Law Commons^™

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Articles

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …

Social Bargaining In States And Cities: Toward A More Egalitarian And Democratic Workplace Law, Kate Andrias

Articles

A well-documented problem motivates this symposium: The National Labor Relations Act (NLRA) does not effectively protect workers’ rights to organize, bargain, and strike. Though unions once represented a third of American workers, today the vast majority of workers are non-union and employed “at will.” The decline of organization among workers is a key factor contributing to the rise of economic and political inequality in American society. Yet reforming labor law at the federal level—at least in a progressive direction—is currently impossible. Meanwhile, broad preemption doctrine means that states and localities are significantly limited in their ability to address the weaknesses …

Disability Rights And Labor: Is This Conflict Really Necessary?, Samuel R. Bagenstos

Articles

In this Essay, I hope to do two things: First, I try to put the current labor-disability controversy into that broader context. Second, and perhaps more important, I take a position on how disability rights advocates should approach both the current controversy and labor-disability tensions more broadly. As to the narrow dispute over wage-and-hour protections for personal-assistance workers, I argue both that those workers have a compelling normative claim to full FLSA protection—a claim that disability rights advocates should recognize—and that supporting the claim of those workers is pragmatically in the best interests of the disability rights movement. As to …

Labor And Employment Arbitration Today: Mid-Life Crisis Or New Golden Age?, Theodore J. St. Antonie

Articles

The major developments in employer-employee arbitration currently do not involve labor arbitration, that is, arbitration between employers and unions. The focus is on employment arbitration, arbitration between employers and individual employees. Beginning around 1980, nearly all the states judicially modified the standard American doctrine of employment-at-will whereby, absent a statutory or contractual prohibition, an employer could fire an employee "for good cause, for no cause, or even for cause morally wrong." Under the new regime, grounded in expansive contract and public policy theories, wrongfully discharged employees often reaped bonanzas in court suits, with California jury awards averaging around $425,000." Many …

The New Labor Law, Kate Andrias

Articles

Labor law is failing. Disfigured by courts, attacked by employers, and rendered inapt by a global and fissured economy, many of labor law’s most ardent proponents have abandoned it altogether. And for good reason: the law that governs collective organization and bargaining among workers has little to offer those it purports to protect. Several scholars have suggested ways to breathe new life into the old regime, yet their proposals do not solve the basic problem. Labor law developed for the New Deal does not provide solutions to today’s inequities. But all hope is not lost. From the remnants of the …

Are Unions A Constitutional Anomaly?, Cynthia Estlund

Michigan Law Review

This term in Friedrichs v. California Teachers Ass’n, the Supreme Court will consider whether ordinary public employees may constitutionally be required to pay an “agency fee,” as a condition of employment, to the union that represents them in collective bargaining. The Court established the terms of engagement in the 2014 decision Harris v. Quinn, which struck down an agency fee on narrower grounds while describing the current doctrine approving agency fees, blessed many times by the Court itself, as an “anomaly.” This Article asks whether labor unions are themselves anomalies in our legal system, particularly in their constitutional entitlements. Its …

Labor Unions And Title Vii: A Bit Player At The Creation Looks Back, Theodore St. Antoine

Book Chapters

During the debates over what became Title VII (Equal Employment Opportunity) of the Civil Rights Act of 1964, I was the junior partner of the then General Counsel of the AFL-CIO, J. Albert Woll. There were only three of us in the firm. The middle partner, Robert C. Mayer, handled the business affairs of the Federation and our other union clients. Bob was also the son-in-law of George Meany, president of the AFL-CIO, which gave us a unique access to Meany’s thinking. The Federation had only one in-house lawyer, Associate General Counsel Thomas Everett Harris. Tom was an aristocratic Southerner …

What The Awards Tell Us About Labor Arbitration Of Employment Discrimination Claims, Ariana R. Levinson

University of Michigan Journal of Law Reform

This Article contributes to the debate over mandatory arbitration of employment-discrimination claims in the unionized sector. In light of the proposed prohibition on union waivers in the Arbitration Fairness Act, this debate has significant practical implications. Fundamentally, the Article is about access to justice. It examines 160 labor arbitration opinions and awards in employment-discrimination cases. The author concludes that labor arbitration is a forum in which employment-discrimination claims can be-and, in some cases, are-successfully resolved. Based upon close examination of the opinions and awards, the Article recommends legislative improvements in certain cases targeting statutes of limitations, compulsory process, remedies, class …

Employee Free Choice: Amplifying Employee Voice Without Silencing Employers - A Proposal For Reforming The National Labor Relations Act, Amy Livingston

University of Michigan Journal of Law Reform

This Note investigates the effectiveness of the National Labor Relations Act (NLRA) in balancing unions, employers', and employees' rights during the course of union organizing drives. After reviewing case law and commentary, it concludes that the NLRA's certification regime is ineffective and permits pressures that inhibit employees from expressing their real desires about whether or not to be represented by a union. This Note then examines proposed alternatives for certifying unions, and takes note of Canada's federal and ten provincial certification regimes. Finally, it concludes that the NLRA must be amended to protect worker free choice, and proposes reforms including …

Employee Free Choice Or Employee Forged Choice? Race In The Mirror Of Exclusionary Hierarchy, Harry G. Hutchinson

Michigan Journal of Race and Law

The Employee Free Choice Act (EFCA) is arguably the most transformative piece of labor legislation to come before Congress since the enactment of the National Labor Relations Act of 1935 (NLRA). One of the newest attempts to transform labor relations is the EFCA. The first to disappear under the EFCA would be a system of union democracy whereby unions could only obtain the rights of exclusive representation for firms if they could prevail in a secret-ballot election. Second, the EFCA would eliminate tile necessity of a freely negotiated collective bargaining agreement between management and labor and instead substitute compulsory arbitration. …

Duty Of Fair Representation Jurisprudential Reform: The Need To Adjudicate Disputes In Internal Union Review Tribunals And The Forgotten Remedy Of Re-Arbitration, Mitchell H. Rubinstein

University of Michigan Journal of Law Reform

One of the best kept secrets in American labor law is that duty of fair representation jurisprudence simply does not work. It does not work for plaintiff union members because they must satisfy a close-to-impossible burden of proof and have a short statute of limitations window in which to assert their claim. It does not work for defendant unions because they are often forced to file pointless grievances in order to avoid the cost of litigation. It does not work for defendant employers because they are often brought into these lawsuits because they have the "deep pockets."

This Article makes …

The Future Of American Labor And Employment Law: Hopes, Dreams, And Realities, Theodore J. St. Antoine

Articles

In many respects the US is a deeply conservative country. Unique among the major industrial democracies of the world, it imposes the death penalty, provides no national health insurance, fixes a high legal drinking age, and subscribes to the doctrine of employment at will. Perhaps not surprisingly, its labor movement is also one of the most conservative on earth, eschewing class warfare and aiming largely at the bread-and-butter goal of improved wages, benefits, and working conditions. Yet American employers have generally never been as accepting of unionization as their counterparts in other countries (Bok 1971; Freeman and Medoff 1984). Over …

William W. Cook And Detroit Street Railways, 1891-1894, Margaret A. Leary

Articles

In 1890, much of Detroit's street railway system used outmoded technology, had severe labor and public relations problems, and faced uncertainty over the remaining length of the 30-year franchise granted by the city in 1863, but extended in 1879, perhaps illegally. An apparent solution came in 1891, when William W. Cook-later to earn a fortune that he would give to the University of Michigan Law School-and other "Eastern capitalists" purchased Detroit's street rail system. They were unable to solve the existing problems, and the new outside ownership itself added difficulties. Cook's group sold out in 1894, and over the next …

Offshore Outsourcing And Worker Rights, Theodore J. St. Antoine

Articles

For the workers in the Rust Belt of the United States, concentrated in Southern New England, Western New York State, Pennsylvania, Ohio, Michigan, Indiana, and Illinois, it doesn't make much difference whether their jobs are outsourced or lost to North Carolina or Mexico or China. In any event the sources of income that have existed for generations are gone and the economic and psychic pains are much the same. Nonetheless, for purposes of national policy it plainly matters whether the work is moving to another part of the country or is leaving the United States entirely. I am going to …

After 70 Years Of The Nlrb: Warm Congratulations -- And A Few Reservations, Theodore J. St. Antoine

Articles

The following essay is based on a talk the speaker was invited to deliver to the National Labor Relations Board on June 3 in Washington, D.C., on the occasion of the agency's 70th anniversary.

The Importance Of Core Labor Rights In World Development, Jonathan P. Hiatt, Deborah Greenfield

Michigan Journal of International Law

This Article discusses the meaning and significance of core labor standards and the importance of linking them to trade agreements. It explains why the "protectionist" label often attributed to such linkage efforts by their detractors is misleading, as the example of China illustrates, repression of labor rights constitutes a form of unfair competition which undermines efforts to create a more just and stable world economy.

Labor And Employment Law In Two Transitional Decades, Theodore J. St. Antoine

Articles

Labor law became labor and employment law during the past several decades. The connotation of "labor law" is the regulation of union-management relations and that was the focus from the 1930s through the 1950s. In turn, voluntary collective bargaining was supposed to be the method best suited for setting the terms and conditions of employment for the nation's work force. Since the 1960s, however, the trend has been toward more governmental intervention to ensure nondiscrimination, safety and health, pensions and other fringe benefits, and so on. "Employment law" is now the term for the direct federal or state regulation of …

Ghost Workers In An Interconnected World: Going Beyond The Dichotomies Of Domestic Immigration And Labor Laws, Ruben J. Garcia

University of Michigan Journal of Law Reform

Beginning with the September 11, 2001 ("9/11 ") terrorist attacks, the labor movement's plans to organize immigrant workers and achieve immigration reform have met serious challenges. After 9/11, the political climate surrounding immigrants put the AFL-CIO s hopes for legislative reform on hold, because of socially perceived connections between immigrants and terrorism. Then, in a March 2002 decision titled Hoffman Plastic Compounds, Inc. v. NLRB, the U.S. Supreme Court held that undocumented immigrant workers could not collect back pay under the National Labor Relations Act (NLRA) when their rights to join unions are violated. According to the Court, back pay …

The Once And Future Labor Act: Myths And Realities, Theodore J. St. Antoine

Other Publications

In this provocative article Professor St. Antoine laments, "I cannot believe that a private-sector workforce that is only one-tenth organized is ultimately good for labor, for management, or for the whole of our society." His speech to the College of Labor and Employment Lawyers outlines the original purposes of the National Labor Relations Act, the reasons for the drastic decline in the percentage of the workforce that is unionized, and his suggestions for changes in the law that would encourage and promote collective bargaining.

Justice Frank Murphy And American Labor Law, Theodore J. St. Antoine

Articles

Working people and disfavored groups were central concerns of Frank Murphy, the last Michigan Law School graduate to sit on the United States Supreme Court. In the pages of this Review, just over a half century ago, Archibald Cox wrote of him: "It was natural ...th at his judicial work should be most significant in these two fields [labor law and civil rights] and especially in the areas where they coalesce."' In this Essay, after a brief overview of Murphy the man, his days at the University of Michigan, and his career prior to the Court appointment, I shall review …

The Nlra: A Call To Collective Bargaining, Theodore J. St. Antoine

Other Publications

A century ago the legal specialty of most members of this audience would have been known as Master and Servant Law. By the time my generation entered law school, the Decennial Dgest had just added a new topic - Labor Relations Law. That of course dealt with collective bargaining and union-management relations generally. Now, a half century further along, we might seem to have come full circle, to judge by the lectures of the two eminent jurists who inaugurated this series. Both Abner Mikva and Richard Posner spoke on highly important and timely subjects, and yet those would be classified, …

Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine

Articles

Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial discrimination. …

The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine

Articles

A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration …

Reclaiming The Labor Movement Through Union Dues? A Postmodern Perspective In The Mirror Of Public Choice Theory, Harry G. Hutchison

University of Michigan Journal of Law Reform

The National Labor Relations Board's (NLRB) seeming powerlessness to process dues objector cases has led to a proliferation of state sponsored "paycheck protection" laws and popular referenda devised to ensure that workers will not be obliged to pay dues for non-germane purposes. Recently, California captured national attention as the site of a richly contested paycheck protection referendum. Such proposals have electrified union advocates and have enlivened the debate over the proper use of union dues. In addition, recent attempts to reform campaign finance have run aground on the thorny issue of union political contributions (both in-kind and in cash). Concurrently, …

Reforming Accretion Analysis Under The Nlra: Supplementing A Borrowed Analysis With Meaningful Policy Considerations, Matthew S. Miner

University of Michigan Journal of Law Reform

Current accretion analysis utilizes a variety of factors to determine whether to merge a non-unionized group of employees with a unionized group of employees within the same firm. The present construction of the analysis; however, ignores employee views and potential manipulation of the doctrine. By failing to account for these two important factors, current accretion analysis neglects two key concerns of the National Labor Relations Act - preventing employer discrimination and fostering uncoerced employee action and choice. This Note advocates a better approach, which gives proper weight to employee views and considers employer motive to control against the possibility of …

Cooperation, Conflict, Or Coercion: Using Empirical Evidence To Assess Labor-Management Cooperation, Ellen J. Dannin

Michigan Journal of International Law

Since the 1980s there has been strong interest in labor-management cooperation. That interest was reflected even in government attention, for example, through projects by the U.S. Department of Labor's Bureau of Labor-Management Cooperation. Under the leadership of Undersecretary Stephen Schlossberg, the Bureau's "Laws Project" examined the impact of labor law on labor-management cooperation. The Dunlop Commission issued a report strongly in favor of labor-management cooperation, and National Labor Relations Board (NLRB) Chair William B. Gould has spoken favorably of it. More recently, the government issued a report on state and local initiatives in this area.

The Continuing Relevance Of Section 8(A)(2) To The Contemporary Workplace, Michael C. Harper

Michigan Law Review

After embarking on his illustrious career as a legal academic, Theodore St. Antoine, through a multitude of roles, including those of scholar, teacher, administrator, pragmatic law reformer, and arbitrator, made innumerable contributions to the practice and development of many parts of American law. For most of us, however, as a scholar he will be associated primarily with the system of collective bargaining established and encouraged by the National Labor Relations Act (NLRA) and its progeny. During the first part of Professor St. Antoine's years as an academic, this system continued to flourish in America, as he, along with other legal …

Why Mandatory Arbitration May Benefit Workers, Theodore J. St. Antoine

Articles

Would employees-including union employees-be better off with mandatory arbitration, even of statutory employment claims? The answer to this important question should depend less on abstract notions about the importance of statutory claims and the sanctity of the right to a jury trial, and more on a pragmatic assessment of what is likely to be best for the great majority of workers. Employing this type of analysis, which would take into account an overworked, underfunded Equal Employment Opportunity Commission, backlogged court dockets and other practical problems, my view is that most employees might well be better off with mandatory arbitration, provided …

Arbitration: Back To The Future, Theodore J. St. Antoine

Other Publications

A strong new ideological current is sweeping through much of the Western World. At one extreme it manifests itself as a deep distrust of big government. In more modest form, it is a sense of skepticism or disillusionment about the capacity of big government to deal effectively with the problems confronting our society. In continental Europe today there is much talk of the principle of "subsidiarity," the notion that social and economic ills should be treated at the lowest level feasible, usually the level closest to the people directly affected. In the United States there is much talk of "privatization," …

Rearranging Deck Chairs On The Titanic: The Inadequacy Of Modest Proposals To Reform Labor Law, Charles B. Craver

Michigan Law Review

A Review of Agenda for Reform: The Future of Employment Relationships and the Law by William B. Gould IV