Labor Law Talk

American labor law has reached a critical point. Private sector union membership has declined from 35 percent in 19543 to 7.6 percent today.4 The National Labor Relations Act (NLRA),5 which was enacted in 1935 to protect the rights of employees to form, join, and assist labor organizations and to select exclusive bargaining agents to negotiate their basic terms of employment, has become an outdated and anemic statute. When the NLRA was passed, the United States was a mass production economy dominated by relatively large corporate employers, most of whose employees desired union representation. The existing American Federation of Labor (AFL), which consisted primarily of trade unions representing skilled craft workers, did not know how its union affiliates could effectively organize industrial bargaining units consisting of skilled, semi-skilled, and unskilled workers. It formed the Committee for Industrial Organization to develop a strategic plan. AFL leaders hoped to organize employees in the automobile, steel, rubber, and electrical manufacturing industries and divide those individuals among different trade unions. When it became clear to union leaders on the Committee for Industrial Organization that such a system would not work well for industrial workers, they withdrew from the AFL and formed the Congress of Industrial Organizations (CIO).

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One of the most common calls I receive in my office are calls involving employment situations. On a weekly basis I’ll get a call from someone who was fired regarding their situation. The call invariably ends with the question, “Can they fire me for that?” About nine times out of ten, the answer is “yes.” Texas is essentially an “employment at will” state. Basically this means that, unless you have an employment contract, you can be fired or you can quit at any time, for any reason, or for no reason at all. Say the boss doesn’t like your shoes? She can fire you. Say you don’t like the tie the boss is wearing? You can quit.

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With the filing of the Employee Free Choice Act of 2009 (EFCA) on March 10, 2009,1 Congress has addressed a significant policy debate regarding the appropriateness of allowing unions to be certified by the National Labor Relations Board (NLRB) as the representative of employees in an appropriate bargaining unit if a majority of employees sign valid union authorization cards.2 Under the proposed legislation, unions would also continue to have the right to petition the NLRB for Board-conducted secret ballot elections, after a showing that at least thirty percent of the employees had signed authorization cards.3 Critics of the legislation allowing Board certification based on a “card-check” majority believe that it is contrary to democratic principles,4 while proponents believe it remedies employer abuses inherent in the current Board electoral model of determining representation status.5

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Last week, one of my close relatives came to my father, with swollen eyes and vexed expressions on his face. He came to discuss a pressing issue. According to him, he was terminated from his job without any prior notice. He was worried not because he was fired from his job unduly but for the reason that whether he would be able to find a new one or not. In other words, he was, in fact, not aware of his legal rights as an employee.

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In March 1991, the New York Times reported that during the investigation of Los Angeles police officers involved in the beating of Rodney King, more than two dozen investigatory interviews with officers had been abruptly discontinued. The article, entitled “Officers’ Rights Hinder FBI Inquiry into Beating,” noted that two years earlier, police chief Daryl Gates had issued a directive ordering officers to cooperate in investigatory interviews, even at the risk of incriminating themselves. The penalty for refusing to do so, Gates had said, would be “disciplinary action up to, and including, termination.”1

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“United we stand, Divided we fall”, so say our ancestors. That is what they learnt from their experiences and we inherit. Recollecting the concept of unionism and thereby Collective Bargaining in India we have to trace back to pre independence era. The modern concept of Unionism in India received due recognition with the enactment of Trade Unions Act, 1926.

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In Penn Phzfl LLC v. Pyett,1 the United States Supreme Court, in a 5-4 decision, held that parties governed by the National Labor Relations Act (NLRA)2 can agree to require employees to arbitrate workplace discrimination claims arising under the Age Discrimination in Employment Act (ADEA).3 The only proscription imposed by the Court is that the agreement to arbitrate such claims be explicitly stated in clear and unmistakable language.4 Reversing the decision of the United States Court of Appeals for the Second Circuit,5 which had affirmed the district court’s holding,6 Justice Thomas’ majority opinion determined that arbitration of employment-related ADEA claims is a mandatory subject of bargaining under the NLRA and that the ADEA did not remove grievances involving such claims from the NLRA’s broad sweep.7 Justice Thomas also concluded that an agreement requiring arbitration of workplace ADEA claims is fully enforceable under Alexander v. Gardner-Denver Co.8 and its progeny.9 Although Penn Phzfl’s express holding is limited to the ADEA, the Court’s reasoning should apply to other federal or state employment-related statutory or common-law claims (non-contractual legal claims). The Court’s reasoning should also apply to employers and unions governed by the Railway Labor Act.10

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