Law Commons^™

The Striking Success Of The National Labor Relations Act, Michael L. Wachter

All Faculty Scholarship

Although often viewed as a dismal failure, the National Labor Relations Act (NLRA) has been remarkably successful. While the decline in private sector unionization since the 1950s is typically viewed as a symbol of this failure, the NLRA has achieved its most important goal: industrial peace.

Before the NLRA and the 1947 Taft-Hartley Amendments, our industrial relations system gave rise to frequent and violent strikes that threatened the nation’s stability. For example, in the late 1870s, the Great Railroad Strike spread throughout a number of major cities. In Pittsburg alone, strikes claimed 24 lives, nearly 80 buildings, and over 2,000 …

Labor And Employment Law, Eric Wallace

Law Student Publications

During the past two years, there have been several significant developments in labor and employment law, both on the state and federal levels. Because developments in both state and federal law likely will have a profound impact on employers and employees throughout Virginia, they warrant significant discussion in this survey. In addition to examining notable decisions from the Supreme Court of the United States, the United States Court of Appeals for the Fourth Circuit, and the United States District Courts for the Eastern District and Western District of Virginia, this survey also discusses decisions of the Supreme Court of Virginia …

Labor Law As Ideology: Toward A New Historiography Of Collective Bargaining Law, Karl E. Klare

Karl E. Klare

This article discusses a newly emerging historiography of post-New Deal United States collective bargaining law. Critical labor law will be depicted primarily by highlighting its main lines of attack on traditional learning. Most contributions to the literature of collective bargaining law are overwhelmingly doctrinal and rule-focused in emphasis. They are written, explicitly or implicitly, from the perspective of beliefs and values about the social function of collective bargaining drawn or inferred from the stated purposes, the legislative history of and judicial glosses upon the major federal labor statutes. This literature takes as given and unquestioned the desirability of maintaining the …

The Quest For Industrial Democracy And The Struggle Against Racism: Perspectives From Labor Law And Civil Rights Law, Karl E. Klare

Karl E. Klare

This Article is occasioned by the state of crisis which the labor and civil rights movements have simultaneously entered. It attempts to develop new ways of understanding the historical origins of the present crises. My purpose is to contribute to the discussion of class and race in American life by exploring a series of parallels, convergences, and connections between labor law and civil rights law. The particular focus of the Article is on certain limitations of collective bargaining law and an instrument for achieving democracy in the workplace and upon certain limitations of civil rights law as a process for …

Management Prerogatives, Plant Closings, And The Nlra: A Response, Karl E. Klare

Karl E. Klare

No abstract provided.

The Labor-Management Cooperation Debate: A Workplace Democracy Perspective, Karl E. Klare

Karl E. Klare

Much contemporary debate in the field of industrial relations focuses on the wrong questions. Discussion is often framed in misleading terms or based upon unproductive assumptions. A prime example explored here is the current heated debate about whether we should replace "the adversary structure" of American labor relations with a "cooperative model." In my view we do not face such a choice. Rather, workplace democracy and economic prosperity alike require new forms of work organization combining adversary and participatory assumptions, institutions and practices. The challenge is to link the two approaches in ways that enhance the virtues and minimize the …

Rank-And-File Participation In Organizing At Home And Abroad, Lowell Turner

Lowell Turner

[Excerpt] We know that we need labor law reform. But it is also clear that this is not all we need; nor can we expect to achieve legal reform simply by electing Democrats. That strategy did not work in 1978-79 or in 1993-94, and it will not work in the future. In the face of inevitably powerful and well-organized business opposition, even the most well-financed and articulate lobbying campaign for labor law reform can fail. What was missing in 1978-79 and in 1993-94 and is urgently needed now is the pressure of a massive social movement, mobilized to transform and …

Workers’ Rights: Rethinking Protective Labor Legislation, Ronald G. Ehrenberg

Ronald G. Ehrenberg

This paper focuses on a few directions in which protective labor legislation might be expanded in the United States over the next decade and the implications of expansion in each area for labor markets. Specifically, it addresses the areas of hours of work, unjust dismissal, comparable worth, and plant closings. In each case, the discussion stresses the need to be explicit about how private markets have failed, the need for empirical evidence to test such market failure claims, the need for economic analysis of potential unintended side effects of policy changes, and the existing empirical estimates of the likely magnitudes …

Traditional Labor Law Scholarship & The Crisis Of Collective Bargaining Law: A Reply To Professor Finkin, Karl E. Klare

Karl E. Klare

No abstract provided.

Lost Opportunity: Concluding Thoughts On The Finkin Critique, Karl Klare

Karl E. Klare

No abstract provided.

Testing The Effects Of Striker Replacement And Employer Implementation Of Final Offers On Employer And Union Bargaining Power, Ellen Dannin

Ellen Dannin

Many sorts of quantitative and qualitative empirical research are regularly used to answer questions related to work and workplace issues. However, some issues involving human behavior may be difficult to capture using standard empirical methods. Common barriers include access to people or information; problems with accurate or honest reporting; behavior that occurs over long periods of time; cost; and ethical barriers as to research using human subjects.

Important information related to collective bargaining can be difficult to collect for all of these reasons. Participants in collective bargaining may not want outsiders present for all or critical parts of negotiations. They …

Testing The Effects Of Striker Replacement And Employer Implementation Of Final Offers On Employer And Union Bargaining Power, Ellen Dannin

Ellen Dannin

Many sorts of quantitative and qualitative empirical research are regularly used to answer questions related to work and workplace issues. However, some issues involving human behavior may be difficult to capture using standard empirical methods. Common barriers include access to people or information; problems with accurate or honest reporting; behavior that occurs over long periods of time; cost; and ethical barriers as to research using human subjects.

Important information related to collective bargaining can be difficult to collect for all of these reasons. Participants in collective bargaining may not want outsiders present for all or critical parts of negotiations. They …

Good Faith: Balancing The Right To Manage With The Right To Represent, Suzanne Darrow Kleinhaus

Suzanne Darrow Kleinhaus

No abstract provided.

[Review Of The Book Values And Assumptions In American Labor Law], Nick Salvatore

Nick Salvatore

[Excerpt] Reading this book it is difficult not to think that the intent of the author was less to understand the origins and developments of the values and assumptions that gild the practice of labor law than it was to 'prove' that labor law in America is really capitalist law and thus it invalidates itself. This is not only circular reasoning, but it is unfortunate as well. For there is another book to be written that would analyze these questions through a serious and sustained reading in the history of industrial relations and then apply that knowledge to specific case …

Competitive Entertainment: Implications Of The Nfl Lockout Litigation For Sports, Theatre, Music, And Video Entertainment, Henry H. Perritt Jr.

Henry H. Perritt, Jr.

The 2011 NFL lockout reveals profound changes in the labor and product markets for the entire entertainment industry, driven by a revolution in technology. This article explores the revolution in the professional sports, theatre, and movie-making industries and concludes that it is fragmenting production, blurring the boundaries between labor markets and product markets, and introducing new forms of competition. As a result, the labor exemptions to the antitrust laws, which featured prominently in the NFL controversy are becoming less relevant, shifting the law's policing of competition to antitrust rule-of-reason analysis, where counterpoises such as labor unions are inactive, and making …

Rethinking Bargaining Unit Determination: Labor Law And The Structure Of Collective Representation In A Changing Workplace, Alexander Colvin

Alexander Colvin

[Excerpt] Arguably the leading issue for current labor law research is whether the existing system of law based on the Wagner Act model can continue to be relevant and appropriate for the contemporary workplace. Changes in the environment of work during the over half-century since this model was developed have brought pressures for re-evaluation and adaptation of key elements of its structure. Criticism of this system has focused on a number of areas, including: the reliance on the formal grievance procedure and arbitration; the separation of the realms of collective bargaining and business decision making; the limitations on employee participation …

Labor Rights, Human Rights And A Critical Sociology Of Law, Richard R. Weiner

Faculty Publications

Arguing for a transnational labor movement increasingly poses transnational labor rights as transnational human rights. Sociologically, how can such transnational labor rights be secured by institutions at a global level? Moving from human rights to transnational social rights? A seemingly aporia between the concepts of labor rights and human rights can be dialectically mediated by the tradition of a critical sociology of law in yielding a critical sociology of rights.

A War Against Organizing, Kate Bronfenbrenner

Kate Bronfenbrenner

[Excerpt] Unless Congress passes serious labor law reform with real penalties, only a small fraction of the workers who seek union representation will succeed. If recent trends continue, there will no longer be a functioning legal mechanism to effectively protect the right of private-sector workers to organize and collectively bargain. Our country cannot afford to make workers defer their rights and aspirations for union representation any longer.

Regulation Of The Work Performance Relationship: Independent Contractors, Labor Subcontractors, And Joint Control Over An Employment-Like Relationship, Marley S. Weiss

Marley S. Weiss

I. Introduction. II. Who is covered and who is excluded from the protective scope of labor law, and the legal consequences for those excluded as independent contractors or owners. III. Benefits and burdens of the “employment relationship” characterization compared to a contract for services. IV. Speculations about solutions to the work relationship problem.

The Right To Strike In Essential Services Under United States Labor Law, Marley S. Weiss

Marley S. Weiss

SUMMARY: I. Introduction. II. A Brief History of U.S. Collective Labor Relations Laws. III. The Structure of Labor-Management Relations in The U.S. IV. The Right to Strike. V. Private Sector “Essential Services” Provisions: LMRA National. VI. Conclusion.

Union Business Agents, Edwin Render

Edwin R. Render

This paper discusses some of the risks of violating criminal laws that union stewards and business agents encounter in connection with representing employees. It is not about RICO. The analysis is particularly focused on the types of crimes they might commit inadvertently in grievance meetings with management, when preparing and presenting cases in labor arbitrations and in representing and advising employees in matters such as worker’s compensation and unemployment compensation proceedings. The potential for criminal liability is discussed for business agents and union stewards in both the public and private sectors. While most business agents or stewards would not intentionally …

Umass Boston – Brazilian Immigrant Center Partnership, Tim Sieber, C. Eduardo Siqueira, Natalicia Tracy, Gaston Institute, University Of Massachusetts Boston

Office of Community Partnerships Posters

The Brazilian Immigrant Center (BIC) does organizing, advocacy and training to reduce marginalization of Brazilian immigrants, promoting their engagement as workers & civic participants. A worker’s center, BIC supports and defends workers’ rights under current state & US labor laws. BIC helps workers mediate complaints with employers, and refers others for class action suits, or intervention by the Mass. Attorney General or US Dept. of Labor. A special focus at present is organizing mostly women domestic workers, and BIC has a new Law and Policy Clinic, a Domestic Worker Mediation Program, and an Immigration Justice Project staffed by two full-time …

Competitive Entertainment: Implications Of The Nfl Lockout Litigation For Sports, Theatre, Music, And Video Entertainment, Henry H. Perritt Jr.

All Faculty Scholarship

The 2011 NFL lockout reveals profound changes in the labor and product markets for the entire entertainment industry, driven by a revolution in technology. This article explores the revolution in the professional sports, theatre, and movie-making industries and concludes that it is fragmenting production, blurring the boundaries between labor markets and product markets, and introducing new forms of competition. As a result, the labor exemptions to the antitrust laws, which featured prominently in the NFL controversy are becoming less relevant, shifting the law's policing of competition to antitrust rule-of-reason analysis, where counterpoises such as labor unions are inactive, and making …

Blue-Collar Crime: Conspiracy, Organized Labor, And The Anti-Union Civil Rico Claim, Benjamin Levin

Publications

This Article provides an historically-rooted analysis of a recent spate of civil RICO complaints arising from labor union organizing campaigns. The Article historicizes contemporary civil RICO suits against labor unions by analogizing to nineteenth century conspiracy prosecutions of unions. In tracing this history of organized labor’s social standing, the Article addresses the cultural framing of the union and its place in political and cultural discourse over the past century. The civil RICO complaints have received limited scholarly attention mainly focusing on issues of federal preemption; this Article argues for a broad reading of the cases as a way to understand …

Mexico's Dilemma: Workers' Rights Or Workers' Comparative Advantage In The Age Of Globalization?, Ranko Shiraki Oliver

Faculty Scholarship

No abstract provided.

The Right To Strike And Its Possible Conflict With Other Fundamental Rights Of The People In The United States, Charles B. Craver

GW Law Faculty Publications & Other Works

Although the right to strike is not constitutionally protected in the U.S., it is protected for private sector workers under Section 7 of the National Labor Relations Act as concerted activity for mutual aid and protection. Federal employees and most state and local government employees do not have the right to strike, but several states permit work stoppages by non-essential personnel. Most collective bargaining agreements contain no-strike clauses forbidding work stoppages during the term of such contracts. Sympathy strikes by private sector workers supporting strikes by employees bargaining over new contract terms are usually protected as concerted activity for mutual …

Using The Nlra To Nip Anticipatory Retaliation In The Bud, Alex B. Long

Scholarly Works

No abstract provided.

Talking Union In Two Languages Labor Rights And Immigrant Workers In East Tennessee, Fran Ansley

Scholarly Works

No abstract provided.

Discrimination Against Mothers Is The Strongest Form Of Workplace Gender Discrimination: Lessons From Us Caregiver Discrimination Law, Stephanie Bornstein, Joan C. Williams, Genevieve R. Painter

UF Law Faculty Publications

Work-family reconciliation is an integral part of labor law as the result of two major demographic changes: the rise of the two-earner family, and the pressing concern of elder care as Baby Boomers age. Despite these changes, most European and American workplaces still assume that the committed worker has a family life secured so that family responsibilities do not distract from work obligations. This way of organizing employment around a breadwinner husband and a caregiver housewife, which arose in the late eighteenth century, is severely outdated today. The result is workplace-workforce mismatch: Many employers still have workplaces perfectly designed for …

Rights Adjudication And Constitutional Pluralism In Germany And Europe, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.