Category Archives: Labor Laws/Legislation

Labor Hits Jackpot

Source: Melinda Tuhus, In These Times, February 5, 2008

Foxwoods Resort Casino rises from the hills of rural southeastern Connecticut like a gambler’s Oz.

It is one of the country’s biggest Indian casinos and it is the largest employer in the state, with 10,000 workers. Of those employees, about 2,600 are dealers of games such as poker and blackjack. And on Nov. 24, 2007, many of these dealers placed a bet on a better life with the United Auto Workers (UAW). ….

It’s the first election at an Indian casino to be overseen by the National Labor Relations Board (NLRB), which made a groundbreaking ruling last year that allowed Indian casinos to be unionized. But casino management has appealed the vote, claiming it violates tribal sovereignty.

Decline and Disenchantment: Reflections on the Aging of the National Labor Relations Board

Source: Wilma B. Liebman, Berkeley Journal of Employment and Labor Law, Volume 28, no. 2, 2007

In this essay, the senior member of the National Labor Relations Board reflects on the aging of American labor law and the agency that administers it. In her view, the National Labor Relations Act, which has not been updated in 60 years, is now out of sync with a transformed economy. Meanwhile, the Board, even accounting for the statutory, judicial and political constraints under which it operates, has failed in its duty to apply the statute dynamically. The author suggests, however, that the stakes are too high to abandon hope for a revitalization of labor law and policy.

Administrative Criminal Law & Procedure in the Teamsters Union: What Has Been Achieved After (Nearly) Twenty Years

Source: James B. Jacobs and Dimitri D. Portnoi, Berkeley Journal of Employment and Labor Law, Volume 28, no. 2, 2007

This article is a comprehensive case study of the most important civil RICO labor racketeering case in American history, U.S. v. IBT. It provides the first empirical study of the effort by DOJ and the federal courts to purge organized crime from the IBT and to reform the union so that it will be resistant to future corruption and racketeering. Drawing on 18 years of litigation generated by the effort of court-supervised monitors to enforce the 1988 settlement, it utilizes a database of all disciplinary charges brought by and the sanctions imposed by the court-supervised monitors. This article traces the remedial phase which has generated an immense amount of litigation right up to the present and focuses on the disciplinary (as opposed to the election) part of the remedial effort. The magnitude of this effort can hardly be exaggerated. The two remedial entities that the settlement established to enforce the consent order have expelled more than 600 officers and members from the IBT and placed some 40 IBT locals and joint councils under the international union’s trusteeship. This work has been accomplished via the creation of an IBT-specific criminal justice system that has evolved into an elaborate system of procedural and substantive disciplinary law. U.S. v. IBT is an experiment in institution building. It may allow us to determine, or at least to knowledgeably assess, the potential and limits of civil RICO as a methodology for attacking deeply entrenched systemic criminality in powerful formal organizations.

Mine Fines Routinely Ignored: MSHA Leaders Promise Reforms

Source: Ken Ward Jr., Charleston Gazette, January 27, 2008

Federal regulators have allowed mine operators to avoid fines for thousands of health and safety citations, despite a federal law that requires monetary penalties for such violations, government officials have confirmed.

Over the last six years, the Department of Labor’s Mine Safety and Health Administration did not assess civil penalties for about 4,000 violations, according to preliminary MSHA data.

The Clinton Administration and Labor Law: Was Comprehensive Reform Ever a Realistic Possibility?

Source: John Logan
Journal of Labor Research
Fall 2007

This article analyzes the critical obstacles in the path of labor law reform during the 1990s. It stresses the importance of the lukewarm support of the Clinton Administration for labor law reform, organized labor’s failure to frame the debate on labor law reform to its advantage and its inability to convince key Senators to support its reform agenda, and, especially, the determined opposition to reform of employer groups and their allies in Congress. The article concludes with a brief discussion of the lessons of the legislative defeats of the 1990s for the AFL-CIO’s current campaign to revise the National Labor Relations Act.

The Ossification of American Labor Law and the Decline of Self-governance in the Workplace

Source: Cynthia Estlund
Journal of Labor Research
Fall 2007

This article argues that the ineffectuality of American labor law and the shrinking scope of collective representation and collective bargaining are partly traceable to the law’s “ossification”–to its having been essentially sealed off for several decades from democratic revision and renewal and from local experimentation and innovation. The elements of this process of ossification, once assembled, make up an imposing set of barriers to innovation. The basic law has been cut off from legislative revision at the national level by Congress; from “market”-driven competition by employers; from the entrepreneurial and creative energies of private litigation; from variation at the state or local level by representative or judicial bodies; from changing constitutional doctrine; and from emerging transnational legal norms. Moreover, the National Labor Relations Board–the designated institutional vehicle for adjusting the labor laws to modern conditions–is increasingly hemmed in by the age of the text and the large body of judicial interpretations that has grown up over the years. The resulting statutory scheme is drastically out of date and out of sync with the needs of 21st century workers and labor markets.

Union Dues Objections: A Twisted Path to Endless Litigation

Source: Ronald Miller, Labor Law Journal, Vol. 58 no. 3, Fall 2007

It’s been thirty years since the U.S. Supreme Court decided Abood v. Detroit Board of Education, holding that requiring nonunion members of a bargaining unit in the public sector to provide financial support for the collective bargaining activities of a union in the form of agency fee payments did not violate the nonmembers’ First Amendment rights. However, three recent decisions, including one by the Supreme Court, make it clear that implementing an agency fee program that meets constitutional muster is still a troubling issue in a number of respects.

Exclusive Representation and the Wagner Act: The Structure of Federal Collective Bargaining Law

Source: Raymond Hogler Labor Law Journal, Vol. 58 no. 3, Fall 2007

Conditions for collective bargaining in the United States are poor and deteriorating. A large body of labor law scholarship documents the weakness of legal protections and processes designed to promote unionism in this country. Professor Morris’s theory about minority union bargaining is offered as a means of strengthening unions in a hostile environment. This article argues that the strategy is a risky one because it invites a resurgence of company unions, which threatened to overwhelm the modern American labor movement at its inception in the 1930s. A better option would be for labor to attack the root source of its contemporary decline. The three pillars of collective bargaining as envisioned by Wagner are independent unions, exclusive representation, and organizational security. The malignancy of right to work laws has destroyed one of those pillars. Morris’s vision of going back to the future would eliminate the other two.

Union Certification: A Critical Analysis and Proposed Alternative

Source: Mark Harcourt and Helen Larri, WorkingUSA, Vol. 10 no. 3, September 2007
(subscription required)

The North American union certification system has not met the representation needs of most workers. In this essay, certification’s effectiveness is critically examined. The exclusive representation and winner-take-all approach satisfies only two out of seven categories of union and nonunion workers with different representational preferences. The “winners” are those who successfully exercise their choice to be either unrepresented or represented by their most preferred union. All others are “losers.” A compulsory proportional representation alternative is proposed which allows for both union and nonunion forms of representation, representative election based on proportional votes, and mandatory workplace representation. The merits of this alternative in balancing the needs of both voting majorities and minorities and protecting worker rights from management encroachment are discussed. Some preliminary suggestions on its implementation are offered.

Neither Free Nor Fair: The Subversion of Democracy Under National Labor Relations Board Elections

Source: Gordon Lafer, American Rights at Work Report, July 2007

From press release:
American Rights at Work today releases “Neither Free Nor Fair: The Subversion of Democracy Under National Labor Relations Board Elections.” The report by University of Oregon political scientist Gordon Lafer, Ph.D., lays bare the realities of how unscrupulous employers undermine workers’ rights to freedom of association during government-administered union representation elections. “Anti-union employers are making a mockery of the principles governing American elections,” says Lafer. “Weak labor laws allow anti-union employers to manipulate the outcome of union elections in a manner that is inherently unfair and undemocratic.”

“Neither Free Nor Fair” details the strategies – both legal and illegal – that typically comprise employers’ efforts to deny their workers’ rights to form unions and collectively bargain. Says Lafer, “Unionbusting activity in the weeks leading up to the union election resembles practices that our government routinely denounces when performed by rogue regimes abroad.”

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