"This Article proposes a major devolution of labor relations policy making authority to the states. Echoing the federalism discussion in other contexts like global warming and prescription drugs, labor relation preemption doctrine should be examined and reformed by Congress. Existing doctrine is entirely judge-made even though only Congress, not the states, carries authority under the constitutional division of powers to displace state law. This judge-created preemption law stifles labor relations measures in the states, and leaves labor law smothered in federal orthodoxy.
Federal labor law reform is necessary for two reasons. First, the private sector unions face near extinction as collective bargaining representatives with fewer than eight percent of private sector employees represented. A rebalancing of labor relations policy is necessary to protect and foster employee free choice on questions of representation and collective voice. The Employee Free Choice Act debate only opened discussion of the many changes possible. Second, new policies more favorable to representation and employee voice can help to rebuild more structural balance in an economy now beset by the swollen powers of the executive suite and financial industry.
The needed changes are more likely to arise in the states than in Washington, D.C. Viewed in the larger context of employment law generally, the current broad federal labor law preemption doctrines are out of step. In wage and hour, occupational safety and health, status discrimination, and leave law, the states and federal government share authority within federal minimum standards and the states have often been innovators of needed reforms. Shared federal-state authority allows experimentation, flexibility, and greater citizen autonomy and involvement.
Furthermore, viewed in their own right, the current doctrines find little support in the rationales offered for them, and are riddled with exceptions and inconsistencies. Thus, the Garmon doctrine’s preemption of conduct 'arguably' protected or prohibited by federal law sweeps far broader than necessary to protect federal interests; it was controversial at its inception, and has lost any convincing rationale today. The primary agency jurisdiction rationale reflected a now outmoded faith in federal administrative agencies, was undermined by repeated rejection of the 'expertise' based judgments of the National Labor Relations Board by the courts, and currently suffers from the politicization of the Board. Further a mass of exceptions and limitations make this one of the most complex and little understood areas in all of the law of the workplace. The Machinists doctrine’s 'free play of economic forces' rationale rested, like Garmon, on implied 'obstacle' preemption analysis now less favored by the courts, and in any event, is logically inconsistent with established law allowing the states to legislate labor standards directly and to determine whether to grant or withhold unemployment benefits during a strike or lockout. In addition, both Garmon and Machinists make little sense in light of the 'reverse preemption' provisions of Section 14(b) of the National Labor Relations Act that allow the states to set labor relations policy on the fundamental issue of state “right to work” laws. This internal inconsistency is further reflected in federal labor law’s use of balancing of state law property rights to determine issues of union access.
Finally, this Article makes some suggestions about what a congressional reworking of labor law preemption doctrine might look like. The larger point, however, is that the creative ideas and experiments in labor relations are far more likely to originate from ferment in state capitals than from the common denominator policies necessary to overcome gridlock in Washington, D.C."
Matthew Boyle discusses the National Labor Relations Board's member, Craig Becker, and the possibility he has created a conflict of interests with his former employer, the A.F.L.-C.I.O, in their lawsuit against Boeing.
EFCA’s imposed binding arbitration would irreparably wound one of the most extraordinary features in American society, the willingness to take risk to build an enterprise that generates prosperity for one’s family and community. It must never be allowed to be signed into law.
Given that support for card check may not be sufficient to get legislation passed, Democrats might attempt to pass a bill that just calls for mandatory arbitration, which would allow a federal arbitrator to impose wages and benefits after a short bargaining period without the chance for appeal.
Organized Labor has made the Employee Free Choice Act (EFCA) its top legislative priority. The act would replace the current system of secret-ballot organizing elections with card checks, in which workers publicly sign union cards to organize and join a union.
What’s especially revealing is that union members hold that belief even more strongly than people who don’t belong to a union. Union leadership might want to do away with the secret ballot, but rank-and-file workers want their votes kept private.
The NLRB’s latest salvo is a lawsuit against Arizona. Arizona is one of four states where voters last fall resoundingly added to their constitutions the right to secret-ballot elections in union organizing.
Andy Stern, president of the Service Employees International Union, took a swipe at Sens. Joe Lieberman (I-Conn.) and Ben Nelson (D-Neb.) Tuesday, calling the senators 'terrorists' for their opposition to the card-check bill, which Democrats call the Employee Free Choice Act.
Wendy Powell warns of the National Labor Relations Board's plans to resurrect the Employee Free Choice Act, which was halted in 2009, and its attempts to circumvent Congress by modifying the National Labor Relations Act instead.
Organized labor has finally found a way to replenish the coffers of its underfunded pension plans. The key is mandatory binding arbitration between newly-formed unions and employers, one of the main provisions of the misnamed Employee Free Choice Act.
John Logan discusses the recent increase in attention concerning the National Labor Relations Board. He points to two factors: NLRB's involvement with Boeing and its new rule concerning the union certification process.
This Article proposes a major devolution of labor relations policy making authority to the states. Echoing the federalism discussion in other contexts like global warming and prescription drugs, labor relation preemption doctrine should be examined and reformed by Congress.
A significant policy debate has been occurring regarding union organizing methods in the United States. This debate focuses on the appropriateness of granting union recognition based on majority support as demonstrated by union authorization card signatures, also known as 'card checking.'
Whether the misleadingly named Employee Free Choice Act (EFCA)—known as 'card check'—is introduced next week or next year, it remains the central political objective of organized labor. It was also championed as a domestic priority by President Barack Obama.
The proposed Employee Free Choice Act (EFCA) has led to fierce debate over how best to ensure employees a choice on the question of unionization. The debate goes to the core of our federal system of labor law.
Neutrality agreements represent the national labor movement’s attempt to jumpstart union organizing, reverse the steadily declining influence that unions hold among the private workforce, and ensure union success.
The authors also find that although workers in card checks do appear to have had somewhat less information about unions and about the recognition process than workers in elections, workers who felt they had insufficient information to make a decision about unionization tended not to sign cards.
Organized labor argues that Congress should effectively take away workers’ right to vote in secret ballot elections because employers allegedly intimidate workers in the run-up to elections by firing and threatening to fire pro-union workers.
Neutrality and card check recognition agreements have existed in various forms for decades, but there is surprisingly little law under the National Labor Relations Act examining these types of agreements.
This Article will also analyze how the history of the National Labor Relations Act reveals this shift to be a rejection of the very basic understandings that drove the creation of the labor-relations system in this country in the 20th century.
The freedom to form a union is a democratic right that is under attack. Too many workers are prevented from freely choosing to band together in a union to bargain collectively with their employer on workplace issues.
This case study of the Communications Workers of America (CWA) demonstrates the value of resource dependence and contingency organizational theories—two branches of organization theory, which has most commonly been used to interpret firm behavior—for analyzing union revitalization.
In this short clip of CNBC's "Squawk Box," billionaire investor (and prominent supporter of President Obama) Warren Buffett called the anti-worker "card check" proposal "contentious," and said, "I'm against card check to make a perfectly flat statement."
The recent attempt by congressional Democrats to deny workers a secret ballot in union referenda is an assault, not only against a fundamental principle of labor law, but even more against the dignity and honor of the American work force.
Passed in an effort to continue where its predecessor, the Sherman Anti-Trust Act of 1890, had left off, the Clayton Anti-Trust Act of 1914 formally allowed unions to exist. It finally removed unions from the list of forbidden combinations allowable in industry. It also legalized the use of peaceful strikes, picketing, and boycotts.
Metaldyne Corporation and Dana Corporation independently entered into separate neutrality and card-check agreements with the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, AFL–CIO.
This act seeks to "amend the National Labor Relations Act to establish an efficient system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes."
President George W. Bush's administrative statement regarding the Employee Free Choice Act of 2007. His Administration strongly opposed the passage of the bill, stating that if the bill arrived on his desk, he would veto it immediately.
"The union's concerted refusal to work overtime was peaceful conduct constituting activity that must be free of state regulation if the congressional intent in enacting the comprehensive federal law of labor relations is not to be frustrated."
In this statement, Majority Leader Steny Hoyer argues for the passage of the Employee Free Choice Act in the House of Representatives. He strongly urges both political parties to support the bill and its goal of aiding American workers.
In the case, NLRB v. Shaw's Supermarkets, Inc., the main issue concerned a possible violation of the National Labor Relations Act. The NLRB attempted to force a new election for unionizing the company because it claimed Shaw's Supermarkets, Inc. had threatened its employees to not unionize.
A precursor to the National Labor Relations Act, the Norris-LaGuardia Act "curbed the power of the courts to issue injunctions or restraining orders against strikes, absent violence or fraud." Furthermore, "Congress declared the policy of the United States to be that workers were free to join unions and bargain collectively."
Trades Council v. Garmon revolved around the issue of proper jurisdiction during a lumber union strike. It questioned whether jurisdiction lay with the National Labor Relations Board (NLRB) or with a California State Court.
A precursor to the National Labor Relations Act, the Railway Labor Act sought "to avoid any interruption of interstate commerce by providing for the prompt disposition of disputes between carriers and their employees." It also "protects the right of employees to organize and bargain collectively."
The Secret Ballot Protection Act, introduced by the late Congressman Charlie Norwood in the 110th Congress (H.R. 866), ensures that workers, faced with the decision of whether to unionize, maintain their right to a secret ballot.
In this floor statement U.S. Senator Jay Rockefeller expresses his support for the Employee Free Choice Act. He presses the importance of the bill and its ability to aid the worker's plight by allowing easier unionization.
In this statement U.S. Senator Richard Shelby expresses strong objections to the Employee Free Choice Act, and he pledges to not vote for its passage. He believes EFCA undermines business by allowing unions to intimidate workers into signing cards for the union cause.
"The National Labor Relations Board is an independent federal agency created by Congress in 1935 to administer the National Labor Relations Act, the primary law governing relations between unions and employers in the private sector. The statute guarantees the right of employees to organize and to bargain collectively with their employers, and to engage in other protected concerted...
The National Right to Work Committee is a nonprofit, nonpartisan, single-purpose citizens’ organization dedicated to the principle that all Americans must have the right to join a union if they choose to, but none should ever be forced to affiliate with a union in order to get or keep a job.
The Association of American Educators (AAE) advances the teaching profession through personal growth, professional development, teacher advocacy and protection, as well as promoting excellence in education so that our members receive the respect, recognition and reward they deserve.