Professor Ellen Dannin

  • January 11, 2013
    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.

  • August 2, 2011

    by Jeremy Leaming

    A group of law professors and labor experts are bringing more attention to the ongoing efforts of House Republicans, and right-wing activists, to hobble the National Labor Relations Board (NLRB) and scuttle its complaint that Boeing violated a provision of the National Labor Relations Act (NLRA). The NLRB says Boeing violated federal law when it moved production of its 787 Dreamliner jet from its Washington State plant to South Carolina in retaliation against workers who had exercised their right to strike.

    As noted here, lawmakers in the House have also pushed a bill that would gut the NLRB’s ability to hold corporations accountable for trampling workers’ rights, and specifically nullify the complaint lodged against Boeing. That complaint is now being considered by an administrative law judge in Seattle. The judge tossed aside Boeing’s motion to dismiss the case in June.

    Rep. Darrell Issa (R-Calif.), chair of the House Oversight and Government Reform Committee, has also pressured the NLRB over its legal action against Boeing. The Hill reported last month on a letter Rep. Issa sent to NLRB Acting General Counsel Lafe Solomon requesting documents related to the case.

    Recently more than 30 legal and labor policy experts in a letter to Issa urged him to back off.

    “As national legal and labor policy experts, we are gravely concerned by the undue pressure that this letter, and its threats to compel disclosure of privileged documents, have placed on an independent law enforcement agency.

    “We are particularly concerned,” the professors’ letter continues, “because the documents at issue relate to a case currently being tried before an Administrative Law Judge in Seattle, Washington. We therefore strongly urge the Committee to let this case proceed according to the policies established in the National Labor Relations Act without further interference.”  

    The letter concludes, “In our view, independent federal law enforcers must be protected from undue interference by Congress. If the Committee continues to inappropriately interfere in this process, these serious charges of illegal behavior may never be properly adjudicated, thereby denying both parties the opportunity to tell their full story. Such a result would jeopardize our long-held democratic principles and respect for the rule of law.

    Law professors Ellen Dannin and Ann C. Hodges, who joined the letter, have provided ACSblog with guest posts about the political interference with the NLRB’s complaint against Boeing. In her post, Hodges explains why the NLRB’s complaint “does not justify Congressional intervention in the legal process of an ongoing case, an appalling overreach by a coordinate branch of government.”

    Dannin, in her post, says NLRB has been transparent about the case – posting its complaint on its website and “memoranda summarizing the facts of the case and information about the investigation and trial procedure. Despite this, Congressional representatives are demanding administrative capital punishment for the NLRB’s ‘crime’ of doing its job.”

  • May 24, 2011
    Guest Post

    By Ellen Dannin. Professor Dannin is the Fannie Weiss Faculty Scholar and Professor of Law at Penn State Dickinson School of Law and a Researcher at the Employment Policy Research Network (EPRN).

    Legal procedure professors who taught current members of Congress must be pulling their hair out. Lately their former students sound more like the Queen of Hearts with their threats to execute the National Labor Relations Board (NLRB) by defunding it and taking away the power of the NLRB’s General Counsel to enforce the National Labor Relations Act (NLRA).

    Wild claims – without any basis in fact – are being made that the NLRB has already made a decision that Boeing violated the law and that the NLRB is going on a rampage against “right to work” states. If you listened to Congress’ version of events, you would think that the NLRB has become the major threat to the economic life of this country. Think a fire-breathing Godzilla administrative agency smashing businesses with its mighty tail.

    Of course, none of this is true. In fact, it is just Plane Nonsense

    Meanwhile, Congress does nothing to discipline the banks and speculators who actually did destroy millions of jobs, savings, lives, and hope for the future. These real villains are not only free but are again being rewarded for risky behavior.

    None of this is true, and the facts could have been easily learned. Not only has the NLRB posted the complaint on its website, it has also posted memoranda summarizing the facts of the case and information about the investigation and trial procedure. Despite this, Congressional representatives are demanding administrative capital punishment for the NLRB’s “crime” of doing its job.

    Just the Facts

    The Boeing case began when the Machinists Union in the State of Washington filed a charge with the NLRB alleging that Boeing had retaliated against its Washington employees for past strikes by moving work to South Carolina. The right to strike is protected by law, and an employer’s retaliating against employees for exercising their legal rights violates the NLRA, the law the NLRB enforces.

    After the charge was filed, the NLRB’s regional office in Washington investigated the case. That investigation involved taking sworn affidavits from witnesses and collecting other relevant evidence. Boeing had the right to present its evidence during the investigation. The evidence included public statements by Boeing officials – and reported in the Seattle Post Intelligencer Aerospace News and the Seattle Times – that they were angry that Boeing employees in Washington had gone on strike in the past. Boeing officials also said that they would, therefore, move work that was originally going to be done in Washington to a plant in South Carolina. This evidence, if credited by the judge at trial, supports a finding that Boeing violated § 8(a)(1) and (3) of the NLRA.

  • April 25, 2011
    Guest Post

    By Ellen Dannin. Professor Dannin is the Fannie Weiss Faculty Scholar and Professor of Law at Penn State Dickinson School of Law and a Researcher at the Employment Policy Research Network (EPRN). This essay was prepared as part of the EPRN's work in shaping the future of employment policy and practice.

    Not Just Jobs, but Good Jobs

    In this era of high unemployment, the United States has increasingly become a country of bad jobs that are held by people desperate to provide food and shelter for themselves and their families. As a result, many workers and unemployed workers have become so desperate that they are willing to forego fair treatment on the job, the enforcement of laws enacted to provide safe, fair, and remunerative work, and the working conditions of other employees who have benefitted from collective bargaining.

    For decades, workplace laws have also been weakened by judicial decisions, a process referred to as “judicial amendments.” The National Labor Relations Act’s protections and rights have been progressively weakened through judicial decisions. Before it, the Clayton Act was passed in 1914 to reverse judicial amendments of the Sherman Act that gave federal courts the power to issue sweeping injunctions in labor disputes. In 1932, Congress tried to overturn judicial amendments that weakened the Clayton Act by passing the Norris-LaGuardia Act. Workplace laws continue to be subject to the process of judicial amendments today. For example, Congress amended Title VII in 1978, 1991, and 2009, and the Americans with Disabilities Act (“ADA”) in 2008, in order to overturn judicial amendments and reinstate the protections Congress had created. Other laws, such as the Occupational Safety and Health Act (“OSHA”), have long failed to achieve their purposes as a result of judicial amendments.

    When people across this country go to work, they enter a place where democratic rights of due process, equal protection, and voice must be checked at the workplace door.

    This situation is certainly sad for those workers and their dependents. But problems created by a society composed of many desperate people are not just a personal tragedy. Their effects erode our collective well-being, the promise of this country, and our survival as a democratic society.

    Who Owns a Job?

    We need a serious discussion as to whether work in a democracy should be the same as or different from work in a dictatorship. Put another way, should our constitutional rights to due process, equal protection, and freedom of assembly and speech affect the way work is conducted and the roles and rights of employers and employees in the workplace?

    The very idea that constitutional and democratic values and rights could – or even should – be part of the fabric of the workplace will strike many as ludicrous. It seems obvious that the workplace belongs to the employer, and an employer can treat its property as it wishes. This means that employers are allowed to set workplace rules, even if the rules are bad ones and even if they are destructive to the company. Employees have no rights to participate in setting rules and processes and are allowed to retain their jobs only as long as they are productive, loyal, and obedient.

    Unions and their roles and obligations under federal and state collective bargaining laws do more than just allow employees to negotiate their terms and conditions of employment. They also create rights to industrial due process and equal protection. Despite their effects on workplace relationships and power, justifications made for union representation and collective bargaining do not include issues of job ownership and the role of work in a democratic society.