Ending Our Anti-Union Federal Employment Policy
Scalia, Eugene, Harvard Journal of Law & Public Policy
The editors invited me to offer advice to the next President. This was difficult, because a draft was due before we knew who the next President would be: In one circumstance I would advise forceful assertion of executive powers. In the other circumstance my advice might have been, "Resign! Admit Your Transgressions!"
I have had to select an area of the law, then, where the nation would benefit from the candidates of both major parties heeding the same advice. It also has the virtue of being my principal area of practice, labor and employment law.
Practitioners speak of "labor" and "employment" law as two distinct fields, with "labor" law encompassing labor-management relations -- unionization, strikes, collective bargaining, and the law under the National Labor Relations Act ("NLRA")(1)--and "employment" law encompassing everything else: discrimination, wage and hour regulation, occupational health and safety, wrongful termination, etc. Some practitioners still proudly identify themselves as "real" labor lawyers, by which they mean they are of the cigar-chomping, rough-and-tumble world of labor-management relations. Not for them, the delicacies of the discrimination laws and individual rights litigation. Many discrimination lawyers, meanwhile, know as much about the NLRA as your average telecommunications lawyer.
Our federal labor and employment laws and policy embody the same disjunction: Federal employment laws are written and enforced with little regard to whether the workforce they are applied to is unionized. This Article argues that this state of affairs is one unions and business--and hence, roughly speaking, Democrats and Republicans--should want to end.
The NLRA was one of the first federal laws to regulate the workplace and reflects a very different approach toward regulation than federal "employment" laws. It is constitutive, intended to establish a framework by which employees may achieve for themselves the things the employment laws provide by direct intervention. Specifically, the NLRA establishes and protects workers' right to act collectively to improve the terms and conditions of their employment. It is intended to set a rough parity between labor and management, so the two may contend on a relatively level playing field to achieve employment terms that improve the workers' lot without bankrupting the company (what we management lawyers call killing the goose that lays the golden egg).
Federal employment laws, most of which post-date the NLRA, supply directly many of the things that labor unions strive to achieve through bargaining.(2) Unions bargain for increased wages, for instance; the Fair Labor Standards Act ("FLSA") directly establishes a minimum wage and requires overtime pay at time-and-a-half for most employees working past 40 hours a week.(3) Workplace safety often is an important union bargaining objective and also is the objective of the Occupational Safety and Health Administration ("OSHA").(4) Similarly, the Family and Medical Leave Act(5) entitles workers to a leave of absence when the worker or a close family member has a serious health condition; collective bargaining agreements typically provide similar (or better) benefits.
Unions are among the principal advocates of employment regulation. By raising costs for rival non-union companies, employment regulations help union companies preserve market share and thus protect union jobs and wages. Employment laws also raise the floor from which unions commence negotiations. And of course, many union leaders advocate employment regulation in the genuine altruistic belief that it will improve workers' conditions generally. There is a substantial academic literature, however, suggesting that by boosting direct employment regulation, unions gradually have put themselves out of business. The more that favorable pay, benefits, and working conditions are set by the United States Congress, the less workers see a point in paying union dues to achieve the same things. …