Labor and Employment Arbitrator: 7th Circuit Decides Agency Fee Case That May Wind Up In Supreme Court

Thursday, May 11, 2017

7th Circuit Decides Agency Fee Case That May Wind Up In Supreme Court

In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the Supreme Court upheld a state law which required public sector employees to pay an amount equal to union dues, but not join the union. This landmark First Amendment decision compromised the right of objectors (by recognizing that they do not have to join the union) as well as the right of unions (by allowing them to collect what are essentially dues because they have the obligation to represent non members).

In a series of cases, the concept of Agency Fee has been under attack. The Supreme Court granted cert and last term, split 4-4 after the death of Justice Scalia.

On March 21, 2017, the 7th Circuit-in an opinion by Judge Posner-decided a case that just may make it to the Supreme Court. Janus v. ASFME, ____F.3d____(7th Cir. March 21, 2017). The outcome of this case was never in doubt because the 7th Circuit was bound to follow Abood.

Will the Supremes grant cert in this case. I think they will. Why? First, Judge Posner is probably one of the most respected circuit judges. Additionally, the case was decided on a motion to dismiss and it presents purely a legal question. Third, the Supremes just split 4-4 on this very issue which by definition illustrates that this case involves an important legal issue.

What will the Supremes do? That is anyone's guess. Though I heard that our new Justice has never ruled on an agency fee issue, he is known to be conservative and he was appointed by let's say, not the most liberal President. So, some public sector unions are in for the fight of their life.

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Mitchell H. Rubinstein's Accomplishments

Education

J.D. Hofstra University School of Law

B.S. Cornell University School of Industrial and Labor Relations

Presently

-Hearing Officer, N.Y.C. Office of Administrative Trials & Hearings (“OATH”)

-Hearing Officer, N.Y.S. Education Dep’t., Office of Adult Career & Continuing Educational Services-Vocational Rehabilitation (“ACCES-VR”)

-Public Arbitrator-FINRA

-Adjunct Professor of Law, New York Law School

Formerly

-Employment Attorney, Sapir, Schragin, LLP (represented individuals)

-Senior Counsel, New York State United Teachers (“NYSUT”) (represented unions and union members)

-Adjunct Professor of Law, St. John’s Law School

-Labor Attorney, Trans World Airlines (“TWA”) (represented employer)

-Labor Associate, Breed, Abbott & Morgan (represented employers)

-Labor Associate, Seyfarth, Shaw, Fairweather & Geraldson (represented employers)

Published Scholarship

LAW REVIEW ARTICLES

1. Employees, Employers and Quasi-Employers; An Analysis Of Employees & Employers Who Operate In The Borderland Of An Employer-Employee Relationship, 14 U. Pa. J. Bus. L. 605 (2012).

2. Duty Of Fair Representation Jurisprudential Reform: The Need To Adjudicate Disputes In Internal Union Review Tribunals And The Forgotten Remedy Of Re-Arbitration, 42 U. Mich. J.L. Reform 517 (2009) (lead article).

3. Obama’s Big Deal; The 2009 Federal Stimulus; Labor And Employment Law At The Cross Roads, 33 Rutgers L. Rec. 1 (2009) (lead article).

4. A Lawyer’s Worst Nightmare: The Story Of A Lawyer And His Nurse Clients Who Were Both Criminally Charged Because The Nurses Resigned En Mass, 103 Nw. U. L. Rev. Colloquy 317 (2009).

5. Privacy Legal Issues In The Public Sector, 58th Ann. N.Y.U. Conf. on Lab., ch. 18, pp. 629-669 (Wolters Kluwer, Jonathan Remy Nash & Samuel Estreicher eds. 2010)(by invitation).

6. Sprint/United Co. v. Mendelsohn: The Supreme Court Appears To Have Punted On The Admissibility of “Me Too’ Evidence Of Discrimination. But Did It? 102 Nw. U. L. Rev. Colloquy 264 (2008)

6A. Reply To Professors David L. Gregory and Paul M. Secunda With Respect To The Significance Of Sprint/United Management Company v. Mendelsohn, 102 Nw. U. L. Rev. Colloquy 387 (2008).

7. Parents As Quasi-Therapists Under the Individuals With Disabilities Education Act, 76 U. Cin. L. Rev. 899 (2008).

8. Is a Labor Relations Evidentiary Privilege Developing?,29 Berkeley J. Emp. & Lab. L. 221 (2008).

9. Assignment of Labor Arbitration, 81 St. John’s L. Rev. 41 (2007).

10. Our Nation’s Forgotten Workers: The Unprotected Volunteers, 9 U. Pa. J. Lab. & Emp. L. 147 (2006).

11. Union Immunity From Suit In New York, 2 N.Y.U. J. L. & Bus 641 (Summer 2006) (lead article).

12. Altering Judicial Review Of Labor Arbitration Awards, 2006 Mich. St. L. Rev. 235 (Summer) (lead article).

13. Advisory Arbitration Under New York Law: Does It Have A Place In Employment Law? 79 St. John’s L. Rev. 419 (Spring 2005).

14. A New York Court Recognizes A Labor Union Evidentiary Privilege, 9 The Labor Lawyer 595 (Fall 1993).

15. The Use of Predischarge Misconduct Discovered After An Employee’s Termination As A Defense In Employment Litigation, 24 Suffolk Univ. L. Rev. 1 (1990) (lead article).

16. The Affirmative Action Controversy, 3 Hofstra Lab. L. J. 111 (1985).

SHORTER PUBLICATIONS

1. A Peek at New York Defamation Law, 82 N.Y.S. Bar. J. 58 (Nov./Dec. 2010).

2. Attorney Labor Unions, 79 N.Y.S. Bar Journal 23 (Jan. 2007).

3. Public Sector Labor and Employment Law (2d Ed. 1998) (By Lefkowitz, Osterman & Townley).

4. Contributing Editor, Discipline And Discharge In Arbitration (BNA 1998)

5. Reciprocal Discovery In Teacher Discipline Proceeding Under Section 3020-a Of The Education Law, Vol. 23, No. 2, p. 23, Labor & Employment Newsletter (NYS Bar Ass’n. June 1998).

6. Labor Arbitration Under New York Law, 64 N.Y.S. Bar Journal 35 (Sept/Oct. 1992).

7. Refusal to Hire Overqualified Applicants May Age Discrimination, NYLJ, May 17, 1991 at 1

8. Don’t Burden The Employers, National Law Journal, Oct. 30, 1989, at 13, col. 1.

Labor and Employment Arbitrator

Thursday, May 11, 2017

7th Circuit Decides Agency Fee Case That May Wind Up In Supreme Court

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