Category Archives: Labor Unions

The Perfect Storm for Labor Reform: Past, Present, and Possibilities for the National Labor Relations Act

Source: Kevin L. Burton, Employee Relations Law Journal, Vol. 41 no. 3, Winter 2015
(subscription required)

In this article, the author discusses why it is imperative that the National Labor Relations Act (NLRA) be amended to resolve the issue of employers purposely employing undocumented workers with no threat of penalty, to rectify the inability to punish for proven unfair labor practices, and to add minimum percentage requirements for American citizens in the workplace. Part one of the article lays out the legislative history and economic climate which gave rise to both the NLRA and the Taft-Hartley Amendments. Part two provides an in-depth analysis of the judicial and structural weaknesses of the Act. Part three offers detailed solutions, including a draft bill, to eradicate the weaknesses and a step-by-step plan to turn the solutions into law. Part four will discuss the proposal from a public policy perspective.

Legal Challenges to Interest Arbitration: Evidence From Canada

Source: Joseph B. Rose, Labor Law Journal, Vol. 66 no. 3, Fall 2015
(subscription required)

Although interest arbitration in Canada is used in a variety of contexts, its widest application involves the settlement of disputes in essential services. For groups such as police, firefighters and hospital workers compulsory interest arbitration is a substitute for the right to strike. In some sectors of the economy where strikes are permitted, but could potentially pose a hardship or significant inconvenience, senior governments have intervened or threatened to intervene to preempt strike action or order striking workers back to work. In these circumstances, the disputes are usually referred to binding arbitration.

As in the United States, economic and political pressures have posed a threat to the efficacy of interest arbitration and contributed to calls to reform interest arbitration schemes in Canada. This paper examines recent legal developments involving the regulation of interest arbitration and assesses the relative strengths and weaknesses of these approaches to dispute resolution. The first section examines some attributes of an effective interest arbitration system and briefly reviews several controversies surrounding interest arbitration. Next, we assess the impact of recent legislation on interest arbitration. The ascendancy of government austerity policies following the global economic crisis has led to restrictive labor laws regulating public sector bargaining and limitations on the right to strike in the private sector. The impact of government intervention focuses first on temporal limits (wage restraint laws and policies) and permanent changes to interest arbitration statutes. This is followed by referrals to interest arbitration associated with ad hoc, back-to-work laws. Changes affecting interest arbitration have included format (conventional arbitration or final offer selection), the selection process for arbitrators and arbitral criteria. In the final section, we consider both the potential and future of interest arbitration….

Repeal Section 14(b) of Taft-Hartley: A Strategy to Counter the Attacks on American Labor Unions

Source: Raymond L. Hogler, Labor Law Journal, Vol. 66 no. 3, Fall 2015
(subscription required)

… The time is now to repeal Section 14(b). As the 2016 national elections gear up, conservative candidates will run on platforms of weakening labor unions. Wisconsin governor Scott Walker attracted considerable attention when he boasted that facing down union activists qualified him to deal with international terrorists. In fact, Walker’s performance in Wisconsin has yielded abysmal results in terms of economic growth as the state’s enactment of a right to work law and generous corporate subsidies did not lead to improved job creation. Overwhelming empirical evidence disproves the basic claims of right to work proponents about economic development. What such laws do accomplish is lower union density and lower wages. Over the past four decades, American workers have experienced greater immiseration and a declining share of productive wealth. Through the power of collective bargaining, those trends can be reversed. The starting point is to correct the fundamental flaw of right to work…

The Decline of Labor, the Increase of Inequality

Source: Rich Yeselson, TPM Features, November 9, 2015

….America’s labor unions, once a stalwart of the American economy, are now in similar danger of fading into oblivion, and with them, America’s defense against increasing income inequality….

….This is a brief summary of the narrative of labor’s modern declension. But why did this happen? Broadly, unionization diminished in the US for some of the same structural, macro-economic reasons it has declined in almost every advanced country in the world. But the decline also occurred for reasons intrinsic to the American political economy—in other words because of the vastly unequal power relationships between corporations and their political allies, and unions and their less reliable political allies. As the influence that labor had on the Democratic Party frayed with its shrinking size, the first order economic effects of inequality were compounded by the second order disappearance of a countervailing political alternative to business elites and their advocates in the Republican Party….

This is the media’s real bias — pro-business, pro-corporate, pro-CEO

Source: James Berger, Salon, October 30, 2015

Republicans laughably mock CNBC debate moderators. The business press favors business — there are no labor pages. … Why is it that there’s not a “Labor Section,” a “Labor Network,” an NPR show called “Workplace”? …. This does not involve plotting or conspiracy. That’s not how the reality-making business works. It’s about shared assumptions about what is natural, about what makes sense, about what is obvious and doesn’t even need to be said. ….

… We’re in a struggle–indeed, a very classic one between the investors, owners, managers, and rent-collectors of the world versus the people who work for them and pay their rents. And the former group, whom we can also call the reality-makers, are trying their best to deny that there is any struggle taking place at all. … It will take struggle, it will take work, to put work, labor, and especially organized labor back into our shared reality. …

….Right now, I’ll just say that there can be no successful progressive movement in this country that is not closely linked to organized labor. Unions have the organizing ability, the trained personnel, the commitment (in many though not all cases) to social justice, and they have some money–not like corporate money, but more than anyone else on the Left. To accomplish this, unions must commit themselves to organizing communities outside the traditional workplaces, must work to create community-labor alliances, and must more seriously enter the struggle to remake our shared reality. We cannot allow the world-view of business and markets to continue to prevail across the media. The hard, hard work of grassroots organizing, the efforts on the ground to improve the lives of working people, the building of a social justice movement with real power… all this will become just a little easier if organized labor puts more of its resources into changing not just the realities of economic relations, but changing the conceptual reality–the shared sense of what is thinkable–that allows market values to be the dominant values and business news to be the only news…..

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.