Category Archives: Labor Laws/Legislation

Government-Sector Unionism and Human Rights

Source: Charles W. Baird, Human Rights Review, Volume 13, Issue 3, September 2012
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In my view, the recent flurry of attempts by various state governors and legislatures to reign in collective bargaining “rights” among government-sector employees violates no one’s rights, correctly understood. Moreover, collective bargaining for government-sector employees violates the rights of both government-sector workers and taxpayers.

First, I will clarify the meaning of voluntary exchange, human rights, and freedom of association. Then I will apply these concepts to government-sector collective bargaining….

Beyond Human Rights: Understanding and Addressing the Attack on Public Sector Unions

Source: Joseph A. McCartin Human Rights Review, Volume 13, Issue 3, September 2012
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…We can still invoke the principles of human rights in the settings where they do the most good. But we must also look beyond these principles to address needs that are more effectively identified and articulated by the languages of human solidarity and democratic self -government than the language of rights. Thus, the present attack on public sector unions, while posing a serious threat to the future of workers, unions, and collective bargaining, also represents an urgent invitation for us to recognize and move beyond rights discourse in search for a better way to articulate the vision of a democratic and egalitarian society.

Do International Freedom of Association Standards Apply to Public Sector Labor Relations in the United States?

Source: Lance Compa, Human Rights Review, Volume 13, Issue 3, September 2012
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Debates over labor rights as human rights usually arise at international and national levels. Labor clauses citing the International Labor Organization (ILO)’s “core labor standards” are found in free trade agreements between governments, in corporate social responsibility pledges by multinational companies, in World Bank lending agreements, in the United Nations Global Compact, and other global instruments. Complaints at the ILO or under trade agreements target national governments’ compliance with labor standards and whether or not national labor ministries meet their obligation to “effectively enforce” labor laws.

After November 2010 elections in the USA, human rights aspects of labor policy suddenly emerged at subfederal levels. Elections in many states brought a sharp turn to conservative Republican rule. In this new climate, conflicts over workers’ right took shape not at the ozone layer of high international policy, but at the oozing landfill level of local labor politics.

Governors and legislatures in Wisconsin, Ohio, Florida, Michigan, and other states moved to strip public employees of collective bargaining rights, blaming their wages and benefits for budget shortfalls. A vindictive North Carolina legislature made it unlawful for public school teachers voluntarily to contribute to their union’s legislative action fund through paycheck deductions (in January 2012, a state court issued an injunction blocking the North Carolina law, saying that singling out trade unions for such a prohibition violated the state constitution’s guarantee of freedom of association)….

Right v. Privilege: Contesting Public Sector Labor Rights in the United States

Source: Susan Kang, Human Rights Review, Volume 13, Issue 3, September 2012
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The drama unfolding in various state legislatures since early 2011 has reopened debates about the status of public sector collective bargaining rights in the United States. This article critically examines the rhetorical strategies used by opponents of public sector collective bargaining rights. There are two types of political claims justifying these limitations: instrumental and normative. The instrumental argument claims that collective bargaining must be curtailed because of the necessity of economic crisis. The normative argument claims that collective bargaining for public servants is not a right, but rather a “privilege.” I argue that the politics surrounding the passage of the Ohio and Wisconsin laws, including the strategies of proponents and public’s response, reaffirms the residual legitimacy of collective bargaining as a right. However, it is important to note that this conception of right is limited and differs in various US communities. While human rights scholars have theoretically and strategically argued that the indivisible body of human rights represents a broad and overlapping “consensus,” the recent fights in Wisconsin and Ohio demonstrate how internationally recognized human rights remain deeply contested in the domestic sphere. Yet there is evidence that collective bargaining maintains significant legitimacy as a human right. This paper argues that the controversy of the 2011 legal changes suggests that collective bargaining rights are still considered human rights by many communities in the US.

Managerial Hostility and Attitudes Towards Unions: A Canada-US Comparison

Source: Michele Campolieti, Rafael Gomez, Morley Gunderson, Journal of Labor Research, August 2012
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From the abstract:
We use a cross-country survey of attitudes toward work and unions, which includes a sample of managers in both the US and Canada, to explore whether there is greater attitudinal hostility to unions in the U.S. Our estimates indicate that American manager’s attitudes towards unions are, perhaps surprisingly, less hostile than those of Canadian managers. We explain this first finding by the differential effect of perceived union power, which is greater in Canada than the US and which is correlated negatively with union approval. We also find that US managers are less likely to use extreme methods to oppose union organizing drives, implying that the lower union rates in the US as compared to Canada are not likely the result of greater negativity towards unions themselves but rather some other factor or combination of factors. The implication is that if Canadian managers faced the same labor relations playing field as their US counterparts, they would likely find it easier to thwart union certification drives as well. Alternatively stated, Canadian-style labor relations reforms (such as card-check systems or quicker certification votes) could perhaps tip the balance in favor of unions when organizing in the US.

Federal Labor Relations Statutes: An Overview

Source: Alexandra Hegji, Congressional Research Service (CRS), CRS Report for Congress, R42526, November 26, 2012

Since 1926, Congress has enacted three major laws that govern labor-management relations for private sector and federal employees. An issue for Congress is the effect of these laws on employers, workers, and the nation’s economy. The Bureau of Labor Statistics estimates that, nationwide, 14.8 million employees are union members. In the 112th Congress alone, more than 30 bills were introduced to amend federal labor relations statutes. The proposals ranged from making union recognition without a secret ballot election illegal to further modifying runoff election procedures. These legislative activities, and the significant number of employees affected by federal labor relations laws, illustrate the current relevance of labor relations issues to legislators and their constituents.

The three major labor relations statutes in the United States are the Railway Labor Act, the National Labor Relations Act, and the Federal Service Labor-Management Relations Statute. Each law governs a distinct population of the U.S. workforce…This report provides a brief history and overview of the aims of each of these statutes. It also discusses key statutory provisions for each statute.

The Legislative Upheaval in Public-Sector Labor Law: A Search for Common Elements

Source: Martin H. Malin, ABA Journal of Labor & Employment Law, 2012

From the abstract:
The 2010 elections lead to major changes in the law governing public employee collective bargaining in numerous states. Most visible were the changes in Wisconsin, which led to the largest demonstrations in Madison since the Vietnam War, and in Ohio which were repealed by an overwhelming vote in a public referendum. Less noticed were repeals of collective bargaining laws in Oklahoma and Tennessee and significant changes to the laws in Idaho, Illinois, Indiana, Massachusetts, Michigan, Nebraska, Nevada and New Jersey. This article examines the legislative upheavals in these states, searching for common elements. It finds the following trends among the enactments: eliminating collective bargaining rights for all or some employees, limiting the scope of bargaining, changes to impasse resolution processes in ways that advantage employers, and providing for amending or revoking collective bargaining agreements during period of fiscal distress. It places these changes in historical context, observing that the 1990s saw a similar upheaval that limited public employee collective bargaining rights in various states while the 2000s saw the pendulum swing in the opposite direction as many states expanded public employee collective bargaining. It suggests that future swings of the pendulum will depend on the outcomes in future elections.

The Public Policy Exception to Labor Arbitration Award Enforcement: A Path Through the Bramble Bush

Source: Henry Drummonds, Willamette Law Review, Vol. 49, 2013

From the abstract:
Prompted by a dispute over a labor arbitrator’s controversial reinstatement award in favor of an Oregon police officer who fatally shot a suicidal black man in the back after the man’s family had called the police for help, this article argues for a revitalized public policy exception to arbitral award enforcement. In this view, the public policy exception sometimes suffers from too cribbed an interpretation by both management and union lawyers, arbitrators, and reviewing courts and labor boards. At the same time a revitalized public policy exception must be applied judiciously so as not to undermine the bedrock labor relations policy embodied in the Steelworkers Trilogy favoring final and binding arbitration of workplace disputes in the unionized sector. Drawing on lessons from a close reading of the three leading public policy decisions of the United States Supreme Court — herein dubbed the “Public Policy Trilogy” — the article shows how reviewing bodies SHOULD review de novo the question whether reinstatement REMEDIES, and not the underlying employee conduct, comply with clearly defined public policies. The Steelworkers Trilogy can be accommodated by confining the public policy review to the question of reinstatement — as distinct from the question whether the arbitral finding of a contract violation draws its “essence” from the collective bargaining agreement — and further, by basing the public policy review on facts found by the arbitrator in accordance with the parties’ agreement to submit their dispute to “final and binding” arbitration. These principles derive from a close reading of the Supreme Court’s holdings and discussion in the Public Policy Trilogy. The article shows how public sector cases in the private sector, and in the public sector in Oregon, Illinois, and Pennsylvania, while largely consistent with this more nuanced view of the Trilogy, have occasionally strayed from these teachings and too narrowly applied the public policy exception.

Drug Testing Of Medical Marijuana Users In The Workplace: An Inaccurate Test Of Impairment

Source: Stacy A. Hickox, Hofstra Labor & Employment Law Journal, Volume 29, No. 2, Spring 2012

Part I of this article provides an overview of the sixteen existing medical marijuana statutes as well as the numerous bills pending across the United States. Most medical marijuana statutes do not provide direct protection against discrimination in hiring or discharge from employment. Yet most of these statutes do specify that an employer need not accommodate a medical marijuana user who uses at work or is intoxicated at work. This raises two important questions. First, does an employer have an obligation to accommodate a medical marijuana user who only uses outside of work, particularly if the person is protected against discrimination based on a disability? Employers have argued that the term “use” at work could include testing positive on a drug screen, even though an employee can test positive days or weeks after the ingestion of marijuana.

Yet the duty to accommodate could also mean that a medical marijuana user who does not ingest marijuana at work, and is not intoxicated or under the influence at work, should be entitled to accommodation like any other person with a disability. The second difficult question raised by these provisions is how to determine if a medical marijuana user is intoxicated or under the influence at work. In Part II of this article, the research on the effects of marijuana use will be reviewed. Although the research points out qualities associated with marijuana use that may also affect job performance, these effects vary considerably across users depending on the frequency and level of use as well as the personal characteristics of the user. Moreover, this research does not provide clear guidance for employers or courts regarding when a medical marijuana user should be protected against discharge based on intoxication or impairment at work.

Part III of this article considers whether drug testing should be used to determine when an employee or applicant is intoxicated or impaired. There are several reasons it should not, beginning with the lack of relationship between a positive drug test and actual impairment. In addition, many states lack requirements as to how drug tests should be administered, which allows for inaccurate and inappropriately interpreted results. As an alternative, impairment testing can give clearer indication of whether an employee is actually fit to work. Parts IV and V of this article demonstrate how a standard for determining intoxication or impairment can be developed from both criminal law and workers’ compensation law. These long-standing methods should assist both employers and courts in addressing the dilemma of what to do with a medical marijuana user who has not engaged in illegal activity, but faces discharge or rejection in the application process, even though he or she has never been under the influence of marijuana at a time when work would be affected….

The Great Recession, The Resulting Budget Shortfalls, The 2010 Elections And The Attack On Public Sector Collective Bargaining In The United States

Source: Kenneth Glenn Dau-Schmidt & Winston Lin, Hofstra Labor & Employment Law Journal, Volume 29, No. 2, Spring 2012

The institution of collective bargaining is under serious attack in the United States.

American public sector unions and collective bargaining have been subjected to a vicious attack under the auspices of balancing government budgets, promoting “equity” between private and public employees, and limiting the impact of “special interests” on government policy. The American and world financial crisis of 2007 resulted in the Great Recession of 2008 and substantial budget shortfalls for local and national governments worldwide. This financial crisis and the resulting disintegration of aggregate demand and employment are eerily similar to the financial crisis and collapse that led to the Great Depression of the 1930s. However, unlike the calamity of the 1930s, in the present emergency, American conservatives, funded by the moneyed class, are attempting to use the predicament as an opportunity to attack collective bargaining and other institutions of support and power for the American middle class. This grasp for power represents an assertion of power and control by the American upper class not experienced since the rise of scientific management, the deskilling of jobs, and the destruction of the trade union system of collective bargaining in the 1890s.

In this paper, we outline the recent attack on public sector unions’ power in the American economy and the accompanying changes, as well as proposed changes, in American law. We will briefly describe the impact of the recent financial crisis on the American economy, the balance sheets of American state and national governments, and the opportunism of the American plutocracy in using this crisis to propose and enact legislation to undermine the institution of collective bargaining and political proponents for the middle and lower classes. In particular, we will discuss the recent efforts in Indiana, Wisconsin, Ohio, and Michigan to severely limit or prohibit public sector collective bargaining and the political influence of American public sector workers. This attack on collective bargaining constitutes the largest grab for economic and political power by the American upper class since the destruction of the labor guilds in the 1890s and the rise of the “Gilded Age” in the late nineteenth and early twentieth century.