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Janus's Two Faces, Kate Andrias
Janus's Two Faces, Kate Andrias
Articles
In ancient Roman religion and myth, Janus is the god of beginnings, transitions, and endings. He is often depicted as having two faces, one looking to the future and one to the past. The Supreme Court’s Janus v AFSCME case of last Term is fittingly named.1 Stunning in its disregard of principles of stare decisis, Janus overruled the forty-yearold precedent Abood v Detroit Board of Education. 2 The Janus decision marks the end of the post–New Deal compromise with respect to public sector unions and the FirstAmendment.Looking to the future, Janus lays the groundwork for further attack on labor rights—as …
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 …
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 Nlrb, The Courts, The Administrative Procedures Act, And Chevron: Now And Then, Theodore J. St. Antoine
The Nlrb, The Courts, The Administrative Procedures Act, And Chevron: Now And Then, Theodore J. St. Antoine
Articles
Decisions of the National Labor Relations Board (NLRB), like those of other administrative agencies, are subject to review by the federal judiciary. Standards of review have evolved over time. The Administrative Procedure Act of 1946 provides that administrative decisions must be in accord with law and required procedure, not arbitrary or capricious, not contrary to constitutional rights, within an agency's statutory jurisdiction, and supported by substantial evidence. In practice, more attention is paid to two Supreme Court decisions, Skidmore (1944) and Chevron (1984). For many years Chevron seemed the definitive test. A court must follow a clear intent of Congress, …
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 …
Justice Frank Murphy And American Labor Law, Theodore J. St. Antoine
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 …
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 …
Contract Reading' In Labor Arbitration, Theodore J. St. Antoine
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 …
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 …
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.
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) …
The Bildisco Case And The Congressional Response, James J. White
The Bildisco Case And The Congressional Response, James J. White
Articles
Section 365 of the Bankruptcy Reform Act authorizes one in bankruptcy to "assume or reject any executory contract ...of the debtor." The most frequent use of the section arises when a lessee goes into Chapter 11 and decides either to reject its real estate lease with its lessor or, if the lease is at a favorable rental rate, to assume it and assign it to another. A less frequent but more controversial use of section 365 is to reject one's collective bargaining agreement with his employees.
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 …
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 …
Judicial Review Of Labor Arbitration Awards: A Second Look At Enterprise Wheel And Its Progeny, Theodore J. St. Antoine
Judicial Review Of Labor Arbitration Awards: A Second Look At Enterprise Wheel And Its Progeny, Theodore J. St. Antoine
Articles
Logic, so the cliche goes, is not the life of the law. But logic is very much like the DNA of the law-the structural principle without which all is sprawl and muddle. In the last ten years a controversy has raged over the role of the labor arbitrator in issuing awards, and the role of the courts in reviewing and enforcing those awards. This controversy has largely taken the form of a continuing debate among scholars and practicing arbitrators at the annual meetings of the National Academy of Arbitrators. With due respect to the thoughtful and experienced persons who have …
Connell: Antitrust Law At The Expense Of Labor Law, Theodore J. St. Antoine
Connell: Antitrust Law At The Expense Of Labor Law, Theodore J. St. Antoine
Articles
From the outset, the difficulty in applying the antitrust concept to organized labor has been that the two are intrinsically incompatible. The antitrust laws are designed to promote competition, and unions, avowedly and unabashedly, are designed to limit it. According to classical trade union theory, the objective is the elimination of wage competition among all employees doing the same job in the same industry. Logically extended, the policy against restraint of trade must condemn the very existence of labor organizations, since their minimum aim has always been the suppression of any inclination on the part of working people to offer …
Judicial Caution And The Supreme Court's Labor Decisions, October Term 1971, Theodore J. St. Antoine
Judicial Caution And The Supreme Court's Labor Decisions, October Term 1971, Theodore J. St. Antoine
Articles
Labor law, like most other law in the making, is intensely political at its margins. On certain central themes, such as the right to join a union and freedom of contract, judges and administrators of widely varying outlooks may be able to reach a consensus. But along the frontiers of the law, no such accord can be expected. Conscientious decision-makers will inevitably differ with one another, depending on their diverse social values. They may even differ with their own prior positions, depending on shifts in the political climate. Moreover, if the decision-makers happen to be justices of the United States, …
Secondary Boycott: From Antitrust To Labor Relations, Theodore J. St. Antoine
Secondary Boycott: From Antitrust To Labor Relations, Theodore J. St. Antoine
Articles
The ethos of the labor movement cuts against the American grain at several points. Our national instinct, reflected in many statutes and much judge-made law, is to exalt the rugged individualist over the anonymous group, to favor wide-open competition rather than a controlled market, and to prize the right of each person to remain aloof from the quarrels and concerns of his neighbors. It is not for nothing that our most universal folk hero is the frontiersman, who proudly stands alone and self-sufficient. Yet the ordinary workingman does not have the capacity to assume that heroic stance. For him strength …
A Touchstone For Labor Board Remedies, Theodore J. St. Antoine
A Touchstone For Labor Board Remedies, Theodore J. St. Antoine
Articles
Fashion dictates what lawyers argue about, and law professors write about, more than we may care to admit. In labor law, especially, the styles change with a rapidity that would impress a Paris couturier. During the past decade the spotlight has moved from union democracy to labor contract enforcement to the union organizing campaign. Today the "in" topic is National Labor Relations Board (NLRB) remedies. Yet if any subject deserves immunity from the vagaries of fashion, this is the one; for all rights acquire substance only insofar as they are backed by effective remedies. Coke said it long ago: "[W]ant …
Inducing Breach Of Agreement By Employees Not To Join A Labor Union, In Order To Compel Unionization Of Plaintiff's Business, Horace Lafayette Wilgus
Inducing Breach Of Agreement By Employees Not To Join A Labor Union, In Order To Compel Unionization Of Plaintiff's Business, Horace Lafayette Wilgus
Articles
In Hitchnan Coal & Coke Compazy v. John Mitchell, et al., (Dec. 10, 1917), 38 Sup. Ct. 65, the novel question was presented to the Supreme Court of the United States, as to whether or not members of a labor Union could be enjoined from conspiring to persuade, and persuading, without violence or show of violence, plaintiff's employees, not members of the Union,-and who were working for plaintiff not for a specified time, but under an agreement not to continue in plaintiff's employment if they joined the Union, this agreement being fully known to defendants,-secretly to agree to join the …
Labor Organizations In Legislation, Jerome C. Knowlton
Labor Organizations In Legislation, Jerome C. Knowlton
Articles
During the first months of the current year, the Supreme Court of the United States handed down three decisions on important questions in labor legislation.1 The Employers' Liability Act was declared unconstitutional, but on grounds that may be avoided by subsequent legislation; the boycott was decided to be an unlawful conspiracy against interstate commerce, and in violation of the Anti-Trust Act and the congressional enactment providing criminal punishment for the discharge of an employee because of his membership in a labor organization was also held unconstitutional. These decisions have been unjustly spoken of by some, as unreasonably severe on labor …