Law Commons^™

A Framework For The Rejuvenation Of The American Labor Movement, Michael C. Harper

Faculty Scholarship

No abstract provided.

Defining The Economic Relationship Appropriate For Collective Bargaining, Michael C. Harper

Faculty Scholarship

These are, of course, difficult times for those who share the goals of the framers of the original National Labor Relations Act (the "NLRA" or "Act") .' As union density in the private sector has continued to decline² and as the NLRA has proven helpless against the economic developments that have generated continuing employer resistance to collective bargaining, the original vision of the Wagner Congress must seem myopic and shaded with an excessively optimistic tint. Observing these economic developments and the enhanced impediments to union organization that they have posed makes it clear that only a much different statute …

Multiemployer Bargaining, Antitrust Law, And Team Sports: The Contingent Choice Of A Broad Exemption, Michael C. Harper

Faculty Scholarship

Twenty-four years after pronouncing that "Congress[ ,]... not... this Court[, must remedy] any inconsistency or illogic" in the long standing exemption of baseball, but not other sports from the reach of the antitrust laws,' the Supreme Court last term reduced substantially the uniqueness of Major League Baseball's control over its labor market. The Court did so not by exposing baseball to antitrust attack, but rather by clarifying that restrictions on player labor mobility and freedom of contract imposed by all North American leagues of professional sports teams² also enjoy an exemption from antitrust scrutiny as long as their labor …

Limiting Section 301 Preemption: Three Cheers For The Trilogy, Only One For Lingle And Lueck, Michael C. Harper

Faculty Scholarship

After Lueck the preemption of state law claims by employees covered by collective bargaining agreements seemed to spread.²⁶ Lingle partially stemmed the flow, ²⁷ but the lower courts continue to deny significant state law rights to unionized employees in the name of section 301 and the arbitration process that it has encouraged. ²⁸ Many of these lower court decisions paint a much too broad swath of section 301 preemption through the range of employment rights now being made available by state law.

The fault, I suggest, lies with the preemption test suggested in Lueck and expressly articulated in Lingle …

Reconciling Collective Bargaining With Employee Supervision Of Management, Michael C. Harper

Faculty Scholarship

The realities of economic organization in modern industrial states pose a critical dilemma for all who care about democratic ideals. Technological developments and attendant complicated divisions of work have enabled these states to transform their citizens' standards of living; such developments have also, however, brought hierarchical economic organizations' that are unresponsive to the influence of most individual employees. A society that claims to be democratic cannot ignore this condition.² Enhancing individuals' control over their own lives requires institutions that will facilitate democratic decisionmaking about economic production as well as governmental authority.

This Article contributes to thought about such institutions …

Leveling The Road From Borg-Warner To First National Maintenance: The Scope Of Mandatory Bargaining, Michael C. Harper

Faculty Scholarship

The Supreme Court's most recent effort to distinguish nonmandatory bargaining topics, First National Maintenance Corp. v. NLRB, ¹⁹ illustrates the Court's lack of clarity in this area and vindicates Cox's and Wellington's criticisms of the Court's approach in Borg-Warner. In First National Maintenance (F.N.M.), the Court held that an employer's decision "to shut down part of its business purely for economic reasons" was outside the scope of mandatory bargaining.²⁰ The Court could cite no evidence that Congress intended to prevent employee representatives from obtaining full effective bargaining over such decisions, nor did it articulate any general principle to …

Union Waiver Of Employee Rights Under The National Labor Relations Act, Michael C. Harper

Faculty Scholarship

The author formulates a principle, based on the Supreme Court decision in NLRB v. Magnavox, to distinguish which employee rights protected by section 7 may not be waived by unions in collective bargaining agreements. In this article, the non-waiver principle is applied to the right to strike. In the next issue, Professor Harper will address application of the principle to Board deferral to arbitration, drawing on former Board Chairman Murphy's swing vote opinion in General American Transportation Corp.

Union Waiver Of Nlra Rights: Part 2-- A Fresh Approach To Board Deferral To Arbitration, Michael C. Harper

Faculty Scholarship

The author applies the non-waiverprinciple developed in Part I of this article to Board deferral to arbitration. Former Chairman Murphy's concurring opinion in General American Transportation Corp. is evaluated in light of the non- waiver princple. The author analyzes the issues not properly resolved in that opinion, while demonstrating its basic insight.

In Part 1 of this essay, I explored the implications of the Supreme Court's holding in NLRP v. Magnavox Co. that exclusive bargaining agents do not have the authority to waive certain rights protected by section 7 of the National Labor Relations Act. Drawing on Magnavox, …