LAW7696 - Crisis in American Labor Law

LAW7696 - Crisis in American Labor Law

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American labor law is in a state of crisis. In the private sector, labor unions are increasingly avoiding the election procedures established by the National Labor Relations Act (NLRA) in favor of union organizing strategies that bring pressure on target employers through the strategic deployment of laws including minimum-wage, occupational health and safety, and anti-discrimination laws exogenous to traditional labor law governance. Struggling to regain its relevance to contemporary American labor relations, the National Labor Relations Board (NLRB) the agency charged with enforcing the NLRA and long criticized by labor supporters for its cumbersome processes and protracted delays has responded by undertaking an ambitious effort to streamline those procedures and to reinvigorate the legal protections available for organizing and collective bargaining under the NLRA. But the agency's efforts have in turn prompted unprecedented Congressional challenges, from legislation recently approved by the House that would greatly diminish the agency's remedial powers to at least one bill that would eliminate the agency altogether. In the public sector, a number of states have enacted legislation restricting collective-bargaining by state employees, in some cases eliminating it altogether as a means of establishing the terms and conditions of employment for public sector workers, and a confluence of liberal and conservative voices are increasingly critiquing the role of teachers unions in public education. Viewing the larger picture, it is fair to say that the rules, practices, and institutions of American labor law in the private and public sectors alike are up for grabs in a way they haven't been since the New Deal. The purpose of this seminar is to explore in some depth three case studies that illustrate the developments described above. First, we will undertake a detailed study of an ultimately successful organizing campaign by the Service Employees International Union in order to examine the novel legal strategies particularly those drawing on law from outside the NLRA deployed by labor and management alike in the course of that struggle. Second, we will undertake a detailed study of the ongoing Boeing litigation before the NLRB, where the agency's general counsel has charged the firm with unlawfully transferring production work from its unionized plant in Washington state to a non-union plant in South Carolina in order to punish employees for exercising their rights under the NLRA and seeks a remedy that would restore the transferred work; we will also explore the political fallout and Congressional responses that have ensued. Finally, we will take a close look at the thus-far successful effort in Wisconsin to restrict and in some cases eliminate public-sector collective bargaining as well as the strategies organized labor is deploying in response. The individual case studies will enable us to take a close look at the rapidly changing role of law in contemporary American labor relations and may also shed some light on the larger social, ideological, and economic developments that have led to this extraordinary moment. Grades will be based on class participation and a research paper.