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collective bargaining

January 11, 2013
The Future of the National Labor Relations Act?
Guest Post

by Ellen Dannin. She is the author of Taking Back the Workers’ Law - How to Fight the Assault on Labor Rights (Cornell University Press) and the Fannie Weiss Distinguished Faculty Scholar and Professor of Law at Penn State Dickinson School of Law.

Through the decades, many proposals have been made to replace, repeal, or amend the National Labor Relations Act. Most have foundered for good reason. Amending the NLRA requires applying the precautionary principle – first, do no harm.

In the case of the NLRA, proposed amendments should be justified by showing that a change will promote the NLRA’s purposes and policies. The ultimate policy is to restore equality of bargaining power between employers and employees by “encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, 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.” The basic goal was to balance the power corporation and partnership law gave employers to become collective with a law that gave employees the right to take collective action to improve working conditions.

The standard to measure the value of proposals to change the NLRA is not whether the change would increase the number of union members – although that certainly matters. It is whether the change would increase employee bargaining power. The purpose of increasing employee bargaining power was to improve the quality of work, and, ultimately, promote a fairer, more prosperous, more democratic society.

Congress was impelled to pass the NLRA because the increase in power employers had, as a result of corporation and partnership laws, so skewed power toward employers that wages and working conditions had spiraled down and led to economic collapse.

We have seen similar dynamics during the Great Recession with attacks on employee working conditions, and especially attacks on public sector employee wages and benefits – as well as through privatization. The ferocity of those attacks in recent years and the low percentage of union members raise concerns that the spiraling down of working conditions will lead to economic disaster. Desperate times seem to call for desperate measures.

However, these days, most people have little to no first-hand knowledge of how the National Labor Relations Board operates or of the purpose of the law. Here, then, is a brief NLRA / NLRB primer.

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Supreme Court, Labor law, Economic, Workplace and Environment Regulation, collective bargaining, EEOC, Guest Post, National Labor Relations Act, National Labor Relations Board, NLRA, NLRA rights, NLRB, NLRB elections, Professor Ellen Dannin, unfair labor practices, union power, workers' rights
September 21, 2012
Workers’ Rights to be Tested in Michigan
Guest Post
By J. Chris Sanders, General Counsel, United Food & Commercial Workers Union Local 227

Michigan voters will have the opportunity to defeat so-called “right-to-work”in November, and ensure that Michigan workers will have constitutional rights on the job far above current federal law.

What is "right-to-work"? In short, big trouble for working people, a law that, as Martin Luther King said, guarantees neither rights nor work.

A little background: Right-to-work is a provision in the National Labor Relations Act. The trouble comes from the NLRA's weak constitutional underpinning. The NLRA is founded upon the U.S. Constitution's Commerce Clause, affording the federal government the power to enact statutes and take other actions to regulate commerce. Unlike many countries, U.S. labor rights to organize and bargain collectively are not deemed fundamental. In other countries, these rights are founded upon those of freedom of speech, association, and assembly, but not in the U.S. Here, it's just about commerce, meaning business.

Right-to-work is all about business. The federal NLRA permits states to enact laws that keep unions weak and wages low. It requires labor unions, which are membership organizations, to bargain for and represent employees who choose not to be members for free, thereby weakening those unions and driving down wages.

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Labor law, Economic, Workplace and Environment Regulation, collective bargaining, Gov. Rick Snyder, Guest Post, J. Chris Sanders, Michigan, National Labor Relations Board, NLRB, righ to work, workers' rights
June 25, 2012
Labor Loses Again: Knox v. SEIU
Guest Post

By Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service at George Washington University Law School.*

The issue before the Supreme Court in Knox v. SEIU, decided June 21, 2012, was what procedures the union had to follow in order to allow non-members, who are required by law to support the union’s collective bargaining activities, to object to a special assessment that was going to be used in large part for political and other advocacy work that non-members claim they had a right not to support with their money.

To know what side Justice Samuel Alito and his four colleagues were going to take, a reader only had to go to page 3 where he discusses the budget battle in California that prompted the special assessment that was challenged in Knox. He describes the debate “and in particular the consequences of growing compensation for public employees backed by powerful public sector unions” like SEIU (emphasis added). If the issue is whether a “powerful” public-sector union or dissenting individuals will prevail, the smart money would not be on the union.

The conclusion that the union had to do more than it did was supported by seven Justices, and thus a ruling against it would not have been particularly noteworthy on its own. But the holding of the majority and how it got there are quite remarkable. First a little background. It is now an accepted part of labor law that, except in so-called right-to-work states, individuals who are not union members must pay their share of the costs of collective bargaining that results in contracts that benefit them as well as union members. But the Supreme Court has ruled that not every dollar that a union collects from its members as dues is properly attributable to collective bargaining, and over the years a system has developed under which non-members can object to paying those additional amounts. Thus, each year non-members have a right to opt-out and pay less than members pay, without having to give any reason for doing so, with the amount based on a formula derived from last year’s audited union expenses. Knox involved a special assessment, rather than a regular payment, and the issue was what were the rights of the would-be dissenters in that situation, where there was at least the possibility that some of those who did not dissent from the annual payment, might want to opt-out of the special assessment.

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Supreme Court, Labor law, Economic, Workplace and Environment Regulation, First Amendment, Alan Morrison, collective bargaining, Guest Post, SEIU
November 9, 2011
Election Results Show Little Support for Right-Wing Policy
by Jeremy Leaming

Right-wing policymakers triumphed impressively last year taking control of many statehouses from coast to coast. Many of those lawmakers were ushered into office backed by Tea Party fervor, and lots of money from the likes of Charles and David Koch, the billionaire brothers, who head Koch Industries and espouse efforts to radically constrain government.

A year after their sweeping victories, however, some of their most outrageous policies were shelved by large numbers of voters last night.

The frontal assault on public sector workers in Ohio, as noted by the Plain Dealer, was squashed by voters, 61 percent to 39 percent. In a guest post for ACSblog, Ohio State University law school professor Dan Tokaji noted that SB 5, which gutted collective bargaining rights of public workers, was a “center of Governor Kasich’s first year in office.” Tokaji said the defeat of the anti-workers’ rights law was not only a major setback to the Republican governor, but also has ramifications outside the Buckeye state. If the law would have survived, Tokaji said it would have dealt a “crippling blow to organized labor, drastically curtailing its political influence.”

Mississippi provided a mixed bag, defeating a radical anti-abortion measure, but supporting a stringent new voter registration law. As noted by The New York Times, perhaps one of the night’s “biggest surprises” was the state’s rejection of a proposed constitutional amendment that would grant legal rights to embryos, effectively outlawing abortion and other forms of birth control in the state. That policy was advocated by a Religious Right group called Personhood USA, which says it is pushing similar measures all over the country, and doing so, in part, “to glorify Jesus Christ in a way that creates a culture of life so that all innocent human lives are protected by love and by law.”

Following defeat of the measure, Keith Ashley in a blog post for Personhood USA said the group understands the difficulty of “changing a culture,” and that it vows “to continue on this path towards affirming the basic dignity and human rights of all people ….”

Nancy Northup, president and CEO of the Center of Reproductive Rights, hailed the defeat of the Personhood Amendment, saying in a press statement, “Outlawing medical services commonly used and relied upon by Americans in their personal lives runs completely counter to the U.S. Constitution, not to mention some of our most deeply held American political traditions and values.”

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Campaign finance, Voting rights, Labor law, Immigration, Democracy and Voting, Advancement Project, anti-abortion, Brave New Foundation, Citizens United v. FEC, collective bargaining, Free Speech For People, Gov. John Kasich, Jeff Clements, NAACP, Nancy Northrup, Personhood USA, Professor Dan Tokaji, SB 5
November 8, 2011
Why Ohio's Vote Matters
Guest Post
By Dan Tokaji, the Robert M. Duncan/Jones Day Designated Professor in Law, Ohio State University, Moritz College of Law. Tokaji is also a member of the ACS Board.

On Tuesday, Ohio voters rejected Issue 2, a measure that would have sharply limited the collective bargaining rights of public-sector employees. The outcome of this measure is significant for workers’ rights. But its greatest importance lies in its significance for the balance of political power, not just in Ohio but across the country.

Issue 2 was a ballot referendum asking voters for a thumbs-up or thumbs-down vote on SB 5, a statute passed by the state legislature and signed by Governor John Kasich. At the start of his administration, Governor Kasich took a very aggressive posture, memorably warning people to “get on the bus, or we’re going to run you over.”

SB 5 became the centerpiece of Governor Kasich’s first year in office. The law was advertised as a way of cutting government expenses and creating a more business-friendly environment for private-sector employers. It was supported by most Republicans and opposed by Democrats in the state legislature.

Without getting too deeply into the details of this long and complex statute, suffice it to say that SB 5/Issue 2 would have significantly weakened public-sector labor unions – including those representing police officers, firefighters, teachers, and many other local and state employees. Not surprisingly, this change engendered fierce opposition from organized labor. Opponents collected enough signatures to put the law to a vote of the people as the state constitution allows.

Unquestionably, the defeat of Issue 2 is a black eye for Governor Kasich. The consequences of Issue 2’s defeat, however, go well beyond Ohio’s borders.

To see why, it’s helpful to consider what would have happened if Issue 2 had succeeded. The measure would have dealt a crippling blow to organized labor, drastically curtailing its political influence. This is especially significant in our post -- Citizens United world, in which there are effectively no limits on corporate campaign expenditures. In this world, the only counterbalancing force to corporate political influence – at least the only one with enough money to make a major impact – is organized labor.

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Democracy and Voting, collective bargaining, Gov. John Kasich, Guest Post, Issue 2, Labor, Ohio vote, Professor Dan Tokaji, SB 5, workers' rights

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