• Professor Cesar F Rosado Marzan

    César F. Rosado Marzán

    Assistant Professor of Law

    – Go to his faculty biography

    – Go to his publications:

       SSRN: http://papers.ssrn.com
       Bepress: http://works.bepress.com/cesar_rosado_marzan/

    Epic Systems v. Lewis: The Movements’ Time is More Clear Now

    by  • June 5, 2018 • Faculty Commentary, Featured Posts • 0 Comments

    photo of US Supreme Court by Matt Popovich

    by César F. Rosado Marzán In Epic Systems v. Lewis, Supreme Court Justice Neil Gorsuch and four conservative Justices determined that class action waivers are enforceable, not least because of the Federal Arbitration Act’s (FAA) strong protection of arbitration agreements. Class action waivers are enforceable despite the National Labor Relations Act (NLRA), which provides workers...

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    Rosado Marzan on Knowledge@Wharton, BBC Newshour

    by  • March 16, 2016 • Scholarship • 0 Comments

    Last week, Professor Cesar Rosado Marzán appeared on University of Pennsylvania’s Knowledge@Wharton to discuss the ongoing NLRB labor law disputes with McDonald’s. From the interview:

    McDonald’s appears to be in a tight spot, with problems looming whichever direction it goes. “If McDonald’s is found to be liable for the labor law violations of its franchisees, then as a joint employer it could end up at the bargaining table,” said Cesar . . . If, on the other hand, it doesn’t support the franchise operators, he agreed that it might end up earning the latter’s wrath.

    Prof. Rosado Marzán continued,

    “If McDonald’s is found to be essentially liable for the labor law violations of a franchisee, it means that it’s a joint employer according to the NRA. And if such, then it may end up on the bargaining table if, at some point, McDonald’s workers decide to bargain collectively […] with the corporation.” (more…)

    NLRB Rules That Northwestern University Football Players Cannot Unionize

    by  • August 17, 2015 • Faculty Commentary • 0 Comments

    By César F. Rosado Marzán

    Today, the NLRB determined whether or not the Northwestern University football players could unionize. It decided that they could not. However, the NLRB’s decision did not hinge on the issue of whether or not the college athletes are employees under the NLRA, but on its determination that the Board would not foment stable industrial relations under the NLRA if it enabled the college athletes to unionize.

    Even if the NLRB was reasonable in determining that collective bargaining would not provide for stable industrial relations in college football, such determination could have been better reached by the parties themselves, and especially the college athletes. That’s the beauty of collective bargaining: it lets parties make those sorts of determinations without second-guessing by the state.

    According to the Board, collective bargaining in college football would require league-wide bargaining, including with those units with putative public sector employees who are beyond the reach of the NLRB’s jurisdiction—the college athletes who play for state schools. The arrangement of college football proved too complex for the NLRA’s model of collective bargaining, according to the NLRB. However, the Board reached this decision even when professional Canadian athletes in baseball and hockey do not fall under the NLRB’s jurisdiction; professional baseball and hockey are unionized.

    The Board limited its decision to the facts of the case. However, the decision will be used by the management bar to justify further instances of non-recognition of employees in non-standard forms of employment, e.g., graduate students, workers who are also clients and patients of their employers (as in mental health institutions), temporary employees, among others. About a quarter of U.S. workers work in such types of non-standard settings. Today a quarter of the U.S workforce has something new to struggle against.

    The response to such attempts of non-recognition will thus necessarily remain the good old-fashioned one: workers will have to fight for recognition despite the law, through their collective efforts. The maladies of asymmetrical market relationships that the NLRA attempts to remedy, namely industrial strife, will inevitably be pushed to the surface given today’s unfortunate NLRB decision.

    The Good News from Chattanooga

    by  • February 17, 2014 • Faculty Commentary • 0 Comments

    By César F. Rosado Marzán

    A majority of Volkswagen (“VW”) employees in Chattanooga, Tennessee, voted against unionization last week. Six hundred and twenty-six (626) employees voted in favor of the union. Seven hundred and twelve voted (712) against. Union supporters took the vote as very bad news. The blogs are now saturated with theories of why the vote went the way it did.

    But there is good news! First, the more than six hundred employees that voted in favor of union representation can still bargain collectively with VW as a so-called “minority union.” Second, the UAW and other parties can file a complaint against the United States in the International Labor Organization (“ILO”) for permitting government officials in Tennessee to interfere with workers’ freedom of association rights. The goal of such a complaint would not be to set aside the elections, but to shape a more favorable terrain for unions in the future.

    A minority union is a union that represents only its members. As such, it is different from exclusive representation unions, or the unions that are certified by the National Labor Relations Board (“NLRB”). Any collective bargaining agreement entered by the minority union and the employer would cover only the members of the union. Under current law, employers may bargain with a minority union if they want to. There is no legal duty for employers to bargain with a minority union under present interpretations of the National Labor Relations Act.

    However, VW, as a model corporate citizen, has pledged to abide by the core labor rights of the ILO. Volkswagen has made such pledges both in its corporate code of conduct and its international framework agreement with Industriall, the global union to which the UAW belongs. One of these core rights is freedom of association. As the IFA states:

    The basic right of all employees to establish and join unions and employee representations is acknowledged. Volkswagen, the unions and employee representatives respectively work together openly and in the spirit of constructive and co-operative conflict management. (more…)

    VW in Chattanooga, and a New Cartography for Labor Rights

    by  • February 4, 2014 • Faculty Commentary • 3 Comments

    By César F. Rosado Marzán

    The New York Times reported yesterday that 1,600 Volkswagen (VW) workers in Chattanooga, Tennessee will be voting on Feb. 12-14 on whether or not they want to be represented by the United Auto Workers (UAW). This union election promises to be momentous. It also helps us to see more clearly who’s on the side of workers’ freedom of association rights, and who’s not.

    The election is important because it may add new blood to the UAW. With over 1.5 million members in the late 70s, the union has now been reduced to about 350,000 active members. It needs new blood.

    Second, while the UAW has lost members partly because of the decline of the U.S. auto industry, the U.S. has experienced significant growth in auto manufacturing jobs in the South­ due to European and Asian transplants. However, the UAW has had little luck in organizing in the South—a “right-to-work” territory, recognized as a particularly “hostile terrain” for unions.

    Third, VW has pledged not to oppose the union organizing drive in Chattanooga, in clear contradiction of the American practice of corporate “union avoidance.” Moreover, VW has stated that if the union prevails in the elections, it will form with the union a German style-works council, or an employee representation body that helps to co-manage aspects of the plant. It also bargains certain issues with management.

    For months, the UAW had stated that it had proof of majority support in Chattanooga. It declared that the VW management would voluntarily recognize the union. Voluntary recognition has become the preferred method of union organization in the U.S. because NLRB-administered election processes permit the employer to put up an anti-union campaign. Unions claim that employer opposition during elections dissuades workers from exercising their right to join a union and bargain collectively. However, VW did not agree to voluntary recognition. It stated that it would not oppose the union in the days leading to the election, but the workers will have to vote in an NLRB-administered election. (more…)

    College Football and Collective Bargaining Rights

    by  • February 3, 2014 • Faculty Commentary • 0 Comments

    By César F. Rosado Marzán

    Social media and professional news outlets have been reporting about Northwestern University football players petitioning the National Labor Relations Board (“NLRB” or “Board”) for unionization rights. With football in the air this past week because of the Super Bowl, and President Obama’s State of the Union speech focusing on income inequality, the filing of this petition could not have come at a better time. While neither event is directly related to the issues raised by the college football players, namely to bargain over issues related to injuries, the glitz and glamour of football this past week helps give these players’ story more relevance. And the chasm between the super-rich and the growing ranks of the working poor that concern President Obama strongly resembles the disparities between a multi-billion dollar college sports industry and injured players bereft of both a sports career and a college education.

    College football injuries are rampant. Injuries may permanently cripple players, put a stop to their college football calling, jeopardize their college degree, and frustrate any promise of a professional football career with the NFL. As the union trying to represent the players has stated, its aim is to convince the NCAA and the teams to provide some protections to players, rather than throw the players “under the bus at the first hint of a problem.”

    Last semester I gave my labor law students a midterm exam where part of what they had to analyze was whether or not college football players could be considered employees under the National Labor Relations Act (“NLRA”), ostensibly the central question that the NLRB will have to decide in this case. Many of my students made some good arguments in favor of unionization, despite my initial doubts about the matter.

    First, my students addressed the possible argument against granting employee status to the players. The argument, which was made recently by the Northwestern Athletic Director, Jim Phillips, is that the employer “believes that … student-athletes are not employees, and collective bargaining is therefore not the appropriate method to address [their] concerns.” As the Chief Legal Officer of the NCAA also said, the “union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education.” In other words, the players are primarily students pursuing degrees, not “employees”. Extending employee status to the players would undermine education. (more…)

    Employers and Unions Remain Guessing After Mulhall

    by  • December 13, 2013 • Faculty Commentary • 0 Comments

    By César F. Rosado Marzán

    The Supreme Court recently decided that it had improvidently granted certiorari in Unite Here Local 355  v. Mulhall, leaving management and labor stuck in a troubling game of chance.

    The Supreme Court initially granted certiorari in Mulhall to decide whether an agreement between an employer and a union led the employer to grant the union “a thing of value” in violation of Section 302 of the Labor Management Relations Act (“LMRA”). In Mulhall v. Unite Here Local 355, the 11th Circuit decision that the Supreme Court was going to review, the employer and the union entered into an agreement in which the employer would (1) remain neutral in respect to the union’s efforts to organize the employer’s employees, (2) give the union access to it premises so that the union could speak to the workers about union representation, and (3) give the union a list of employees’ names and contact information for organizing purposes. In return, the union would lobby the state legislature for certain gambling rules that the employer, a racetrack, wanted changed to benefit its business.

    Section 302 of the LMRA is an anti-bribery statute. It aims to stop union corruption. The plaintiff did not prove that there was actual bribery, extortion, or union corruption involved in Mulhall. However, the plaintiff argued that anything valuable given to the union by the employer was a per se violation of Section 302. While the 3rd and 4th Circuits had ruled against plaintiffs in similar cases, [1] the 11th Circuit held that the employer could be found in violation of Section 302 if it attempted to corrupt the union through these kinds of agreements or if the union attempted to extort the employer. [2] (more…)

    Employee Voice Is Good for Global Management

    by  • September 10, 2013 • Faculty Commentary • 1 Comment

    By César F. Rosado Marzán

    Can global management trust its local, national, and regional managers everywhere, all the time? What if one of those managers is particularly incompetent or corrupt? Could the firm’s global brand be destroyed by one bad apple somewhere in the far reaches of the globe?

    This is one of the questions that global corporations have to grapple with today as they expand into unknown territories. Firms try to do the most they can to ensure that their local, national, and regional managers are top-notch, trustworthy performers who are well-linked to global management. But the inevitable bad apple can sometimes fall through the cracks. This is a risk that global managers must assess, take, and attempt to reduce.

    Some labor lawyers have been trying to forge ways to better manage global firms. Their attempts include incorporating employees into the global governance of the firm: employees can serve as the eyes and ears of global management, in effect becoming a “check” on local, national, and regional managers. It is a way to disperse some of the power in the sub-global segments of transnational firms and to keep global management on top of things. (more…)