jurisdictional labor law scholars, followed by commentary from an eight- Domino’s Pizza v. Whether a sole shareholder and president of Decided issues presented No 1 person panel. Professor Michael Harper of Boston University McDonald, 126 S. Ct. company denied a contract for racial reasons can first presented his paper, “Some Examples of the Exercise 1246 (2006) sue under 42 U.S.C. § 1981 despite the absence of a contractual relationship with defendant of Administrative Discretion at the Bush Board.” The paper Training Program for examined recent NLRB decisions through the lens of Supreme Garcetti v. Ceballos, 126 Whether job-required speech is protected by the Decided broader issue of whether No 0 LABOR AND EMPLOYMENT LAW S. Ct. 1951 (2006) First Amendment speech “pursuant to job duties” is the U.S. DOL Regional Court administrative-deference opinions in Chevron and protected by the First Amendment Brand X. Harper created a tripartite analytical structure to Mohawk Industries Whether a corporation and its agents that do Dismissed petition and remand for Yes 0 Solicitor’s Office characterize Board statutory interpretations as (1) mandated v. Williams, 126 S. Ct. not conduct or participate in affairs of a larger proceedings consistent with Ideal by the NLRA, (2) the most reasonable interpretation of the 2016 (2006) enterprise constitute an “enterprise” under the Steel Supply Corp. v. Anza, n September 15, 2006, the Center for NLRA, or (3) a reasonable exercise of administrative discretion Racketeer Influenced and Corrupt Organizations Act 126 S. Ct. 1991 (2006) for Labor and Employment Law held its Training delegated by Congress. Using this structure, Harper discussed Whitman v. Department Whether federal employee is barred by Case remanded for lower court Yes 0 of Transportation 126 5 U.S.C. § 7127(a) from pursuing constitutional to explore jurisdictional and O Program for Regional Solicitor’s Office, U.S. the Board’s recent decisions on Weingarten representation S. Ct. 2014 (2006) claim against employer preclusion issues Department of Labor. Marla S. K. Bergman from rules for non-union employees; the employee status of private United States v. Whether § 5 of the Fourteenth Amendment Decided only whether complaint Yes 0 Jones Day and Robert L. Herbst from Beldock Levine university graduate students; bargaining units involving jointly Georgia, 126 S. Ct. 877 abrogates state’s Eleventh Amendment immunity as alleged constitutional violations & Hoffman addressed the audience. Ms. Bergman employed workers; and the supervisory status of nurses. (2006) applied to prison inmates suing under Title II of the without deciding independent presented on special issues involving electronic discovery Harper concluded that when it comes to deciding the degree Americans with Disabilities Act force of ADA claims and electronic evidence, while Mr. Herbst spoke to of deference, courts and commentators would need to rethink Burlington Northern v. Whether a materially adverse change in terms of Decided broader issue, not Yes 0 White, 126 S. Ct. 2405 employment is sufficient to establish an “adverse presented by the facts, of whether the attending DOL attorneys about direct and cross- the bright-line distinction between an agency’s statutory (2006) employment action” under Title VII or whether an an “adverse employment action” examination of witnesses at trial. interpretation and its exercise of delegated discretion. “ultimate employment decision” is needed need be job-related at all, as long Patricia Rodenhausen, regional solicitor, Region II, U.S. Professor Matthew Bodie of St. Louis University gave the as it is reasonably likely to deter Department of Labor, and co-chair of the Training Program second presentation on “Conflict Between the NLRB and protected activity complimented the group: “Once again, [the] energy and the Courts: Resolution or Amplification?” In his discussion Sereboff v. Mid Atlantic Whether claim by a plan fiduciary for Decided issue presented Yes 1 Medical Services 126 S. reimbursement from plan beneficiary from excellence at the Center has inured to the professional of recent Board and federal court decisions, Bodie drew Ct. 1869 (2006) money received from third party constitutes development and benefit of our lawyers.” a distinction between “high volume” and “low volume” “equitable relief” under § 502(a)(3) of the Employee • conflicts. He noted that high volume conflicts, such as nurses’ Retirement Income Security Act COPYRIGHT © 2007 BY THE AMERICAN BAR ASSOCIATION. REPRINTED WITH PERMISSION.

“JUDGING THE SUPREME COURT WITHOUT GRINDING A POLITICAL AXE” BY SAMUEL ESTREICHER PUBLISHED IN supervisory status and the use of inflatable rats, received significant scrutiny from courts and would attract attention and Hubbard & Reed), Robert Brame (now at McGuireWoods), and controversy no matter how the Board ruled. On the other hand, Sarah Fox (now at Bredhoff & Kaiser); former NLRB general CENTER PUBLICATIONS Bodie cautioned against cases of low-volume conflict, in which counsel John Irving (now at Kirkland & Ellis); machinists union courts undermine the Board’s authority without attracting general counsel Allison Beck; IBEW general counsel Larry much attention. Bodie cited a recent spate of 10(j) injunction Cohen; and Board attorneys Harold Datz (chief counsel to Chair A New Approach to Global Labor Law denials as a possible example of such low-volume conflict. Robert Battista) and John Ferguson (associate general counsel, As the U.S. economy increasingly crosses international borders, global issues have After these presentations, a panel of expert commentators Division of Enforcement Litigation). NLRB Chairman Battista become an emergent part of U.S. labor law practice. Thus, Sam Estreicher’s new offered their opinions on recent events. The panel included and General Counsel Ronald Meisburg also gave opening textbook, Global Issues in Labor Law (Thomson-West, 2007), is a welcome and much- former Board members Marshall Babson (now at Hughes remarks, along with the Center’s Ben Eisenman. • needed contribution to the field. Estreicher’s aim is broader than a traditional comparative labor law textbook. Instead, he takes a more practical approach by focusing on global labor issues from the perspective of the U.S. labor lawyer. These issues are organized into five primary areas: (1) labor and immigration issues for U.S. businesses employing foreign workers in this country and U.S. businesses operating outside the country, (2) international labor 10 Preliminary Global Issues in standards used to assess working conditions in the United States and elsewhere, (3) 11 Labor Law, by the impact of international trade on workers and the role of labor standards in debates Samuel Estreicher. over trade, (4) U.S. litigation alleging foreign and labor abuses by U.S. businesses, and Thomson-West, Calendar 2007. 244 pages. (5) comparisons of labor law regulation in developed countries. The chapter on foreign workers addresses several high-profile issues. For 2007 example, the ability to remedy labor law violations against undocumented workers in the United States is explored through the Hoffman Plastics case. While the book principally relies on primary materials, it also includes helpful secondary readings on issues such as guest-worker programs. These questions, among others, touch on many november of the central issues facing many U.S. employers in the modern, global economy as November 2 Board Meeting and Reception for Law Students they are played out in the current legislative debate over immigration reform. -08 International labor standards and rights are the focus of the next two chapters. Starting with an examination of labor standards promulgated by the International January Labour Organization (ILO) and the Organisation for Economic Cooperation and January 25 Diversity Initiatives in the Practice of Labor and Employment Law Development (OECD)—as well as company-generated standards such as those from Nike—the book shows both the importance of these standards and the difficulties that they face. Labor standards also play an important part in trade agreements, which the book explores through a helpful mix of trade instruments and secondary material. March Litigation under the Alien Tort Act, 28 U.S.C. § 1350, a tool that workers’ rights March 18 Board Meeting advocates have increasingly used, is a central part of the next chapter, which also March 18–19 Workshop on Employment Law for Federal Judges looks at claims alleging breaches of an individual company’s own standards. The final chapter, which focuses on comparative labor law, nicely brings together the previous material. The last chapter provides an informative description of several representative MAY labor law regulatory regimes and addresses many of the major labor issues relevant May 9 Doing Business in Asia: The Labor and Employment Law Story in the global economy, including exclusive versus plural unionism, regulation of the recognition and bargaining processes, and union security. The primary and secondary material in the book will provide students with June both a solid grounding in the current state of the law and the needed background June 5–6 61st Annual Conference on Labor and Employment Law to discuss how the law should develop. These discussions will also benefit from the book’s notes, which raise interesting and challenging issues related to the main DATES ARE SUBJECT TO CHANGE. DETAILS AT WWW.LAW.NYU.EDU/CENTERS/LABOR material. The balance between case doctrine and policy makes Global Issues in Labor Law particularly useful in diverse class environments. The book would be an excellent addition to any traditional labor law course, as its emphasis on global issues fills an increasingly important gap in most labor law textbooks. Moreover, the book could significant scrutiny from courts and would attract attention and Hubbard & Reed), Robert Brame (now at McGuireWoods), and controversy no matter how the Board ruled. On the other hand, Sarah Fox (now at Bredhoff & Kaiser); former NLRB general CENTER PUBLICATIONS Bodie cautioned against cases of low-volume conflict, in which counsel John Irving (now at Kirkland & Ellis); machinists union courts undermine the Board’s authority without attracting general counsel Allison Beck; IBEW general counsel Larry much attention. Bodie cited a recent spate of 10(j) injunction Cohen; and Board attorneys Harold Datz (chief counsel to Chair A New Approach to Global Labor Law denials as a possible example of such low-volume conflict. Robert Battista) and John Ferguson (associate general counsel, As the U.S. economy increasingly crosses international borders, global issues have After these presentations, a panel of expert commentators Division of Enforcement Litigation). NLRB Chairman Battista become an emergent part of U.S. labor law practice. Thus, Sam Estreicher’s new offered their opinions on recent events. The panel included and General Counsel Ronald Meisburg also gave opening textbook, Global Issues in Labor Law (Thomson-West, 2007), is a welcome and much- former Board members Marshall Babson (now at Hughes remarks, along with the Center’s Ben Eisenman. • needed contribution to the field. Estreicher’s aim is broader than a traditional comparative labor law textbook. Instead, he takes a more practical approach by focusing on global labor issues from the perspective of the U.S. labor lawyer. These issues are organized into five primary areas: (1) labor and immigration issues for U.S. businesses employing foreign workers in this country and U.S. businesses operating outside the country, (2) international labor 10 Preliminary Global Issues in standards used to assess working conditions in the United States and elsewhere, (3) 11 Labor Law, by the impact of international trade on workers and the role of labor standards in debates Samuel Estreicher. over trade, (4) U.S. litigation alleging foreign and labor abuses by U.S. businesses, and Thomson-West, Calendar 2007. 244 pages. (5) comparisons of labor law regulation in developed countries. The chapter on foreign workers addresses several high-profile issues. For 2007 example, the ability to remedy labor law violations against undocumented workers in the United States is explored through the Hoffman Plastics case. While the book principally relies on primary materials, it also includes helpful secondary readings on issues such as guest-worker programs. These questions, among others, touch on many november of the central issues facing many U.S. employers in the modern, global economy as November 2 Board Meeting and Reception for Law Students they are played out in the current legislative debate over immigration reform. -08 International labor standards and rights are the focus of the next two chapters. Starting with an examination of labor standards promulgated by the International January Labour Organization (ILO) and the Organisation for Economic Cooperation and January 25 Diversity Initiatives in the Practice of Labor and Employment Law Development (OECD)—as well as company-generated standards such as those from Nike—the book shows both the importance of these standards and the difficulties that they face. Labor standards also play an important part in trade agreements, which the book explores through a helpful mix of trade instruments and secondary material. March Litigation under the Alien Tort Act, 28 U.S.C. § 1350, a tool that workers’ rights March 18 Board Meeting advocates have increasingly used, is a central part of the next chapter, which also March 18–19 Workshop on Employment Law for Federal Judges looks at claims alleging breaches of an individual company’s own standards. The final chapter, which focuses on comparative labor law, nicely brings together the previous material. The last chapter provides an informative description of several representative MAY labor law regulatory regimes and addresses many of the major labor issues relevant May 9 Doing Business in Asia: The Labor and Employment Law Story in the global economy, including exclusive versus plural unionism, regulation of the recognition and bargaining processes, and union security. The primary and secondary material in the book will provide students with June both a solid grounding in the current state of the law and the needed background June 5–6 61st Annual Conference on Labor and Employment Law to discuss how the law should develop. These discussions will also benefit from the book’s notes, which raise interesting and challenging issues related to the main DATES ARE SUBJECT TO CHANGE. DETAILS AT WWW.LAW.NYU.EDU/CENTERS/LABOR material. The balance between case doctrine and policy makes Global Issues in Labor Law particularly useful in diverse class environments. The book would be an excellent addition to any traditional labor law course, as its emphasis on global issues fills an increasingly important gap in most labor law textbooks. Moreover, the book could serve as the foundation for a seminar, providing the starting point for discussions on a following military leaves of absence, and a discussion of the effect of national security large number of global labor and employment topics. In short, Global Issues in Labor concerns on federal government employees, such as those in the Transportation Law does a wonderful job of introducing students to an often-ignored, but increasingly Security Administration. important, aspect of U.S. labor law practice. The papers in Part IV of this volume concern workers’ heightened needs for In the same series, Samuel Estreicher is co-authoring Global Issues in Employment physical and emotional security. One paper asks: Can a union negotiate for racial or Discrimination Law with Brian Landsberg, and Global Issues in Employment Law with ethnic profiling or screening of job applicants, based on security concerns? The authors Miriam Cherry. Both will become available later in 2007. The Global Issues Series is of this article conclude that unions, facing liability for such a policy, will not bargain published by Thomson-West. for it, especially since unions face no liability for failing to provide for the security of — JEFFREY M. HIRSCH, UNIVERSITY OF TENNESSEE COLLEGE OF LAw their members. There are also three chapters on approaches to employee emotional security: in particular, employee assistance programs and workplace mental injuries, such as post-traumatic stress disorder, and the role of the ADA and the FMLA in New Volume on Workplace Law addressing worker stress. in an Age of Terrorism Workers, management and governments are still adapting to the new environment of global insecurity. Change is inevitable; the manner and type of change is not. The It has been more than six years since the terrorist attacks of September 11, 2001. 12 Center here offers a volume that will provide practitioners, agencies and academics 13 Those attacks have drastically changed our approaches to national security, foreign with a starting point for the debates to come. policy, electronic privacy, and immigration policy. The waves rippling out from — Matthew Bodie, St. Louis University School of Law September 11 have seemingly touched every aspect of our lives, and the workplace is no exception. Earlier in 2007, Kluwer Law International published Workplace Discrimination, Behavioral Analyses Behavioral Analyses of Privacy and Security in an Age of Terrorism. The volume was based on papers of Workplace presented at the Center’s 55th Annual Conference on Labor and Employment Law, as Discrimination, Mitu Workplace Discrimination Workplace well as select papers from law reviews. It was edited by Center Director Sam Estreicher Gulati and Michael The standard academic analysis of workplace discrimination takes a static perspective Discrimination, Yelnosky, Editors. along with Matthew Bodie of St. Louis University School of Law and a research fellow at on the problem. Unsurprisingly, since litigation is the key event in most legal analyses, Privacy and Kluwer Law Security in an Age of the Center. The volume brings together works on this critical topic for lawyers, judges, International, scholars tend to focus on the incident that is likely to be the subject of litigation Terrorism, Samuel legislators, scholars and citizens in this new age. publication date to be —typically, a termination or a failure to hire. The goal of the editors of this volume Estreicher and The book is divided into four sections: (1) workplace discrimination, (2) workplace announced. 608 pages. —a Festschrift sponsored by the NYU Labor Center in honor of the late Harvard law Matthew Bodie, privacy, (3) collective bargaining, and (4) physical and emotional security. Part I professor David Charny—was to encourage a move to a dynamic perspective on Editors. Kluwer Law International, 2007. discusses the problem of workplace discrimination in the context of the war on workplace discrimination. To understand how to remedy workplace discrimination, 544 pages. terror. The papers include: a discussion of reasons why profiling based on nationality Charny believed, one needed to not only look at the incident in question, but also may in some cases be appropriate; a breakdown of the factors used by employment the events that generated it. And that means paying attention to workplace cultures, agencies and courts in assessing “English Only” workplace programs; a snapshot of structural features of the workplace and the broader economy, and the incentives the protections provided to immigrant workers in the post-9/11 period; an overview of of workers and employers. For example, to the extent to which employees expect the process for immigration by highly skilled immigrant workers under the H-1B visa employers and co-workers to harbor biases, they will adjust their behavior to process; and a discussion of the “enemy combatant” designation. counteract those biases. Employers and co-workers, in turn, will anticipate those Part II of the volume concerns workplace privacy in an age of terrorism, and strategies and adjust their behavior accordingly. Moreover, the penalties that can includes pieces on the “treasure trove” of electronic information that is generated be imposed through legal regulation of the workplace encourage (and discourage) about employees in general, as well as employer monitoring of employee email. certain behaviors as well. Thus, to analyze discrimination in the workplace, one has Part III is devoted to the issue of how collective bargaining has been affected in to understand the foregoing dynamics. Are the incidents that are the focus of more this new security-conscious environment. One chapter highlights the loss of unionized conventional analysis typical of what is taking place at the workplace or merely outlier jobs caused directly by the September 11 attacks and analyzes the ways in which unions events that should not be the subject of legal regulation? To continue with the example, and employers can approach job loss caused by terrorism. There are also contrasting the fact that there are very few incidents of discrimination at a company may not mean pieces on the effects of workplace association rights on security concerns. One chapter that all is well there; instead it may simply mean that minority and female employees raises concerns about vulnerability to labor strikes in an age of terror and proposes have exerted a great deal of additional effort to counter discriminatory attitudes. legislation to better balance the concerns that labor, management, and the general The authors in this volume were invited to participate because each of them public may have when strikes affect critical infrastructure. One contribution argues that takes a unique and different perspective on how to approach the problem of making national security concerns may have played too influential a role in reducing labor’s the analysis of workplace discrimination more dynamic. Their approaches span the freedom of association. Other chapters include a discussion of employment rights spectrum from conventional legal analysis to critical race theory to psychology and serve as the foundation for a seminar, providing the starting point for discussions on a following military leaves of absence, and a discussion of the effect of national security large number of global labor and employment topics. In short, Global Issues in Labor concerns on federal government employees, such as those in the Transportation Law does a wonderful job of introducing students to an often-ignored, but increasingly Security Administration. important, aspect of U.S. labor law practice. The papers in Part IV of this volume concern workers’ heightened needs for In the same series, Samuel Estreicher is co-authoring Global Issues in Employment physical and emotional security. One paper asks: Can a union negotiate for racial or Discrimination Law with Brian Landsberg, and Global Issues in Employment Law with ethnic profiling or screening of job applicants, based on security concerns? The authors Miriam Cherry. Both will become available later in 2007. The Global Issues Series is of this article conclude that unions, facing liability for such a policy, will not bargain published by Thomson-West. for it, especially since unions face no liability for failing to provide for the security of — JEFFREY M. HIRSCH, UNIVERSITY OF TENNESSEE COLLEGE OF LAw their members. There are also three chapters on approaches to employee emotional security: in particular, employee assistance programs and workplace mental injuries, such as post-traumatic stress disorder, and the role of the ADA and the FMLA in New Volume on Workplace Law addressing worker stress. in an Age of Terrorism Workers, management and governments are still adapting to the new environment of global insecurity. Change is inevitable; the manner and type of change is not. The It has been more than six years since the terrorist attacks of September 11, 2001. 12 Center here offers a volume that will provide practitioners, agencies and academics 13 Those attacks have drastically changed our approaches to national security, foreign with a starting point for the debates to come. policy, electronic privacy, and immigration policy. The waves rippling out from — Matthew Bodie, St. Louis University School of Law September 11 have seemingly touched every aspect of our lives, and the workplace is no exception. Earlier in 2007, Kluwer Law International published Workplace Discrimination, Behavioral Analyses Behavioral Analyses of Privacy and Security in an Age of Terrorism. The volume was based on papers of Workplace presented at the Center’s 55th Annual Conference on Labor and Employment Law, as Discrimination, Mitu Workplace Discrimination Workplace well as select papers from law reviews. It was edited by Center Director Sam Estreicher Gulati and Michael The standard academic analysis of workplace discrimination takes a static perspective Discrimination, Yelnosky, Editors. along with Matthew Bodie of St. Louis University School of Law and a research fellow at on the problem. Unsurprisingly, since litigation is the key event in most legal analyses, Privacy and Kluwer Law Security in an Age of the Center. The volume brings together works on this critical topic for lawyers, judges, International, scholars tend to focus on the incident that is likely to be the subject of litigation Terrorism, Samuel legislators, scholars and citizens in this new age. publication date to be —typically, a termination or a failure to hire. The goal of the editors of this volume Estreicher and The book is divided into four sections: (1) workplace discrimination, (2) workplace announced. 608 pages. —a Festschrift sponsored by the NYU Labor Center in honor of the late Harvard law Matthew Bodie, privacy, (3) collective bargaining, and (4) physical and emotional security. Part I professor David Charny—was to encourage a move to a dynamic perspective on Editors. Kluwer Law International, 2007. discusses the problem of workplace discrimination in the context of the war on workplace discrimination. To understand how to remedy workplace discrimination, 544 pages. terror. The papers include: a discussion of reasons why profiling based on nationality Charny believed, one needed to not only look at the incident in question, but also may in some cases be appropriate; a breakdown of the factors used by employment the events that generated it. And that means paying attention to workplace cultures, agencies and courts in assessing “English Only” workplace programs; a snapshot of structural features of the workplace and the broader economy, and the incentives the protections provided to immigrant workers in the post-9/11 period; an overview of of workers and employers. For example, to the extent to which employees expect the process for immigration by highly skilled immigrant workers under the H-1B visa employers and co-workers to harbor biases, they will adjust their behavior to process; and a discussion of the “enemy combatant” designation. counteract those biases. Employers and co-workers, in turn, will anticipate those Part II of the volume concerns workplace privacy in an age of terrorism, and strategies and adjust their behavior accordingly. Moreover, the penalties that can includes pieces on the “treasure trove” of electronic information that is generated be imposed through legal regulation of the workplace encourage (and discourage) about employees in general, as well as employer monitoring of employee email. certain behaviors as well. Thus, to analyze discrimination in the workplace, one has Part III is devoted to the issue of how collective bargaining has been affected in to understand the foregoing dynamics. Are the incidents that are the focus of more this new security-conscious environment. One chapter highlights the loss of unionized conventional analysis typical of what is taking place at the workplace or merely outlier jobs caused directly by the September 11 attacks and analyzes the ways in which unions events that should not be the subject of legal regulation? To continue with the example, and employers can approach job loss caused by terrorism. There are also contrasting the fact that there are very few incidents of discrimination at a company may not mean pieces on the effects of workplace association rights on security concerns. One chapter that all is well there; instead it may simply mean that minority and female employees raises concerns about vulnerability to labor strikes in an age of terror and proposes have exerted a great deal of additional effort to counter discriminatory attitudes. legislation to better balance the concerns that labor, management, and the general The authors in this volume were invited to participate because each of them public may have when strikes affect critical infrastructure. One contribution argues that takes a unique and different perspective on how to approach the problem of making national security concerns may have played too influential a role in reducing labor’s the analysis of workplace discrimination more dynamic. Their approaches span the freedom of association. Other chapters include a discussion of employment rights spectrum from conventional legal analysis to critical race theory to psychology and economics. Nevertheless, each article connects to the others because the underlying in memoriam theme of each one is the attempt to understand the micro-analytics of the workplace and, more specifically, to understand how legal regulation affects those dynamics. The affection and admiration that David Charny’s friends, colleagues, and students had for him prompted this volume. Sam Estreicher and the Center for Labor and Employment Law at NYU got the ball rolling by organizing an initial gathering approximately four years ago, at which rough ideas were discussed. Over the ensuing four years, a large subset of those ideas resulted in full articles, and it is those articles that fill this volume and provide a foundation for what will hopefully prove to be a robust inquiry into the relationship between law and the internal dynamics of the workplace. — Mitu Gulati, Duke University School of Law, AND Michael Yelnosky, Roger Williams University School of Law

Everett E. Lewis (August 12, 1924–January 12, 2007) 14 15 Everett E. Lewis, a longtime member of the Advisory Board of the Center for Labor and Employment Law, died on January 12, 2007, after a long battle with cancer. Everett was the senior partner in the firm of Lewis, Clifton & Nikolaidis and practiced union-side labor law for almost 60 years. Everett was born in New York City, and basically never left. After service in the U.S. So noted: Army Air Force in World War II, Everett returned to the City to finish school. He received his undergraduate degree from the City College of New York and a law degree from Shifting from Defined Benefit “The rationale of the national NYU School of Law where he was an editor of the law review. For decades, Everett public-private pension represented District 3 of the IUE and numerous IUE locals in the New York-New Jersey to Defined Contribution Plans area. He also served as counsel to the IUE National Pension and Welfare Funds, as system that presently well as Special Counsel to the International President. As a partner in several labor covers—and has consistently covered—just under half of the Americans law firms, Everett represented, at one time or another, workers in every conceivable who work for their living is this: working people from business managers industry—from garment workers to teamsters; nurses to police officers; insurance workers to postal employees. In addition to the Center for Labor and Employment Law, to stock clerks depend on the continuing stream of income they earn each Everett was a board member of the Workers Defense League, the Cabrini Hospice and working year to sustain themselves and their dependents; it is not in the various other charitable organizations. interest of enterprises nor socially desirable to require older Americans Everett was a passionate advocate for social justice, as well as a man of elegance and grace. He loved his work and he loved his clients. At 82, Everett would come into to sustain themselves in their later years by working until the day they the office the same as he did at 32—full of fight and ready to do battle—whether it die; and Government through Social Security and enterprises through tax- was fighting a plant closing qualified pension arrangements should therefore provide individuals a At 82, Everett would come into the in New Jersey that affected a thousand workers or arbitrating means, over a working career, of earning a retirement benefit that enables office the same as he did at 32—full of a grievance in Long Island that them to approximate their pre-retirement standard of living.” fight and ready to do battle. involved the seniority rights of (11 Lewis & Clark L. Rev. 331 (2007)) a single employee. As one of his partners, I can report that Everett —Sam Estreicher and Laurence Gold’s The Shift from Defined Benefit Plans to Defined was in the office just three weeks before his death. Having just won an arbitration for a Contribution Plans was first presented at the Center for Labor and Employment Law’s group of factory workers, he wanted to make damn sure that they received their back 59th Conference on Labor, May 18, 2006. The authors argue that the pervasive shift pay before Christmas. And they did. from DB to DC plans has resulted in a private pension system that does not meet the — DANIEL CLIFTON, LEWIS, CLIFTON & NIKOLAIDIS, P.C. traditional goals of the pension policy. They urge improvements in the regulation of both defined benefit and defined contribution plans. economics. Nevertheless, each article connects to the others because the underlying in memoriam theme of each one is the attempt to understand the micro-analytics of the workplace and, more specifically, to understand how legal regulation affects those dynamics. The affection and admiration that David Charny’s friends, colleagues, and students had for him prompted this volume. Sam Estreicher and the Center for Labor and Employment Law at NYU got the ball rolling by organizing an initial gathering approximately four years ago, at which rough ideas were discussed. Over the ensuing four years, a large subset of those ideas resulted in full articles, and it is those articles that fill this volume and provide a foundation for what will hopefully prove to be a robust inquiry into the relationship between law and the internal dynamics of the workplace. — Mitu Gulati, Duke University School of Law, AND Michael Yelnosky, Roger Williams University School of Law

Everett E. Lewis (August 12, 1924–January 12, 2007) 14 15 Everett E. Lewis, a longtime member of the Advisory Board of the Center for Labor and Employment Law, died on January 12, 2007, after a long battle with cancer. Everett was the senior partner in the firm of Lewis, Clifton & Nikolaidis and practiced union-side labor law for almost 60 years. Everett was born in New York City, and basically never left. After service in the U.S. So noted: Army Air Force in World War II, Everett returned to the City to finish school. He received his undergraduate degree from the City College of New York and a law degree from Shifting from Defined Benefit “The rationale of the national NYU School of Law where he was an editor of the law review. For decades, Everett public-private pension represented District 3 of the IUE and numerous IUE locals in the New York-New Jersey to Defined Contribution Plans area. He also served as counsel to the IUE National Pension and Welfare Funds, as system that presently well as Special Counsel to the International President. As a partner in several labor covers—and has consistently covered—just under half of the Americans law firms, Everett represented, at one time or another, workers in every conceivable who work for their living is this: working people from business managers industry—from garment workers to teamsters; nurses to police officers; insurance workers to postal employees. In addition to the Center for Labor and Employment Law, to stock clerks depend on the continuing stream of income they earn each Everett was a board member of the Workers Defense League, the Cabrini Hospice and working year to sustain themselves and their dependents; it is not in the various other charitable organizations. interest of enterprises nor socially desirable to require older Americans Everett was a passionate advocate for social justice, as well as a man of elegance and grace. He loved his work and he loved his clients. At 82, Everett would come into to sustain themselves in their later years by working until the day they the office the same as he did at 32—full of fight and ready to do battle—whether it die; and Government through Social Security and enterprises through tax- was fighting a plant closing qualified pension arrangements should therefore provide individuals a At 82, Everett would come into the in New Jersey that affected a thousand workers or arbitrating means, over a working career, of earning a retirement benefit that enables office the same as he did at 32—full of a grievance in Long Island that them to approximate their pre-retirement standard of living.” fight and ready to do battle. involved the seniority rights of (11 Lewis & Clark L. Rev. 331 (2007)) a single employee. As one of his partners, I can report that Everett —Sam Estreicher and Laurence Gold’s The Shift from Defined Benefit Plans to Defined was in the office just three weeks before his death. Having just won an arbitration for a Contribution Plans was first presented at the Center for Labor and Employment Law’s group of factory workers, he wanted to make damn sure that they received their back 59th Conference on Labor, May 18, 2006. The authors argue that the pervasive shift pay before Christmas. And they did. from DB to DC plans has resulted in a private pension system that does not meet the — DANIEL CLIFTON, LEWIS, CLIFTON & NIKOLAIDIS, P.C. traditional goals of the pension policy. They urge improvements in the regulation of both defined benefit and defined contribution plans. Judith P. Vladeck (August 1, 1923–January 8, 2007) Morris P. Glushien (October 15, 1909–May 19, 2006) There is a long list of superlatives and firsts that accompanies the name of Judith P. When I was a young law student at NYU, I went to a labor law seminar where Deputy Vladeck, whose passing last January we mark with great sadness. She was a pioneer, General Counsel of the AFL-CIO, Tom Harris, spoke. After the lecture, I asked him about a distinguished employment and labor law litigator, and an ardent and successful the opportunities for a young lawyer to work for a labor union. His response was advocate of workers’ rights. As important to her as her own legal work were her “forget it unless your father is a union president.” tireless efforts to teach others, and it is those contributions in particular that the NYU Well, my father was not a union president, but he was a business agent for a small Center for Labor and Employment gratefully acknowledges. local of the Amalgamated Clothing Workers, and, while I was in my second year, my Judith Vladeck was one of the founding voices of the NYU Annual Conference father did manage to get me a job as a law clerk, working after school hours for the on Labor, a frequent speaker and a driving force. With compelling and moving Amalgamated’s General Counsel, then Jack Sheinkman. presentations, she inspired audiences there and at countless other programs and Right before I graduated, Jack offered me a job, but as luck would have it, Jack panels. Judith Vladeck mentored law students, associates, partners, union counsel, said, “Before you say yes, you should meet the best labor lawyer in New York—the and even—dare we say it—her adversaries. She held up to all a striking example General Counsel of the ILGWU—Morris Glushien.” I met Morris and he offered me of how fierce devotion to one’s clients and to a cause is fully consistent with the my first job as a lawyer. 16 highest ethical principles, the most painstaking research, thoughtful writing and When I first met him, I knew that he had been an editor of theCornell Law Review; 17 oral advocacy. She devoted particular attention to the underrepresented in the legal that he was a former professor of law at Cornell Law School, had been the associate profession—women and lawyers of color—urging them not to be defeated by bias and general counsel of the National Labor Relations Board, and had argued many cases supporting them in their cause. before the Supreme Court. Her landmark cases are legion. In 1975, in one of the first cases challenging What I did not know was that Morris had two wonderful daughters and a discrimination in academia, she represented a female plaintiff who was denied formidable wife. I also did not know that while he was no longer a law professor, tenure at Pace University. When the university lawyers argued that the plaintiff was he could never give up teaching, and that a troublemaker who devoted too much time to challenging the system, Mrs. Vladeck he was so confident a person that ego and responded, “The only way women are tolerated is if they are supine, silent, and He was so confident a person bravado were completely absent. submissive.” In her case against the City University, Mrs. Vladeck traced salary histories that ego and bravado were As time went by, I learned why and just for more than 5,000 female faculty and professional employees and obtained a ruling how many people admired him—people like that the university had discriminated for fifteen years. completely absent. Steve Vladeck, Emil Schlesinger, Iz Katz, Bill Other prominent cases included her victory on behalf of female employees at Isaacson, Wilber Daniels, Jack Glauberman, Western Electric in one of the largest equal pay cases. Mrs. Vladeck represented Bud Mandelstam, David Dretzin, Everett Lewis, Bill Englander, Larry Joseph, David the not-for-profit organization, Nontraditional Employment for Women (“NEW”) and Levitan, Julie Topol, Max Zimny, Ed Spearer—his friends Jay Topkis, Marvin Frankel obtained a major settlement securing construction jobs for women from contractors and Jack Weinstein—and Dubinsky himself. building Battery Park City. The settlement included funding used to build the NEW During the next five years, I was transformed. He stood next to me during my headquarters and training center dedicated as the Judith P. Vladeck Center for Women. very first oral argument—before the legendary Judge Edward Weinfeld. He guided me Mrs. Vladeck received her bachelor’s degree from Hunter College in New York in 1945 through my first arbitration and my first labor board case. I sat beside him at his desk and graduated from Columbia University School of Law in 1947, a time when she was almost every day, while he edited everything I wrote, answering his probing questions told that, “Women students were taking up space that should have been reserved for about the case, listening to him hum away, chewing on a paper clip or the top of his [male] veterans.” After having three children and working as a part-time lawyer, Judith cherished black fountain pen, writing and rewriting in his beautiful penmanship. Just Vladeck in 1957 joined Vladeck, Waldman, Elias & Engelhard, a firm that she had co- when I was convinced we were done he would invariably say, “Let’s do another draft.” founded with her late husband, Stephen Vladeck, also a highly regarded labor lawyer. Little by little, I understood what he wanted me to do: To set the highest possible Mrs. Vladeck received numerous awards, including the Margaret Brent Women personal and professional standards for myself and to never rest until I could truly say: Lawyers of Achievement Award in 2002, and the Outstanding Achievement Award from “This is the very best I can do.” the Lawyers Coordinating Committee of the AFL-CIO in 1998. Together with Chief Judge While we sat there, we were occasionally interrupted by a call from his wife Ann. Judith Kaye and Dean Barbara Black, Mrs. Vladeck in 2006 was recognized by the New There, I learned the real lessons of life. I can hear him now: “Yes, Darling,” “Is there York City Bar Association as a pioneering woman attorney. Columbia Law School and anything troubling you, dear?”, “How is Ruthie?”, “How is Mina?”, “I love you.” Hunter College both honored Mrs. Vladeck as an outstanding alumna. Morris was my teacher and mentor and he was that to many, and I want to thank As students of labor and employment law, we acknowledge with gratitude her many him for all of us. accomplishments. She will be missed. —JEROME B. KAUFF, KAUFF, McCLAIN & McGUIRE — DEBRA RASKIN, VLADECK, WALDMAN, ELIAS & ENGELHARD, P.C. Judith P. Vladeck (August 1, 1923–January 8, 2007) Morris P. Glushien (October 15, 1909–May 19, 2006) There is a long list of superlatives and firsts that accompanies the name of Judith P. When I was a young law student at NYU, I went to a labor law seminar where Deputy Vladeck, whose passing last January we mark with great sadness. She was a pioneer, General Counsel of the AFL-CIO, Tom Harris, spoke. After the lecture, I asked him about a distinguished employment and labor law litigator, and an ardent and successful the opportunities for a young lawyer to work for a labor union. His response was advocate of workers’ rights. As important to her as her own legal work were her “forget it unless your father is a union president.” tireless efforts to teach others, and it is those contributions in particular that the NYU Well, my father was not a union president, but he was a business agent for a small Center for Labor and Employment gratefully acknowledges. local of the Amalgamated Clothing Workers, and, while I was in my second year, my Judith Vladeck was one of the founding voices of the NYU Annual Conference father did manage to get me a job as a law clerk, working after school hours for the on Labor, a frequent speaker and a driving force. With compelling and moving Amalgamated’s General Counsel, then Jack Sheinkman. presentations, she inspired audiences there and at countless other programs and Right before I graduated, Jack offered me a job, but as luck would have it, Jack panels. Judith Vladeck mentored law students, associates, partners, union counsel, said, “Before you say yes, you should meet the best labor lawyer in New York—the and even—dare we say it—her adversaries. She held up to all a striking example General Counsel of the ILGWU—Morris Glushien.” I met Morris and he offered me of how fierce devotion to one’s clients and to a cause is fully consistent with the my first job as a lawyer. 16 highest ethical principles, the most painstaking research, thoughtful writing and When I first met him, I knew that he had been an editor of theCornell Law Review; 17 oral advocacy. She devoted particular attention to the underrepresented in the legal that he was a former professor of law at Cornell Law School, had been the associate profession—women and lawyers of color—urging them not to be defeated by bias and general counsel of the National Labor Relations Board, and had argued many cases supporting them in their cause. before the Supreme Court. Her landmark cases are legion. In 1975, in one of the first cases challenging What I did not know was that Morris had two wonderful daughters and a discrimination in academia, she represented a female plaintiff who was denied formidable wife. I also did not know that while he was no longer a law professor, tenure at Pace University. When the university lawyers argued that the plaintiff was he could never give up teaching, and that a troublemaker who devoted too much time to challenging the system, Mrs. Vladeck he was so confident a person that ego and responded, “The only way women are tolerated is if they are supine, silent, and He was so confident a person bravado were completely absent. submissive.” In her case against the City University, Mrs. Vladeck traced salary histories that ego and bravado were As time went by, I learned why and just for more than 5,000 female faculty and professional employees and obtained a ruling how many people admired him—people like that the university had discriminated for fifteen years. completely absent. Steve Vladeck, Emil Schlesinger, Iz Katz, Bill Other prominent cases included her victory on behalf of female employees at Isaacson, Wilber Daniels, Jack Glauberman, Western Electric in one of the largest equal pay cases. Mrs. Vladeck represented Bud Mandelstam, David Dretzin, Everett Lewis, Bill Englander, Larry Joseph, David the not-for-profit organization, Nontraditional Employment for Women (“NEW”) and Levitan, Julie Topol, Max Zimny, Ed Spearer—his friends Jay Topkis, Marvin Frankel obtained a major settlement securing construction jobs for women from contractors and Jack Weinstein—and Dubinsky himself. building Battery Park City. The settlement included funding used to build the NEW During the next five years, I was transformed. He stood next to me during my headquarters and training center dedicated as the Judith P. Vladeck Center for Women. very first oral argument—before the legendary Judge Edward Weinfeld. He guided me Mrs. Vladeck received her bachelor’s degree from Hunter College in New York in 1945 through my first arbitration and my first labor board case. I sat beside him at his desk and graduated from Columbia University School of Law in 1947, a time when she was almost every day, while he edited everything I wrote, answering his probing questions told that, “Women students were taking up space that should have been reserved for about the case, listening to him hum away, chewing on a paper clip or the top of his [male] veterans.” After having three children and working as a part-time lawyer, Judith cherished black fountain pen, writing and rewriting in his beautiful penmanship. Just Vladeck in 1957 joined Vladeck, Waldman, Elias & Engelhard, a firm that she had co- when I was convinced we were done he would invariably say, “Let’s do another draft.” founded with her late husband, Stephen Vladeck, also a highly regarded labor lawyer. Little by little, I understood what he wanted me to do: To set the highest possible Mrs. Vladeck received numerous awards, including the Margaret Brent Women personal and professional standards for myself and to never rest until I could truly say: Lawyers of Achievement Award in 2002, and the Outstanding Achievement Award from “This is the very best I can do.” the Lawyers Coordinating Committee of the AFL-CIO in 1998. Together with Chief Judge While we sat there, we were occasionally interrupted by a call from his wife Ann. Judith Kaye and Dean Barbara Black, Mrs. Vladeck in 2006 was recognized by the New There, I learned the real lessons of life. I can hear him now: “Yes, Darling,” “Is there York City Bar Association as a pioneering woman attorney. Columbia Law School and anything troubling you, dear?”, “How is Ruthie?”, “How is Mina?”, “I love you.” Hunter College both honored Mrs. Vladeck as an outstanding alumna. Morris was my teacher and mentor and he was that to many, and I want to thank As students of labor and employment law, we acknowledge with gratitude her many him for all of us. accomplishments. She will be missed. —JEROME B. KAUFF, KAUFF, McCLAIN & McGUIRE — DEBRA RASKIN, VLADECK, WALDMAN, ELIAS & ENGELHARD, P.C. CENTER FOR LABOR AND EMPLOYMENT LAW Frances Milberg RECENT GRADUATE Steven B. Hantler Professor Seth Harris The Segal Company ADVISOR GROUP Chrysler New York Law School

ADVISORY BOARD Wayne N. Outten Hon. Peter J. Hurtgen Professor Jeffrey M. Hirsch John F. Fullerton III Outten & Golden, LLP Stop & Shop Supermarket The University of Tennessee Sullivan & Cromwell, LLP Companies College of Law John-Edward Alley Mark E. Brossman Mindy G. Farber Willis J. Goldsmith Andrew Peterson Ford & Harrison, LLP Schulte Roth & Zabel, LLP Farber Legal, LLC Jones Day, LLP Raymond J. Lohier Jr. Jackson Lewis, LLP Hon. Magdalena G. Jacobsen Professor Sharon Margalioth U. S. Attorney’s Office (S.D.N.Y) Horizon Partners Radzyner School of Law, Marshall B. Babson Daniel Clifton Zachary D. Fasman Jerome B. Kauff Mark Risk The Interdisciplinary Center Hughes Hubbard & Reed, LLP Lewis, Clifton & Nikolaidis, P.C. Paul, Hastings, Janofsky & Kauff, McClain & McGuire, LLP Preston L. Pugh Mark Risk, P.C. Hon. Reginald E. Jones Herzliya Walker, LLP GE Healthcare DLA Piper Rudnick Gray Cary L. Robert Batterman Michael Delikat Meryl R. Kaynard Theodore O. Rogers Jr. US, LLP Professor Yoram Margalioth Proskauer Rose, LLP Orrick, Herrington & Sutcliffe, Eugene S. Friedman JPMorgan Chase & Co. Samuel S. Shaulson Sullivan & Cromwell, LLP Tel Aviv University School of Law LLP Friedman & Wolf Morgan Lewis & Bockius, LLP Patricia Langer Michael I. Bernstein Jeffrey S. Klein Susan P. Serota Lifetime Television Professor Andrew P. Morriss Bond, Schoeneck & King, PLLC Mark S. Dichter Joseph D. Garrison Weil, Gotshal & Manges, LLP Justin M. Swartz Pillsbury Winthrop Shaw University of Illinois Law School Morgan Lewis & Bockius, LLP Garrison, Levin-Epstein, Chimes Outten & Golden, LLP Pittman, LLP Henry D. Lederman 18 Frederick D. Braid & Richardson, P.C. Jeffrey I. Kohn 19 Littler Mendelson, P.C. Professor Jonathan Nash Holland & Knight, LLP Eugene G. Eisner O’Melveny & Myers, LLP Ronald H. Shechtman ASSOCIATE Tulane Law School Eisner & Associates, P.C. Laurence Gold Pryor Cashman, LLP ADVISORS Robert Lewis Ethan A. Brecher Bredhoff & Kaiser, PLLC Donna Malin JAMS Professor Dan O’Gorman Liddle & Robinson, LLP Johnson & Johnson Dean L. Silverberg Hon. Alvin P. Blyer University of Central Florida Epstein, Becker & Green, P.C. National Labor Relations Board Elizabeth W. Millard Barry University School of Law Formerly Credit Suisse Darnley D. Stewart Hon. Wayne Gold First Boston Professor Paul Secunda Welcome Bernstein Litowitz Berger & National Labor Relations Board Vance Center—Association of University of Mississippi School NEW MEMBERS Grossman, LLP the Bar of the City of New York of Law Hon. Celeste Mattina A plaintiff-side employment lawyer with Bernstein NEW EX OFFICIO MEMBERS INCLUDE: Kenneth P. Thompson National Labor Relations Board David J. Reilly Professor David Sherwyn Thompson Wigdor & Gilly, LLP Formerly Medco Health Cornell University School of Hotel Litowitz Berger and Grossman, Darnley D. Stewart Terrance Nolan Solutions, Inc. Administration has spoken at numerous NYU Conferences, and Trial Chairman of the National Labor Relations Board Scott J. Wenner New York University Lawyers for Public Justice named her a Finalist for Hon. Robert Battista was appointed by President Schnader Harrison Segal & Lewis, Barbara Sellinger Professor Susan J. Stabile “Trial Lawyer Of The Year” for her work on the GMAC Bush and confirmed by the Senate in 2002. LLP EMERITUS Honeywell International, Inc. St. Thomas University School of Law Consumer Finance Discrimination Litigation. Robert S. Whitman Daniel L. Berger Hon. Daniel Silverman Confirmed by the Senate in 2006,Hon. Ronald Seyfarth Shaw, LLP Skadden, Arps, Slate, Meagher & Professor Michael Stein Former NLRB member Hon. Marshall B. Babson now Meisburg is General Counsel of the National Labor Hon. Ida Castro Flom, LLP William & Mary School of Law works with Hughes Hubbard & Reed and is committee Relations Board. Pearl Zuchlewski Kraus & Zuchlewski, LLP Eric Taussig Professor Michael J. Yelnosky member for the Practice and Procedure Committee G. Peter Clark Kauff, McClain & McGuire Altria, formerly Philip Morris Roger Williams University School of the Labor and Employment Law Section of the In November 2003, Commissioner Stuart J. EX OFFICIO of Law American Bar Association. Ishimaru was sworn in as a commissioner of the U.S. Ernest Allen Cohen RESEARCH FELLOWS Equal Employment Opportunity Commission for a Hon. Robert Battista Formerly Masters, Mates & Pilots, NYU SCHOOL OF ILA, and AFL-CIO Member of the American Bar Association’s Committee term expiring July 1, 2007. National Labor Relations Board Professor John Addison LAW FACULTY University of South Carolina on Federal Labor Standards Legislation, Michael I. Michael Curley Jonathan P. Hiatt University of Birmingham, U.K. Professor Paulette G. Caldwell Bernstein is a distinguished management-side Regional director of the NLRB in Baltimore, Hon. AFL-CIO Morgan, Lewis & Bockius, LLP counsel at Bond, Schoeneck & King. Wayne Gold joins the Center’s Advisory Board as an Professor Matthew Bodie Professor Cynthia Estlund Hon. Frederick Feinstein associate advisor. Hon. Stuart J. Ishimaru St. Louis University School of Law University of Maryland A partner at Seyfarth Shaw since December 2006, in U.S. Equal Employment Professor Samuel Estreicher Opportunity Commission Professor Joan Flynn 2006, Robert S. Whitman received a Cornerstone Hon. Sarah M. Fox Cleveland-Marshall College of Professor Deborah C. Malamud Bredhoff & Kaiser, PLLC Award from Lawyers Alliance for New York in Hon. Wilma B. Liebman Law, Cleveland State University recognition of his pro bono work on behalf of not-for- National Labor Relations Board Professor Laura Sager Professor William Gould IV Professor G. Mitu Gulati profit organizations throughout New York City. Stanford University School of Law Hon. Ronald Meisburg Duke University School of Law National Labor Relations Board CENTER FOR LABOR AND EMPLOYMENT LAW Frances Milberg RECENT GRADUATE Steven B. Hantler Professor Seth Harris The Segal Company ADVISOR GROUP Chrysler New York Law School

ADVISORY BOARD Wayne N. Outten Hon. Peter J. Hurtgen Professor Jeffrey M. Hirsch John F. Fullerton III Outten & Golden, LLP Stop & Shop Supermarket The University of Tennessee Sullivan & Cromwell, LLP Companies College of Law John-Edward Alley Mark E. Brossman Mindy G. Farber Willis J. Goldsmith Andrew Peterson Ford & Harrison, LLP Schulte Roth & Zabel, LLP Farber Legal, LLC Jones Day, LLP Raymond J. Lohier Jr. Jackson Lewis, LLP Hon. Magdalena G. Jacobsen Professor Sharon Margalioth U. S. Attorney’s Office (S.D.N.Y) Horizon Partners Radzyner School of Law, Marshall B. Babson Daniel Clifton Zachary D. Fasman Jerome B. Kauff Mark Risk The Interdisciplinary Center Hughes Hubbard & Reed, LLP Lewis, Clifton & Nikolaidis, P.C. Paul, Hastings, Janofsky & Kauff, McClain & McGuire, LLP Preston L. Pugh Mark Risk, P.C. Hon. Reginald E. Jones Herzliya Walker, LLP GE Healthcare DLA Piper Rudnick Gray Cary L. Robert Batterman Michael Delikat Meryl R. Kaynard Theodore O. Rogers Jr. US, LLP Professor Yoram Margalioth Proskauer Rose, LLP Orrick, Herrington & Sutcliffe, Eugene S. Friedman JPMorgan Chase & Co. Samuel S. Shaulson Sullivan & Cromwell, LLP Tel Aviv University School of Law LLP Friedman & Wolf Morgan Lewis & Bockius, LLP Patricia Langer Michael I. Bernstein Jeffrey S. Klein Susan P. Serota Lifetime Television Professor Andrew P. Morriss Bond, Schoeneck & King, PLLC Mark S. Dichter Joseph D. Garrison Weil, Gotshal & Manges, LLP Justin M. Swartz Pillsbury Winthrop Shaw University of Illinois Law School Morgan Lewis & Bockius, LLP Garrison, Levin-Epstein, Chimes Outten & Golden, LLP Pittman, LLP Henry D. Lederman 18 Frederick D. Braid & Richardson, P.C. Jeffrey I. Kohn 19 Littler Mendelson, P.C. Professor Jonathan Nash Holland & Knight, LLP Eugene G. Eisner O’Melveny & Myers, LLP Ronald H. Shechtman ASSOCIATE Tulane Law School Eisner & Associates, P.C. Laurence Gold Pryor Cashman, LLP ADVISORS Robert Lewis Ethan A. Brecher Bredhoff & Kaiser, PLLC Donna Malin JAMS Professor Dan O’Gorman Liddle & Robinson, LLP Johnson & Johnson Dean L. Silverberg Hon. Alvin P. Blyer University of Central Florida Epstein, Becker & Green, P.C. National Labor Relations Board Elizabeth W. Millard Barry University School of Law Formerly Credit Suisse Darnley D. Stewart Hon. Wayne Gold First Boston Professor Paul Secunda Welcome Bernstein Litowitz Berger & National Labor Relations Board Vance Center—Association of University of Mississippi School NEW MEMBERS Grossman, LLP the Bar of the City of New York of Law Hon. Celeste Mattina A plaintiff-side employment lawyer with Bernstein NEW EX OFFICIO MEMBERS INCLUDE: Kenneth P. Thompson National Labor Relations Board David J. Reilly Professor David Sherwyn Thompson Wigdor & Gilly, LLP Formerly Medco Health Cornell University School of Hotel Litowitz Berger and Grossman, Darnley D. Stewart Terrance Nolan Solutions, Inc. Administration has spoken at numerous NYU Conferences, and Trial Chairman of the National Labor Relations Board Scott J. Wenner New York University Lawyers for Public Justice named her a Finalist for Hon. Robert Battista was appointed by President Schnader Harrison Segal & Lewis, Barbara Sellinger Professor Susan J. Stabile “Trial Lawyer Of The Year” for her work on the GMAC Bush and confirmed by the Senate in 2002. LLP EMERITUS Honeywell International, Inc. St. Thomas University School of Law Consumer Finance Discrimination Litigation. Robert S. Whitman Daniel L. Berger Hon. Daniel Silverman Confirmed by the Senate in 2006,Hon. Ronald Seyfarth Shaw, LLP Skadden, Arps, Slate, Meagher & Professor Michael Stein Former NLRB member Hon. Marshall B. Babson now Meisburg is General Counsel of the National Labor Hon. Ida Castro Flom, LLP William & Mary School of Law works with Hughes Hubbard & Reed and is committee Relations Board. Pearl Zuchlewski Kraus & Zuchlewski, LLP Eric Taussig Professor Michael J. Yelnosky member for the Practice and Procedure Committee G. Peter Clark Kauff, McClain & McGuire Altria, formerly Philip Morris Roger Williams University School of the Labor and Employment Law Section of the In November 2003, Commissioner Stuart J. EX OFFICIO of Law American Bar Association. Ishimaru was sworn in as a commissioner of the U.S. Ernest Allen Cohen RESEARCH FELLOWS Equal Employment Opportunity Commission for a Hon. Robert Battista Formerly Masters, Mates & Pilots, NYU SCHOOL OF ILA, and AFL-CIO Member of the American Bar Association’s Committee term expiring July 1, 2007. National Labor Relations Board Professor John Addison LAW FACULTY University of South Carolina on Federal Labor Standards Legislation, Michael I. Michael Curley Jonathan P. Hiatt University of Birmingham, U.K. Professor Paulette G. Caldwell Bernstein is a distinguished management-side Regional director of the NLRB in Baltimore, Hon. AFL-CIO Morgan, Lewis & Bockius, LLP counsel at Bond, Schoeneck & King. Wayne Gold joins the Center’s Advisory Board as an Professor Matthew Bodie Professor Cynthia Estlund Hon. Frederick Feinstein associate advisor. Hon. Stuart J. Ishimaru St. Louis University School of Law University of Maryland A partner at Seyfarth Shaw since December 2006, in U.S. Equal Employment Professor Samuel Estreicher Opportunity Commission Professor Joan Flynn 2006, Robert S. Whitman received a Cornerstone Hon. Sarah M. Fox Cleveland-Marshall College of Professor Deborah C. Malamud Bredhoff & Kaiser, PLLC Award from Lawyers Alliance for New York in Hon. Wilma B. Liebman Law, Cleveland State University recognition of his pro bono work on behalf of not-for- National Labor Relations Board Professor Laura Sager Professor William Gould IV Professor G. Mitu Gulati profit organizations throughout New York City. Stanford University School of Law Hon. Ronald Meisburg Duke University School of Law National Labor Relations Board Beginning August 2007, Dan O’Gorman will start as an Robert S. Whitman of Seyfarth Shaw authored an COMMUNITY NEWS assistant professor at the University of Central Florida. “Outside Counsel” column for the New York Law Journal He will teach Contracts, Employment Discrimination on June 20 entitled “Ex Parte Contacts With an Adversary’s Law, and Law and Society in the Department of Criminal Former Employees.” MARK BROSSMAN (Schulte Roth & Zabel) is co- In January 2007, Eugene S. Friedman (Friedman Justice and Legal Studies. He will also serve as “Of recipient of the 2008 Judge William Groat Award. Cornell & Wolf) was appointed to Governor Eliot Spitzer’s Counsel” to Ford & Harrison. Pearl Zuchlewski (Kraus & Zuchlewski) is member of University’s School of Industrial and Labor Relations Transition Team. the NASD National Arbitration and Mediation Committee annually presents the Groat Award to an ILR graduate who Ronald H. Shechtman became managing partner and served on the NASD committee that drafted the Code demonstrates exceptional professional accomplishment On July 1, 2007, Peter J. Hurtgen, former partner at of Pryor Cashman (formerly Pryor, Cashman, Sherman & of Arbitration Rules governing statutory discrimination in the field of industrial and labor relations and has done Morgan Lewis & Bockius, joined Stop & Shop Supermarket Flynn) as of January 1, 2007. claims. outstanding service to the school. The Award is named Companies, a daughter company of Royal Ahold N.V., an for William Groat, the New York State Supreme Court international supermarket operator based in Amsterdam, Justin M. Swartz (Outten & Golden) was promoted to justice instrumental in founding the School of Industrial The Netherlands. partner in October 2006. and Labor Relations and drafting its charter. This year’s other co-recipient is Bob Molofsky (general counsel at the On March 3, 2007, Meryl R. Kaynard (senior vice 20 Amalgamated Transit Union). president and associate general counsel at JPMorgan Chase 21 & Co.) was appointed to the New York City Commission on Con ratulations Women’s Issues. ERNEST ALLEN COHEN (former general counsel for Masters, Mates & Pilots, ILA, and AFL-CIO) now serves on Jeanne Mirer joined Eugene Eisner’s firm, Eisner to our Advisory Board Members who are also the Board of Directors of AHL Shipping Company and AHL & Associates, P.C. She has been a partner in a prominent Holdings Inc., an employee-owned oil tanker company Fellows, Honorary Fellows and Emeritus Fellows of plaintiff’s law firm in Detroit for over 20 years and has just based in San Antonio, Texas. Ernest Cohen has retired relocated to the New York metropolitan area. the College of Labor and Employment Lawyers from the practice of law and will be a Study Group Leader at the Osher Lifelong Learning Institute at the University of Arizona, co-leading a course this fall on Slavery During Marshall B. Babson Jonathan P. Hiatt the American Revolution, and will co-lead a course in the Hughes Hubbard & Reed AFL-CIO spring on Great Trials of the Centuries. Hon. Robert Battista Peter J. Hurtgen Contact the Center National Labor Relations Board The Stop & Shop Supermarket Companies Michael I. Bernstein Jerome B. Kauff Bond, Schoeneck & King Kauff, McClain & McGuire Michael Delikat Jeffrey I. Kohn Samuel Estreicher Orrick, Herrington & Sutcliffe O’Melveny & Myers Dwight D. Opperman Professor of Law Director of the Center for Labor and Employment Law Mark Dichter Robert Lewis [email protected] Morgan Lewis & Bockius JAMS (212) 998-6226 Samuel Estreicher Hon. Wilma B. Liebman Ben Eisenman Dwight D. Opperman Professor of Law, National Labor Relations Board NYU School of Law Center for Labor and Employment Law Manager of Centers Hon. Ronald Meisburg New York University School of Law [email protected] Jones Day National Labor Relations Board 40 Washington Square South, Room B09C (212) 998-6242 Zachary D. Fasman New York, NY 10012 Wayne N. Outten Paul, Hastings, Janofsky & Walker Nora Strecker Outten & Golden Newsletter Editor; Assistant to Ben Eisenman Phone: (212) 998-6242 Joseph D. Garrison Fax: (212) 995-4036 Student of Labor Economics Theodore O. Rogers Jr. Garrison, Levin-Epstein Chimes & Richardson, P.C. [email protected] Sullivan & Cromwell Visit us at www.law.nyu.edu/centers/labor (212) 992-8820 Willis J. Goldsmith Pearl Zuchlewski Jones Day Kraus & Zuchlewski

News Community Beginning August 2007, Dan O’Gorman will start as an Robert S. Whitman of Seyfarth Shaw authored an COMMUNITY NEWS assistant professor at the University of Central Florida. “Outside Counsel” column for the New York Law Journal He will teach Contracts, Employment Discrimination on June 20 entitled “Ex Parte Contacts With an Adversary’s Law, and Law and Society in the Department of Criminal Former Employees.” MARK BROSSMAN (Schulte Roth & Zabel) is co- In January 2007, Eugene S. Friedman (Friedman Justice and Legal Studies. He will also serve as “Of recipient of the 2008 Judge William Groat Award. Cornell & Wolf) was appointed to Governor Eliot Spitzer’s Counsel” to Ford & Harrison. Pearl Zuchlewski (Kraus & Zuchlewski) is member of University’s School of Industrial and Labor Relations Transition Team. the NASD National Arbitration and Mediation Committee annually presents the Groat Award to an ILR graduate who Ronald H. Shechtman became managing partner and served on the NASD committee that drafted the Code demonstrates exceptional professional accomplishment On July 1, 2007, Peter J. Hurtgen, former partner at of Pryor Cashman (formerly Pryor, Cashman, Sherman & of Arbitration Rules governing statutory discrimination in the field of industrial and labor relations and has done Morgan Lewis & Bockius, joined Stop & Shop Supermarket Flynn) as of January 1, 2007. claims. outstanding service to the school. The Award is named Companies, a daughter company of Royal Ahold N.V., an for William Groat, the New York State Supreme Court international supermarket operator based in Amsterdam, Justin M. Swartz (Outten & Golden) was promoted to justice instrumental in founding the School of Industrial The Netherlands. partner in October 2006. and Labor Relations and drafting its charter. This year’s other co-recipient is Bob Molofsky (general counsel at the On March 3, 2007, Meryl R. Kaynard (senior vice 20 Amalgamated Transit Union). president and associate general counsel at JPMorgan Chase 21 & Co.) was appointed to the New York City Commission on Con ratulations Women’s Issues. ERNEST ALLEN COHEN (former general counsel for Masters, Mates & Pilots, ILA, and AFL-CIO) now serves on Jeanne Mirer joined Eugene Eisner’s firm, Eisner to our Advisory Board Members who are also the Board of Directors of AHL Shipping Company and AHL & Associates, P.C. She has been a partner in a prominent Holdings Inc., an employee-owned oil tanker company Fellows, Honorary Fellows and Emeritus Fellows of plaintiff’s law firm in Detroit for over 20 years and has just based in San Antonio, Texas. Ernest Cohen has retired relocated to the New York metropolitan area. the College of Labor and Employment Lawyers from the practice of law and will be a Study Group Leader at the Osher Lifelong Learning Institute at the University of Arizona, co-leading a course this fall on Slavery During Marshall B. Babson Jonathan P. Hiatt the American Revolution, and will co-lead a course in the Hughes Hubbard & Reed AFL-CIO spring on Great Trials of the Centuries. Hon. Robert Battista Peter J. Hurtgen Contact the Center National Labor Relations Board The Stop & Shop Supermarket Companies Michael I. Bernstein Jerome B. Kauff Bond, Schoeneck & King Kauff, McClain & McGuire Michael Delikat Jeffrey I. Kohn Samuel Estreicher Orrick, Herrington & Sutcliffe O’Melveny & Myers Dwight D. Opperman Professor of Law Director of the Center for Labor and Employment Law Mark Dichter Robert Lewis [email protected] Morgan Lewis & Bockius JAMS (212) 998-6226 Samuel Estreicher Hon. Wilma B. Liebman Ben Eisenman Dwight D. Opperman Professor of Law, National Labor Relations Board NYU School of Law Center for Labor and Employment Law Manager of Centers Hon. Ronald Meisburg New York University School of Law [email protected] Jones Day National Labor Relations Board 40 Washington Square South, Room B09C (212) 998-6242 Zachary D. Fasman New York, NY 10012 Wayne N. Outten Paul, Hastings, Janofsky & Walker Nora Strecker Outten & Golden Newsletter Editor; Assistant to Ben Eisenman Phone: (212) 998-6242 Joseph D. Garrison Fax: (212) 995-4036 Student of Labor Economics Theodore O. Rogers Jr. Garrison, Levin-Epstein Chimes & Richardson, P.C. [email protected] Sullivan & Cromwell Visit us at www.law.nyu.edu/centers/labor (212) 992-8820 Willis J. Goldsmith Pearl Zuchlewski Jones Day Kraus & Zuchlewski

News Community Con ratulations to our Board Members—named New York’s Best Lawyers of 2007 by Best Lawyers in America, 2007

Marshall B. Babson Eugene S. Friedman Hughes Hubbard & Reed Friedman & Wolf Yes L. Robert Batterman John F. Fullerton III I would like to make a contribution to the Center. Proskauer Rose Sullivan & Cromwell Michael I. Bernstein Willis J. Goldsmith DATE Bond, Schoeneck & King Jones Day 22 23 Frederick D. Braid Jerome B. Kauff NAME Holland & Knight Kauff McClain & McGuire Michael Curley Jeffrey S. Klein ORGANIZATION Morgan Lewis & Bockius Weil, Gotshal & Manges

Michael Delikat Wayne N. Outten ADDRESS Orrick, Herrington & Sutcliffe Outten & Golden

Eugene G. Eisner Theodore O. Rogers Jr. TELEPHONE FAX Eisner & Associates, P.C. Sullivan & Cromwell

Zachary D. Fasman Pearl Zuchlewski, Esq. EMAIL Paul, Hastings, Janofsky & Walker Kraus & Zuchlewski

Enclosed is a contribution of $ made payable to NYU Center for Labor & Employment Law

Check American Express Visa MasterCard Other:

NAME ON CREDIT CARD

CREDIT CARD NUMBER EXPIRATION DATE This newsletter is the premier platform for our community. SIGNATURE Please be sure to send the Center your news updates—anything from relocations to career changes and recent achievements. Please detach form and mail with payment to: Center for Labor and Employment Law Send your news updates to Ben Eisenman at (212) 998-6242 or Attn: Ben Eisenman, Manager of Centers New York University School of Law [email protected], or directly to his assistant Nora Strecker 40 Washington Square South, Room B09C at [email protected] or (212) 992-8820. New York, NY 10012 Con ratulations to our Board Members—named New York’s Best Lawyers of 2007 by Best Lawyers in America, 2007

Marshall B. Babson Eugene S. Friedman Hughes Hubbard & Reed Friedman & Wolf Yes L. Robert Batterman John F. Fullerton III I would like to make a contribution to the Center. Proskauer Rose Sullivan & Cromwell Michael I. Bernstein Willis J. Goldsmith DATE Bond, Schoeneck & King Jones Day 22 23 Frederick D. Braid Jerome B. Kauff NAME Holland & Knight Kauff McClain & McGuire Michael Curley Jeffrey S. Klein ORGANIZATION Morgan Lewis & Bockius Weil, Gotshal & Manges

Michael Delikat Wayne N. Outten ADDRESS Orrick, Herrington & Sutcliffe Outten & Golden

Eugene G. Eisner Theodore O. Rogers Jr. TELEPHONE FAX Eisner & Associates, P.C. Sullivan & Cromwell

Zachary D. Fasman Pearl Zuchlewski, Esq. EMAIL Paul, Hastings, Janofsky & Walker Kraus & Zuchlewski

Enclosed is a contribution of $ made payable to NYU Center for Labor & Employment Law

Check American Express Visa MasterCard Other:

NAME ON CREDIT CARD

CREDIT CARD NUMBER EXPIRATION DATE This newsletter is the premier platform for our community. SIGNATURE Please be sure to send the Center your news updates—anything from relocations to career changes and recent achievements. Please detach form and mail with payment to: Center for Labor and Employment Law Send your news updates to Ben Eisenman at (212) 998-6242 or Attn: Ben Eisenman, Manager of Centers New York University School of Law [email protected], or directly to his assistant Nora Strecker 40 Washington Square South, Room B09C at [email protected] or (212) 992-8820. New York, NY 10012 THE CENTER FOR LABOR AND EMPLOYMENT LAW was created in 1996 to establish a nonpartisan forum for debate and study of the policy and legal issues involving the employment relationship. The Center has four major objectives:

To promote workplace efficiency and productivity, while at the same time 1 recognizing the need for justice and safety in the workplace and respecting the dignity of work and employees

To promote independent, nonpartisan research that would improve understanding 2 of employment issues generally, with particular emphasis on the connections between human resources decisions and organizational performance

To sponsor a graduate program for the next generation of law teachers and leading 3 practitioners in the field To provide a forum for bringing together leaders from unions, employees and 4 companies, as well as representatives of plaintiff and defense perspectives, for informal discussions exploring new frameworks for labor-management relations, workplace justice, fair and efficient resolution of employment disputes and representation in the workplace

Center for Labor and Employment Law New York University School of Law 40 Washington Square South, Room B09C New York, NY 10012

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