Labor and Employment Law Commons^™

Eliminating The Intent Requirement In Constructive Discharge Cases: Pennsylvania State Police V. Suders, Crystal L. Norrick

William & Mary Law Review

No abstract provided.

Recrafting A Trojan Horse: Thoughts On Workplace Governance In Light Of Recent British Labor Law Developments , James J. Brudney

Faculty Scholarship

In June of 2000, Britain established a statutory union recognition procedure applicable to all private and public employers with more than twenty workers.For a country with a history of voluntarism in labor-management relations, the creation of a legal mechanism by which unions could compel recognition from employers was a major change. The Labour Party government modeled its new approach to a considerable extent on our National Labor Relations Act (NLRA).3 Unions seeking statutory recognition must apply through a government agency; disagreements over proposed unit size or scope are to be resolved early by the agency; the union must show majority …

Law, Lawyers, And Labor: The United Farm Workers' Legal Strategy In The 1960s And 1970s And The Role Of Law In Union Organizing Today , Jennifer Gordon

Faculty Scholarship

What does law offer labor? It depends. The specifics of the law in question are critical, as are the make-up and funding of the agency that is charged with implementing it and the economic strength, political clout, and strategic creativity of the unions and employers that it governs. Today's discussions of the NLRA from the union perspective are tinged with desperation about what law does for and to organizing-a desperation that is born of labor's sense that it has lost too many important battles before the NLRB and the courts over the interpretation of the NLRA. In despair, however, workers …

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.

Developing A Course On The Rights Of Low-Wage Workers, Shirley Lung

Journal of Legal Education

No abstract provided.

The Transformation Of The Professional Workforce, Marion Crain

Chicago-Kent Law Review

For professionals, work is not a commodity to be sold on the market, but a calling that constitutes personal identity while simultaneously conferring a relatively privileged class status. Historically, the professions avoided commodification through a social bargain in which they exchanged their professional expertise and dedication to public service for autonomy, the ability to self-regulate through peer review, and monopoly power over their knowledge base. Over the last twenty-five years, market instability and technological development have fundamentally altered the conditions under which this social bargain was formed, and the professional class has been transformed from self-employed to salaried employee status. …

Commentary: Organized Professionals Can Be Effective Producers, Robert M. Tobias

Chicago-Kent Law Review

No abstract provided.

How American Workers Lost The Right To Strike, And Other Tales, James Gray Pope

Michigan Law Review

To paraphrase a veteran labor scholar, if you want to know where the corpses are buried in labor law, look for the "of course" statements in court opinions. By "of course" statements, he meant propositions that are announced as if they were self-evident, requiring no justification. Each year, thousands of law students read such statements in labor law casebooks. And each year, they duly ask themselves - prodded sometimes by the casebook's notes - how these conclusions could be justified in legal terms. But often there seems to be no answer, and the mystery continues. This Essay recounts the origins …

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 …

Pay Secrecy/ Confidentiality Rules And The National Labor Relations Act, Rafael Gely, Leonard Bierman

Faculty Publications

This article seeks to provide a comprehensive account of doctrinal issues related to the use of pay secrecy/confidentiality rules (“PSC rules”) under the NLRA. In Part II, we describe what pay secrecy/confidentiality is and discuss recent survey evidence of their presence in workplaces across the United States. In Part III, we describe the current legal framework under which PSC rules are evaluated under the NLRA, while in Parts IV and V, we explore various doctrinal issues related to these rules in more detail. This leads us to Part VI, where we ponder the future of PSC rules under the NLRA …

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 …

Orchestrated Experimentalism In The Regulation Of Work, Orly Lobel

Michigan Law Review

Since the advent of the New Deal vision, work and the workplace have undergone dramatic changes. Policies and institutions that were designed to provide good working conditions and voice for workers are no longer fulfilling their promise. In Working in America: A Blueprint for the New Labor Market ("Blueprint"), four MIT economists take on the challenge of envisioning a new regulatory regime that will fit the realities of the new market. The result of several years of deliberation with various groups in business and labor, academia, and government, Blueprint provides a thoughtful yet unsettling vision of the future of work. …

A Wink And A Nod: The Hoffman Case And Its Effects On Freedom Of Association For Undocumented Workers, Jill Borak

Human Rights Brief

No abstract provided.

Let Unions Be Unions: Allowing Grants Of Benefits During Representation Campaigns, Michael Hayes

All Faculty Scholarship

Unions exist to provide assistance to employees; this is their reason for being. Yet once a union begins a campaign to represent a group of employees, it is legally barred from extending tangible assistance to the workers. The National Labor Relations Board ("NLRB" or the "Board") and courts deem a union grant of benefits to employees during or prior to a representation campaign objectionable conduct that requires setting aside the results of the representation election and holding another election.

This article's proposal to open the door to unconditional union benefits during an organizing campaign will likely be controversial. Part of …

Weingarten In The Nonunion Workplace: Looking In The Funhouse Mirror, Ann C. Hodges

Law Faculty Publications

The National Labor Relations Board's extension of the Weingarten decision, granting the right to union representation at pre-disciplinary interviews, to the nonunion workplace was recently upheld by the U.S. Court of Appeals for the D.C. Circuit.- Section 7's, protection of concerted activity and the symmetrical protection of union and nonunion employees alike renders the decision sensible and supportable. Nevertheless, closer examination ofthe decision's consequences suggests that the application ofthe Weingarten right in the nonunion workplace results in a distorted reflection ofthe right's application in the unionized workplace. The situations are not mirror images. Thus, some adjustments to the interpretation ofthe …

Employee Representation In The Boundaryless Workplace, Katherine V.W. Stone

Cornell Law Faculty Publications

No abstract provided.

Contract Rights And Civil Rights, Davison M. Douglas

Michigan Law Review

Have African Americans fared better under a scheme of freedom of contract or of government regulation of private employment relationships? Have court decisions striking down regulation of employment contracts on liberty of contract grounds aided black interests? Many contemporary observers, although with some notable dissenters, would respond that government regulation of freedom of contract, particularly the antidiscrimination provisions of Title VII of the Civil Rights Act of 1964, has benefited African Americans because it has restrained discriminatory conduct by private employers. Professor David E. Bernstein challenges the view that abrogation of freedom of contract has consistently benefited African Americans by …

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 New Psychological Contract: Implications Of The Changing Workplace For Labor And Employment Law, Katherine V.W. Stone

Cornell Law Faculty Publications

In this article, Professor Stone describes the profound changes that are occurring in the employment relationship in the United States. Firms are dismantling their internal labor markets and abandoning their implicit promises of orderly promotion and long-term job security. No longer is employment centered on a single, primary employer. Instead, employees operate in a boundaryless workplace in which they expect to move frequently between firms, and between divisions within firms, throughout their working lives. At the same time, employers and employees have a new understanding of their mutual obligations, a new psychological contract, in which expectations of job security and …

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, …

Has Wright Line Gone Wrong? Why Pretext Can Be Sufficient To Prove Discrimination Under The National Labor Relations Act,, Michael Hayes

All Faculty Scholarship

Every year in the United States, thousands of employees are illegally fired for joining or supporting unions. These employees must bring their claims to the National Labor Relations Board (the “Board”), which applies its famous Wright Line standard to decide thousands of discrimination cases each year.

Probably the most common issue in labor discrimination cases is “pretext.” In virtually every case, an employer claims that it fired an employee not for an illegal anti-union motive, but for a legitimate business reason. The pretext issue arises when the evidence shows that the legitimate reason asserted by the employer was most likely …

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

Faculty Scholarship

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.

Employer Prerogative And Employee Rights: The Never-Ending Tug-Of-War, Henry L. Chambers, Jr.

Law Faculty Publications

Where there are employees and employers, there will be employment relationships in need of mending. That reality is enough to guarantee that employment law will always be a warm, if not hot, area of the law. The article and notes on employment law in this issue demonstrate that the development of employment law continues apace.

Reforming Accretion Analysis Under The Nlra: Supplementing A Borrowed Analysis With Meaningful Policy Considerations, Matthew S. Miner

University of Michigan Journal of Law Reform

Current accretion analysis utilizes a variety of factors to determine whether to merge a non-unionized group of employees with a unionized group of employees within the same firm. The present construction of the analysis; however, ignores employee views and potential manipulation of the doctrine. By failing to account for these two important factors, current accretion analysis neglects two key concerns of the National Labor Relations Act - preventing employer discrimination and fostering uncoerced employee action and choice. This Note advocates a better approach, which gives proper weight to employee views and considers employer motive to control against the possibility of …

The Continuing Relevance Of Section 8 (A) (2) To The Contemporary Workplace, Michael C. Harper

Faculty Scholarship

In this article I evaluate the claims of the critics of the current section 8(a)(2). I do so, as I believe would Professor St. Antoine, ¹⁴ with an eye toward the historical development of new production systems in America and the concomitant development of personnel policies to fit those systems. I consider the purposes for which firm managers seemed to establish and control employee advisory committees before passage of the NLRA and the purposes for which managers seem to establish and control such committees in today's economy. I conclude that these purposes have not substantially changed. Managers before passage of …

Grandmothers And Teamsters: How The Nlrb's New Approach To The Supervisory Status Of Charge Nurses Ignores The Reality Of The Nursing Home, Jonathan Edward Motley

Indiana Law Journal

No abstract provided.

Defining The Economic Relationship Appropriate For Collective Bargaining, Michael C. Harper

Faculty Scholarship

These are, of course, difficult times for those who share the goals of the framers of the original National Labor Relations Act (the "NLRA" or "Act") .' As union density in the private sector has continued to decline² and as the NLRA has proven helpless against the economic developments that have generated continuing employer resistance to collective bargaining, the original vision of the Wagner Congress must seem myopic and shaded with an excessively optimistic tint. Observing these economic developments and the enhanced impediments to union organization that they have posed makes it clear that only a much different statute …

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

Cornell Law Faculty Publications

No abstract provided.

How The Wagner Act Came To Be: A Prospectus, Theodore J. St. Antoine

Articles

The Wagner Act of 1935, the original National Labor Relations Act (NLRA), has been called "perhaps the most radical piece of legislation ever enacted by the United States Congress."' But Supreme Court interpretations supposedly frustrated the utopian aspirations for a radical restructuring of the workplace." Similarly, according to another commentator, unnecessary language in one of the Court's earliest NLRA cases "drastically undercut the new act's protection of the critical right to strike."'

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 …