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America's Labor Law System: What Went Wrong?
The National Labor Relations Act (NLRA) was passed in 1935 with the clear intent of promoting unionization and collective bargaining.
The law stated: "It is declared to be the policy of the United States to eliminate (obstructions to commerce) … by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of the full freedom of association, self-organization and designation of representatives of their own choosing . . ."
Administered by the National Labor Relations Board (NLRB), the act certainly was achieving that goal in 1954 when 35 percent of private sector workers were covered by a union contract.
However, today less than 8.5 percent of private sector workers have a collective bargaining agreement - and many people view the NLRB itself and its procedures for administering the act as the reason for this decline.
Theoretical rights under the NLRA have vanished into the smoke of today's reality: Workers have the legal right to strike, but can be permanently replaced if they do. Workers have the right to free association, but when they try to form unions they often are fired. Normally, if one is accused of a crime the trial comes before the punishment. In the workplace, the punishment is imposed and then the trial occurs.
What happened?
To help answer that question, the CWA News, in conjunction with the Workers Independent News Service, interviewed two men with unique perspectives:
W. Willard Wirtz was directly involved in the New Deal programs to promote collective bargaining, serving on the War Labor Board and chairing the National Wage Stabilization Board in the 1940s, and later serving as U.S. secretary of labor under Presidents Kennedy and Johnson.
William Gould IV, who has both practiced and taught labor law since 1961, served as chairman of the NLRB from 1993 to 1998, when he returned to the faculty of the Stanford Law School.
Purpose of the NLRA
Wirtz: When this act was passed it was after 150 years of American history in which strikes and picketing and organization of any kind had been a crime. And so what this legislation did was to change that, because there was complete inequality between labor and management.
In 1935, we were in the midst of a horrible depression and the unemployment rate was about 25 or 30 percent. Everything was going exactly badly. Franklin Roosevelt had been elected president three years earlier. Four things were done as far as the employment relationship was concerned. First, in effect, the strike was made legal. And then the minimum wage law was passed. Then the Social Security Act was passed. Then the National Labor Relations Act was passed, providing for unionization and collective bargaining. These four were terribly important steps.
Gould: I think the primary achievement of the act is that it - in tandem with the upheaval in mass production industries, out of which were born the new industrial unions - promoted as a matter of public policy the collective bargaining process and the idea of industrial democracy. In part because of the act, and in part because of the self-help initiative of the unions in the '30s and '40s, and in part also because of the War Labor Board, democracy was introduced to the workplace to an unprecedented extent - and with that came an arbitration process which protected due process rights for the average worker.
Balance Shifts to Employers
Wirtz: From 1935 until about 1970 or 75, we had what I guess I'd call an equality of bargaining power and the results were that the parties were working out privately the answers to their problems. The 1960s was the period when the act had the largest significance. Collective bargaining was working well … it was very important that companies and unions were working out their own agreements. Several things happened so that today (the process) doesn't have nearly the importance that it did then.
Gould: I think the most serious erosion of the act begins in the 1970s, almost a quarter century after the Taft-Hartley amendments.
(The NLRA was amended twice, in 1947 with the Taft-Hartley Act, and in 1959 with the Landrum-Griffen Act. Both of these Republican initiatives were meant to "balance" labor laws toward employers and to restrict rights of workers and unions. However, both Wirtz and Gould believe unionization has been hampered most by employer subversion of the NLRB processes.)
Justice Delayed - and Denied
Gould: Employers that had lived with the basic act in its early years suddenly found that there were ways to escape its strictures through delay, and that there were loopholes in the statute which lent themselves to delay. Particularly in representation proceedings … these proceedings can be dragged out in the form of unfair labor practice proceedings by simply a refusal on the employer's part to negotiate with the union even if the board has certified the union in a free vote as the exclusive bargaining representative. And that basic fact gives the employer a leverage of enormous proportions.
Wirtz: It takes the labor board about a year and a half to bring a case to a head if a company is trying to slow things up. That's too long. One of the reasons the act isn't working so well now is it takes too long to get an answer.
Gould: The average individual who is determining whether to throw his or her lot in with the union faces the prospect of waiting for two, three or four or more years before the process is concluded. And that's not an inviting prospect, even if you assume that the union will prevail at the final stage.
Blunting the Strike Weapon
Wirtz: There's been a development as far as the strike is concerned, so that now employers discharge employees if they take part in a strike. That pretty much weakens the power of the union.
Gould: Beyond loopholes, the statute contains enormous anomalies. Consider that it's aimed at promoting the collective bargaining process but (contains the) right to replace striking workers permanently when they're economic strikers. And also, the refusal to apply negotiated collective bargaining agreements to so-called successor employers.
(The Supreme Court in 1937 issued a paradoxical decision in which it said that while strikers can't legally be fired, they can be permanently replaced. Permanent replacement rarely occurred until President Reagan fired the air traffic controllers in the PATCO strike, making this tactic suddenly "thinkable" in American labor relations.)
Call for Reforms
Wirtz: Today there is not that kind of equality of rights, of power (as in the 1950s and 60s). I think it's important for this country to work right that workers have an effective organization - effective politically, economically. I think the National Labor Relations Act has that as its central purpose - and the law should today be strengthened.
Gould: I would advocate a number of revisions in the statute. Obviously the problem is delay. We need legislative remedies that go after delay, (and also) that deal with the way the board functions, and then remedies dealing with punishment - if a worker is fired or whatever, that the company has to pay a greater fine so there's less incentive (to break the law).
The board ought to be authorized - particularly in first contract negotiations - to impose a contract through arbitration when the parties are unable to negotiate a first contract. Because after all, the inability to negotiate a contract is tantamount to a denial of bargaining rights altogether. Because if a union can't negotiate a contract, it will find its support for collective bargaining will wither on the vine.
These interviews conducted for the CWA News also were edited for broadcast by the Workers Information News Service, a national labor radio news network. Frank Emspak is executive producer of WINS and a professor at the University of Wisconsin School for Workers.
The law stated: "It is declared to be the policy of the United States to eliminate (obstructions to commerce) … by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of the full freedom of association, self-organization and designation of representatives of their own choosing . . ."
Administered by the National Labor Relations Board (NLRB), the act certainly was achieving that goal in 1954 when 35 percent of private sector workers were covered by a union contract.
However, today less than 8.5 percent of private sector workers have a collective bargaining agreement - and many people view the NLRB itself and its procedures for administering the act as the reason for this decline.
Theoretical rights under the NLRA have vanished into the smoke of today's reality: Workers have the legal right to strike, but can be permanently replaced if they do. Workers have the right to free association, but when they try to form unions they often are fired. Normally, if one is accused of a crime the trial comes before the punishment. In the workplace, the punishment is imposed and then the trial occurs.
What happened?
To help answer that question, the CWA News, in conjunction with the Workers Independent News Service, interviewed two men with unique perspectives:
W. Willard Wirtz was directly involved in the New Deal programs to promote collective bargaining, serving on the War Labor Board and chairing the National Wage Stabilization Board in the 1940s, and later serving as U.S. secretary of labor under Presidents Kennedy and Johnson.
William Gould IV, who has both practiced and taught labor law since 1961, served as chairman of the NLRB from 1993 to 1998, when he returned to the faculty of the Stanford Law School.
Purpose of the NLRA
Wirtz: When this act was passed it was after 150 years of American history in which strikes and picketing and organization of any kind had been a crime. And so what this legislation did was to change that, because there was complete inequality between labor and management.
In 1935, we were in the midst of a horrible depression and the unemployment rate was about 25 or 30 percent. Everything was going exactly badly. Franklin Roosevelt had been elected president three years earlier. Four things were done as far as the employment relationship was concerned. First, in effect, the strike was made legal. And then the minimum wage law was passed. Then the Social Security Act was passed. Then the National Labor Relations Act was passed, providing for unionization and collective bargaining. These four were terribly important steps.
Gould: I think the primary achievement of the act is that it - in tandem with the upheaval in mass production industries, out of which were born the new industrial unions - promoted as a matter of public policy the collective bargaining process and the idea of industrial democracy. In part because of the act, and in part because of the self-help initiative of the unions in the '30s and '40s, and in part also because of the War Labor Board, democracy was introduced to the workplace to an unprecedented extent - and with that came an arbitration process which protected due process rights for the average worker.
Balance Shifts to Employers
Wirtz: From 1935 until about 1970 or 75, we had what I guess I'd call an equality of bargaining power and the results were that the parties were working out privately the answers to their problems. The 1960s was the period when the act had the largest significance. Collective bargaining was working well … it was very important that companies and unions were working out their own agreements. Several things happened so that today (the process) doesn't have nearly the importance that it did then.
Gould: I think the most serious erosion of the act begins in the 1970s, almost a quarter century after the Taft-Hartley amendments.
(The NLRA was amended twice, in 1947 with the Taft-Hartley Act, and in 1959 with the Landrum-Griffen Act. Both of these Republican initiatives were meant to "balance" labor laws toward employers and to restrict rights of workers and unions. However, both Wirtz and Gould believe unionization has been hampered most by employer subversion of the NLRB processes.)
Justice Delayed - and Denied
Gould: Employers that had lived with the basic act in its early years suddenly found that there were ways to escape its strictures through delay, and that there were loopholes in the statute which lent themselves to delay. Particularly in representation proceedings … these proceedings can be dragged out in the form of unfair labor practice proceedings by simply a refusal on the employer's part to negotiate with the union even if the board has certified the union in a free vote as the exclusive bargaining representative. And that basic fact gives the employer a leverage of enormous proportions.
Wirtz: It takes the labor board about a year and a half to bring a case to a head if a company is trying to slow things up. That's too long. One of the reasons the act isn't working so well now is it takes too long to get an answer.
Gould: The average individual who is determining whether to throw his or her lot in with the union faces the prospect of waiting for two, three or four or more years before the process is concluded. And that's not an inviting prospect, even if you assume that the union will prevail at the final stage.
Blunting the Strike Weapon
Wirtz: There's been a development as far as the strike is concerned, so that now employers discharge employees if they take part in a strike. That pretty much weakens the power of the union.
Gould: Beyond loopholes, the statute contains enormous anomalies. Consider that it's aimed at promoting the collective bargaining process but (contains the) right to replace striking workers permanently when they're economic strikers. And also, the refusal to apply negotiated collective bargaining agreements to so-called successor employers.
(The Supreme Court in 1937 issued a paradoxical decision in which it said that while strikers can't legally be fired, they can be permanently replaced. Permanent replacement rarely occurred until President Reagan fired the air traffic controllers in the PATCO strike, making this tactic suddenly "thinkable" in American labor relations.)
Call for Reforms
Wirtz: Today there is not that kind of equality of rights, of power (as in the 1950s and 60s). I think it's important for this country to work right that workers have an effective organization - effective politically, economically. I think the National Labor Relations Act has that as its central purpose - and the law should today be strengthened.
Gould: I would advocate a number of revisions in the statute. Obviously the problem is delay. We need legislative remedies that go after delay, (and also) that deal with the way the board functions, and then remedies dealing with punishment - if a worker is fired or whatever, that the company has to pay a greater fine so there's less incentive (to break the law).
The board ought to be authorized - particularly in first contract negotiations - to impose a contract through arbitration when the parties are unable to negotiate a first contract. Because after all, the inability to negotiate a contract is tantamount to a denial of bargaining rights altogether. Because if a union can't negotiate a contract, it will find its support for collective bargaining will wither on the vine.
These interviews conducted for the CWA News also were edited for broadcast by the Workers Information News Service, a national labor radio news network. Frank Emspak is executive producer of WINS and a professor at the University of Wisconsin School for Workers.