Category Archives: Future of Unions

The Future of US Labor Law and the Long Struggle for Labor Rights

Source: Ellen Dannin, Employee Responsibilities and Rights Journal, posted online April 08 2009
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It appears to be taken for granted today that there is no future for U.S. labor law and that the only legitimate discussion is about what will replace the National Labor Relations Act. However, what if these conclusions misread the complex forces that have affected union membership and power? For example, is our labor law to blame for union decline, or is the law’s weakness caused by union decline and resultant inability to support the law, or are both true? So, too, have de-industrialization and globalization weakened US unions, or is de-industrialization and globalization the result of a union movement with no power to oppose them? If the trajectory of U.S. labor and labor law is more properly seen as an oscillating spiral – and, in the case of unions, a death spiral – then a strategy that targets the NLRA as the cause of union decline picks the wrong objective and overlooks real solutions.

Some contend that unions and collective bargaining are dinosaurs that have no relevance to our times. However, consider the role of unionization and collective bargaining as necessary counterweights to the power of corporations and, thus necessary constituents of a democracy. As the NLRA observes, corporations could not exist but for the laws that exempt them from common law obligations. Those laws were created because corporations were seen as useful in a modern society. However, over time, that law had created unbalanced bargaining power between employers and unions and, as a result, destroyed the economy. Congress’s answer was to enact the NLRA in order to rebalance bargaining power for the good of our society and democracy.

We live in a time in which corporate power is unrivaled, and the growth of that power parallels the decline of unions and working conditions. Did unions simply lose out in the market because they were poor competitors, or is the story more complex?

The Future of American Labor and Employment Law: Hopes, Dreams, and Realities

Source: Theodore J. St. Antoine, Employee Responsibilities and Rights Journal, Published online: 27 March 2009
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In many respects the US is a deeply conservative country. Unique among the major industrial democracies of the world, it imposes the death penalty, provides no national health insurance, fixes a high legal drinking age, and subscribes to the doctrine of employment at will. Perhaps not surprisingly, its labor movement is also one if the most conservative on earth, eschewing class warfare and aiming largely at the bread-and-butter goal of improved wages, benefits, and working conditions. Yet American employers have generally never been as accepting of unionization as their counterparts in other countries. Over the last half-century the density of unions in the private sector has fallen from about 35% to 7.5%. Employee apathy, vigorous employer opposition, and changing patterns of work have all played a part in that decline but his paper will focus on the role of law.

Unions, Education, and Low-Wage Workers

Source: Michael Selmi, University of Chicago Legal Forum Symposium Issue, 2009

The abstract:
Low-wage workers have never had privileged access to desirable labor market opportunities but their position has significantly deteriorated over the last two decades, as union representation has decreased and the demand for higher skilled labor increased. This essay explores the future for low-wage workers and begins by defining what we mean by low-wage work, and also who low-wage workers are. I next explore the two most common advocated paths for improving the lives of low-wage workers: reviving unions and a human capital focus. I suggest that reviving unions, even in the context of the Employee Free Choice Act, offers at best a limited hope for improving the labor market opportunities for most low-wage workers. For a variety of complicated reasons, there is no basis for expecting a substantial resurgence of union representation, even if the law is changed to make union organizing more effective. Instead, I emphasize a human capital path, noting in particular, that far too many young individuals attend college without attaining any degree, and I discuss the important role community colleges can play in enhancing the human capital of low-wage workers. In the final part of the paper, I discuss educational reforms at the high school level that target at-risk populations, including a return to vocational education and the rise in charter schools, both of which might offer important opportunities for students to excel in school.

Should Congress Adopt The Employee Free Choice Act?

Source: LERA, Perspectives Online Companion (Number 10), Spring 2009
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This tenth edition of LERA’s Perspectives Online Companion contains four articles on the proposed Employee Free Choice Act. Each derives from remarks delivered as part of the Distinguished Panel at LERA’s Annual Meeting in January 2009.

* For Organized Labor, The Employee Free Choice Act is Neither a Cinch, Nor a Panacea
By Steven Greenhouse
The nation’s labor law system “is inarguably broken,” writes Steven Greenhouse, labor reporter for The New York Times. However, supporters of the proposed Employee Free Choice Act face a tough uphill battle, and revitalization of union organizing will require more than this bill’s passage.

* Prospects for Labor Law Reform After the 2008 Election: A Law Perspective
By William B. Gould IV
Labor law reform has been attempted many times since 1959. “This time, we must we must get it right,” writes William Gould, a former chair of the National Labor Relations Board. This article analyzes the current Employee Free Choice Act proposal and presents Gould’s recommendations.

* Union Recognition and Collective Bargaining: How Does the United States Compare With Other Democracies?
By John Logan
Opponents portray the proposed Employee Free Choice Act as “radical and undemocratic,” writes John Logan, a scholar based at the University of California-Berkeley. His article demonstrates why the proposed legislation is a modest reform measure.

* Prospects for Labor Law Reform: A Labor Perspective
By Jonathan Hiatt
AFL-CIO general counsel Jonathan Hiatt explains why the current obstacles to expanded collective bargaining in the United States represent “a two-dimensional crisis of human rights and economic wellbeing.” According to Hiatt, coercion of workers will be less of a problem under the Employee Free Choice Act than it is under the present law.

Beyond The Employee Free Choice Act Debate: Unleashing The States In Labor-Management Relations Policy By Reforming Labor Law Preemption Doctrines Crafted By Judges A Half-Century Ago

Source: Henry H. Drummonds, Lewis & Clark Law School, 2009

This article proposes that Congress enact a major decentralization of labor relations law – the law that governs efforts by employees to deal with their employers collectively through unions and collective bargaining. Two events in 2007 and 2008 signaled the emergence of this labor law preemption issue. First, the U.S. House of Representatives passed the Employee Free Choice Act triggering the deepest fundamental debate about labor relations policy since the 1947 Republican Congress reigned in the power of unions in the Taft-Hartley Act. Unlike the debate 60 years ago, the debate in 2009 is not about excessive union power but about whether labor relations law should become more favorable to employee organization in unions. While many possibilities exist for changes in labor relations policy, national consensus often eludes policy makers.

Second, in Chamber of Commerce v. Brown, a majority of the U.S. Supreme Court continued the expansion of judicially created labor law preemption doctrine by striking down California’s law attempting to limit employer use of state monies in union organizing campaigns; such rulings deprive citizens of their right under the constitutional division of powers, absent a decision of the Congress to supplant state authority under the Supremacy Clause, to express their preferences about labor relations policy through their local and state governments. As Chief Justice Rehnquist pointed out more than 20 years ago: “From the acorns of [two early] decisions has grown the mighty oak of this Court’s labor preemption doctrine, which sweeps ever outward though totally uninformed by any express directive from Congress.”

Employee Free Choice Act: Fight of a Lifetime?

Source: Jane Slaughter, Labor Notes, March 2009

Nobody wants to say it on the record, but the buzz is we won’t get the Employee Free Choice Act in its current form. It’s possible to admire labor’s efforts for two million petition signatures for EFCA and still ask, if this is the fight of a lifetime, why aren’t we acting like it? Could the energy unions channeled for Obama last fall be reawakened for creative actions in 2009?

Organizing Prosperity: Union Effects on Job Quality, Community Betterment, and Industry Standards

Source: Matt Vidal and David Kusnet, Economic Policy Institute, EPI Book, February 2009

Strong unions can help improve working conditions within occupations and industries, going far beyond simply improving wages. Unions can help employers provide training, reduce turnover, and generally improve the work environment in ways that benefit employers and workers by helping ensure that competitive pressures do not bring out the worst tendencies in employers. Indeed, unions can help set and protect basic employment standards for entire industries.

The benefits that arise from labor-management agreements — and the costs for workers and communities of undermining longstanding, successful agreements — are the stories of Organizing Prosperity, an examination of the role that unionism has played in lifting up workers, communities, and even businesses themselves in a dozen American occupations and industries.

At a time when the nation is grappling with economic problems ranging from structural unemployment to skills shortages, stagnant wages, declining health care coverage, dwindling pension plans, and the competitiveness of U.S. companies in the global economy, one lesson emerges from Organizing Prosperity: unions can be part of the solution.

Can Unions Win Without the Employee Free Choice Act?

Source: Labor Notes, March 2009

The Employee Free Choice Act would eliminate the requirement for a two-step process in union drives–first sign up a majority of workers, then hold an election. But is it the election itself that’s the problem, or the very uneven playing field on which it’s held, where the employer has all the advantages?

The Employee Free Choice Act: No Choice for Employer or Employee

Source: Douglas P. Seaton and Emily L. Ruhsam, Employee Relations Law Journal, Vol. 34 no. 4, Spring 2009

The Employee Free Choice Act (EFCA) was one of the most highly publicized issues during the 2008 presidential election. Despite its name, the EFCA would eliminate the secret ballot election and force arbitrator-created union contracts on employers after 120 days of failed bargaining. Employers are well advised to keep a pulse on EFCA as it is one of the most radical changes ever proposed to the National Labor relations Act and passage would have significant effects on unionization levels in the private sector.

Can Labor Revive the American Dream?

Source: Esther Kaplan, Nation, Vol. 288 no. 3, January 26, 2009

The financial markets are in tatters, consumer spending is anemic and the recession continues to deepen, but corporate America is keeping its eyes on the prize: crushing organized labor. The Center for Union Facts, a business front group, has taken out full-page ads in newspapers linking SEIU president Andy Stern to the Rod Blagojevich scandal. The Chamber of Commerce is capitalizing on the debate over the Big Three bailout to claim that “unions drove the auto companies off the cliff,” while minority leader Mitch McConnell and other Republican senators insist on steep wage cuts. A December 10 Republican strategy memo revealed their central obsession: “Republicans should stand firm and take their first shot against organized labor,” the memo read. “This is a precursor to card check”–a clear reference to the Employee Free Choice Act.

This simple amendment to federal labor law, which would, among other things, allow workers to unionize when a majority sign cards rather than requiring a bruising election, has galvanized the business community in a way even the $700 billion bailout couldn’t. “I get the sense that this is more important to them than even taxes or regulation,” says the AFL-CIO’s director of government affairs, Bill Samuels. “This is about power. And the business community is not going to give up power willingly.” Wal-Mart CEO Lee Scott said as much to a meeting with analysts in October. “We like driving the car,” he told them, “and we’re not going to give the steering wheel to anybody but us.”

At first glance, Employee Free Choice looks like little more than a technical fix. In addition to allowing unionizing through majority sign-up, it stiffens penalties for intimidating or firing union supporters and imposes arbitration when a company refuses to bargain a first contract. But as the leading corporate lobbies recognize, the bill could have far-reaching effects. By reviving unions, it could push up wages, realigning the broken economy so that company profits are spread beyond CEOs. It could help rein in corporate power and, perhaps most threatening to a business community that has enjoyed decades of deregulation, sustain a progressive majority in Washington in the years to come. If progressives aren’t doing the math, conservatives are. “Unions don’t spend money to elect Republicans,” Senator John Ensign told a group of executives this past fall. “They spend money to elect Democrats. From our perspective, this would have devastating consequences.”