Monday, March 5, 2012

A Private Right of Action Under NLRA?

NLRBThat's the proposal by Richard Kahlenberg and Moshe Marvit in a recent New York Times op-ed. Looking for a solution to the low rate of unionism, the authors propose expanding Title VII to include protections for union activity:

[T]he greatest impediment to unions is weak and anachronistic labor laws.  It’s time to add the right to organize a labor union, without employer discrimination, to Title VII of the Civil Rights Act, because that right is as fundamental as freedom from discrimination in employment and education. This would enshrine what the Rev. Dr. Martin Luther King Jr. observed in 1961 at an A.F.L.-C.I.O. convention: “The two most dynamic and cohesive liberal forces in the country are the labor movement and the Negro freedom movement.  Together, we can be architects of democracy.”

Our proposal would make disciplining or firing an employee “on the basis of seeking union membership” illegal just as it now is on the basis of race, color, sex, religion and national origin. It would expand the fundamental right of association encapsulated in the First Amendment and apply it to the private workplace just as the rights of equality articulated in the 14th Amendment have been so applied.

I made a related argument at one point, as part of a much larger reform effort, so I have some sympathy with the proposal.  That said, there would be something lost in moving to private rights of action.  Although public enforcement would remain possible, one only has to look at the EEOC to see how that would end up.  And, as I saw first-hand, losing public enforcement means that cases without significant damages will have a difficult time finding an attorney.

-JH

https://lawprofessors.typepad.com/laborprof_blog/2012/03/a-private-right-of-action-under-nlra.html

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Comments

And, of course, the authors propose a strictly one-way "right."

Posted by: James Young | Mar 5, 2012 7:14:53 PM

James,

Considering it is solely about firing an individual - it seems that a union could not do that.

Posted by: Per Son | Mar 6, 2012 12:05:26 PM

Yeah, "Per Son." Because we all know that unions NEVER try to get employees fired.

snark off

Posted by: James Young | Mar 6, 2012 2:10:54 PM

They certainly do, but ultimately it is the employer who runs the show. The proposal here is solely limited to terminations. I personally have a problem with this proposal, and believe strengthening the NLRA is the way to go. Judges already have no understanding of the NLRA, and the idea of defining union status is difficult (e.g. Defer to NLRB to definition or whattabout unrecognized unions).

Posted by: Per son | Mar 6, 2012 4:42:29 PM

Section 301 already creates a private right of action against one's union for a duty of fair representation violation. I am not sure a situation could exist where a union could discriminate against an employee on the basis of Section 7 activities and not also give rise to a dfr violation.

Posted by: anonymous | Mar 6, 2012 5:21:57 PM

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