Constitutional Law

The Weakening of A National Labor Rights Law

by Ross Eisenbrey, Vice President, Economic Policy Instittute

The American Constitution Society just published an important Issue Brief by Anne Marie Lofaso about the destruction of union rights.  The Brief, September Massacre: The Latest Battle in the War on Workers’ Rights Under the National Labor Relations Act,” describes, and then puts into historical context, a collection of National Labor Relations Board case decisions issued in September 2007 that weaken the ability of unions to organize, further undermine the already limited right to strike, and exclude workers from the rights and protections of the National Labor Relations Act (NLRA), which governs bargaining rights and unionization in the private sector.  The Bush-appointed NLRB majority has deservedly earned a reputation as the most anti-labor Board in the 73-year history of the Act, and the September Massacre is a key part of its legacy.

The NLRA was conceived and designed to help reverse the tremendous inequality of bargaining power that existed between workers and corporations at the start of the New Deal.  When President Franklin D. Roosevelt signed the NLRA in 1935, the richest one percent of Americans garnered about 20 percent of national income, and millions of working Americans lived in poverty, ill-health, and despair.  Unemployment was 25%, and workers who pushed for higher wages, a 40-hour week, or safer working conditions were routinely fired, blacklisted, and even beaten or killed when they engaged in strikes or mass picketing.

Congress and President Roosevelt saw that the inequality of bargaining power was leading to unsustainable imbalances in society. Government intervention was needed to level the playing field and give workers a shot at sharing in the wealth their work created.  The NLRA was one answer to that problem, along with the Fair Labor Standards Act, which set a floor on wages and created a federally enforced right to overtime pay. In the preamble to the Act, the recognition that unions are the key to increased bargaining power and a fairer sharing in the income and profits of business was explicit. 

Congress condemned employer denials of the right to organize:

“The denial by some employers of the right of employees to organize and the refusal by some employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce by

(a) impairing the efficiency, safety, or operation of the instrumentalities of commerce;

(b) occurring in the current of commerce;

(c) materially affecting, restraining, or controlling the flow of raw materials or manufactured or processed goods from or into the channels of commerce, or the prices of such materials or goods in commerce; or

(d) causing diminution of employment and wages in such volume as substantially to impair or disrupt the market for goods flowing from or into the channels of commerce.”

Congress condemned unequal bargaining power as a cause of depressed wages and purchasing power:

“The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.”

And Congress declared unions and collective bargaining to be the answer:

“It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”

This new national policy - encouraging unions, prohibiting employer violations of union rights, and promoting equal bargaining power through the right to strike – was a success.  Union membership soared, eventually reaching 35 percent of the workforce, and the nation’s terrible income inequality was eventually cut by more than half. 

But employers counterattacked.  When Republicans won control of the Senate and House of Representatives in 1947, they wasted no time in enacting the Taft-Hartley law, gutting the NLRA, creating a host of new rights for employers while prohibiting many of the most powerful union economic weapons like the secondary boycott, creating “unfair labor practices” for unions and effective remedies to prevent them, and limiting the coverage, with the explicit object of weakening union power.  By removing supervisors from the Act’s protections, for example, Taft-Hartley created a class of employees with no right to organize and no ability to resist management’s efforts to enlist them as front-line soldiers in management’s fight against union organizing.  Foremen and supervisors are now the shock troops of most anti-union campaigns, spying on union activity, cajoling or harassing workers to vote with management, making clear to workers that there will be ugly consequences if they vote in a union.

The extent of the damage done by the Taft-Hartley amendments has been underestimated for years, but the Bush Board (All five members of the Board who participated in the “September Massacre” decisions were Bush appointees.) certainly appreciates the law’s anti-union potential and is using it to extend and deepen the damage.  Lofaso understands this and sees the September Massacre decisions as fitting “into a long history of legislative, administrative, and judicial cutbacks to the original NLRA.”  For years, the usually conservative courts did most of the damage to union rights, through decisions like Mackay Radio, which announced that workers could not be fired for striking, but they could be permanently replaced, and First National Maintenance Corporation, which held that unions have no right to bargain over decisions to close or relocate a factory or business establishment unless management claims wages are the cause. 

One result of this long, relentless assault on union rights and powers is the current, tiny, 7 percent share of the private sector workforce represented by unions.  The other result is a return to the pre-New Deal levels of inequality.  In 2006, the top 1 percent of Americans exceeded the share of national income they had in 1935, surpassing 22 percent.  As the bargaining power of workers has declined, so has their ability to share in the wealth they create.  Since 2000, for example, output per hour has increased by 19 percent, yet the median hourly wage has risen only 3 percent.

Lofaso organizes the September Massacre cases by themes: limiting coverage to exclude employees from the Act’s protections, undermining remedies, weakening union economic weapons.   And she identifies one case, Dana Corporation, as truly revolutionary.  In Dana, the Bush Board overturned four decades of precedent to create a new hurdle for unions that seek voluntary recognition from employers on the basis of majority sign-up.  The law has treated this kind of recognition as equal in stature to recognition following an election (which employers can compel even if the union presents signed union cards from 100% of the employees).  Once recognition has been given, the union has an irrebuttable presumption of majority status for a year, and no one can petition for a new election or an election to decertify the union.  The main purpose of this is stability; a new union needs time to bargain a first contract and prove its worth to the employees.  But Dana undermines the status and value of voluntary recognition by creating a new right to file a decertification petition within 45 days of receiving notice of the union’s recognition.  What’s more, a minority of employees – only 30% is required - can file the petition, even if 70% of the employees signed authorization cards.  For the Bush Board, the right to get rid of a union is far worthier and more important than the right to form a union. 

Lofaso sees Dana as a symbol of the Bush Board’s “vigorous resistance to union organizing” and potentially, the dawn of “a new era of government repression of unionism.”  This alarming view might seem extreme, but the recent history of Australia shows that a hostile government can swiftly turn a nation’s laws from encouraging union activity to criminalizing it.

What Lofaso fails to mention is that the Bush Board is well aware that its election process is totally broken and has become a snare for unions and workers who want to organize.  Employers draw out the Board’s election process to enable a campaign of terror against employees with union sympathies, subjecting them to one-on-one meetings with supervisors and captive audience speeches condemning unions and threatening terrible consequences in the event of a union victory, using local businesses and community leaders to attack the union, and firing or otherwise punishing union supporters.  Employers know that there are no effective remedies for their illegal actions; there are no fines for violating the right to join a union.  When the Bush Board hinders voluntary recognition it does so because most successful union organizing in recent years has been done outside of the Board’s election process.

Dana is one more compelling reason for Congress to pass the Employee Free Choice Act, which would give employees the right to demand recognition for their union upon presentation of a valid majority of signed authorization cards.  The choice of voluntary recognition or an election would no longer belong to the employer, but would be for a majority of employees to decide.  The Act would also establish monetary fines for violations of the right to join a union and give unions the right to have an arbitrator decide the terms of a first contract if the union and employer can’t reach agreement on their own.

Anne Marie Lofaso’s paper on the September Massacre makes it clear, however, that the Employee Free Choice Act, however essential, is only a start down the road to restoring union rights, union strength, and the bargaining power of American workers.  Decades of bad law will have to overturned if we are to restore the balance of power between workers and corporations that the New Deal envisioned.

Full post as published by ACS Blog on May 21, 2008 (boomark / email).