ALI-ABA Topical Courses The New NLRB: Winds of Change in Labor Law May 21, 2010 Telephone Seminar/Audio Webcast TABLE OF CONTENTS

Transcription

1 ALI-ABA Topical Courses The New NLRB: Winds of Change in Labor Law May 21, 2010 Telephone Seminar/Audio Webcast PROGRAM FACULTY PARTICIPANTS FACULTY BIOGRAPHIES STUDY MATERIALS TABLE OF CONTENTS 1. The New NLRB: The Winds of Change in Labor Law By Peter M. Panken 2. Improving the Administration of the Act: Professor Estreicher s List, May 2010 By Patrick J. Szymanski Page ix xi xiii 1 21 vii

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3 PROGRAM SCHEDULE For May 21, 2010 Program Schedule Eastern Central Mountain Pacific & Arizona Alaska Hawaii Program Begins 12:30 p.m. 11:30 a.m. 10:30 a.m. 9:30 a.m. 8:30 a.m. 6:30 a.m. Adjournment 2:30 p.m. 1:30 p.m. 12:30 p.m. 11:30 a.m. 10:30 a.m. 8:30 a.m. Program (All Times Eastern Daylight) 12:30 p.m. Program Begins. Faculty of labor and management representatives will discuss: Current status of NLRB membership Issues raised but not decided by 2-member NLRB Board Issues from the Bush era that might see a different result if brought before the new NLRB 2:30 p.m. Program Ends. Scope and Purpose: This seminar will outline the issues facing the new NLRB as it begins its deliberations. As the Board had been operating with only two members, the pair issued decisions only on noncontroversial subjects upon which they could both agree. They withheld decisions on other matters pending the restoration of the full Board membership. The panel will discuss major questions that were considered but not decided by the two-member NLRB. The NLRB is also expected to look at other issues and policies that were the object of dissents during the Bush era through decisions or rulemaking, should the opportunity arise. The panel will also discuss the potential impact should some of those decisions be overturned by the newly constituted NLRB. Suggested Prerequisite: Familiarity with Labor Management Relations and National Labor Relations Act law Educational Objectives: Acquisition of knowledge and skills to develop proficiency as a practitioner; maintenance of professional competence as a practitioner; provision of information on recent legal developments Level of Instruction: Intermediate Total 60-minute hours of instruction: 2.0. Total 50-minute hours: 2.4. ix

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5 ALI-ABA Topical Courses The New NLRB: Winds of Change in Labor Law May 21, 2010 Telephone Seminar/Audio Webcast PLANNER & FACULTY Peter M. Panken, Esquire Epstein Becker & Green, PC 250 Park Avenue New York, New York FACULTY Michael C. Harper, Esquire Professor of Law Boston University School of Law 765 Commonwealth Avenue - Room: 1070F Boston, Massachusetts John E. Higgins, Jr., Esquire Deputy General Counsel National Labor Relations Board th St. N.W. Washington, D.C Steven M. Swirsky, Esquire Epstein Becker & Green, PC 250 Park Avenue New York, New York Patrick J. Szymanski, Esquire General Counsel, Change to Win 1900 L Street, NW, Suite 900 Washington, D.C xi

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7 PLANNER & FACULTY: ALI-ABA Topical Courses The New NLRB: Winds of Change in Labor Law May 21, 2010 Telephone Seminar/Audio Webcast FACULTY BIOGRAPHIES Peter M. Panken is a Member of Epstein, Becker & Green PC in the Labor and Employment practice in the firm's New York office. He represents management in a wide range of industries on all aspects of employment and union-related matters. He has been recognized in Best Lawyers in America ( ), as well as in The International Who's Who of Business Lawyers, and Who's Who in America, Who's Who in the East, Who's Who Legal, and Who's Who in the World. Mr. Panken also was named a "New York Super Lawyer" by New York Super Lawyers - Metro Edition magazine in 2006, 2007, 2008, and Mr. Panken: Litigates before federal and state trial and appellate courts, arbitrators, and administrative agencies, including the Equal Employment Opportunity Commission, the National Labor Relations Board, state and local employment discrimination agencies (New York, New York City, New Jersey, Connecticut, etc.), and the U.S. Department of Labor (the Occupational Safety and Health Administration, Wage and Hour Division; the Office of Federal Contract Compliance Programs; and the Pension Benefit Guaranty Corporation) Negotiates collective bargaining agreements with the following unions: TWU, IBEW, IBT, UFCW, ILGWU, UAW, RWDSU, SEIU, UNITE, UNITE-HERE, BCTWU, District 65, ACTWU, AGMA, AFM, AFT, and OPEIU Advises employers and HR officials on dealing with particular employee problems Prepares employee manuals Devises grievance procedures Conducts training for managers and employees Mr. Panken publishes and speaks extensively on a wide variety of labor and employment topics, including State Employment laws and regulations, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Employee Retirement Income Security Act, the Fair Credit Reporting Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the National Labor Relations Act, the Occupational Safety and Health Act, and the Sarbanes-Oxley Act, alternative dispute resolution, other federal and state anti-discrimination and employment regulation laws, drafting employee manuals, drafting work rules, drafting executive employment contracts, creating employment applications, and avoiding liabilities in employee terminations and reductions in forces. Mr. Panken is the Editor-in-Chief of American Law Institute-American Bar Association Committee on Continuing Professional Education's Labor and Employment Law: Resource Materials (a 2,500-page volume of practical materials biannually updated through nine editions); xiii

8 the author and editor of A State-by-State Survey of the Law on Religion in the Workplace. He is the author of the chapter "Americans with Disabilities Act" of the Employment Law Deskbook for Human Resources Professionals and a contributing editor to The Developing Labor Law. Mr. Panken regularly authors articles annually in numerous publications, including Employment Relations Today (Wiley), Prentice Hall Employment Law Services, Nation's Business, the American Management Association Journal, The Practical Lawyer, The Practical Litigator, and ALI-ABA Business Law Course Materials Journal, and industry trade journals. Topics have included the following: Employment discrimination (Title VII, ADEA, ADA, sexual harassment, drugs, state and local discrimination laws) Federal and state wage and hour litigation Personnel relations (drafting personnel manuals, affirmative action plans and executive employment contracts, structuring grievance procedures and alternative dispute resolution procedures, and reductions in force) Drafting employee handbooks and employment contracts Union organizing OSHA Litigation techniques (before courts and administrative agencies) Mr. Panken regularly chairs ALI-ABA and Bar Association programs on labor and employment law. FACULTY: Michael C. Harper. Professor of Law, is the Barreca Labor Relations Scholar at the Boston University School of Law. He is a leading authority in the area of labor and employment law. Since joining the Boston University School of Law faculty in 1978, he has witnessed a growing student interest in this field. "Employment law has generated some very interesting litigation over the last two decades," he says. "Because employment is central to an individual's life - often defining his or her identity - the practice of employment law demands insight into many complex social issues as well as a solid understanding of current laws and regulations." Early in his career, Professor Harper clerked for Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia Circuit and served as staff attorney and director of the Student Internship Program at the Center for Law and Social Policy in Washington, D.C. He has co-authored several major casebooks, including Employment Discrimination and Employment Law and Labor Law, and he has written many journal articles, including Judicial Control of the National Labor Relations Board s Lawmaking for the Boston University Law Review, The Continuing Relevance of Section 8(a)(2) to the Contemporary Workplace for the Michigan Law Review, Employer Liability for Harassment Under Title VII for the San Diego Law Review, and Age-Based Exit Incentives, Coercion, and the Prospective Waiver of ADEA Rights for the Virginia Law Review. He also has served as a reporter for the American Law Institute s Restatement of Employment Law. xiv

9 In addition to teaching classes in labor law, employment law and administrative law, Professor Harper offers a popular seminar examining law and sports. A life-long devotee of American and English literature, he also has an interest in law and literature. He received his law degree from Harvard University. John E. Higgins, Jr. is Deputy General Counsel of the National Labor Relations Board in Washington, D.C. He has been with the Agency for 44 years. He began his career as a Field attorney and then a Supervisory Attorney in the Memphis Regional Office. He later served in the Division of Advice. He also served in the Division of Operations Management, as Inspector General and has twice been designated as a Board Member and as Acting General Counsel. He was honorably discharged from the Marine Corps Reserve in Higgins is a graduate of Boston College, Boston University Law School and the Cornell University School of Industrial and Labor Relations. He is a member of the Council of the Labor and Employment Law Section of the ABA, was co-editor of the 4 th Edition of Developing Labor Law and is Editor in Chief of the 5 th Edition of that text. Steven M. Swirsky is a Member of Epstein Becker & Green, PC, in the Labor and Employment and Health Care and Life Sciences Practices in the firm's New York office. He regularly represents employers in a wide range of industries, including retail, health care, manufacturing, banking and financial services, manufacturing, transportation and distribution, electronics and publishing. He frequently advises and represents United States subsidiaries and branches of Asian, European and other foreign-based companies. Mr. Swirsky: Advises employers on a full range of labor and employment matters involving labor and employment issues in transactional matters Represents employers in union avoidance, organizing campaigns, and related proceedings before the National Labor Relations Board Represents employers in collective bargaining and in connection with strikes, picketing and arbitration proceedings Handles grievances and arbitrations concerning work rule disputes and discharges, for both unionized and non-unionized employers Assists with employment litigation, including Title VII, ADEA, ADA and other employment discrimination matters before state and federal courts and administrative tribunals including the EEOC, and the New York State Division of Human Rights Prepares and revises employment manuals and personnel policy manuals Structures employment agreements, including those involving protection of trade secrets and proprietary technology, and litigation involving employment contracts, restrictive covenants, and protection of confidential and proprietary information. From 1978 to 1983, Mr. Swirsky served as a Field Attorney with the National Labor Relations Board in Brooklyn, New York. Mr. Swirsky frequently writes and speaks on a wide range of labor and employment law matters and presently serves on the boards of several not-for-profit organizations. He also is currently xv

10 noted in The Best Lawyers in America, PLC Which Lawyer? Yearbook and New York Super Lawyers - Metro Edition. Patrick J. Szymanski is General Counsel for Change to Win, an alliance of five Unions representing 5.5 million members in the United States, Canada and Puerto Rico. The five unions are the International Brotherhood of Teamsters, the Laborers International Union of North America, the Service Employees International Union, the United Farm Workers, and the United Food and Commercial Workers International Union. He attended the Massachusetts Institute of Technology and received his undergraduate degree from Wayne State University where he majored in mathematics. He received his law degree from Wayne State University Law School in He was a lawyer in the Enforcement Division of the National Labor Relations Board in Washington, D.C., from 1976 through 1978 and again from 1983 through 1988 where he briefed and argued cases before the United States District Courts and Courts of Appeal and briefed cases before the United States Supreme Court. From 1978 through 1983 he was attorney with the San Francisco office of Beeson, Tayer & Bodine where he advised and represented Teamsters Local Unions and Joint Councils in Northern California, other labor organizations and related benefit funds in negotiations, internal affairs, arbitration cases and proceedings before various state and federal agencies and courts. From 1988 through 2002 he was an attorney and partner at the Washington, D.C., law firm of Baptiste & Wilder where he continued the practice of labor law representing primarily Teamster affiliates, related benefit funds and individual officers and members. Mr. Szymanski became counsel to the Hoffa Campaign in late 1995 and represented the Campaign throughout the 1996 Election, at the 1996 Teamsters International Convention, and in litigation that led to the 1998 Teamsters Rerun Election. He was named Teamsters General Counsel by General President Hoffa in March 1999 and served in that position until late 2005 when he became General Counsel to Change to Win. He is a member of the bar in Michigan, California and the District of Columbia, the bar of the United States Supreme Court, and the bars of several federal district and appellate courts. xvi