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Wait, you mean Brandeis is asking for YOUR help?

Yes. I know you want to strut like a rooster, but wait until you actually read the rest of this to do so. Wait, wait - okay, strut if you want.

Done? All right, moving right along.

I've been fired up by a decision issued last week by the NLRB (National Labor Relations Board, the court that decides disputes between workers acting collectively and employers). Basically, the Board issued a decision on the last day of the Chairman's term, after this Senate made it clear that he was no longer acceptable as Chairman, and I think in his hurry to give one last "F^#& you" to unions, workers, and Democrats, that the opinion misunderstands Constitutional law.

So, here's the background:

This decision, Register-Guard, which can be found under the citation 351 NLRB No. 70, or at the NLRB website [here http://www.nlrb.gov/shared_files/Board%20Decisions/351/V35170.pdf], overturns what I think is roughly twenty years of consistent precedent. So first, let me explain the old rule, and then I'll explain the new rule, hopefully without having to get too legalistic.

So, the old rule was that an employer could impose on their employees a rule forbidding solicitation (which is just asking for stuff). An employer could even forbid talking by employees other than on work business (I once worked at a place like that - it sucked). But the no-solicitation rule had to be just that, no-solicitation. It couldn't be "Susie gets to put up her 'Puppies for Sale' sign, but Johnny can't put up his 'Join the Union' sign." That would be "disparate enforcement," and would be discriminating against the union in violation of the National Labor Relations Act (NLRA). A rule that applied to employee speech during working time also could be applied to employer property like bulletin boards and e-mail systems.

The Board, in this decision, changed that rule. Adopting the reasoning of the Seventh Circuit in a couple of decisions, the Board has decided that selling stuff is different from union postings, and so are "personal postings," which are things like wedding announcements and the like. Therefore, the Board has adopted a new rule: that "disparate enforcement" only exists when the line between permitted and forbidden speech is made on a ground covered by the NLRA. Basically, the new rule says that the employer can't allow antiunion workers to solicit while forbidding prounion workers. There's some stuff in the opinion about "organizational" postings being the line, and that may indicate a slightly broader rule, but the only example the Board gives for conduct that would violate the rule is the one I just said - letting one side of the union divide speak, pro or con, and preventing the other.

Here's where I need help. I have an instinct that this rule is unconstitutional - that it violates the First Amendment. I don't want to get too bogged down in where my thinking is, partially to avoid boring you and partially to avoid "prior publication" under copyright. But my instinct means nothing without solid research. I need to hash out my reasoning, and back it up solidly with good law every step of the way. I want to write a law review article on this. It may be submitted as my student note for the new journal I'm working on founding at Alabama - the Alabama Civil Rights-Civil Liberties Law Review. Or if that collapses under its own weight, I'll submit it to journals elsewhere.

If I were a law professor, I would just hire a couple of law students to help me out. But I'm not a law professor, and I can't afford to pay research assistants. So instead, I want you to volunteer!

I'm kidding, of course. Well, not really. What I need is people who get the reasoning behind my instincts, who are willing to either do the research on their own (if they have a flat-fee Westlaw or Lexis subscription), or read stuff I send that I think might be helpful, figure out what is helpful and send summaries back to me so that I don't have to wade through quite so much crap. Because let's face it: any of you who've done research know that you read much more crap that seems germane and turns out not to be than you read stuff that helps.

Why should you be interested in this? Simply, because the American labor movement is suffering a death of a thousand cuts. The NLRA still says that the national labor policy of the United States is to encourage collective bargaining. But the number of workers covered by collective bargaining agreements continues to drop, and the power of workers coming together only exists if they can actually talk to each other about coming together. Republican-dominated Labor Boards have consistently acted to contract worker power while paying lip service to the law's professed preference. Lip service to the law IS, at its heart, the destruction of the rule of law. Those who would destroy the rule of law never come out and say that's what they're doing until they can't be stopped. They always pay lip service, which means that they can still be shut down.

I am not denying the vital importance of other realms where the "creeps," as Dan calls them, are attacking the rule of law. I am being published this year in the ABA Section of International Law's Year-in-Review, a casenote on one of the enemy combatant habeas cases. But this is an opportunity to make an argument that the Board, a quasi-judicial body, has taken leave of the law. Certainly there are those who will suggest that the Board has also taken leave of its senses; I'm not going to be quite so bold. But the point is that it seems that the law is clearly against the Board, and I think there's room to go after them - hard, and push back against those who would dismiss our law.

If you're interested, you can e-mail me at matthewkrellSPAMWORKSFORBELOWMINIMUMWAGE@bellsouth.net - minus the text in capitals. Or you can leave a comment here. I'll send you an e-mail with an abstract of my reasoning, and you can decide what you want to do.

Full post as published by Supreme Dicta on January 01, 2008 (boomark / email).