National Labor Relations Act Research Articles

Focus: The Importance of Labour Speech

12 | International Union Rights | 24/3 FOCUS | FREEDOM OF EXPRESSION For seventy years it has been the goal of national labour policy to overcome the ‘inequality of bargaining power between employees… and employers… by encouraging the practice and procedures of collective bargaining’. Collective bargaining means the ability of workers to join together to negotiate with their employers over wages and working conditions. When workers stand together (i.e. in a union) they have more bargaining power, and that bargaining power gives them a say at work. Not surprisingly, data show that where collective bargaining has been instituted, it has improved wages, with workers earning on average 13.6 percent more when covered by a collective bargaining contract. In our era of increasing inequality, that kind of wage premium makes a real difference in the lives of struggling low- and middle-income families. For many men and women struggling to get by and to provide their children a better life, collective bargaining can open a door to the American Dream. And for that and many other reasons, survey after survey shows that American workers would like to have the say at work that collective bargaining provides. However, for collective bargaining to take place workers must be able to organise. Organising is the central necessary task of America’s unions. But it has never been easy. Despite the basic procollective -bargaining policy of national law, employers, backed by teams of lawyers and labour consultants, have consistently, and in the main, successfully, resisted organising efforts. Among their powerful weapons have been lawsuits seeking damages and injunctions based on union organising statements and materials. For national labour policy to become reality, courts must recognise the importance of labour speech in organising and strikes. Speaking out Both the US Constitution and the National Labor Relations Act (NLRA) strongly support the right of workers and unions to speak out concerning their wages and working conditions in pursuit of organising or collective bargaining. As the Supreme Court stated in its 1940 decision in Thornhill v Alabama, ‘the dissemination of information concerning the fact of a labor dispute [is] within that area of free discussion that is guaranteed by the Constitution’1. The Thornhill opinion has been regularly cited and its significance broadened since it was first issued. It is also well settled that Section 7 of the NLRA, which grants workers the right to ‘engage in ... concerted activity ... for the purpose of collective bargaining or other mutual aid or protection’, covers and protects a wide variety of speech in the organising context. It is not necessary that speech be courteous, accurate, or reasonable for it to be protected. Indeed, the Supreme Court has recognised that epithets such as ‘scab’, ‘unfair’, and ‘liar’ are commonplace in labour disputes and entitled to protection, even when such heated rhetoric is not entirely accurate. It is also true that because of the legal doctrine known as Federal Preemption, speech or conduct actually or even arguably protected by the NLRA is generally not subject to the jurisdiction of state courts. State judges are often ignorant of federal labour law and antagonistic to its goals. As stated by Justice Frankfurter, ‘to allow the states to control conduct which is the subject of national regulation would create potential frustration of national purposes’2. But the Court significantly modified Justice Frankfurter’s announced policy in Linn v. Plant Guard Workers3. The Court in Linn upheld by a five to four vote the exercise of state jurisdiction in a libel suit arising from a union organising drive. Justice Clark, who wrote the majority opinion, insisted that such jurisdiction would not pose a threat to a union’s right of speech so long as state jurisdiction was ‘limited to redressing libel issued with knowledge of its falsity, or with reckless disregard of whether it was true of false’. Although he recognised the importance of a broad right of speech generally in labour disputes, Justice Clark concluded that where malice was found ‘the exercise of state jurisdiction … would be a “merely peripheral concern of the Labor Management Relations Act”‘. Four justices dissented. They pointed out that the Court’s standard was vague and could easily be interpreted to...

The Impact of Pacific Lutheran on Collective Bargaining at Catholic Colleges and Universities

In 1979, the Supreme Court found that teachers at a Catholic parochial school were exempt from the National Labor Relations Act (NLRA) because of First Amendment religious infringement risks. Subsequently, the National Labor Relations Board (NLRB) has faced controversy over its efforts to delineate an appropriate test for the religious exemption in the higher education context. This uncertainty over the NLRB’s test has resulted in time-consuming litigation and hampered faculty’s ability to organize at schools where Board jurisdiction would not present a significant risk of First Amendment infringement. This paper argues that the Board’s recent decision in Pacific Lutheran University will bring much-needed stability in this area of the law because the new religious exemption test is carefully crafted to protect both constitutional and statutory interests. More faculty will be able to exercise their right to organize, and this wider experience with collective bargaining within Catholic colleges universities will reveal how speculative the constitutional entanglement risks actually are under the NLRA.

Reorganizing Labor

The National Labor Relations Act (NLRA) of 1935 was intended to end a fifty-year-long era of court-enforced union repression and the disruptive and often violent responses it provoked from both workers and management. Regulating industrial relations, the argument went—licensing unions and settling employment disputes with binding arbitration—would restrain the force of class conflict with the reason of corporatist responsibility. “The door of a court of equity,” wrote federal judge Robert Wagner in a 1921 case enjoining a business to abide by a union contract, “is open to employer and employee alike.”

Ending a Century of Violent Labor Conflict: A New Perspective on Unionization and the National Labor Relations Act

Open access to labor organizations lagged nearly a century behind open access to business organizations, arising as part of the New Deal in the mid-1930s. During the century previous to the New Deal, firms and governments actively suppressed labor organization, frequently resorting to violence. Conflict and violence ended with the National Labor Relations Act (NLRA) of 1935. Why did the violence associated with labor last for a century? What did the NLRA do to solve this problem, and why couldn’t Congress have done so earlier? In this paper, we develop a new perspective on labor organization and violence that addresses these questions. We argue that the century-long violence surrounding labor resulted from an inability to solve a series of commitment problems. All three parties to the violence – labor, business, and government – faced commitment problems. We show that the NLRA succeeded because it finally solved the commitment problems underlying the century of labor violence.

Collective Actions and Joinder of Parties in Arbitration: Implications of DR Horton and Concepcion

Well over a century ago, legal and policy analysts realized that the days of purely individual action in matters of business and labor were over, and that legal rules must adapt to the social and economic power of large corporations. Among the rules that changed were archaic limitations on joinder of claims and parties in litigation and laissez faire “liberty of contract” doctrines invalidating labor legislation. Recently, lawyers representing large corporate employers have urged a revival of old rules limiting class actions and labor rights. But, as this Article will show, it is not at all clear that their clients will benefit from the legal regime the lawyers have created. As long as employers have large workforces working under uniform policies, they will face dozens or hundreds of similar claims challenging pay practices, discrimination, and harassment. Group adjudication arose to address efficiently the many similar claims that arise when large institutions adopt uniform policies. Individual arbitration of such claims may result in fewer claims being filed, especially if confidentiality provisions keep co-workers from learning from each other about how to assert successful claims. But unless or until employers figure out a way to shift all the costs of dispute resolution onto the claimaints (and thus far courts have resisted such efforts), and to silence all claimants and their lawyers, employers will face many similar claims, will be paying part or all of the costs of lots of identical arbitrations, and will be paying lawyers to handle them separately rather than on a classwide basis.The National Labor Relations Act (NLRA) protects the right of employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The National Labor Relations Board (“the Board”) has long held that protected activity includes asserting claims in courts, agencies, and in arbitration. In D.R. Horton, the Board found the NLRA to prohibit enforcement of an employer-imposed requirement that employees waive their right to bring a collective action challenging their working conditions. On petition for review, a divided panel of the United States Court of Appeals for the Fifth Circuit rejected the Board’s determination, holding that the Federal Arbitration Act (FAA) requires enforcement of the mandatory arbitration agreement, including its class action waiver.This Article explains why collective action waivers or requirements to arbitrate individually are unenforceable under the National Labor Relations Act and the Norris LaGuardia Act. The Article also explains why arbitration agreements requiring claims to be brought by individuals are not covered by the Supreme Court’s reasoning in Concepcion and Italian Colors to the extent they prohibit joinder of fewer parties than would be required to bring a large class action and, therefore, remain protected by labor law. The Article notes the inconsistency in the FAA cases about whether agreements can waive the right to file charges with some agencies and courts rather than others and therefore critiques the Fifth Circuit’s ruling that the FAA trumps the employees’ rights under NLRA sections 7 and 8(a)(1) to file group actions in court or arbitration but does not trump section 8(a)(4), which protects the right to file unfair labor practice charges. Finally, the Article raises some questions about the practical wisdom of the courts’ willingness to allow employers to require employees to pursue claims only as individuals. State and federal courts universally allow liberal joinder of plaintiffs and defendants because it is more efficient and avoids some truly thorny issues about the preclusive effect of judgments. The Fifth Circuit majority’s assumption, like the Supreme Court majority’s in Concepcion, that individual determination of claims is better suited to arbitration is simply wrong in many cases. Unless employers can opt out of the usual rules for the binding effects of judgments and the usual rules for joinder of claims and parties, the notion that individual arbitration is superior for everyone (including employers) is simply wrong.

Repurposing American Labor Law

The National Labor Relations Act (NLRA) of 1935 has been widely portrayed as an anachronistic piece of legislation that needs to be reformed or abandoned. In the absence of reform, many US labor unions try to avoid the NLRA process altogether by organizing workers outside the confines of the law. But Somos un Pueblo Unido, or “Somos,” a worker center in New Mexico, has been using a novel interpretation of the NLRA less to boost union density than to develop an alternative to contract unionism. By helping nonunionized workers use Section 7 of the NLRA to act concertedly in their own defense, I argue, Somos is combating employer abuse, in the short run, and demonstrating that worker centers and their memberships may be transforming the US labor movement, in the long run. Their experiences illustrate the ability of organizations to redeploy existing institutional resources with potentially transformative results.

NLRA Values, Labor Values, American Values

The National Labor Relations Act (NLRA) was drafted to be far more than a technocratic exercise. The NLRA's policies do play the role - or should play the role - of any legislative policy: providing guidance in interpreting and applying the law. However, the important social, justice, and economic values expressed in - and underpinning - the NLRA's policies found in sections 1, 2(3), 7, and 13 means the policies also provide a means for transforming the fundamental values of this country. My book, Taking Back the Workers' Law, presents a comprehensive program for using the NLRA's policies - and its values - as part of a litigation strategy to restore its power to promote worker collective action. But, more important, it emphasizes that enforcing the law is but one part of a broader educational and litigation strategy to create a more just and democratic society. In other words, Taking Back the Workers' Law is more than a manual for smart litigation. Its basic premise is that unions cannot survive - and certainly cannot thrive - in a country whose core values are inhospitable to the essence of what unions as worker representatives are and do. Taking Back the Workers' Law urges taking a fresh look at the NLRA, seeing it as the Workers' Law with a potential for reinvigorating the labor movement and saving the soul of this country. That potential springs from the NLRA's policies - not as a list of simple statements of purpose, but, rather, as mapping to values of industrial and social democracy, solidarity, social and economic justice, fair wages and working conditions, equality, and industrial and social peace. The NLRA itself and its policies embody values that were intended to, and still can, transform our workplaces and our society.

No Rights without a Remedy: The Long Struggle for Effective National Labor Relation Act Remedies

Human Rights Watch and others have criticized the National Labor Relations Act (NLRA) for having remedies so weak they fail to enforce the law and to protect employees. This issue is not new. In fact, there was a hard fought struggle over NLRA remedies during its drafting and, once it became law, in the courts. The struggle over remedies continues today. In September and December 2010, Acting National Labor Relations Board (NLRB) General Counsel Lafe Solomon took up that challenge by building upon prior General Counsels‘ initiatives seeking to strengthen NLRA remedies. In late 2010, Solomon issued memoranda ordering Regional Offices to seek effective remedies for employer violations that affected employees‘ rights to union representation. In early 2011, Solomon issued three new memoranda concerning remedies in first contract bargaining cases, new methods for calculating backpay remedies to better effectuate the NLRA‘s remedial purposes, and changes to the process of deciding whether the amount of backpay should be reduced because of a failure to mitigate damages.

The Echoes of Slavery: Recognizing the Racist Origins of the Agricultural and Domestic Worker Exclusion from the National Labor Relations Act

During the New Deal era, the exclusion of agricultural and domestic employees was well-understood as a race-neutral proxy for excluding blacks from statutory benefits and protections made available to most whites. Remarkably, one of these New Deal era exclusions remains on the books. Despite its racist origins, Section 152(3) of the National Labor Relations Act (NLRA) still excludes agricultural and domestic workers, completely unaltered after 75 years.This article demonstrates why the NLRA’s agricultural and domestic worker exclusion should be considered a racially discriminatory statute motivated by racial animus. Although most historians have concluded correctly that the exclusion was a concession to southern racism, legal scholars have thus far not reached this conclusion. It is crucial that this law be identified correctly as racist and unjust to provide a rationale for its abolition and to remedy, finally, the ongoing injury it continues to cause to millions of agricultural and domestic workers. A review of the social and political context of the New Deal and the deployment of the same exclusion in related statutes, such as the Social Security Act and the Fair Labor Standards Act, shows how and why the NLRA’s exclusion should be deemed racially discriminatory.Having established that the statute is racially discriminatory, this article makes the case for why Section 152(3) should be considered unconstitutional or repealed. While historical evidence permits us to strip away the law’s race-neutral aura, this article demonstrates how current constitutional standards make the invalidation of such a law difficult. The requirement of proof of discriminatory intent makes it difficult to prove that a racially discriminatory law violates the Equal Protection Clause. While this difficulty is not insurmountable, it raises the troubling possibility that a manifestly racist law might not be found unconstitutional. To ensure that such racism is not perpetuated, the article also explores a strategy favoring legislative repeal of the law.

Imagine a World Where Employers are Required To Bargain with Minority Unions

Under section 7 of the National Labor Relations Act (NLRA), employees are entitled “to bargain collectively through representatives of their own choosing.” Yet union organizing efforts often fail before employees have a chance to vote, at the ballot box, or in subsequent litigation. For decades, scholars and union-side lawyers explained the gap between employee desire for unionization and declining rates of unionization by hypothesizing that employers are able to coerce, intimidate, or persuade employees to abandon their support for unions. Conversely, employer advocates insist that employees do not wish to unionize, that unions are the ones that are guilty of intimidation and coercion during the organizing process, and that unions do not adequately represent the interests of all employees once they establish a bargaining relationship. One way to test these competing hypotheses is to eliminate the long organizing process and allow only those employees who support a union to bargain collectively, leaving other employees free from union representation. This is known as members-only or minority unionism.The law currently allows members-only representation. The question we consider is whether the NLRA may be read to require an employer to negotiate with a union only on behalf of those who join it. Imposing a duty to bargain with a minority union would be a significant change in federal labor law. After exploring current members-only bargaining proposals, this article assesses the advantages and risks of members-only bargaining. We begin with a brief analysis of statutory language and legislative history. We note that cases interpreting the NLRA, especially recent cases, offer only weak support for members-only bargaining. However, as we explain, we find nothing determinative one way or another on the proper interpretation of the NLRA. Because legislative change to the NLRA is unlikely until either the Democratic or the Republican Party controls both houses of Congress, more than sixty seats in the Senate, and the White House, we believe that any change must come from the NLRB. Thus, we believe that prior interpretations of the NLRA by the Board or the courts should be of less interest in the debate than what the statute should be read to say. In Part III, we turn to the heart of our argument, which examines the implications of members-only bargaining. We consider its impact for organizing campaigns (they would become less significant), for unions (they would need actively to seek support from members on an ongoing basis, rather than just at the time of a certification election), for employer-employee relations, and for relations among employees. Requiring members-only bargaining would allow those employees who wish it the benefits of collective representation. It could permit employees to preview the effectiveness of every potential union before electing a representative, thereby empowering employees to exercise their section 7 rights more intelligently. However, it could also permit employers to utilize interunion competition to undermine collective bargaining, thus making full protection of section 7 rights more difficult. We conclude that it is difficult to predict whether the benefits of members-only bargaining would outweigh the costs. We suggest that, at minimum, the NLRB should commence a rulemaking proceeding in order to obtain full and fair input and thorough study of these costs and benefits.

The Human Rights Movement at U.S. Workplaces: Challenges and Changes

The concept of workers' rights as human rights has only recently begun to influence the formation and implementation of labor policy in the United States. In the workplace, the growing human rights movement challenges long-held beliefs and practices in labor relations. The author explores this issue and its implications for U.S. labor policy and practice, focusing specifically on individual versus collective rights, exclusive representation, coverage of the National Labor Relations Act (NLRA), employer resistance to workers' freedom of association, the right to strike, the statutory purposes of the NLRA, and the underpinnings of the traditional U.S. industrial relations system. These challenges also affect U.S. legal isolationism, the role of labor unions, the status and implementation of economic as well as civil and political rights, and the U.S. labor and employment relations research agenda.

Employee Free Choice: Amplifying Employee Voice without Silencing Employers - A Proposal for Reforming the National Labor Relations Act

This Note investigates the effectiveness of the National Labor Relations Act (NLRA) in balancing unions, employers', and employees' rights during the course of union organizing drives. After reviewing case law and commentary, it concludes that the NLRA's certification regime is ineffective and permits pressures that inhibit employees from expressing their real desires about whether or not to be represented by a union. This Note then examines proposed alternatives for certifying unions, and takes note of Canada's federal and ten provincial certification regimes. Finally, it concludes that the NLRA must be amended to protect worker free choice, and proposes reforms including limiting unions to a public sixty-day organizing campaign, designing a uniform authorization card to be submitted with a fee by employees desiring union representation, and establishing a verification process for these cards.

When Does Delegating Make You a Supervisor?

An important aspect of the professional nurse role is that of delegating certain activities to others. In 1935 the United States (U.S.) Congress enacted the National Labor Relations Act (NLRA), and the associated National Labor Relations Board (NLRB), to protect the rights of employees and employers and to encourage collective bargaining in industrial settings. In 1947 the Act was amended to exclude supervisors from the definition of “employees” for the purposes of collective bargaining. In 1974 Congress provided for collective bargaining for various professional personnel, including staff nurses in all work settings. Nursing supervisors, because they were supervisors, were excluded from collective bargaining. Over subsequent years the definition of a nursing supervisor has been debated in courts of law. These debates have implications for nurses who practice in agencies that have collective bargaining units. This article considers the NLRA and NLRB activities related to delegation in nursing by reviewing the history of the NLRA and NLRB; defining key terms; presenting the various interpretations, rulings, and decisions of the NLRB; and providing a summary of recent decisions related to workplace supervisory practices. Delegation-related activities of the U.S. Executive Branch and activities of professional nursing organizations are described. Nursing implications of these laws, rulings, and interpretations are addressed.

District Court Amicus Brief of Law Professors in Support of Defendants, Associated Oregon Industries v. Avakian, No. 3:09-CV-1494-MO

Amici curiae law professors filed this brief to urge the United States District Court for the District of Oregon to deny Plaintiffs' summary judgment motion. That motion argues that SB 519, Oregon state legislation that prohibits employers from firing workers who refuse to attend captive audience meetings about the employer's political, religious, or union views, is invalid as preempted by the National Labor Relations Act (NLRA) and inconsistent with the First Amendment of the federal Constitution. This brief argues that a finding of NLRA preemption in this case would be both inconsistent with Congress’ purposes in enacting the NLRA and with principles of federalism which give the states and federal government shared authority over the employment relationship. Traditional areas of state concern are within the states' power to regulate and, therefore, not within the scope of NLRA preemption. There are two sources of applicable authority here: (1) the state can place property restrictions on the bundle of property rights that the state grants to its property owners and (2) the state can provide for minimum conditions in the workplace under its police powers. Employers in Oregon are still able to communicate their views about unionization with their employees as Section 8(c) of the NLRA contemplates, but are forbidden from engaging in conduct that forces these same employees to listen to such presentations on pain of losing their jobs or other benefits of employment. The right to speech simply does not include the right to compel someone to listen. Not under the First Amendment and certainly not under statutory law. In short, amici law professors maintain that the Court should find that Oregon had the inherent power to enact SB 519 and such promulgation is consistent with the reach and purposes of the NLRA and with principles of federalism.

Worker Unity and the Law: A Comparative Analysis of the National Labor Relations Act and the Fair Labor Standards Act, and the Hope for the NLRA's Future

This Note demonstrates how Congress and the courts have severely limited the original intention of the National Labor Relations Act (NLRA) because of concerns that the Act potentially disrupts fundamental power dynamics in the market economy by allowing workers to collectively take control away from business. On the other hand, business interests have not viewed the Fair Labor Standards Act (FLSA) as equally threatening because the FLSA does not seek to modify the workplace power imbalance. Congress has left the FLSA relatively intact, even expanding its worker protections over the years, and courts have interpreted its worker protections relatively liberally when compared to their treatment of the NLRA. The Note begins by reviewing the legislative and social histories of both Acts, as well as subsequent modifications to the Acts. It also contrasts adjudicatory interpretations of the NLRA and the FLSA, revealing how the NLRA has been reduced in its application and has been used to divide workers, while the FLSA and its individual rights regime have been comparatively expanded in application. Specifically, this Note examines the courts’ and the NLRB’s recent trend of denying NLRA remedies to undocumented workers and of reducing the categories of employers and associated entities liable for NLRA violations. Meanwhile, courts approve FLSA remedies regardless of immigration status and have expanded the application of the joint employer doctrine, ensuring that even indirect employers are held liable for FLSA violations. The Note then concludes with an argument that, despite calls from scholars and labor leaders to scrap the NLRA and the NLRB, important worker victories are still possible under the NLRA; therefore it and the NLRB should be preserved. In addition to looking for ways to modify the NLRA, worker advocates should think creatively and look for windows of opportunity that still exist under the Act. There is still hope that the NLRA can fulfill Congress’ original intent of encouraging concerted worker activity and collective bargaining.

Introduction to Symposium on “The Future of US Labor Law”

Dating back to at least the mid-1970s, many labor relations/labor law scholars, union officials and union activists have increasingly criticized the inadequacies of US labor law in protecting employees’ rights to participate in collective action. These parties have argued that the original intent of the 1935 National Labor Relations Act (NLRA), also popularly known as the Wagner Act, has been subverted by the Act’s amendments, as well as by a National Labor Relations Board that has been ineffective in preventing the occurrence of illegal employer activities which has successfully discouraged employees from organizing unions and engaging in collective bargaining. The Labor Reform Act of 1977, which, if passed, would have imposed punitive penalties on employers who committed such unfair labor practices, was filibustered to death in the US Senate. With Barack Obama’s election to the US presidency in 2008, many unions and labor activists believe that the time is right for launching a major drive to reform US labor legislation through the passage of the Employee Free Choice Act (EFCA), a law which would make it easier for employees to organize unions. Writing in February 2009, the future of EFCA has yet to be determined although Republican Party legislators appear committed to mobilizing all of their resources to ensure the bill’s defeat. Regardless of what happens to EFCA, at the end of the twenty-first century’s first decade, an examination of the future of US labor law is merited due to the political and economic changes that have occurred in the US since the passage of the landmark NLRA nearly 75 years ago. This symposium contains essays by three of the most distinguished labor law scholars in the US as well as a short piece by an international management scholar. In the first essay, Theodore J. St. Antoine, James E. and Sarah A. Degan Professor Emeritus of Law at the University of Michigan Law School, argues that even if labor law reform is implemented in the US, the secret ballot should remain in effect, in some form, for union certification elections while compulsory arbitration should only be utilized in special cases. Additionally, antidiscrimination legislation should be expanded to include nonemployees while wrongful terminations should be proscribed. Ellen Dannin, Fannie Employ Respons Rights J (2009) 21:131–132 DOI 10.1007/s10672-009-9106-6

The Employee Free Choice Act

FOCUS □ LABOURLAWREFORMANDTHE ORGANISING AGENDA The Employee Free Choice Act Kellythe form Beringer, second a union largest a at veteran Resurrection hospital nurse, Health is system trying Care, to in form a unionat Resurrection HealthCare, the second largest hospital system in Chicago.Forthepastfiveyears,management at Resurrection has conducteda viciousanti-union campaignto stop its 10,000 employeesfrom freely joining thenationwide stateandmunicipal workers' union,AFSCME. Beringer knowsalltoowellwhatitfeelsliketo be on thereceiving end of an anti-union campaign .Shedescribes herexperience thisway: "Weare madeto feelliketraitors and disloyal whenwe talkaboutforming our union.Union newsletters and legislation updates have been removed from breakroomsand torndownfrom ourlockerrooms.We areconstantly toldwe are free tochoose,buthowisthis freedom ofchoice, whenwordslike'disloyal', 'extortionist' and 'negative 'areused to describe thoseofus who have madea pro-union choice? What messagedoesthis convey toother workers? How cansomeonepossiblymakea freechoiceunderanyofthesecircumstances ?" Since2003,Resurrection has settled 15unfair labourpractice charges filed byworkers withtheNational LaborRelations Board(NLRB) alleging interrogation, harassment, interference in organising activities andtheprohibition ofthedistribution of unionliterature. Yet thehealthcare workers there still haveno union. Undercurrent US labourlaw,workers seeking to forma unionmustgo through a protracted NLRBballot procedure,unless theiremployer agreestoa majority sign-up process, often called 'card-check recognition'. Undermajority sign-up, if51 percent ofworkers signcardsauthorising a representative to bargainon theirbehalf,they havea union.Butemployers suchas Resurrection aren'tlikely to agreeto themajority verification processbecauseitdoesn'tgivemanagement time to harassand intimidate workersas does the lengthy ballotprocess.As Beringer and hercoworkers know,theNLRBballotprocessisn'tfair: becausewhenworkers feartheymight lose their jobsifthey votetojoina union- orbelieveother Sen. Edward Kennedy speaking alongside AFL-CI0 President John Sweeney at Employee Free Choice Act rally, June 2007.©Bill Burke liesmanagement tellstofrighten them - there's a good chancethey won'tbacktheunion. IftheproposedEmployee FreeChoiceActwas law,employeessuchas Beringer couldhavethe optionof choosingto join a unionthrough the ballotprocessorthrough majority sign-up. Employee Free Choice Act The EmployeeFree Choice Act would enable workingpeople to bargainforbetterbenefits, wages and workingconditionsby restoring workers'freedomto choose for themselves whether tojoina union.Specifically, itwould: ■ Removecurrent obstaclesforemployees who wantcollective bargaining; H Guaranteethatworkers who can choose collectivebargaining are able to achievea contract; ■ Allowemployees toform unionsbysigning cardsauthorising unionrepresentation. The last point is criticalfor employeeslike Beringerand her co-workers.Currently, an employer candemanda company-controlled electionandworkers wouldhaveno sayinthematter. TheEmployee FreeChoiceActwouldrequire the NLRBto certify a bargaining representative withoutmandating an election ifa majority ofthebargaining unitemployees signedsuchcardsin the majority sign-up. Mostcritically, thechoicewould be up totheworkers, notmanagement. In short, theEmployeeFreeChoiceActwould guaranteeworkerstheirright to choose a bargainingrepresentative eitherthroughmajority sign-up ora ballotelection process.Itwouldthus givethechoiceofwhether tojoina uniontothe workers themselves insteadoftocompanies. Majority sign-upis not new. Since the US NationalLaborRelations Act(NLRA)was originallyenactedin 1935,ithasbeenlegalforworkersto form a unionwhena majority ofemployees in a bargaining unitsignscards indicating theirintent to be represented by theunionfor bargaining a contract withtheemployer to gain better wagesand benefits. US EmployerHarassment: OvertheTop In itsfirst AnnualSurvey ofViolations ofTrade Union Rights,the International Trade Union Confederation (ITUC) highlighted Resurrection's federallabour law violations.Those violations include'interfering with,and coercingemployees in the exercise of the rightsguaranteed' undertheNLRA.ButResurrection's intimidation and harassment of workersis not an isolated incidentin US workplaces.CornellUniversity scholarKate Bronfenbrenner studiedhundreds of organising campaignsand herfindings show thatamongprivate-sector employers: The Employee Free ChoiceAct would givethe choice ofwhether tojoin a unionto the workers themselves instead ofto companies RICHARD TRUMKA is Secretary-Treasurer of the AFL-CI0 in Washington Page 3 Volume 16Issue 2 2009 INTERNATIONAL union rights I giant Working front are Commerce Manufacturers Association the corporations bombarding Chamber and groups airwaves National through the and the US of of front groupsthe National Association of Manufacturers and the US Chamberof Commerceand giantcorporations are bombarding the airwaves ■ 78 percent forceemployees to attend one-onone meetings against theunionwiththeir ownsupervisors; ■ 51 percent threaten toclose theplantifthe unionwinstheNLRBelection; ■ 75 percent hireconsultants orunion-busters tohelpthemfight unionorganising drives; ■ Similarly, University ofIllinois-Chicago professorsChirag Mehtaand NikTheodorefound, intheir study ofNLRBunionrepresentation elections intheChicagoarea,thatin91 percentoforganising campaigns, employers forced workers to attend one-on-one, antiunionmeetings withsupervisors. But it gets worse. A studyreleasedin March showedthateverytimeworkers tryto exercise theirfreedom to forma union,there'sa better thanone-in-five chancea worker willbe illegally firedas a result.The studyby the Centerfor Economic andPolicy Research (CEPR)documents that inmorethanone-quarter ofunioncampaigns since2001,workers facedillegalfiring. By 2007, nearly 30 percent ofunionorganising campaigns resulted in at leastone illegalfiring. The study finds that pro-union workers werefired in26percentofunionelectioncampaigns between2001 and2007.The26percent rateisup from about16 percent inthelasthalfofthe1990s. The independent, non-partisan, international humanrights...

Understanding How Employees' Rights to Organize under the NLRA Have Been Limited: The Case of Brown University

The National Labor Relations Board's (NLRB's) 2004 Brown University decision held that graduate student teaching and research assistants were not employees, and therefore, were not protected by the National Labor Relations Act (NLRA). Deciding whether individuals are employees as defined by the NLRA is critical to labor law, as it determines whether individuals have a protected right to engage in freedom of association, self-organization, collective bargaining, and acts of mutual aid or protection. This article explains and critiques the Brown decision as a departure both from precedent as well as from the central purposes of the It also examines how Brown University foreshadowed other cases in which the Board would ignore precedent and the policies underlying the NLRA. The piece advises readers about the importance of precision in criticizing such decisions, because if that criticism is not targeted to the specific wrong, it can do damage. It further cautions that, while criticizing specific failures to enforce NLRA rights is essential, it is important to not wholly abandon the NLRA as a vehicle for protecting such rights, stating We must insist that the promise of the NLRA to actively promote freedom of association in order to create equality of bargaining power between employers and employees . . . is kept.

Wage Bargaining Under the National Labor Relations Act

Sections 8(a)(3) and 8(a)(5) of the National Labor Relations Act (NLRA) prohibit the management of a firm from unilaterally increasing the wage during contract negotiations without the union's approval. We show how the management can strategically increase the wage during negotiations without violating the NLRA. Increasing the wage during negotiations will upset the union's incentive to strike and decrease the union's bargaining power, thereby shrinking the set of equilibrium contracts in the firm's favor. Indeed, as the union becomes more patient, the set of equilibrium wages converges to the best equilibrium outcome to the firm.

Union Lawyers and Employment Law

A major challenge facing labor activists and scholars today, given the small percentage of the private sector workers who are union members, is to find a new role for unions in attaining decent working conditions for the vast majority of the American workforce that is not unionized. Many unions have launched major efforts to enforce employment law in nonunion workplaces where statutory violations are rampant. The lower the wages, the more likely that fundamental employment laws, including safety, wage and hour laws, will be violated. Low-wage employees are apt to lack the knowledge and the resources to enforce their rights, and there are too few government inspectors to ensure compliance in workplaces all over the country. The article examines the labor law, constitutional, and ethical implications of this important new union strategy. The National Labor Relations Act (NLRA) has been interpreted to prohibit employers and unions from conferring benefits on employees during the critical period prior to a union certification election. The provision of legal representation (except assistance in filing unfair labor practice charges with the National Labor Relations Board (NLRB)) has been deemed to be an unlawful pre-election benefit. Although the NLRB has insisted that the provision of such services is not an unlawful benefit nor grounds to set aside an election, the D.C. and Sixth Circuit courts of appeals disagreed and set aside elections. Because employers may seek review of any union election in the D.C. Circuit, no union can confidently provide pre-election legal representation. The article also shows that to prohibit unions from providing legal assistance to non-member employees in employment law matters while allowing them to do so for unfair labor practice charges is an unconstitutional content-based restriction on First Amendment activity. In addition, forcing employees to choose between exercising their right to union representation for collective bargaining and their right to union lawyers' representation for employment litigation impermissibly requires employees to sacrifice important First Amendment rights as a condition of obtaining an NLRB-sponsored election. Finally, the article also critiques recent cases holding that union lawyers cannot ethically represent non-union members. The article explores the relevant law on conflicts of interest and shows that unions' new effort to bring employment law litigation is consistent with the highest standards of professional ethics.