What Next for Labor Rights?

What Next for Labor Rights?

What are the prospects for labor rights in the next four years? The question would seem to require some estimate, first, of what the Republicans intend and, second, of their capacity to do it. But current labor law is not amenable to these straightforward calculations. Congress has not significantly amended the law in more than forty years, and regarding basic doctrine—the rights of workers to organize, choose their own representatives, and bargain collectively—the Taft-Hartley amendments (1947) to the original National Labor Relations Act (1935) are the last word. The upshot is that labor law in practice is something like a constitution, in which the law is what the National Labor Relations Board (NLRB) and, ultimately, the Supreme Court say it is. Changes of administration have mattered, certainly, but their impact is indirect, mediated through NLRB appointments and a real but variable influence on how the law is applied. A second complication, arising from the first, is that sixty years of case law have turned labor law into a monster. There are some in the labor movement who have given up on it. If labor’s best hope is to extricate itself from the law, then how we judge the impact of a hostile Bush administration becomes problematic. No Dissent reader is going to root for the employer side in the next big representation case. But if it helps wean the unions from a stultifying law, is adversity such a bad thing? Or, conversely, are we supposed to cheer for the good intentions of the Clinton administration?

Consider the record. Bill Clinton had a better than average opportunity to reshape the NLRB because of the number of pending openings in 1993. The new chair, William B. Gould, was a notable choice. A Stanford law professor of feisty independence and no interest in playing the inside-the-beltway game, he had just published a book, Agenda for Reform, arguing for a strengthened labor law. In 1995, sensing an opportunity being wasted, reformers in the leadership of the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO) toppled Lane Kirkland’s regime. John Sweeney came to power vowing to reinvigorate the labor movement and turn around its lagging organizing efforts. And at that point, the economy shifted into high gear; the labor market became the tightest in memory. If ever there was a moment for union resurgence, this was it. In fact, membership did grow modestly, although not enough to arrest the movement’s shrinking density (16 percent in 1993, 14.9 percent in 1995, 13.9 in 1999). Last year, membership actually fell by 219,000. Union density now stands at 13.5 percent, but in the private sector—the NLRB’s bailiwick—the figure is 9 percent, the lowest it’s been since the modern movement got on its feet a century ago.

To understand these numbers, we have to look at the underlying dynamics. Some half-a- million union jobs disappear every year, mostly as a function of market forces, which in our globalized, high-tech economy hit the older, unionized sectors hardest. The unions have to organize a like number of new workers, plus another 200,000 (to offset the annual labor force growth), just to stay even. Last year, the private-sector unions, far from keeping up, organized only about 400,000 members and suffered a net loss of 271,000 (partly offset by gains in the public sector). Explaining why new jobs aren’t unionized is much harder than explaining why old ones disappear, but we don’t need a definitive answer—none is forthcoming from academics—to be confident that something is terribly awry in labor law.

Take the law at its own word. Follow my procedures, it says to American workers, and you can move from individual to collective bargaining. If in a representation election run by the NLRB, a majority of your fellow workers votes for a union, it will be certified as bargaining agent for your entire unit, and your employer will be required to sit down and bargain in good faith. This is the state-mandated route to collective bargaining. What would constitute a fair test of it? In my book, the test is productivity—not how many elections unions win, but how many workers enjoy the opportunity offered by the law to choose. By the late 1980s, little more than two hundred thousand per year did so, this in a labor force of seventy million eligible but unrepresented workers. The participation rate was down to a seventh of what it had been in the early 1950s. Conservative academics say that all this means is that the “market demand” for union representation has slackened. But there has been no slackening in the public sector, where union representation currently stands at 42 percent and is rising. Why should we think “demand” would be so much weaker in the private sector if workers there had the same freedom of choice as public employees have? So, has the Clinton NLRB made any difference? As far as productivity is concerned, no. The number of NLRB elections has actually fallen by about five hundred annually from what it had been under Ronald Reagan.

One might argue that the Clinton board wasn’t given a fair chance. Senate Republicans read Gould’s book and came after him. It took ten months to get him confirmed. And then, scarcely had Gould and his colleagues settled in than the Republicans seized control of Congress. The NLRB became a favorite (if not much reported) target of the Gingrich crew, whose particular whip hand was appropriations. One of Gould’s major initiatives—rule-making that would eliminate the endless litigation over appropriate bargaining units for multiple sites—was squelched by an appropriations bill rider sponsored by congressional Republicans. Their normal routine, however, was to intercede in individual cases at the behest of employers—and never mind that the board was supposed to be independent. In his unbuttoned memoir about his NLRB odyssey, Labored Relations, Gould says that board members and general counsel in fact were intimidated, and that progress he had anticipated, for example, on defining independent contractors (such as truckers) as employees was stopped short by Republican pressure. Gould thought it his duty to educate the public about the issues before the board. All he managed to do was provoke the wrath of the Republicans. He had been naïve, Gould conceded.

But it would be equally naive to believe that he could have done any better by keeping his head down. Every NLRB case of any consequence is appealed to the bitter end. Irate employers would have been knocking on Congress’s door no matter how quiet Gould was. But, far more important, they mostly had the case law on their side anyway. Consider employer conduct during the representation election. In Agenda for Reform, Gould proposed that the charade over coercive speech be abandoned—employers would be free to say whatever they wanted—while giving greater access by organizers to employees on company property. But in Lechmere (1992) the Supreme Court (Clarence Thomas writing for the majority) had just slammed the door on access; organizers had no right, save where workers were isolated and otherwise unreachable, to trespass on company property, even when that property was a mall used by the general public. Gould perforce submitted. Despite his grumbling, he declined to join a case mounted by the AFL-CIO to reopen Lechmere on the ground that this might impugn his neutrality.

Elsewhere, he was a bit gutsier. On striker replacements, for example, a chink opened when the Supreme Court ruled in 1983 that if a strike settlement reinstated strikers, replacement workers promised permanent employment could sue for breach of contract. On that basis, the Gould board said (O. E. Butterfield 1995) that, without an explicit promise to replacement workers, the presumption was that strikers had not been permanently replaced. Not much, but something. More important was the board’s greater inclination than its predecessors to find that strikes involved unfair labor practices, which negated the employer’s right to replace strikers permanently. A modest pro-labor drift on factual findings no doubt can be found across the range of cases coming before the Gould board. But on doctrinal matters, what Gould advocated in Agenda for Reform was essentially foreclosed.

He did have some scope on procedure. Like everyone else in the business, Gould knew that timeliness is everything in organizing struggles. He resurrected the discretionary 10(j) injunction, by which the NLRB can provide a quick remedy in egregious unfair labor practices cases. He favored postal ballots where employees were scattered or on strike. And in a variety of ways, he proposed speeding up the handling of cases where they originate before the administrative law judges. Despite Republican pressure, most of these initiatives (but, as noted, not rule-making for multiple-site units) survived and did some good. But the NLRB itself, by Gould’s acid account, was impervious to procedural reform. The number of pending cases climbed steadily during his tenure and by the time he departed, in 1998, was twice as high as before his arrival. Gould is scathing about the timidity and indecisiveness of his colleagues—the Democrats especially. In truth, he concedes that the problem is endemic, a “dilatory virus” that infects the entire federal bureaucracy, but is at its worst where decisions are apt to be controversial. By 1999, nearly a hundred cases had been pending for more than two years, and 10(j) injunctions were again falling into disuse.

Lackluster as the board’s record was under Clinton, it is bound to be worse under Bush. How much worse, however, is an open question. By convention, two board members and the chair come from the administration’s party, the other two from the minority party. Two Democrats and one Republican carry over, and Bush (as of this writing) has not yet announced his appointments. He may not want to expend much political capital here, assuming he even cares very much, and if the Democrats recapture the House in 2002, that would certainly have a moderating effect. Not that it much matters. The case law has become so unbalanced that management will be satisfied if the Bush board just holds to a steady course. But employers have every reason to expect that its bent in enforcing the law will be more pro-management. Unions will have a harder time before the Bush board.

The big question, however, is about the possibility of statutory change. The law has been resistant to amendment—in part because the broad terms in which it is written invite judicial interpretation, but also because every attempt at amendment since 1959 has evoked fierce opposition and ended in stalemate. Such was the fate of the Clinton administration’s early foray into labor law reform under the auspices of the Dunlop Commission. What had prompted this initiative was then secretary of labor Robert Reich’s enthusiasm for the “high performance” workplace that made, in his view, for global competitiveness. Labor law came into it because of a provision (Section 8a2) prohibiting company-dominated labor organizations the shop structures that the high-performance workplace presumably required. House Republicans piggy-backed on the failed Dunlop Commission deliberations to launch a proposal of their own, the Teamwork for Employees and Management (TEAM) Act, exempting employers who want to establish shop committees from Section 8a2, providing only that these committees not embrace collective bargaining or interfere with existing agreements. A broad coalition of corporations and management groups has formed to plug the TEAM Act.

What are they up to? For the teamwork objectives they claim, 8a2 is not that big of a problem. It exempts workplace organizations that don’t deal with the terms and conditions of employment, and even where they do, the NLRB, in practice, doesn’t interfere without evidence of anti-union intent. (The 1992 case that triggered the furor over 8a2—Electromation [1992]—involved committees set up in response to a union campaign.) My guess—historically informed, I hope—is that management strategic thinkers somewhere have been watching the de-unionization of the American economy and have decided that this is an inherently unstable situation. They want to put in place preemptive workplace structures that employers can control, and they hope to succeed where their corporate predecessors of the 1930s (who had the same idea) so signally failed. No wonder the labor movement is implacably against the TEAM Act. It passed the House in 1995 and was stopped in 1996 only by Clinton’s veto. No more vetoes are coming, but for the foreseeable future the Democrats remain strong enough to kill the TEAM Act in the Senate. Still, the likely battle can only be a source of anxiety in the AFL-CIO.

There is a very slim chance, however, of a different scenario. Shop committees have found a good deal of support in academic circles, both among those interested in cooperative work relations and among those who believe that workers deserve a voice even absent union representation. High up in the AFL-CIO, Kirkland’s able secretary-treasurer, Tom Donahue, thought that any degree of organization was better than none, and that shop committees might be a springboard for future unionization (as they had been in some firms during the 1930s). All this, of course, assumed that any amended 8a2 would protect the autonomy of shop committees. The TEAM Act offers no such protections; employers can do whatever they want, even appoint the committee members. One can imagine an amended TEAM Act with the protections added or an alternative, such as Harvard professor Paul Weiler’s scheme of a few years ago for state-mandated works councils. But I doubt it. The labor movement is viscerally against anything that smacks of company unionism—this may have been a factor in Donahue’s defeat at Sweeney’s hands in 1995. And any arrangement that might satisfy the unions would certainly alienate corporate America, which has too good a thing going to fool around. Nor is there is any compelling state interest in this issue; the politicians will be listening to their constituencies.

So what should the labor movement be doing in the coming years? Everybody says, organize more. Yes, but as much as possible, in campaigns not directed at NLRB elections. The obstacles are too great—too much intimidation, too dominant an employer influence, too much delay. Through the 1990s, NLRB elections never produced more than 104,000 new represented workers a year—the average was nearer 75,000—and no amount of effort is going to improve that record very much. The labor movement cannot afford to expend its resources on a process that produces so small a fraction of what it needs just to stay even. Union people will have to be vigilant against the two historic lures of the NLRB election. The first is that, more than any other process, it offers the most certain and most coveted result: certification as bargaining agent (although this is now much tarnished by the high failure rate in achieving first contracts). The second is that the public nature of the process lends it a special standing, as if the NLRB alone is the legitimate route to collective bargaining. The rights of workers under the law are actually far more expansive. They have a protected right to organize in any form that suits them, and employers are at liberty to negotiate under any arrangement mutually satisfactory to both parties, up to and including exclusive recognition (providing only that the employer is not colluding with a union that does not in fact have a majority).

Thinking about the labor law should be informed by what is happening out in the field. The AFL-CIO should forget about reforming the representation election. Never mind that the environment in Washington today is so unpromising. The representation election has been transformed so from its original form—and so cleverly wrapped in unassailable principles (of free speech, property rights, individual choice)—that debating it would be an uphill battle even if labor had the votes. Besides, there are still circumstances in which an NLRB election is a good option.

The labor movement should look elsewhere in the labor law, most particularly, at the right to organize. For starters, making workers feel secure is the most important single condition for the kind of grassroots organizing unions are currently doing. Moreover, the right to organize is about freedom of association, and no employers, not even the most rabidly anti-union, ever say that it’s okay to fire workers for joining a union. They do it anyway because the punishment is so weak—just back pay minus what the victim earned (or might have earned) in the interim plus reinstatement (rarely meaningful if the union has been broken). What is needed is the elevation of the right to organize to the fundamental status that it deserves, with strong remedies like those that apply for racial discrimination or sexual harassment. It should not be treated as just another unfair labor practice. This is an issue on which the labor movement can win, even in George W.’s era, if only it can be gotten on the table.

The AFL-CIO is talking about refocusing its efforts on the states. Good idea. When it comes to unions, we’re really two nations. In many of the states that voted for Al Gore, union strength hovers around 20 percent, a lot of clout. California, to take a shining example, has just passed a law (A.B. 1889) prohibiting employers with state contracts from using state funds in anti-union campaigns. A more daring approach might be to press for a general right-to-organize law, ideally through a state proposition. If organized labor could defeat the “paycheck protection” initiative a couple of years ago, why shouldn’t it be able to pass a right-to-organize initiative today? The argument would go something like this: the state regards freedom of association as a fundamental right; it has an obligation to secure that right for its citizens; and this requires remedies adequate to deter anti-union employers. No doubt the proposition would run afoul of the preemption defenses ringing national labor law, but the Supreme Court might be hard put to answer this particular line of argument. In any case, we would count the venture a success if it got the country talking about the right to organize.

Whatever the labor movement chooses to do, the one thing it cannot do is nothing. With private-sector membership down to 9 percent, it does not have the luxury of waiting out the Bush administration.

David Brody is a labor historian and retired professor at the University of California, Davis.