Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School. From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C. Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere. Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School. He can be reached at [email protected].
In yesterday’s Wall Street Journal, Holman Jenkins weighs in on the VW-UAW discussions about a German-style works council at VW’s plant in Chattanooga, TN. Although the automaker and the union have concluded that such a council would be legal in the U.S. only in an already-unionized workplace, Jenkins asserts that this conclusion is simply a “handy interpretation” and one that is “extremely questionable.” Why? Because, writes Jenkins, “[f]reedom of contract exists in America.” And, as to federal labor law’s ban on employer interference with labor organizations, Jenkins says only that “the law can’t stop employees of a company from consulting with employees of a company about company matters.”
This is, to put it politely, a thin legal analysis. It is true that, in general, we have freedom of contract in America. But, whatever you think about its merits, the National Labor Relations Act makes a range of of workplace contracts illegal. Perhaps the most obvious example is that in a unionized workplace an employer is prohibited from bargaining individual employment contracts with employees covered by a collective bargaining agreement. More particularly relevant here, section 8(a)(2) of the Act makes it illegal for employers to establish, in non-union workplaces, a wide range of labor-management committees. Over the last few decades, the NLRB has read 8(a)(2) as banning committees that: are established by management, involve employee participation, and deal with management on issues concerning wages, hours, or working conditions. The leading case on the subject is Electromation.
A works council that followed the German model would meet this definition easily and would be prohibited if established by management in a nonunion workplace. If, as Jenkins suggests, VW just “set up” such a council, there’s really no doubt that the employer would violate federal labor law.
Whether or not the law ought to prohibit works councils in non-union settings is a different question, and probably one worth debating at another time. But that the law currently does prohibit management from establishing works councils in non-union settings is clear.
Daily News & Commentary
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July 2
First Circuit denies federal worker unions’ mandamus petition; federal court denies preliminary injunction against new union reporting rule; House introduces the Securing Agriculture’s Workforce Act.
July 1
Trump nominates Keith Sonderling as Labor Secretary; DOL eliminates disparate-impact liability from Title VI regulations; OPM finalizes rule allowing suitability-based removal of federal employees for post-appointment conduct.
June 30
SCOTUS ends removal protections for agencies; staff at NYC cocktail bar vote to unionize.
June 29
In today’s News and Commentary, student-athletes file a class action suit challenging the NCAA’s new Age-Based Rule, a federal judge declines to issue a preliminary injunction against FEMA’s reduction in force but expedites proceedings, and Gavin Newsom opposes California’s proposed billionaire tax in favor of a federal approach. On Thursday, DeJuan Campbell, at basketball player […]
June 28
Philadelphia utility workers announce July 4 strike; national parks workers vote to unionize; Michigan considers “right to disconnect” bill.
June 26
Mamdani issues workplace heat protections order; Fifth Circuit denies enforcement of NLRB order against Starbucks; AFGE unlikely to secure injunction against FEMA layoffs.