Professor James Brudney

  • April 15, 2013
    Guest Post

    by Alicia Plerhoples, Associate Professor of Law, Georgetown University Law Center

    I recently had the privilege of participating in a meeting of some leading and well-respected labor attorneys and scholars. Many questions were posed. With the decline of participation in labor unions, gutting of workers’ rights through “Right to Work” state legislation, and attempts to dismantle the National Labor Relations Board, what other legal mechanisms can be employed for the benefit of workers? Specifically, how can corporate laws facilitate workers’ rights? We also deliberated many possible advocacy avenues under corporate law including the following:  

    Reframe the argument against Citizens United and align workers with shareholders against unchecked corporate boards and management. Citizens United v. FEC recognized free speech rights under the First Amendment for corporations, including labor unions. While some advocate that labor unions take advantage of Citizens United through increased campaign activity and spending, labor unions face an uphill battle against anti-worker groups financed by better-funded corporate interests and wealthy individuals. Rolling back Citizens United is currently part of a larger worker rights’ plan, and one way to execute that plan (and garner a broader base of support) is to align workers’ interests with shareholder interests.

    The Supreme Court got Citizens United wrong by brushing aside an important corporate constituency -- shareholders. Retired Justice John Paul Stevens’ dissenting opinion was correct to argue that the majority opinion ignored the rights of shareholders. When corporations are allowed to spend unlimited treasury funds on “electioneering communications,” the corporate board chooses all aspects of the political donations -- which political groups to donate to, the timing of such donations, and whether to donate at all. Shareholders are effectively forced to contribute their money to political issues, even those that they oppose. When a shareholder invests in a corporation -- and realize that anyone in the United States whoever wants to retire must invest in corporations, whether directly or through mutual funds -- the shareholder is doing so for one purpose: to make money.

  • July 5, 2011

    An Ohio law aimed at greatly curtailing the rights of public workers has sparked massive protests and what appears to be a successful drive to place it before voters this fall. Opposition has also formed against similar anti-collective bargaining laws in Michigan and Wisconsin.  

    More than a million Ohioans recently signed a petition to put  the law, Senate Bill 5, on the November ballot, in hopes of repealing it, The Plain Dealer recently reported. The signatures, the newspaper added, were “ceremoniously” delivered to the Secretary of State’s office in Columbus by more than 6,000 marchers. The newspaper said the more than 1 million signatures “are the most in more than a decade at least,” to be submitted to state officials.

    Melissa Fazekas, a spokeswoman for We Are Ohio, a group that launched the petition drive to repeal the anti-collective bargaining law, also lauded the large number of marchers involved in submitting the signatures, saying they “are proof that while our campaign may be out spent, we will never be out worked, or out volunteered or out supported by hard working Ohioans.”

    Like his counterparts in Wisconsin and Michigan, Gov. Kasich argued that Senate Bill 5, which The New York Times noted could cut public sector jobs in parts of the state where the private sector has long stopped producing opportunities, is necessary to help local officials overcome budget shortfalls.

    In a guest post for ACSblog, Ohio State University law school professor James J. Brudney, said the claims in both Ohio and Wisconsin that fiscal conditions are the reasons to limit collective bargaining have been “exposed as a smokescreen.”

    Brudney continued:

    Fiscal crises are occurring in states like Texas and Virginia that bar collective bargaining. And 2010 budget deficits are as high in the nine states that banned collective bargaining for most all public employees as in the fifteen states that allowed it for theirs. Tellingly, leading proponents of Senate Bill 5 asserted as their core justification for the bill not money but flexibility. The Senate bill author and Ohio’s governor talked constantly about the need for flexibility to manage Ohio’s public workforce. Yet Ohio’s experience since collective bargaining became lawful in 1983 makes it very hard to make a case for inflexibility.

  • April 13, 2011
    Guest Post

    By James J. Brudney, the Newton D. Baker-Baker & Hostetler Chair in Law, Ohio State University, Moritz College of Law


    Ohio’s new law on collective bargaining, (Senate Bill 5) eviscerates rights for teachers, police, firefighters, and other public employees, rights that have been in place since 1983. In order to understand how this has happened, it makes sense to start with the question why should we care? Does access to collective bargaining really matter to us as Americans, beyond those workers who are represented by unions?

    The short answer is an emphatic Yes. Collective bargaining is important to us as a nation for several reasons. First, there is our economic welfare. The growth of collective bargaining promotes a fairer distribution of resources and enhances mass purchasing power. For teachers, police, firefighters, health care workers, and others, it helps create and maintain a robust middle class. A sizable middle class enables these millions of Americans to contribute to economic well-being for the rest of us, by purchasing consumer goods, investing in higher education for their children, buying homes, taking family vacations, etc.

    Collective bargaining also enhances democratic decision-making in our everyday lives.Most working Americans spend the bulk of their waking hours in their place of employment. Collective bargaining reinforces our national commitment to self-government by respecting the role of employee voice as a meaningful part of workplace decision-making: this includes sharing both benefits and burdens between workers and management.

    Relatedly, the quality of public services is enhanced by collective bargaining. Treating teachers, police, and firefighters with dignity, and crediting their collective views on how to do their jobs, allows local governments to perceive certain challenges more clearly and then to negotiate practical solutions. Policemen bargained successfully for bulletproof vests not because cities and counties didn’t want them to have this safety equipment but because police unions made it a priority. Likewise, teacher unions have bargained for many terms and conditions that improve our schools, including required class planning time, smaller class sizes, tougher student disciplinary policies, and mentoring programs for new teachers.