Monday, February 26, 2018
Today, the Supreme Court heard oral arguments in Janus v. AFSCME, the newest in several decisions in which a bloc on the Court has attempted to strike down public-sector mandatory union fees (see here, here, and here for some of our earlier coverage). I'm going to go out on a limb and predict that this time is the charm. The 8 veteran Justices age no reason to think that they moved from previous positions, which results in a 4-4 split on this issue. The newer Justice Gorsuch was uncharacteristically silent during oral argument, but I'd be stunned if he doesn't vote with the conservative bloc to overturn Abood and find such fees to be unconstitutional. You can judge for yourself by reading the oral argument.
Tuesday, October 24, 2017
What do unions do for regulation? That's the subject of Alison Morantz's recent and timely review of the research literature: "What Unions Do for Regulation," Annual Review of Law and Social Science 13 (2017): 515-534. Here's the abstract:
The question of how organized labor affects the content, enforcement, and outcomes of regulation is especially timely in an era in which protective laws and regulations are being scaled back or minimally enforced and union membership is in decline. This article surveys literature from a wide array of regulatory domains—antidiscrimination, environmental protection, product quality, corporate governance, law enforcement, tax compliance, minimum wage and overtime protection, and occupational safety and health—in an effort to identify common findings on what unions do for regulation. Literature on the topic has taken up five questions: how labor unions affect the passage of protective laws and regulations; how they affect the outcomes that regulators target; how they affect the intensity of regulatory enforcement; the specific activities and channels of influence they use to influence regulated outcomes; and the role they play in self-regulation. Drawing on empirical literature from the domains listed, I review and analyze literature on each of these questions and offer several conclusions and suggestions for future research.
Morantz's main conclusion: There's a lot of support in the research literature for thinking that, "in most contexts, unions' tendency to strengthen workers' collective voice and mitigate market imperfections predominates their tendency to exert monopoly power and engage in economic rent-seeking." The best evidence of this comes from studies of how unionization strongly correlates with lower rates of serious and fatal workplace injuries. Some prior research also shows that unions tend to lower overall wage dispersion, which may indirectly reduce pay discrimination against women and racial minorities.
Tuesday, March 28, 2017
Bill Herbert (Hunter College) recently did an interview with Radio Higher Ed: "A Primer on Unionization and Collective Bargaining in U.S. higher Education Institutions." According to the summary:
This primer on collective bargaining in higher education traces historical developments of unionization in public and private institutions as well as among tenure track, non-tenure-track faulty and graduate students. In the last five years, unionization activity has increased over 25% in the private sector, mostly in adjunct faculty units. While institutions can participate in voluntary collective bargaining activities, agreements in a formal collective bargaining context include clear rules applicable to the entire bargaining unit and enforcement mechanisms. The emergence of micro bargaining units (department level activity), and specifics of the unionization process are discussed. Specific unions that work with higher education institutions are named. Mandatory subjects in the collective bargaining process include salary, hours, healthcare, pension, professional development grievance, antidiscrimination, academic freedom, tenure, use of facilities, appointment and reappointment details, leaves, holidays, evaluations, personnel files, disciplinary actions, research and fellowship monies. Institutions may resist unionization due to flexibility limitations, institutional concept of shared governance and fiscal implications that may result from compensation negotiations. It is likely that unionization will continue to increase for non-tenure track faculty in the private sector. Regularity of access to faculty by students may be aided by collective bargaining.
Check it out!
Friday, January 9, 2015
As student football players at Northwestern University press forward with their case at the National Labor Relations Board, the Michigan legislature has amended its statute governing public-employee collective bargaining to exclude student athletes at Michigan’s public universities. The amendment, now in effect, added the underlined text:
An individual serving as a graduate student research assistant or in an equivalent position, and a student participating in intercollegiate athletics on behalf of a public university in this state, or any individual whose position does not have sufficient indicia of an employer-employee relationship using the 20-factor test announced by the internal revenue service of the United States department of treasury in revenue ruling 87-41, 1987-1 C.B. 296 is not a public employee entitled to representation or collective bargaining rights under this act.
Michigan Complied Laws 423.201(1)(e)(iii). (Although the text of this provision also excludes graduate student research assistants, a federal district court declared that exclusion to violate article IV, section 24, of the Michigan Constitution. Toth v. Callaghan, 995 F. Supp. 2d 774 (E.D. Mich. 2014).)
Tuesday, May 13, 2014
The NLRB is asking for amicus briefs on the issues in the Northwestern football players election case by June 26. It would be a great opportunity for those interested to weigh in.
h/t Charlotte Garden
Thursday, March 27, 2014
The Wall Street Journal's Law Blog has a helpful roundup of media commentary on the decision by the NLRB's regional counsel that Northwestern football players were employees and eligible to bargain collectively, which Jason and Jeff posted about yesterday. Jon Hyman, the Ohio Employer's Blog, offers his thoughts here. Tom Crane, San Antonio Employment law blog, has posted this. Former guest blogger, Joseph Mastrosimone (Washburn), offered his perspective earlier this year in this post at the Huffington Post.
If you prefer to listen to commentary, here is an interview of Joe Slater (Toledo) on the Scott Sands show on Toledo's WSPD.
In the scholarship category, Thomas Frampton and Nicholas Fram wrote A Union of Amateurs: A Legal Blueprint to Reshape Big-Time College Athletics, published in the Buffalo Law Review, outlining the case for the players. The article argues that oft-overlooked Seattle Opera case, affirmed by the DC Circuit, provides the strongest support for the players--and it was relied upon by the regional director in the Northwestern decision.
I'm sure many readers of the blog have also contributed to stories or have written on the subject--let us know. Post them in the comments or send me an email, and I'll add them to the list.
Wednesday, February 19, 2014
Faculty members at the University of Illinois at Chicago have called a 2-day strike, to last today and tomorrow, to help raise awareness of the contract negotiation issues with the trustees. See here for a general description, here for what many of the issues are, here for an opinion piece about the role of public higher education in a city with serious income inequality, and here and here for a description by some faculty members about why they are striking.
The issues sound very similar to issues at lots of universities, although somewhat magnified by the student population UIC serves: lack of sufficient numbers of faculty to serve a group of students at the lower end of the socioeconomic scale, many of whom are immigrants, may be first-generation college students, and may be working their way through school; lack of status, job protection, and sufficient pay for a good chunk of faculty; salary compression, stagnant pay, and a lack of other support for tenured faculty. On the other side are state budgetary pressures and a lack of public support for higher education.
These issues seem inseparable from other employment and wealth trends and whether there are such things any more as public goods. Has higher education always been this much of a mess, and I just didn't know because I didn't work there?
Tuesday, January 28, 2014
ESPN this morning reported that a group of college football players at Northwestern have filed a representation petition with the NLRB, seeking to be recognized for bargaining purposes. More stories here and here. Northwestern's response here, and the NCAA's here. Mike McCann (New Hampshire) weighs in here. The biggest hurdle for the players will be in demonstrating that they are employees for purposes of the NLRA, which ties into debates about whether college athletes in revenue generating sports should be paid and others.
Monday, January 13, 2014
Thanks to Stephen Diamond (Santa Clara) for bringing to my attention an interesting series of upcoming events. Santa Clara University School of Law's Center for Social Justice and Public Service is sponsoring a series of Spring Workshops entitled: Law and Labor in the Field.
The first workshop is January 30th and the last is March 27th. For the full schedule and program details, see here. Among the participants are Bill Gould (Stanford), Maria Ontiveros (San Francisco), and Ruben Garcia (UNLV).
The Workshop will be led by Stephen and will examine the relationship between legal institutions and farm labor in California, the United States and globally. Each session begins at 4:05 pm, Bannan 333, SCU School of Law, 500 El Camino Real, Santa Clara, CA 95053. Reception follows. Public welcome.
Tuesday, January 7, 2014
Friend of the blog, Mitchell Rubinstein of the Adjunct Law Prof Blog has an interesting post concerning the potential formation of attorney labor unions in Ohio.
Here is a taste:
A few years ago I wrote a short article about attorney labor unions. (Attorney Labor Unions article)
The point of that article is that attorneys are employees like anyone else. The rules are not any different simply because lawyers are involved.
There is a battle going on in Ohio whether Assistant Directors of Law for the Civil Division in the City of Cleveland are eligible for unionization. The issue boils down to whether or not these attorneys are public employees as that term is defined in the Ohio statute.
The City won round one in that the Ohio State Employment Relations Board held that the attorneys were not public employees because they act in a fiduciary capacity to public officals.
Read more about this interesting case and Mitch's observation in his post. Could be an important development for attorneys looking for more voice in the workplace.
Wednesday, December 25, 2013
Charlotte Garden (Seattle) and Matt Bodie (SLU) write to tell us that a group of labor law professors is submitting an amicus brief in support of the union and state respondents in Harris v. Quinn, currently pending before the U.S. Supreme Court. As many of you may know, the case is about whether Illinois may allow certain home health care workers to elect a union as their exclusive representative and require represented workers to pay an agency fee.
If you would like to see a copy of the brief in order to decide whether you would like to sign on to it, please contact Charlotte at firstname.lastname@example.org by Saturday, Dec. 28.
Monday, November 18, 2013
Joseph E. Slater (University of Toledo College of Law) has posted on SSRN his recent piece in the Hofstra Labor and Employment Law Journal entitled: The Strangely Unsettled State of Public-Sector Labor in the Past Thirty Years.
Here is the abstract:
This article, part of a symposium on the history of various areas of labor and employment law, gives an overview of public-sector labor law and labor relations in the past thirty years. The public sector has for decades been central to labor relations in the U.S.; increasingly, it has also acquired a high profile in the political world. Despite great successes in organizing by public-sector unions, public-sector labor law has long been in a state of tumult (including, but not limited to, high-profile laws passed in 2011 gutting the rights of such unions). Although by the 1980s, it seemed as if public-sector collective bargaining was widely (if not universally) accepted, and that it functioned fairly well, the next three decades featured surprising upheavals. Because there is so much variation within the public sector (it is mainly state and local law), there is no single story of the past three decades. This article discusses illustrative events in this period, events which helped shape the broader history of labor relations. It starts with early history of public-sector labor law, then moves to the last three decades. For the 1980s, it discusses two key (and contrasting) events of the early part of the decade: the crushing defeat of the PATCO strike, and the enactment of the Ohio public-sector labor statute. It then discusses some significant twists and turns in the 1990s. Moving to the twenty-first century, it discusses some (mostly positive) trends for public-sector unions in the first decade of the century, but then turns to the wave of anti-union legislation in 2011 and beyond — although even here, there are some developments in the other direction, e.g. union rights for TSA employees. These events feature defeats and victories over issues as basic as whether public employees should have the right to bargain collectively at all, and they have shaped the entire U.S. labor movement, including the public sector. The also show how public-sector labor relations remains a strangely unsettled issue. The final sections discuss the practical and theoretical policy issues at stake, and attempt to make some predictions for the future.
Joe is one of the preeminent public sector labor law scholar in this country, and I would highly recommend this very-readable piece to anyone who is trying to understand the on-going disputes over the place of public sector unions in American society. I have been front and center as far as the Wisconsin public sector union dispute is concerned since 2011 and am looking forward to reading Joe's piece in more depth to place my own experiences in historical perspective.
Wednesday, September 25, 2013
Freeman Guest-Blog Post: Death of an Adjunct Sparks Discussion on the Challenge of Precarious Employment in Higher Ed
I am happy to introduce below a very interesting guest post today by Harris Freeman (Western New England) on the tragic death of an adjunct faculty member at Duquesne and its labor and employment law implications. PS
This past weekend, NPR’s Weekend Edition ran a story on the death of Margaret Mary Vojtko, an 83-year old adjunct French professor at Duquesne University, and that school’s refusal to recognize the vote of its adjuncts to unionize. After 25 years of teaching French as an adjunct, Duquesne dismissed Vojtko this past spring; she was earning about $10,000 a year without benefits or health insurance. At the time of her termination, Vojtko, who was undergoing cancer treatment. supported the adjunct union backed by the United Steelworkers. In June, the Duquesne adjuncts, who comprise nearly half the faculty in the school’s liberal arts college, won a an NLRB-sponsored election. Duquesne immediately challenged the vote claiming that its status as a religious institution exempts it from any obligation to bargain with the adjunct union. The NLRB rejected the university’s position, and Duquesne has appealed. Editorials and news articles on Vojtko’s passing and the unionizing effort peppered the Pittsburgh media.
The NPR story went viral on social media, rekindling the longstanding criticisms of labor and many others in higher ed who raise a host of concerns regarding the ballooning number of adjunct faculty that are now essential to the running of most large colleges and universities. The numbers are stark. The American Association of University Professors reported in 2011 that 70% of college faculty worked outside the tenure track; in 1975 it was 43%. Part-time teachers in higher ed number more than 760,000 or about half of the non-tenured teaching faculty. NPR reports average yearly pay for adjuncts, professionals with Ph.Ds, Masters and J.D.s - often itinerant “roads scholars” teaching at multiple institutions – is between $20,000 and $25,000.
In this environment, adjunct organizing keeps gaining steam. This past spring adjunct organizing conferences sponsored by SEIU and the Steelworkers Union occurred respectively, in Boston, a veritable hub of the higher ed industrial complex, and Pittsburgh. In Boston, the home of 13,000 adjuncts, SEIU Local 500 is pursuing a city-wide, cross campus organizing strategy. Already, some larger state university systems, (e.g., University of Massachusetts) have accreted adjuncts into existing faculty unions and some small private colleges (e.g., New School for Social Research, New York; Emerson University, Boston and Georgetown, Washington D.C.) have recognized adjunct unions. In fact, SEIU Local 500 now claims that it represents the majority of adjuncts in the Washington D.C. area.
What may be new is that the current discussion of the work conditions facing adjuncts comes on the heels of a national dialog on the ills of precarious employment that keeps widening as a result of temps, part-timers, and other low-wage employees organizing and speaking out. In recent months, the major news outlets covered job actions and strikes by warehouse temps doing the grunt work for retailers in the global logistics sector and the coordinated protest strikes of low-wage workers employed at America’s ubiquitous fast-food outlets.
This information and these events provide much grist for the teaching mill in any workplace law course and a cautionary tale for all academics. In this context, recall that the ABA is considering removing the requirement of tenure for law school accreditation. The downward pull of precarious work in mainstream labor markets has a long reach that should cause all tenured faculty and others in the academy with some form of job security to take a closer look at what is happening at their law school, college, or university.
Monday, September 9, 2013
Thanks to Ron Turner (Houston) for bringing to my attention this article from The New York Times last week: VW and Auto Workers Explore Union at Tennessee Plan.
Apparently, Volkswagen is in the process of negotiating with the United Automobile Workers (UAW) at VW's Chattanooga, Tennessee plant on how to unionize the plant and create a German-style works council there.
A tidbit from the article:
The company would be the first German automaker to have such a council at a United States plant. A works council is a group of employees, including both white- and blue-collar workers, that meets with management on issues like working conditions and productivity.
But to avoid violating American labor laws, the plant would first have to be formally unionized, the company said . . . .
None of the foreign carmakers with auto plants in the South are currently unionized.
The part of the labor law that would be violated would be Section 8(a)(2) of the NLRA which does not tolerate employer domination or assistance of labor organizations. This provision makes employer-employee cooperation difficult in the union setting sometimes. This is not an issue in Germany and other countries where employer-employee cooperation inside and outside the union environment is much more common.
Needless to say, it will be interesting to see if this arrangement actually comes to fruition and whether it might provide a model for other manufacturing plans, auto and otherwise, for running a productive workplace with sizable employee input. Also good to see an open-minded employer not mindlessly fighting unionization at all cost and instead recognizing "them as a useful source of ideas from the shop floor and a vehicle to build consensus and employee morale."
Friday, August 9, 2013
In this regard, he has posted on his blog, Charles J. Morris on Labor Relations, a warm-up for that prospect. The post is entitled: Members-Only Collective Bargaining: Get Ready for an Old Concept for a New Use, and the full version of his post is available on Charlie's blog.
Here's a taste of Charlie's post:
It is especially important that the AFL-CIO and other participants in American labor relations become better acquainted with the concept of members-only collective bargaining because the National Labor Relations Board will likely be considering that process in the near future. Validation of this innovative process can be of immense help in getting American workers back on the road to a robust labor movement and a major expansion of collective bargaining that will help build a stronger middle class.
The need for such a process has been dramatically evidenced by recent work stoppages at various Wal-Mart and fast-food locations. Although those walk-outs represent commendable examples of courageous workers fighting back, they will inevitably be unsuccessful in achieving significant change. Despite their legitimate complaints, those low-wage workers have no effective mean to engage management in a dialogue about working conditions―much less in a consequential bargaining session that might significantly improve those conditions.
They obviously need a union; but in accordance with prevailing conditions under the National Labor Relations Act (NLRA or Act), union representation is virtually unavailable to them and to most other American workers. The sad fact is that Wal-Mart and other anti-union companies are almost always able to prevent their employees from achieving union representation. Many―if not most― nonunion companies routinely indoctrinate their workforce with anti-union rhetoric and frequently engage in aggressive conduct—both legal and illegal—to successfully discourage any support for workers organizing into groups for any purpose. Employment discrimination and discharges for union activity, and the fear of such retaliation, are commonplace.
As Charlie points out, this is the same piece that he submitted to the AFL-CIO in its search for new ways of rebuilding the labor movement and collective bargaining. Charlie is the master on this topic and I highly recommend that those looking for alternatives to increase worker voice in the American workplace give serious consideration to Charlie's proposals.
It is my pleasure to bring to the attention of the readers of this blog the recent launch of a new academic labor law blog, jointly run by Ben Sachs and Jack Goldsmith (both of Harvard Law). It is aptly titled: On Labor.
A little taste of the blog's aspirations from the "About" section:
On Labor is a blog by Benjamin Sachs and Jack Goldsmith devoted to workers, unions, and their politics. We interpret our subject broadly to include the current crisis in the traditional union movement (why union decline is happening and what it means for our society); the new and contested forms of worker organization that are filling the labor union gap; how work ought to be structured and managed; how workers ought to be represented and compensated; and the appropriate role of government – all three branches – in each of these issues.
It looks like there will also be some other contributors to the blog who are students at Harvard Law School.
There are already some very interesting blog posts up, including one on the forthcoming Supreme Court Mulhall case, which Ben says "could be the most significant labor law case in a generation."
Check it out!
Tuesday, May 7, 2013
Thanks to Charlotte Garden (Seattle) for passing on this interesting and under-reported story about a new case just filed in California which has the potential to drastically change the way public unions operate in that state. The case is Friedrichs v. California Teacher Association and the complaint can be found here.
Peter Scheer on the 1st Amendment News website writes in his post, New 1st Amendment Case Poses Existential Threat to Public Employees Unions:
In a scarcely-noticed lawsuit filed [April 29th] in federal district court in Los Angeles, a conservative nonprofit, the Center for Individual Rights, claims that California’s system for collecting union dues from government employees abridges free speech safeguards by compelling employees to subsidize union political advocacy and activities with which they disagree.
And in case you think this case is a non-starter in light of the U.S. Supreme Court's Abood decision, think again:
On first look, the suit looks like a loser because the challenged union practices were upheld in a 20-year-old US Supreme Court decision, Abood v. Detroit Board of Education. Nonetheless, on second look, the suit has a very respectable chance of succeeding because of a 2012 Supreme Court decision, Knox v. SEIU, in which five justices said, in effect, that the Abood decision was a mistake. Also, the plaintiffs are represented by Jones Day, one of the biggest and best law firms in the country, which wouldn’t have taken the case unless prepared to litigate all the way to the nation’s highest court.
In other words, another attack on the very existence of public unions, like we have already seen in Wisconsin, Ohio, and Michigan. The California public employee unions are extremely strong and willing to put the necessary money into this litigation to win, so it is anyone's guess what might happen. It might come down to the judicial make-up of the California Supreme Court when, and if, the case is appealed there (as it did with Act 10 and the conservative-leaning Wisconsin Supreme Court).
Thursday, March 21, 2013
One of my favorite bloggers on higher education, Dean Dad at Confessions of a Community College Dean, asks: Should a public college partner with a private company to train scabs? I'd encourage Workplace Prof Blog posts to read the entire post and to comment over at Dean Dad's blog.
Anya Kamenetz has a thought-provoking piece about the Milwaukee Area Technical College’s agreement to run welding programs for Caterpillar. Caterpillar is expecting a strike, so it wants the local technical college to train its managers and non-unit staff to be able to do union jobs if its welders walk off the job. MATC is responding to employer need, offering training in an employable skill and thereby supporting the local economy. Now the Steelworkers’ union is petitioning MATC to refrain from what it considers pre-emptive strikebusting. It’s an ugly, sticky issue.
There’s nothing objectionable about a technical college teaching welding. It has done that for years, and I assume has done it well. And there’s nothing unusual about a college contracting with specific private employers to run classes or training workshops for its employees. Community colleges have done that for decades. * * *
In this case, the union is essentially asking the college to take a moral position that training these workers in this skill at this time is wrong. * * * [T]hinking through the consequences of taking a self-consciously moral position gets complicated quickly. Suppose MATC told Caterpillar to go away. The governor of Wisconsin isn’t known for being particularly union-friendly; I can imagine severe political (and therefore budgetary) consequences for the college far beyond the loss of the contract. Something like that is going on now in Michigan, where some public colleges are trying to sign long-term contracts with unions to beat the “right to work” deadline, and legislators are threatening budgetary retaliation. * * *
Wise and worldly readers, what would you do? If you ran MATC, would you honor the union request, or would you run the program?
Friday, February 8, 2013
Improving the working conditions of all American workers must include considering the voices of one group traditionally underrepresented in union ranks and leadership — women. In this paper, I explore the interrelationship between women, unions, and women’s willingness to negotiate. Despite the tumultuous history of women’s involvement in the unionized labor market, women’s participation in unions is increasing relative to men. Recent studies also reveal that women significantly benefit from union representation, even more significantly than men. One reason for this disparity is that many women have not been very successful in negotiating on their own behalf. For many reasons explored in this paper, many women have been socialized to be uncomfortable negotiating for what they deserve. Thus, women benefit by participating in unions, where the negotiation is done on their behalf, and we should be encouraging women’s involvement in unions. Furthermore, women are still grossly underrepresented in union leadership roles. Because studies show that women are more likely to join a union when there are more women leaders, increasing the number of female union leaders should lead to an increase in women’s participation in unions. More women in leadership roles also has the potential to improve the overall success of the union, garner more attention to issues important to women, and bring a new perspective to union/management negotiation. Even though the negotiation literature suggests that women are often unwilling to negotiate on their own behalf, this paper will demonstrate they are very willing to and effective at negotiating on behalf of others. Finally, I will demonstrate how effective women can be as leaders and advocates when they work together to reach a common goal.
Wednesday, December 5, 2012
Congratulations to Michelle Miller and Jess Kutch, friends of the blog, who have just officially launched Coworker.org and its first official petition campaign on behalf of a fired Walmart worker in Arkansas.
Here is what I wrote about Coworker.org in my recent paper considering alternative models to the existing Wagner Model of labor law in the United States:
[Coworker.org] is an online platform that puts the power of collective bargaining into the hands of all workers, all over the world. It represents a scalable departure from traditional union organizing by providing ordinary people with online tools and training to organize their co-workers and advocate for changes on the job.
When coworker.org launches, it will be a petition-based internet service. The worker’s initial point of entry will be the creation of a petition centered on the change they would like to see in their workplace and would target their bosses. The process of procuring fellow employees to sign the petition would be how these employees would form their organizing committees going forward . . . [B]y using social media “share” functions on services like Facebook and Twitter, workers will be able begin to promote their workplace campaigns and gather coworker interest in the same workplace issues.
It is a fabulous idea which responds perfectly and timely to the challenges facing worker rights organizations in our global, mobile, and tech-savvy economy. Check out the site and if the spirit moves you, sign the petition to get the Walmart worker her job back!