Collective bargaining has been increasingly in the news in the last year, and has even made its way back into popular consciousness. As I've written elsewhere, a number of states are trying to put limitations on public sector collective bargaining, in response to budgetary difficulties Additionally, there has been a renewed push to pass the federal Employee Free Choice Act, which would permit certification without a secret ballot election over the employer's objection, among other things, and the NLRB has taken several controversial actions of late that have been reported widely. They have proposed new rules to expedite elections and to require the posting of notice of labor rights, and also filed a charge against Boeing for its attempt to open a plant in right-to-work state South Carolina (the latter issue has now been settled).
Despite this present heightened public awareness of collective bargaining issues, however, many people do not know that 2010 marked the National Labor Relations Act's (NLRA) 75th anniversary. In honor of this significant milestone, the National Labor Relations Board (NLRB) and George Washington University had co-sponsored a seminar in October 2010 on the Act and "Its Legacy and Its Future," to which the Winter 2011 issue of the ABA Journal of Labor & Employment Law, Vol. 26, No. 2, was largely dedicated.
In light of this milestone, and the level of popular attention garnered to collective bargaining in the last year or so, it seems to me it is a good time to review what collective bargaining scholars, professionals and advocates have to say about the Act.
Criticisms and Failings of the Act
Notably, one overriding theme throughout is that the NLRA faces serious criticisms today, which "run to the very core of the statute" and are often well-justified. See Marion Crain, An Imminent Hanging.
Crain notes six main criticisms, many of which are echoed by many other contributors:
(1) "the NLRA's adversarial premise is anachronistic" and "a poor fit with the modern organization of work;"
(2) "the American system of exclusive representation and majority rule" creates stark choice for employees;
3) "the election model... combines with the rhetoric of employee free choice and employer free speech to create opportunities for employers to mount aggressive antiunion campaigns;"
(4) NLRB procedures allow "momentum-destroying" delay and provide weak remedies, so that employers "have little to lose and much to gain by resisting unionization;
(5) "the limited nature of the duty to bargain," in combination with the limitation on strike and boycott powers and an employer's continuing economic weapons, results in a frequent inability to negotiate first contracts; and
(6) "the lack of universal applicability of the labor laws," in that private sector union rates are declining and today only about 1/3 of the workforce is covered by the NLRA.
Other criticisms were raised as well:
(7) a large percentage of unions that successfully gain recognition still fail to negotiate a contract within one year—20-40% (Thomas A. Kochan, Rethinking and Reframing U.S. Policy on Worker Voice and Representation);
(8) the NLRA fails to meet international human rights standards (Steve Charnovitz, The U.S. International Labor Relations Act);
(9) arbitration deferral has corrupted the process and also led to arbitration dominating other employment law contexts, with the effect that individual rights are again elevated over collective rights (Carrie Menkel-Meadow, The NLRA’s Legacy: Collective or Individual Resolution or Not?); and
(10) it is too easy for employers to restructure their business practices to substitute excluded contractors for covered employees, and thereby reduce threats of unionization (Noah D. Zatz, Beyond Misclassification: Tackling the Independent Contractor Problem Without Redefining Employment).
The Case(s) for Reform
Because of these limitations, several contributors worry that the NLRA faces serious obstacles of relevance today, and some even wonder if it should be abolished. Cf. Crain, Kochan and Freeman.
However, studies indicate 44-53% of employees would join a union if given an opportunity to do so, and 2/3 of employees polled have consistently indicated over the decades that they “would like a direct opportunity to participate in decisions that affect how they work and how they might improve the performance of the organization.” See Kochan. Additionally, several contributors argue that society, corporate governance and the national economy all require a vital labor relations system. It is necessary, they urge, to improve wages and working conditions (Kochan); force corporations to balance the demands of workers against that of share holders (Kochan); curtail growth of inequality and loss of community (James J. Brudney, Gathering Moss: The NLRA’s Resistance to Legislative Change); help the economy rebound by putting more money in worker’s pockets (Dorothy Sue Cobble, The Intellectual Origins of an Institutional Revolution); and give life and impetus to other broad social movements concerned with justice (Charles B. Craver, The Impact of Labor Unions on Worker Rights and on Other Social Movements).
In light of the perceived flaws and questions concerning continued relevance, it is not surprising that most urge reform. Here are some of their suggestions.
- Legitimate the card check route to election.
- Expand NLRA’s coverage and the definition of “employee,” to cover employees and/or industrial sectors that are currently excluded.
- Move away from exclusive representation, so that minority unions could also enjoy bargaining rights.
- Permit joint employee-management committees for unrepresented employees.
- Eliminate the distinction between covered employees and supervisors, in light of today’s frequent use of team based organizational structures.
- Provide protection for supervisors to remain neutral in elections.
- Eliminate the distinction between mandatory and non-mandatory subjects of bargaining, because they are all closely connected nowadays.
- Limit the ability of employers to structure work relationships to avoid unionization.
- Extend NLRA protections to immigrant workers.Bring U.S. labor law into conformity with international human rights standards.
- Strengthen remedies for illegal management action.Conduct early voting or rolling voting at neutral sites.
Those in favor of reform believe the Act is too vital to our history and democracy to let fade away into obscurity. One contributor in particular, Cobble, explores the “intellectual origins” of the Act and concludes that it enabled the rise of “industrial democracy” and “industrial citizenship.” By ending “unilateral decision making and lack of consultation,” the Act incorporated into the workplace American ideals of democracy. She also attributes to the Act the movement of women and minorities into the workplace, and the increase of “real freedom … as opposed to formal or abstract freedom” and “slavery” that she argues exist under the theory of freedom of contract.
However, one contributor was quite pessimistic about any ability to effectively reform the Act to make it relevant. Richard B. Freeman feels it “no longer fits American economic reality and has become an anachronism irrelevant for most workers and firms.” See Freeman, What Can We Learn from the NLRA to Create Labor Law for the Twenty-First Century?
A Look Back at History
Although not the main theme or purpose of the Seminar, many contributors touch on the history of the NLRA, and how it has evolved over the years, with several finding the roots of its current flaws in this history.
James A Gross describes how the initial Wagner Act (1935) focused on the core democratic right of employees to organize, and how early NLRB agents were committed to social justice and were quite “vigorous and literal” in enforcing the new collective bargaining rights. See Gross, The NLRB: Then and Now. However, Gross finds fault with how the constitutionality of the Wagner Act was originally upheld in 1937: on the basis of the commerce clause, to eliminate strikes and disruptions of interstate commerce, rather than as a human rights measure. A natural consequence of this analysis, he says, was to call for a “balancing” of interests, and it certainly can be argued that that was one goal of the Taft-Hartley Act. The Taft-Hartley Act was passed in 1947, as Gross notes, because “[a] vigorous and literal enforcement … would not be tolerated by its opponents.” The 1947 amendments added a policy section that addresses the protection of individual rights, without mention of the core right to bargain collectively, and also: affirmed the right to refrain from collective bargaining activity, added a section on union unfair labor practices, and asserted employers’ right of free speech.
James J. Brudney ties together the themes of reform and history, by analyzing news coverage at four separate reform attempts, to identify what factors made for success (1935 and 1947) or failure (1978 and 1992). See Gathering Moss. He cites John Kingdon’s theory that legislation arises from the interplay of three separate factors: a problem that captures policy making community; a clearly articulated proposal to fix the identified problem; and a political climate that allows for or discourages the fix. Brudney notes that all four of the big legislative campaigns concerning collective bargaining in the last 75 years have featured proposals that were “concrete, feasible, and sufficiently refined.” However, he argues, the successes were separated from the failures by “the magnitude and resonance of the perceived policy problems and also certain distinctive aspects of the political environment before and during floor considerations.”
For example, in 1935 and 1947 the problems were readily apparent against the back drop of widespread labor unrest, with strikes and violent confrontations. However, the political climate was positive in 1935 when media coverage detailed the violence against strikers and workers, but not in 1947 when unions were seen as overreaching. In contrast, in 1978 and 1992, there was far less public awareness of or investment in the policy problems identified. The 1978 Labor Law Reform Act sought to alter procedures and remedies under, and the 1992 Workplace Fairness Act sought to expand the definition of illegal employer conduct to prohibit the use of permanent strike replacements. Both latter reform attempts were readily defeated when business interests mobilized against them, since they had not captured popular sympathy or awareness and legislators were distracted by other overriding political issues at the time.
Cobble examines the historical roots of the NLRA—the Great Depression—to conclude that the Wagner Act itself played a powerful role in ending the depression without “add[ing] a penny to the national debt,” and was even marketed at the time by its proponents as “an alternative to ‘continuous public spending.’” See Intellectual Origins. She urges a cause and effect correlation between the rise in collective bargaining power of workers and the concomitant rise in economic prosperity and decline in economic stratification from the 1940s to 1970s.
Conclusion
All-in-all, it’s a thought provoking and informative Journal issue, and I highly recommend it as a “must read” to any labor law practitioner who has not yet checked it out. Although it raises far more questions than it answers, thoughtful discussion and consideration is probably needed more right now than hurried or ill-conceived action.
If you have any labor or employment matters that you would like to resolve privately through a knowledgeable and experienced arbitrator or mediator, please feel free to contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com
