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The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias
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
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
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
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
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 …
Labor Unions And Title Vii: A Bit Player At The Creation Looks Back, Theodore St. Antoine
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 …
The Future Of American Labor And Employment Law: Hopes, Dreams, And Realities, Theodore J. St. Antoine
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 …
Offshore Outsourcing And Worker Rights, Theodore J. St. Antoine
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
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.
Labor And Employment Law In Two Transitional Decades, Theodore J. St. Antoine
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 …
The Once And Future Labor Act: Myths And Realities, Theodore J. St. Antoine
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.
The Nlra: A Call To Collective Bargaining, Theodore J. St. Antoine
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
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
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 …
Why Mandatory Arbitration May Benefit Workers, Theodore J. St. Antoine
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
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," …
Divergent Strategies: Union Organizing And Alternative Dispute Resolution, Theodore J. St. Antoine
Divergent Strategies: Union Organizing And Alternative Dispute Resolution, Theodore J. St. Antoine
Articles
The Commission on the Future of Worker-Management Relations, the so-called "Dunlop Commission," is focusing on three principal subjects: (1) union organizing, (2) worker participation in management decision making, and (3) alternative dispute resolution (ADR). I am going to concentrate on the last, but first I would like to say a few words about union organizing. After all, unionization and collective bargaining - and for that matter, worker participation as well - can fairly be viewed as special forms of alternative dispute resolution.
The Government And Union Democracy, Theodore J. St. Antoine
The Government And Union Democracy, Theodore J. St. Antoine
Articles
The desirability of union democracy is generally regarded today as a self-evident proposition. In this Symposium Clyde Summers treats it as a "fundamental premise." But there have always been reputable scholars who would support the thesis, in greater or lesser degree, that "democracy is as inappropriate within the international headquarters of the UAW as it is in the front office of General Motors."
Afterword To Chicago-Kent Law Review, Theodore J. St. Antoine
Afterword To Chicago-Kent Law Review, Theodore J. St. Antoine
Articles
A unifying theme of this Symposium is as old and enduring as the common law: when and how can a well-established, successful adjudicative institution be adapted to meet the demands of new and substantially different situations? There have been splendid triumphs of transference, such as Lord Mansfield's appropriation of the law merchant in the eighteenth century as a major building block of modem commercial law. There have also been embarrassing failures, like the abortive effort to transport American labor law concepts en masse into the alien British environment of the early 1970s. The common question confronting the participants in this …
Commentary On 'Multiemployer Bargaining Rules': The Limitations Of A Strictly Economic Analysis, Theodore J. St. Antoine
Commentary On 'Multiemployer Bargaining Rules': The Limitations Of A Strictly Economic Analysis, Theodore J. St. Antoine
Articles
Labor law bulks large on the docket of the United States Supreme Court. Yet never would I have included Charles D. Bonanno Linen Service, Inc. v. NLRB, dealing with the seemingly mundane issue of an employer's right to withdraw from multiemployer bargaining, in the select company of cases addressing such pulse-quickening subjects as affirmative action, picketing as free speech, and union antitrust liability. Professor Douglas Leslie's elegant and provocative article shows just how wrong I was--or at least just how far imaginative analysis can go toward seeing a world in a grain of sand. I lay no claim to expertise …
Prevention Of Antiunion Discrimination In The United States, Theodore J. St. Antoine
Prevention Of Antiunion Discrimination In The United States, Theodore J. St. Antoine
Articles
Nearly all rank-and-file employees in private businesses of any substantial size in the United States are protected by federal law against antiunion discrimination. The Railway Labor Act applies to the railroad and airline industries. The National Labor Relations Act (NLRA) applies to all other businesses whose operations "affect [interstate] commerce" in almost any way. Supervisory and managerial personnel, domestic servants, and agricultural workers are excluded from this federal scheme. Separate federal law covers the employees of the federal government. About thirty of the fifty states have statutes ensuring the right to organize on the part of some or most of …
Integrity And Circumspection: The Labor Law Vision Of Bernard D. Meltzer, Theodore J. St. Antoine
Integrity And Circumspection: The Labor Law Vision Of Bernard D. Meltzer, Theodore J. St. Antoine
Articles
Bernard Meltzer has testified under oath that he "rarely take[s] absolute positions." The record bears him out. While his colleagues among labor law scholars often strain to demonstrate that the labor relations statutes and even the Constitution support their hearts' desires, the typical Meltzer stance is one of cool detachment, pragmatic assessment, and cautious, balanced judgment. The "itch to do good," Meltzer has remarked wryly, "is a doubtful basis for jurisdiction" -or, he would likely add, for any other legal conclusion. In this brief commentary I propose to examine the Meltzer approach to four broad areas of labor law: (1) …
Federal Regulation Of The Workplace In The Next Half Century, Theodore J. St. Antoine
Federal Regulation Of The Workplace In The Next Half Century, Theodore J. St. Antoine
Articles
Even the general circulation press, from the New York Times to the Los Angeles Times to Business Week, has taken to examining the current malaise of the labor movement and the increased emphasis upon ensuring the safety, health, and economic security of employees through direct governmental regulation rather than through collective bargaining. What accounts for this upsurge of scholarly and popular interest in labor relations and labor law? There are undoubtedly multiple causes but I should like to focus on a couple of reasons that seem preeminent to me.
Legal Barriers To Worker Participation In Management Decision Making, Theodore J. St. Antoine
Legal Barriers To Worker Participation In Management Decision Making, Theodore J. St. Antoine
Articles
Collective bargaining lies at the heart of the union-management relationship. It is the end and purpose of the whole effort to protect employees against reprisals when they form an organization to represent them in dealing with their employers. Collective bargaining is grounded in the belief that industrial strife will be checked, and the workers' lot bettered, if workers are given an effective voice in determining the conditions of their employment. My thesis is that federal law, even while placing the force of government behind collective bargaining, has so artificially confined its scope that the process has been seriously impeded from …
Individual Rights In The Work Place: The Burger Court And Labor Law, Theodore J. St. Antoine
Individual Rights In The Work Place: The Burger Court And Labor Law, Theodore J. St. Antoine
Book Chapters
The Supreme Court, like other institutions, must play the part that the times demand, often with small regard for the personal predilections of its membership. The Warren Court and the Burger Court, in their respective contributions to the law of union-employer-employee relations, almost reversed the roles they might have been expected to assume. The major accomplishment of the Court in the labor area during the Warren era was a fundamental restructuring of intergovernmental relationships, while the Court's overriding concern throughout the Burger decade of the 1970s and beyond has been the defining of individual rights in the work place.
Free Speech Or Economic Weapon? The Persisting Problem Of Picketing, Theodore J. St. Antoine
Free Speech Or Economic Weapon? The Persisting Problem Of Picketing, Theodore J. St. Antoine
Articles
"Peaceful picketing," the United States Supreme Court has said, "is the workingman's means of communication."' One line of analysis is that, as a means of communication, picketing is free speech and is therefore entitled to every constitutional protection afforded other forms of expression. This means that it cannot be subjected to special restrictions, such as antiboycott curbs, simply because it is picketing. The opposing line of analysis is that picketing is not simply speech; it is "speech plus." The "plus" element removes picketing from the realm of pure speech and enables it to be regulated in ways that the Constitution …
The Regulation Of Labor Unions, Theodore J. St. Antoine
The Regulation Of Labor Unions, Theodore J. St. Antoine
Articles
This year completes exactly a half century in the federalization and codification of American labor law. Before that the regulation of both the internal affairs and external relations of labor organizations was left largely to the individual states, usually through the application of common or nonstatutory law by the courts. One major exception was the railroad industry, whose patent importance to interstate commerce made it an acceptable subject for federal legislation like the Railway Labor Act.
The Role Of Law, Theodore J. St. Antoine
The Role Of Law, Theodore J. St. Antoine
Book Chapters
In the early New Deal days, workers' placards in the coal fields proudly proclaimed, "President Roosevelt wants you to join the union." If not literally true, that boast was well within the bounds of poetic license. After the brief interval of federal laissez-faire treatment of labor relations ushered in by the Norris-La Guardia Act of 1932, the National Labor Relations (Wagner) Act of 1935 declared the policy of the United States to be one of "encouraging the practice and procedure of collective bargaining." Employers, but not unions, were forbidden to coerce or discriminate against employees because of their organizational activities. …
Review Of The Landrum-Griffin Act: Twenty Years Of Federal Protection Of Union Members' Rights, By J. R. Bellace And A. D. Berkowitz, Theodore J. St. Antoine
Review Of The Landrum-Griffin Act: Twenty Years Of Federal Protection Of Union Members' Rights, By J. R. Bellace And A. D. Berkowitz, Theodore J. St. Antoine
Reviews
In the innocent closing years of the 1950s, the American public fastened on union democracy as the most burning issue of the day. No other subject produced as much mail for Congress. The 229-201 count by which the Landrum-Griffin bill was substituted for the House Labor Committee's bill on labor-management reporting and disclosure constituted the largest total vote in the history of the House of Representatives. Significantly, however, that vote had little if any bearing on union members' rights. What distinguished Landrum-Griffin from the Committee's bill was its stiff new curbs on picketing and boycotts. As Senator John Kennedy's advisor, …
National Labor Policy: Reflections And Distortions Of Social Justice, Theodore J. St. Antoine
National Labor Policy: Reflections And Distortions Of Social Justice, Theodore J. St. Antoine
Articles
The impulse behind much of American labor law is profoundly moral. The sufferings and indignities inflicted on working men, women, and even children as the industrial revolution enveloped the western world during the nineteenth and early twentieth centuries led many thoughtful observers to focus their attention on what was commonly called the "social question." Certain issues have been treated almost as if they posed questions of good and evil, when all they actually presented were problems of finding a proper balance of power between labor and management. This article shall develop these themes in several specific contexts.