Category Archives: Labor Unions

Wisconsin, Unions, and the Middle Class

Source: Brendan Duke and Alex Rowell, Center for American Progress, November 10, 2015

Since 2005, real median household income has fallen 7.9 percent in Wisconsin—a far sharper decline than what has been seen across the border in Minnesota or nationwide. The biggest reason why middle-class incomes have not grown in recent years is that wages in the state have remained stagnant; the Wisconsin median wage has grown by a scant 12 cents since 2005.

Economists point to several reasons for stagnant wages nationally, including globalization and increased automation. But there is a growing consensus that the decline of labor unions has been a key contributor to slow middle class wage growth and inequality over the last 40 years. Studies estimate that as much as 30 percent of the increase in wage inequality among male workers over roughly the same period is the result of declining unionization…..

Up Close and Personnel: Neither workers nor bosses, human resources professionals straddle two worlds

Source: E. Tammy Kim, Al Jazeera America, October 31, 2015

….In the earliest days of American capitalism, there was no need for human resources or its historical cousins — welfare work, personnel or labor relations. Businesses were small, and laws were few; there was hardly an office, let alone a back office. All that changed about 100 years ago, with the growth of the corporate form and a regulatory state capable of keeping it in check. Human resources as we know it owes its flourishing to unions. It was at the mid-20th-century height of industrial organizing — when nearly a third of American employees belonged to a local — that “thousands of new personnel and labor relations specialists” were hired to navigate “the increasingly abstruse world of collective bargaining,” according to UCLA historian Sanford M. Jacoby. Large nonunion companies recruited their own personnel and newly minted human relations experts to design compensation plans and cultural programs comparable with those in union shops — the surest way to repel labor organizers…..

….This attention to the bottom line signaled a change in philosophy. Ambitious HR managers were told to ditch employee relations and W-2s for visioning meetings and five-year profit plans….

….This tension was on full display at the SHRM convention. On the first morning, I attended a four-hour seminar titled “Labor relations for human resources managers.” It promised an overview of “how labor practices can affect your workplace” in the context of “the National Labor Relations Board’s aggressive recruitment and targeting of nonunion employees.” In other words, a primer on employment law, collective bargaining agreements (the contracts unions negotiate with employers) and rules for worker organizing. The two presenters, an employer-side attorney and a management consultant, began with a rhetorical question, “How do you keep them out?” — unions, that is. …. The speakers were so critical of unions and worker protests that the audience — friendly, even-tempered HR professionals from hotels, manufacturers and government agencies — started to fidget and get defensive….

Ending a Century of Violent Labor Conflict: A New Perspective on Unionization and the National Labor Relations Act

Source: Margaret Levi, Tania Melo, Barry R. Weingast, Frances Zlotnick, Stanford Law and Economics Olin Working Paper No. 481, May 14, 2015

From the abstract:
Open access to labor organizations lagged nearly a century behind open access to business organizations, arising as part of the New Deal in the mid-1930s. During the century previous to the New Deal, firms and governments actively suppressed labor organization, frequently resorting to violence. Conflict and violence ended with the National Labor Relations Act (NLRA) of 1935.

Why did the violence associated with labor last for a century? What did the NLRA do to solve this problem, and why couldn’t Congress have done so earlier? In this paper, we develop a new perspective on labor organization and violence that addresses these questions. We argue that the century-long violence surrounding labor resulted from an inability to solve a series of commitment problems. All three parties to the violence – labor, business, and government – faced commitment problems. We show that the NLRA succeeded because it finally solved the commitment problems underlying the century of labor violence.

Corporate Power Ratchet: The Courts’ Role in Eroding ‘We the People’s’ Ability to Constrain Our Corporate Creations

Source: Leo E. Strine Jr., Harvard Civil Rights- Civil Liberties Law Review (CR-CL), 2016 Forthcoming

From the abstract:
At the beginning of our nation and throughout much of our history, corporations, as the creation of society, were seen as distinctive from human citizens. Human beings were born with certain inalienable rights that government could not take away. By contrast, corporations were the opposite of Lockean-Jeffersonian citizens, in the sense that they had only such rights as society gave them. Under this understanding, society could charter corporations and benefit from their wealth-creating potential while reserving for itself the right to limit corporate activities through externality-reducing legislation and other means so as to protect the public interest.

But, in recent decades, the interactive effect of federal jurisprudence is eroding the ability of society to constrain its own corporate creations. First, recent Supreme Court decisions like Citizens United have freed corporations to use treasury funds to make unlimited political expenditures. This is likely to make politicians more responsive to moneyed interests, including both corporations and the economic elites who control them. Corporations have exercised their newfound ability to use treasury funds to influence the political process, often in the form of untraceable “dark money.” Second, the Supreme Court’s decisions in other areas have dampened the political influence of minorities and less-affluent citizens. For example, Shelby County struck down important elements of the Voting Rights Act, despite the fact that the Act, like the McCain-Feingold Act struck down in Citizens United, had overwhelming bipartisan support. Similarly, the Court has not intervened in cases involving voter identification laws and extreme gerrymandering, legislative action that is likely to diminish the voting power of less affluent voters. And at the same time, as the Court has freed corporations to act on the political process without stockholder consent, it continues to subject labor unions to more election spending restrictions than corporations, diminishing the voice of workers as compared to moneyed interests. Third, recent Supreme Court decisions like National Federation of Independent Business v. Sebelius and Hobby Lobby have made it more expensive for Congress to adopt regulatory and social welfare legislation, and have also suggested that expansions of the social security net will be struck down as unconstitutional. Fourth, although it might be thought that these shifts in jurisprudential direction might result in a more favorable environment for executive branch regulators, who have been able to put in place measures to regulate corporate behavior, the reality has been on balance otherwise. Although there has been lipservice to deferential review, federal judges have overturned important corporate regulatory measures, in decisions that can be seen as involving a substitution of the judiciary’s own policy views over the judgment made by the regulator selected by Congress. Taken together, the decisions of the Roberts Court and other like-minded federal judges have had the practical effect of increasing the power of corporations to influence the electoral and regulatory process, diminishing the ability of human citizens to constrain their corporate creations in the public interest, and reducing the practical ability of Congress and executive agencies to adopt and implement externality regulations and new social welfare regulation. The result has been to alter the relationship between society and the corporations that it has created.

Finally, the article considers whether this pattern of decisions is the result of jurists applying precedent and exercising judicial restraint. Because the decisions involve a conscious decision by judges to depart from precedent and to overturn the decisions of the political branches, these decisions are properly regarded as involving judges willing to break new ground, depart from traditional principles of judicial restraint, and move the law in a direction they think better for society.

Public Sector Unions Promote Economic Security and Equality for Women

Source: Andrea Johnson, Katherine Gallagher Robbins, National Women’s Law Center, November 2015

From the blog post:
At a time when women make up two-thirds of the low-wage workforce and the gender wage gap refuses to die, public sector unions are a beacon of hope for working women. As our new analysis, “Public Sector Unions Promote Economic Security and Equality for Women,” reveals, public sector unions provide much-needed economic security and equality for working women.

Women make up a majority of the public sector workforce, which includes nurses, first responders, teachers, and many other employees whose work is crucial to the health, safety, and prosperity of our communities. Women also make up a majority of union-represented public sector workers. We show that these union-represented women have higher wages and increased participation in employer-based health insurance plans, compared to their non-union-represented counterparts. These women also experience greater equality in wages and health benefits with their male counterparts.
Related:
Abstract

On Friedrichs v. California Teachers Association

Source: Jeffrey Keefe, Economic Policy Institute, EPI Briefing Paper #411, November 2, 2015

From the summary:
The inextricable links between exclusive representation, agency fees, and the duty of fair representation. … The U.S. Supreme Court in its current session will consider Friedrichs v. California Teachers Association, a case that may require all states to enforce public-sector open-shop laws. Specifically a question before the court is whether to overrule Abood v. Detroit Board of Education, 431 U.S. 209 (1977) and find public-sector agency-shop clauses unconstitutional. Agency-shop clauses allow unions to collect agency fees (also called fair-share fees) from employees who are not union members but whom the union is legally required to represent. The fees are calculated as a percent of union dues. The Court in Abood upheld the constitutionality of agency-shop clauses, provided that the agency service charges are used to finance collective-bargaining, contract-administration, and grievance processes, but not for political or ideological purposes. Since World War II, 25 states have enacted so-called right-to-work (RTW) laws prohibiting the enforcement of agency-shop provisions in the private sector, and then they extended these laws to their public-sector employees. These laws create “open shops,” where all workers, union and nonunion alike, have the right to union representation but are not required to pay the union fees for that representation. If the Supreme Court overturns Abood and eliminates agency fees, it would essentially make all states right-to-work states (also known as “no-fair-share” states) in the public sector.

This briefing paper responds to a claim by the Mackinac Center for Public Policy, in its amicus curiae brief, that there is not an inextricable link between exclusive representation and the agency fees that allow public-sector unions to fulfill their duty of fair representation for all bargaining unit members. “Unions are in fact able to fulfill the duty of fair representation despite whatever incentive workers might have to ‘free ride’ on the union when they do not face any agency fees,” the brief states (Mackinac Center 2015)…. Simply put, this briefing paper asks whether agency clauses, which eliminate free-riders, are needed so that unions can carry out their obligations to serve all members of a bargaining unit. It finds that agency clauses are needed because free-riding reduces resources and thus undermines the ability of a union to serve all workers in the bargaining unit. Having fewer resources, for example, likely makes it harder for the union to pay the costs of an arbitration, which could include the costs of investigation, lawyers’ fees, the arbitrator’s fee, and staff time…..

Related:
Press Release

Labor Protest Under the New First Amendment

Source: Catherine Fisk and Jessica Rutter, Berkeley Journal of Employment and Labor Law, Vol. 36 no. 2, 2015

Low-wage workers across the country have recently gripped the nation’s attention with public demonstrations calling for workplace fairness. But as these workers and the unions supporting them employ new and innovative strategies to organize their workplaces and improve their working conditions, employers and the National Labor Relations Board have charged them with violating section 8(b)(7) of the National Labor Relations Act, which prohibits peaceful picketing to organize workers or gain employer recognition of a union. This article analyzes the history and impact of labor picketing restrictions in light of the Supreme Court’s recent First Amendment jurisprudence. We demonstrate that the National Labor Relations Board, its enforcement officials, and the courts can no longer apply old law prohibiting picketing for recognitional and organizational objects. The NLRA’s prohibitions on labor unions picketing to obtain recognition or get workers to join them are unconstitutional speaker-based and content-based discrimination. We describe how the Board and the courts can adopt narrower interpretations of labor picketing that accord with the Supreme Court’s recent First Amendment cases. Specifically, we advance three proposals to bring the Board’s interpretation and enforcement practices into compliance with the Constitution, and a fourth approach that might at least partially address the constitutional infirmities of the Board’s current approach. All of these proposals aim to ensure that section 8(b)(7) will be violated only by conduct that actually or imminently coerces employees or companies in the selection of a bargaining representative through methods other than peaceful persuasion of consumers or employees to cease doing business with the firm.

Who’s Behind Friedrichs?

Source: Adele M. Stan, American Prospect, October 29, 2015

The right-wing one-percenters who are funding a mega-attack on unions.

…The right of unions to collect fair share fees was settled by the court’s unanimous decision in 1977’s Abood v. Detroit Board of Education. In her dissenting opinion in Harris, Justice Elena Kagan noted that the fair-share issues Alito brought up were not even before the court in Harris. Alito’s questioning of the Abood precedent, however, signaled an inclination by the conservative majority to revisit it.

Alito’s invitation to reconsider Abood helped ensure that Friedrichs tore through the legal system at high speed. But the real force propelling Friedrichs’ gallop through the courts was the Center for Individual Rights (CIR), the right-wing pro-bono law group that is representing teacher Rebecca Friedrichs and her fellow plaintiffs: At each stage in the legal process, CIR attorneys asked the courts to rule against their own clients, with the apparent interest of moving the case up to the Supreme Court as quickly as possible…..

….Since its founding, the Center for Individual Rights has maintained a special focus on challenging civil-rights measures, especially affirmative action….. The list of foundations and donor-advised funds supporting the Center for Individual Rights reads like a who’s who of the right’s organized opposition to labor. …. According to journalist Laura Flanders, earlier in its history CIR also enjoyed the support of the Pioneer Fund, a white supremacist organization devoted to the promotion of eugenics. Flanders, writing in The Nation in 1999, found through an examination of the group’s tax records that the Pioneer Fund had made three separate grants to CIR. While the involvement of the Pioneer Fund in CIR may seem unrelated to the law group’s anti-union work, it is not uncommon for organizations opposed to the interests of labor to also have histories of antipathy to other forms of civil rights…..

The Union of the Future

Source: Michelle Miller, Roosevelt Institute, Thought Brief, Next American Economy Convening, July 6, 2015

Michelle Miller, co-founder of Coworker.org, asks what the union of the future will look like. … As remote work has become easier, so too has the transition to the use of independent contractors instead of full-time employees. …. In essence, we have an entire government and union structure designed to ensure economic stability for workers—but one that no longer matches the situation in which many people actually work. …. The union of the future will be structured radically differently to meet the needs of workers in the emerging platform-based economy. It will transition from focusing solely on generating and supporting collective bargaining agreements to providing a variety of services to these workers. It will only thrive in a federal policy environment that is willing to reimagine its own definitions of work. The union of the future will combine elements of platform-based global networks of employees, facilitated mutual aid, and revamped trade unions. ….

Widening the Scope of Worker Organizing: Legal Reforms to Facilitate Multi-Employer Organizing, Bargaining, and Striking

Source: Roosevelt Institute, October 7, 2015

From the summary:
For legal, social, and economic reasons, it is difficult for worker organizations to organize, bargain, and strike across entire contractual supply-chains, networks, industries, occupations, or regions.

This paper proposes four large-scale reforms to diminish these difficulties and actively facilitate organizing and striking across multiple employers:

First, an entity should be deemed an “indirect” employer of multiple “direct” employers’ workforces if it has “sufficient bargaining power” to determine the standards of all the employees in question, even if the entity is not currently exercising such power. By organizing and bargaining with that single entity, a worker organization would effectively organize and bargain with what is currently deemed a multi- employer association.

Second, the law should authorize worker organizations to unilaterally choose multi-employer units. And, if a government agency is called upon to select among differing units chosen by different worker organizations, the agency should define units based on the criterion of “maximum potential worker empowerment.”

Third, legal reform should authorize bargaining units that are defined not only by employer boundaries but also by such categories as geographic region, production-and-distribution network, occupation, or industry.

Fourth, bargaining rights or the substantive terms of collective agreements should extend across multiple employers even if only a minority of unit workers have affirmatively shown their support for the organization.

Each of these reforms would require large-scale legislative transformation and zealous enforcement that are only imaginable in the event of deep progressive renewal in our politics. The four reforms could be enacted separately but would, if concurrently implemented, be mutually reinforcing.