Source: David Rosenfeld, Berkeley Journal of Employment and Labor Law, 2006, Volume 27, no. 2
… Two new books dramatically illustrate the long-term failures of workers and their traditional institutions and effectively describe the efforts of the worker center movement to fill the void in advocacy for low-income workers. … Predictably, the employer filed a charge with the NLRB asserting that CULA was acting as a “labor organization” within the meaning of the NLRA and was engaged in illegal picketing. … Moreover, it would not seem likely that a worker center could easily shed the attachment of labor organization status without taking decisive steps to eliminate activity which reflected “dealing with employers.” … Thus, the worker center would have to cease dealing with every employer to stop acting as a labor organization. … The Board in CULA flatly rejected the suggestion that representation of employees before state agencies was “dealing” with employers and related to its labor organization status. … If the NLRB, the Department of Labor, or other agencies that enforce workplace laws determine that worker centers meet the test of “labor organization,” this would create a substantial impediment, if not an insurmountable barrier, to the growth of the worker center movement. … For low-wage immigrant workers, the activity may encompass walkouts, picketing, confronting the employer, demanding higher pay, and many other activities all without the involvement of any labor organization. … Morris has no choice but to accept full labor organization status since he is arguing for NLRA sanction for bargaining. …
Source: Sarah Stewart Holland, Berkeley Journal of Employment and Labor Law, 2006, Volume 27, no. 2
… Pregnancy, childbirth, and bonding with a newborn are part of a continuous experience and should be treated as such under the Family and Medical Leave Act and complementary state leave laws. … As the Gerety decision shows, however, pregnant employees facing gaps in coverage have not always been successful when alleging disparate impact under anti-discrimination statutes. … The FMLA does not automatically cover a pregnant employee, like Gerety, who wants to use medical leave for illness related to gestation before childbirth. … While some employees, like Gerety, may be able to meet this higher standard because of the high-risk nature of their pregnancies, a pregnant employee attempting to receive medical leave for normal pregnancy-related illness would face a much stricter standard than a pregnant employee attempting to receive medical or parental leave for childbirth. … Specifically, Gerety would have exhausted her pregnancy-related illness leave two months before the birth of her twins, and she would have faced a larger gap without coverage then she actually faced under Hilton’s leave policy and the FMLA. … Second, courts continually refuse to see pregnancy as a medical condition unique to women and, therefore, that any leave policy affecting only pregnant women should be seen as per se discrimination as stated in the PDA. …
Source: Julie Martínez Ortega, Labor Studies Journal, Winter 2007, Volume 31, no. 4
….The proposed legislation, if enacted, would make a real impact on workers trying to form unions and bargain collectively. It would also provide a vehicle for educating the public and elected leaders about the obstacles that workers face when they try to organize. We agree with Professor Adams that workers’ rights are under attack both in the United States and abroad. However, we disagree with his critique of EFCA. We believe it to be a critical part of the strategy to achieve workplace democracy.
Adam’s critique of EFCA centers on three main points. He argues that it would not significantly advance the ability if U.S. workers to organize, that an international human rights approach would be better that altering U.S. labor law, and that real change in labor law will not happen without a broad social movement.
Source: Sheldon Friedman, Labor Studies Journal, Winter 2007, Volume 31, no. 4
As Roy Adams correctly notes, the workplace rights crisis in the United States is so dire that it demands urgent attention from every thinking person who cares about democracy, human rights, and social and economic justice. Of the sixty million nonunion workers who tell pollsters that they want a union in their workplace, last year fewer than seventy thousand – a proportion so small as to be almost insignificant –succeeded in forming one via the NLRB process.
Of these, many will never attain an initial collective bargaining agreement and fewer still will forge an enduring collective bargaining relationship with their employer. …. In at least a quarter of these NLRB organizing campaigns, one or more of the union supporters was illegally fired, and in more than half, the workers faced direct or thinly veiled threats that their workplace would close or move if they formed a union (Bronfenbrenner 2000; Mehta and Theodore 2005). Illegal firings and threats of workplace closure, moreover, were just the tip of the iceberg of the employer campaigns that these workers were forced to endure (Logan 2002)…
…Many more workers than that tiny few did form unions and win initial contracts last year, but they did it in spite of the Board’s stacked-deck process by circumventing it via successful campaigns for card check and employer neutrality.
Source: Roy Adams, Labor Studies Journal, Winter 2007, Volume 31, no. 4
The AFL-CIO, along with its ally American Rights at Work, has invested a great deal of time, energy, and money in promoting passage of the Employee Free Choice Act (EFCA). Those of us who believe in collective representation hope that this initiative will fulfill the hopes of its promoters and produce a major advance in the number of workers with a collective voice at work. However, with Republicans in continuing control of Congress and the White House, the odds against passage if the Act would seem to be high. However, there are reasons to believe that, even if the Act should pass, the results will, unfortunately, fall short of expectations.
Among the key elements of the Free Choice Act that are intended to spark new organizing are card check certification, first contract arbitration, and stiffer penalties for employers who offend the law. Since employers commonly commit unfair labor practices during certification election campaigns and stonewall during the negotiation of first contracts, American unionists believe that the establishment of procedures designed to counter those practices will significantly improve the labor movement’s organizing prospects.
Source: Lance Compa, Perspectives on Work, Summer 2006, Volume 10, no. 1
United States labor law on workers’ right to strike meets international human rights standards—up to a point. The law does not ban strikes in the private sector. Unlike many countries that nominally allow strikes but create onerous procedural obstacles (Mexico is a prime example), the United States, aside from modest notice requirements, lets workers decide to strike. In a handful of states, public-sector workers can strike.
So far, so good. But beyond this point, U.S. labor law and practice deviate from international standards. In the public sector, most strikes are prohibited even with no threat to public health or safety (the main proviso developed by the International Labor Organization). In the private sector, employers’ power to permanently replace workers who exercise the right to strike effectively nullifies that right.
Source: John Logan, Perspectives on Work, Summer 2006, Volume 10, no. 1
In 1990, the AFL-CIO started a campaign to reform the National Labor Relations Act (NLRA) to ban permanent striker replacements, hoping to set the stage for more comprehensive revision of the NLRA. Ultimately, however, the campaign served only to illustrate organized labor’s inability to win labor law reform over the opposition of the business community. Campaigns such as that for striker replacement legislation—in which the AFL-CIO spent tens of millions of dollars on a Washington-based campaign focused on a handful of “swing” legislators and ended up with absolutely nothing to show for it—are precisely the type of campaigns that the dissident Change to Win unions have criticized as a waste of union finances that would be better spent on organizing.