Category Archives: Labor Laws/Legislation

NLRB Elections vs. Card Check Campaigns: Results of a Worker Survey

Source: Adrienne E. Eaton and Jill Kriesky, Industrial and Labor Relations Review, Vol. 62 No. 2, January 2009
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From the abstract:
The authors evaluate policy arguments for and against the use of card check as a method to determine union recognition. The results of an analysis of data from telephone surveys of 430 workers who had been through the NLRB election or card check campaigns of six unions in 2003 indicate that there was little undue union pressure to support unionization in card check campaigns, and that management pressure on workers to oppose unionization was considerably greater than pressure from co-workers or organizers to support the union in both card checks and elections. The authors also find that although workers in card checks do appear to have had somewhat less information about unions and about the recognition process than workers in elections, workers who felt they had insufficient information to make a decision about unionization tended not to sign cards.

A Lawyer’s Worst Nightmare: The Story of a Lawyer and His Nurse Clients Who Were Both Criminally Charged because the Nurses Resigned En Mass

Source: Mitchell H. Rubinstein, Northwestern Law Review Colloquy, Vol. 103, 2009

From the abstract:
Imagine that a group of foreign registered nurses approach their lawyer because they feel abused and want to quit their jobs. They signed an employment contract agreeing to remain employed for three years and are unsure of their rights. The contract that they signed also contains a $25,000 liquidated damage provision. The lawyer advised his clients that they have to right to quit, and after they quit, the lawyer and his clients find themselves at the center of a massive criminal and civil controversy. Both the lawyer and his clients are criminally charged with endangering the welfare of critically ill pediatric patients and related crimes because the nurses resigned en masse without notice. You might think that such a case could not arise in Twenty-First Century America, but in 2007 that is exactly what occurred in Suffolk County New York and resulted in a New York appellate court having to prohibit the criminal prosecution of both the nurses and their attorney. Matter of Vinluan v. Doyle, ___A.D.3d___, 2009 WL 93065 (2d. Dep’t. Jan. 13, 2009).

This Essay examines this troubling case, where the court held that such a prosecution offended the Thirteenth Amendment and the attorneys First Amendment right to provide legal advice to his clients. This Essay explores the public policy issues raised by this case, whether nurses have the same right to withhold their labor as other employees, as well as certain issues which the court did not reach such as whether criminal prosecution of the nurses is preempted by the National Labor Relations Act. Additionally, this Essay explores legal issues surrounding the criminal prosecution of an attorney based on advice he may have given which the court ultimately found to be “profoundly disturbing.” The Essay concludes by explaining that the liquidated damage provision, which may have sparked this entire controversy, was probably unenforceable as a penalty, another issue not reached by the court, that criminal prosecution of both the nurses and their attorney was unwarranted and that the Appellate Division decision was correctly decided.

The Little Unions That Couldn’t

Source: T. A. Frank, Washington Monthly, Vol. 41 no. 1, January/February 2009

Card check is worth fighting for–except for the “card check” part.

In Washington, the rhetoric over EFCA has centered on one specific element of the legislation called “card check.” Under the proposed new law, if a majority of employees fill out cards authorizing a union to represent them, the union is automatically certified. Currently, employers can demand a secret-ballot election among employees to reaffirm the results. EFCA would eliminate this option. Republicans have called this a threat to liberty and democratic values. Democrats counter that it’s essential to protecting workers against employer coercion. But this squabble is a distraction. In reality, card check is the least important part of a very important bill. The following story should help explain why.

To “Re-Hatch” Public Employees or Not? An Ethical Analysis of the Relaxation of Restrictions on Political Activities in Civil Service

Source: James S. Bowman and Jonathan P. West, Public Administration Review, Vol. 69 no. 1, January/February 2009
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From the abstract:
This study examines the ethical content of legislation regulating the political activities of civil servants. The analysis is done using the “ethics triangle,” a tool that encompasses the interdependence of results-based utilitarian ethics, rule-based duty ethics, and virtue-based character ethics. The discussion begins with the importance of the problem, followed by its evolution and current status. After describing the methodology, the central section investigates the values at stake. The conclusion provides a synthesis of the findings, explores the implications of the study, and attempts to answer the question posed in the title of the paper.

Addressing Family Responsibilities Discrimination

Source: Stephanie Bornstein and Julie Weber, Work-family Information for State Legislators, Issue 16, 2008

Workplace discrimination against mothers and others based on their family caregiving responsibilities is a rapidly growing problem. Recently, the U.S. Equal Employment Opportunity Commission (EEOC) responded by issuing new enforcement guidance on caregiver discrimination. State policymakers are beginning to respond, too.

Privatizing Labor Law: Neutrality/Card Check Agreements and the Role of the Arbitrator

Source: Laura Cooper, Indiana Law Journal, Vol. 83, 2008

[N]eutrality/card check agreements are usually administered by private arbitrators empowered to interpret and apply them. In the last six to eight years, the American labor movement has significantly bypassed the legal structure Congress created for employees to express their desires regarding union representation and instead privatized labor law. In entering into neutrality/card check agreements, unions have focused on their goal of increasing union representation. However, such privatization has the secondary consequence of placing in the hands of private individuals serving as arbitrators some powers that had previously been the exclusive province of the NLRB, and other powers that even the NLRB never possessed. While scholarly, political, and administrative attention has understandably been focused on the broad public policy implications of neutrality/card check agreements, scant attention has been directed to what neutrality agreements require of arbitrators and whether these expectations are consistent with the institutional capacity *1590 and role of arbitrators. Do arbitrators actually have the legal authority and administrative capacity to assume this role? Can neutrality/card check agreements achieve their intended objectives if arbitrators cannot perform that role? What role can and should arbitrators play when unions join with employers in agreeing to privatize labor law?

Crowning the New King: The Statutory Arbitrator and the Demise of Judicial Review

Source: Michael H. LeRoy, Journal of Dispute Resolution, Vol. 29, No. 3, Spring 2009

From the abstract:
Judicial review of arbitration awards is highly deferential- but when does it become rubber stamping? Using original data, I find that federal courts vacated only 4.3 percent of 162 disputed awards. Nearly the same result was observed for a sub-sample of 44 employment discrimination awards under Title VII. By comparison, federal appeals courts in 2006 reversed 12.9 percent of 5,917 rulings made by civil court judges on the merits of legal claims.

Why are the rulings of Article III judges scrutinized more than the awards of citizen-arbitrators? What does this mean when companies can avoid Article III court rulings by requiring employees to arbitrate their claims? Judicial review of awards based on statutory claims is inadequate, and undermines the constitutional role of federal courts.

I point to two prominent junctures – in 1698, and again in 1925 – when lawmakers in England and the U.S. believed that court litigation hampered commerce. They enacted similar statutes to authorize courts to confirm disputed awards, unless these private rulings resulted from corruption or misconduct. This deference grew out of practical considerations. The parties had chosen the arbitrator, agreed to the private process, and bound themselves to an industry norm.

Courts deferred so heavily to awards because William III wanted these merchant tribunals to be autonomous. His law, the 1698 Arbitration Act, did not allow courts to vacate awards for fact finding or legal errors. Great deference in its reviewing standards reflected the king’s infallibility.

My textual research shows that the FAA’s reviewing standards descended from William III. I suggest that our law crowns today’s statutory arbitrator with the king’s mantle of infallibility. But this deference is too extreme for awards that rule on statutory claims. In Gilmer v. Johnson/Interstate Lane Corp., the Supreme Court ignored the commercial history of arbitration when it broadly approved a theory of forum substitution. Gilmer said that arbitrators may decide statutory claims, even if one disputant objects to the forum and wishes, instead, to be heard by a court. The result is that the ruling of the arbitrator is subject to a narrower standard for review than an Article III judge’s order. Epitomizing this regal deference, a contemporary court said: “The arbiter was chosen to be the Judge. That Judge has spoken. There it ends.” In textual and empirical analysis, I show that statutory arbitrations enjoy a presumption of royal infallibility. I conclude with two solutions for aligning the review of rulings by statutory arbitrators and Article III judges.

Human Dignity and American Employment Law

Source: David C. Yamada, University of Richmond Law Review, Vol. 43, 2009

From the abstract:
For decades, American employment law has been framed by the ideas of the unfettered free market and unilateral management control. This “markets and management” framework has helped to deliver growing levels of income inequality, job insecurity, and stress at work. This essay argues that human dignity should be our framing perspective for examining and shaping American employment law, building its case around sources ranging from Enlightenment philosopher John Locke and America’s Founding Fathers, to newer fields such as therapeutic jurisprudence and the works of relational psychology theorists Carol Gilligan and Jean Baker Miller. The essay discusses several important employment law issues against the backdrop of this new “dignitarian” framework and closes with ideas about advancing this agenda in the public arena.

Stacking the Deck: Privileging ‘Employer Free Choice’ over Industrial Democracy in the Card Check Debate

Source: Raja Raghunath, University Denver Legal Studies Research Paper No. 08-10, Nebraska Law Review, Vol. 87, 2008

From the abstract:
“Card check” organizing is the most controversial issue in labor law today, and this article is the first to analyze Dana Corp., the landmark decision on card check that was issued by the National Labor Relations Board in September 2007. The Dana Corp. decision represents a fundamental shift in American labor relations, away from safeguarding the rights of employees to collectively bargain, and towards safeguarding employer choice as to whether to engage in collective bargaining at all. The purpose of this article is to call attention to this shift, and to refocus the card-check debate on the fundamental principle of asymmetrical employer power in the workplace. The importance of this principle in understanding the arguments surrounding card check is heightened by the shift in labor relations signaled by the Dana Corp. decision, as well as two significant recent developments in the California and Illinois public sector that also have gone unanalyzed.