2015 National Lawyers Convention
Our nation's private sector labor law is a product of the New Deal and the industrial age. In its first edition, the 1935 Wagner Act, employee rights to organize were recognized and employer unfair labor practices were defined. Twelve years later, the pendulum swung and union unfair labor practices were added to the Act. To address corruption, the 1959 Landrum-Griffin Act was enacted to require labor organizations, employers, and labor relations consultants to file annual reports, and union members were granted a Bill of Rights. The NLRA was last amended in 1974, addressing the health care industry.
Over the past 80 years, our nation's economy, indeed, the global economy, has changed significantly. While some efforts have been made over the last four decades to amend federal labor law, none have succeeded. To fill the vacuum, the National Labor Relations Board has stepped in as what some would describe as a quasi-legislature, issuing decisions and rules reflecting the Board's political majority's bias to circumvent Congressional deadlock.
Should labor law be viewed as a vehicle to restore organized labor's density of 60+ years ago or to ensure employee rights to join or not join a labor union? Or, should labor law be overhauled to ensure labor unions' presence globally and to empower organized labor to affect or determine global work standards and business models generally? And, should labor law be politically aligned with one party? Is labor law about the American citizen/worker or about organized labor's institutional survival?
Labor & Employment: 80th Anniversary of the National Labor Relations Act & Congressional Action
2:00 p.m. – 3:30 p.m.
- Prof. Richard Epstein, Laurence A. Tisch Professor of Law. Director, Classical Liberal Institute, New York University School of Law
- Hon. John N. Raudabaugh, Reed Larson Professor of Labor Law, Ave Maria School of Law
- Mr. Bill Samuel, Director of Government Affairs, AFL-CIO
- Mr. Mark Schneider, General Counsel, Int'l Association of Machinists and Aerospace Workers
- Moderator: Hon. Joan L. Larsen, Associate Justice, Supreme Court of Michigan
The Mayflower Hotel Labor & Employment Law Practice Group Podcast
On December 15, 2014, the National Labor Relations Board published a final rule amending its representation case procedures, which will become effective on April 14, 2015. According to the Board, the final rule retains the essentials of existing representation case procedures but removes “unnecessary barriers to the fair and expeditious resolution of representation cases.” Among other things, the rule shortens the election process to as few as 14 days from the current median time of 38 days, requires employers to give unions employees’ personal telephone numbers and email addresses, and makes post-election appeals discretionary with the Board rather than as of right.
The final rule has been challenged in lawsuits brought by employer associations in the U.S. District Courts for the District of Columbia and Western District of Texas. The complaints allege that the rule will restrict communication between employers and employees before an election, depriving employers of due process and speech rights and employees of information needed to decide intelligently how to vote.
Labor & Employment Law Practice Group Podcast
- Homer L. Deakins, Jr., Chairman Emeritus, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
- Brent Garren, Deputy General Counsel, Local 32BJ, Service Employees International Union
- Hon. John N. Raudabaugh, former member, National Labor Relations Board, Reed Larson Professor of Labor Law, Ave Maria School of Law, National Right To Work Legal Defense Foundation
In 2012 and 2013, Indiana and Michigan, respectively, passed Right to Work laws covering both public and private sector employees. Wisconsin (2012) passed Act 10, which created Right to Work protections for most public employees and limited many aspects of public sector bargaining.
In response to this legislation, unions and their supporters in each of these states filed numerous state and federal lawsuits, challenging these laws on a wide variety of federal and state constitutional grounds. Some of the cases have been decided and others remain pending. The Wisconsin Supreme Court recently turned down a major challenge to Act 10, the Indiana Supreme Court recently heard oral argument on one state constitutional challenge, and the Michigan Supreme Court is slated to hear oral argument soon on a challenge brought by civil service unions. In addition, employees seeking to resign their memberships or cut off dues deductions have filed numerous actions in state courts and administrative agencies to enforce the laws in the face of union policies designed to restrict resignations and dues revocations. The current status of the three states’ laws and the many court challenges will be discussed in this Teleforum.
Labor & Employment Law Practice Group Podcast
- Milton L. Chappell, Staff Attorney, National Right to Work Legal Defense Foundation
Is Harris v. Quinn a landmark in labor law? The case asked the Court to decide whether the First Amendment bars Illinois from compelling personal homecare providers to accept and financially support a private organization as their exclusive representative to petition the state for greater reimbursements from its Medicaid programs.
Viewed narrowly, Harris is a challenge to the organization of home-care workers, asking the Court to clarify whether a state's interest in maintaining "labor peace" -- the justification for allowing government to burden workers' First Amendment rights by requiring them to associate with and support a labor union -- is sufficient in these circumstances.
But Harris also asked whether a state ever has an interest sufficiently compelling to require its own workers to speak to it through the intermediary of a labor union. It was only in 1977, in a case called Abood v. Detroit Board of Education, that the Supreme Court held that "labor peace" justifies this imposition on government employees' First Amendment rights. The Harris petitioners contend that Abood was wrongly decided and that governments never have any sufficiently compelling interest to compel their workers to support a labor union. Does the majority opinion's language on Abood signal the Court is ready to reverse it when the right case presents itself?
First Annual Executive Branch Review Conference
- Prof. Samuel Bagenstos, University of Michigan Law School
- Andrew M. Grossman, Associate, Baker & Hostetler LLP, Adjunct Scholar, The Cato Institute
On June 11, 2013, the Federalist Society's Executive Branch Review Project held its First Annual Executive Branch Review Conference at the National Press Club in Washington, DC. The first breakout session featured this panel discussion on labor and employment law.
Recent Developments in Labor and Employment Law
10:10 a.m. - 11:10 a.m.
- Ms. Caroline Fredrickson, President, American Constitution Society for Law and Policy
- Prof. Tuan Samahon, Villanova University School of Law
- Hon. Peter Schaumber, Former Chairman and Board Member of the National Labor Relations Board
- Moderator: Mr. Richard Wolf, Supreme Court Correspondent, USA Today
National Press Club