The Discipline Book

Harvey and Eric Randall just updated their wonderful treatise called "The Discipline Book" which is available on Amazon now. https://www.amazon.com/DISCIPLINE-BOOK-Essentials-Discipline-Employees/dp/1632639459.

The description from Amazon is as follows:

This comprehensive handbook has been written for administrators, union officials and attorneys involved in disciplinary actions taken against public officers and employees employed by New York State and its political subdivisions, under various State laws, including the Civil Service Law, the Education Law and contract disciplinary grievance procedures negotiated pursuant to the Taylor Law. Also a valuable resource for those involved in disciplinary actions taken against public officers and employees serving with other states.

But, the book is much more than this. It spans 674 pages and it is an everything you wanted to know book about public employee discipline in New York. For example, it covers Education Law Section 3020-a and CIvil Service Section 75 hearings in detail. It also discusses the leading appellate cases.

It is a "must" purchase for anyone who practices in this area. What is really nice about the book is that it is in electronic form and it is searchable. That will save readers a lot of time.

Judge Kavanaugh Made Some News About The Right to Privacy During His Confirmation

I was again quoted in the Washington Times about Judge Kavanaugh's confirmation hearings; this time about his views with respect to the right to privacy. Brett Kavanaugh's Digital Privacy Revelation Intrigues Senators, Advocates (Washington Times Sep't. 10, 2018).  

As reporter Alex Swoyer, esq. notes, Judge Kavanaugh previously indicated that bulk collection of telephone digital data would not violate the right to privacy, but his decision may no longer be good law because of the Carpenter Supreme Court decision. He also appears willing to apply Carptenter to other areas of the law. Specifically, I was quoted as follows:

But Mitchell Rubinstein, a New York-based lawyer, said the exchange between Judge Kavanaugh and Mr. Leahy was important because the nominee called the Carpenter case a “game changer.” “It appears that a Justice Kavanaugh will recognize the importance of privacy in many different areas that are likely to come up because of the explosive use of technology in this country,” he said.
 Mr. Rubinstein noted that Sen. Ben Sasse, Nebraska Republican, praised Mr. Leahy’s questioning.
 He said it may have been the “most striking and perhaps the most significant part” of the confirmation hearing. “There was a discussion about the past and the future and not about the political left or right,” Mr. Rubinstein said.

Accusations Fly Against Judge Kavanaugh During His Confirmation Hearings

The Constitution, of course, requires the advice and consent of the Senate to confirm all federal judges, including Supreme Court Justices.

Unfortunately, the Senate confirmation hearings for Judge Kavanaugh are becoming somewhat of a circus. An interesting article documenting all of this appears in the September 6, 2018, Washington Times entitled Accusations Fly Against Kavanaugh In Craziest Supreme Court Confirmation in Decades.  In that article, I am quoted as stating:

“I never before saw observers in the hearing room physically removed by the police,” said Mitchell H. Rubinstein, a New York-based lawyer.

“The Democrats do not have the votes to stop the nomination and never did. I do not think their strategy changed and the vitriolic nature of some of the comments demonstrates how frustrated they feel,” he said.

No matter what your politics are. The confirmation of a Supreme Court Justices is critically important to this nation. The process needs to be dignified and respectful because, in the end, we all need to respect our judicial system and the law.

Will Judge Kavanaugh Be Confirmed and What Type of Justice Will He Be?

Next month Judge Kavanaugh confirmation hearings will start and you can expect political bickering and argument from both sides of the aisle. This is President Trump's second appointment and because Judge Kavanaugh will, if confirmed, be replacing a moderate, this appointment will likely swing the court far to the right. 

But, just who is Judge Kavanaugh? We know he worked in the Bush Administration and on the Kenneth Star Report and he sits on the D.C. Circuit. Senator Schumer has been widely quoted as stating that the best predictor of how he will rule as a Supreme Court Justice is by examining how he ruled while sitting on the D.C. Circuit. I disagree. I was quoted in theAugust 19, 2018, Washington Times as stating:

“He is a prolific writer and not afraid to dissent from the majority,” said Mitchell Rubinstein, a New York based lawyer...Mr. Rubinstein said those rulings suggest the judge is a strong supporter of national security but has been bound by precedent, so dissecting his rulings won’t necessarily predict opinions if he is confirmed to the high court.

It is, therefore, much more important to examine Judge Kavanaugh's non-judicial writings. Thus, in my view, his legal scholarship and his speeches are much more important than what he said in a judicial opinion, whether it be a majority or dissenting opinion-though those opinions do have some value. I just do not believe that they are as important as Senator Schumer believes that they are. 

As for whether he will be confirmed, of course, he will. It is all about the numbers. 

Is The Janus Ruling Retroactive?

The Supreme Court recently held that an Illinois agency fee statute which mandated that non-union members pay an amount equivalent to union dues violated the First Amendment. Janus v. AFSCME, 585 U.S. ___(June 27, 2018).  Query whether this case is retroactive, i.e., can agency fee payers seek to collect fees they previously paid? The Court did not discuss this issue.

The Supreme Court has, however, repeatedly recognized:

Elementary considerations of fairness dictate that individuals
should have an opportunity to know what the law is and
to conform their conduct accordingly; settled expectations
should not be lightly disrupted. For that reason, the principle
that the legal effect of conduct should ordinarily be
assessed under the law that existed when the conduct took
place has timeless and universal appeal.  Landgraf v. USI Fim Prods.511 U.S. 244, 265-266 (1994), quoting, Kaiser Aluminum and Chemical Corp. v. Bonjorno, 494 U.S. 827, 855 (Scalia, concurring).

There are also, however, decisions that have been found to be retroactive. See, Kay, Retroactivity and Prospectivity of Judgements in American Law, 62 Am. J. Comp. L. 37 (2014) (discussing case law). 

I was recently interviewed by the Washington Times about the issue and was quoted as explaining:

“In my view, it’s very unlikely that there will be any retroactivity with respect to this decision, and the reason for that is the Janus decision overruled 41-year-old precedent,” said Mitchell Rubinstein, a New York-based lawyer. “It changed existing law.”  Alex Swoyer, In Wake of Supreme Court's anti-union ruling, non-members seek repayment of dues, Washington Times, August 12, 2018.

If the ruling is retroactive then how far back can courts go? The answer is that it depends on the applicable statute of limitations. Most of these cases are brought as 42 U.S.C. 1983 lawsuits which, in states such as New York, have a 3 year statute of limitations.

A finding of retroactivity can be devasting to some unions. That is why it is likely that most unions will seek to avoid litigation and settle cases involving individual union members or involving small numbers of employees. Class action lawsuits, however, may be a different story and only time can tell what will ultimately happen.

Janus Presents Opportunities For Private Attorneys To Participate In Union Proceedings

On June 27, 2018, the Supremes held in Janus v. AFSCME, 585 U.S. ___(June 27, 2018), that agency fee statutes violated the First Amendment. Some 22 states, including NYS, have agency fee legislation which requires public employees to pay a fee instead of union dues if they do not want to join a union. Those individuals can also object to paying a portion of the agency fee that was unrelated to collective bargaining. That was the rule established in Abood v. Detroit Bd. of Education, 431 U.S. 209 (1977) that Janus overruled.

Very significantly, in response to the argument that agency fee statutes were necessary to prevent the free rider problem (i.e., non-union members receiving union services for free), the Court stated at page 17:

"In any event, whatever unwanted burden is imposed by the representation of nonmembers in disciplinary matters can be eliminated through means significantly less restrictive of associational freedoms than the imposition of agency fees. Individual nonmembers could be required to pay for that service or could be denied union representation altogether.  Thus, agency fees cannot be sustained on the ground that unions would otherwise be unwilling to represent nonmembers." (emphasis added)(citations omitted).

In anticipation of this decision, New York recently amended the Taylor Law to provide that unions do NOT have a duty to represent non-members in disciplinary proceedings or in investigatory interviews. Specifically, the Taylor Law now provides:

Notwithstanding any law, rule or regulation to the contrary, an employee organization’s duty of fair representation to a public employee it represents but who is not a member of the employee organization shall be limited to the negotiation or enforcement of the terms of an agreement with the public employer. No provision of this article shall be construed to require an employee organization to provide representation to a non-member(i) during questioning by the employer,(ii) in statutory or administrative proceedings or to enforce statutory or regulatory rights, or(iii) in any stage of a grievance, arbitration or other contractual process concerning the evaluation or discipline of a public employee where the non-member is permitted to proceed without the employee organization and be represented by his or her own advocate.Nor shall any provision of this article prohibit an employee organization from providing legal, economic or job-related services or benefits beyond those provided in the agreement with a public employer only to its members.

Therefore, this decision may open up many opportunities for private attorneys to represent union members in proceedings which formerly were the sole province of union attorneys.

Update July 2, 2018. NEA predicts a 14% membership decline over the next 2 years. Personally, I think that number will be about double.

2d Circuit Holds Union Speech Can Be Protected By The First Amendment

Montero v. City of Yonkers, ___F.3d___(2d Cir. May 16, 2018), is an important First Amendment decision. http://www.ca2.uscourts.gov/decisions The Court held that certain speech made at a union meeting can be protected by the First Amendment. The Court did not go as far as several other circuits which held that speech made at a union meetings is per se speech made by a private citizen. Specifically, the 2d Circuit stated:

While we therefore decline to decide categorically that when a person
speaks in his capacity as a union member, he speaks as a private citizen, we conclude that, under the facts of this case as set out in the amended complaint, when Montero spoke in his capacity as a union member, he spoke as a private citizen. This was because, taking the amended complaintʹs allegations as true, Montero spoke in his role as a union officer, and his union speech was not composed of statements made as a ʺmeans to fulfillʺ or ʺundertaken in the course of performingʺ his responsibilities as a police officer. Weintraub, 593 F.3d at 203 (quotation marks omitted). Consequently, he engaged in citizen speech for purposes of the First Amendment.

This decision is lengthly and it spans about 45 pages. The decision reviews the history of First Amendment jurisprudence in this Circuit and is a primer on First Amendment protections for public employees or the lack thereof which readers should be aware of.

Supremes Uphold Class Action Waivers

On May 21, 2018, the Supreme Court issued its long-awaited decision in Epic Systems v. Lewis, ___U.S.___(May 21, 2018). The issue in the case was simple. The Plaintiff signed an arbitration agreement which stated that he waived the right to bring a class action case. He sought to bring a class and collective action under the FLSA for unpaid overtime. In a 5-4 decision, the Court upheld the validity of class action waivers.

Plaintiff's major claim was the the class action waiver interfered with his right to engage in concerted activity under the NLRA. The Supremes rejected that argument and stated:
A close look at the employees’ best evidence of a potential conflict turns out to reveal no conflict at all. The employees direct our attention to the term “other concerted activities for the purpose of . . . other mutual aid orprotection.” This catchall term, they say, can be read toinclude class and collective legal actions. But the term appears at the end of a detailed list of activities speaking of “self-organization,” “form[ing], join[ing], or assist[ing] labor organizations,” and “bargain[ing] collectively.” 29
U. S. C. §157. And where, as here, a more general term follows more specific terms in a list, the general term is usually understood to “‘embrace only objects similar in nature to those objects enumerated by the preceding specific words.’” Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 115 (2001) (discussing ejusdem generis canon); National Assn. of Mfrs. v. Department of Defense, 583 U. S. ___, ___ (2018) (slip op., at 10). All of which suggests that the term “other concerted activities” should, like the terms that precede it, serve to protect things employees “just do” for themselves in the course of exercising their right to free association in the workplace, rather than “the highlyregulated, courtroom-bound ‘activities’ of class and jointlitigation.” Alternative Entertainment, 858 F. 3d, at 414– 415 (Sutton, J., concurring in part and dissenting in part)(emphasis deleted). None of the preceding and more specific terms speaks to the procedures judges or arbitratorsmust apply in disputes that leave the workplace and enter the courtroom or arbitral forum, and there is no textually sound reason to suppose the final catchall term shouldbear such a radically different object than all its predecessors.

Query, whether this language will limit the protections non-union employees, have under the NLRA to engage in concerted activity for mutual aid and protection.

2d Circuit Reviews Manifest Disregard of the Law Standard in Labor Arbitration

Chelsea v. N.Y. Hotel and Motel Trades Council, ____F.3d____(2d Cir. April 3, 2018), is brought to readers attention because it is a recent Second Circuit decision which, once again, demonstrates how difficult it is to vacate a labor arbitrator's decision. The court notes that there is a strong presumption that an arbitrator has not acted in manifest disregard of the law and it will uphold the decision under review so long as there is at least a slightly colorable basis. The court goes on the describe the manifest disregard standard as follows:

An arbitral decision rendered under the Labor
Management Relations Act (“LMRA”) may be vacated if the
arbitrator has exhibited a “manifest disregard of law.”
Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200, 208
(2d Cir. 2002) (internal quotation marks omitted).
Judicial inquiry under the “manifest disregard” standard is
“extremely limited.” Merrill Lynch, Pierce, Fenner &
Smith, Inc. v. Bobker, 808 F.2d 930, 934 (2d Cir. 1986);
see also Burns Int’l. Sec. Servs., Inc. v. Int’l Union,
United Plant Guard Workers of Am., 47 F.3d 14, 17 (2d Cir.
1995). To establish manifest disregard, Chelsea Grand must
show the arbitrator made “something beyond and different
from a mere error in the law or failure on the part of the
arbitrators to understand or apply the law.” Saxis S.S.
Co. v. Multifacs Int’l Traders, Inc., 375 F.2d 577, 582 (2d
Cir. 1967) (internal quotation marks omitted).
An arbitrator commits manifest disregard of the law
when the “governing law alleged to have been ignored by the
arbitrators [was] well defined, explicit, and clearly
applicable,” and the arbitrator “appreciate[d] the
existence of a clearly governing legal principle but
decide[d] to ignore or pay no attention to it.” Westerbeke
Corp., 304 F.3d at 209 (first alteration in original)
(quoting Merrill Lynch, 808 F.2d at 934); see also N.Y.
Tel. Co. v. Commc’ns Workers of Am. Local 1100, 256 F.3d
89, 91 (2d Cir. 2001) (per curiam). The rule ignored by
the arbitrator must be “obvious and capable of being
readily and instantly perceived by the average person
qualified to serve as an arbitrator.” Merrill Lynch, 808
F.2d at 933.

Governor Signs Into Law Major Legislation Narrowing A Unions Duty of Fair Representation

On April 12, 2018, Governor Cuomo signed Chapter 59 of the Laws of 2018 into law which amends the Taylor to narrow a public sector unions duty of fair representation. The amended statute now provides (the underlined portion represents the amendment):

  Improper  employee organization practices. It shall be an improper
   practice for an employee organization or its agents deliberately (a)  to
   interfere  with,  restrain or coerce public employees in the exercise of
   the rights granted in section two hundred two, or to cause,  or  attempt
   to cause, a public employer to do so provided, however, that an employee
   organization  does not interfere with, restrain or coerce public employ-
   ees when it limits its services to and representation of non-members  in
   accordance with this subdivision; (b) to refuse to negotiate collective-
   ly  in good faith with a public employer, provided it is the duly recog-
   nized or certified representative of the employees of such employer;  or
   (c)  to breach its duty of fair representation to public employees under
   this article. Notwithstanding any law, rule or regulation to the contra-
   ry, an employee organization's duty of fair representation to  a  public
   employee it represents but who is not a member of the employee organiza-
   tion  shall be limited to the negotiation or enforcement of the terms of
   an agreement with the public employer.  No  provision  of  this  article
   shall be construed to require an employee organization to provide repre-
   sentation  to  a non-member (i) during questioning by the employer, (ii)
   in statutory or administrative proceedings or to  enforce  statutory  or
   regulatory  rights, or (iii) in any stage of a grievance, arbitration or
   other contractual process concerning the evaluation or discipline  of  a
   public employee where the non-member is permitted to proceed without the
   employee organization and be represented by his or her own advocate. Nor
   shall  any  provision  of this article prohibit an employee organization
   from providing legal,  economic  or  job-related  services  or  benefits
   beyond  those  provided  in the agreement with a public employer only to
   its members.

This statute was reportedly enacted in anticipation of the U.S. Supreme Court's decision in Janus which may ultimately hold that it is a violation of the First Amendment for states (such as New York) to mandate that employees pay "agency fees" if they chose not to become union members. The Governor signed this statute into law at UFT headquarters, here, and reportedly stated that this statute “is the first step of the resistance.”