Law Commons^™

What's Left Of Solidarity? Reflections On Law, Race, And Labor History, Martha R. Mahoney

Articles

No abstract provided.

Living In Interesting Times: President Obama And The Rebirth Of The Labor Movement, Daniel S. Bowling Iii

Faculty Scholarship

Legislation has been introduced in the United States that will allow workers to form unions without secret ballot voting among prospective members. This legislation, in its current form, is the most radical change in Federal law governing union recognition in its history. While passage of the legislation is far from certain, it has generated much discussion and argument, most of it polemical. This article examines the issue from a more academic perspective, reviewing the history of organizing and how management practices have developed that effectively use the current election process as a tool to resist organizing efforts, and the effect …

A Snapshot Of The Nlrb's Laboratory Conditions Doctrine: Erroneous Assumptions Of Coercion In Surveillance Cases, Desiree Leclercq

Scholarly Works

Surveillance of employees has a long history. Both employers and unions have photographed employees who are engaged in union activities for as long as electronics have permitted. Allegations of illegal "surveillance" during union recognitional campaigns have steadily increased over the years, as both parties to the elections -- unions and employers -- accuse one another of engaging in campaign conduct that has coerced the voting employees. Because election campaigns are highly emotional for the employees and the parties, the appeal of documenting campaign activities is understandable: both parties want to ensure the legality of their actions while, perhaps, documenting suspected …

The Ilo Convention On Freedom Of Association And Its Future In The United States, Steve Charnovitz

GW Law Faculty Publications & Other Works

This paper addresses the status of the international law convention on freedom of association in the United States. Although the United States supported the adoption of the Convention on Freedom of Association (#87) in the International Labour Organization in 1948, the U.S. government has not ratified that Convention. Instead, the Convention has sat on the shelf in the United States Senate since 1949, the longest unratified convention on the treaty calendar of the Senate Foreign Relations Committee. The paper analyzes the disadvantages for the United States in failing to become a party to this important treaty. The paper notes that …

The Changing Face Of Collective Representation: The Future Of Collective Bargaining, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

No abstract provided.

Strategies For Combating Sexual Harassment: The Role Of Labor Unions, Ann C. Hodges

Law Faculty Publications

This article will discuss the role that unions do play and the role that they can play in eliminating workplace harassment. First, the article will discuss the problem of harassment in the workplace, documenting its frequency and analyzing its forms. Section II will include an examination of harassment in the unionized workplace. Section III will propose a number of reasons that unions should take the lead in addressing workplace harassment, some focused on workers' rights and others on union selfinterest. Finally, in Section IV, the article will recommend several approaches for unions that desire to be in the vanguard of …

The Crime Of Economic Radicalism: Criminal Syndicalism Laws And The Industrial Workers Of The World, 1917-1927, Ahmed A. White

Publications

No abstract provided.

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 …

Kentucky River At The Intersection Of Professional And Supervisory Status: Fertile Delta Or Bermuda Triangle?, Marley S. Weiss

Faculty Scholarship

No abstract provided.

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.

Introduction: The Enduring Power Of Collective Rights, In Labor Law Stories, Catherine L. Fisk, Laura J. Cooper

Faculty Scholarship

No abstract provided.

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 'Race To The Bottom' Returns: China’S Challenge To The International Labor Movement, Stephen F. Diamond

Cornell Law Faculty Working Papers

China is now, and increasingly, an integral player in the global economy and in international relations. Economic and political restructuring in China today is affecting the lives of millions, yet only a small number of top bureaucrats and wealthy regime-backed entrepreneurs are making the basic decisions about the outcome of this process. This bureaucratic and entrepreneurial class resists fiercely any serious attempt to build independent and democratic institutions such as trade unions.

This article will consider four areas of concern. First, the structural changes underway in the Chinese economy are creating both domestic and international imbalances that are exacerbating inequalities …

Judging Unions' Future Using A Historical Perspective: The Public Policy Choice Between Competition And Unionization, Michael L. Wachter

All Faculty Scholarship

In this paper I look at unions' future using a historical perspective and focusing on the period of union ascendancy as well as the past few decades when unions have been in decline. We know trends currently in place are unfavorable to unions. What conditions would be favorable? The rise of unions from the 1930s through the early 1950s was due to the convergence of a number of events - an economic policy that attempted to restrict competition beginning in the 1930s, the twin beliefs that labor markets were inherently noncompetitive and/or that individual workplaces were exploitative, and low union …

Dueling Democracies: Protecting Labor Representation Elections From Governmental Interference, John W. Teeter Jr

Faculty Articles

Public officials should be free to support or oppose unionization, but we must prevent their electioneering from undermining the industrial democracy of labor representative elections. Such elections are designed to be freely held; workers decide whether they wish to be represented by a union for purposes of collective bargaining. This choice of whether to unionize is for the workers alone without any governmental favoritism or coercion.

Government officials however have repeatedly jeopardized laboratory conditions by campaigning in labor representation elections. The Board should reassure workers of their right to cast uncoerced ballots, clarify that the political officials are not declaring …

Workers’ Compensation And Vocational Rehabilitation Benefits For Undocumented Workers: Reconciling The Purported Conflicts Between State Law, Federal Immigration Law, And Equal Protection To Prevent The Creation Of A Disposable Workforce, Robert I. Correales

Scholarly Works

This Article argues that sound public policy supports states providing vocational rehabilitation services to undocumented workers who have been injured in work-related accidents. Part I of the Article provides context by analyzing some of the complexities of undocumented immigrants’ lives in the United States. Part II discusses the history and economics of vocational rehabilitation programs established by workers’ compensation systems. Part III discusses ways in which immigration law and enforcement contribute to the formation of this shadow population. Part IV analyzes purported conflicts between vocational rehabilitation programs and the Immigration Reform Control Act of 1986 as they arose in Tarango …

Did Hoffman Plastic Compounds, Inc. Produce Disposable Workers?, Robert I. Correales

Scholarly Works

On March 27, 2002, The United State Supreme Court ruled in Hoffman Plastic Compounds v. N.L.R.B. that, although undocumented workers are “employees” within the meaning of the National Labor Relations Act (NLRA), they cannot be answered backpay remedies, even if discharged in violation of the Act. The Hoffman decision represents a retrenchment from a trend in which virtually all jurisdictions that had considered the issue found in favor of the workers. The principal rationale in support of these remedies for undocumented workers had been that such awards are not only remedial but also serve important deterrent functions that protect the …

Waiting For The Labor Law Of The Twenty-First Century: Everything Old Is New Again, William R. Corbett

Journal Articles

No abstract provided.

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 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 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 …

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. …

Wellington’S Labors, Michael H. Gottesman

Georgetown Law Faculty Publications and Other Works

My first class as a student at Yale Law School was the first class Harry Wellington taught there. It was the Fall of 1956. The course was Contracts. Harry entered the classroom, looking no older than the students (in truth, he 'wasn't much older), but surely better dressed. He settled himself on the corner of the desk, and the magic began. Without introduction or fanfare, Harry embarked on a monologue about a magazine that kept arriving, uninvited, in his mailbox each month. He confessed to leafing through the pages from time to time, and wondered if this obligated him to …

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, …

Contract Reading' In Labor Arbitration, Theodore J. St. Antoine

Articles

A quarter century ago, I used the phrase "contract reader" to characterize the role an arbitrator plays in construing a collective bargaining agreement. This phrase has almost invariable been misunderstood to refer to reading or interpreting the contract. When I spoke of the "contract reader," it was in the context of judicial review of an award. My point was this: When a court has before it an arbitrator's award applying a collective bargaining agreement, it is as if the employer and the union had signed a stipulation stating: "What the arbitrator says this contract means is exactly what we meant …

Some Keys To The Nba Lockout, Grant M. Hayden

Faculty Journal Articles and Book Chapters

This article addresses two central issues regarding the 1998-99 National Basketball Association (“NBA”) lockout: 1) its impact on labor law doctrine and 2) what it reveals about the state of labor relations in the United States. The author concludes that, while the use of the traditional lockout weapon did not break any new ground in the area of labor law, the unique attributes of the NBA labor dispute provide insight into the condition of the American labor movement and public perceptions of unions. In particular, the author notes that the NBA lockout highlights both the dramatic differences in the power …

Realigning Corporate Governance: Shareholder Activism By Labor Unions, Stewart J. Schwab, Randall S. Thomas

Cornell Law Faculty Publications

No abstract provided.

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 …

The Failure Of Gissel Bargaining Orders, Terry A. Bethel, Catherine Melfi

Articles by Maurer Faculty

No abstract 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," …