The broken promise of U.S labor law, Part Two

(Editor's Note: This is Part Two in a three-part series on the National Labor Relations Board.)


Staff Reporter

Working from a rented office in KOIN tower, officer-in-charge Cathleen Shelton and her staff of seven at National Labor Relations Board (NLRB) Subregion 36 are responsible for protecting the union rights of private sector workers in Oregon and southwest Washington.

When union workers and their employers get along, Shelton doesn't hear about it; it's when conflict breaks out that she gets a call. NLRB agents are themselves represented by a union, the National Labor Relations Board Professional Association. But in the struggles they arbitrate between management and union workers, agents are expected to maintain at all times an attitude of strict impartiality.

Asked to comment on the political nature of the agency, Shelton and other NLRB staff are silent.

Yet everything about the agency is political, from the role it plays in the struggle between haves and have-nots, to the internal difficulties caused by a decades-long funding and staffing crisis, to the built-in weakness of an agency with no enforcement power and no ability to win punitive sanctions.

The NLRB was hemmed in from the beginning by politics, and its limitations have become more pronounced over the last 60 years as organized labor's political clout has fallen. Unions have made multiple attempts to reform the nation's labor law, without success. Since they no longer expect the law to be effectively enforced, unions today that are serious about organizing have to work around the law or use it as a tactic in a broader strategy.

An agency born of compromise politics

The NLRB and its budget have been political issues from the beginning, says Daniel Pope, associate professor of history at the University of Oregon.

The Wagner Act, which founded the NLRB, was passed in 1935 after a year of unusually large and violent strikes. "Historians who've researched it can point to a sense of fear in the highest levels of government," Pope says. In essence, granting workers the legal right to organize was a political compromise; the exemption of farm laborers, for example, was intended to appease Southern Democrats who wanted to prevent black farm workers from organizing.

Farm workers weren't the only ones left out of the National Labor Relations Act: Workers in small businesses, domestic servants, independent contractors (such as taxi drivers), and managers and their secretaries are not covered by the law. Railroad and airline workers and public employees aren't covered either, but separate laws cover their union rights.

Pope maintains that even with such giant exemptions, the passage of the act was a boon for labor initially - it gave formal government sanction to unions and a procedure for being recognized.

But union rights weren't long in unraveling. Twelve years after the Wagner Act became law, the Taft-Hartley amendments were passed. Taft-Hartley's Republican backers blamed unions for inflation and inflamed fears about Communists in positions of union leadership. Though initiated by a new Republican majority in Congress, Taft-Hartley passed with support from some Demo-crats over the veto of President Harry Truman. Taft-Hartley cut deeply into the rights won by the National Labor Relations Act. It allowed states to prohibit union contracts requiring all workers to pay dues (as a result, 21 states, termed "right-to-work" states, ban such "union security" clauses.) It added restrictions on how bargaining units could be constituted, instead of letting workers and unions decide. It placed multiple restrictions on picketing and made it illegal for strikers to block replacement workers (scabs) from entering. It allowed unions to be sued if unauthorized (wildcat) strikes occurred. It denied supervisors the right to organize (accordingly, they can be legally fired for union sympathies.) And it gave the President of the United States the power to declare a mandatory 80-day cooling off period for strikes deemed to threaten the national interest.

Since Taft-Hartley passed over 50 years ago, organized labor has been unable to repeal it, even partially. If anything, the legal situation has worsened for unions: In 1959, after Congressional hearings pointed to corruption in the Teamsters and other national unions, the Landrum-Griffin Act was passed, banning organizational and recognition picketing and imposing detailed reporting requirements on unions.

Unions have pressed for reform, but without success. In 1978 a chance to reform labor law was squandered on a procedural technicality in the U.S. Senate.

In 1980, Ronald Reagan was elected president, ushering in the most anti-union Administration in history. Reagan's first nominee to chair the NLRB, John van de Water, had been a management consultant on how to keep unions out. Van de Water was turned down by the Senate, but Reagan's next nominee, Donald Dotson, was confirmed, and proved to be openly hostile to enforcing the law.

Politically, things improved slightly for unions with the election of Bill Clinton. Union labor lawyers say they've seen better appointments to the board, the general counsel and the regional director positions, and a greater tendency to use injunctions.

During his campaign in 1992, Clinton promised to support a ban on the permanent replacement of strikers. After the election, he did prohibit, by executive order, the federal government from doing business with companies that hire striker replacements. But a bill to ban permanent replacements died in committee and received none of the serious arm-twisting Clinton used in his campaign to pass the anti-labor North American Free Trade Agreement.

Why hasn't labor been able to get a repeal of Taft-Hartley? "It has to do with the drift of the Democratic Party to the right," says Marcus Widenor, associate professor at the Labor Education and Research Center of the University of Oregon. Widenor said the existence of a hard core of pro-corporate Southern Demo-crats may account for labor's inability to get any reform out of Presidents Kennedy or Johnson, but in the 1960s, there was a realignment in which conservative Southern Democrats went over to the Republican Party. Thus, Carter and Clinton didn't have a conservative Southern bloc to contend with, but they still didn't do much for labor.

"Clinton, to me at least, is a demonstration that the Democratic Party no longer sees labor as a full partner in the coalition," Widenor says. "Organized labor's issues are not high on the agenda."

An agenda for reform

During the Clinton era, the one ray of hope for reform was the Dunlop Commission. Appointed by the president to investigate the major problems of the National Labor Relations Act, the Dunlop Commission consisted of academics and representatives from labor and the corporate world. It was led by John T. Dunlop, former secretary of labor and the most senior industrial relations scholar at Harvard.

After 20 months spent hearing testimony from 411 witnesses at 21 public hearings around the country, the Dunlop Commission issued this conclusion in December 1994: "The evidence reviewed by the Commission demonstrated conclusively that current labor law is not achieving its stated intent of encouraging collective bargaining and protecting workers' rights to choose whether or not to be represented at their workplace."

To correct the law's failings, the commission called for:

* Union elections within two weeks of filing, with employer challenges to bargaining units and other legal quibbles resolved after the election, not before, as they are now.

* Requiring the NLRB to obtain prompt injunctions to remedy illegal actions against employees that occur during an organizing campaign or negotiations for a first contract.

* Mediation for first-time contracts.

* A more honest definition of manager and supervisor so that plant guards and professionals who direct their less skilled co-workers would no longer be excluded from the protections of the law.

In labor's eyes these were good suggestions but woefully inadequate to reform the law. Unionists regarded the commission's report as a watered-down compromise at a time when comprehensive labor law reform was needed. To make matters worse, by the time the commission finished its study, the House and Senate had gone over to Republican control.

And so, the Dunlop Commission amounted to nothing; its proposals were stillborn. It may still prove useful as a source of ideas. In fact, if the union movement ever achieves the political muscle necessary to reform labor law, there is no shortage of ideas. The Dunlop Commission report contained the least controversial.

For more thorough reforms, recent experiments in Canadian labor law would be a good place to look. Under a labor law passed in Ontario in the early 1990s under a pro-labor government (later repealed when a conservative government came to power), if 55 percent of employees at a workplace signed authorization cards, a union was automatically certified.

If an employer violated labor law in opposing a union drive, the Labor Board could certify a union regardless of member support.

Hiring of strike replacement workers - temporary or permanent - was banned. And first labor agreements for newly-certified bargaining units were subject to arbitration.

Though without success so far, American unions have also pressed for: Punitive damages for unfair labor practices; an end to so-called "right-to-work" laws, and extending the law to other workers, such as temporary workers and farm workers.

Demands for a change in the law

To bring about such reforms in the labor law, organized labor has been taking its case to the public in recent years with rallies and demonstrations.

Margaret Butler, now on staff at the Portland chapter of Jobs With Justice, was one of several hundred people arrested May 27, 1993, in a nationwide day of action for the reform of labor laws in which nearly 10,000 people in 26 cities took part.

Then an organizer for the Communications Workers of America (CWA), Butler was one of nine people arrested in Portland during an occupation of the lobby of the KOIN Tower, three floors below the NLRB office. Butler says in the years she worked as an organizer for CWA, she never worked on a campaign where the company did not commit unfair labor practices. But whether the union filed charges was another matter.

The demand for a better-protected right to organize may be becoming an annual event. On June 24, 1998, 10,000 union supporters participated in "right to organize" events in more than 70 cities around the country. This year, the national AFL-CIO designated a week of actions, "Seven Days In June" to fight for the right to organize, with similar turnout.

"The right to organize is often thwarted by employers, and this needs to be publicized," explains Leanne Ainsworth, co-coordinator of the AFL-CIO's Seven Days in June project. "Right now there is no legislative campaign because we recognize we have to build a movement before we are able to have the necessary votes."

What are the prospects of labor law reform in the near future? Not good, thinks LERC's Widenor. Though organized labor has recently begun demanding more from candidates who want union support, it's unlikely to see a pro-union president any time soon.

Working around the law

If anti-union businesses feel the law is no obstacle, pro-union workers find the law is no protection.

"People feel unprotected any time an employer is allowed to fire someone for union involvement," says Susan Stoner, attorney for Amalgamated Transit Union Local 757. "They feel the union is too weak to protect them, and that they're at the mercy of this corporate greed."

Particularly after 1980, many unions have come to feel that filing charges at all is futile. In the early '80s, AFL-CIO President Lane Kirkland derided American labor law as worse than useless, and declared that the labor movement would be better off with the law of the jungle than with a set of laws that restrict unions and claim to protect workers but fail to do so.

By and large, unions no longer expect the law to be effectively enforced. Instead, they use the law as one weapon in an overall campaign. Unions today pursue unfair labor practice complaints more for use in public relations campaigns, particularly against companies that rely on a good public image or that are dependent on government business.

Lars Negstad, a researcher with the national Hotel Employees and Restaurant Employees Union, says he sees a growing tendency to go outside the NLRB process. "We've found that the NLRB doesn't work. If we ever do win an election, we still have to fight to get the contact," Negstad said. "We need community support for that, so we might as well build community support from the beginning."

ATU attorney Stoner says that while the NLRB's remedies are worthless by themselves, savvy union strategists can use NLRB rulings when they air the union case before local governments, customers, and the general public.

That means, though, that rather than filing a charge every time the law is broken, unions have to pick and choose which abuses they will fight. Gene Mechanic, a labor union lawyer in Portland, agrees."You have to find those cases where there are pressure points you can use to get an employer to settle. You use the law as one of the means to apply pressure on an employer. If that's the only vehicle you have, then you're in trouble."

(Editor's Note: Part Three will document one union's four-year struggle against a multi-billion dollar company determined to use every maneuver available to keep the union out.)

July 2, 1999 issue

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