The current situation is a far cry from the common understanding of both labor and management when the NLRA was first passed. At that time, it was generally understood that the Act would pave the way for unionization and the spread of collective bargaining. Unlike the National Recovery Act, which preceded it, the NLRA was carefully structured to be effective. Many aspects of the new law were innovative; its provisions were thought to be powerful; and its scheme for enforcement was carefully chosen. It contained a sweeping enunciation of employee rights, provisions for determining whether employees wished to be represented by a union, and a requirement that the employer bargain with a union selected by its employees. Perhaps most encouraging to union supporters, the Act was to be developed and applied by an expert agency rather than the courts--labor's historic enemy. The key provisions that led to such great hopes by unions and their supporters remain in force, but now, 70 years later, optimism has given way to cynicism and despair.

How has this pessimism come about and what-if anything-should and can be done to make the law fairer and more effective? The explanation involves the negative role played by the judiciary, the failure of the National Labor Relations Board (NLRB or Board), and the weakening of the right to strike. Prohibiting employers from hiring replacement workers during a strike stands out as perhaps the most constructive change that could be made to improve the current situation.

The Negative Role of the Judiciary
The scheme of the NLRA envisioned no role for the courts with respect to the representation election process, and a limited task of routinely enforcing NLRB orders with respect to unfair labor practices. But the courts are notoriously difficult to replace or control. The notion that courts would simultaneously defer and enforce was unrealistic; so long as the courts had the power to refuse enforcement, it was inevitable that they would use this power to require the Board to interpret the Act in accordance with the judges' views of desirable policy. Court interpretations of the NLRA have overwhelmingly favored employer property rights over employee rights to organize and bargain.

Only a few years after the Act's passage and in the face of the ringing endorsement of the right to strike in Sections 7 and 13, the Supreme Court announced in NLRB v Mackay Radio & Telegraph (1938) that an employer had not "lost the right to protect and continue his business by supplying places left vacant by the strikers." And when the dispute is over, he is not bound to discharge those hired to replace the strikers. The Court's decision to allow permanent replacement of strikers was of enormous consequence. In addition to having a damaging impact on the strike weapon, the decision helped set a pattern of interpreting the NLRA to interfere as little as possible with traditional property rights.

The Supreme Court has similarly elevated traditional property rights over the rights of unions in a series of cases dealing with access to employees.1 Employers by virtue of property rights may assemble employees and make the case against unions. During the campaign that precedes a representation election, employers regularly avail themselves of this right, and seek to convince employees of the harm that might come from unionization and of collective bargaining's likely futility. In its 1992 Lechmere decision, the Supreme Court decisively rejected the idea that the Board could require the employer to allow a non-employee organizer on its property to make sure employees hear both sides.

Similarly, the Courts of Appeal have given greater weight to an employer's right to discharge an unsatisfactory employee than to the Act's prohibition on discriminatory discharge. Thus, union activity is regularly costly for those who engage in it. The Court has also rejected the idea that the Board may seek to deter unlawful employee conduct by punishing wrongdoers.2

Collective bargaining, where given a chance, has generally been successful. It has helped employees to achieve greater dignity at work. Under collective bargaining, most management decisions affecting significant employee interests must be based on legitimate, objective standards. Through bargained-for pensions and supplemental benefits, employees under collective bargaining are provided protection for their old age and a cushion against unemployment. It is noteworthy that, in all these areas, the benefits achieved through collective bargaining have been gradually made available to employees more generally.

For many employers this system, while limiting control and possibly raising labor costs, provided stability. It has reduced quit rates, encouraged the development of reasonable rules uniformly applied, helped to create a sense of common enterprise, and thereby often promoted productivity and efficiency. Despite this record of achievement, the judicial attitude towards collective bargaining has increasingly become one of suspicion and hostility. This change is well illustrated by the Supreme Court's decision in First National Maintenance (1981), which removed the issue of plant closings and other managerial decisions from the bargaining table.3

The reasons for the court's retreat from collective bargaining are difficult to identify, but are probably rooted in changing economic thinking. The Act, when originally passed, had a Keynesian justification. It would increase the wealth of employees, thereby stimulating the economy and reducing the likelihood of depression and recession. Today, courts are more likely to see collective bargaining as an interference with the benevolent working of the market, and, thus, inconsistent with economic efficiency.

The Failure of the NLRB
Through most of its history, the NLRB has been politically motivated and legalistically oriented. At it best, its opinions have been technical and inconsistent, far more often based on conjecture and surmise than on an understanding of the realities of labor management relations. The vague, complex, and often contradictory language of the statute has permitted the Board to express its policy decision through a myriad of technical doctrines and sub-doctrines that have increased the complexity of the law, even as they have limited and reduced the rights of workers.

All of this might be less significant if the personnel and procedures of the Board were such as to permit it to develop true institutional expertise so that it could ultimately draw upon its own experience and the knowledge of labor-relations scholars and practitioners. Unfortunately, this is not the case. Although it has been administering the Act for over sixty years, the Board has never engaged in an effort to determine empirically the impact of the law on employer or union conduct. Board rules largely rest on guesses and assumptions.

Less understandable than its own failure to investigate reality is how little effort the Board makes to incorporate into its decisional process what has been learned by research into labor management relations. To read through a volume of Board opinions is to be struck by the perfunctory nature of its opinions and the lack of sophisticated analysis when the Board does undertake to analyze a labor law issue. Its effort is almost always confined to elaborating its own doctrine and treating as established reality its previous assumptions.

At its worst, the NLRB has opposed worker choice and collective bargaining, the very values that it was established to protect and advance. The current Board well exemplifies this appalling development. It has, for example, announced its opposition to the growth of voluntary recognition agreements by employers and unions. These are contracts in which employers agree to grant recognition to a union that can demonstrate majority support through authorization cards. Unions promise in return to refrain from striking and usually to support the employer in dealing with customers, suppliers, and government agencies. A majority of employees must effectively endorse the agreement by authorizing the union to represent them. Employers and unions have entered into such agreements at a wide range of concerns with excellent results.

This system has been an example of the market working at its best, and the law working as exactly as Congress intended. Employers benefit by reducing labor strife and gaining union co-operation and support. Unions benefit by increasing membership and developing good relations with employers. Employees gain better wages and benefits, some degree of job security and a meaningful grievance system.

In Shaw's Supermarkets (2005), a majority of the current NLRB overturned its regional director's decision enforcing such an agreement: "We have some policy concerns as to whether an employer can waive the employees' fundamental right to vote in a Board election." By phrasing its opposition to these agreements in terms of "the employee's fundamental right to vote in a Board election," the NLRB has obviously attempted to cast itself as the champion of workers (the traditional role of the Board) and not as the enhancer of employer power. But the fundamental employee right to vote in Board elections is a recent NLRB invention. It appears nowhere in the NLRA or in the thousands of opinions interpreting it prior to Shaw's Supermarkets. It is true that the Act provides for Board elections, but the election process is provided as a technique for resolving questions of representation. When a union can demonstrate a majority, and the employer agrees to accept its proof, there is no question of representation. The sudden discovery by the Board that voting in one of its elections is a fundamental right-so powerful as to override the Act's long recognized policy favoring recognition agreements-is a disingenuous way of dressing up an anti-union conclusion in the currently fashionable rhetoric of human rights.

There is little reason to elevate the Board-run elections. As many scholars have pointed out, the NLRB election process often places employees in danger. Retaliatory discharges and other reprisals are common during Board elections. Kate Bronfenbrenner of Cornell University, for example, has found that discriminatory discharges take place in one of every four organizing campaigns, and in those campaigns where there is such retaliation an average of four employees are fired. The result is that 80 percent of workers surveyed believe their own employer would fire employees who support a union. Other research has demonstrated that the Board's processes do not provide adequate protection for discriminatorily discharged workers. A benefit of voluntary agreements, meanwhile, is that employees covered by them are rarely retaliated against.

The Board's expression of concern for the employees' newly created fundamental right to vote in a NLRB election is also in marked contrast to its cavalier and frequently hostile approaches to the traditional rights of employees set out in Section 7 of the Act. Indeed, the current Board has pursued a steady policy of removing employees from the Act's protections. Thus far, graduate students, artist's models, and, most heartlessly of all, disabled workers have been denied coverage. In the case of graduate students, the Board had to specifically overrule prior precedent. In every one of these cases, the reasoning of the Board is suspect and the decision was rendered over a powerful dissent.

Even when not wholly excluding employees from statutory protection, the Board has narrowed the security afforded by the Act. In Waters of Orchard Park (2004), the Board denied the protection of the Act to nursing home employees who called a patient care hotline to report excessive heat in their facility because they were acting to protect their patients and therefore, according to the Board, not acting for their own "mutual aid or protection." The conclusion that employees are not acting in their own interest when they attempt to improve conditions for their patients is absurd. Who could rationally deny that for nursing home workers the well being or lack thereof of their patients affects the environment in which they work and the tasks they will be called on to perform?

In Holling Press (2004), the Board held that an employee who solicited a co-worker to testify in support of her sexual harassment claim was not acting for mutual aid or protection and was therefore not protected by the Act. Once again the Board's reasoning conflicts with workplace reality. If employers are put on notice that sexual harassment will be monitored, they are bound to put in place procedures that will reassure all female employees and shape the conduct of male workers even if no other employees have complaints. Given the pressure on employees not to report incidents of harassment, the conclusion that one incident involving only one employee stands alone is almost surely wrong anyway.

It would be difficult for any fair-minded observer to detect in the current Board's decisions a commitment to the protection of employees' basic rights as set forth in the Act.

The Continued Weakening of the Right to Strike
Effective collective bargaining requires a robust right to strike. Since the Act's passage, the legal protection of the strike weapon has been significantly reduced. At the moment, the right to strike is so constrained by legal and practical barriers that strikes are rarely used and even more rarely used effectively. Strikers and unions employing the strike face a panoply of official sanctions that, taken together, make the right to strike a costly and risky endeavor. In addition to their legal right to hire permanent replacements, employers can often bring lawsuits against unions who, one way or another, run afoul of the many legal proscriptions on the strike.

The range of penalties that might be imposed on strikers and unions by employers, courts, and government has been broad, and the penalties imposed often costly. Martial law, criminal indictments, fines, and military action have all been used in response to major strikes. Strikes and picketing have been enjoined. Strikers have been fired, and unions have been fined and held liable for damages. Union leaders have been arrested, jailed, and convicted of crimes for encouraging violence, sometimes with very little evidence of personal misconduct. The combination of more broadly applied anti-racketeering laws (the "RICO" and Hobbs Acts) and a greater willingness to find that union officials encouraged or participated in violence combine to increase the vulnerability of unions and union leaders to criminal and civil penalties for acts of strike misconduct.3

Suggestions
If the political situation were to change, how should labor and its allies go about the complex task of seeking change in the basic labor law to make it more even-handed and more protective of basic worker rights?

I offer the following tentative suggestions as to how a legislative agenda should be framed.
1. Particular over General-As already argued, the general language of the NLRA has permitted the Board and the courts to insert their own often anti-union property-right- friendly views into the law. The more general the language of change, the more likely that pro-union policies may be subverted. The most successful pro-labor legislation was Norris LaGuardia, a carefully constructed statute that dealt with a specific problem.
2. A Negative Over Positive-It is easier to bring about the desired change by eliminating limits on union activity than it is by increasing regulation of employer response and judicial action.
3. Collective Bargaining Over Organizing-It is apparent that collective bargaining and organizing are complimentary. They fuel each other's success, and each gain leads to success in the other. But which should be the first priority for legal change? Legislation strengthening collective bargaining is easier to achieve and most likely to be effective and to spur union organizing. My experience in talking to hundreds of workers in organizing situations persuades me that they frequently end up rejecting a union because they become convinced that bargaining will be futile and dangerous.4

If unions are to choose specific targets, what should they be? In my view, the most needed and most useful change would be overturning the MacKay doctrine. That doctrine not only weakens the strike weapon, which is crucial to effective collective bargaining, but also destroys lives and communities.5 It provides employers with a powerful argument against unionization. Repeal of the Mackay doctrine poses no great technical or drafting problems. It is an issue on which public support can be achieved and one that has the capacity to invigorate rank and file activism.

In sum, the current labor law is not a friend to unions. Efforts to improve it are likely to meet with significant resistance. Nevertheless, they are worth the effort.

Notes
1. See Estlund, C. 1994. "Labor, Property, and Sovereignty After Lechmere," Stanford Law Review vol. 46, p. 305.

2. Consolidated Edison Company v NLRB 305 US 197 (1938).

3. See Getman, J. and F. Ray Marshall. 2001. "The Continuing Assault on the Right to Strike," Texas Law Review vol. 89 p. 703.

4. The 1976 Labor Reform Act, the Workplace Fairness Act, and the Dunlop Commission all contained recommendations that if enacted would make the law more protective of worker's rights and the interests of labor unions. However, it is difficult to imagine their wholesale adoption anytime in the immediate future. Even if the law was amended, it is difficult to imagine a successful strategy for restraining the anti-union biases of the courts and conservative Boards.

5. See Getman, J. 1998. The Betrayal of Local 14: Paperworkers, Politics, and Permanent Replacements. Ithaca, NY: Cornell University Press.

Julius Getman holds the Earl E. Sheffield Regents Chair in the School of Law, The University of Texas at Austin.

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