Category Archives: Labor Unions

Labor Unions and White Racial Politics

Source: Paul Frymer, Jacob M. Grumbach, American Journal of Political Science, Early View, First published: June 29, 2020
(subscription required)

From the abstract:
Scholars and political observers point to declining labor unions, on the one hand, and rising white identity politics, on the other, as profound changes in American politics. However, there has been little attention given to the potential feedback between these forces. In this article, we investigate the role of union membership in shaping white racial attitudes. We draw upon research in history and American political development to generate a theory of interracial labor politics, in which union membership reduces racial resentment. Cross‐sectional analyses consistently show that white union members have lower racial resentment and greater support for policies that benefit African Americans. More importantly, our panel analysis suggests that gaining union membership between 2010 and 2016 reduced racial resentment among white workers. The findings highlight the important role of labor unions in mass politics and, more broadly, the importance of organizational membership for political attitudes and behavior.

Walkouts Spread as Workers Seek Coronavirus Protections

Source: Dan DiMaggio, Saurav Sarkar, Labor Notes, March 26, 2020

As the coronavirus spreads, more and more workers who are still on the job are taking action to defend their health and safety and demand hazard pay. Here’s a round-up. (For an earlier round-up, see “Organizing for Pandemic Time-Off,” Labor Notes, March 16, 2020.)

Can I Get Fired for Talking about Virus Risks?

Source: Alexandra Bradbury, Labor Notes, March 31, 2020

Many workers still on the job during this pandemic are upset about their working conditions. But can you get in trouble for talking about your concerns—to your co-workers, on social media, or to the newspaper?

In a word: no. Not legally, anyway.

Below is a short run-down of your legal right to organize around wages, hours, and working conditions, even if you don’t have a union—and if you do have a union, your additional protection under your contract.

Let’s be real—employers have been known to break laws and contracts, and the bureaucratic remedies (court cases, grievances) are slow. But often threats are just meant to silence you. Showing that you know your rights may be enough to get management to back off its threats….

Related:
WEBINAR: Organizing without a Union During the Coronavirus / Organizándose sin sindicato durante el coronavirus
Source: Chris Brooks, Labor Notes, March 27, 2020

The Aftermath of Janus v. AFSCME: An Ongoing Assault on Public Sector Unions

Source: Ann Hodges, American Constitution Society, ACS Issue Brief, March 2020

From the summary:
With the Supreme Court having overruled precedent and declared public sector “fair share” fees unconstitutional in Janus v. AFSCME, anti-union forces now have a new target: repayment of the fees paid to unions prior to the 2018 decision. Arguing that Janus should be retroactive, these advocates are seeking “millions of dollars from public sector unions, money collected in compliance with existing laws and already spent on representing employees.”

In a new ACS Issue Brief, Ann Hodges, Professor Emerita at the University of Richmond School of Law, explains the history of these restitution claims and why they are legally dubious. Hodges also questions whether “the employee plaintiffs in these cases [are] acting out of moral conviction and righteous motives or [if] they [are] being used by powerful interests to defeat the efforts of working people to join together collectively to combat the power of wealthy individuals and corporate actors.”

Ceasing Dues Checkoff Is Lawful After Expiration

Source: Kimberly Kemper, Employment Alert, Vol. 37 no. 3. February 5, 2020
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About 13 months after the expiration of parties’ contract, Valley Hospital Medical Center stopped deducting and remitting to the Local Joint Executive Board of Las Vegas employees’ dues. The employer took this action after five days’ notice and without providing the Union an opportunity to bargain. The agreement had contained a dues checkoff agreement to be used by employees requesting dues checkoff. The National Labor Relations Board (NLRB) held that the employer lawfully ceased checking off and remitting employees’ union dues after its contract with the union expired, overruling Lincoln Lutheran of Racine, 362 N.L.R.B. 1655, 204 L.R.R.M. (BNA) 1234, 2014-15 NLRB Dec. (CCH) P 16018, 2015 WL 5047778 (2015), and returning to the longstanding precedent set by Bethlehem Steel Co. (New York, N.Y.), 136 N.L.R.B. 1500, 50 L.R.R.M. (BNA) 1013, 1962 NLRB Dec. (CCH) P 11163, 1962 WL 16787 (1962), enforcement denied and remanded, 320 F.2d 615, 53 L.R.R.M. (BNA) 2878, 47 Lab. Cas. (CCH) P 18409 (3d Cir. 1963)For over half a century, this unilateral action was lawful under NLRB precedent beginning with Bethlehem Steel.

The Impact of Janus on Public Employee Unions So Far

Source: Irma Rodríguez Moisa, Nate J. Kowalski, Jay G. Trinnaman, and Eric T. Riss, Employee Relations Law Journal, Vol. 45, No. 3, Winter 2019
(subscription required)

The authors examine the primary effects of the U.S. Supreme Court decision in Janus , particularly for California employers under the Meyers-Milias-Brown Act.

Development on a Cracked Foundation: How the Incomplete Nature of New Deal Labor Reform Presaged its Ultimate Decline

Source: Leo E. Strine Jr., Harvard Public Law Working Paper No. 19-48, November 22, 2019

From the abstract:
Mariano-Florentino Cuéllar, Margaret Levi, and Barry R. Weingast’s excellent essay, Twentieth Century America as a Developing Country, Conflict, Institutional Change and the Evolution of Public Law, celebrates the period during which the National Labor Relations Act facilitated the peaceful resolution of labor disputes and improved the working conditions of American workers. These distinguished authors make a strong case for the essentiality of law in regulating labor relations and the importance of national culture in providing a solid context for the emergence of legal regimes facilitating economic growth and equality. This reply to their essay explores how the New Deal’s failure to eradicate ideological divisions, racial inequities, and anti-labor power structures rooted in our nation’s history compromised the ultimate success of the NLRA, the protection of labor in the international trading regime, the effectiveness and prevalence of American labor unions, and the overall leverage of American workers.

The reply then addresses two related realities: 1) the New Deal idea that all workers deserve economic security, safe working conditions, and a fair say over the terms and conditions of their employment remains sound; and 2) but that idea cannot be realized unless it is backed by legal force in the institutions of law that govern a now global economy. Put simply, the original vision of FDR calling for a global New Deal must be implemented if American workers and their international brethren are to receive fair treatment.

Labor Antitrust’s Paradox

Source: Hiba Hafiz, Boston College Law School Legal Studies Research Paper No. 521, Last revised: 19 January 19, 2020

From the abstract:
Growing inequality, the decline in labor’s share of national income, and increasing evidence of labor market concentration and employer buyer power are all subjects of national attention, eliciting wide-ranging proposals for legal reform. Many proposals hinge on labor market fixes and empowering workers within and beyond existing work law or through tax-and-transfer schemes. But a recent surge of interest focuses on applying antitrust law in labor markets, or “labor antitrust.” These proposals call for more aggressive enforcement by the Department of Justice (DOJ) and Federal Trade Commission (FTC) as well as stronger legal remedies for employer collusion and unlawful monopsony that suppresses workers’ wages.

The turn to labor antitrust is driven in part by congressional gridlock and the collapse of labor law as a dominant source of labor market regulation, inviting regulation through other means. Labor antitrust promises an effective attack because agency discretion and judicial enforcement can police labor markets without substantial amendments to existing law, bypassing the current impasse in Congress. Further, unlike labor and employment law, labor antitrust is uniquely positioned to challenge industry-wide wage suppression; suing multiple employers is increasingly challenging in work law as a statutory, doctrinal, and procedural matter.

But current labor antitrust proposals, while fruitful, are fundamentally limited in two ways. First, echoing a broader antitrust policy crisis, they inherit and reinvigorate debates about the current consumer welfare goal of antitrust. The proposals ignore that, as a theoretical and practical matter, employers’ anticompetitive conduct in labor markets does not necessarily harm consumers. As a result, workers’ labor antitrust challenges will face an uphill battle under current law: where consumers are not harmed, labor antitrust can neither effectively police employer buyer power nor fill gaps in labor market regulation left by a retreating labor law. Second, the proposals ignore real synergies between antitrust enforcement and labor regulation that could preempt the rise of employer buyer power and contain its exercise.

This Essay analyzes the limitations of current labor antitrust proposals and argues for regulatory sharing between antitrust and labor law to combat the adverse effects of employer buyer power. It makes three key contributions. First, it frames the new labor antitrust as disrupting a grand regulatory bargain, reinforced by the Chicago School, that segregated labor and antitrust regulation to resolve a perceived paradox in serving two masters: workers and consumers. The dominance of the consumer welfare standard resolved that paradox. Second, it explains how scholarly attempts to invigorate labor antitrust fail to overcome this paradox and ignore theoretical and doctrinal roadblocks to maximizing both worker and consumer welfare, leaving worker plaintiffs vulnerable to failure. Third, it proposes a novel restructuring of labor market regulation that integrates antitrust and labor law enforcement to achieve coherent and effective regulation of employer buyer power. It refocuses labor antitrust claims on consumer welfare ends and relegates worker welfare considerations to a labor law supplemented and fortified by the creation of substantive presumptions and defenses triggered by labor antitrust findings as well as labor agency involvement in merger review.

Union Membership Byte 2020

Source: Hayley Brown and Hye Jin Rho, Center for Economic and Policy Research (CEPR), January 22, 2019

From the abstract:
CEPR’s annual Union Membership Byte gives an in-depth analysis of union membership by sector, gender, race, ethnicity, age, education, nativity, industry, occupation, and by state (including the District of Columbia). The decline in Black union membership stood out amid declines in overall unionization rates in both the private and public sectors. The overall union membership rate fell to 10.3 percent, dropping by 0.2 percentage points between 2018 and 2019. This represents a loss of 170,000 union jobs. The union membership rates for both private and public sector workers fell for two consecutive years. These reductions reflect a downward trend that has persisted over the last several decades in the US. Although Black workers remain the most heavily unionized racial group at 11.2 percent, they experienced the largest decline in membership in 2019, losing 215,000 members. In comparison, unionization rates for whites fell to 10.3 percent, Hispanics fell to 8.9 percent, while Asian unionization rates rose to 8.8 percent.

Related:
Press Release

Clean Slate for Worker Power: Building a Just Economy and Democracy

Source: Sharon Block and Benjamin Sachs, Labor and Worklife Program, Harvard Law School, January 2020

From the summary:
Since the founding of the country, concentration of power in the hands of a small minority has been recognized as a threat to the viability of American democracy. Today, the struggle to preserve democracy in the face of extreme wealth concentration is acute because we live in a historical moment when vast disparities of economic power have been translated into equally shocking disparities in political power.

With this report, we offer an intervention that promises to help stop the self-reinforcing cycle of economic and political inequality. By proposing a fundamental redesign of labor law, our aspiration is to enable all working people – including those who have been excluded by systemic racism and sexism – to create the collective economic and political power necessary to build an equitable economy and politics.

Inclusiveness
Labor law reform should expand protections of the law to address systemic racial and gender oppression.

Universal Representation
Pathways to worker power should track corporate power and be universal, providing multiple forms of voice for all workers without employer interference.

Sectoral Bargaining
We recommend creating a system of sectoral bargaining in which agreements are binding on all firms in the sector.