NLRB & Social Media

As a labor and employment mediator and arbitrator, I have been alternatingly intrigued and concerned about recent NLRB guidelines and ALJ rulings concerning use of and limitations on the use of social media.  See, e.g., Aug. 18, 2011 NLRB Office of General Counsel Report

Recent Employment Law Decisions--Fees Shifting, Exhaustion and Preclusion

My arbitration, mediation and ALJ practice is booming these days, as is my guardian ad litem (GAL) practice.  As a result, I am woefully behind on my blogs, with a pile of items to review and write up.  I'm not sure how the really prolific--or even moderately prolific--bloggers do it, once their practice picks up.  In any event, here is a belated summary of recent New Mexico employment law cases.

Albuquerque Labor Board Unable to Agree on Neutral Appointment

The City of Albuquerque's Labor Management Relations Board--currently comprised of the Labor and Management appointments, Justin Lesky and Barbara Stephenson respectively--met today at 9:00 a.m. at the Mesa Del Sol Building, but were unable to reach a decision on the neutral appointment.  The Labor rep is looking for a candidate with specific labor experience, while the Management rep appears to be looking for a candidate who has a track record representing both sides of the table in either labor or employment matters.

CBA Arbitration Clauses & Other Statutory Rights

I do not know what the practice is in other jurisdictions, but collective bargaining agreements (CBAs) in the New Mexico public sector typically include a clause prohibiting all kinds of statutorily illegal discrimination, not just that related to collective bargaining.  In these same contracts, there are also mandatory grievance-arbitration requirements that purportedly apply to all provisions except those that are expressly exempted.  Moreover, although these contracts frequently state that claims for discrimination or retaliation based on union activity may be brought before the state labor board, the New Mexico Public Employee Labor Relations Board (PELRB), there is no such carve out or proviso concerning other statutory discrimination claims.

While a hearing examiner with the PELRB I had previously wondered, privately, if such clauses could be read together to require employees to assert these claims through arbitration.  I had, frankly, tended to assume such a thing could not be a good thing.   However, Hoyt N. Wheeler has written a provocative, pause-giving little article in the LERA publication, Perspectives on Work, Vol. 14*, Summer 2010/Winter 2011, about the possible positive outcomes such arbitration.  See “Unions and the Arbitration of Statutory Rights,” Perspectives at 26-28. 

Unions’ Role in “the New Normal”

I am a labor/employment neutral, and I also do domestic and foreclosure mediation.  In all my work I see that times are tough all around, and it seems like the struggle to get and keep a job, and earn enough money to support your family in current economic situation is not getting any better.  My husband thinks this is the “new normal” and I’m beginning to believe him.

The news stories of other families struggling to make ends meet, to keep jobs, to meet bills, etc. certainly seem to bear out his theory.  See David Brooks, NY Times Op-Ed, “The New Normal” (Feb. 28, 2011) at http://www.nytimes.com/2011/03/01/opinion/01brooks.html; Alice Gomstyn, “Finance: Americans Adapt to the 'New Normal” (Jun. 15, 2009), at  http://abcnews.go.com/Business/Economy/story?id=7827032&page=1. And, as households reorganize their personal priorities and finances in this economic environment, we should not be too surprised to see similar reorganizations going on, as well, at the state, national and international levels. We should also not be surprised that such reorganizations are as painful on these larger stages, as they are in our own homes.