Labor Elections: Good for Workers?

...It had been the premise of the authors of the Wagner Act that the only way to assure employee free choice was to bar employers from the process...

...By Paul Weiler's count, one worker was being illegally discharged for every twenty union votes cast...

...The right of employees to choose their representatives when and as they wish is normally no more the affair of the employer than the right of stockholders to choose directors is the affair of the employees...

...An election, in fact, was not mandatory in the Wagner Act...

...Later generations have been slow to recognize the dangers to freedom of association lurking in this representation system...

...All it takes is to "go to a man whose bread and butter is dependent on your pay envelop and suggest to him you think it would be a good thing for him to form a company union...

...And to each code was attached Section 7(a), which asserted the by then inarguable principle "that employees shall have the right to organize and bargain collectively through representatives of their own choosing...

...The NLRB regularly certified unions by means of card checks, the inspection of membership lists, even the impression an NLRB examiner got of majority support at a factory meeting...

...The outcome, in the final draft of the Wagner Act, simply swept company unionism off the board: workplace-representation in any form not stemming from collective bargaining became—and still is—effectively proscribed.* But by this time, the die was cast...

...In the Wagner Act, the enforcement of employer neutrality was grounded in the unfair-labor-practice language...

...It was "nothing but an investigation, a factual determination of who are the representatives of employees...

...Indeed, Gissel was eloquent about the dangers of equating an NLRB election with a political election, "where the independent voter may be freer to listen more objectively and employers as a class freer to talk...

...It was a matter in which his employees alone had a stake...

...Wagner as best he could shaped the law with that claim in mind...

...75 Labor Elections between threat and prediction currently defines the scope of protected employer free speech...

...In this situation, the NLRB ruled in Cudahy (1939), the employer could require an election, even if documentary evidence hitherto considered adequate showed that one of the unions had a majority...

...The Supreme Court had already, in 1941, taken cognizance of the free-speech rights of employers in Virginia Electric & Power...

...It is, unlike labor's basic rights, not imperishably rooted in our history, *Unless, that is, Republicans have their way and the so-called TEAM (Teamwork for Employees and Management) Act gets passed, in which case the employee representation plans will be back in business...

...This rampant lawlessness is not different, in its sources, from the lawful assault on "free choice" that began after Taft-Hartley...

...By the time workers are reinstated, the union has long since been crushed, and few workers who are reinstated actually stay around for long...

...With the election now the core process, TaftHartley undertook a telling repositioning of the law...

...This was empty of legal meaning, but in the symbolism of the representation election it said that the worker was just a voter making a choice between collective and individual bargaining...

...Cudahy was a bone thrown to its tormentors...

...In a great rush, they set up company unions, through which workers appeared to be exercising their rights, but which of course the companies controlled...

...Indeed, the Senate committee reporting out the Wagner bill treated Sections 7 and 8 as a package...

...It was besieged at this time by charges, not wholly unfounded, that it was communistinfested and pro-CIO...

...To employer complaints that the law was one-sided, Wagner responded that workers did not presume to interfere when their employers organized (as they had been doing with great abandon under the aegis of the NRA) so why should employers interfere when workers organized...

...What had begun as fundamental to labor's rights has ended as an incident of the representation election, an item in play in the hardball that determines whether or not employers preserve their union-free environment...

...The irony is that, once the Wagner Act passed into law, the reason for this NLRB-administered system evaporated, because the company unionism that had called it forth simultaneously became illegal...

...The decisive blow was cast, remarkably, by Wagner's own NLRB...

...The answers came piecemeal, forged in the same battle against company unionism that created the representation system...

...For many years the battle had gone against labor, but gradually, and then inexorably, the balance shifted...

...General Shoe's "laboratory standard" gave rise to another luxuriant case law, fascinating for the distinctions it developed between the permissible and impermissible in misrepresentations of fact, racist appeals, third-party actions, and so on, but for purposes of preventing "an atmosphere calculated to render a free choice improbable," of no real account...

...its core process, the mandatory election, came as a still later accretion on the law...

...Each code regulated in detail not only the business practices of its industry, but also wages, hours, and working conditions...

...We have to ask," David Sickler, the AFL-CIO West Coast regional director, began a recent speech, "why the hell unions are where they are right now...

...This was not just a moral judgment on his part...

...A state-mandated bargaining structure— what became the rules of representation in Section 9—was something else...

...The underpinning in self-organization doctrine likewise was robust...

...if a majority votes yes, the union is certified by the National Labor Relations Board (NLRB), and collective bargaining begins...

...Unions today consider it a big victory when they can extract from employers a promise to be "neutral" in a representation campaign...

...Readers interested in the politics behind that history, and the doctrinal marches and countermarches, are urged to consult the excellent last installment of James A. Gross's NLRB trilogy, Broken Promises: The Subversion of U.S...

...What would once have been inadmissible—employers spoke piously of the "open shop" in the old days—now became, on the fair-and-square basis of the election, respectable, in fact brazenly espoused by the National Association of Manufacturers (NAM) and its Council for a UnionFree Environment...

...They "must leave the worker alone during an election...

...Wagner had objected to company unions, of course, because employers dominated them...

...If you want to avoid trouble, a 1940 legal manual for employers advised, "Stay completely neutral regarding elections...

...In part, for political reasons...

...In the early Wagner Act years, the NLRB treated anti-union statements unequivocally as unfair labor practices...

...requires them to attend captiveaudience meetings, and in the multitudinous ways available to the firm, pressures them relentlessly and, if they remain uncowed, makes their lives miserable and their futures bleak...

...That was why, in the course of the NRA battle, Wagner's labor board had fashioned a common law of employer neutrality: employers could not say prior to a representation election that workers would be better off voting one way or another...

...There was no model for this anywhere in the industrialized world, and no substantial precedent in America's own experience, which had been, in this realm, determinedly voluntaristic...

...In a 1991 poll, 79 percent thought it "very" or "somewhat" likely that workers would be fired for trying to organize a union...

...Norris-LaGuardia, in fact, already contained the language of Section 7. All that the Wagner Act added was enforcement provisions—the unfair labor practices of Section 8 prohibiting employers from coercing employees in the exercise of their rights, dominating or assisting labor organizations, discriminating against employees for union activity, or refusing to bargain collectively with the representatives of employees...

...Yet employers routinely violate it and accept the back-pay penalty as a cost of doing business...

...Since the employer has bought their time, can he make them listen...

...And like the great Civil Rights Act of 1964, Section 7 was a long time coming, emerging from a century-old ideological struggle that pitted the collective rights of workers against the rights of property and individual contract...

...In 1948, bowing to Taft-Hartley, the board declared captive audience meetings lawful, but went on in Bonwit Teller (1951) to assert the correlative right of unions to reply...

...No one seems to remember that employer neutrality was once what the law itself required...

...But that was the least of it, The board had gotten caught up in its own bureaucratic processes—the official explanation was that, by reducing "doubt and disagreement" about employee preferences, Cudahy would make for better bargaining relations after certification—and had lost sight of why the mechanisms for choosing representatives had been left open...

...But also, sadly, was its undoing, because the law that Wagner wrote had built into it the conditions that eventually killed employer neutrality...

...There was debate over the substance of these unfair labor practices, but never any question that a law seeking to enforce labor's rights would contain such provisions...

...This lawlessness does not merely vitiate free choice...

...Fearing for economic recovery, President Roosevelt set up the National Labor Board (NLB), with Robert F. Wagner, the great urban liberal senator from New York, as its chair (and by this assignment fated him to be the father of American labor law...

...Yet it was precisely the choice of forms of organization and methods of designation—"this freedom of selforganization," as the NLB called it in one early case—that the Wagner Act ultimately did take from workers and arrogate to the state...

...Noncertification recognition encapsulates to perfection how judicial interpretation turns something into nothing in the labor law...

...Employers cannot say that they will close the plant if the union wins, but they can say that their customers will go elsewhere or point to neighboring unionized plants that went out of business...

...The place to begin is with the original law, the Wagner Act of 1935...

...SUMMER • 1997...

...And so did the means it took to win...

...no employer need fear that, with the right counsel, he cannot safely make "predictions" that scare the pants off his employees...

...And we could mind the admonition of the chief drafter of the Wagner Act, Leon Keyserling, about not forgetting "where Labor's strength really lies" and believing that unions might be built up "with[out] anything to hold them together but some rule of law based upon distorted political analogies...

...The economic reasoning behind the Recovery Act was that the severe contraction of the economy was caused by cutthroat competition, and that unrestrained market forces could be tamed by a national program of economic stabilization...

...it attacks the integrity of labor's fundamental rights and drains the law of the moral content that had brought it into being in the first place...

...Too bad he didn't say it in public...

...It had no responsibility, nor any agenda, for implementing Section 7(a...

...State-administered representation had no original place in the law's Section 7 rights...

...They dared not oppose it in principle—any more than, say, Texaco today dares claim it did right by discriminating against black employees—but they did have a strategy...

...Within a decade, the number of NLRB unfair labor practices tripled, and by 1980 stood at a record fifty thousand...

...For all its brave words General Shoe, like Gissel, only demonstrated the futility of the law of employer free speech...

...On the basis of Cudahy, the board promptly established a general rule that employers could require an election whenever a union claimed majority status, irrespective of whether a rival union was present...

...He should also know it has no moral claim on them...

...Yet the law has come under heavy fire in recent years...

...74 • DISSENT Labor Elections the employer to assess the union's claim of majority standing...

...We can trace back at least to the commission appointed by President Grover Cleveland to investigate the Pullman strike of 1894 the view that the right of workers to organize and bargain collectively ought not to be denied, and follow that idea into the briefly enforced wartime policy of 1917SUMMER • 1997 • 71 Labor Elections 1918, the Railway Labor Act of 1926, and, by virtual acclamation during Herbert Hoover's administration, into the Norris-LaGuardia AntiInjunction Act of 1932...

...This happened piecemeal, case by case as disputes came before Wagner's board in 1933 and 1934, but the drift was unmistakably toward state-mandated representation—ultimately, a privileged bargaining structure that granted to unions demonstrating support by a majority of workers the right of exclusive representation and requiring the employer to bargain with unions so certified, and them alone...

...if the company won, it got a "union-free environment...

...And below the screen of that standard the determined employer interrogates workers...

...and it has evolved, in ways I have described, into a formidable constraint on the exercise of rights that the law still says that American workers have...

...In the final analysis," asserted its 1937 annual report, "most of this propaganda, even when it contains no direct or even indirect threat, is aimed at the worker's fear of loss of his job...

...Sickler knows this to be the case—hence his fury at the law...

...The associational rights of workers—"this freedom of self-organization"—had fused with a specific state-mandated process for determining and certifying bargaining agents...

...This was the task of industry codes of fair competition, written and administered by the industries themselves, but overseen from Washington by the National Recovery Administration (NRA...

...The prohibition against discrimination for union activity is the most basic and unimpeachable in the law...

...It] doesn't work...

...Initially, the Board's mission was solely to mediate the NRA strikes...

...In a series of decisions, beginning with "good-faith doubt" and how to test it, the courts have whittled down the limits on employer discretion to the point that, absent egregious unfair labor practices, the employer has today an absolute right to reject union claims and force the union to petition for an election (Linden Lumber 11974...

...Once representation was reconceived to be an electoral contest, either outcome became legitimate: if the union won, it got bargaining rights...

...Now, with Taft-Hartley, the time came for testing that premise: in effect, was there a middle ground on which employer free speech and employee free choice might co-exist...

...As things currently stand, access to employees at the workplace is exclusively (save in isolated settings) the prerogative of the employer...

...it emerged without design from the miasma of this country's one fling with corporatism...

...And when, for example, a bill came before Congress permitting employers to petition for elections, the NLRB responded with the (by then) boilerplate argument: "The employer has no legitimate interest in the question...

...This was in a private letter...

...What only history can tell him is how that law, intended by its authors to liberate workers, has ended up oppressing them...

...It is not as if the courts have been blind to the power realities on the shop floor...

...And what about that other "property" of em...

...That it is more than a prediction, the Supreme Court in its wisdom decided in Gissel (1969...

...Then, in Blue Flash (1954), the NLRB said no, interrogation could not itself be proscribed, only those interrogations in which coercion could be demonstrated...

...The gloves came off in the late 1950s...

...In General Shoe (1948) the Truman NLRB held up a "laboratory standard" it intended to enforce: elections must "be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees...

...Interrogating workers, like captive audience speeches, was originally prohibited as inherently coercive...

...The final version, however, backed away from so expansive a proscription on employer speech...

...but only the product of a passing, aberrant moment...

...This mean that, once Senator Wagner concluded that the company unions 72 • DISSENT Labor Elections violated Section 7(a), he had to meet them on their own terrain—that is, he had to advance a representation system that was compatible with the principles of self-organization...

...Labor Relations Policy, 1947-1994 (Temple University Press, 1995...

...Why had the NLRB done this...

...No, the Supreme Court ruled in Babock & Wilcox (1956), except where workers are so physically isolated, say, in a lumber camp or cannery, that they are beyond the reach of the union...

...Why are they, we, in a declining mode...

...When did all this begin to change...

...At the behest of the employer, the election became mandatory...

...I have spoken so far only of what is currently lawful, not of the unfair labor practices that, in this hostile atmosphere, accompany the anti-union campaign...

...In this essay, I want to address the paradox that a labor law democratic on its face is also a bad law for workers...

...The one precursor law, the Railway Labor Act of 1926, had simply left the designation of representatives for "the respective parties" to decide for themselves...

...His answer: "Because unions are trying to make change by following the old model established by federal law...

...The original 1934 bill had prohibited employers from interfering with, influencing, or restraining employees in the exercise of their associational rights...

...SUMMER • 1997...

...This was the place, in a massive, chaotic corporatist experiment in industrial self-regulation, where the grand objectives of Norris-LaGuardia lodged and from whence came our permanent labor law...

...that concessions would be forthcoming if the company union won...

...Then Taft-Hartley inserted this free-speech provision (Section 8c) into the law: The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any provision of this Act, if such expression contains no threat of reprisal or force or promise of benefit...

...Workers are fired every day for union activities, and nonunion workers know it...

...What forms of labor organization should be protected...

...They fully grasped the problem in both of its dimensions: first, that any formal representation process would be vulnerable to the demand for a voice by employers...

...That happened because of the way employers responded to Section 7(a...

...Knowing this history, we can think more productively about how to write a better law or, until then, how to make the best of the present one...

...in the angry testimony by labor people before the Dunlop Commission, which was set up to look into the question of labor law reform during the early days of the Clinton administration...

...For practical purposes there is today no alternative route, only the mischievous legacy of Cudahy that empowers the employer (who has every interest in doing so) to make the election mandatory...

...the concept of company domination was already legally established and proscribable under railway labor law by the time Wagner took up the fight for Section 7(a) in 1933...

...Gissel is duck soup for lawyers...

...The same unreality pervades the case law on the Taft-Hartley limits on free speech...

...and even in a certain sympathy (now silent inside the AFL-CIO but still voiced by some of its academic friends) for modifying the law's strict prohibitions against company-sponsored employee participation plans on the grounds that any organizational activity might be better than none...

...ployers, the labor of their employees...

...The courts and the NLRB have sought this ground in two ways: first, by trying to define, through a variety of tests, what constitutes impermissible employer speech...

...All the more important, therefore, the doctrinal justification for employer neutrality— namely, that when workers chose bargaining agents under NLRB supervision they were really engaging in self-organization...

...All this should suffice to show that there is nothing sacred or inevitable about our law of labor representation...

...It was but a short step to Taft-Hartley, which in 1947 made the election mandatory for certification.* A union might still gain exclusive bargaining rights without an election and without benefit of NLRB certification, but it was left to *An employer, in principle, cannot arbitrarily reject a union's claim to majority status...

...Lechmere (1992) recently reaffirmed that standard...

...Wagner and his allies, veterans of the campaign against company unionism, appreciated all too keenly the problem of coercive speech...

...A jungle of case law has grown up around Blue Flash, but no amount of fine distinctions about time, place, and so on can alter the fact that, in the heat of a representation campaign, an interview in the supervisor's office about how an employee feels about the company is coercive to that employee...

...As for the workers, Section 7 now said they could refrain from as well as act on their rights of association...

...Strikes erupted across the country...

...Self-organization and employer neutrality went together...

...Unions became subject, like employers, to unfair labor practices...

...This distinction *The summary account that follows scarcely captures the contested legal history of the modern labor law...

...The idea that it is somehow inherent or inevitable in a law protecting the associational rights of workers is wrong...

...His problem was definitional: What actions constituted company domination...

...The election was nothing with which the employer need be concerned," concluded a Brookings InstituSUMMER • 1997 • 73 Labor Elections tion account of Wagner's earlier 7(a) rulings...

...My reference is, of course, to the National Industrial Recovery Act of 1933, which took shape during the Hundred Days when the New Deal was scrambling to come to grips with the Great Depression...

...They were works councils, or, in the more common usage, employee representation plans, and hence systemically different from trade unions...

...and, second, by a balancing of the conflicting rights of employers to speak and of workers to associate freely.* Immediately, however, a second employer right—the right of property—entered the equaLion...

...Despite a lot of rhetoric, Wagner actually minimized the election...

...It all seems very democratic, and almost beyond questioning...

...half of this number believed that, if they participated, they themselves would be fired...

...In its time, this capacious language was as powerful, as compelling nationally, as civil rights would be thirty years later...

...Once free choice came to be synonymous with electoral choice, it followed that employers would be seen as parties to the process, that their "free speech" rights would then prevail, and that we would end up more or less as we have with employer domination of the representation election...

...and second, that their participation would inherently be coercive of workers...

...Stickler's condemnation was unequivocal...

...they had become, in the eyes of the law, equal players in an electoral game...

...The law had not anticipated that organized labor would split apart over industrial unionism, or that representation campaigns would become battlegrounds between the AFL and the CIO, in which employers might sometimes be caught in a standoff between rival unions...

...Not so the authors of the Wagner Act...

...David Sickler knows the representation election is bad for workers...

...The law that governs organizing and collective bargaining"— the law, that is, centering on the representation election—"is a failure...

...Nor was there even a conception of the representation structure that would be enacted in 1935...

...Exhilarated workers—free at last, so they thought—rose up and organized...

...These NRA creations were not fake trade unions, but a different animal altogether...

...Section 7(a) of the NRA codes should not be confused with Section 7 of the later Wagner Act...

...that the plant would close if the outside union won...

...This had been 76 • DISSENT Labor Elections Senator Wagner's doing...

...Nearly a third of all certifications in 1938-1939 occurred without an election...

...Threats and promises are proscribed...

...or, more precisely, the paradox of a law that gives workers basic rights of association and then, through the processes of "free choice" by which they select representatives, takes those rights away...

...But what constitutes a "threat" or a "promise...

...Wagner's board thus took the position that "the selection of a form of organization and designation of representatives, as well as the method of designation, are placed by Section 7(a) within the exclusive control of the workers...

...And they can describe the bargaining tactics they intend to follow if the union wins, with negotiations starting from "scratch" and no guarantee that the employees will not end up on the streets...

...The remedy for infractions that disqualify an election on the basis of the laboratory standard is only another election...

...This had never figured in the long-evolving struggle for labor's rights, but sprang rather from an anomalous, and probably unrepeatable, historical moment when the United States had its one serious fling with a corporatist economy...

...at the discretion of the NLRB, "any other suitable method" would do...

...The core statement of worker rights—Section 7—needs to be quoted in full: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection...

...Nor have we lacked for standards of what constitutes a fair representation election...

...In its simplest form, this involved the question of solicitation: should unions have the same access that employers did to workers on company property...

...History says otherwise...

...Employers got the message...

...In deference to First Amendment concerns, the word "influence" was stricken out...

...The employer has no place in elections," insisted Francis Biddle, Wagner's successor at the NRA, because the election is "a mere inquiry into the facts...

...Employer speech could be proscribed, but not by any blanket rule of employer neutrality...

...Sickler's view is echoed on many fronts today: on the ground, where, with the active encouragement of the new regime at the AFL-CIO, organizing campaigns choose not to seek bargaining rights through NLRB elections...

...In 1953, the Eisenhower board in Livingston Shirt rejected this equal-access claim, and the Supreme Court agreed, providing that organizers had other access to employees...

...The NLRB had always regarded "captive audience" meetings as coercive and barred them...

...or, to individuals, that they would be rewarded or punished for how they voted...

...employers, like unions, got the right to petition for elections...

...What an employer says, noted the Twentieth Century Fund in testifying for the law, "so easily leads to what is coercion and fear...

...Thus, for example, his "onesided" treatment of employers or, equally telling, how he handled what we have taken to be the capstone provision, the representation election...