Tuesday, May 20, 2008

Lofaso on the September Massacre

LofasoAnne Marie Lofaso (West Virginia) has posted to SSRN her paper "September Massacre: The Latest Battle in the War on Workers' Rights Under the National Labor Relations Act," which was recently distributed by ACS.  The abstract:

This paper, electronically distributed on May 14, 2008, by the American Constitutional Society for Law and Policy, focuses on several of the sixty-one decisions issued by the National Labor Relations Board in September 2007, a group of decisions that many in the labor community have referred to as the "September Massacre." The paper discusses the decisions and their effects on the right to organize and other rights guaranteed under Section 7 of the National Labor Relations Act. The paper also explores "the aggregate, weakening effect by both the Bush Board and prior governmental action." In exploring the decisions within this larger context, the paper explains that "many of the September decisions fit into a long history of legislative, administrative, and judicial cutbacks to the original NLRA," and might most accurately be viewed as "the latest, and perhaps most serious, attack on workers' rights." The paper pays special attention to the NLRB's Dana Corporation decision, one of the September decisions that is particularly harmful and revolutionary. The paper concludes with some thoughts on what the labor movement can do to regain economic and political power. Along those lines, the paper suggests a course that includes political activism, legislative changes (both substantive and procedural) to the NLRA, a federal judiciary willing to reverse the NLRB in appropriate circumstances, labor advocates being willing to use what remains of the NLRA to further workers' rights, and renewed attention to the teaching of labor law in our nation's law schools.

We've posted on these issue more times than I care to count and this paper does a nice job synthesizing what these cases mean and what the Board should be doing instead.



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Lofaso's whiny discussion of Dana is notable for its scrupulous failure to recognize that all that the decision does is provide employees with a mechanism for challenging a recognition, which may have been obtained through coercive UNION means, through a secret-ballot election. Perhaps she proceeds from the unspoken premise that there is no such thing as union coercion, or that it is necessary or justified to "aid" workers in overcoming their "false consciousness."

It is a measure of the "product" which unions have to sell that they --- and their apologists in the academy --- so fear a secret ballot. They would do well to remember the Supreme Court's admonition in Lechmere, which Lofaso discusses while managing to miss its core premise: “By its plain terms, ... the NLRA confers rights only on employees, not on unions....” Lechmere, Inc. v. National Labor Relations Board, 502 U.S. 527 (1992). Of course, when one can't tell the difference between "hostility to unions" and protection of employee rights, it is hardly surprising that one might declare Dana/Metaldyne "revolutionary."

Posted by: James Young | May 22, 2008 8:03:34 AM

As a management lawyer I am nevertheless puzzled at the aggressive tone of Mr. Young's comment. "Whiny"? "scrupulous failure"? And when he runs out of acrimony, he imagines her thinking (rather than confining his remarks to what thinking is obvious from her work), and stoopsto straw men, hence: "Perhaps she proceeds..." Let's keep the party polite.

Posted by: Burr Anderson | Jun 2, 2008 7:01:29 PM

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