Federal Labor Law Research Articles

Consultants, lawyers, and the ‘union free’ movement in the USA since the 1970s

This paper provides a qualitative analysis of the services that the anti–union consultants and law firms have provided to American employers during the past three decades and an account of the campaign tactics of several ‘superstars’ of the union–free movement. It describes a multi–million dollar industry that has helped employers to circumvent the intent of federal labour law through a vast array of union–busting tactics, implemented before the union arrives and continuing until after it is defeated: tactics that are designed, at every juncture, to undermine employees’ free choice of bargaining representatives.

Collective bargaining by physicians—labor law, antitrust law, and organized medicine. Choudhry S, Brennan TA. N Engl J Med 2001;345:1141–1144.

Although physicians’ unions have existed since the 1970s, union members have always constituted an extremely small percentage of practicing physicians. However, physicians are turning to unions to increase their bargaining power with managed care organizations. They are also seeing unions as a way to help reclaim their clinical autonomy and to preserve and enhance the quality of care. Leading medical organizations are now supporting these efforts to reclaim clinical autonomy and increase reimbursement through collective bargaining. The American Medical Association, which opposed the idea of physicians’ unions for many years, has established a new organization, Physicians for Responsible Negotiation. It will serve as the bargaining agent, under federal collective-bargaining legislation, for employed physicians who decide to become members of the organization, including physicians who are not members of the American Medical Association. Similarly, the American College of Physicians and the American Society of Internal Medicine have endorsed efforts to permit collective negotiations by physicians through a waiver of federal antitrust laws. Struggles over reimbursement and physicians’ clinical prerogatives are likely to increase during the next decade as health care costs rise. The authors examine the relations and tensions between federal labor law and antitrust law in the context of collective bargaining between physicians and managed-care organizations.—Nancy J. Newman

Supreme Court excludes nurses with responsibilities for overseeing other staff from protections of labor law

A divided US Supreme Court recently rejected for the second time an attempt by the National Labor Relations Board (NLRB) to construe narrowly the definition of “supervisor” under federal labor law to include more nurses within the protections of the law. Specifically, the Court concluded that 6 registered nurses (RNs) at the Caney Creek Developmental Complex in Pippa Passes, Ky, a facility for the mentally retarded, were “supervisors” and, therefore, outside the scope of the law because they directed nurse’s aides in providing patient care. The case, National Labor Relations Board v. Kentucky River Community Care, Inc,1 2001 U.S. LEXIS 4119 (May 29, 2001). Google Scholar is a major setback to efforts to unionize professionals in the health care field and elsewhere. The decision will hinder recent efforts by the American Medical Association and other groups to unionize physicians.

Labored Relations: Law, Politics, and the NLRB. A Memoir

From 1994 to 1998, William B. Gould IV served as Chairman of the National Labor Relations Board. One of only three NLRB Chairmen to come from an academic background, he quickly realized that he was an outsider in a very political world. In this compelling memoir, Gould describes the tribulations of trying to assure impartial administration of federal labor laws while faced with a hostile, Republican Congress. He describes his difficult confirmation process and wrenching Congressional hearings, particularly the one over Proposition 226, a ballot initiative that required unions to get explicit authorization from all represented workers prior to expending dues for political purposes. He tells how the behavior of both Board members and members of Congress, guided by self-interest and rigid ideology, contributed to the Board's problems. He also recounts the positive strides the NLRB made during his tenure, despite the turmoil. The book provides an insider's view of what goes on behind the closed doors in our nation's capital, including discussions with members of Congress, the White House, and President Bill Clinton.

Labored relations: law, politics, and the NLRB--a memoir

This book is about the relationship between law, a quasi-judicial administrative agency, and politics, in the volatile arena of labor policy and the balance of power between labor and management...It is about the rule of law and the role of labor law in a modern economy.-- from the IntroductionFrom 1994 to 1998, William B. Gould IV served as Chairman of the National Labor Relations Board. One of only three NLRB Chairmen to come from an academic background, he quickly realized that he was an outsider in a very political world. In this compelling memoir, Gould describes the tribulations of trying to assure impartial administration of federal labor laws while faced with a hostile, Republican Congress. He describes his difficult confirmation process and wrenching Congressional hearings, particularly the one over Proposition 226, a ballot initiative that required unions to get explicit authorization from all represented workers prior to expending dues for political purposes. He tells how the behavior of both Board members and members of Congress, guided by self-interest and rigid ideology, contributed to the Board's problems. He also recounts the positive strides the NLRB made during his tenure, despite the turmoil. The book provides an insider's view of what goes on behind the closed doors in our nation's capital, including discussions with members of Congress, the White House, and President Bill Clinton.

State Changes in Compensation Laws

Compensation and benefits professionals bear responsibility for maintaining effective wage and benefit programs that comply with a complex tangle of federal and state labor laws. In their latest legislative sessions, most states passed new compensation-related legislation, and many made significant modifications. This article summarizes new legislation on compensation provisions, including laws that increased minimum wage rates in Delaware, Massachusetts, New Jersey, Rhode Island and Vermont. It also reviews laws that changed tip provisions, overtime requirements, minimum wage exemptions and prevailing wage rates. In addition, it covers changes in state statutes on employment discrimination based on genetic testing and sexual orientation and new laws regulating electronic surveillance in the workplace. Other state law changes in requirements for jury duty pay, family leave and drug and alcohol testing are also summarized. Several states passed legislation that protects employers who provide information on former employees to other employers who are screening job applicants. These new laws are described along with new provisions protecting whistleblowers and some significant changes in child labor laws. Compensation professionals should carefully review the legislative changes for all of the states in which their companies employ workers to ensure compliance at the state law level.

Illegal Child Labor in the United States: Prevalence and Characteristics

Using the Current Population Survey, the National Longitudinal Survey, and other sources, the authors provide the first comprehensive estimates of the number of minors working in violation of federal and state child labor laws (working excessive hours or in hazardous occupations), their characteristics, their wages, and trends in illegal child labor. Although illegal employment of 15–17-year-olds has declined since the 1970s, some 154,000 minors are employed illegally in an average week, and 301,000 in a year. Illegal work hours total about 110 million per year. Whites, males, and 15-year-olds are the most likely to be working in violation of child labor laws. Youths working illegally in hazardous jobs earn, on average, $1.38 per hour less than legal young adults in the same occupations, which, combined with savings from employing youths for excessive hours, adds up to employer cost savings of roughly $136 million per year.

Illegal Child Labor in the United States: Prevalence and Characteristics

This study provides the first comprehensive estimates of children and youth working under conditions that violate federal and state child labor laws. Using the CPS, NLS, and other sources, it is estimated that 148,000 minors are employed illegally in an average week working too many hours or in hazardous occupations and 290,000 are employed illegally at some point during a year. The total number of hours worked illegally is about 113 million per year, for which these minors are paid over $560 million. Whites, males, and 15-year-olds are the most likely to be working in violation of child labor laws. Youths working illegally in hazardous jobs earn on average $1.38 per hour less than legal young adults in the same occupations, which combined with the savings from employing youths for excessive hours adds up to a total employer cost savings of roughly $155 million per year. In addition to raising important policy concerns about the health and well-being of these youths, the findings make a case for the development of high-quality employment data on children and youths, to improve estimates of illegal employment and study its effects.

Regulation, Labor Costs and Employment in the U.S. Congress

The present paper examines the impact of passage of The Congressional Accountability Act of1995 (CAA9T), which imposed 11 major federal labor laws on die U.S. Congress for the first time, on employment in Congress. By modeling Congress as a firm which purchases inputs (e.g., capital, labor, etc.) to produce output (e.g., legislation), die impact of federal laws regarding minimum wages, occupational safety and health, family and medical leave, and others is amenable to econometric testing. After subjecting the data series to various unit root and cointegration tests, an error-correction model suggests that passage of CAA95 did indeed lead to a significant reduction in congressional employment levels, ceteris paribus.

Defining "Ministerial Aid": Union Decertification under the National Labor Relations Act

The National Labor Relations Act (NLRA'' gives employees the right to select their union representatives. For a variety of reasons, however, unionized employees sometimes become dissatisfied with the representation their incumbent union provides them. The NLRA permits employees to petition to remove their incumbent union through a process called Unfortunately, few employees know about decertification; fewer still know how to start the process. Moreover, union representatives, who normally would offer employees guidance about their rights under federal labor law, have no incentive to help employees with decertification. And, while employers might be willing to help, the National Labor Relations Board (NLRB or Board) has interpreted the NLRA to forbid any except aid from the employer. The prohibition against substantial employer imposes strict limits on the employer's actions, and yet the legal standards used to apply the prohibition are uncertain and vague. This uncertainty harms the interests of employees in two ways. First, employers may be reluctant to provide even legitimate assistance to employees seeking to decertify their union. Second, when employers do help, the NLRB often overturns the employees' decision to decertify because, in its judgment, the employer provided too much assistance, whether through actions that alone were than ministerial or through a combination of too many trivial acts of assistance. Because most cases have involved more than one form of assistance, and the Board and reviewing courts have considered the actions only in combination, the decisions provide little guidance as to whether an individual act is permissible or how many permissible acts together become impermissible.

Caring Corporations, The Sequel

Caring Corporations, The Sequel Kim McQuaid (bio) Sanford M. Jacoby. Modern Manors: Welfare Capitalism Since the New Deal. Princeton: Princeton University Press, 1997. xii + 345 pp. Notes and index. $35.00. Once upon a time, the standard story of business and labor in America was simple. Corporations dominated until the 1930s depression destroyed affluence. Then business and political executives who led capitalism gaily off speculative cliffs had their credibility destroyed. The private welfare states created by a few large companies to limit discontents and avoid unions withered away. Big labor and big government joined big business in the pantheon of national power. Paternalistic managers died off like dinosaurs. Ideas of corporate community also went mostly extinct. Corporations were no longer the keystone to insuring economic security and good jobs. Welfare capitalism was replaced by the welfare state. Workers in the 1920s owed their living standards to wildly varied entrepreneurs; those after the 1930s primarily owed theirs to federal labor laws, unions, and the Social Security Act. Liberals and organized labor won the most important battles for thirty years. The New Deal fundamentally transformed U.S. society. But historical orthodoxy had a problem. By the 1970s, it no longer explained events. Unions which had won all the important battles were losing the war. Organized percentages of the workforce first plateaued, then dropped steadily. By the early 1990s, the AFL-CIO had fewer dues-paying members than when formed in 1956, and about the total number its member unions possessed half a century before. Government regulations and social insurance programs also fared badly. Efforts to make Social Security fully or partly “voluntary” and to allow the better-off to opt out went mainstream. Democrats and Republicans alike delighted in equating Social Security with a private annuity incompetently run by faraway bureaucrats. Entrepreneurship entered its second decade of ideological high fashion. Varied forms of labor-management cooperation including profit-sharing, stock-sharing, and team-based organization were lauded. Fearsome 1980s economics hit America’s heavy manufacturing and agrarian heartlands without a liberal resurgence. The 1990s resembled the 1920s far more than the 1930s. Pre-Keynesian [End Page 614] economics was a norm of discourse again. Such liberals, as remained, talked more about efficiency than equity and focused on issues of “identity” and “self-esteem” while fearing creationism in the schools. What had gone wrong? By the mid-1970s, leftist academics blamed labor and political leaders for taking corporate bribes to thwart the masses. About a decade later, some also blamed the masses themselves (so long as they be white and male) for racism, sexism, and other oppressions. The right, meanwhile, unrolled beatific visions. Capitalism was always and inevitably an incredible growth machine. Only errant government policy produced problems that undermined longer-run universal economic advantage. Professor Sanford Jacoby argues that most of what passes for business, labor, or management history these days is full of ideological gush and scholarly blind spots. The right always over-emphasizes economic and other interests workers and managers hold in common. The left, meanwhile, always over-emphasizes the degree to which the Depression de-legitimized businessmen and the degree to which it legitimized unions in the minds of the vast majority of Americans. Academics are victims of their own false dichotomies. History, says, Jacoby, is not academic either/or. All things go on all the time. Corporate leaders did not stalk off the stage like villains in a Victorian melodrama during or after the 1930s. They did not swirl their capes about their shoulders and mutter “Curses, foiled again!” Instead they stayed active and engaged, awaiting positive developments. A minority of large successful manufacturing and retailing firms avoided unions with “kindness and occasional ferocity” (p. 7). Less than twenty years after the apparent triumph of New Deal liberalism and AFL-CIO laborism, welfare capitalism began to re-emerge as an alternative to both. This rebirth occurred because of increased global competition and a shift away from undifferentiated mass production; a Knowledge Revolution and the growing importance of skilled, educated workers; a quiet educational revolution and a less quiet but equally important revolution in the number and variety of working women in the labor force; and the inability of...

Discrimination in Employment Provisions in the Mexican Federal Labor Law

The discrimination in employment provisions in employment provisions in the Mexican Federal Labor Law (FLL) are surveyed in a general overview. Employment discrimination in Mexico under the FLL is generally proscribed but is mandated in a limited number of instances. Discriminatory violations can induce various sanctions against transgressing Mexican employers.

Occupational injury deaths of 16 and 17 year olds in the US: trends and comparisons with older workers.

OBJECTIVE: To examine patterns of occupational injury deaths of 16 and 17 year olds in the United States for the three year period 1990-2, examine trends since the 1980s, and...

Three Conceptions of Federal Criminal-Lawmaking

This article describes and evaluates three competing conceptions of federal criminal-lawmaking. The first, which can be called the legislative supremacy position, conceives of federal crimes as purely legislative in origin. This is the dominant understanding of how federal criminal-lawmaking does and should work. It also happens to be a rank fiction. The second conception of federal criminal-lawmaking can be called the common-law position. It depicts the operative rules of federal criminal law as judicial in derivation in much the way that the operative rules of federal antitrust and labor law clearly are. The common-law conception offers the best description of federal criminal-lawmaking as it currently exists. It is also normatively superior to the conventional legislative-supremacy position, although it is afflicted with some fairly obvious pathologies. The third and final conception of federal criminal-lawmaking can be called the administrative-law position. On this view, defining operative rules of federal criminal law would be the responsibility of the Executive Branch of government, which would carry out this task either by promulgating legally binding rules akin to the Federal Sentencing Guidelines, or by announcing statutory interpretations that courts would be bound to defer to in criminal prosecutions. The administrative conception is not the system of criminal lawmaking that we have or that anyone thinks we have. Nevertheless, it's the system that we ought to have, and one we easily could with only modest doctrinal innovation.

Why Labor Wins, Why Labor Loses: A Test of Two Theories

Legal regulation of the labor contract is central to American policy formation. This study analyzes the reasons for the passage of federal labor laws that governed workplace activity in the United States from 1897 to 1980. The dependent variable includes all major federal statutes that are favorable or detrimental to labor. Two theories are considered: a mass disruption approach and a party control perspective. Qualitative comparative analysis is used to assess the utility of both theories. For the pro-labor laws, the findings show partial support for both models. The theories are better at explaining reform prior to rather than after World War II. An explanation is presented for this temporal break. For the antilabor laws, the results are inconclusive due to the small sample size. An alternative account is offered that focuses on policy making under divided government. This research suggests analyzing the interaction of economic, class, and political variables and using larger sample research designs as guidelines for future investigation.

Occupational Health and Safety in Mexico: Adequate Legislation and Ineffective Enforcement

“Work is a social right and social obligation. It is not an article of commerce; it requires respect for the freedom and dignity of the person performing it and it shall be carried out under conditions protecting the life, the health and a decent standard of living for the worker and his family. No distinctions shall be made between workers on the grounds of race, sex, age, religious belief, political opinion or social status.” — Article III, Mexican Federal Labor Law

LEGAL CONCERNS IN ASSOCIATESHIPS AND PARTNERSHIPS

SUMMARY Entering into an associateship and forming a partnership are major career-shaping and, to a great extent, life determinative decisions. OMSs cannot take such decisions lightly. Once the OMS decides to go the associateshippartnership route, he or she must be aware that there are many legal concerns involved in the process. Each associateship is unique. The doctors can customize the relationship, address all details, and design the associateship and partnership to their individual circumstances. It is essential that each OMS involved in any type of associateship attempt to understand the myriad legal concerns. The associates must be able to communicate with each other in an effective and professional manner. Putting it all together, however, is not a “do-it-yourself” matter. Competent health-care advisors can guide, advise, protect, and help tremendously. Each OMS must consult with them at various stages of the relationship. Doing this could be one of the better small investments an OMS will make. Although our example in this article involves only two OMSs, the philosophies, prin- ciples, and concerns hold true for a multiperson organization. The more OMSs involved, the more complicated the various situations become. In either case, duo or multiple, if the doctors are not aware of the myriad legal aspects in such relationships they could be much worse off. The doctors must understand that there are complicated federal, state, and local labor, tax, and other laws and regulations under which they must operate. In each instance, however, they must have a baseline or starting point. At all stages they have to factor in reasonable bailout provisions. They should work with competent, experienced advisors who will explain the legal facts, ramifications, and alternatives. One of the difficulties the OMS will encounter is that there is a great deal of strategic planning that requires vision and anticipation. Usually the OMS finds this difficult to comprehend. Nevertheless, it is necessary, especially in the never-anticipated cases of premature and unexpected death, illness, incapacity, and change. Basic planning can prevent legal and emotional turmoil. It can protect the doctors and their families from the ravaging effects of uncertainty, short- and long-term taxation, estate taxation, extended and expensive nego tiations, frustration, and mental and physical anguish. This article is not meant to be and cannot be an all-inclusive discourse. Its primary purpose is to point out the myriad legal concerns that each doctor already in, about to enter, or anticipating to leave an associateship and partnership situation can face; however, if each doctor and each advisor are reasonable, realistic, rational, and flexible throughout the process each concern will become a comfort.

A detailed analysis of work‐related injury among youth treated in emergency departments

Telephone interviews were conducted with 146 14- to 16-year-olds who incurred an occupational injury treated in an emergency department during the period July through September 1992. Thirty-two percent of the injuries occurred as the result of using equipment. Over half the workers reported not having received prior training on how to avoid injury. The injury limited normal activities for at least 1 day for 68% of the youth and for more than a week for 25%, corresponding to an estimated 6,208 (95% CI: 4,277, 8,139) and 2,639 (95% CI: 1,580, 3,699) youths nationwide, respectively. Employment in retail trades, equipment use, lack of training, and burn injuries were associated with increased limitation of normal activities. Nineteen percent of the youths appear to have been injured in jobs declared to be hazardous, or typically prohibited for their age (14- and 15-year-olds) under federal child labor laws. The prohibited job directly contributed to the injury in 64% of these cases.

Faculty bargaining in private colleges and universities: Beyond Yeshiva

In 1980, the U.S. Supreme court inYeshiva University v. NLRB ruled that faculty members in some private colleges and universities are managerial employees, and, thus, are not entitled to the protection provided under federal labor law. Since then, the courts and the National Labor Relations Board have heard a number of cases arising out ofYeshiva. This article first reviews the status of managerial and professional employees under the NLRA, then examines how the law has been applied in the aftermath ofYeshiva. We conclude that while a few general principles have evolved, the courts have yet to establish clear criteria for defining “managerial” as applied to university faculty. We note that theYeshiva case has resulted in a substantive decline in collective bargaining among faculty in private sector higher educational institutions, and that the criteria arising out of the decision have the potential for restricting collective bargaining coverage outside academia.

Occupational injury deaths of 16- and 17-year-olds in the United States.

Data from the National Traumatic Occupational Fatalities surveillance system were used to analyze occupational injury deaths of civilian 16- and 17-year-olds during 1980 through 1989. There were 670 deaths; the rate was 5.11 per 100,000 full-time equivalent workers. The leading causes of death were incidents involving motor vehicles and machines, electrocution, and homicide. Workers 16 and 17 years old appear to be at greater risk than adults for occupational death by electrocution, suffocation, drowning, poisoning, and natural and environmental factors. Improved enforcement of and compliance with federal child labor laws, evaluation of the appropriateness of currently permitted activities, and education are encouraged.