National Labor Relations Act Research Articles

Non‐Competition Agreements: An Invitation for the Union Organizer

One of the hot topics in labor and employment in 2023 has been that of non‐compete agreements. Over the past several years, many states have taken steps to limit their enforceability or, in the case of California, outright ban them. Earlier this year, the Federal Trade Commission announced efforts to curb the use of non‐compete agreements. Not to be outdone, the NLRB's General Counsel also entered the fray and recently issued a memo finding that certain non‐compete agreements violate the National Labor Relations Act (NLRA).

NLRB Expanding Efforts to Promote Unionization?

Management Report for Nonunion OrganizationsVolume 46, Issue 6 p. 2-8 News NLRB Expanding Efforts to Promote Unionization? First published: 10 May 2023 https://doi.org/10.1002/mare.30966Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Abstract The National Labor Relations Board (NLRB) recently announced a “Know Your Rights” card series, to be published in both English and Spanish, to advise workers of their rights under the National Labor Relations Act (NLRA). According to NLRB General Counsel Jennifer Abruzzo, “This card series is one of many steps we're taking to ensure that all workers know their workplace rights and understand that there is a federal agency, the NLRB, that they may seek help from if they feel that their rights have been violated. The cards will advance the NLRB's efforts to remove barriers for workers in underserved communities through education, outreach, and process so that all workers can safely access the NLRB.” Volume46, Issue6June 2023Pages 2-8 RelatedInformation

Wrong Line: Proposing a New Test for Discrimination Under the National Labor Relations Act

There has long been a consensus among scholars and union-side practitioners that the National Labor Relations Act (NLRA) is under-enforced. As a result, employers often treat violations of the NLRA as a cost of doing business rather than a serious violation of a federal statute. Calls for reform have historically tended to propose legislative amendments to the NLRA to constrain employer conduct and impose greater consequences for discrimination violations. However, little attention has been given to improving the flawed legal test by which such discrimination is analyzed, Wright Line, 251 N.L.R.B. 1083 (1980), enforced 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). In this article, we propose a new causation test that better addresses how adjudicators should weigh the evidence that Congress and jurists have deemed relevant for evaluating discrimination claims. Our test lightens the initial burden to establish a showing of discrimination, formalizes the employer’s defense burden, and then provides a rebuttal burden for the discriminatee. This is no radical departure from historical precedent. Rather, we argue that the original Wright Line decision itself contained hints of our test, but that adjudicators and practitioners alike have whittled Wright Line to an oversimplified shell at best and an ambiguous, complex inquiry at worst. Our test better fulfills the NLRA’s objective of promoting collective bargaining in the private sector by encouraging a deeper inquiry in NLRA cases’ pre-litigation investigative stage.

The Idea of the “General Clause” in American Labor Law

Abstract European legal systems have long encompassed the concept of the “general clause”, particularly in contract and labor law. The general clause includes unwritten legal norms such as good faith and public morality, and these principles are duly incorporated in the process of construing civil and labor contracts. While the general clause itself is formally absent in common law systems, its principles have found their way into modern British and American law. Two primary examples include the doctrines of good faith and unconscionability. In a broader sense, the idea of introducing rather indeterminate legal norms to be construed and interpreted by judges appears to be well-suited to a common law system. However, as applied to American labor law, the very indeterminacy of these terms has had rather negative effects on the rights of employees and the labor unions that represent them. Specifically, this article examines the good faith requirement in collective bargaining under the National Labor Relations Act (NLRA) and the doctrine of unconscionability in employment arbitration agreements, and concludes that they both should be supplemented by more definite standards in order to effectively protect employees.

Rights Not Interests: Resolving Value Clashes under the National Labor Relations Act by James A. Gross

Book Review| March 01 2021 Rights Not Interests: Resolving Value Clashes under the National Labor Relations Act by James A. Gross Rights Not Interests: Resolving Value Clashes under the National Labor Relations Act, Gross, James A., Ithaca, NY: Cornell University Press, 2017, 248 pp., $45.00 (cloth); $21.99 (ebook) Sharon Block Sharon Block Harvard University Search for other works by this author on: This Site Google Labor (2021) 18 (1): 113–115. https://doi.org/10.1215/15476715-8767471 Cite Icon Cite Share Icon Share Facebook Twitter Email Permissions Search Site Citation Sharon Block; Rights Not Interests: Resolving Value Clashes under the National Labor Relations Act by James A. Gross. Labor 1 March 2021; 18 (1): 113–115. doi: https://doi.org/10.1215/15476715-8767471 Download citation file: Zotero Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search nav search search input Search input auto suggest search filter Books & JournalsAll JournalsLabor Search Advanced Search The proportion of workers in the United States represented by a union in the private sector is now lower than before the National Labor Relations Act (NLRA) was passed. Since the mid-1970s, we have watched a steady decline of the labor movement that has lately accelerated, arguably to a collapse. The causes of this collapse are many — changes in our economy from a predominantly industrial character to a service-oriented character; evolving business models, particularly the fissuring of those models, that make traditional organizing strategies ineffective; and US trade policy that puts tremendous downward pressure on wages for American workers. There also is a set of causes that are more clearly intrinsic to the National Labor Relations Act — weaknesses there from enactment and others introduced over the years. Professor James A. Gross has produced some of the most insightful and... © 2021 by Labor and Working-Class History Association2021 You do not currently have access to this content.

Using Superstore to Supplement Instruction of the National Labor Relations Act

This research discusses opportunities for educators to introduce popular media into their curriculum, particularly when discussing unionization and the National Labor Relations Act (NLRA). We have identified a series of scenes in the NBC workplace comedy, Superstore, and provide discussion prompts for instructors to use as a review of their lesson on the NLRA. All scenes mentioned in the paper are available online for instructors to embed in their learning management systems or slide decks.

Do US Firms Have an Incentive To Comply With the FLSA and the NLRA?

To what extent do US firms have an incentive to comply with the Fair Labor Standards Act (FLSA) and the National Labor Relations Act (NLRA)? I examine this question through a simple comparison of the expected costs of noncompliance (in terms of legal sanctions) to the profits firms can earn through noncompliance. In the case of the FLSA minimum wage and overtime provisions, typical willful violators are required to pay back wages owed and in some cases additional penalties, if detected by the Department of Labor (DOL). Based on available data on the penalties levied, a typical firm would need to expect a chance of at least 78–88 percent that its violation would be detected in order to have an incentive to comply with the FLSA. In practice, the probability of detection many firms can expect to face is likely much lower than this. In the case of the NLRA, a firm that fires a worker illegally is required to reinstate the worker with back pay if the violation is detected. Based on empirical estimates of the effect of unionization on firm profits, a typical firm may have an incentive to fire a worker illegally for union activities if this illegal firing would reduce the likelihood of unionization at the firm by as little as 0.15–2 percent. These analyses illustrate that neither the FLSA nor the NLRA penalty and enforcement regimes create sufficient incentive to comply for many firms. In this context, the substantial evidence of minimum wage and overtime violations, and of illegal employer behavior toward unions, is not surprising.

Structural Labor Rights

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 to step in, leaving employers free to coordinate and consolidate labor-market power while constraining workers’ ability to do the same. The dissolution of workers’ collective rights has resulted in spiking income inequality: workers have suffered economy-wide wage stagnation and a declining share of the national income for decades. To resolve this crisis, some scholars have advocated for ambitious labor law reforms, like sector-wide bargaining, while others have turned to antitrust law to tackle employer power. While these proposals are vital, they overlook an existing opportunity already contained in the labor law that would avoid the political and doctrinal obstacles to such large-scale reforms. This Article argues for a “structural” approach to the labor law that revives and modernizes its equal bargaining power purpose through deploying innovative social scientific analysis. A “structural” approach is one that takes into account workers’ bargaining power relative to employers in determining the scope of substantive labor rights and in resolving disputes. Because employers’ current buyer power strengthens their ability to indefinitely hold out on worker demands in the employment bargain, the “structural” approach seeks to deploy social scientific tools to tailor the labor law’s provisions so that they resituate workers to a bargaining position from which they could equally hold out. This Article makes three key contributions. First, it documents the dispersion and misalignment of workers’ collective rights under current labor law, detailing the historical narrowing of workers’ collective rights to limited tactics by a small set of workers against highly protected individual enterprises and the concomitant rise of employer power (Part I). Second, it introduces and schematizes the wealth of social scientific literature relevant for evaluating the relative bargaining power of employers and employees (Part II). And finally, it offers concrete proposals for how to apply these social scientific tools and insights to three areas of the National Labor Relation Board’s adjudication and regulatory authority: the determination of “employer”/”employee” status, the determination of employees’ substantive rights under section 7 of the National Labor Relations Act (NLRA), and the determination of what counts as sanctionable unfair labor practices under section 8 of the NLRA (Part III).

Protected Concerted Activity and Non-Unionized Employee Strikes: Worker Rights in Canada in the Time of COVID-19

During the pandemic employees in the US have engaged in a wave of strikes, protests and other collective action over concerns about unsafe working conditions, and many of these involved non-unionized workers in the private sector. Similar employee protests were notably absent in Canada. This article examines the differences in labour legislation between the US and Canada which may help to explain these diverging experiences, primarily: the National Labor Relations Act (NLRA) section 7 protection for concerted activity, and the NLRA section 502 ability for a good faith strike due to abnormally dangerous conditions for work. This article outlines and compares the situation of, and consequences for, three categories of workers engaging in a strike over fears of workplace safety: unionized employees, non-unionized employees, and non-employees, such as independent contractors under the NLRA compared to under the Ontario Labour Relations Act (OLRA), as generally representative of Canadian labour legislation. In the final section, this article considers how a statutory provision similar to the NLRA protected concerted activity provision might be incorporated into Canadian labour legislation such as the OLRA. It also considers some more fundamental questions that such changes might prompt policymakers to reconsider, including: the focus of our statutory system on “organizing” collective action to the exclusion of “mobilizing” collective action, and questions about the potential role of minority unionism in our labour legislation system.

STRIKES FAIL, CHICKS DIGS SCABS, BUT THE DUTY TO BARGAIN IN GOOD FAITH LASTS FOREVER: What The Replacements Can Teach About U.S. Labor Law, The Professional Football Union, And The Future of Both

The 2000 sports comedy film The Replacements provides illustrative examples of conduct by opposing parties in a collective bargaining dispute that can wind up before the federal administrative law body the National Labor Relations Board (NLRB). Using the film as a backdrop--and at times a cautionary tale, this article introduces the reader to the unique area of administrative law that is the NLRB's domain under the National Labor Relations Act (NLRA). The football theme orients the reader to the structure of the NLRA and the role each party plays in an administrative adjudication before the NLRB. Departing from the fiction on the screen, real-world examples are presented from actual labor disputes between the National Football League and the union, the NFL Players' Association. The article concludes by foreshadowing the imminent collective bargaining renewal negotiations between the NFL and the NFLPA. This briefly includes some of the issues the two sides will bargain over with the threat of a work stoppage looming on the horizon.

A Different Set of Rules? NLRB Proposed Rule Making and Student Worker Unionization Rights

This article presents data, precedent, and empirical evidence relevant to the National Labor Relations Board (NLRB) proposal to issue a new rule to exclude graduate assistants and other student employees from coverage under the National Labor Relations Act (NLRA). The analysis in three parts. First, the authors show through an analysis of information from other federal agencies that the adoption of the proposed NLRB rule would exclude over 81,000 graduate assistants on private campuses from the right to unionize and engage in collective bargaining. Second, the article presents a legal history from the past half-century about unionization of student employees at private and public sector institutions of higher education, including the NLRB’s oscillation on the question of whether student employees are protected under the NLRA. The inconsistencies of the NLRB is in stark contrast to state and Canadian provincial precedent during the same period.. Lastly, the authors analyze the terms of 42 current collective bargaining agreements covering student workers, including 10 at the private sector institutions. The empirical evidence from five decades of relevant collective bargaining history, precedent, and contracts demonstrates consistent economic relationships between student employees and their institutions.

A "Tale of Two Statutes" Redux: Anti-Union Employment Discharges Under the NLRA and RLA, With a Solution

This is a redux article that revisits a subject that I examined twenty years ago in an essay in which I contrasted the epidemic of anti-union employee discharges under the National Labor Relations Act (NLRA) with the rarity of such discharges under the Railway Labor Act (RLA). I concluded that the extreme difference in that quantity of violations was due to the deterrent effect of the certain availability of federal court injunctions under the RLA and that similar results could be attained if Section 10(j) injunction proceedings were substantially expanded. Accordingly, I recommended that in almost all such discharge cases under the NLRA such an expansion be applied. Nevertheless, in the years that followed, despite a tiny increase in the number of Section 10(j) cases and a slightly more efficient process in the small number of 8(a)(3) cases, the epidemic continued—in fact even more heavily. Reliable deterrence was obviously missing. During that interim period, however, I discovered a trusted and long established legal procedure—to wit, the delegation of Section 10(j) authority from the Labor Board to its General Counsel—which this redux article now proposes for automatic application in most meritorious Section 8(a)(3) cases. Applying this automatic procedure, which can be accomplished without new legislation, would give that provision the deterrent effect that Congress intended in 1959 when it passed, without dissent, Section 10(m), a heretofore virtually unused and unknown statutory provision. Under this proposed procedure, anti-union discharges under the NLRA could become a thing of the past.

Conflict, Institutions, and Public Law: Reflections on the United States as a Developing Country

Between roughly the end of the 19th century and the the end of Word War II, the United States experiences a remarkable change. Over the course of several decades, it evolves from being a country with a weak national government and considerable domestic instability to being a geopolitical power where judicial and administrative institutions were routinely used to resolve internal conflicts. We explore in this paper how this transition occurrs and how it illuminates both public law and the study of law and development. We start from the premise that the existence of relatively stable institutions able to channel a great deal of political conflict –– even in the United States –– is an outcome that needs to be explained, rather than a condition that can be assumed to follow from culture, geography, or wealth. Indeed, the extent of corruption and labor conflict in the United States belies the idea the country was always able to resolve most or all conflict effectively through public institutions. The story we tell to resolve this question has its grounding in another puzzle: Why did the changes in the American political economy of the early 20th century coincide with a period where public corruption declined, labor-related violent conflict subsided, governmental capacity to regulate and collect taxes grew, and major public law disputes about the structure and control of agencies received serious attention in court and were –– by the end of World War II –– resolved at least in preliminary form? We argue that these developments occurred together for a reason, and understanding them together sheds light not only on the American political economy but on law and development writ large. Our most general claim is that the law and development story is contingent and needs to be better explained in terms that address how institutions can be used to channel conflict and mitigate violence. The story of American institutions as often narrated also devotes insufficient attention to the early 20th century, and in particular, to the mix of corruption mitigation, capacity growth in the federal state, and compromise and accommodation that assuaged major conflict — especially in labor, as occurred during certain episodes of the West Virginia Coal Wars — after technological and geopolitical changes put pressure on the American political economy. Such compromise distinguished the United States from countries like Argentina, where contentious politics and factional strife interfered with the resolution of major disputes through formal mechanisms. Our most specific claim concerns the pivotal years between passage of the National Labor Relations Act (NLRA) and the Administrative Procedure Act (APA). During these years, new forms of public law, including fierce statutory labor compromise and adaptive nationwide agencies like the National Labor Relations Board, constitutional compromises on delegation and executive power cutting against corporatism, and administrative procedure helped institutionalize compromise and facilitated channeling of conflict into formal institutions. This transformation is the crucial backdrop not only to the emergence of the United States as the preemiment geopolitical power of the latter half of the 20th century, but to the conflicts about public power and social change that continue to bedevil the United States today.

Religious Accommodation and the National Labor Relations Act

This Article argues for amending the National Labor Relations Act (NLRA ) to require employers and unions to accommodate a broader array of employee and third party religious beliefs. By detailing the experiences of several religious adherents, the Article seeks to demonstrate that current statutory and constitutional doctrines fail to adequately protect religious freedom. After identifying numerous conflicts between the NLRA and religious exercises, the Article explains why a legislative accommodation for religion is appropriate given the long-standing history in United States labor law of accommodating various secular interests (e.g. federalism and free speech) that may conflict with optimal labor policy. In the author's view, religion is an interest as worthy of protection as these secular interests. Finally, the author tests his proposal under the appropriate Establishment Clause standards. Due to inconsistent Supreme Court jurisprudence in cases involving the intersection of the Free Exercise and Establishment Clauses of the First Amendment, the author analyzes in detail how the proposed legislative accomodation complies with the dictates of Court precedent. The Author concludes that the current Supreme Court would uphold a meaningful level of legislative accommodation of religious liberties impinged by the NLRA against challenges that such accommodation violates the Establishment Clause.

Native Americans, Tribal Sovereignty and Unions

22 | International Union Rights | 25/4 FOCUS | INDIGENOUS PEOPLES & UNIONS The Tribal Labor Sovereignty Act which narrowly failed to pass Congress provoked strong criticism from US labour.We asked two prominent lawyers what the Act means for Native Americans To understand labour relations in ‘Indian country’ (e.g. ‘reservations’ Native Americans retained after untold land cessions to the US under the barrel of the gun), one must understand the fundamental nature of tribal sovereignty and the relationship between tribal nations and the United States. Indigenous peoples have occupied what is now the US from time out of mind, and in so doing exercised governmental authority over their respective tribal citizens and their lands. After the American Revolution, the US Constitution defined treaties with tribal nations as the ‘Supreme law of the land’. The Constitution also granted Congress broad authority over Indian affairs. Centralising power over Indian affairs within the federal government had practical consequences: it was essential for systematic colonisation. The Supreme Court established early on that tribes are ‘domestic dependent nations’ and that the US has a trust responsibility to protect their sovereign authority as governments. The Supreme Court subsequently described the sovereignty of Indian tribes as of ‘a unique and limited character’, which ‘exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers’1. The Court also established that the federal trust responsibility to protect tribal sovereignty requires ambiguities in statutes affecting tribal nations to be construed in favour of tribal self-determination2. Thus, if Congress is silent on the question of whether a federal law may be imposed on a tribe in a manner that would undermine its inherent sovereign authority, the ‘proper inference… is that the sovereign power remains intact’3. Labour and Employment Relations In Indian Country It is well-established that tribes have inherent sovereign power to govern labour and employment relations within Indian country, their territorial jurisdiction, in accordance with their own laws. Tribal nations engage in a host of economic activities on their lands to raise governmental revenues for the provision of governmental services to their members. These include the operation of casino resorts, timber and other natural resources industries, and many more. In these settings, tribes retain inherent sovereign authority to enact and enforce labour and employment laws. Many tribes have enacted laws to govern unions and collective bargaining as well as employment discrimination. Non-citizens of Indian nations who take up employment with tribes or their enterprises in Indian country are also subject to these laws. The National Labor Relations Act (NLRA) enacted in 1935 – establishes and protects the right of private-sector employees to organise and join unions and to engage in collective bargaining with employers. The NLRA expressly excludes the federal government, states, and municipalities from its application; it applies only to private employers. Labour organising in the public sector is separately governed by state and federal laws, which differ in substantial ways from the NLRA. Congress is silent on the application of the NLRA to tribal nations or their enterprises within Indian country. For nearly 75 years, the National Labor Relations Board (NLRB) had held that tribal nations and their enterprises in Indian country are not ‘employers’ subject to the NLRA, in recognition that tribal nations are sovereign governments, like the state and federal governments. NLRB applies the NLRA to tribal gaming operations In 2004, the NLRB changed course and held that a tribe engaged in gaming within Indian country to generate governmental revenues in accord with the Indian Gaming Regulatory Act (IGRA) was an ‘employer’ subject to the NLRA. The ruling was upheld on appeal4. The Court said that because operation of a casino was ‘not a traditional attribute of self-government’ and the tribe employed noncitizens at the casino, tribal sovereign interests did not warrant construing Congress’s silence in favour of the tribe. The San Manuel decision has been roundly criticised by federal Indian law scholars. Tribal nations engage in gaming pursuant to the IGRA to generate governmental revenues to support badly needed governmental services for tribal members. The IGRA requires that tribes use the net revenues from gaming to...

Native Americans, Tribal Sovereignty and Unions

22 | International Union Rights | 25/4 FOCUS | INDIGENOUS PEOPLES & UNIONS The Tribal Labor Sovereignty Act which narrowly failed to pass Congress provoked strong criticism from US labour.We asked two prominent lawyers what the Act means for Native Americans To understand labour relations in ‘Indian country’ (e.g. ‘reservations’ Native Americans retained after untold land cessions to the US under the barrel of the gun), one must understand the fundamental nature of tribal sovereignty and the relationship between tribal nations and the United States. Indigenous peoples have occupied what is now the US from time out of mind, and in so doing exercised governmental authority over their respective tribal citizens and their lands. After the American Revolution, the US Constitution defined treaties with tribal nations as the ‘Supreme law of the land’. The Constitution also granted Congress broad authority over Indian affairs. Centralising power over Indian affairs within the federal government had practical consequences: it was essential for systematic colonisation. The Supreme Court established early on that tribes are ‘domestic dependent nations’ and that the US has a trust responsibility to protect their sovereign authority as governments. The Supreme Court subsequently described the sovereignty of Indian tribes as of ‘a unique and limited character’, which ‘exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers’1. The Court also established that the federal trust responsibility to protect tribal sovereignty requires ambiguities in statutes affecting tribal nations to be construed in favour of tribal self-determination2. Thus, if Congress is silent on the question of whether a federal law may be imposed on a tribe in a manner that would undermine its inherent sovereign authority, the ‘proper inference… is that the sovereign power remains intact’3. Labour and Employment Relations In Indian Country It is well-established that tribes have inherent sovereign power to govern labour and employment relations within Indian country, their territorial jurisdiction, in accordance with their own laws. Tribal nations engage in a host of economic activities on their lands to raise governmental revenues for the provision of governmental services to their members. These include the operation of casino resorts, timber and other natural resources industries, and many more. In these settings, tribes retain inherent sovereign authority to enact and enforce labour and employment laws. Many tribes have enacted laws to govern unions and collective bargaining as well as employment discrimination. Non-citizens of Indian nations who take up employment with tribes or their enterprises in Indian country are also subject to these laws. The National Labor Relations Act (NLRA) enacted in 1935 – establishes and protects the right of private-sector employees to organise and join unions and to engage in collective bargaining with employers. The NLRA expressly excludes the federal government, states, and municipalities from its application; it applies only to private employers. Labour organising in the public sector is separately governed by state and federal laws, which differ in substantial ways from the NLRA. Congress is silent on the application of the NLRA to tribal nations or their enterprises within Indian country. For nearly 75 years, the National Labor Relations Board (NLRB) had held that tribal nations and their enterprises in Indian country are not ‘employers’ subject to the NLRA, in recognition that tribal nations are sovereign governments, like the state and federal governments. NLRB applies the NLRA to tribal gaming operations In 2004, the NLRB changed course and held that a tribe engaged in gaming within Indian country to generate governmental revenues in accord with the Indian Gaming Regulatory Act (IGRA) was an ‘employer’ subject to the NLRA. The ruling was upheld on appeal4. The Court said that because operation of a casino was ‘not a traditional attribute of self-government’ and the tribe employed noncitizens at the casino, tribal sovereign interests did not warrant construing Congress’s silence in favour of the tribe. The San Manuel decision has been roundly criticised by federal Indian law scholars. Tribal nations engage in gaming pursuant to the IGRA to generate governmental revenues to support badly needed governmental services for tribal members. The IGRA requires that tribes use the net revenues from gaming to...

Indian Sovereignty, General Federal Laws, and the Canons of Construction: An Overview and Update

This article focuses on the application within Indian country of federal regulatory typically dealing with labor relations, employment, health, the environment, and other social and economic issues (i.e., general federal laws or GFLs), and their impact on Indian Nation governments and tribal enterprises. This article takes the position that a GFL, just like specialized Indian legislation and all potentially affecting the ancient rights and sovereignty of Indian Nations, should be subjected to the rules of interpretation known as the Indian law of construction. The U.S. Court of Appeals for the Ninth Circuit in Donovan v. Coeur d'Alene Tribal Farm (1985) (Coeur d'Alene) adopted a troubling and contrary rule of interpretation. The article also touches on a range of deeper issues concerning the relative power of Congress as compared to administrative agencies and the U.S. Supreme Court as compared to lower federal courts (including the U.S. Court of Appeals for the Ninth Circuit). These issues raise concerns going well beyond the field of American Indian law. They touch on constitutional law, the separation of powers, administrative law, and labor law. The article updates the author's 2007 Oregon Law Review and 2008 Michigan State Law Review articles, which criticized various aspects of the Coeur d'Alene doctrine. It reviews some key points about the Ninth Circuit's remarkable three-judge panel opinion in Coeur d'Alene, which (for more than thirty years now) has frustrated Indian country lawyers and out-muscled the Supreme Court itself in influencing other lower-court rulings on how to interpret GFLs in relation to Indian country. Coeur d'Alene has effectively overruled (in many federal circuits and for many GFLs) the weight of more than a century of Supreme Court jurisprudence on the Indian law canons of construction. The article also reviews some aspects of the notorious San Manuel cases. In that litigation, the National Labor Relations Board (NLRB or Board), in 2004, and the U.S. Court of Appeals for the District of Columbia Circuit, in 2007, deployed the Coeur d'Alene doctrine to extend the National Labor Relations Act (NLRA) to on-reservation employment by tribal government-owned gaming enterprises, even though that has never been authorized or intended by Congress. That specific issue of federal labor law, and the broader dispute over Coeur d'Alene, emerged again in 2015 with appeals to the Sixth and Tenth Circuits over application of the NLRA to tribal casinos. Those appeals were resolved by three important decisions discussed in Part V of this article: one by the NLRB (effectively mooting the Tenth Circuit appeal) and two by the Sixth Circuit. Following the Introduction (Part I), Part II of the article discusses the classical canons of construction governing Indian law, and contrasts them with the Coeur d'Alene doctrine which has flourished in the lower federal courts. Part III highlights the stunning degree of irony (not to mention outright defiance of the Supreme Court) in the lower courts' treatment of the Supreme Court's 1960 decision in Federal Power Commission v. Tuscarora Indian Nation. Part IV discusses continuing struggles over the Coeur d'Alene doctrine in the lower federal courts. Part V discusses the 2015 decisions, and where things have gone from there. Part VI concludes the article.

A Modern Union for the Modern Economy

Membership in traditional unions has steeply declined over the past two decades. As the White House and Congress are now completely Republican controlled, there promises to be no reversal of this trend in the near future. In the face of this rejection of traditional bargaining efforts, several attempts have been made to create alternative “quasi-union” or “alt-labor” relationships between workers and employers. These arrangements represent a creative approach by workers to have their voices heard in a collective manner, though still falling far short of the traditional protections afforded by employment and labor law statutes.This Article critiques one such high-profile, quasi-union effort in the technology sector—the Uber Guild. While the Guild does not provide any of the traditional bargaining protections found in the National Labor Relations Act (NLRA), it offers Uber drivers some input over the terms and conditions under which they work. Falling somewhere between employment-at-will and unionization protected under the NLRA, the Uber Guild is a creative attempt to help both workers and the company to better understand how they can improve the working relationship.This Article navigates the Uber Guild and other nontraditional efforts that promise a collective voice for workers in the face of a precipitous decline in union membership. Closely examining the implications of these existing quasi-union relationships, this Article explores how workers in the technology sector face unique challenges under workplace laws. For the first time in the academic literature, we argue that these workers are particularly well situated to benefit from a nontraditional union model and explain what that model should look like. While there can be no doubt that a traditional union protected by the NLRA is the optimal bargaining arrangement, we must consider the enormous challenges workers in the technology sector face in obtaining these protections. A modern union is needed for the modern economy.

Judicial ‘Amendments’ Weaken US Labour Protections

10 | International Union Rights | 24/2 FOCUS | UNITED STATES During the height of the Great Depression, Congress enacted the National Labor Relations Act (NLRA) to create equality of bargaining power between employees and employers. Congress made it clear that, just as employers form corporations and partnerships, employees must have the equal right to form collective organisations. Without equality of bargaining power, employers could depress employees’ wages and purchasing power, which had led to economic depressions and recessions. Congress stated that this inequality must end. That insight led Congress to enact the NLRA to equalise bargaining power in order to restore prosperity to the United States. Giving workers the right to form unions and act collectively created balance between workers and employers. For the next forty years, workers and employers shared prosperity created by their rising productivity. In the early 1980s, a precipitous decline in unionisation was accompanied by a significant recession. Beginning in 2007, the Great Recession was the most serious economic crisis since the Great Depression. In spite of these economic downturns, unionised workers still earn higher wages and benefits than non-union workers, but real wages have not grown since that time despite increased productivity and periods of economic growth. The rich have gotten richer, but workers have not shared in that prosperity. What changed? Why was the NLRA through the 1930s into the 1960s a powerful law that helped lift people out of poverty, but subsequently unable to stem the tide of falling unionisation and inequality of bargaining power? The answer is that American judges created ‘Judicial Amendments’ to the NLRA. In the United States, judges are not supposed to create laws. That is the role of legislators and the executive branch. A judge that usurps the law takes a lawless path. In 1939, Osmund Fraenkel, former general counsel of the American Civil Liberties Union (ACLU) said, ‘courts have often struck down laws designed to aid labour, by conservative construction of the constitution and have emasculated them by interpretation. The most useful weapon in their varied armoury has been the doctrine that the legislature intended merely to enact the law as it had already been handed down by the courts. As if the labour pains of law-making were readily undergone for any such futile purpose’. In taking the role of legislators, the courts pervasively undermined the NLRA and the body that enforces it, the National Labor Relations Board (NLRB). These amendments undercut the very purpose of the law by giving more power to employers and less to workers, speeding the decline of unions in the United States. Achieving The NLRA’s Goals The NLRA declares its goals as protecting workers’ full freedom of association, selforganisation , and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or ‘other mutual aid or protection’, and encouraging collective bargaining. Section 7 identifies employee rights to organise, form, join, or assist unions, to choose bargaining representatives, and to bargain collectively or to abstain. The law prohibits discrimination and coercion of employees who exercise their Section 7 rights to bargain collectively in good faith once employees have selected a union to represent them. Section 10(c) gives the NLRB power to issue orders to cease unlawful activity and to take remedial action, including reinstating employees and providing back pay. While the law provides clear and meaningful direction regarding what is protected and what is unlawful, judicial amendments have weakened the law. The changes in the law now strengthen employers while disempowering unions, permitting employers to frustrate equality of bargaining power. In addition, judicial amendments now limit remedies, allowing employers to violate the Act with impunity. The Pernicious Role of Bargaining Impasses The NLRA was supposed to give workers represented by unions a say in negotiating working conditions and replace unilateral employer control with bilateral determination through collective bargaining. To make certain that employers understood that they no longer had the right to make unilateral decisions, the NLRA defined the obligation to bargain collectively in Section 8(d). The duty to bargain means the duty to ‘meet at reasonable times and confer in good faith with respect to wages, hours, and other terms...

Inside the “Constitutional Revolution” of 1937

The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Recently, however, a remarkably instructive set of primary sources has become available. For many years, the docket books kept by a number of the Hughes Court justices have been held by the Office of the Curator of the Supreme Court. These docket books supply a wealth of information concerning the internal deliberations of the justices. Justice Pierce Butler’s docket book in particular provides a remarkably rich set of notes on the Court’s discussions of cases in conference. Yet the existence of these docket books was not widely known, and access to them was highly restricted. As a consequence scholars knew very little about the Court’s internal deliberations in the landmark cases of its 1936 October Term. This article, which is based upon a review of all of the surviving docket books from that Term, considers what those sources can teach us about the cases comprising what some have called the “switch-in-time”: West Coast Hotel Co v Parrish, which upheld Washington State’s minimum wage law for women and overruled Adkins v Children’s Hospital; the Labor Board Cases, which upheld the constitutionality of the National Labor Relations Act; and the Social Security Cases, which upheld the constitutionality of provisions of the Social Security Act establishing an old-age pension system and a federal-state cooperative plan of unemployment insurance, as well as corresponding state unemployment compensation statutes. Considered in concert with information previously known, the data revealed by these docket books shed considerable new light on the nature of the Court’s deliberations in each of these three sets of cases, on the reasons for its decisions, and on the contention that the justices wrought a “Constitutional Revolution” in the spring of 1937.