NLRB Expanding Efforts to Promote Unionization?

STRIKES FAIL, CHICKS DIGS SCABS, BUT THE DUTY TO BARGAIN IN GOOD FAITH LASTS FOREVER: What The Replacements Can Teach About U.S. Labor Law, The Professional Football Union, And The Future of Both

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.

The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Recently, however, a remarkably instructive set of primary sources has become available. For many years, the docket books kept by a number of the Hughes Court justices have been held by the Office of the Curator of the Supreme Court. These docket books supply a wealth of information concerning the internal deliberations of the justices. Justice Pierce Butler’s docket book in particular provides a remarkably rich set of notes on the Court’s discussions of cases in conference. Yet the existence of these docket books was not widely known, and access to them was highly restricted. As a consequence scholars knew very little about the Court’s internal deliberations in the landmark cases of its 1936 October Term. This article, which is based upon a review of all of the surviving docket books from that Term, considers what those sources can teach us about the cases comprising what some have called the “switch-in-time”: West Coast Hotel Co v Parrish, which upheld Washington State’s minimum wage law for women and overruled Adkins v Children’s Hospital; the Labor Board Cases, which upheld the constitutionality of the National Labor Relations Act; and the Social Security Cases, which upheld the constitutionality of provisions of the Social Security Act establishing an old-age pension system and a federal-state cooperative plan of unemployment insurance, as well as corresponding state unemployment compensation statutes. Considered in concert with information previously known, the data revealed by these docket books shed considerable new light on the nature of the Court’s deliberations in each of these three sets of cases, on the reasons for its decisions, and on the contention that the justices wrought a “Constitutional Revolution” in the spring of 1937.

Broken Promise details the post-Taft-Hartley course of the National Labor Relations Board (NLRB). Resting on exhaustive research in Board files and other relevant archives and on the results of a massive oral history project that James Gross has directed, it is a unique and authoritative study. No federal agency has had its records so thoroughly examined, its personnel and clientele so extensively interviewed, or its activities so copiously documented. Gross's discussions of the Board's decisions, its internal operations, and its relationship to employers, unions, and Congress and the president are clear, insightful, and judicious. Along with his preceding two volumes on the NLRB, Gross's Broken Promise stands as a monumental work of scholarship.' This is the story of a New Deal agency that has come to serve virtually opposite purposes from those its originators intended. Once the handmaiden of a rising labor movement, the NLRB became in the 1980s, if not before, an obstacle to organized labor and to the stated purposes of the original law. Today, the only defense of the NLRA [National Labor Relations Act] comes from the business community, declares the director of the AFL-CIO's Task Force on Labor Law.2 Having failed repeatedly to achieve legislative reform, unions today turn only reluctantly to the NLRB. The original National Labor Relations Act (the Wagner Act, passed in 1935) grew out of three decades of debate over federal labor policy. Senator Robert F. Wagner and his staff sought to craft a law that would encourage collective bargaining as a means of boosting consumer demand, reducing conflict over union recognition, and extending democratic rights to the workplace. They wanted to right the wrongs that had become apparent during the work of the labor boards established under the National Recovery Administration, notably the National Labor Board (1933-34), which Wagner chaired, and the first National Labor Relations Board (1934-35). The distinctive features of the new law-its stipulation of majority rule, listing of unfair labor practices, outlawing of company unionism, creation of an authoritative independent agency,

Excerpt] One of long held performance objectives of National Labor Relations Board (NLRB) has been to reduce time period between filing of petition and union certification elections. This year NLRB's 2010 Performance Accountability Report claimed that 86.3 percent of all NLRB elections were held within 100 days of petition being and 95.1 percent of all initial elections were held within 56 days of petitions being filed. Our analysis of Bureau of National Affairs (BNA) data from 1999-2009 found that in last two years there has been a slight increase in number of representation elections being held between 21-30 days after petition. But throughout decade there have been virtually no election dates in first 20 days after petition is (see Figure 1). Thus, while NLRB has made some progress in meeting their performance objectives, as former NLRB General Counsel Fred Feinstein explains, the problem has been that a party in any election case has ability to undermine expression of employee free choice by manipulating Board procedures to create delay”. These data on timing of petition and election dates matter because number of days between petition and election may make a great deal of difference as to whether or not a group of workers get union representation or a first contract. The time between petition and election also may make a difference as to whether an individual worker gets fired or gets his or her wages or benefits cut in retaliation for union activity, or ends up leaving a job, with or without a settlement, because of coercion, threats, and/or harassment suffered throughout employer's campaign. Over last three decades there has been a wealth of scholarly research that has documented gauntlet of threats, fear, retaliation, misinformation, and harassment workers have to endure in order to exercise their right to union representation and collective bargaining. However, none of recent NLRB certification election research has examined relationship between employer opposition and timing of election. This is because for few researchers who have done hard work of connecting election to unfair labor practice (ULP) data, only timing variable they had to use for employer behavior was ULPs were filed. But since ULP charges can be as much as six months after allegation occurred, date filed grossly underestimates when employer opposition begins. It is for this reason we were asked to follow up on our 2009 study on employer opposition and breakdown of unfair labor practice process (see No Hold Barred: The Intensification of Employer Opposition to Organizing) to examine relationship between petition date, election date, and when most serious employer opposition occurs during representation campaigns. Upon completion of this analysis we would be able to determine whether our data provide empirical support for significantly reducing number of days between petition and election in NLRB certification elections.

This Research Handbook assembles the original work of leading legal and economic scholars, working in a variety of traditions and methodologies, on the economic analysis of labor and employment law. In addition to surveying the current state of the art on the economics of labor markets and employment relations, the volume's 16 chapters assess aspects of traditional labor law and union organizing, the law governing the employment contract and termination of employment, employment discrimination and other employer mandates, restrictions on employee mobility, and the forum and remedies for labor and employment claims.

Fired for Facebook: Using NLRB guidance to craft appropriate social media policies

President Joe Biden made strong support for organized labor a central part of his 2020 presidential campaign and has made good on that commitment from day one of his presidency. In the hours and days following his inauguration, the President implemented a flurry of personnel and policy changes at the National Labor Relations Board, the federal agency charged with protecting the rights of private sector employees under the National Labor Relations Act.

This is a redux article that revisits a subject that I examined twenty years ago in an essay in which I contrasted the epidemic of anti-union employee discharges under the National Labor Relations Act (NLRA) with the rarity of such discharges under the Railway Labor Act (RLA). I concluded that the extreme difference in that quantity of violations was due to the deterrent effect of the certain availability of federal court injunctions under the RLA and that similar results could be attained if Section 10(j) injunction proceedings were substantially expanded. Accordingly, I recommended that in almost all such discharge cases under the NLRA such an expansion be applied. Nevertheless, in the years that followed, despite a tiny increase in the number of Section 10(j) cases and a slightly more efficient process in the small number of 8(a)(3) cases, the epidemic continued—in fact even more heavily. Reliable deterrence was obviously missing. During that interim period, however, I discovered a trusted and long established legal procedure—to wit, the delegation of Section 10(j) authority from the Labor Board to its General Counsel—which this redux article now proposes for automatic application in most meritorious Section 8(a)(3) cases. Applying this automatic procedure, which can be accomplished without new legislation, would give that provision the deterrent effect that Congress intended in 1959 when it passed, without dissent, Section 10(m), a heretofore virtually unused and unknown statutory provision. Under this proposed procedure, anti-union discharges under the NLRA could become a thing of the past.

The Employee: A Political History Jean-Christian Vinel. Philadelphia: University of Pennsylvania Press, 2013.Today, millions of workers in the United States find themselves excluded from the legal category of the employee-a critical distinction that would otherwise permit unionization and collective bargaining. In this book, combining labor history, sociological analysis, and legal history, Vinel traces the history of this term from its entry in the public lexicon during the Progressive Era through the New Deal order to recent efforts to amend federal labor law. All the while, this French Americanist connects his expose' to the larger narrative of American progressivism and liberalism, management practices, and the history of social thought on both sides of the Atlantic. Vinel provides deeper insights through cross-national comparisons, especially with France and Britain. Through a meticulous analysis of Supreme Court rulings and National Labor Relations Board (NLRB) decisions, he demonstrates that the definition of employee has always been politically contested and influenced by competing claims on the part of business and labor.In the context of the 1947 Taft-Hartiey Act, businessmen pressured Congress into amending the 1935 National Labor Relations Act (or Wagner Act) so that foremen in the nation's leading automobile, steel, and mining companies would not be allowed to organize and make common cause with rank-and-file workers. Relying on a concept inherited from the colonial master and servant doctrine, corporate America insisted that unless they were production workers, employees owed a duty of loyalty to their employers. They reasoned that, for supervisors, foremen, and managers, unionism was incompatible with the faithful exercise of duty because it would result in divided loyalties, that is, these workers would be torn between their allegiance to the union and their responsibilities toward their employer. As a result, since the 1940s the protection of the right to organize in the United States has been subject to a tension between freedom of association and loyalty. The book shows that at different junctures business executives were seriously concerned about the possible defection of workers they deemed essential to their authority over the workplace, including foremen, procurement buyers, nurses, and even university professors, as in one famous case that culminated in the 1980 Supreme Court decision NLRB v. Yeshiva University that largely blocked collective bargaining for private college faculty members.In offering his political genealogy of the Wagner Act, Vinel argues that opposition to class antagonism shaped elite conceptions of labor relations at the turn of the twentieth century and informed views of the democratization of the workplace. During the Progressive Era, labor reformers-mostly middle-class men and women-formulated their own version of the nineteenth-century conservative discourse of social harmony and thereby took a middle position between classical liberalism and socialism, emphasizing the pursuit of the public interest and the promotion of the working-class's welfare as a means toward social cohesion. A leading figure in this effort was John R. Commons, the founder of the Wisconsin school of labor history, who offered a new vision of social harmony in the workplace: by fostering collective bargaining it was possible to inculcate cooperative values in workers and to deflect class antagonism. …

Work stoppages have become commonplace in American professional sports. Whether it takes the form of a strike or a lockout, a work stoppage, or the threat thereof accompanies nearly every labor dispute between owners and players. This is hardly surprising, though, because the current system for resolving labor disputes-the National Labor Relations Act and its implementing body, the National Labor Relations Board is ill-fitted to the unique challenges posed by sports labor issues. Additionally, there is no institution tasked with directly overseeing professional sports in America. The same is not true in Europe. Oversight bodies are common throughout Europe and help to resolve sports labor disputes before they turn into full-blown work stoppages. As this Article discusses, American professional sports need this type of oversight. Therefore, this Article advocates a two-tiered approach to solving American professional sports' culture of frequent work stoppages. First, the United States should enact new legislation to govern the resolution of sports labor disputes, as it has already done to regulate labor disputes in other American industries. Second, the United States should create a body charged with overseeing professional sports and implementing this newly-created legislation. By taking these two steps, the United States can end the pattern of work stoppages that plagues professional sports labor disputes and provide stability to this critical American industry.

This article is a detailed historical exploration of the 1975 United States Supreme Court case Western Addition Community Organization v. Emporium Capwell. In this case, the Court held that the National Labor Relations Act does not allow African American workers who are represented by a labor union to bypass that union in order to bargain about issues of racial discrimination directly with their employer. Using archival source materials as well as oral histories of some of the participants, the article chronicles the litigation from its inception in San Francisco in 1968, through its adjudication before the National Labor Relations Board, the United States Court of Appeals for the District of Columbia, and the Supreme Court. It argues that the conflict that emerges within the case – between black workers’ right to combat racial discrimination and American labor law’s fundamental commitment to workplace majoritarianism – reflects a broader conflict within the legal and political culture of the late 1960s. American liberalism, the article suggests, was severely weakened by its inability to reconcile its commitments to both racial egalitarianism and progressive wealth redistribution. The Emporium Capwell case and the doctrine that emerged from it is thus the legal analog of the political crisis that weakened liberalism at the end of the 1960s.

Today, some sixty years after passage of the Taft‐Hartley amendments to the National Labor Relations Act, it seems that the centerpiece of the Act has become the right to refrain from protected, concerted or union activity. The original 1935 legislation was enacted, of course, to protect the right to engage in that activity, and to encourage the practice of collective bargaining. For nearly sixty years after Taft‐Hartley added the “right to refrain” to Section 7's employee protections, the Board has struggled to reconcile the sometimes competing statutory goals of promoting the stability of collective bargaining relationships and the individual freedom of choice, preserved by Section 7. That has changed, however, as the National Labor Relations Board, in several recent decisions, has said for the first time, that freedom of choice—which is to say, the freedom to reject union representation—prevails in the statutory scheme. It is as if the law, in abandoning the primacy of achieving economic justice through collective action, has been turned inside out. The stakes for this shift in policy are great.

Employee Electronic Communications in a Boundaryless World

A question of integrity: the National Labor Relations Board, collective bargaining and the relocation of work