Law Commons^™

Structural Labor Rights, Hiba Hafiz

Michigan Law Review

American labor law was designed to ensure equal bargaining power between workers and employers. But workers’ collective power against increasingly dominant employers has disintegrated. With union density at an abysmal 6.2 percent in the private sector—a level unequaled since the Great Depression— the vast majority of workers depend only on individual negotiations with employers to lift stagnant wages and ensure upward economic mobility. But decentralized, individual bargaining is not enough. Economists and legal scholars increasingly agree that, absent regulation to protect workers’ collective rights, labor markets naturally strengthen employers’ bargaining power over workers. Existing labor and antitrust law have failed …

Restoring A Willingness To Act: Identifying And Remedying The Harm To Authorized Employees Ignored Under Hoffman Plastics, Rita Trivedi

University of Michigan Journal of Law Reform

Part I of this Article provides a background for both the NLRA and the IRCA. It examines the goals and remedies of both statutes as well as the impact of the Supreme Court’s Hoffman decision on available remedies.

Part II addresses the currently-skewed remedial incentives. It considers why employers are tempted to hire unauthorized workers and commit unfair labor practices that are then inadequately remedied, which creates a situation that adversely effects the rights of authorized employees.

Part III more closely analyzes this consequential harm. This Part identifies the erosions on the NLRA’s collective nature and the impact on authorized …

San Manuel'S Second Exception: Identifying Treaty Provisions That Support Tribal Labor Sovereignty, Briana Green

Michigan Journal of Environmental & Administrative Law

Inspired by the holding in WinStar World Casino, this Note considers the potential for tribes to make treaty-based arguments when facing the threat of National Labor Relations Board jurisdiction. This Note presents the results of a survey of U.S. government treaties with Native Americans to identify those treaties with language similar to that interpreted by the Board in WinStar World Casino. The survey identified four treaties and four tribes that could make treaty-based arguments like those made in Winstar World Casino: the Confederated Tribes of the Umatilla Indian Reservation, the Muscogee (Creek) Nation, the Seminole Nation of …

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 …

The Worker Dislocation Dilemma In The United States And Great Britain: Contrasting Legal Approaches, Peter E. Millspaugh

Georgia Journal of International & Comparative Law

No abstract provided.

The National Labor Relations Act And Worker Participation Plans: Allies Or Adversaries?, Susan Gardner

Pepperdine Law Review

No abstract provided.

Deconstructing 'Just And Proper': Arguments In Favor Of Adopting The 'Remedial Purpose' Approach To Section 10(J) Labor Injunctions, William K. Briggs

Michigan Law Review

Congress, through the 1947 addition of section 10(j) to the National Labor Relations Act, authorized district courts to grant preliminary injunctive relief for unfair labor practices if they deem such relief "just and proper." To this day a circuit split persists over the correct interpretation of this "just and proper" standard. Some circuits interpret "just and proper" to require application of the traditional equitable principles approach that normally governs preliminary injunctions. Other circuits interpret "just and proper" to require an analysis of whether injunctive relief is necessary to preserve the National Labor Relations Board's remedial power This Note examines the …

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 …

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 …

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 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 …

Are Trojan Horse Union Organizers "Employees"?: A New Look At Deference To The Nlrb's Iterpretation Of Nlra Section 2(3), Jonathan D. Hacker

Michigan Law Review

This Note takes a different approach to interpreting section 2(3). Although this Note agrees that section 2(3) neither clearly includes nor clearly excludes trojan horse organizers, it also argues that the definition of employee under section 2(3) must be determined by looking to common law principles of agency. In other words, the question whether courts should defer to the Board's interpretation of section 2(3) does not turn on statutory ambiguity. Rather, courts have a continuing duty to ensure that the Board interprets employee consistently with common law agency principles. Nevertheless, the correct interpretation of employee under agency principles ultimately turns …

Checking The "Trigger-Happy" Congress: The Extraterritorial Extension Of Federal Employment Laws Requires Prudence, Derek G. Barella

Indiana Law Journal

No abstract provided.

The Nlrb's Deferral Policy And Union Reform: A Union Perspective, Leonard Page, Daniel W. Sherrick

University of Michigan Journal of Law Reform

Part I of this Article outlines the government's approach to civil RICO actions involving labor unions, including an overview of the government's prior civil RICO actions and a summary of the types of issues that often arise in such actions. Part II examines the unique issues involved in a civil RICO action brought by a private plaintiff. The principal issue addressed in this Part is whether a private plaintiff can bring an action under the equitable remedies provisions of the RICO statute. This Part also addresses the issues of how a private plaintiff can gain access to information that may …

Deferral And The Dissident, Paul Alan Levy

University of Michigan Journal of Law Reform

I discuss two examples involving a dissident group, Teamsters for a Democratic Union (TDU), that vividly illustrate the problems with NLRB deferral. I then examine the development and evolution of the NLRB's policies concerning deferral to arbitration. Next, I review the statutory- and policy-based arguments advanced for and against deferral. I attempt to assess the best reasons given for the deferral doctrine, while showing why, at least in its current incarnation, NLRB deferral doctrine is contrary to the requirements of the NLRA. More specifically, I show that, to the extent that deferral has some legitimate basis, it is founded on …

A Primer On Power Balancing Under The National Labor Relations Act, James B. Zimarowski

University of Michigan Journal of Law Reform

The focus of this Article is twofold. First, it addresses the substantive power control mechanisms established and regulated by the National Labor Relations Board (Board) and the courts. Second, it examines the power balancing methodology embraced by these dispute resolution forums. This Article takes the position that power balancing analysis designed to achieve the NLRA's multidimensional policies is a more fruitful endeavor than the analysis of economic efficiency or a partisan approach subject to political considerations.

Labor Law's Alter Ego Doctrine: The Role Of Employer Motive In Corporate Transformations, Gary Alan Macdonald

Michigan Law Review

This Note examines the differing judicial approaches for reviewing NLRB alter ego findings, and concludes that a fundamental problem with all of the current approaches is the unwarranted consideration of motive in varying degrees. This Note proposes a modified "reasonably foreseeable benefit" standard which does not depend in any degree on the employer's motive for changing its corporate form. Part I discusses the origin and evolution of the alter ego doctrine, including its genesis in Southport Petroleum, the well-settled Crawford Door factors, and the related "successorship" doctrine. Part II analyzes the conflict among the federal courts of appeals over …

Nonmajority Bargaining Orders: The Only Effective Remedy For Pervasive Employer Unfair Labor Practices During Union Organizing Campaigns, David S. Shillman

University of Michigan Journal of Law Reform

Current Board policy forbids issuing a bargaining order in this situation, where there is no objective evidence of majority support for a union, even though the bargaining ·order may be the only effective remedy for extreme employer unfair labor practices. The Board's refusal to issue nonmajority bargaining orders (NMBOs), grounded in its fear of imposing a union on unwilling employees, has left it impotent to remedy the most severe employer unfair labor practices. This Note examines arguments for and against the Board's use of NMBOs and concludes that NMBOs are within the scope of the Board's remedial powers and should …

Japanese-Style Worker Participation And United States Labor Law, William S. Rutchow

Michigan Journal of International Law

This note will evaluate the current legal status of Japanese-style worker participation programs under the NLRA. First, it analyzes relevant sections of the NLRA and their interpretation by the Board and the courts. Second, the note describes various types of Japanese worker participation programs, and suggests how these programs can be legally implemented under current American labor law. Third, the note considers standards the Supreme Court may adopt to test the legality of worker participation programs in the future. Finally, this note recommends that the Supreme Court uphold those participation programs which are freely chosen by employees.

Employer Postcertification Polls To Determine Union Support, James D. Dasso

Michigan Law Review

This Note evaluates these competing standards in light of the two major policy objectives of the NLRA: industrial stability and employee free choice. It concludes that the courts of appeals properly apply a less stringent standard. Part I considers employer polling in the larger context of the general law of employer interrogation. This section concludes that the Board's standard for postcertification polling deviates significantly from the general law of employer interrogation as well as the more specific rules established for precertification polling. The remainder of this Note demonstrates that the Board's distinctions between pre- and postcertification polling do not justify …

Nlra Preemption Of State Law Actions For Wrongful Discharge In Violation Of Public Policy, Thomas Bean

University of Michigan Journal of Law Reform

This Note considers the circumstances under which the NLRA should preempt state law tort suits for discharge in contravention of public policy by employees covered by a collective bargaining agreement, and by at-will employees. Part I discusses the rationale behind the preemption doctrine and outlines the tests the Supreme Court has adopted for determining when the NLRA preempts state laws. Part II argues that the specific rationale behind the Court's preemption tests are inapplicable to the typical public policy wrongful discharge action. Part III identifies the ways in which public policy wrongful discharge actions might infringe on the NLRA. It …

Participatory Management Under Sections 2(5) And 8(A) (2) Of The National Labor Relations Act, Michigan Law Review

Michigan Law Review

This Note argues that participatory management programs initiated by the employer in nonunion settings should be permissible under the NLRA when they do not restrict the freedom of employees to choose their own bargaining representative. Section I describes the major currents of participatory management theory. Section II explores the restrictive interpretation the National Labor Relations Board (Board) and the courts have traditionally given those sections of the NLRA applicable to participatory management programs. Section III describes the increasingly permissive approach taken by some courts, and to a lesser extent by the Board, in applying the NLRA to participatory management settings. …

Union Representatives As Corporate Directors: The Challenge To The Adversarial Model Of Labor Relations, Robert A. Mccormick

University of Michigan Journal of Law Reform

This Article addresses these questions first by discussing the predominant philosophical approach adopted by unions in their dealings with management, and then describing several ways in which the labor laws reflect this traditional model of employment relations by showing, first, that the influence of unions has been limited to circumscribed categories of business decisions. The Article next examines decisions made by the National Labor Relations Board ("NLRB") and the courts that have carefully sought to separate employer from employee, assuming their interests to be inherently antagonistic. Then follows an evaluation of the NLRB's treatment of deviations from the traditional model …

The Labor-Bankruptcy Conflict: Rejection Of A Debtor's Collective Bargaining Agreement, Michigan Law Review

Michigan Law Review

This Note examines the courts' accommodation of the labor and bankruptcy policies when a debtor in possession or trustee seeks to reject a collective bargaining agreement. Part I criticizes a series of recent cases that failed to confront the statutory conflict. If these courts had recognized the conflict between the language of the Bankruptcy Act (now the Code) and the Labor Act, they would have been forced to consider whether the labor and bankruptcy policies actually clashed. Part II finds that in most instances they do not, and argues that requiring the debtor in possession to bargain with the union …

Tort Liability Of Labor Unions For Picket Line Assaults, David R. Case

University of Michigan Journal of Law Reform

This article will discuss whether tort actions against unions for picket line assaults are preempted by the National Labor Relations Act, and if not preempted, what forums are available to hear such actions. This article will also examine the theories that have been used to hold unions liable for the assaults committed by their picketers. Included in this discussion will be an analysis of the policy considerations offered in support of the various theories of liability.

Guidelines For Alleviating Local-Emergency Work Disruptions, Joshua Greene

University of Michigan Journal of Law Reform

The first section of this article summarizes the vast differences between the rights of public and private employees to strike. The second section focuses on likely obstacles to a governmental suit to enjoin shutdowns in the broadest segment of American private industry-the segment in which labor relations are governed by the National Labor Relations Act (NLRA). The final section of the article suggests a legislative solution to the problem, fashioned after existing statutory remedies for limiting certain strikes by public employees.

Title Vii And Nlra: Protection Of Extra-Union Opposition To Employment Discrimination, Michigan Law Review

Michigan Law Review

Title VII of the 1964 Civil Rights Act guarantees freedom from employment discrimination based on race, religion, sex, or national origin and establishes remedial procedures for aggrieved employees. A nondiscrimination clause in a collective bargaining agreement may also protect employees from discriminatory treatment; typically, the contract will also contain grievance machinery through which the employee, with the aid of his union, can present his complaint. The question remains: When both title VII and contract grievance procedures are available, can an individual employee or a group of employees take direct action against an allegedly discriminatory employer independently of the union and …

Labor Law--Collective Bargaining--The Retirement Benefits Of Retired Employees Are A Mandatory Subject Of Bargaining Because Retirees Are "Employees" Under The Nlra And Because Active Employees Have An Interest In Such Benefits--Pittsburgh Plate Glass Company, Chemical Division, Michigan Law Review

Michigan Law Review

This Recent Development will examine the substance and implications of the latter aspect of Pittsburgh Plate Glass, although it is only dictum in the case. The third ground of the Board's conclusion regarding retirement benefits was really only a general reiteration of the first two. It is therefore apparent that that ground is dependent upon the validity of either or both of the other two bases of the Board's conclusion.

Labor Relations--Consumer Picketing Under Section 8(B) (4) (Ii) (B) Of The National Labor Relations Act--Honolulu Typographical Union, No. 37, I.T.U., A.F.L.-C.I.O. V. Nlrb, Michigan Law Review

Michigan Law Review

The principal case is concerned generally with the problem of secondary activity by unions, and specifically with the application of a judicially created exception to the general prohibition against such activity. As originally written, section 8(b)(4) was intended to protect neutral employers from becoming involved in disputes between other employers and unions by prohibiting certain union activities. Among the practices forbidden was the traditional secondary boycott which arises when a union in a dispute with a primary employer brings pressure to bear on other employers (secondary employers), through their employees, to cease doing business with the primary. However, the statute …

Labor Law--Res Judicata--The Applicability Of Res Judicata And Collateral Estoppel To Actions Brought Under Section 8(B) (4) Of The National Labor Relations Act, Michigan Law Review

Michigan Law Review

This Note is concerned primarily with the possibility of granting preclusive effect to the Board's determination of the issue of union liability under the section 8(b)(4) charge. Since traditional collateral estoppel principles must be adapted somewhat when applied to the Board's procedures, the preclusive effect given to the prior determination of liability will be referred to simply as "estoppel" in order to avoid confusion with the doctrine of collateral estoppel as it was developed in the courts.