Union Lawyers and Employment Law

Abstract

A major challenge facing labor activists and scholars today, given the small percentage of the private sector workers who are union members, is to find a new role for unions in attaining decent working conditions for the vast majority of the American workforce that is not unionized. Many unions have launched major efforts to enforce employment law in nonunion workplaces where statutory violations are rampant. The lower the wages, the more likely that fundamental employment laws, including safety, wage and hour laws, will be violated. Low-wage employees are apt to lack the knowledge and the resources to enforce their rights, and there are too few government inspectors to ensure compliance in workplaces all over the country. The article examines the labor law, constitutional, and ethical implications of this important new union strategy.

The National Labor Relations Act (NLRA) has been interpreted to prohibit employers and unions from conferring benefits on employees during the critical period prior to a union certification election. The provision of legal representation (except assistance in filing unfair labor practice charges with the National Labor Relations Board (NLRB)) has been deemed to be an unlawful pre-election benefit. Although the NLRB has insisted that the provision of such services is not an unlawful benefit nor grounds to set aside an election, the D.C. and Sixth Circuit courts of appeals disagreed and set aside elections. Because employers may seek review of any union election in the D.C. Circuit, no union can confidently provide pre-election legal representation.

The article also shows that to prohibit unions from providing legal assistance to non-member employees in employment law matters while allowing them to do so for unfair labor practice charges is an unconstitutional content-based restriction on First Amendment activity. In addition, forcing employees to choose between exercising their right to union representation for collective bargaining and their right to union lawyers' representation for employment litigation impermissibly requires employees to sacrifice important First Amendment rights as a condition of obtaining an NLRB-sponsored election. Finally, the article also critiques recent cases holding that union lawyers cannot ethically represent non-union members. The article explores the relevant law on conflicts of interest and shows that unions' new effort to bring employment law litigation is consistent with the highest standards of professional ethics.

JEL Classification: J30, J51