This article traces the evolution of how the National Labor Relations Act (NLRA) has been applied over the past seventy years. Although the law is rapidly approaching irrelevance, changes could be made to resuscitate it.

Enactment and Early Years
When the NLRA was enacted in 1935, Congress stated in Section 1 that "[t]he denial by employers of the right of employees to organize and the refusal by employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest . . ." Congress also noted "[t]he inequality of bargaining power between employees who do not possess full freedom of association . . . and employers who are organized in the corporate [form] . . ." When the Supreme Court sustained the constitutionality of the NLRA, it recognized that "a single employee was helpless in dealing with an employer; that he was dependent ordinarily on his daily wage for the maintenance of himself and family; that if the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and resist arbitrary and unfair treatment; [and] that union was essential to give laborers opportunity to deal on an equality with their employer."1

During the early years of the NLRA, creation of industrial unions like the Automobile Workers, the Steelworkers, the Rubber Workers, and the Electrical Workers enabled millions of employees to exercise their statutory right to organize and engage in collective bargaining. By the mid-1950s, 35 percent of private sector workers were union members,2 and the bargaining process directly enhanced the wages and benefits of union members and indirectly enhanced the employment terms of unorganized employees whose employers treated them fairly to prevent unionization. Unionization also provided individuals with a collective voice that allowed them to meaningfully affect their working conditions and resort to grievance-arbitration procedures when they thought they had been treated improperly. Employment-at-will relationships that could be terminated at any time for any reason were replaced by contractual provisions requiring employers to have "just cause" to impose discipline. Millions of other workers exercised their right to vote in National Labor Relations Board (NLRB or Labor Board) representation elections and decided not to select exclusive bargaining agents.

Following enactment of the NLRA, Labor Board and court decisions defined the rights enjoyed by covered employees. Overt forms of anti-union coercion were rectified, and employer-dominated employee committees were challenged under Section 8(a)(2), which prohibited employer-assisted labor organizations and ordered the disestablishment of company unions. More subtle forms of employer interference were also proscribed. Pre-election benefit increases that might reasonably induce workers to vote against representation were outlawed, along with "predicted" negative consequences of unionization that lacked an objective factual basis. The scope of mandatory bargaining topics was expanded to include almost any subject of meaningful interest to unit members that pertained to wages, hours, or working conditions. These included health benefits, pension plans, paid sick leave, employee workloads, layoff and recall rights, subcontracting decisions, safety rules, and just cause disciplinary limitations.

As the NLRA began to evolve from an "Emancipation Proclamation" for workers and labor organizations to a more mature enactment, Congress sought to balance the rights enjoyed by employers and unions. In the 1947 Taft-Hartley Act amendments, a number of union unfair labor practices were added to the NLRA. In the 1959 Landrum-Griffin Act amendments, the prohibition against secondary union activity was expanded, and organizational and recognitional picketing was restricted. Board and court decisions began to erode the rights previously recognized. One of the most significant early judicial decisions was announced in NLRB v. Mackay Radio & Telegraph Co.3 wherein the Supreme Court held that while the NLRA expressly protected the right of employees to engage in economic strikes as classic concerted activity, employers could counteract such job actions by hiring permanent replacements for the purpose of continuing operations during the stoppage.

Noncompliance Becomes Cost-Effective
In Kohler Co.,4 the Labor Board developed the "provocation" doctrine to prevent employers from benefiting from egregious anti-union conduct that may have induced unlawfully discharged employees to engage in non-violent, but unprotected, retaliatory conduct. Where the antecedent employer actions were found to substantially outweigh the seriousness of unprotected responses by the terminated employees, the Board would order them reinstated to their former positions. In Clear Pine Mouldings,5 however, the Board announced that it would no longer apply the Kohler Co. balancing approach. Any unlawfully terminated workers who engaged in even minor unprotected actions would forfeit their right to reinstatement and back pay. They would henceforth be required to file unfair labor practice changes with the NLRB and await the judicial enforcement of their reinstatement orders two or even three years following their discharges.

In NLRB v. Gissel Packing,6 the Court indicated that where employers commit flagrant unfair labor practices during organizing campaigns the Labor Board could issue remedial bargaining orders in favor of the affected unions even when those unions had been unable to establish majority support, based upon the assumption that the flagrant anti-union tactics prevented the attainment of majority status. Nonetheless, in Gourmet Foods,7 the Board announced that it would no longer issue remedial bargaining orders in favor of unions that could not demonstrate that they attained majority status during their organizing campaigns. When the doctrines announced in Clear Pine Mouldings and Gourmet Foods are combined, it becomes clear that employers willing to ignore their legal obligations under the NLRA can easily disenfranchise employees who support union organizing drives. They can openly and humiliatingly terminate key union supporters as soon as they learn of incipient organizing campaigns. This will chill union efforts by other workers and may induce the discharged individuals to respond with unprotected actions that will end their right to reinstatement. These efforts are likely to prevent the affected unions from ever attaining majority support among the intimidated workers, thus preventing them from obtaining remedial bargaining orders. The Board will set aside elections affected by the anti-union tactics and order rerun elections, but the remaining employees are unlikely to vote for unions they know their employers completely oppose. In addition, since the Labor Board is unable to award compensatory or punitive damages for violations, no matter how flagrant, immoral employers who merely engage in a balancing of the costs of compliance with the benefits of noncompliance often conclude that it is cost-effective to ignore the legal rights of employees to insure the nonunion status of their firms.

The Scope of Bargaining and the Right to Unionize
The scope of mandatory bargaining under the NLRA has been narrowed by Supreme Court decisions. In First National Maintenance Corp. v. NLRB,8 the Court suggested that collective bargaining with respect to decisions affecting the future direction of companies should only be required where the potential benefits of bargaining would outweigh the need of firms for unencumbered decision making. When such decisions do not pertain directly to labor cost considerations or they concern basic changes in firm operations, negotiations with affected unions will not be necessary. What the Court forgot was the fact that Congress enacted the NLRA to give employees the right to unionize to enable them to interfere with management freedom.

In other decisions, the Supreme Court has made it more difficult for professional and white-collar workers to unionize. In NLRB v. Yeshiva University,9 the Justices held that professors at mature universities are non-employee "managerial" personnel because they vote on admission and graduation requirements, even though they exert minimal influence over their basic wages, hours, and working conditions. In several cases, the Court has circumscribed the right of registered and licensed practical nurses to organize, holding that nurses who minimally direct the work of attendants constitute excluded "supervisors" under the Act.

As the United States has changed from a manufacturing economy to a white-collar and service economy, industrial union membership has declined. The globalization process has also affected American workers who now have to compete with low-wage workers in China, India, Korea, and other countries. If unions hope to survive in the coming decades, they must develop new approaches that will appeal to white-collar and service workers who cannot be as easily replaced by foreign labor. A recent study by Richard Freeman and Joel Rogers found that 44 percent of employees polled would like to be represented by "strongly independent" organizations while another 43 percent would like to be represented by "somewhat independent" entities. Although most workers recognize that they can exercise no influence over their employment terms without a collective voice, most would prefer less adversarial labor-management relationships.10

Changing Times, Changing Conditions
The NLRA was enacted at a time when management evidenced open hostility toward unions. As the percentage of workers represented rose to over one-third of private sector personnel, companies became more hospitable to collective bargaining. Nonetheless, as top managers decided that they would prefer to enhance shareholder wealth and greatly increase their own compensation packages, the thought of sharing firm profits with rank-and-file employees declined. As the union density rate fell below 10 percent, corporations began to envision a world without labor organizations. They realized how meaningless NLRA remedies are and began an aggressive campaign to eliminate the union movement as an economic force.

The NLRA has not kept pace with changing economic and sociological conditions. Whenever changes have been proposed that might make it easier for employees to organize, employer organizations have lobbied against such amendments. This is why the Act has become almost irrelevant to most employees.11

How to Reform the Law
If the statute is to be resuscitated, significant changes will have to be made.12 The definition of "employee" should be expanded to include professional personnel like academics and nurses who neither manage the organizations for which they work nor meaningfully supervise the attendants they nominally direct. The "economic realities" test should be incorporated to allow the Labor Board to extend organizing rights to independent contractors who have such close relationships with particular firms that they should be considered "employees" of those entities. Representation elections should be conducted on an expedited basis to minimize the negative campaigning of employers, and the Act should be amended to make it clear that statements or acts that would be likely to coerce employees constitute unfair labor practices. The scope of bargaining should be explicitly expanded to include issues of interest to workers, despite the infringement of managerial freedom that would result. Unions do not possess the power to block proposed managerial changes. Firms need only bargain in good faith to impasse over proposed changes, then they are free to implement what they have already offered at the bargaining table.

NLRA remedial provisions need to be altered to have an appropriate deterrent effect. When employers preclude the holding of fair elections by engaging in serious unfair labor practices during organizing drives, bargaining orders should be issued in favor of unions that can establish that they had achieved majority support. Where extreme anti-union actions are involved, the Board should be authorized to issue remedial bargaining orders in favor of unions that may not have attained majority support, but which the Board finds would have been likely to do so in the absence of the anti-union behavior. Employees illegally discharged because of their protected activities should be awarded double or triple back pay to compensate them for their true economic losses and to punish firms for ignoring legal obligations.

The use of replacement personnel during work stoppages should also be curtailed. It might be appropriate to allow struck firms to use temporary replacements, but they should only be allowed to hire permanent replacements when it would otherwise be impossible for them to continue operations. When employers engage in bad faith bargaining designed to undermine union support, the Board might be given the authority to order interest arbitration to resolve the disputed terms of employment. Interest arbitration has been used by many states to resolve bargaining disputes pertaining to government personnel who are not permitted to strike, and similar procedures could be used to resolve private sector impasses generated by bad faith bargaining by recalcitrant employers.

Injunctions, Make-Whole Relief, and Minority Unions
Section 10(l) of the NLRA requires the Labor Board to seek immediate preliminary injunctive relief whenever labor organizations engage in unlawful secondary activity or improper recognitional or organizational picketing. When employer unfair labor practices are involved, however, the Board is only authorized to seek discretionary injunctive relief, and this power is rarely used. Section 10(l) should be amended to cover discriminatory discharges during organizing campaigns to insure the immediate reinstatement of employees terminated because of their union activities. Preliminary injunctions could also be mandated when employers are obviously bargaining in bad faith. Another remedy for manifestly unjustified bargaining refusals could include make-whole relief that would attempt to place affected workers in the place they would presumably have achieved but for the firm's bad faith bargaining. Administrative law judges could conservatively estimate the wage and benefit increases that would probably have been obtained, and order the offending employers to pay the workers the lost benefits.

In his recent book, Charles Morris cogently argues that minority unions that have not achieved majority status have the statutory right under the existing NLRA to demand members-only bargaining on behalf of workers who have joined the union. He carefully demonstrates that the drafters of the original NLRA actually intended to permit members-only representation, but notes that this right has never been formally accepted by Board or court decisions. Congress could easily rectify this issue by amending the statute to explicitly recognize the right of minority unions to conduct bargaining on behalf of individuals who have joined that organization.13

Over the past seventy years, most industrial countries have extensively changed their labor-relations laws. Countries in the European Union (EU), for example, have been affected by EU-wide regulations. Meanwhile, the basic private sector bargaining law in the U.S. has failed to keep pace with global developments. If the NLRA is not significantly amended, it will become an irrelevant statute and employees will continue to be denied the right to decide in noncoercive environments whether they wish to have bargaining representatives.

Notes
1. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937).
2. Michael Goldfield, The Decline of Organized Labor in the United States (Chicago: University of Chicago Press, 1987) p. 10, Table 1; see Charles B. Craver, Can Unions Survive? (New York: New York University Press, 1993), pp. 34-35.
3. 304 U.S. 333 (1938).
4. 148 N.L.R.B. 1434 (1968), affirmed, 345 F.2d 748 (D.C. Cir. 1965), cert. denied, 382 U.S. 836 (1965).
5. 268 N.L.R.B. 1044 (1984), enforced, 765 F.2d 148 (9th Cir. 1985), cert. denied, 474 U.S. 1105 (1986).
6. 395 U.S. 575 (1969).
7. 270 N.L.R.B. 578 (1984).
8. 452 U.S. 666 (1981).
9. 444 U.S. 672 (1980).
10. Richard Freeman and Joel Rogers, What Workers Want 146-47 (Ithaca: Cornell University Press, 1999).
11. See Cynthia L. Estlund, "The Ossification of American Labor Law," 102 Columbia Law Review 1527 (2002).
12. See Charles B. Craver, "The National Labor Relations Act Must be Revised to Preserve Industrial Democracy," 34 Arizona Law Review 397 (1992).
13. Charles Morris, The Blue Eagle at Work (Ithaca: ILR Press 2005).

Charles B. Craver is the Freda H. Alverson Professor at the George Washington University Law School. He specializes in labor and employment law and legal negotiating and has published books and articles in these areas.

Labor and Employment Relations Association
Tel: 217-333-0072 | Fax: 217-265-5130 | LERAoffice@uiuc.edu | www.lera.uiuc.edu