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July 2016

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IBEW Law Student Makes the Case for Labor Law Reform

The laws governing workers' rights will celebrate their 70th anniversary next year. If was up to Washington, D.C., Local 26 member Kevin Burton, the birthday would also be a wake.

Burton — the assistant director of the Local 26 Joint Apprenticeship Training Center — is a 2013 recipient of an IBEW Founders' Scholarship and is in her final year at George Washington Law School.

She wrote an article featured in the winter 2015 issue of the prestigious Employee Relations Law Journal entitled "The Perfect Storm for Labor Reform." It is a nearly 30-page case for dramatically rewriting U.S. labor laws. They were originally written to empower workers but now, Burton writes, they do precisely the opposite.

(Unfortunately reading the article requires a $649 annual subscription, but a copy was provided to the Electrical Worker.)

"This journal is not associated with my law school and is primarily for practitioners, so it is very rare for a student to get an article published," Burton said.

It is even rarer that the lead article be an author's first to be published. High profile law reviews can burnish the reputation of the student-author as well as change opinion throughout the legal profession.

Burton said her goal was to write an article that union activists could read and gain a full understanding of the laws that govern organized labor while also proposing changes to those laws that would strengthen the hand of field organizers.

"I started with a brief introduction that would get the first-time organizer prepared to do their job," Burton said. "What they do is profoundly important, and they have so little legal support, I wanted to help."

The legal framework for the American workplace rests on two laws: the National Labor Relations Act of 1939 and the Taft-Hartley Act of 1947. The NLRA was decidedly pro-organizing. Taft-Hartley, although it included some sections that unions wanted — allowing the creation of the multi-employer pensions and health plans operated by the IBEW, for example — on the whole, it was anti-worker. Taft-Hartley, for one thing, allowed states to pass right-to-work legislation.

Nearly all laws, judicial decisions and regulations that govern the American workplace are built upon these two laws, Burton writes, and that framework is so broken it is "incapable of rectifying common issues arising in today's labor disputes."

For example, disputes arising because of the millions of undocumented workers in U.S. workplaces are profoundly important to millions of U.S. workers, working and unemployed. But the National Labor Relations Board, the enforcement body for the NLRA, is forbidden by the courts from getting involved in "immigration" issues. Not allowing the NLRB to address issues around undocumented workers basically encourages employers to cheat, Burton wrote.

"Undocumented workers for most people is a jobs issue, a collective bargaining issue and an organizing issue, but the law says it is about immigration only," Burton said. "If we don't talk about immigration now, we will wish we did in 20 years."

Whether we like it or not, until undocumented workers can get legal protections and join unions, especially construction unions, Burton said working people will continue to fall behind. But the status of undocumented workers is just one of the common workplace issues that labor laws do not address and cannot resolve, she wrote.

The NLRB cannot intervene where companies misuse H1-B visas, a program designed to let companies bring in highly skilled immigrant workers when qualified workers cannot be found in the U.S. The reality is that employers frequently use the H1-B program to replace existing workers. They are just more expensive. In some cases, those workers have been required to train their replacements or get no severance pay.

Instead of being punished, Burton writes, "employers are incentivized to hire undocumented workers as there is minimal threat of recourse while millions of young Americans remain unemployed."

Like most failures, the collapse of workplace protections in the U.S. has many fathers, but at its heart, Burton writes, the problem with the NLRA is that its purpose — to make it easier for workers to organize — has been watered down by decades of legislative and judicial attacks. Opponents have somehow successfully argued that working people have too much power over multibillion dollar, transnational corporations.

"Well into the 21st century, courts have continued to deliver rulings that frustrate and negate Congress's intent to encourage collective bargaining," she writes.

So although the NLRB was created to "make real and concrete the protections of the right to self-organize for the good of the public and to eliminate any obstacles to the free flow of interstate commerce by promoting collective bargaining," it does anything but.

Burton closes her paper with a blueprint for righting the ship.

She begins by examining several of the many unsuccessful reform attempts since the 1960s. Each failed when confronted with a Republican Party uniformly against pro-worker legislation and a Democratic party that could not maintain discipline.

"The appropriate time to align the NLRA with today's temporary and transitional workforce is long overdue," Burton wrote. "Several attempts have been made throughout the decades, but they all failed to deliver in one critical area: Democratic Party unity."

For example, the Workplace Fairness Act of 1993 — which would have made it illegal to permanently replace striking workers — failed when six Democratic senators (11 percent of the caucus) voted with Republicans against passage. The 1965 attempt to repeal Taft-Hartley only won 67 percent of Senate Democrats.

Burton proposes a draft law that she believes would ensure Democratic unity and might even peel off a few Republicans if a Democrat is elected president next fall.

Burton's model bill would restore the NLRB's power to encourage collective bargaining and minimum funding levels for the NLRB, allow punitive damage penalties for companies that hire undocumented workers, require that 75 percent of a company's domestic employees must be American citizens and make it the law of the land that every job have some kind of retirement plan benefit, even if it is as simple as an unmatched 401(k).

"Amending the NLRA will create jobs for those who are eligible to work in the United States," Burton concludes. "Without change, the Act will continue in some respects to act contrary to its purposes."


Washington, D.C. Local 26 member and third-year law student Kevin Burton