The NLRB

...They want to put in place preemptive workplace structures that employers can control, and they hope to succeed where their corporate predecessors of the 1930s (who had the same idea) so signally failed...

...In truth, he concedes that the problem is endemic, a "dilatory virus" that infects the entire federal bureaucracy, but is at its worst where decisions are apt to be controversial...

...The participation rate was down to a seventh of what it had been in the early 1950s...

...Everybody says, organize more...

...Elsewhere, he was a bit gutsier...

...When it comes to unions, we're really two nations...

...Explaining why new jobs aren't unionized is much harder than explaining why old ones disappear, but we don't need a definitive answer—none is forthcoming from academics—to be confident that something is terribly awry in labor law...

...He resurrected the discretionary 10(j) injunction, by which the NLRB can provide a quick remedy in egregious unfair labor practices cases...

...This is an issue on which the labor movement can win, even in George W.'s era, if only it can be gotten on the table...

...Two Democrats and one Republican carry over, and Bush (as of this writing) has not yet announced his appointments...

...California, to take a shining example, has just passed a law (A.B...

...employers can do whatever they want, even appoint the committee members...

...He may not want to expend much political capital here, assuming he even cares very much, and if the Democrats recapture the House in 2002, that would certainly have a moderating effect...

...No wonder the labor movement is implacably against the TEAM Act...

...But employers have every reason to expect that its bent in enforcing the law will be more pro-management...

...House Republicans piggy-backed on the failed Dunlop Commission deliberations to launch a proposal of their own, the Teamwork for Employees and Management (TEAM) Act, exempting employers who want to establish shop committees from Section 8a2, providing only that these committees not embrace collective bargaining or interfere with existing agreements...

...No doubt the proposition would run afoul of the preemption defenses ringing national labor law, but the Supreme Court might be hard put to answer this particular line of argument...

...The TEAM Act offers no such protections...

...But current labor law is not amenable to these straightforward calculations...

...He favored postal ballots where employees were scattered or on strike...

...And then, scarcely had Gould and his colleagues settled in than the Republicans seized control of Congress...

...The law has been resistant to amendment—in part because the broad terms in which it is written invite judicial interpretation, but also because every attempt at amendment since 1959 has evoked fierce opposition and ended in stalemate...

...Gould is scathing about the timidity and indecisiveness of his colleagues—the Democrats especially...

...Bill Clinton had a better than average opportunity to reshape the NLRB because of the number of pending openings in 1993...

...They do it anyway because the punishment is so weak—just back pay minus what the victim earned (or might have earned) in the interim plus reinstatement (rarely meaningful if the union has been broken...

...It took ten months to get him confirmed...

...Union people will have to be vigilant against the two historic lures of the NLRB election...

...The new chair, William B. Gould, was a notable choice...

...But on doctrinal matters, what Gould advocated in Agenda for Reform was essentially foreclosed...

...The 1992 case that triggered the furor over 8a2—Electromation [19921—involved committees set up in response to a union campaign...

...Like everyone else in the business, Gould knew that timeliness is everything in organizing struggles...

...organizers had no right, save where workers were isolated and otherwise unreachable, to trespass on company property, even when that property was a mall used by the general public...

...Conservative academics say that all this means is that the "market demand" for union representation has slackened...

...it has an obligation to secure that right for its citizens...

...What had prompted this initiative was then secretary of labor Robert Reich's enthusiasm for the "high performance" workplace that made, in his view, for global competitiveness...

...Congress has not significantly amended the law in more than forty years, and regarding basic doctrine—the rights of workers to organize, choose their own representatives, and bargain collectively—the Taft-Hartley amendments (1947) to the original National Labor Relations Act (1935) are the last word...

...DAVID BRODY is a labor historian and retired professor at the University of California, Davis...

...Follow my procedures, it says to American workers, and you can move from individual to collective bargaining...

...Whatever the labor movement chooses to do, the one thing it cannot do is nothing...

...In Agenda for Reform, Gould proposed that the charade over coercive speech be abandoned—employers would be free to say whatever they wanted—while giving greater access by organizers to employees on company property...

...No Dissent reader is going to root for the employer side in the next big representation case...

...But, far more important, they DISSENT / Spring 2001 n 19 PLAN B mostly had the case law on their side anyway...

...By 1999, nearly a hundred cases had been pending for more than two years, and 10(j) injunctions were again falling into disuse...

...Despite Republican pressure, most of these initiatives (but, as noted, not rule-making for multiple-site units) survived and did some good...

...A more daring approach might be to press for a general right-to-organize law, ideally through a state proposition...

...In his unbuttoned memoir about his NLRB odyssey, Labored Relations, Gould says that board members and general counsel in fact were intimidated, and that progress he had anticipated, for example, on defining independent contractors (such as truckers) as employees was stopped short by Republican pressure...

...Some half-amillion union jobs disappear every year, mostly as a function of market forces, which in our globalized, high-tech economy hit the older, unionized sectors hardest...

...The labor movement should look elsewhere in the labor law, most particularly, at the right to organize...

...Or, conversely, are we supposed to cheer for the good intentions of the Clinton administration...

...The obstacles are too great—too much intimidation, too dominant an employer influence, too much delay...

...He did have some scope on procedure...

...Senate Republicans read Gould's book and came after him...

...What is needed is the elevation of the right to organize to the fundamental status that it deserves, with strong remedies like those that apply for racial discrimination or sexual harassment...

...Gould perforce submitted...

...What would constitute a fair test of it...

...the politicians will be listening to their constituencies...

...One of Gould's major initiatives—rulemaking that would eliminate the endless litigation over appropriate bargaining units for multiple sites—was squelched by an appropriations bill rider sponsored by congressional Republicans...

...There are some in the labor movement who have given up on it...

...But there has been no slackening in the public sector, where union representation currently stands at 42 percent and is rising...

...Not much, but something...

...It passed the House in 1995 and was stopped in 1996 only by Clinton's veto...

...Every NLRB case of any consequence is appealed to the bitter end...

...Moreover, the right to organize is about freedom of association, and no employers, not even the most rabidly antiunion, ever say that it's okay to fire workers for joining a union...

...But if it helps wean the unions from a stultifying law, is adversity such a bad thing...

...Why should we think "demand" would be so much weaker in the private sector if workers there had the same freedom of choice as public employees have...

...More important was the board's greater inclination than its predecessors to find that strikes involved unfair labor practices, which negated the employer's right to replace strikers permanently...

...In 1995, sensing an opportunity being wasted, reformers in the leadership of the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO) toppled Lane Kirkland's regime...

...On striker replacements, for example, a chink opened when the Supreme Court ruled in 1983 that if a strike settlement reinstated strikers, replacement workers promised permanent employment could sue for breach of contract...

...So, has the Clinton NLRB made any difference...

...Changes of administration have mattered, certainly, but their impact is indirect, mediated through NLRB appointments and a real but variable influence on how the law is applied...

...The case law has become so unbalanced that management will be satisfied if the Bush board just holds to a steady course...

...And any arrangement that might satisfy the unions would certainly alienate corporate America, which has too good a thing going to fool around...

...Labor law came into it because of a provision (Section 8a2) pro20 n DISSENT / Spring 2001 PLAN B hibiting company-dominated labor organizations the shop structures that the high-performance workplace presumably required...

...High up in the AFLCIO, Kirkland's able secretary-treasurer, Tom Donahue, thought that any degree of organization was better than none, and that shop committees might be a springboard for future unionization (as they had been in some firms during the 1930s...

...the labor market became the tightest in memory...

...In any case, we would count the venture a success if it got the country talking about the right to organize...

...It should not be treated as just another unfair labor practice...

...The number of pending cases climbed steadily during his tenure and by the time he departed, in 1998, was twice as high as before his arrival...

...How much worse, however, is an open question...

...It exempts workplace organizations that don't deal with the terms and conditions of employment, and even where they do, the NLRB, in practice, doesn't interfere without evidence of anti-union intent...

...Nor is there is any compelling state interest in this issue...

...Shop committees have found a good deal of support in academic circles, both among those interested in cooperative work relations and among those who believe that workers deserve a voice even absent union representation...

...SO WHAT SHOULD the labor movement be doing in the coming years...

...For starters, making workers feel secure is the most important single condition for the kind of grassroots organizing unions are currently doing...

...LACKLUSTER as the board's record was under Clinton, it is bound to be worse under Bush...

...But the NLRB itself, by Gould's acid account, was impervious to procedural reform...

...A modest pro-labor drift on factual findings no doubt can be found across the range of cases coming before the Gould board...

...Their normal routine, however, was to intercede in individual cases at the behest of employers—and never mind that the board was supposed to be independent...

...22 n DISSENT / Spring 2001...

...The upshot is that labor law in practice is something like a constitution, in which the law is what the National Labor Relations Board (NLRB) and, ultimately, the Supreme Court say it is...

...In many of the states that voted for Al Gore, union strength hovers around 20 percent, a lot of clout...

...A Stanford law professor of feisty independence and no interest in playing the inside-the-beltway game, he had just published a book, Agenda for Reform, arguing for a strengthened labor law...

...By convention, two board members and the chair come from the administration's party, the other two from the minority party...

...The labor movement cannot afford to expend its resources on a process that produces so small a fraction of what it needs just to stay even...

...Such was the fate of the Clinton administration's early foray into labor law reform under the auspices of the Dunlop Commission...

...Consider employer conduct during the representation election...

...The NLRB became a favorite (if not much reported) target of the Gingrich crew, whose particular whip hand was appropriations...

...and this requires remedies adequate to deter anti-union employers...

...The unions have to organize a like number of new workers, plus another 200,000 (to offset the annual labor force growth), just to stay even...

...On that basis, the Gould board said (0...

...There is a very slim chance, however, of a different scenario...

...Thinking about the labor law should be informed by what is happening out in the field...

...And at that point, the economy shifted into high gear...

...For the teamwork objectives they claim, 8a2 is not that big of a problem...

...The AFL-CIO should forget about reforming the representation election...

...If organized labor could defeat the "paycheck protection" initiative a couple of years ago, why shouldn't it be able to pass a right-to-organize initiative today...

...Still, the likely battle can only be a source of anxiety in the AFL-CIO...

...Last year, the private-sector unions, far from keeping up, organized only about 400,000 members and suffered a net loss of 271,000 (partly offset by gains in the public sector...

...The first is that, more than any other process, it offers the most certain and most coveted result: certification as bargaining agent (although this is now much tarnished by the high failure rate in achieving first contracts...

...The big question, however, is about the possibility of statutory change...

...Not that it much matters...

...To understand these numbers, we have to look at the underlying dynamics...

...Good idea...

...He had been naive, Gould conceded...

...With private-sector membership down to 9 percent, it does not have the luxury of waiting out the Bush administration...

...If labor's best hope is to extricate itself from the law, then how we judge the impact of a hostile Bush administration becomes problematic...

...E. Butterfield 1995) that, without an explicit promise to replacement workers, the presumption was that strikers had not been permanently replaced...

...The argument would go something like this: the state regards freedom of association as a fundamental right...

...The rights of workers under the law are actually far more expansive...

...The question would seem to require some estimate, first, of what the Republicans intend and, second, of their capacity to do it...

...A broad coalition of corporations and management groups has formed to plug the TEAM Act...

...John Sweeney came to power vowing to reinvigorate the labor movement and turn 18 n DISSENT / Spring 2001 PLAN B around its lagging organizing efforts...

...Gould thought it his duty to educate the public about the issues before the board...

...The representation election has been transformed so from its original form— and so cleverly wrapped in unassailable principles (of free speech, property rights, individual choice)—that debating it would be an uphill battle even if labor had the votes...

...One might argue that the Clinton board wasn't given a fair chance...

...BUT IT WOULD be equally naïve to believe that he could have done any better by keeping his head down...

...Irate employers would have been knocking on Congress's door no matter how quiet Gould was...

...No more vetoes are coming, but for the foreseeable future the Democrats remain strong enough to kill the TEAM Act in the Senate...

...This is the state-mandated route to collective bargaining...

...All this, of course, assumed that any amended 8a2 would protect the autonomy of shop committees...

...1889) prohibiting employers with state contracts from using state funds in anti-union campaigns...

...Unions will have a harder time before the Bush board...

...Take the law at its own word...

...As far as productivity is concerned, no...

...Through the 1990s, NLRB elections never produced more than 104,000 new represented workers a year—the average was nearer 75,000—and no amount of effort is going to improve that record very much...

...They have a protected right to organize in any form that suits them, and employers are at liberty to negotiate under any arrangement mutually satisDISSENT / Spring 2001 n 21 PLAN B factory to both parties, up to and including exclusive recognition (providing only that the employer is not colluding with a union that does not in fact have a majority...

...In my book, the test is productivity—not how many elections unions win, but how many workers enjoy the opportunity offered by the law to choose...

...By the late 1980s, little more than two hundred thousand per year did so, this in a labor force of seventy million eligible but unrepresented workers...

...Besides, there are still circumstances in which an NLRB election is a good option...

...A second complication, arising from the first, is that sixty years of case law have turned labor law into a monster...

...The second is that the public nature of the process lends it a special standing, as if the NLRB alone is the legitimate route to collective bargaining...

...One can imagine an amended TEAM Act with the protections added or an alternative, such as Harvard professor Paul Weiler's scheme of a few years ago for statemandated works councils...

...The labor movement is viscerally against anything that smacks of company unionism—this may have been a factor in Donahue's defeat at Sweeney's hands in 1995...

...But in Lechmere (1992) the Supreme Court (Clarence Thomas writing for the majority) had just slammed the door on access...

...Union density now stands at 13.5 percent, but in the private sector—the NLRB's bailiwick— the figure is 9 percent, the lowest it's been since the modern movement got on its feet a century ago...

...Never mind that the environment in Washington today is so unpromising...

...In fact, membership did grow modestly, although not enough to arrest the movement's shrinking density (16 percent in 1993, 14.9 percent in 1995, 13.9 in 1999...

...And in a variety of ways, he proposed speeding up the handling of cases where they originate before the administrative law judges...

...If ever there was a moment for union resurgence, this was it...

...Despite his grumbling, he declined to join a case mounted by the AFL-CIO to reopen Lechmere on the ground that this might impugn his neutrality...

...The AFL-CIO is talking about refocusing its efforts on the states...

...What are they up to...

...All he managed to do was provoke the wrath of the Republicans...

...But I doubt it...

...Yes, but as much as possible, in campaigns not directed at NLRB elections...

...My guess— historically informed, I hope—is that management strategic thinkers somewhere have been watching the de-unionization of the American economy and have decided that this is an inherently unstable situation...

...Last year, membership actually fell by 219,000...

...If in a representation election run by the NLRB, a majority of your fellow workers votes for a union, it will be certified as bargaining agent for your entire unit, and your employer will be required to sit down and bargain in good faith...

...The number of NLRB elections has actually fallen by about five hundred annually from what it had been under Ronald Reagan...

...Consider the record...