Category Archives: Labor Laws/Legislation

How Much Power Does a Labor Arbitrator Have? What the Latest Court Decisions Mean for Arbitrators, Employers, Unions and National Labor Policy?

Source: Lise Gelernter, Buffalo Legal Studies Research Paper No. 2012 – 005

From the abstract:
In 2009, in 14 Penn Plaza L.L.C. v. Pyett, the Supreme Court threw a curve at the collective bargaining world by holding (5-4) that unions could waive the rights of individual bargaining unit members to go to court to resolve employment-related statutory disputes and, instead, could require that such disputes be arbitrated. Pyett raised the specter of the Court taking the final step in merging the legal treatment of arbitration in the collective bargaining world with the treatment of non-labor arbitration, despite the clear points of tension between the basic public policy goal behind labor arbitration, which is to promote industrial peace, and the basic public policy goal behind all other kinds of contractual arbitration, which is to support and encourage private parties’ freedom to contract for alternative ways in which to resolve contractual disputes.

This paper clarifies what the legal trends really are and what they mean for the ‘big picture’ in arbitration as well as for labor arbitrators and the parties who appear before them. After reviewing the history of labor and non-labor arbitration and outlining and comparing the core principles of each type of arbitration, I trace how recent arbitration jurisprudence has crossed the historical divide between labor and commercial arbitration and explore the problems that this creates for labor arbitration as an institution. The trend towards the convergence of labor and non-labor arbitration is not unstoppable, however, and I highlight the ways in which the courts have continued to view arbitration under collective bargaining agreements and non-labor contracts as dichotomous systems with different rules. I also discuss how to deal with the reality of the new hybrid commercial/labor arbitrator that Pyett appears to contemplate and address the ways in which employers, employees and unions can help to retain the procedural and collective bargaining benefits of labor arbitration.

Workplace Privacy and Monitoring: The Quest for Balanced Interests

Source: Ariana R. Levinson, Cleveland State Law Review, Vol. 59, No. 3, 2011

From the abstract:
This article describes some of the difficulties for employers and employees resulting from advancing technology. It briefly describes some of the technology available to employers with which to monitor employees. The article then provides an overview of the primary sources of law governing employer monitoring and employee privacy, such as the Electronic Communications Privacy Act, state statutes providing for notice of monitoring or protection of the integrity of personnel records or lawful off-duty activity, the tort of invasion on seclusion, and the Fourth Amendment. The article concludes by offering suggestions for attorneys who represent employers, employees, or unions and are interested in addressing these issues. Attorneys and their clients can advocate for federal or state legislation, address these issues in collective bargaining or through private policies, or become involved in educational efforts.

Cognitive Illiberalism and Debiasing Strategies

Source: Paul M. Secunda, Marquette Law School Legal Studies Paper No. 11-03, Last revised: July 25, 2011

From the abstract:
Legal realist scholars of a generation ago posited that judicial perception of facts reflect previously-held values and assumptions rather than record evidence. Yet crucially those scholars did not describe the psychological mechanism by which judges’ values come to shape facts. Understanding the psychological mechanism, culturally-motivated cognition, is a necessary first step to counteract the impact of cognitive illiberalism. Cognitive illiberalism results from the manner in which legal decisionmakers explain their decisions, and how those explanations are processed by “losers” in the politico-legal wars of our society. The phenomenon of cognitive illiberalism delegitimizes legal decisions and causes societal discontent with the law.

This article considers ways to reduce this needless cultural conflict over the law generally, and more specifically, in the highly polarized area of American labor and employment law. To this end, this article considers a spectrum of judicial reform debiasing strategies, ranging from opinion-writing debiasing strategies to more far-ranging specialized judge and court models, to reduce the incidents of cognitive illiberalism in labor and employment law. The article concludes by maintaining that the American legal system should at least experiment with institutional debiasing strategies to counteract cognitive illiberalism. Such experimentation would improve the public discourse on important workplace issues in the United States.

Enforcement of State Wage and Hour Laws: A Survey of State Regulators

Source: Jacob Meyer and Robert Greenleaf, National State Attorneys General Program at Columbia Law School, April 2011

From an EPRN summary:
In 2011, state-level legislative initiatives transforming public sector labor law have drawn increased concern over American states’ adequate enforcement of wage and hour laws. Those concerns can now find confirmation in a study released by the National State Attorneys General Program at Columbia Law School. The study, Enforcement of State Wage and Hour Laws: A Survey of State Regulators, by Jacob Meyer, Esq. and Robert Greenleaf, Esq.

The Empirical Case for Streamlining the NLRB Certification Process: The Role of Date of Unfair Labor Practice Occurrence

Source: Kate Bronfenbrenner and Dorian Warren, Institute for Social and Economic Research and Policy at Columbia University, Working Paper No. 2011.01, June 2011

From the abstract:
The National Labor Relations Board (NLRB) has long advocated reducing the time period between the filing of a petition to form a union and union certification elections. This ISERP Working shows that despite this objective there have been virtually no elections in the first 20 days after a petition is filed, while in the past two years there has been a slight increase in the number of elections held within 21 to 30 days of the petition. The study demonstrates the relationship between the petition date, election date and when the most serious employer opposition and intimidation occurs and concludes that the NLRB should streamline the certification process to reduce the number of days between petition and election.
See also:
Press release
Employer Communications on Unions Are Early and Ongoing
Source: American Rights at Work, June 2011

New Data: NLRB Process Fails to Ensure a Fair Vote

Source: John Logan, Erin Johansson, and Ryan Lamare, University Of California, Berkeley Center For Labor Research And Education, June 2011

The National Labor Relations Board (NLRB) is mandated by the National Labor Relations Act (NLRA) to protect the rights of employees to form unions and collectively bargain. One key role of the NLRB is to oversee representation elections, where workers decide whether or not to form unions. Several recent studies have indicated that the current NLRB election process fails to ensure that workers can freely form unions.

Our new analysis of NLRB election data reveals how current NLRB procedures, which grant employers significant control over the timing of the election process, can prevent workers from fairly choosing whether or not to have union representation. Our key findings include the following:
– The current NLRB election process allows significant delays in the vote.
– Delayed elections exacerbate the problem of unfair labor practices.
– Anti-union campaigns begin early in the election process.

Unions Work to Turn the Tide / Organized labor rolls out a response to nationwide assaults on workers’ rights

Source: David Moberg, In These Times, June 15, 2011

America’s unions are contending with the harshest legislative attack on workers’ rights since the 1947 Taft-Hartley Act. Labor strategists, their forces in decline, face an urgent question: What should unions do to defend their existence, and to provide workers more power at work and in politics?

What Wisconsin Means

Source: Roger Bybee, Dollars and Sense, no. 294, May/June 2011

The “Wisconsin uprising” has slowed the newest anti-labor salvo….While Walker’s anti-union moves are on hold in the courts, labor and progressives have a chance to do something even more important than recalling Republican state legislators: to build a durable coalition that will support union rights and oppose draconian budget cuts.

Laws of Attraction: Regulatory Arbitrage in the Face of Activism in Right-to-Work States

Source: Hayagreeva Rao, Lori Qingyuan Yue, and Paul Ingram, American Sociological Review, June 2011
(subscription required)

From the abstract:
Past research recognizes that firms exploit regulatory variations to their advantage but depicts such regulatory arbitrage as a dyadic process between firms and regulators. We extend this account by including a firm’s non-market rivals and suggest that firms view regulatory differences as part of a corporate political opportunity structure and exploit regulatory variations to disadvantage their rivals. Empirically, we focus on variations in right-to-work (RTW) laws that signal the pro-business climate in a state; these laws exist in 22 U.S. states. Using a spatial-regression discontinuity design, we analyze how Walmart locates new stores in the face of anti-Walmart activists and exploits regulatory discontinuities on the borders between RTW and non-RTW states. We find that Walmart is more likely to propose new stores, and to open those stores even if they are protested, at the borders of RTW states, compared with the borders of neighboring non-RTW states. We conclude with a discussion of implications for the study of regulation, social movements, and organizations.

ALEC: American Legislative Exchange Council – The Voice of Corporate Special Interests in State Legislatures

Source: People For the American Way Foundation, 2011

When state legislators across the nation introduce similar or identical bills designed to boost corporate power and profits, reduce workers rights, limit corporate accountability for pollution, or restrict voting by minorities, odds are good that the legislation was not written by a state lawmaker but by corporate lobbyists working through the American Legislative Exchange Council. ALEC is a one-stop shop for corporations looking to identify friendly state legislators and work with them to get special-interest legislation introduced. It’s win-win for corporations, their lobbyists, and right-wing legislators. But the big losers are citizens whose rights and interests are sold off to the highest bidder….

… ALEC’s major funders include Exxon Mobil, the Scaife family (Allegheny Foundation and the Scaife Family Foundation), the Coors family (Castle Rock Foundation), Charles Koch (Charles G. Koch Charitable Foundation and the Claude R. Lambe Charitable Foundation), the Bradley family (The Lynde and Harry Bradley Foundation) and the Olin family (John M. Olin Foundation). These organizations consistently finance right-wing think tanks and political groups.

Members of ALEC’s board represent major corporations such as Altria, AT&T, GlaxoSmithKline, Johnson & Johnson, Koch Industries, Kraft, PhRMA, Wal-Mart, Peabody Energy, and State Farm. Such corporations represent just a fraction of ALEC’s approximately three hundred corporate partners. According to the American Association for Justice, over eighty percent of ALEC’s finances come from corporate contributions….

…The Issues ALEC Lobbies For:
– Undercutting Health Care Reform: Pulling out all the stops to weaken the health care reform law.

– Corporate Power and Workers’ Rights: Curbing protections for workers while eliminating checks and regulations on corporations.

– Voter ID and Election LawsBoosting corporate clout by making it harder for young and low-income Americans to exercise their right to vote.

– Tax Policy: Encouraging tax cuts for the rich that exacerbate state budget problems.

– Private School Vouchers: Taking aim at public education by bolstering risky, wasteful, and ineffective private school voucher programs.

– Obstructing Environmental Protection: Using energy industry dollars to fight climate change policies and regulations on polluters.