Of service workers, contracting out, joint employment, legal consciousness, and the university of Miami

Buffalo Law Review

Volumn 56, Issue 4, 2008, Pages 1059-1093

  Casebeer, Kenneth M ^a  

^a UNIVERSITY OF MIAMI   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 62449343117     PISSN: 00239356     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (95)

1. According to Richard Belous, the contingent workforce increased approximately seventy-five percent faster than the overall workforce between 1980 and 1993. As of 1995, it was projected that the contingent workforce would grow to represent 50% of the U.S. labor force. Richard S. Belous, The Rise of the Contingent Work Force: The Key Challenges and Opportunities, 52 WASH. & LEE L. REV. 863, 864-67 (1995).
2. See Guy Davidov, Joint Employer Status in Triangular Employment Relationships, 42 BRIT. J. INDUS. REL. 727, 728 (Dec. 2004).
3. See generally Change to Win, Who We Are, http://www.changetowin.org/fileadmin/pdf/CTW2Pager.pdf (last visited Oct. 31, 2008).
4. By doing so, it will be situated in the historiographical movement of recovering lost and minority voices, applied to a contemporary setting.
5. National Labor Relations (Wagner) Act, ch. 372, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C. §§ 151-169 (2000)).
6. Martin Van Der Werf, How Much Should Colleges Pay Their Janitors?: Student Protests Force Administrators to Consider Issues of Social Justice and Practicality, CHRON. HIGHER EDUC, Aug. 3, 2001, at A27.
7. Steven Greenhouse, Walkout Ends at Univeristy of Miami as Janitors' Pact is Reached., N.Y. TIMES, May 2, 2006, available at http://www.nytimes.com/2006/05/02/us/021abor.html.
8. Posting of Faculty for Workplace Justice to Picketline, Bishop Estevez Offers to Mediate Between President Shalala and the Striking Janitors, http://picketline.blogspot.com/2006/03/bishop-estevez-offers-to-mediate.html (Mar. 7, 2006, 21:50 EST).
9. Statement from University of Miami President Donna E. Shalala, New Work Group Formed to Study Compensation and Benefits for Employees of Outside Contractors, E-VEEITAS, Feb. 23, 2006, http://www6.miami.edu/news/ everitas/2005-06/02-23-06Extra.htm.
10. NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 345 (1938) (finding that in reinstating employees after a strike, discriminating against striking employees for the sole reason that they had been active in the union was an unfair labor practice, and the permanent replacement of such workers was not permissible).
11. See Labor Board Will Hear Union's Case, MIAMI HERALD, Feb. 2, 2006, at 3C.
12. Maya Bell, Fired University of Miami Janitor Leads Strike Over Benefits, ORLANDO SENTINEL, Mar. 1, 2006, at Di.
13. Posting of Faculty for Workplace Justice to Picketline, A Brief Documentary History: The President's Statement of 2/23, http://picketline. blogspot.com/2006/03/brief-documentary-history-presidents.html (Mar. 5, 2006, 09:34 EST).
14. Id.
15. Ana Menendez, While Shalala Lives in Luxury, Janitors Struggle, MIAMI HERALD, Mar. 1, 2006, at 1B.
16. Sailors' Union of the Pac. (Moore Dry Dock Co.), 92 N.L.R.B. 547 (1950). "When a secondary employer is harboring the situs of a dispute between a union and a primary employer, the right of neither the union to picket nor of the secondary employer to be free from picketing can be absolute. The enmeshing of premises and situs qualifies both rights."
17. Id. at 549.
18. See Local 761, Int'l. Union of Elec, Radio & Mach. Workers v. NLRB., 366 U.S. 667, 681-82 (1961).
19. See James J. Brudney, Neutrality Agreements and Card Check Recognition: Prospects for Changing Paradigms, 90 IOWA L. REV. 819, 824 (2004-2005).
20. It was rumored that UNICCO offered to waive the usual election period if SEIU agreed to an election. The union refused, perhaps believing an election was already tainted, or perhaps just preferring the card check procedure.
21. Seventy percent of private-sector workers organized (150,000) in 2005 were organized through card checks. Steven Greenhouse, Employers Sharply Criticize Shift in Unionizing Method to Cards from Elections, N.Y. TIMES, Mar. 11, 2006, at A9.
22. See generally Richard Michael Fischl, The Other Side of the Picket Line: Contract, Democracy, and Power in a Law School Classroom, 31 N.Y.U. REV. L. & SOC. CHANGE 517, 520 (2007);
23. Posting of Faculty for Workplace Justice to Picketline, FAQ One, http://picketline.blogspot.com/2006/03/faq-one.html (Mar. 4, 2006, 4:03 EST).
24. See generally Nicholas Spangler, U.M. Janitors' Strike Turns Park into Classroom, MIAMI HERALD, Mar. 3, 2006, at IB.
25. Faculty for Workplace Justice Posting, A Brief Documentary History: the President's Statement of 2/23, supra note 13.
26. Posting of Faculty for Workplace Justice to Picketline, Bishop Estevez Offers to Mediate Between President Shalala and the Striking Janitors, supra note 8.
27. Statement, SEIU Local 11, Announcement from Striking UNICCO Employees at UM (Mar. 7, 2006) (on file with author).
28. Posting of Faculty for Workplace Justice to Picketline, Teach-in Last Night, http://picketline.blogspot.com/2006/03/teach-in-last-night.html (Mar. 10, 2006, 7:34 EST).
29. Niala Boodhoo, Striking Workers at UM to Get Raise, MIAMI HERALD, Mar. 17, 2006, at A1.
30. According to the President's statement: It is also important to point out that the University's position on the labor dispute has not changed. The University remains neutral and is not a party to those discussions. That is an issue to be decided between UNICCO, its employees, and the union⋯. I appreciate your input on this issue during the past few weeks. And I know that you support our decision to provide increased wages and health insurance for the hourly employees of our service contractors. I wish I could assure you that the next few months will be quiet, as the union, service contract workers, and their employer engage in a debate over representation. We need to respect the process. Democracy is messy. Donna E. Shalala, A Message from President Shalala, NEWS IBIS (Univ. of Miami Student Newsletter, Miami, Fl.), Mar. 19, 2006, available at http://www6.miami.edu/ibis-news/ 20060319se/.
31. Boodhoo, supra note 27, at 10A.
32. Posting of Faculty for Workplace Justice to Picketline, Academic Senate: Three Cheers for Justice, http://picketline.blogspot.com/2006/03/ academic-senate-three-cheers-for-24.html (Mar. 24, 2006 19:27 EST).
33. Id.
34. Id.
35. Posting of Faculty for Workplace Justice to Picketline, Today's SEIU Press Release: A "Super" Majority, http://picketline.blogspot.com/ 2006/03/todays-seiu-press-release-super.html (Mar. 27, 2006 21:54 EST).
36. Press Release, SEIU, Today's SEIU Press Release: A "Super" Majority (Mar. 27, 2006) (on file with author).
37. Posting of Faculty for Workplace Justice to Picketline, Why a Hunger Strike: Statement from STAND, http://picketline.blogspot.com/2006/04/why- hunger-strike-statement-from-stand.html (Apr. 10, 2006, 18:11 EST).
38. Press Release, Donna E. Shalala, President Shalala's Message to Students (Mar. 27, 2006) (on file with author), available at http://picketline. blogspot.com/2006/03/president-shalalas-message-to-students.html.
39. Abby Goodnough & Steven Greenhouse, Anger Rises on Both Sides of Strike at U. of Miami, N.Y. TIMES, Apr. 18, 2006, at A18.
40. Posting of Faculty for Workplace Justice to Picketline, Why Are All the Workers Not on Strike?, http://picketline.blogspot.com/2006/04/why-are- all-workers-not-on-strike.html (Apr. 7, 2006, 16:40 EST).
41. Posting of Faculty for Workplace Justice to Picketline, Yesterday at Justice City: One Striker is Evacuated, http://picketline.blogspot.com/2006/ 04/yesterday-at-justice-city-one-striker.html (Apr. 10, 2006, 15:20 EST).
42. Posting of Faculty for Workplace Justice to Picketline, Message from the Hunger Strikers, http://picketline.blogspot.com/2006/04/message-from- hunger-strikers.html (Apr. 10, 2006 17:59 EST).
43. Donna Shalala, Letter to the University of Miami Community, Apr. 12, 2006
44. Posting of Faculty for Workplace Justice to Picketline, What About Card Check Versus NLRB Elections?, http://picketline.blogspot.com/2006/04/ what-about-card-check-versus-nlrb.html (Apr. 7, 2006 16:48 EST).
45. Posting of Faculty for Workplace Justice to Picketline, And What About Health Insurance, http://picketline.blogspot.com/2006/04/and- what-about-health-insurance.html (Apr. 7, 2006, 16:47 EST).
46. Posting of Faculty for Workplace Justice to Picketline, Help Is on the Way, http://picketline.blogspot.com/2006/04/help-is-on-way.html (Apr. 25, 2006 11:57 EST) (quoting Senator John Edwards, Address at the Freedom Village Rally (Apr. 25, 2006)).
47. Advertisement, "We Provided Higher Wages. We Provided Health Insurance. We Have Done Our Part," MIAMI HERALD, Apr. 25, 2006, at 13A.
48. Advertisement, "Outside Protestors Trespass On Our Campus. Our Students, Faculty, and Staff Are Harassed. The Union Has Gone Too Far," MIAMI HERALD, Apr. 26, 2006, at 6A.
49. Advertisement, "They Stage Daily Publicity Stunts. They Disrupt Our Academic Mission. The Union Needs To Stop Its Tactics," MIAMI HERALD, Apr. 27, 2006, at 20A.
50. Advertisement, "They Don't Want Workers To Vote. They Argue Against Freedom And Democracy. Does The Union Think Workers Are Second-Class Citizens?," MIAMI HERALD, Apr. 28, 2006, at 5A.
51. Posting of Faculty for Workplace Justice to Picketline, In Case You Haven't Heard ⋯ We've Won !!!!!, http://picketline.blogspot.com/ search?q=we%27ve+won (May 1, 2006, 19:32 EST).
52. Jessica M. Walker, UM Dean to Run Hearing, Decide Student's Fate, PALM BEACH DAILY BUS. REV., June 9, 2006, at 253.
53. Letter from University of Miami Faculty to Patricia A. Whitely, Vice President for Student Affairs, University of Miami, and William W. Sandier, Jr., Dean of Students, University of Miami (June 27, 2006) (on file with author).
54. See Posting of Faculty for Workplace Justice to Picketline, Dear Colleagues, http://picketline.blogspot.com/2006/07/dear-colleagues. html (July 14, 2006 09:16 EST).
55. Posting of Faculty for Workplace Justice to Picketline, The Contract We Fought For Has Been Ratified!, http://picketline.blogspot.com/2006/08/ contract-we-fought-for-has-been.html (Aug. 23, 2006 at 18:22 EST).
56. Niala Boodhoo, Pay Day, MIAMI HERALD, Aug. 24, 2006, at 1C.
57. See Ana Menendez, Better Wages, Health Care Not Enough, MIAMI HERALD, Feb. 18, 2007, at IB.
58. See generally Fall River Dyeing & Finishing Corp. v. NLEB, 482 U.S. 27, 42-43 (1987).
59. Although a simultaneous negotiation between the labor contractor and the end user, or a contract which automatically included the labor costs of the contract between the labor contractor and the workers, would be possible.
60. Jonathan G. Axelrod, Who's the Boss? Employee Leasing and the Joint Employer Relationship, 3 LAB. LAW 853, 871-72 (1987).
61. 29 U.S.C. § 152(2) (2000) (emphasis added).
62. The joint employer doctrine must be distinguished from two distinct doctrines: Single Employer, where two entities are in fact one business for the purpose of bargaining unit determination and negotiation; and Alter Ego, where an employer formalistically alters corporate form to attempt to avoid collective bargaining. See Walter V. Siebert & N. Dawn Webber, Joint Employer, Single Employer, and Alter Ego, 3 LAB. LAW. 873 (1987). The Sixth, Eighth, and Seventh Circuits have collapsed single employer and joint employer tests together, discussing the four factors of single employment: (1) some functional integration of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership or financial control.
63. Id. at 875. This test, by examining ownership and management, makes a finding of joint employment more difficult than the majority rule. The two doctrines of single and joint employer are distinguished and the majority rule is established in NLRB v. Browning-Ferris Industries, 691 F.2d 1117, 1124 (3d Cir. 1982).
64. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (2000), prohibits discrimination in the hiring or advancement of any person on the basis of race, sex, national origin, or religion.
65. 29 U.S.C §201 (2000).
66. See Browning-Ferris Indus., 691 F.2d at 1117;
67. Clinton's Ditch Coop. Co., 274 N.L.R.B. 728 (1985), cert. denied, 479 U.S. 814 (1986).
68. Boire v. Greyhound Corp., 376 U.S. 473, 475 (1964).
69. 691 F.2d at 1117.
70. See id. at 1119.
71. See id. at 1119-20.
72. RESTATEMENT (SECOND) of AGENCY, § 220 (2000).
73. 363 F.3d 437, 440 (D.C. Cir. 2004).
74. Id.
75. See, e.g., Bureerong v. Uvawas, 959 F. Supp. 1231 (CD. Cal. 1997).
76. See id.
77. See id. at 1238.
78. Rivera-Vega v. ConAgra, Inc., 70 F.3d 153, 163 (1st Cir. 1995).
79. See id.
80. See id.
81. Greenhoot, Inc., 205 N.L.R.B. 250, 251 (1973).
82. Shultz v. Falk, 439 F.2d 340, 345 (4th Cir. 1971).
83. Int'l Longshoremen's Ass'n v. Norfolk S. Corp., 927 F.2d 900, 903 (6th Cir. 1991).
84. Clinton's Ditch Coop. Co., 274 N.L.R.B. 728 (1985), cert. denied, 479 U.S. 814 (1986).
85. See Kenneth G. Dau-Schmidt, The Labor Market Transformed: Adapting Labor and Employment Law to the Rise of the Contingent Workforce, 52 WASH. & LEE L. REV. 879, 880 (1995).
86. For a partial critique of a case-by-case approach, see Davidov, supra note 2, at 743.
87. See, e.g., First Nat'l Maintenance Inc. v. NLRB, 452 U.S. 666 (1981) (examining whether the power to decide issues of entrepreneurial control is subject to mandatory bargaining);
88. Fibreboard Prods. Corp. v. NLRB, 379 U.S. 203 (1964).
89. Chevron U.S.A., Inc. v. Nat'l Res. Def. Council, 467 U.S. 837, 842-43 (1984).
90. See, e.g., Emporium Capwell Co. v. W. Addition Cmty. Org., 420 U.S. 50 (1975).
91. See, e.g., Greenhoot, Inc., 205 N.L.R.B. 250, 250 (1973);
92. Schultz v. Falk, 439 F.2d 340, 345 (4th Cir. 1971).
93. See National Labor Relations (Wagner) Act, supra note 5, at ch. 372, § 9(a).
94. Compare the more rigorous description of legal culture in essays such as, James L. Gibson & Gregory A. Caldeira, The Legal Cultures of Europe, 30 L. & SOC'Y REV. 55 (1996).
95. See E.P. THOMPSON, WHIGS AND HUNTERS: THE ORIGIN OF THE BLACK ACT, 258-69 (1975) (explaining that law, and therefore consciousness of which law is a part, both reflects and shapes social conditions).