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Why U.S. Labor Law Has Become a Paper Tiger
Date: Sun, 22 Feb 2004 21:50:01 -0500
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New Strategies
Why U.S. Labor Law Has Become a Paper Tiger
By David Brody
New Labor Forum - Spring 2004
http://forbin.qc.edu/newlaborforum/
The National Labor Relations Act, whose stated purpose
and original effect was to encourage collective
bargaining, has been hijacked by its natural enemies.
The law serves today as a bulwark of the "union-free
environment" that describes nine- tenths of our private
sector economy. My aim is to identify the central
process at work in this amazing outcome and, on that
basis, suggest a course of action.
The core of the law, as true today as on the day
Franklin D. Roosevelt signed it in 1935, are three
interlocking sections. Section 7 declares the rights of
workers. These were not new in 1935. They had already
appeared in the Norris-LaGuardia Anti-Injunction Act of
1932, and had been a long time evolving. In 1935 they
were uncontroversial. Section 8 listed a set of unfair
labor practices, acts that violate the Section 7
rights, which, under Section 10, the National Labor
Relations Board (NLRB) was empowered to prevent. This
was new, but not surprising. The rights enunciated as
public policy in Norris-LaGuardia were merely
expressions of principle until the labor law made them
enforceable. Sections 7 and 8 were reported out of
Senator Wagner�s committee as a package. Finally,
Section 9 dealt with the issue of union recognition,
setting forth the criteria that justified, in effect, a
constraint on the employer�s liberty of contract. It
became an unfair labor practice to refuse to bargain,
and bargain exclusively, with a labor organization
chosen by a majority of the employees in an appropriate
unit. Section 9 further provided that, if the
demonstration of majority support was supervised by the
NLRB, the labor organization so chosen would be
certified and be officially designed as bargaining
agent. For that purpose, the NLRB could hold a secret
ballot. It is this final wrinkle, the representation
election, that is the focal point of my discussion. I
want to defer any consideration of the defects that
make unions increasingly hostile to the representation
election and cut at once to what, viewed historically,
is the crux of the problem: namely, that the
representation election is the instrument by which
labor�s enemies have hijacked the law.
Historically, it was self-organization-workers freely
associating to advance their common interests-that
produced the labor movement and gave it legitimacy.
Indeed, the definitive case establishing the legality
of unions, Commonwealth v. Hunt (1842), grounded that
finding on the view that trade unions were voluntary
associations, and were presumed, in an enterprising
society whose hallmark was voluntary association, to be
in the public interest until, by the standards that
applied to all combinations, they acted unlawfully. The
trade unions embraced self-organization (and in
Gompers� time elevated it, under the rubric of
voluntarism, into the defining principle of the AFL).
And so did the Wagner Act, whose enumeration of the
rights of workers in Section 7 begins with self-
organization. The succeeding rights-to assist, form, or
join labor organizations, to bargain collectively, to
engage in concerted activity-all march in concert with
self-organization, except in one respect. The right to
bargain collectively is qualified by the words,
"through representatives of their own choosing."
This familiar phrase might seem unproblematic, inherent
in any statement of worker rights, but in fact
"representatives of their own choosing" has its own
particular history.[1] It first appeared, as best I can
determine, during the labor crisis after World War I
and was fashioned against a specific challenge: company
unions-employee representation plans, so called-that
gave employers the excuse that they need not deal with
outside unions because their employees already were
exercising their right to organize and bargain
collectively. The issue crystallized during the Steel
Strike of 1919, the greatest recognition strike in
American history. The union response was: ok, let the
employees choose-and that�s the origin of
"representatives of their own choosing." Nothing came
of this effort; the steel strike, in a long train of
failed recognition strikes, failed. But the issue had
been injected into a grand conclave on a postwar labor
policy for the nation, and given a standing it might
otherwise not have had. Once enunciated, employee
choice stuck, finding its way into every subsequent
federal law involving labor�s rights, even the
antiunion Transportation Act (1920) that restored the
railroads to private ownership after the war.
Insofar as it was targeted against employer
interference, of course, employee choice was consonant
with self-organization. That bent developed robustly in
the railway labor policy of the Hoover era. It
culminated in the Texas & New Orleans v. Railway Clerks
(1930), which upheld the disestablishment of a company
union as a violation of the provision of the Railway
Labor Act of 1926 which prohibited "interference,
influence or coercion" by employers in the designation
of representatives by employees. Company domination of
a labor organization-a concept original to, and a
shining ornament of the American labor law-begins here.
But implicit in "representatives of their own choosing"
was also a procedural question-how was the will of
workers to be revealed? -and this produced the
representation election. Unlike company domination
doctrine, however, not right away. This was because on
the railroads, where the battle was originally
confined, the unions were well-established, and
employee choice not a salient issue. The Railway Labor
Act left it to "the respective parties"-one being the
unions-to designate representatives "as may be provided
in their corporate organization or unincorporated
association, or by other means of collective action."
But once the New Deal swept into power in 1933, and the
battleground shifted to the unorganized mass production
sector, how the will of workers was to be revealed
became very salient indeed.[2] A key measure of the
Hundred Days was the National Industrial Recovery Act,
which undertook to fight the depression by the
cartelization of industry. Attached to each
industrywide code of fair competition was Section 7(a),
which asserted the right of workers to organize and
bargain collectively. Employers immediately resurrected
the company union, and almost overnight American
industry was blanketed by employee representation
plans. The conflict over freedom of choice that had
been scrubbed in 1919 was now joined, and step by step
over the next two years, as the battle over company
unionism raged in the midst of the industrial recovery
program, the collective bargaining provisions of the
Wagner Act-duty to bargain, appropriate bargaining
units, exclusive representation, majority rule, the
secret ballot-took shape.
Forces bigger than this particular battle, of course,
were also at work. One was the Great Depression itself,
which gave rise to the view that collective bargaining
would foster recovery and future prosperity. That�s the
conclusion-written into the Wagner Act-that justifies
the historic shift by the state from hands-off over
union recognition to duty to bargain. Then there were
the seismic structural shifts that we associate with
mass production technology and internal labor markets.
The AFL was in disarray about how to respond and, just
as the Wagner Act was being written, was breaking up
into craft and industrial union wings. This meant a
sudden loss of labor�s authority over union
jurisdiction, which the Wagner Act filled by empowering
the NLRB to designate appropriate bargaining units.
Exclusive representation-all workers represented by a
single bargaining agent-followed logically, if the aim
was effective collective bargaining. All these
developments took place within, and can�t be
disentangled from, the battle over company unionism,
but where that battle really bit was on the question of
employee choice framed by the principle of exclusive
representation. Even here it�s a nice point: didn�t
exclusive representation imply majority rule? And
didn�t majority rule imply elections? These questions
are intended to suggest the staying power of these
expressions of "representatives of their own
choosing." But that they crystallized and became
realities is the result of the NRA battle over company
unionism. The irony is that, for its intended
function-to give workers a choice between company and
independent unions-the representation election was
immediately obsolete. This was because on a separate
track the bill writers had tightened the company
domination provision-the famous Section 8a(2) -to the
point that the employee representation plans, even in
their new and improved versions, were mostly ineligible
to participate in elections.
It didn�t matter. The representation election, once in,
was in. The democratic resonance was too great. Wagner,
indeed, exploited it in just that way, pumping up the
industrial democracy rhetoric on behalf of his bill to
great effect. But the authors of the Wagner Act were
not deceived. They knew that problems had been created
for self-organization and, with great prescience, that
self-organization and employer coercion were inversely
related: insofar as the boundaries of self-
organization contracted, the scope for employer
coercion expanded. Reading the legislative history of
the Wagner Act with that issue in mind is one of the
more interesting features of this exercise. Thus, to
take a point that resonates today, Wagner�s rejection
of the charge that it was one-sided for employers and
not unions to be guilty of unfair labor practices. This
was a false equation, said Wagner. The purpose of the
law was not to regulate self-organization there were
plenty of laws protecting nonunion workers from
physical intimidation or slashed tires-but only his law
protected workers from economic coercion, and economic
coercion was strictly the employer�s weapon. Similarly,
he argued that employers should be neutral-and that was
the initial NLRB-policy during representation campaigns
because anything they said was inherently coercive (and
because they had no more legitimate interest when
workers organized than did workers when employers
organized). As for the representation election, it was
not mandatory-the NLRB could use "any other suitable
method"-underscoring that the process was in service to
the self-organization of workers, which, in a time of
massive CIO organizing, indeed it was: in the early
years NLRB certifications mainly ratified facts on the
ground.
But not for long. With Taft-Hartley in 1947, the
election became mandatory for certification. The "free
speech" right of employers to participate was affirmed,
as well as their right to petition for elections.
Unions became subject, like employers, to unfair labor
practices. They had become, in the eyes of the law,
equal players in an electoral game, with the worker
just a voter making a choice between individual and
collective bargaining. The doctrinal underpinnings of
this transformation are to be found in a new Section 7
right of employees not to participate in concerted
activities, a principle made manifest specifically in
the right-to-work 14(b) provision. Provision 14(b)
served as much to trumpet the individual rights
reorientation of the law as it did to enable the states
to outlaw the union shop. The collective bargaining
scheme was itself left intact-a nice final touch,
insuring the future of the representation election that
now stood at the core of that scheme. We should pause
here to admire the unerring aim of the law�s enemies.
It would make an interesting research project to find
out whether union people, for all their protests about
a slave labor law, actually understood what was
happening. I doubt it.
Senator Wagner had known that the erosion of self-
organization meant exposing workers to employer
coercion. His bad dreams have been far outdistanced by
the current reality, which is that an employer with
enough money and stomach for it can be confident of
defeating any union challenge that uses NLRB
procedures. In the Clinton era, NLRB elections produced
collective bargaining rights for about 75,000 workers a
year. With the union attrition rate at half a million a
year, we have a recipe for the virtual disappearance of
private sector unionism, provided that all organizing
is channeled into NLRB elections. And that brings us to
the end game..
Elections are not the only route to collective
bargaining rights. The employer�s duty to bargain
(Section 8a[5]) is subject not to Section 9(c), which
deals with elections, but to Section 9(a), whose
operative words "designated or selected" unarguably
mean more than elections[3]-this, of course, another
and surely most important of Wagner�s efforts at
bolstering self-organization. Indeed, as the law is
written, only if a "question" arises over a claim of
majority support is the NLRB empowered to call an
election, and one can well imagine countries (as, for
example, currently in the United Kingdom) where under
such a scheme employers would routinely opt for
voluntary recognition. Not in the United States. Here
voluntary recognition is itself a battleground, turning
on this issue: does the employer have an obligation to
accept a union�s claim of majority support? Yes, the
case law originally said, a view codified in Joy Silk
(1949) to mean the employer had a duty to bargain
unless he could show "good faith doubt" about the
authorization cards or other evidence of support. In
1966 the burden shifted to the union, which had to
demonstrate a "course of conduct" of employer bad faith
(Aaron Brothers [1966]). In the end, the employer was
absolved of any duty to bargain without a
representation election (Linden Lumber [1974]),
providing he did not engage in unfair labor practices
too egregious to permit an election. But unions can
still pressure an employer to do what the law
authorizes, hence the corporate campaigns that now
accompany demands for card check agreements. In recent
congressional hearings, employers have railed against
corporate campaigns, but they have limited legal
recourse against what is essentially a free speech
activity.
So we have in 2002 the Norwood bill (H.R 4636) that
proposes to outlaw card check recognition and finish
the job against self-organization. Do employers
understand this? Listen to the spokesman for the Labor
Policy Association that sponsored the Norwood bill. The
trouble with authorization cards, he says, is that they
"are signed in the presence of an interested part-a
pro-union co-worker or an outside union organizer-with
no governmental supervision."[4] The issue is not that
unions coerce workers; this is already prohibited by
Taft-Hartley. The issue is that workers talk among
themselves and with organizers without "governmental
supervision." That�s how far we�ve come from Senator
Wagner�s celebration of self- organization.
The striking feature about the law�s evolution is its
sheer inexorability. Taft-Hartley was a turning point,
yes, but in key ways it merely ratified or completed a
case law already assaulting Wagner�s defenses of self-
organization.[5] And, with virtually no further
legislation, the work of interpreting labor�s rights
out of existence has steadily proceeded. The
incremental dismantling of the duty to bargain,
described above, can be replicated many times over in
the case law governing interrogations, captive audience
meetings, union access, coercive speech, you name it.
One might argue that all this reflects is the political
dispensation of post-New Deal America. Certainly the
law would have evolved more benignly had the New Deal
coalition not foundered after World War II. It
mattered, James A. Gross tells us in his exhaustive
history of the NLRB, which party was in power. Yet the
tendency of the case law, despite this ebb and flow,
was irreversibly in one direction. This suggests that,
beyond politics, deep-seated ideo-legal biases are
built into the law�s development.[6] One might ask, for
example, why violations of presumably basic rights
should be called unfair labor practices. Or why
violators are not subject to penalties; they just have
to cease and desist and, in certain circumstances,
restore the status quo. It�s actually hard to put a
name to the Section 7 rights, but we can know what they
are not by reference to one unfair labor practice with
a different provenance, that is, not grounded in
Section 7. This is the secondary boycott prohibition
added by Taft-Hartley, for which there is a separate
enforcement section (203) declaring this particular
unfair labor practice by unions "unlawful" and enabling
any person injured thereby in his business or property
to sue in court for damages and legal costs. Why is it
that the injury suffered by a worker discharged from
her job for union activity does not call for equally
robust redress, or the priority and immediate
injunctive relief that the NLRB is directed to provide
to employers in the case of secondary boycotts? Section
7 rights are weak rights, trumped every step of the way
by property rights, by employer free speech, by liberty
of contract. And while this hierarchy of rights is
broadly felt in the law�s devolution, it is imprinted,
most importantly, on the case law governing free
choice. Indeed, if in one dimension the representation
election fixes the individual worker into place so that
he or she can be efficiently coerced, in another
dimension it fixes the unequal contest of rights into
place so that the courts can efficiently legitimize
those necessary powers of employer coercion.
By now, that string has about run out, and little is
left to a liberal board, like Bill Clinton�s, but
administrative refinements. If the reader is interested
in watching the unequal contest of rights in action,
however, I have a suggestion. Think about where the
labor law is still in play. Right. It�s the corporate
campaign. One potent weapon available to employers are
lawsuits that tie up the union and bleed its resources.
But if the NLRB finds the lawsuit to be retaliatory,
that�s an unfair labor practice, and the employer can
be enjoined and ordered to pay the union�s legal costs.
So now a heavyweight employer right is being wheeled
out-the right of petition in the First Amendment.[7]
Only a determined optimist would want to bet on the
long-term future of NLRB doctrine on the retaliatory
lawsuit.
How, I�m thinking, given the heavy hand of history, are
we to make our way back to a labor law that fosters
self- organization? Logic might say: attack the
representation election. But, at the moment, that
battle can�t be won. The representation election is not
going away. What we need is an issue that shifts the
debate back to self-organization. In my view, that�s
the right to organize, in the specific sense of the
individual right of workers to associate. What is
wanted is simple enough: penalties that actually deter
employers and enable workers to organize without fear.
Back pay and rehire years later in discharge cases
manifestly do not deter employers. We should not
underestimate the rejuvenating effect on union
campaigns. Moreover, the right to organize is exercised
by individuals and calls forth no rival employer
rights. On both counts it is the most unassailable of
labor�s rights. Above all, a robust right to organize
will revive the law�s embrace of self-organization.
Tactically, the crucial thing is to avoid making the
right to organize part of an omnibus reform. The issue
has to stand alone, where it cannot be obfuscated by
talk about democratic elections and individual rights.
Labor can win a debate on the right to organize, but
until another New Deal era comes along that�s the only
ideological debate it can. The AFL-CIO will do better
when it does turn to omnibus reform arguing that the
law is outmoded, that key features-the certification
structure, employee definitions, mandatory bargaining
issues-rest on assumptions specific to a passing stage
in our industrial development. This is the road that
leads ultimately to labor�s liberation from the
representation election. A long-term campaign might be
called A Labor Law for the 21st Century.
At the moment, however, even the short term is beyond
Washington. So we have to think about the states. This
of course immediately invokes admonitions about
preemption-the elaborately developed case law guarding
federal regulation of labor relations against state
interference. Union-side lawyers advise that any state
action touching preemption is ill- advised because only
adverse decisions are to be anticipated. The lawyers
could be wrong; a skillfully crafted right-to- organize
law might get by preemption.[8] But for argument�s
sake, let�s say the lawyers are right. The labor
movement will want to weigh their caution against the
opportunity costs of inaction. Consider instead a bold
idea a ballot proposition in a liberal state like
California or Wisconsin for a constitutional amendment
affirming freedom of association, with a proviso on the
right to organize. A bill in the legislature might
accomplish the same thing, but wouldn�t generate the
public exposure that�s the point of this exercise.
Opponents will say the state can�t do that because it�s
preempted. Are Californians or Wisconsinites likely to
be deterred from defending the rights of their fellow
citizens, or spurred on, when the scandalous failure of
the federal law is made clear to them? Let�s say then
that the courts strike down the state law. Is anything
better calculated to light a fire in Washington once a
national debate has begun on the right to organize?
When it comes to the states, after all, the objective
is not to mitigate preemption, but to prompt federal
action that renders preemption irrelevant.
The end game over the labor law is in play. Without a
countering right-to-organize campaign, the Norwood bill
will pass, maybe not in this congressional session, or
the next, but ultimately it will pass. And then the
representation election�s stranglehold will be
complete; self-organization will have been expunged
form the law.
A shorter version of this essay appeared in
Perspectives on Work 7, No. 1 (2003): 16-18.
-------------------------------------------------------
[1] In the following discussion I am drawing on my
article, "Why No Shop Committees in America: A
Narrative History," Industrial Relations, 40 (July
2001), 356-76.
[2] The following discussion draws on my article,
"Labor Elections: Good for Workers?" Dissent (Summer
1997), 71-77.
[3]NLRB v. Gissel 395 U.S. 575 (1969).
[4]Daniel V. Yeager, Testimony Before the Health,
Education, Labor & Pensions Committee, U.S. Senate
(June 20, 2002), 3.
[5]On mandatory elections: Cudahy v. United
Packinghouse Workers (1939); on employer free speech:
Virginia Electric & Power v. NLRB (1941).
[6]The "ideo-legal" argument is developed in David
Brody, "Free Labor, Law, and American Trade Unionism,"
in Stanley Engerman, ed., Terms of Labor: Slavery,
Serfdom, and Free Labor (Stanford, CA, 1999): 213-45.
[7] BK&E Construction v. NLRB 122 S.C. 2003 (2002). I
am grateful to Paul More for calling this case to my
attention.
[8] E.g: Michael H. Gottesman, "Rethinking Labor Law
Preemption: State Laws Facilitating Unionization," Yale
Journal of Regulation 7 (Summer 1990): 355-410.
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