7766. Labor Law: The Union Organizing Campaign and the National Labor Relations Act

What do unions do? In the private sector, they negotiate and enforce contracts (“collective-bargaining agreements”) that govern wages, hours, and working conditions for employees who work in unionized firms. From an employee’s perspective, the contracts unions secure are typically superior to those governing non-union workers in at least four respects. First, they provide a wage-and-benefit package of significantly greater value than what’s on offer from similarly situated non-union firms. Second, they afford employees a collective voice in securing the particular mix of wages and benefits – as well as in improving the conditions under which they labor – rather than leaving those matters to the unilateral determination of the employer. Third, union contracts provide guarantees of job security – typically prohibiting discipline or dismissal in the absence of “just cause” – whereas the vast majority of non-union workers are employed “at will” and can be fired at any time for any reason not proscribed by positive law. Finally, union contracts come with their own enforcement mechanism: i.e., union representation in a dispute resolution process that is far faster, cheaper, and more effective than the judicial alternative. These and other benefits of union representation may help explain why more workers are actively seeking union representation today than has been the case since the turn of the century; why union win rates in representation elections are at a historic high; and why the icons of contemporary capital – including Starbucks, Chipotle, REI, Amazon, Apple, and Tesla – are among the most frequent targets of these efforts. Yet despite this recent spate of energetic organizing, it is fair to ask why so few U.S. workers have sought and successfully secured the benefits of union representation. (Currently, about 6% of the private-sector workforce belongs to unions, down from a post-World War II high of nearly 40%.) This course will explore that question and suggest a variety of possible legal, social, political, and economic explanations as we examine in some detail the contemporary union organizing campaign; the prohibitions under the National Labor Relations Act against employer interference with such campaigns; and the mechanisms available under the Labor Act for establishing a union as the legal representative of an employer’s workforce for purposes of collective bargaining.