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Abstract:
The NLRA's increasing obsolescence in the modern workplace is well-documented. Nowhere is this problem more apparent than where unions and employees use the Internet and other electronic communications to further employees' collective interests. Electronic communications pose significant challenges to several of the NLRB's anachronistic rules - challenges so great that, as explained by public choice theory, the NLRB's failure to adapt sufficiently may result in the NLRA's losing what little relevance it currently possesses. Yet, I remain sanguine about the NLRA's survival. The NLRB has recently signaled that it will comprehensively address the NLRA's application to electronic communications. Thus, I am hopeful that the Internet will act as a catalyst for the NLRB to make the changes needed to ensure the NLRA's effectiveness and relevance in the modern economy.

Labor, Union, Internet, NLRA, NLRB, Public Choice

Abstract:
Today's workplace regulatory system consists of a confused web of rules derived from multiple sources of law. Nowhere is this confusion more apparent than the governance of terminations. Scores of federal laws apply to the end of the employment relationship. In addition, state and local governments have their own set of termination rules, which may or may not track the federal rules. The result is a patchwork of regulations that often require parties to apply different standards, and to pursue claims in multiple forums, for the same dispute. This complexity makes it difficult for both employers and employees to understand, comply with, and enforce termination rules. Those difficulties, in turn, undermine the rules' effectiveness and result in a system of workplace regulations that often fails to achieve its goals.

In response to this problem, this Article proposes a universal law of termination. This federal law would replace all current state, local, and federal rules governing terminations. The central substantive provision of the law of termination would be a prohibition against terminations that lack a reasonable business justification. However, the proposal's central aim is not to promote unjust termination protection on its merits. Rather, the Article takes a pragmatic approach to workplace regulation and makes the perhaps counter-intuitive argument that we can better achieve the goals of today's termination rules by replacing them with a single law of termination.

employment, workplace, termination, dismissal, federalism

Abstract:
In this Article, we ask whether the National Labor Relations Act, enacted over 70 years ago, can remain relevant in a competitive economy where nonunion employer discretion is the dominant form of workplace governance. The best opportunity for the NLRA's continued relevance is the modification of its language and interpretation to enhance worker voice and participation in the nonunion private sector, without imposing undue costs on employers. Examples of such reforms include narrowing the NLRA's company union prohibition; implementing a conditional deregulation system that relies on consent by an independent employee association; changing the labor law default to some form of a nonunion work group; expanding state and local authority over labor relations; and encouraging NLRA protection for employee use of employer-owned Internet services. These legal innovations have the potential to be welfare enhancing, as compared to outcomes likely to evolve under the current legal framework. Although the political likelihood of such changes is currently low, steps in this direction could result in an increased relevance for the NLRA in the modern economy.

Labor, Unions, Economics

Abstract:
The world economy is truly an international one. Technological advances in transportation and communications have eliminated many of the geographic barriers to trade and systems of production. Accompanying this change in product markets has been the globalization of labor markets, which means that many workers throughout the world must compete not locally or nationally, but internationally.

The growth in labor globalization has presented unions and other employee-side groups with both challenges and opportunities. By providing new alternatives to union labor, globalization weakens what is an already declining influence of unions on industry-wide labor markets. The lack of control over labor markets, as well as the increased competition that businesses face in a global economy, have given unions fewer opportunities to achieve gains for workers. Despite these challenges, globalization provides unions with opportunities. Technological advances in communications provide a much broader audience for publicity campaigns, which often pressure the company to adopt a code of conduct. Moreover, as the global labor market expands so does the pool of potential allies. The rise of multinational companies that can draw workers from a wide variety of labor markets means that unions in each of those markets have an incentive to work together and bring a level of pressure beyond the capabilities of any single union. Additionally, existing international frameworks such as treaties and trade agreements provide opportunities to add new labor commitments or to enforce already existing labor standards.

This chapter argues that the extent to which these various forms of global collective action are able to produce real benefits for workers is questionable. At a minimum, it appears difficult for any one strategy to achieve meaningful gains on its own. Instead, collective action in the global economy must reflect the complex and multifaceted nature of that economy. Businesses deal with a wide variety of competitive and product market pressures and unions, in turn, must recognize those various issues and engage in strategies that are equally as comprehensive.

unions, globalization, economics, collective action, international, treaties, codes of conduct

Abstract:
Workplace governance in the United States is a fragmented system of rules emanating from local, state, and federal governments. This fragmentation has created a suboptimal system of regulation in which unnecessary inefficiencies hinder the enforcement of workplace laws, making their protections little more than a false promise for many workers. Ironically, these problems are at least partially the result of too many disparate rules. Thus, a reduction in the number and complexity of workplace regulations could improve the effectiveness of the system as a whole. Achieving that goal warrants a solution that reflects the magnitude of these problems; tinkering at the margins will accomplish little. Accordingly, this Article proposes a revolutionary reform: the nationalization of workplace law. The modern economy no longer justifies local control over the workplace, especially given the problems with our current federalist model of regulation. Moreover, the federal government's structural advantages gives it the best opportunity to push workplace law towards a more optimal level. Exclusive federal regulation will also allow for significant streamlining and simplification of workplace law, thereby making it more effective than our current system.

employment, labor, union, federalism

Abstract:
The rise of globalism has allowed businesses to expand their chains of production across the world and forced them to compete internationally. This expansion of competition has also extended to the labor market, as workers must now often compete with other workers from around the globe. This increased competition has put severe downward pressure on wages and compensation, while at the same time making it far more difficult for workers to press for improvements in the workplace. The result is a growing need for employee collective action, combined with a decreased effectiveness of such measures.

This Article examines the main strategies for employee collective action, including coordination among foreign employee groups, pressure on employers to adopt codes of conduct or other voluntary labor standards agreements, new types of employee groups that focus on the needs of workers in the global economy, and government action that promotes labor standards and rights in the global economy. None of these strategies has produced substantial gains for workers thus far, and it is quite possible that this disappointment will continue for the foreseeable future. The effectiveness of these strategies will likely improve as employee groups become more adept at finding the combination of the techniques that provides the most benefit in a given situation; however, the competitive pressures of globalism will always remain as a significant impediment. This Article therefore argues that the only real hope for genuine improvements in the workplace - particularly for low-wage employees - is government action. Whether through domestic legal protection for employee collection action or pressure on other countries in support of labor standards, government action remains the best, albeit far from assured, hope for workers in the global economy.

labor, employment, work, union, globalism, treaties

Abstract:
Currently, the National Labor Relations Board determines whether union organizers have a right to access employer property by looking almost exclusively to an employer's state law right-to-exclude. If the employer possesses such a right, an attempt to exclude organizers will generally be lawful; if the employer lacks that right, the exclusions will be unlawful. This analysis makes little sense, as an employer's state property interests are irrelevant to the primary labor issue in these cases - whether the exclusion interferes with employees' federal labor rights. Employees will tend to view hostile or discriminatory exclusions of organizing activity as coercive, whether or not the employer has state right-to-exclude. Further, because the property rights issue is often complex, an employer cannot be sure of its ability to exclude organizers until litigation has ended and is thereby forced to decide whether to allow what is arguably a trespass, or protect its property interests and risk a labor law violation. The focus on state property rights also creates significant problems for the NLRB, as its lack of expertise in state property law leads to delay and often poorly reasoned decisions.

I propose, therefore, a new analysis that eliminates consideration of state property rights from the NLRB's right-to-access cases. Under my proposal, which I argue is more faithful to the Supreme Court's Lechmere doctrine than the current analysis, the NLRB would focus on whether the manner in which an employer excludes organizers chills employee rights, while property issues - such as a trespass claim against organizers - would be determined by state courts. By creating a set of presumptions to guide employer attempts to exclude, the proposal would provide clarity for all parties, better protect employees' labor rights, and free the NLRB from its struggles with state property law.

Labor, Property, Lechmere, Union, Organizing

Abstract:
The need to attract and keep soldiers has never been greater, yet that necessity is threatened by the Supreme Court's burgeoning state sovereign immunity jurisprudence. Congress has sought to promote military service in the Uniformed Services Employment and Reemployment Act (USERRA), which protects soldiers from adverse employment actions based on their military status. Although USERRA is clearly intended to apply to state employers, the Court's dicta that Congress cannot abrogate state sovereign immunity under Article I of the Constitution appear to emasculate that aim. This article, however, argues that the Court's recent holdings show that USERRA's abrogation, enacted pursuant to Congress's war powers, is an exception to the general prohibition against abrogation under Article I. The validity of war powers abrogation is supported by the historical importance of a unified national defense - well recognized during the plan of the constitutional convention and by the Court itself - which reveals that the states did not expect to possess immunity where the federal government exercises its war powers. This issue is important, for, as this article details, few suitable alternatives exist for military personnel who are deprived of their USERRA rights by state employers. Indeed, unless war abrogation is upheld, or Congress acts to secure conditional waivers of state immunity, military employees in only a few states will have the level of protection deemed necessary by Congress.

Federalism, Sovereign Immunity, Employment, War Powers

Abstract:
In this Article, we ask whether the National Labor Relations Act, enacted over 70 years ago, can remain relevant in a competitive economy where nonunion employer discretion is the dominant form of workplace governance. The best opportunity for the NLRA's continued relevance is the modification of its language and interpretation to enhance worker voice and participation in the nonunion private sector, without imposing undue costs on employers. Examples of such reforms include narrowing the NLRA's company union prohibition; implementing a conditional deregulation system that relies on consent by an independent employee association; changing the labor law default to some form of a nonunion work group; expanding state and local authority over labor relations; and encouraging NLRA protection for employee use of employer-owned Internet services. These legal innovations have the potential to be welfare enhancing, as compared to outcomes likely to evolve under the current legal framework. Although the political likelihood of such changes is currently low, steps in this direction could result in an increased relevance for the NLRA in the modern economy.

labor law, employment law, unions, worker voice

Abstract:
The National Labor Relations Board has never been an agency known for its ability to adapt quickly to changing times. So, it is perhaps no surprise that when the Board finally decided to address its regulation of e-mail and other electronic communications in its 2007 Register-Guard decision, it sounded like an agency still stuck in the New Deal era. The Board's e-mail decision was a missed opportunity. Instead of adapting its regulations to the modern economy, the Board looked backward and made itself and the act it enforces even less relevant than they were before.

Although a relatively new phenomenon, employee use of e-mail and other electronic communications for collective purposes implicated an issue that has existed since the early days of the National Labor Relations Act: the conflict between employers' property rights and employees' right to engage in collective action. The Board's decision in Register-Guard is significant, as well as troubling, because it ignored long-established precedents in both labor and property law by elevating in virtually all instances employers' personal property interests in their computer systems above employees' NLRA rights. Moreover, in an aspect of Register-Guard that was less anticipated than the e-mail issue but ultimately more far-reaching, the Board modified its general approach to all communication policy cases - even those not involving e-mail - by implementing an extraordinarily narrow definition of unlawful "discrimination".

Register-Guard's rulings on e-mail usage and discriminatory restrictions on workplace communications represent a sea change in how the Board regulates employees' ability to discuss collective issues at work. Whether the case survives long enough for these rulings to make a lasting impact is unclear. What is more obvious, however, is that the Register-Guard Board further cemented its image as an agency mired in the past. A future Board that wishes to shed this persona must find a way to give electronic communications and unequal access rules the respect that they deserve under the NLRA.

labor, union, nlrb, e-mail, computer, internet

Abstract:
Current governance of the workplace originates from local, state, and federal governments. In some areas, such as private-sector labor law under the National Labor Relations Act, there is a single source of law supported by a unified enforcement scheme. Yet much of the time a given workplace dispute will fall under the laws of different jurisdictions, each of which gives rise to multiple causes of action. The result is an unjustifiably complex workplace governance system that undermines its own goals. Of more immediate concern is a recent movement to make this problem worse by increasing states' power to regulate the workplace. This argument, which is the latest iteration of a long-running federalism debate, has gained more traction recently because of the justified perception that recent enforcement of federal workplace laws has been inadequate. I agree that enforcement is a serious problem, but draw the opposite inference. If the goal is to increase enforcement of existing workplace protections, we should not only resist giving states more power; we should take away the power that they currently possess.

employment, labor, union, federalism

Abstract:
In "Information and the Market for Union Representation," (94 Va. L. Rev. 1 (2008)) Professor Matthew Bodie provides an instructive framework for addressing information deficiencies in union elections. His consumer or "purchase of services" paradigm is apt and well illustrates the shortcomings of the more dominant approaches to elections. The extent to which this paradigm should drive the National Labor Relations Board's (NLRB) regulation of union elections is less obvious. The best fit with Bodie's consumer paradigm appears to be a system in which employees can easily designate a union as their representative, yet can just as easily get rid of the union. In other words, employees, like many other consumers, could purchase union services with the knowledge that they can easily change their mind later. It is not clear, however, whether the benefits associated with that "Rent To Own" model are worth its costs.

Bodie's consumer paradigm provides a valuable insight into the information deficiencies implicated by union elections. At a minimum, this model should inform the NLRB's regulation of union elections. Yet relying on the model too much could lead to more problems than it is worth. Identifying the most effective middle ground between these concerns is difficult; indeed, such ground may not exist. Despite this uncertainty, Bodie's consumer paradigm serves an important role, as it provides further evidence that the NLRB's current governance of elections is in dire need of reform and establishes itself as a essential factor in any future attempts at reform.

union, labor, nlrb,

Abstract:
In a decision from the last term, the Supreme Court held that a state law prohibiting the use of state funds by employers for both anti- and pro-union advocacy was preempted by federal law. The Brown decision sparks this debate between Professors Paul M. Secunda and Jeffrey M. Hirsch, as to whether the federal government or the states are best equipped to protect the rights of workers under the law.

Professor Secunda argues that federal regulation enacted to protect workers in the workplace has suffered from lack of enforcement and political bias. Thus, because "the federal government... has proven unwilling and unable to protect the basic rights of workers," he maintains that "state law should be permitted to play a complementary role in all of the areas of workplace regulation where federal law is silent or absent." Individual states, then, could act as "laboratories" that could "engage in thoughtful, legislative experimentation." Finding the idea of an exclusive federal scheme likely to result in "self-selection bias and inefficient prioritization of agency resources," he concludes that needed regulation may only be available to the states.

Professor Hirsch counters that Professor Secunda's proposal would exacerbate the problems with the current underenforcement of workers' rights, which at least partly results from the complexity created by a regulatory framework made up of federal, state, and local law. As a solution, Hirsch proposes that the federal government should be given exclusive control of the workplace, under a single system of enforcement and regulation. His suggested changes include a single workplace law statute, a single agency to administer that statute, and a litigation-based enforcement approach that includes the creation of private-rights of action for violations and the creation of a specialized Article III labor and employment court. Thus, while conceding that "the federal government's regulation of the workplace has been far from perfect," he argues that "it is a far better choice than fifty different state regimes."

federalism, employment, workplace

Abstract:
On a theoretical level, employee ownership may result in significant advantages for firm performance over conventional investor ownership. Evidence reveals, however, fewer employee owned firms than such theories would suggest, resulting from either overly optimistic or misguided theories, or from other factors that may limit the number of employee owned firms. The “survivalist” critique, as argued most notably by Professor Henry Hansmann, suggests that this paucity of employee-owned firms is evidence of their inefficiency relative to investor-owned firms. This Article contends that labor law may be a limiting factor that creates obstacles to the implementation of employee ownership and control; therefore, labor law may be a reason for the relatively low number of plans, not the inefficiencies cited by the “survivalist” critique.

union, labor, ESOP, labor