MY COMMENT AT ANGRY BEAR TODAY -- Asserts states
may today order certification elections with a finding of
illegal blocking -- argues no federal action to directly (or
mostly even indirectly) protect organizing substantively exists
to preempt; First Amendment invoked.
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Today’s News & Commentary — September 26, 2016
Posted on September 26, 2016 by Emily Miller
“A recent op-ed in the Washington Examiner argued that federal lawmakers may be able to address the standstill in federal labor law simply by authorizing waivers which would allow states to opt out of the federal regime. The waivers would open the door for states to experiment with policy which better addresses the challenges of modern business models and allow unions to take on new responsibilities to better serve their constituents.”
https://onlabor.org/2016/09/26/todays-news-commentary-september-26-2016/
WASHINGTON EXAMINER
Waivers can fix out-of-date federal labor laws
By Andrew Stern & Eli Lehrer • 9/22/16
“Few relationships in America suffer as unnecessarily thanks to federal government morass as that between employer and employee. In fact, the fundamental structure of labor relations has changed rather little since the Taft-Hartley Act (1947). [...] Current proposals to make significant, nationwide changes to federal labor laws have almost no chance to be signed into law. And indeed, recently the focus has shifted instead to the state and local level.”
"Andrew Stern is former president of Service Employees International Union and a senior fellow at Columbia University. Eli Lehrer is president of the R Street Institute, a conservative think tank based in Washington, D.C."
Nota bene: one major labor leader and one rock-ribbed conservative.
http://www.washingtonexaminer.com/article/2602523
This could open the way for progressive states (WA, OR, CA, NV, MN, IL, NY, MD, etc.) to supplant (today’s virtually non-existent) federal enforcement of the right to organize by allowing a finding of penalizing organizers or joiners (principally by firing) to lead to a mandated certification election (not anybody’s agenda but mine at the moment; but maybe we’ll get there).
It is even possible to come up with a plausible legal argument that states could impose elections today — on the theory that the doctrine of federal preemption cannot hold sway where there is virtually (substantively) no federal presence to preempt.
There is literally no criminal or civil penalty for muscling employees out of their legally defined right to organize today.
Theoretically there is some protection for organizers (not sure about joiners) in the NLRB’s ability to command they be re-hired with back pay (minus earnings elsewhere). But, even if fired organizers had to be re-hired for life, the labor market power play would remain un-done. The fact that most re-hired are re-fired within twelve months makes even that sop mostly non-existent.
The right to organize a collective bargaining unit is a First Amendment right (commercial freedom of association). Any legislation simply barring organizing would run right smack into a First Amendment barrier.
When the federal government puts in place a setup that claims to preempt actual enforcement of that primary (that’s why it’s the “first”) constitutional right — but which mechanism actually has no power to enforce at all — then, said bogus preemption can reasonably be argued to contradict the First Amendment.
Arguable — and at least powerfully makes the point that there is today no legal support for organizing collective bargaining units at all.
States can add to federal labor protections but not subtract (e.g., minimum wage). In the absence of actually working protection of organizing (not just organizers) states should feel free to impose certification elections where labor market warping is found.
Union busting should be a felony (taken at least as seriously as taking a movie in the movies ;-]) — but mandating elections could be the most direct remedy for union blocking.