Inside...Upcoming 68th NYUAnnual Conference on Labor 1

New EEOC ChairJenny Yang (NYU ‘96) 2

Lee Seham (NYU ‘87):Varied Clientele 5

Larry Cary, Noted Unionand Benefits Lawyer 7

Harper, Estreicher & Griffith, LaborLaw 8th ed: Cases, Matierals and Problemsby Professor Katie Griffith (NYU ‘04) 8

‘Depoliticizing’ the National LaborRelations Board: Administrative Stepsby Professor Samuel Estreicher 9

Culture Corner: ‘Spaghetti Westernsasa Distinct Genre”by Alia Haddad 14

Labor Center News 15

A Labor and Employment Lawyerin the Air Forceby Colonel Martin T. Mitchell 16

Meet our New Board Members 18

Advisory Board 21

NYU Labor& Employment Law

Issue 10 · Spring 2015

The NYU Center for Labor and Employment Law ispleased to announce the NYU 68th Annual Confer-ence on Labor, which will be held at NYU School ofLaw on Thursday-Friday, June 4-5, 2015. The 2015Conference will explore central issues of labor andemployment law – Who is an employee? and Whois the employer? The NLRB General Counsel’s com-plaints against McDonald’s raises the question ofwhen are firms “joint employers” of the samegroup of workers, which also arises under the civilrights law. Other cutting-edge issues include:● When can companies classify service pro-

viders as independent contractors? In viewof the Northwestern Univ. case, when muststudent athletes be treated as employees?

● When must owners like partners be classi-fied as employees?

● Can individuals work without pay as in-terns or volunteers?

● What new forms of worker organizationare cropping up?

● What is the “$15 minimum wage” cam-paign about?

● How are these issues treated abroad?

Upcoming 68th AnnualNYU Conference on Labor

Speakers willinclude:

Hon. Richard Griffin,General Counsel, NLRB

Hon. Kent Hirozawa, Member, NLRB

Hon. Philip Miscimarra,Member, NLRB

Hon. David Weil, Administrator, Wage-Hour Div. Dept. of Labor

N E W S L E T T E Rof the NYU Center for Labor

and Employment Law

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What has your road to the EEOC been like?Although I have spent my career in a variety of settings in the private,

government, and nonprofit sectors, my focus has been the same— to advancefairness and equality in the workplace. After graduating from NYU School of Lawand completing a clerkship, I worked at the National Employment Law Projectthrough a NYU Community Service Scholarship Fund. There, I assisted garmentworkers in addressing some of the persistent problems they faced, such as overtimeviolations and repetitive stress injuries. By working to understand the root causes ofthese challenges, we identified strategies, including impact litigation, public educa-tion, and policy initiatives, to address the systemic problems in the industry.

After that, I made my way to Washington D.C., where I worked as a SeniorTrial Attorney with the U.S. Department of Justice’s Civil Rights Division for aboutfive years. I had the opportunity to develop my investigative and litigation skills, working on individual and pattern orpractice cases to enforce Title VII in state and local government workplaces.

I then spent a decade in private practice, as partner of Cohen Milstein Sellers & Toll PLLC. I represented em-ployees across the country in complex civil rights and employment actions. I saw how vital private enforcement is to ful-filling the promise of our civil rights laws. As chair of the firm's hiring and diversity committee, I also gained animportant perspective on the challenges employers confront in making hiring and other personnel decisions.

Each of these past work experiences has provided a valuable perspective for me at the EEOC. What I have foundmost rewarding about our agency’s work is to see the impact our guidance, enforcement, and education efforts have inpromoting greater compliance. Most employers aspire to comply with our anti-discrimination laws. The more informa-tion we can provide on how to interpret and apply the law, as well as identify best practices, the more we can encour-age employers to prevent discrimination from occurring.

Was making your way to the EEOC always your goal, or did it change throughout the courseof your career?Throughout my career I have seen the pivotal role that the EEOC plays in the enforcement of our antidisc-

rimination laws, but I did not necessarily set out to join the EEOC. In private practice, I filed charges with the EEOCon behalf of my clients and also worked alongside the agency in related cases. At DOJ, I litigated charges against pub-lic employers that the EEOC had investigated and referred to us. Although I did not have any master plan on where Ithought I’d end up, now that I am here at the EEOC, I can’t imagine a place I’d rather be.

How does your role at the EEOC compare to what you thought the role would be?I now have the responsibility for the operation of the entire agency. One of my priorities for our own work-

place is to ensure that we are a model employer. We know that as the EEOC, we must walk the walk and not justtalk the talk. We are not only the agency charged with enforcing the nation’s anti-discrimination laws, but we arealso an employer to over 2,200 people located in 53 offices around the country. It is a priority for me to ensurethat we are recognizing the contributions of our people and ensuring opportunities for training, advancement, andmeaningful work.

One of my most important jobs is communicating. That includes fostering communication internally sothat we can better collaborate for greater impact in achieving our common mission. The people who make upThis agency have tremendous insight into how we can continue to do our work better, and to make our own

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New EEOC Chair Jenny Yang (NYU ‘96)On Setember 1, 2014, President Barack Obama named Jenny Yang Chair of the USEqual Employment Opportunity Commission (EEOC). A 1996 graduate of NYULaw School, she has devoted her career to enforcing civil rights laws and ensuringfairness in the workplace. She has experience working in government, the privatesector, and non-profit organizations.

Jenny Yang, Chair of EEOC

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workplace better. A key takeaway is understanding how vital it is to open the lines of communication across ouragency, to truly listen to employees and then implement these ideas.

It is also critical for us to strengthen our external communication so that we share our work with thosein the public we serve and hear from those in the employer and worker communities about the issues that aremost important to them. We are taking advantage of social media to do this, and I’ve launched a series of Chairmessages on our public website and Facebook page, the first of which focused on the importance of our media-tion and conciliation efforts.

What do you hope to accomplish during your tenure as Chair of the EEOC?This is a historic year for us as we celebrate our 50th Anniversary this July. This is the time to re-imagine

how we work to ensure that the EEOC: 1) expands our impact to achieve justice and equality; and 2) meets theneeds of the public we serve. Let me tell you what that means for us: We know that our work is not done. To ex-pand our impact, we are leveraging our resources and engaging more workplaces across America in preventingdiscrimination.

Strengthening EEOC’s systemic program is a key part of this effort. Today, EEOC’s systemic work is moreimportant than ever before. Our task now is to redouble our efforts by strengthening our infrastructure to ensureour systemic work is vigorous, impactful, and coordinated around the country.Our 50th Anniversary is also the time for a call to action – to engage more people of all backgrounds in our efforts.All too often, any discussion about race or discrimination makes people uncomfortable, so we avoid the conversa-tion. But, at the EEOC, our job is to tackle these issues head on. We know from our work across the country thatdiscrimination continues to exist in many forms, both egregious and more subtle. The events in Ferguson, Mis-souri, New York, and many other communities have brought national attention to the tensions that remain. Wemust find a way to engage our nation in a constructive and productive conversation about race and discrimina-tion. Only then, can we begin to confront the stubbornly persistent challenge of discrimination today.

Our work around harassment is one example of our efforts to engage a broader group of people in our ef-forts to prevent and remedy discrimination. This one issue is alleged in 30% of our charges and in many of ourfederal sector complaints. Last month, at a public EEOC meeting on harassment, I launched a task force, co-chairedby Commissioners Chai Feldblum and Victoria Lipnic, to convene employers, workers’ advocates, and academicsto identify effective strategies to prevent and remedy harassment in the workplace.

My second goal is for the EEOC to better serve the public, including by being more timely and responsiveto the public’s needs. We are investing in technology to streamline and automate services to the public. This in-cludes systems that will allow employees and employers to check the status of charges online, to schedule intakeappointments electronically, and transform our current paper system into a digital charge system, which will freeup investigator time on what matters most, which is developing their investigations.

We are also working to ensure timely investigation of charges. We have an important statutory obligationto accept every charge for filing and investigation; yet, we must decide the level of investigation and enforcementand make these decisions as quickly as possible. These decisions are guided by the facts and the issues raised inthe charge and the potential impact of the enforcement action.

Who have your mentors been? I've had several mentors in my career, and I’ll share key lessons learned from two of them. Our former EEOC

Commissioner and Acting Chair, Stuart Ishimaru, is one of them. From him, I have learned that sometimes you needto be prepared to fight to stand up for the principles that are most important, but often your greatest success willcome from working to persuade and inspire others to act.

Another important mentor is my former partner, Joseph M. Sellers, at Cohen Milstein Sellers & Toll PLLC.From Joe I learned that you can’t be afraid to dream big. Of course, it’s also essential to ground yourself in reality, soplan your ideal strategy, as well as several backup plans to ensure you accomplish as many of your goals as possible.Even when the going may get tough, he remains a relentless optimist. That hope is what keeps you seeing your wayforward toward continued progress even in the face of daunting challenges.

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 The NYU Labor Center has asked me to write a few words aboutmy departure from The New York Times, where I had worked as a reporterfor 31 years. I loved working at the Times, and I loved the labor and work-place beat, which I had for 19 years. But when the Times offered a generousbuyout, I, with considerable ambivalence, decided to take the buyout andleave the NYT last December.  I am a famed workaholic, and I felt this gaveme an opportunity to slow down.  Also, I had two good journalist friendswho died of cancer last year – like me, they were 63 – and I thought, itmight be good to get off the very rapid merry-go-round that is life at theTimes.            I had worked as a newspaper reporter for three and a half years be-fore attending NYU Law School. Before going to NYU, I had decided to leavejournalism because newspapers were a crazy, poorly run industry, and Ihad always been attracted to the law.  (Back in 1974, I had been accepted toboth Columbia Journalism School and NYU Law, and at that time, I decidedto attend the former).  While at NYU Law, as much as I liked the law, I real-ized that the practice of journalism was generally more fun – and at least tome, more existentially fulfilling – than the practice of law. So when an editor I knew at the Times offered me a re-porting job after law school, I leapt at the chance.  I had always dreamt of working at the Times.            I well remember Professor Estreicher voicing regret that I was forsaking law for journalism, but he said Icould easily return to the law so long as I did so within two years. But I loved the Times, and within five years, Iwas in the Paris bureau as European economics correspondent. Being a reporter in Paris was another lifelongdream.  I covered everything from the Velvet Revolution in Prague to what it takes to become a three-star Mi-chelin restaurant to the transformation of Russia and Poland to capitalism.            After five years in Paris, I served in the NYT’s Washington bureau, where I covered the State Departmentand diplomacy. That was exciting and grueling, and I got more than my share of front-page stories, but I missedwriting flesh-and-blood stories about people.  When I heard that the labor beat was available, I applied for it --even though some friends told me that labor was dying and that I’d be an idiot to take such an unsexy beat.  Itold those friends that there were more than 100 million people working in the U.S., and if I couldn’t find a ton ofmeaty, compelling stories on that beat, then there’s something wrong with me.            I began the labor beat in late 1995, writing about miserable housing conditions for farmworkers, Wal-mart’s locking in workers at night, the labor movement’s struggles to reverse its decline, the inexcusable deathsof 1,129 workers in the Rana Plaza factory collapse in Bangladesh – and about a Dominican immigrant in Brook-lyn who worked 11 hours a day for $33 a day. I covered corruption in the Teamsters, and I wrote about employ-ers that brazenly broke the law to beat back unionization drives.  I also wrote about exemplary employers likeCostco and Patagonia that treated their workers like grown-ups, like prized assets, paying them well and pro-viding excellent benefits            While I toiled on the labor beat, my two wonderful children, Emily and Jeremy, kept telling me, “Daddy,you have to write a book.” Oh, the wisdom of children.  I felt that I had developed such a vast, on-the-groundknowledge of the American workplace that I should indeed do a book, and I wrote “The Big Squeeze, Tough

Steven Greenhouse (NYU ‘82):Life at, and after, The New York Times

Steven Greenhouse was recently awarded the Lifetime Achievement Awardfrom the Labor and Employment Relations Association.

Steven Greenhouse (NYU ‘82), formerNew York Times reporter

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Lee Seham of Seham, Seham, Meltz & Petersen has a striking mixof clientele. In the airline industry, SSMP has worked for both foreign flag carriers and independent unions representing pilots, aircraftmechanics, and flight attendants. Mr. Seham had the privilege ofrepresenting Captain Chesley Sullenberger after his miraculous landingin the Hudson and was acknowledged in Sully’s biography.

In the maritime industry, Lee’s firm represents a tradeassociation – American Maritime Safety, Inc. – that counts almost 400member companies. His maritime work has taken him throughout thecountry and to foreign ports in Bahrain, Dubai, Panama, Barcelona,Rome, Istanbul, and the military base of Diego Garcia – where he wastold prolonged service on the isolated atoll turned a man either into “ahunk, a chunk, or a drunk.”

In the sports industry, he represents both the NBA Referees andthe Major League Soccer Referees with the attendant obligation of wearing a suit and tie to most sportingevents.

And in conjunction with the Westchester Hispanic Coalition, his firm engages in federal litigation onbehalf of undocumented workers who have suffered wage theft. Having lived for an extended period inArgentina, Mr. Seham is fluent in Spanish and conversant in Portuguese.

“As a small firm, we have been able to serve both high-profile and cost-conscious clients. A keyelement of our success has been to adopt the view that legal fees should be treated as any other investment– the client should realize a greater value than the dollars he puts in.”

He continues, “At times, that requires some creativity in the billing process. We operate with amixed bag of hourly rates, monthly retainers, fixed fees for defined projects, and an occasional contingency.If someone has a need for legal service, we try to provide that service in a way that makes sense for boththe client and the firm.”

Mr. Seham, is a magna cum laude and Phi Beta Kappa graduate of Amherst College. He received hislaw degree from New York University School of Law, where he served on the NYU Law Review. He reportsthat the most-feared professor at NYU during his time there was Professor Samuel Estreicher.

Mr. Seham is a frequent lecturer at trade association meetings on such varied topics as the RailwayLabor Act, Americans with Disabilities Act, the Family Medical Leave Act, the Fair Labor Standards Act, drugtesting issues, and the development of policies to prevent sexual harassment in the workplace. He finds hislectures at NYU symposia to be the most challenging since it is virtually impossible to be more provocativethan Professor Estreicher.

Lee Seham (NYU ‘87): Varied Clientele

Lee Seham,Seham, Seham, Meltz & Petersen LLP

Times for the American Worker.” It was published by Knopf in 2008, winning the Sidney Hillman award forbest non-fiction book that year.            In my post-Times life, I definitely miss the Gray Lady.   I continue to do some freelancing for that amazingnews organization and for other publications.  I am also writing a second book; it will explore the often sorry stateof the American worker, the woes of America’s labor unions and what will happen to U.S. workers, the U.S. econo-my and the U.S. political system if labor unions continue to weaken. The book will examine another important is-sue: as unions fade, who will speak for the American worker, who will fight to improve wages and workingconditions. To me, in this era of wage stagnation and increasing income inequality, those are some of the biggestquestions facing America today.

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How did you first become interested in labor law?I was first introduced to labor law as a teenager, watch-

ing my father. As part of the divorce settlement with his firstwife, in order to marry my mother, he had to agree to sell hisbusiness to his soon-to-be ex-wife for very little money, butmore importantly, he had to contract himself to continue towork for his ex-wife because without him, there was no busi-ness. My [dad then got re-married], they went on a honey-moon and came back, and [my father] promptly organized aTeamsters Local, because labor law voids individual employ-ment agreements, and so he was able to get out from underthat contract. As a teenager, I had some vague inkling of whatunions do. For a while I worked as a stock boy while in collegeat Abraham & Straus (A&S), which was a large departmentstore in Brooklyn on Fulton Street, now a Macy’s. A discussioncame up about the fact that the company hadn’t given raisesout…and I said to the other stock workers, ‘We should get aunion.’ They said, ‘That sounds great, but what union shouldwe get?’ and I said, ‘I don’t know, I’ll try to find one for you.’ Iliterally went to the yellow pages…and I came across DistrictCouncil 37. I figure that sounds like a good union, and I callthem up. The woman who answered explained that they represent the municipal employees, whichI didn’t know, and that they were the wrong union…but she called me back a week later with UnitedStore Workers, which had Bloomingdale’s, a Federated Department store.

I spent the next four years of my life trying to organize a union at A&S, which is what [I con-sider my] real college education was all about. I spent more time doing that than anything else. Theunion picked me up as an organizer when I got out of college, and my interest in the area was solidi-fied.

I went to law school many years later, but I went with the expressed intention of becoming alabor lawyer on the union side. I went to Brooklyn Law School because they had a very, very goodlabor law curriculum at the time. There were only two schools in New York—NYU and BrooklynLaw School—that had serious labor law curricula.

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Larry Cary, Noted Unionand Benefits Lawyer

Larry Cary, Cary Kane LLP

Larry Cary has been practicing labor and employment law for 30 years. He received his Masters in PublicAdministration from NYU, with a concentration on health policy, planning, and administration, and hislaw degree from Brooklyn Law School. Mr. Cary has taught labor law at various institutions, includingCornell University and Hofstra University, and co-founded Cary Kane LLP with partner Walter M. Kane in2004.

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What were some milestone moments in your career?I’d say getting a job as a labor lawyer. I got out of law school in 1983, which was still heavily

influenced by the Reagan recession, without getting a single interview, with one exception…The on-ly interview I got was a legal services program in Pennsylvania organizing mushroom workers…Icouldn’t afford to take the job, but I decide that I was going to practice labor law and it would makesense to have some money coming in. I had supported myself while I was in law school by teachingat the Center for Labor Studies in the Local No. 3 IBEW apprentice college program and so, becauseof my background, I knew a lot of people. I started to network to try to line up as many adjunctteaching jobs for the fall so I’d have some money coming in. The week before the bar exam I inter-viewed for an adjunct job teaching undergraduates at Hofstra University. In the middle of the inter-view, I realized they were interviewing me to be the director of the undergraduate degree programin trade union administration, to begin that September. The night before the bar exam I got a calloffering me the job which I accepted. So all things considered,I went into the bar exam knowing Ididn’t need to the bar in order to be employed in September, which was a great confidence boost.

I did pass the bar, and I called an attorney I knew who worked for ACTWU (AmalgamatedClothing and Textile Workers Union), where I had worked the summer between 2L and 3L, andthen part time during my third year. I called him up to find out if there were any possible job op-portunities, and found that they were looking for a lawyer on the ACTWU joint board. I was hiredwithout an interview to be the general counsel to a union with 8,000 workers and 14 pension andwelfare funds…so then I had two jobs, I was general counsel to the union and I was also a full timeprofessor. Luckily they were only about five or six blocks apart. So I was general counsel in themornings and then a professor until about eight o’clock. I did that for two years. I wanted to be alawyer, I didn’t want to be a professor, and so then I left the university and went full-time at theunion thereafter.

I was the only person under 50 working on the union joint board; I was 30-something. I wasthe only person with a college education let alone a law degree. I really felt I needed to go to an en-vironment where I’d get better training. I handled everything, as I was the only lawyer. If you everwant to learn how to practice law, do it yourself with nobody to help you.

I went to Vladeck, Waldman, Elias & Engelhard, PC because they were a great law firm, Iwent there for training. I worked there for 17 years, I went from the kid that nobody rememberedmy name to the senior labor partner, and then 10 years ago I founded my own firm, Cary Kane LLP.

What advice do you have for someone who is getting into the field now?Representing unions is a difficult field because it’s a declining market, and it has been for

some time. When I got involved 25 percent of American workers were in a union. Today in theprivate sector it’s seven percent. You will always make less on this side of the bar than you willby representing management. If you really want to represent unions, there has to be psychologi-cal value to you for doing what you’re doing. If you don’t have that, it would be very difficult tocontinue to do it.

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Harper, Estreicher & Griffith,8th ed.Labor Law: Cases, Materials and Problems

By Professor Kate Griffith (NYU ‘04), Cornell University ILR SchoolThe eighth edition of this widely used casebook continues its strong tradition. It provides in depth

material that sets the framework for a rigorous analytical and practical study of labor law and policy. Itupdates the coverage of material to include changes in the law since the 7th edition and includes recentdecisions of the courts and the National Labor Relations Board (NLRB) during the Obama administration.It adds a teacher’s manual and two new chapters to address global trends affecting the field of labor law:immigration to the U.S. and cross-border labor law.

Joining this book as a third coauthor has reminded me why I remain passionate about the study ofLabor Law, even though the percentage of the unionized workforce continues to dwindle in the UnitedStates. The in-depth study of labor law that the book fosters is an entry into a wide array of broader is-sues that stretch beyond the boundaries of labor law as traditionally conceived. It provides perspectiveon debates about government intervention in the economy, the New Deal’s relevance in contemporarytimes and a broad range of separate areas of law.

The book’s coverage of historical material, for instance, not only facilitates study of judicial resis-tance to labor unions in the 19th century and to protective labor legislation in the years leading up to theNew Deal. It also sets a framework for discussion of when the government can (as a constitutional mat-ter) and should (as a policy matter) intervene in employer-employee relations. Few would dispute thatthere is often an inequality of bargaining power between individual employees and their employers, but,when, if ever, should the government intervene to address this inequality? How should the governmentmediate tensions between entrepreneurial freedom and protection of collective pressure and/or employ-ee voice?

Moreover, the book’s coverage of jurisdiction is not merely a study of who’s in and who’s out withrespect to NLRA coverage. It challenges the student of labor law to grapple with how a New Deal stat-ute—created in the context of an industrial economy when the concepts of who was an “employer,” andwho was an “employee” were clearer—can adapt to a more service-based economy where businessesstrategies challenge industrial-age concepts through increased use of temp agencies, subcontracting,franchising and outsourcing.

It’s a book about labor law, but the cases give students a deeper understanding of other areas oflaw such as administrative law, employment law, First Amendment law, arbitration law, preemption lawand antitrust law. In the employment law context, for instance, it facilitates a deeper understandingabout what it means to “discriminate” based on a protected status (here participation in collective activi-ty for mutual aid or protection) and the variety of theories on the nature and burdens of proof in suchcases.

The two new chapters expose students to two labor law issues that have gained importance in re-cent decades. The immigration chapter addresses the NLRA’s treatment of unauthorized immigrantworkers, its applicability to workplace-based political advocacy around immigration issues and to immi-grant-based worker centers. This chapter’s treatment of worker centers gives instructors the opportuni-ty to consider the NLRA’s relevance and applicability to new forms of organizing by self-proclaimed‘non-union’ groups that organize workers around workplace concerns. Among other things, the Cross-Border Labor Law chapter provides a framework for the proliferation of labor law instruments that applyinternationally, such as labor standards in U.S. trade law, the International Labor Organization, and pri-vate sector initiatives including corporate codes of conduct and international framework agreements. Italso provides materials on the extraterritorial reach of the NLRA to solidarity activity and other activitythat occurs abroad.

In sum, the new edition facilitates an in-depth study of American Labor Law and so much more.

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‘Depoliticizing’ the National LaborRelations Board: Administrative Steps

by Samuel Estreicher,* NYU Law Professor andNYU Center for Labor and Employment Law Faculty Director

Complaints about the political forces arrayed against the basic labor laws and about the increasing“politicization” of the National Labor Relations Board are hardy perennials. The charge remains a constant,only those who level it differ depending on which party is in the White House. On the assumption that legisla-tive change is not in the offing, what can the Board on its own do to improve its reputation in Congress andin the courts and, at the same time, enhance its effectiveness as the essential government agency to protectworkers in dealings with their employers?

I am using inverted commas in my title to assure the reader that I am not a naïve academic or, worse, adithering idiot. The National Labor Relations Board (NLRB or Board) is the agency entrusted by Congress toenforce the National Labor Relations Act of 1935 (NLRA or Act). Politics have been an inescapable part of la-bor law. This has been the case from the day the NLRA was enacted, marking, as it did, the first significantgovernment intrusion into private employer decisionmaking. It remains so to this day—reflecting ever-con-tested terrain between employees and their representatives and management. Although there are many ar-eas for shared gains between labor and management, generally when the Board gets involved employees areseeking to organize a union or compel management to bargain with the union. At least in the short term, awin for employees or the union is a loss for management, and vice versa.

The Board, if it is doing its best to enforce its organic statute, will often be viewed by disappointed par-ties and their allies as “political” and by winning parties and their supporters as “effective” guardians of thelaw. Congress, on some level, intended a continuation of the political process within the NLRB1 by establish-ing a multimember “independent” agency with the custom2 of the President appointing three members fromhis political party and two from the opposition party, rather than relying on the courts for enforcement.

The charge of politicization contains a kernel of truth but is nearly always an overstatement. Themembers of the Board and the General Counsel, the other presidential appointee, are conscientious profes-sionals aware of their distinct obligations in serving a public agency. Most cases involve relatively fact-specificapplications of the Act by administrative law judges; these rulings stir little controversy and are summarilyaffirmed by three-member panels of the agency without dissent (and routinely enforced by the courts of ap-peals). It is with respect to a relatively small number of cases and certain agency initiatives, such as the prom-ulgation of national rules, where the law is either unclear or reversal of the agency law is being sought, andwhere Board members are likely to be especially responsive to their pre-NLRB political or ideologicalinclinations.3 It is this relatively narrow, yet important, sphere of the agency’s work that triggers the politici-zation charge.

* Dwight D. Opperman Professor of Law & Director, Center for Labor and Employment Law, NYU School of Law. I appreciate the comments ofseveral current members of the NLRB, as well of those of former chair Wilma Liebman and NLRB attorneys John Colwell and Joan Flynn. Allpersisting errors are my fault. Copyright© 2015 by Samuel Estreicher. All rights are reserved.1 See Samuel Estreicher, Policy Oscillation at the Labor Board: A Plea for Rulemaking, 37 ADMIN. L. REV. 163 (1985); Ralph K. Winter, Jr., Judi-cial Review of Agency Decisions: The Labor Board and the Court, 1968 SUP. CT. REV. 53.2 See Ronald Turner, Ideological Voting on the National Labor Relations Board, 8 U. PA. J. LAB. & EMP. L. 707, 709–11, 714–15 (2006).3 Some members on occasion vote in politically unpredictable ways. See Joan Flynn, A Quiet Revolution at the Labor Board: The Transforma-tion of the NLRB, 1935–2000, 61 OHIO ST. L.J. 1361, 1367–68 & 1408 tbl.2 (2000); Paul M. Secunda, Politics Not as Usual: Inherently Destruc-tive Conduct, Institutional Collegiality, and the National Labor Relations Board, 32 FLA. ST. U. L. REV. 51, 102–05 (2004).

It is difficult to say whether the Board is more political now than it was during, say, the Reaganadministration (when the agency triggered a great deal of such criticism).4 Today, the charge is leveled byRepublicans and employer representatives; then, the charge was leveled by Democrats and union representatives.There is reason to believe, however, that whatever the underlying factual reality may be, the charge now poses agreater threat to the NLRB’s future viability than it has in the past.

The perception of a “politicized” agency seems stronger than ever. This is due to many causes, several ofwhich are beyond the Board’s control of influence. One is the widening polarization fo the political parties; thereare very few, if any, Republican Senators or Representatives that, as a general matter, support the NLRA. NLRAadherents among their ranks have for some time been a dying species and are now, for all practical purposes, ex-tinct. Alongside that development, and perhaps abetting it, is the almost complete alignment of organized laborwith the fortunes of one political party, the Democrats.

A second factor is that most employers have no real stake in a vigorously enforced NLRA. Dealing with aunion is a little bit like being struck by lightning. An increasingly small number of private employers haveunion-represented employees or realistically expect organizing drives in their future. Few such employers areclamoring for unionization to be extended to their competitors. Those affected by unionization efforts are intenselyinterested in stymieing the agency and are able, with the acquiescence of other companies, to urge the varioustrade associations to take a hard line in Congress and the courts against the Board.

As for labor unions, they, too, have a much weaker stake in the NLRA. Union unfair labor practices,introduced by the 1947 amendments to the Act, are few in number because unions are less involved in traditionalorganizing campaigns involving labor picketing; preliminary injunctions against union violations these days arevirtually unheard of. Instead, where organizing is occurring, unions tend to employ variants of the“corporate campaign” technique to wrest “neutrality and card check” agreements from target employers, thusbypassing NLRA processes altogether. If the unions have any interest in the Board, it is in enlisting theagency’s occasional assistance during bitterly fought collective bargaining disputes with employers or in advancingnovel theories of employer responsibility to facilitate organizing.

One consequence of these factors is the impact on the pool of people that might be attracted to serveon the Board and how the Board’s work product is regarded by judges and other decisionmakers. Today,few in the labor and employee relations community, whether they are practitioners, academics, or evenprofessional neutrals,5 likely to be considered for an appointment to the agency come without firmlyestablished views on most of the issues in contention. These professional take their job seriously and areopen to the evidence and reasoned argument. But in the hard, politically tinged cases, they are not likelyto depart from their prior conceptions. The decisions that issue in these hard cases are invariably seen, notentirely without cause, by the losing side as a product of political or ideological preferences.

Another consequence is that Board innovation increasingly incites enormous, cascading controversy. Whenthe Board ventures into new areas where the NLRA has not previously been applied (not in itself problematic)—forexample, considering “employee” status for college football players or adjunct faculty or challenging “class actionwaiver” agreements in the nonunion sector as an interference with employee concerted activity—fuel is addedto the fire. For the Board’s opponents in Congress and among allied trade associations, the choice is clear andunwavering: stop the agency in its tracks.

Does the Board’s reputation affect its record in the courts? There is no discernible effect with respect tothe routine, fact-specific cases that are grist for the NLRA mill. If there is an effect, it is in hard-fought cases in thecourts of appeals—especially, the District of Columbia Circuit, where the alternative venue provision steersmany Board orders for review. And it is with regard to the agency’s rulemaking efforts.

It may be that the time has come for a legislative fix, for a fundamental alteration of the statutoryscheme. Republican Senators Lamar Alexander and Mitch McConnell have authored a bill that would expandthe agency to six members, require that any decision receive the support of four members to be valid, and4 The movement away from appointing career government types to the Board is said to have begun with the Eisenhower administration andaccelerated during the Reagan years. See James J. Brudney, Isolated and Politicized: The NLRB’s Uncertain Future, 26 COMP. LAB. L. & POL’Y J.221 (2005); Flynn, supra note 3, at 1367–77.5 There are relatively few professional neutrals in the labor relations sphere who are “acceptable” to both unions and employers. Of these, itis doubtful any would leave a lucrative arbitration practice to serve on the Board, where one’s public voting record could complicate post-NL-RB engagements.

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ovide for immediate judicial review of NLRB General Counsel complaints.6 Professor Zev Eigen of NorthwesternUniversity School of Law and Sandro Garofalo of the Target Corporation have proposed transferring alladjudication of unfair labor practice complaints to the federal courts with the NLRB limited to holding electionsand ruling on election objections.7 On February 23, 2015, fifty- two Republican senators approved a jointresolution, which soon thereafter passed the House in a largely partisan vote, disapproving of the NLRBregulation dealing with representation case procedure 8 and declaring that “such rule shall have no force oreffect.” Predictably, President Obama vetoed the measure; an override has not been attempted.

If past experience is any guide, these legislative seeds are not likely to bear fruit any time soon. It is verydifficult to change laws under our federal system, and the NLRA, like Social Security, may be one of the “thirdrails” of U.S. Politics.10

But these stirrings should help us bear in mind the political winds that could fundamentally change the NL-RA. Should anyone care? In my view, the state of the agency should be a concern not just to its personnel but tothose who support the essential guarantees of the Act—that employees should be free of employer retaliation toengage in concerted activity for their mutual aid or protection and to select collective bargaining agents. A vibrantBoard is needed not so much for the high-visibility, controversial cases but for the everyday holding of promptelections, investigation of retaliatory discharge charges, and repair to the district courts for a preliminary injunc-tion to reinstate workers discharged in the course of an of an organizing drive. If the Board’s overall reputationsuffers, or if Congress deprives the Board of its adjudicatory function, the only resort for workers will be litigationin the courts where, unless they are supported by a union, they will have to fend for themselves without counsel;and, moreover, the law will confusingly, perhaps incoherently, develop district-by-district and lawsuit-by-lawsuit.

But there is a problem, at least in perception, and the Board should be open to improvements in how itconducts its business. I have a few suggestions, none of which require a statutory amendment, that I hope theBoard and its General Counsel will consider. The underlying objectives behind these suggestions are (1) furtheringthe relative stability of Board law, (2) improving the quality of Board decisions by expanding the sources of infor-mation available to the agency, and (3) husbanding the political capital of the agency through prudential rules ofabstention for disputes between parties in established collective-bargaining relationships.

I. FURTHERING THE RELATIVE STABILITY OF BOARD LAW

A. Rule of Four for All Policy Reversals

By internal agreement, the members of Board would bind themselves, at least on an annual basis, to a Rule ofFour: all cases coming to them contemplating or requiring a reversal of a prior NLRB decision would be heard byall five members and would require a vote of at least four members to take effect.11I have previously argued forrulemaking for policy reversals.12 The proposal offered here does not require rulemaking. It would send a messageto all affected by the Board’s work that the agency’s general policy is to preserve the stability of Board law, that

6 See Press Release, Lamar Alexander, Alexander Introduces “NLRB Reform Act” to Change the National Labor Relations Board from an Ad-vocate to an Umpire (Sept. 16, 2014), available at http://www.alexander .senate.gov/public/index.cfm/pressreleases?ID=67fce1d6-ff3e-4d60-9d26-fe90444aba55.7 See Zev J. Eigen & Sandro Garofalo, Less Is More: A Case for Structural Reform of the National Labor Relations Board, 98 MINN. L. REV. 1879(2014).8 Representation—Case Procedures, 79 Fed. Reg. 74,308 (Dec. 15, 2014) (to be codified at 29 C.F.R. pt. 101–103).9 See S.J. Res. 8, 114th Cong. (vetoed Mar. 31, 2015); 161 CONG. REC. H1782–88 (daily ed. Mar 19, 2015); see also Memorandum of Disap-proval Regarding Legislation Concerning the National Labor Relations Board Rule on Representation Case Procedures, 2015 DAILY COMP.PRES. DOC. 216 (Mar. 31, 2015).10 The merits of these proposals is not the focus of this paper. The Eigen-Garafalo article does warrant further consideration.11 This is similar in form to the “Rule of Three” the Board now follows for policy reversals.12 See Estreicher, supra note 1.

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policy reversals will be more exceptional than has been the case, and that some bipartisan support will be requiredto overturn a prior decision.13

B. Statement of Special Justification for Policy Reversals

Again, by internal agreement, the Board would require that any decision to overrule a prior decision spellout what new evidence has come to light or what changed circumstances have occurred justifying such anoverruling. A mere change in the composition of the Board or a judgment that the first decision was simply wrongwould not be a sufficient justification.14 This is in line with the Supreme Court’s recent teaching in FCC v. FoxTelevision Stations, Inc.15:

To be sure, the requirement that an agency provide reasoned explanation for its action would ordinarilydemand that it display awareness that it is changing position. An agency may not, for example, depart from aprior policy sub silentio or simply disregard rules that are still on the books. And of course the agency must showthat there are good reasons for the new policy. But it need not demonstrate to a court’s satisfaction that thereasons for the new policy are better than the reasons for the old one; it suffices that the new policy ispermissible under the statute, that there are good reasons for it, and that the agency believes it to be better,which the conscious change of course adequately indicates. This means that the agency need not alwaysprovide a more detailed justification than what would suffice for a new policy created on a blank slate.Sometimes it must—when, for example, its new policy rests upon factual findings that contradict those whichunderlay its prior policy; or when its prior policy has engendered serious reliance interests that must be takeninto account. It would be arbitrary or capricious to ignore such matters. In such cases it is not that furtherjustification is demanded by the mere fact of policy change; but that a reasoned explanation is needed fordisregarding facts and circumstances that underlay or were engendered by the prior policy.16

II. IMPROVING THE QUALITY OF BOARD DECISIONMAKING BY ENHANCING THERANGE OF INFORMATION AVAILABLE TO THE AGENCY

Despite the initial success of healthcare-bargaining unit rulemaking in the 1980s,17 and the SupremeCourt’s unanimous endorsement of the agency’s authority to engage in legislative rulemaking,18 the Board is waryof further rulemaking initiatives. Three setbacks have led to this attitude: the legislative reaction to the single-location bargaining unit initiative during the Clinton administration,19 the rejection by two courts of appeals ofthe agency’s notice-posting rule,20 and the still uncertain future of its representation-case procedure rulemaking.This record may encourage the agency to re-embrace case-by-case adjudication as the less visible, less politicallycharged route for new policymaking.21

The Board, in my view, should not abandon rulemaking but learn from experience and craft rules that doa better job of accommodating conflicting interests. The substantive objections of the courts should be taken intoaccount. For example, to deal with the District of Columbia Circuit’s criticism that the Board’s notice-positing ruleimpermissibly infringed on the right of employers to be free from “compelled speech,” the Board could relauncha notice-posting rule22that leaves out the fact-pattern illustrations and newfound, debatable remedial13 An alternative to the Rule of Four would be for the Board to agree to publish annually an Agenda ofIssues of Board Law for Reconsideration, inviting commentary focused on particular issues, and then limit all policy reversals to issues thatappear on that list, with perhaps an exception for issues arising in the course of adjudication that require a policy reversal and which fourmembers are willing to vote for reversal.14 This statement-of-justification requirement would generally be enforced by the Members themselves informing how they vote on theproposed policy reversal. There may be cases where failure to provide such a justification may affect judicial review of the Board’s order.15 556 U.S. 502 (2009).16 Id. at 515–16 (citations omitted).17 For an extensive overview of the Board’s first substantive rulemaking, see Mark H. Grunewald, The NLRB’ s First Rulemaking: An Exercise inPragmatism, 41 DUKE L.J. 274 (1991).18 Am. Hosp. Ass’n v. NLRB, 499 U.S. 606 (1991).19 Notice of Proposed Rulemaking, Appropriateness of Requested Single Location Bargaining Units in Representation Cases, 60 Fed. Reg.50,146 (Sept. 28, 1995), withdrawn, 63 Fed. Reg. 8890 (Feb. 23, 1998).20 See Chamber of Commerce of U.S. v. NLRB, 721 F.3d 152 (4th Cir. 2013); Nat’l Ass’n of Mfrs. v. NLRB, 717 F.3d 947 (D.C. Cir. 2013), over-ruled in part on other grounds by Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014) (en banc) (overruling discussion of scope ofZauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)).21 See Joan Flynn, The Costs and Benefits of “Hiding the Ball”: NLRB Policymaking and the Failure of Judicial Review, 75 B.U. L. REV. 387 (1995).22 Notification of Employee Rights Under the National Labor Relations Act, 76 Fed. Reg. 54,006 (Aug. 30, 2011).

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provisions in the rejected rule. It would then make the case that the Board has the requisite statutory authority andthat there are no serious Section 8(c) difficulties with such a stripped-down notice posting.

There can be other situations where the Board might use a notice-and-comment procedure where the end result isnot a rule but information that helps the Board consider important regulatory questions. I have suggested in previouswritings.23 that the Board has authority, under an extension of the reasoning in Excelsior Underwear Inc.,24 after arepresentation election has been scheduled to afford the petitioning labor organization access, with appropriate securitymeasures, to certain nonworking areas of the employer’s facility, such as the break room and cafeteria, to discuss withemployees the merits of voting for the union in the upcoming election. The statutory goal of an informed employeeelectorate would be advanced by such limited mandatory access. A notice- and-comment proceeding could be used to testreactions among practitioners and to learn in-depth the practical, logistical issues that bear on the question before the Board.Equipped with such information, whether the Board addresses the issue in adjudication or rulemaking, its decision is likelyto be a better decision on the merits and is more likely to receive a favorable review in the courts.

Thought also should be given to revisiting the Gould Board’s use of advisory committees of labor and managementrepresentatives. Such committees need not represent merely one side but could instead be “mixed” committees of labor,management, and academics. 25

III. HUSBANDING THE POLITICAL CAPITAL OF THE AGENCY THROUGH PRUDENTIALRULES OF DEFERRAL/ABSTENTION FOR DISPUTES INVOLVING ESTABLISHED

COLLECTIVE BARGAINING RELATIONSHIP

This is a proposal for a broadening of Collyer-type26 deferral to arbitration: If the parties are in an establishedcollective bargaining relationship and there is a good reason to believe that the parties’ dispute, even if nominally over astatutory question, is capable of being resolved in the parties’ agreed-upon arbitration process, the Board should stay itshand, reserving its jurisdiction for possible review of any award at the conclusion of the arbitration process.Thus, for example, a union’s unfair labor practice charge against a company considering the transfer of unit work to anotherlocation should be deferred to arbitration to determine whether the company has contractual authority to transfer the work.Theoretically, resolution of the contractual issue via arbitration may not fully resolve the statutory question, whether it is aclaimed failure to bargain in good faith or a claimed discriminatory work relocation, but arbitration is likely to resolve manyof the underlying factual issues and, as a practical matter, encourage the parties to resolve the underlying dispute.27

This proposal would only apply to disputes where resolution of the contractual issue would be helpful. It would notapply to questions of individual employee rights independent of the duty-to-bargain rights/prerogatives of the bargainingrepresentative.

Perhaps the Board could convene an advisory committee or negotiated rulemaking committee to consider possibleextension of this Collyer approach to other disputes involving established bargaining relationships.

The basic idea here is that disputes in an established relationship are best left for the parties to resolve on their ownand, at the end of the day, the Board will not and should not change the outcome of the bargaining. Additionally, thetheoretical existence of a statutory question is not a good enough reason for the Board to get involved when there is reasonto believe that the parties’ agreed-upon arbitration process can resolve the dispute or is otherwise worth pursuing.

CONCLUSIONThese are a few ideas to provoke discussion of ways the Board can improve its general reputation in Congress and thecourts without compromising its core statutory responsibilities.23 See Samuel Estreicher, “Easy In, Easy Out”: A Future for U.S. Workplace Representation, 98 MINN.L. REV. 1615, 1632–33 (2014); Samuel Estreicher, Improving the Administration of the National Labor Relations Act Without Statutory Change,25 A.B.A. J. LAB. & EMP. L. 1 (2009).24 156 N.L.R.B. 1236, 1239–40 (1966).25 The Federal Advisory Committee Act, Pub. L. 92-463, 86 Stat. 770 (1972) (codified at 5 U.S.C. app. §§ 1–16 (2012)), sets up hurdles to cre-ating such advisory committees, but they are not insurmountable. The Board should also consider using the procedures of the NegotiatedRulemaking Act, 5 U.S.C. §§ 561–570a (2012), for certain recurring issues.26 See Collyer Insulated Wire, 192 N.L.R.B. 837 (1971).27 This proposal is in some tension with the Board’s recent 3–2 ruling in Babcock & Wilcox Constr. Co., 361 N.L.R.B. No. 132, 2014 WL7149039 (Dec. 15, 2014), which tightens up post-arbitral review by the agency but does not appear to change pre-arbitral deferral under Col-lyer and its progeny.

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Culture Corner: ‘SpaghettiWesterns’ as a Distinct Genre

By Alia Haddad, Assistant Director of Operations of the NYU Center ofLabor and Employment Law (MA in Cinema Studies, NYU Tisch ‘12)

When we as Americans think of Western movies, images of gun-wielding John Wayne, AlanLadd, and Burt Lancaster characters tend to pop into our heads as the often eponymous charactersaves both the girl he secretly loves but can never end up with and the community she lives infrom danger. Themes of Manifest Destiny, the self-reliant American, and rightful and deservedjustice run rampant throughout these movies. We conveniently forget that the type of justicethese heroic characters bestow on their foes is in actuality a form of vigilante justice, and if wedo not forget this, we explain it away, noting that it was inherent to a particular time and neces-sary for the westward expansion and progress that we have benefited from today. In fact, wemust do this because Westerns, and more specifically, American Westerns celebrate us, ourfounding, and our growth as a society, defects and all.

What happens, though, when another culture directs and produces Westerns, using similartropes but turning them on their heads? Take for example the Spaghetti Western, a term refer-ring to Italian-made and produced Westerns, shot in large part in Spain. The very fact that West-erns took hold in Italy is something of which we should take note. Popular in themid-to-late-1960s, Spaghetti Westerns have many of the same place holders of an AmericanWestern – the gunslinger hero, the horse, the town in peril, the harsh landscape—yet none of themeaning behind it. The gunslinger, perhaps most notably played by current chair-enthusiast ClintEastwood, is no longer a man guided by a strong moral code or a desire to help those who are tooweak to help themselves. Instead, he is simply guided by one thing: money. Often coming in theguise of a bounty hunter, the Spaghetti gunslinger is incredibly cool, marked by a strong sense ofmachismo, and very skilled with a gun. He rides into town with money on his mind, engages indeception and foul play to make that money, and subsequently leaves, effectively destroying anysemblance of said town.

While in American Westerns the very notion of annihilating a town would be devastating,in the Spaghetti Western the town is just as corrupt as its hero figure. In fact, when Clint East-wood’s The Man with No Name succeeds at the end of A Fistful of Dollars in effectively killing alloccupants of the central town save for a few people before riding away on his horse, we feel noremorse, and instead a lightness and a sense of gratitude that these corrupt members of societyare no longer with us. No Name comes into town and leaves the town the same way an AmericanWestern hero would—by horse—but what he does in the town is completely different. There isno saving the town from an outside danger. Instead the danger the town had once feared and ne-cessitated the need for a John Wayne-like hero has already infiltrated the town so thoroughlythat the only option is complete destruction.

Outside of these themes, the horse and landscape play similar roles within Spaghetti West-erns in that they are both strong tropes in the American Western that are included in SpaghettiWesterns without any of the same meanings associated with them. In the American Western thebond between the hero and his horse is very strong and tangible. Whole chapters of books andfilms are dedicated to showing this bond, often portrayed through the breaking of a horse as in

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All the Pretty Horses and Hondo. In the Spaghetti Western however the horse is merely anothertool with which the hero uses. He rides into town on his horse and leaves town on his horse, andother than being the center of a gun fight in A Fistful of Dollars, the horse really has no otherplace in the Italian variety of the genre. The landscape, too, is no longer characterized by sweep-ing and grand images of majestic expanses of land with powerful natural structures rising fromthis landscape. Instead, the audience sees dusty, dry, and dead patches of land, mimicking thetown that the hero ultimately destroys. In the American Western, the hero proves himself byshowing his ability to handle nature and the landscape, as in Jeremiah Johnson or True Grit. In theSpaghetti Western the land is all but forgotten once the hero rides into town.

These differences, while not exhaustive, go to show that the Spaghetti Western ought to beconsidered in its own right. The Western genre, as with most genres, changes and shifts overtime: what we see with the Spaghetti Western is that it has almost turned in on itself in terms ofthe genre. We have the same center pieces that make up the genre, but they represent entirelydifferent and often antithetical themes.

Labor Center NewsThe NYU Labor Center is now on Twitter!Our new Twitter account, @NYULaborCenter, posts news articles and im-portant updates about current important information and upcomingLabor Center events. If you have any articles to contribute, please sendthem to Alia Haddad at alia.haddad@nyu.edu and be sure to follow us onTwitter for easy updates on Labor Center news!

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Colonel Martin Mitchell is a senior appellate militaryjudge stationed at Joint Base Andrews, Maryland and anAssociate Appellate Judge on the U.S. Court of MilitaryCommission Review. Colonel Mitchell served in severalspecialized positions in Rosslyn, VA, including serving asa labor attorney, employment litigation attorney, andexecutive officer. In 2006, Colonel Mitchell returned tomilitary justice and served as the Chief, Circuit DefenseCounsel for the central circuit. He then served two con-secutive tours as the Staff Judge Advocate at the 67thNetwork Warfare Wing at Lackland AFB, TX, and the 6thAir Mobility Wing at MacDill AFB, FL, before becoming amilitary trial judge at McChord Field, WA.

As a lawyer for the Air Force Legal OperationsAgency’s Labor Law Field Support Center (LLFSC), on adaily basis, I was assisting commanders and manage-ment officials in workplace issues that have a directimpact on mission readiness and effectiveness. Anyonewho has had a problematic co-worker, subordinate, orboss can readily understand the real world effects onthe ability to get the job done.

The mission of the LLFSC is “to provide the full spectrum of labor and employment law expertise toensure maximum flexibility for commanders in employing the civilian workforce in support of Air Forceoperations.” The LLFSC has responsibility for Air Force labor and employment law matters around theworld in federal court and before the Merit Systems Protection Board (MSPB), the Equal EmploymentOpportunity Commission (EEOC), the Federal Labor Relations Authority (FLRA)1 and labor arbitrators.

Additionally, LLFSC attorneys advise senior leaders and policy makers on complex questions oflabor/employment law. They also provide training, both in-residence and online, to fellow attorneys andparalegals. The LLFSC defends the Air Force in unfair labor practice (ULP) cases before the FLRA broughtby unions.

To provide a sense of the scope, unions represent about 120,000 of the Air Force’s full-time civilianemployees. The LLFSC represents the Air Force in negotiability appeals, bargaining impasses, and scopeof representation issues. The LLFSC defends the Air Force in cases before the EEOC, MSPB, OSC and otheradministrative agencies addressing issues on discrimination, prohibited personnel practices, whistleblow-er protection and reprisal, and unemployment/workers’ compensation. LLFSC attorneys work closelywith their counterparts at the Department of Justice in representing the Air Force’s interests in United

A Labor and Employment Lawyerin the Air Force

by Martin T. Mitchell, Colonel, USAF

Colonel Martin T. Mitchell

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States District Courts, the Court of Federal Claims, the Federal Circuit Court of Appeals and court-orderedsettlement conferences.

A challenge for the military commander, and the LLFSC attorneys in supporting them, is understandingthat different rules apply to different personnel. An active duty military member has rights under and issubject to the Uniform Code of Military Justice; a bargaining unit employee has rights under the collectivebargaining agreement and the Civil Service Reform Act; an employee of a contractor is subject to disciplineby his employer (not the commander).

An active duty member may share a desk with a co-worker who has rights to bring complaints to theEEOC, MSPB and FLRA and sue in federal court; options which are not available to the active duty member.A commander may, with the best of intentions, run afoul of bypassing the union when resolving a work-place dispute even when the workers directly affected are satisfied with the result. (See 67 FLRA 135).

On any given day, I would be working with dedicated professionals in the civilian personnel office onproposed discipline that would result in MSPB jurisdiction, advising commanders and senior officials onlabor relations, preparing for a deposition as part of discovery in a discrimination lawsuit in federal districtcourt and negotiating with union officials regarding an alleged ULP. The LLFSC litigators and paralegals atthe central office and the regional offices “defend against the entire spectrum of administrative and judicialchallenges in labor and employment law.”

*The views presented are those of the author and do not necessarily represent the views of Department of Defense, the U.S. Air Force,or its components.

1 Editor’s Note: The FLRA is an independent administrative federal agency that was created by Title VII of the Civil Service Reform Act of 1978(also known as the Federal Service Labor-Management Relations Statute). The statute allows certain non-postal federal employees to organize,bargain collectively, and participate through labor organizations of their choice in decisions affecting their working lives. The primarystatutory responsibilities of the FLRA include resolving complaints of unfair labor practices, determining the appropriateness of units for labororganization representation, adjudicating exceptions to arbitrator’s awards, adjudicating legal issues relating to duty to bargain/negotiability,and resolving impasses during negotiations.

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Stephen Sonnenberg practices employment law at Paul Hast-ings LLP in New York. He works with a range of clients in both theUnited States and Asia on a variety of employment issues.

When did you decide to go into labor law? Was there any-thing in particular that led you to make this decision?When I realized what now sounds obvious: at the core of so many

employment disputes are intense human emotions. I was a clinical socialworker before I went to law school and had spent a decade learning how tohelp recognize, understand, and manage conflict, from a psychologicalstandpoint. When I was a summer associate at Paul Hastings, I realized thatpracticing employment law was a natural fit. I was drawn to the human ele-ment, the strong emotions that are often present in workplace disputes. Iwas also in law school when harassment and discrimination claimswere often in the news. Like many others, I was captivated by the Senate confirma-tion hearing for Justice Clarence Thomas.

What types of clients do you tend to represent? Do any of those clients presentunique challenges for you in your practice?I've had the privilege of representing many different types of clients, from companies with opera-

tions all over the world to individuals who were hoping not to lose their homes as a result of litigation. Ipracticed in Los Angeles for 13 years before returning home to New York City, and in California I repre-sented a number of clients in the entertainment industry, financial services, and defense sector, really across section of the California economy. After I returned to New York in 2006 I focused more on the fi-nancial services industry and my practice took on much more of an international flavor. Paul Hastings’presence in Asia had expanded greatly and I quickly began representing employers headquartered in Ja-pan with operations in the United States. I also made several client-related visits to China. I wouldn'tsay representing companies based in Asia is challenging, I would say it's fascinating. Add to the mix ofemployment law issues and associated human emotions an extra element—cultural differences and nu-ances—and you have a wonderfully interesting practice.

As the percentage of unionized workers has declined over the decades, how has thatdecline affected your practice, if at all?Actually, my experience is that traditional labor law issues are more central to practicing in New

York than they were in California. The decline in union representation hasn't really affected my practice,though, because I have focused more on lawsuits grounded on discrimination, retaliation, harassment,and wage-and-hour law to a greater extent than union-management relations.

How does your previous experience as a clinical social worker color yourexperience working in labor law?I'm fascinated by the juncture of employment law and psychology. Psychological issues shape

counsels’ day-to-day advice regarding a variety of employment issues, play a central role in litigation, andinfluence damages analyses. They're critical to incentivizing employees, negotiating disputes, or tryingan employment claim to a jury. What strikes me too often is the difficulty that lawyers and mental healthprofessionals have in understanding each other, as if they speak a different language. They probably ana-

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Stephen SonnenbergPaul Hastings, LLP

Welcome New Board Members!

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Michael Grenert (NYU ‘95) is a partner at Liddle & Robinson inNew York. He has focused on employment law his entire career, andhe primarily represents employees in the financial services industry.

When did you decide you wanted to go into labor law? Wasthere anything in particular that led you to make thisDecision?It was a combination of things. In college, I did a lot of research and writing

on civil rights issues, mostly focusing on school desegregation, so not directly in em-ployment law but I knew I was interested in the field. Getting involved with employ-ment law was sort of a bit of luck for me. I was lucky to have a contact at Liddle &Robinson, the firm where I work now. This is where I got my start—I worked herethe first summer of law school, and it really got me invested in employment law.

What types of clients do you tend to represent? Do any ofthose clients present unique challenges for you in your practice?A lot of our clients are financial services professionals on Wall Street. I think it makes for an inter-

esting practice because you really have to learn the industry in order to communicate with clients effec-tively. Part of the challenge is representing clients that tend to be sophisticated businessprofessionals—they want to stay informed and be involved in the process, so it’s a learning experiencefor both our lawyers and our clients. Usually on the other side, we’re going up against big banks repre-sented by huge corporate law firms. There’s usually a disparity in resources there, and that’s often true inemployment law cases. So that’s one of the big challenges we have to face.

Who have your personal mentors been?I’d say one of my mentors is Jeff Liddle—the Liddle of Liddle & Robinson. He started his firm in 1979, so

he’s been doing this a long time. And one of the nice things about working at Liddle & Robinson, a plaintiff-sidefirm, is that it’s pretty sizeable. So at any given time there are about 20 lawyers, with multiple lawyers workingon one case. When I was a junior lawyer just getting my start here, I always had multiple lawyers and partnersto look to for guidance or help.

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Michael GrenertLiddle & Robinson, L.L.P.

lyze situations differently. Lawyers tend to focus on the facts and the evidence, what I’ll call the outsideworld. Mental health professionals focus on the inner world, the one populated by feelings, sometimesirrational, on unconscious motivations, and earlier life experiences. But all of us are, at bottom, engagedin a similar pursuit, trying to understand, for lack of a more articulate phrase, what really happened.

Who have your personal mentors been? I've been very fortunate to have worked with tremendously talented and generous colleagues at

Paul Hastings and I've learned from many more than I can name here. Paul Grossman and Nancy Abellbecame my mentors early on and to this day they are my trusted guides and friends. I also had severalmentors in my first career who helped me to learn how to be a psychotherapist and how to become moreself-aware. I'd like to think that has served me well as an attorney.

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Irwin Bluestein, Meyer, Suozzi, English & Klein, P.C.Irwin Bluestein has represented labor organizations and their related employee

benefit plans for more than 40 years. Among his clients are unions and employee benefitplans in health care, higher education, newspaper and printing, and other industries .

His representation of these clients includes collective bargaining, arbitration, litiga-tion, and proceedings before the National Labor Relations Board and other federal andstate administrative agencies; advising employee benefit plans regarding plan design andadministration; drafting plan and trust documents, summary plan descriptions, and thelike; addressing fiduciary compliance issues; merging funds and plans; and litigating with-drawal liability, delinquent contributions, and participant claims.

Mr. Bluestien counsels a number of single and multi-employer Taft-Hartley pensionand benefit plans, and has negotiated extensively in connection with non-Taft-Hartleyplans. He was recently involved in developing and obtaining approval of the first adjustable pension plan approvedby the IRS, of which he is co-counsel. He has since been involved in establishing a second adjustable pension plan, ofwhich he is also co-counsel. It is his hope that adjustable pension plans will help reverse the growth of 401(k) plans,which he considers anathema to the interests of workers and retirees.

Before joining Meyer, Suozzi, Mr. Bluestein was a member of Vladeck, Waldman, Elias & Engelhard, P.C. He is afrequent speaker and instructor on labor law and employee benefits issues.

Todd Gutfleisch, Wechsler & Cohen LLPTodd Gutfleisch, a partner with Wechsler & Cohen, LLP, concentrates his practice in

employment law and litigation. Mr. Gutfleisch represents clients in all aspects of the employ-ment relationship, both within and outside the financial services industry. In addition to coun-seling clients on their employment contracts and severance agreements, Mr. Gutfleischnegotiates and litigates compensation and related disputes, as well as claims of breach of con-tract, unlawful termination, defamation, discrimination, whistleblowing, and retaliation. Mr.Gutfleisch has appeared before arbitration panels at FINRA (and its predecessors, the NASDand NYSE), and the American Arbitration Association. In addition, Mr. Gutfleisch has litigatedcases in both state and federal trial and appellate courts. Mr. Gutfleisch also specializes in wage-and-hour class actions, including claims for failure to pay overtime, incorrect designations, andunlawful deductions from compensation.

Prior to joining Wechsler & Cohen, Mr. Gutfleisch was an Executive Director at JP Morgan Chase & Co. where heworked for almost 15 years representing the bank in a wide range of employment matters. Mr. Gutfleisch had primaryresponsibility for employment law issues in JP Morgan’s investment bank, and was responsible for all wage-and-hourclass action litigation and compliance.

James Murphy (NYU ‘89), Spivak Lipton LLPMr. Murphy joined Spivak Lipton LLP in 1992 and became a partner in 2000. He received his law degree from

New York University School of Law in 1989, a Master’s Degree in Sociology from the University of Pittsburgh in 1975, andhis undergraduate degree, cum laude, in Economics and Sociology from LaSalle College in 1973. Prior to attending lawschool, he was a rank-and-file union activist, organizer, staff representative, and elected officer with unions in the educa-tion, health care, and telecommunications industries. Besides his regularly representing unions and employee benefitfunds in litigation, negotiations, and regulatory compliance, Mr. Murphy also has extensive experience in counseling cli-ents in regulatory investigations with various state and federal agencies and in representing clients as creditors in bank-ruptcy proceedings. Beginning in January 2012, Mr. Murphy has served as the General Counsel of the New York City andVicinity District Council of Carpenters.

Todd GutfleischWechsler & Cohen, LLP

Irwin BluesteinMeyer, Suozzi, English &Klein, P.C.

21

New York University School of LawCenter for Labor and Employment Law

Advisory Board 2014-2015Marshall B. Babson, Esq.Seyfarth Shaw LLP

Lee F. Bantle, Esq.Bantle & Levy LLP

Jonathan J. Ben-Asher, Esq.Ritz Clark & Ben-Asher LLP

Laurie Berke-Weiss, Esq.Berke-Weiss Law PLLC

Michael I. Bernstein, Esq.Bond, Schoeneck & King, PLLC

Irwin Bluestein, Esq.Meyer, Suozzi, English & Klein, P.C.

Frederick D. Braid, Esq.Holland & Knight LLP

Ethan A. Brecher, Esq.Law Office of Ethan A. Brecher, LLC

Mark E. Brossman, Esq.Schulte Roth & Zabel LLP

Larry Cary, Esq.Cary Kane LLP

Daniel E. Clifton, Esq.Lewis Clifton & Nikolaidis, P.C.

Michael Delikat, Esq.Orrick, Herrington & Sutcliffe LLP

Mark S. Dichter, Esq.Morgan Lewis & Bockius LLP

Donald C. Dowling, Jr., Esq.K&L Gates LLP

Eugene G. Eisner, Esq.Eisner & Associates, P.C.

Daniel Engelstein, Esq.Levy Ratner, P.C.

Zachary D. Fasman, Esq.Proskauer Rose LLP

Eugene S. Friedman, Esq.Friedman & Anspach

Laurence Gold, Esq.Bredhoff & Kaiser, P.L.L.C.

Willis J. Goldsmith, Esq.Jones Day

Michael E. Grenert, Esq.Liddle & Robinson, L.L.P.

Todd Gutfleisch, Esq.Wechsler & Cohen, LLP

Jerome B. Kauff, Esq.Kauff McGuire & Margolis LLP

Jeffrey S. Klein, Esq.Weil, Gotshal & Manges LLP

Jeffrey I. Kohn, Esq.O’Melveny & Myers LLP

Frances Milberg, Esq.

James M. Murphy, Esq.Spivak Lipton LLP

Wayne N. Outten, Esq.Outten & Golden LLP

Andrew Peterson, Esq.Jackson Lewis LLP

Mark D. Risk, Esq.Mark Risk P.C.

Theodore O. Rogers, Jr., Esq.Sullivan & Cromwell LLP

Martin Schmelkin, Esq.Goldman Sachs & Co.

Lee R.A. Seham, Esq.Seham Seham Meltz & Petersen, LLP

Susan P. Serota, Esq.Pillsbury Winthrop Shaw Pittman LLP

Samuel S. Shaulson, Esq.Morgan, Lewis & Bockius LLP

Ronald H. Shechtman, Esq.Pryor Cashman LLP

Stephen P. Sonnenberg, Esq.Paul Hastings LLP

Darnley D. Stewart, Esq.Outten & Golden LLP

Scott J. Wenner, Esq.Schnader Harrison Segal & Lewis LLP

Robert Whitman, Esq.Seyfarth Shaw LLP

Daniel M. Young, Esq.Wofsey, Rosen, Kweskin & Kuriansky, LLP

Pearl Zuchlewski, Esq.Kraus & Zuchlewski LLP

Ex OfficioEsta R. Bigler, Esq.Cornell University, ILR School

Hon. Kent Y. HirozawaNational Labor Relations Board

Hon. Harry I. Johnson IIINational Labor Relations Board

Hon. Mark G. PearceChairman, National Labor Relations Board

Lynn Rhinehart, Esq.American Federation of Laborand Congress of Industrial Organizations

Associate AdvisorsKaren P. FernbachNational Labor Relations Board,Region 2

Terrance Nolan, Esq.New York University

James G. PaulsenNational Labor Relations Board,Region 29

Preston L. Pugh, Esq.Pugh, Jones & Johnson, P.C.

Justin M. Swartz, Esq.Outten & Golden LLP

EmeritusJohn-Edward Alley, Esq.Ford & Harrison LLP

Robert Battista, Esq.Littler Mendelson P.C.

Ida Castro, Esq.V-Me Media, Inc.

G. Peter Clark, Esq.Kauff McGuire & Margolis LLP

Michael Curley, Esq.Curley & Mullen LLP

Prof. Frederick FeinsteinOffice of Executive Programs,School of Public Policy,University of Maryland

22

Prof. Joan FlynnCleveland State UniversityCleveland-Marshal College of Law

Sarah M. Fox, Esq.Bredhoff & Kaiser, P.L.L.C.

Prof. William B. Gould IVStanford Law School

Steven Hantler, Esq.American Justice Partnership

Seth D. Harris, Esq.Cornell University, ILR School;Dentons US LLP

Reginald E. Jones, Esq.Ogletree, Deakins, Nash,Smoak & Stewart, P.C.

Meryl R. Kaynard, Esq.Queens College

Patricia Langer, Esq.NBCUniversal Inc.

Henry D. Lederman, Esq.Littler Mendelson P.C.

David J. Reilly, Esq.Arbitrator-Mediator-Fact-Finder

Daniel Silverman, Esq.Silverman & Silverman, LLP

Eric Taussig, Esq.Law Office of Eric Taussig

Research FellowsProf. John T. AddisonUniversity of South Carolina,Moore School of BusinessDepartment of Economics

Prof. Kati GriffithCornell University, ILR School

Prof. Matthew BodieSaint Louis University School of Law

Prof. Ronald C. BrownUniversity of HawaiiWilliam S. Richardson School of Law

Prof. Ross E. DaviesGeorge Mason UniversitySchool of LawProf. Zev Jacob EigenNorthwestern UniversitySchool of Law

Prof. G. Mitu GulatiDuke University Law School

Prof. Jeffrey M. HirschUniversity of TennesseeCollege of Law

Prof. Yoram MargaliothTel Aviv University

Dean Andrew P. MorrissTexas A&M University School of Law

Prof. Jonathan R. NashEmory University School of Law

Prof. Daniel F. O'GormanBarry University,Dwayne O. Andreas School of Law

Dean Sharon Rabin-MargaliothRadzyner School of Law,The Interdisciplinary Center Herzliya (IDC)

Prof. César F. Rosado MarzánIIT Chicago-Kent College of Law

Prof. Paul M. SecundaMarquette University Law School

Prof. David SherwynCornell University School of Hotel Adminis-tration

Prof. Susan J. StabileUniversity of St. ThomasSchool of Law

Prof. Michael SteinWilliam & Mary School of Law

Prof. Kerri L. StoneFlorida International UniversityCollege of Law

Dean Michael J. YelnoskyRoger Williams UniversitySchool of Law

New York UniversitySchool of LawAssociated FacultyProf. William T. Allen

Prof. Paulette G. Caldwell

Prof. Cynthia Estlund

Prof. Lewis Kornhauser

Prof. Deborah Malamud

Prof. Richard Revesz

Prof. Laura Sager

Prof. Richard B. Stewart

23

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24

Center for Labor and Employment LawNew York University School of Law139 MacDougal Street, 4th FloorNew York, NY 10012Phone: (212) 992-8103Fax: (212) 995-4769

THE CENTER FOR LABOR AND EMPLOYMENT LAW was created in1996 to establish a nonpartisan forum for debate and study of thepolicy and legal issues involving the employment relationship.

The Center has four major objectives:

1. To promote workplace efficiency and productivity, while at the same timerecognizing the need for justice and safety in the workplace and respecting the dig-nity of work and employees2. To promote independent, nonpartisan research that would improve under-standing of employment issues generally, with particular emphasis on the connec-tions between human resources decisions and organizational performance3. To sponsor a graduate program for the next generation of law teachers andleading practitioners in the field4. To provide a forum for bringing together leaders from unions, employees andcompanies, as well as representatives of plaintiff and defense perspectives, for in-formal discussions exploring new frameworks for labor-management relations,workplace justice, fair and efficient resolution of employment disputes and repre-sentation in the workplace

Samuel Estreicher Torrey L. WhitmanDwight D. Opperman Professor of Law CoordinatorDirector torrey.whitman@nyu.edusamuel.estreicher@nyu.edu (212) 992-8103(212) 998-6226