Full Disclosure

By Thomas Brom
     
      Labor Pains
      Back when Michael Jackson still had a nose, he played a scarecrow in The Wiz, a movie adaptation of The Wizard of Oz. Hanging from a gibbet and mocked by crows, he sang, "You can't win, you can't break even, and you can't get out of the game." Such is the current position of organized labor in the United States. By all appearances labor had something to cheer about in February when Rep. George Miller (D-Calif.) and 230 Democratic cosponsors introduced the Employee Free Choice Act (H.R. 800), which would permit card-check authorizations to certify union representation without a federally supervised election.
      But why bother? "It would take 60 percent in the Senate [to defeat a filibuster], plus a Democratic president in the White House [to avoid a veto]," says Charles J. Morris, professor of law emeritus who taught at Southern Methodist University in Dallas. Adds Charles B. Craver, a professor at George Washington University Law School in Washington, D.C., "The Democrats know it won't pass. They're doing it for show, and to embarrass the Republicans."
      With a Republican majority on the National Labor Relations Board (NLRB) and little hope for help from Congress, organized labor hasn't looked this weak in generations. Most recently, the percentage of organized workers in the private sector fell from 7.8 percent in 2005 to 7.4 percent in 2006?the lowest percentage in 75 years.
      There are now two labor federations?the AFL-CIO and Change-to-Win?fighting each other for new territory while attempting to hang on to their existing 13 million members. Increasingly, their organizers see current laws, as amended by Congress and interpreted by courts and the labor board, as more of a hindrance than a help. Richard L. Trumka, AFL-CIO secretary-treasurer, once famously called for repeal of the National Labor Relations Act (NLRA) of 1935.
      Though few labor academics would go that far, they share Trumka's frustration. "Restrictions on organizing have come not just from Congress but also from the Supreme Court," Morris says. "They've toggled back and forth?when one is friendly to labor, the other is not. The law has been the source of many of the problems of organized labor." Adds Craver, "The NLRA is irrelevant. Everything flows from that."
      In a recent law review article, Cynthia L. Estlund, professor at New York University School of Law, highlighted the effect of three U.S. Supreme Court rulings on the ability of unions to organize. (Is the National Labor Relations Act an Outmoded Statute in the 21st Century?, 57 Lab. Lw. 148 (2006).) In First National Maintenance Corp. v. NLRB (452 U.S. 666 (1981)), the Court removed the issue of plant closings from mandatory collective bargaining; in NLRB v. Kentucky River Community Care, Inc. (532 U.S. 706 (2001)), it denied bargaining rights to millions of professional workers; and in Lechmere, Inc. v. NLRB (502 U.S. 527 (1992)), it let employers deny organizers access to the workplace. "Labor law is so unfavorable to unions right now, where do you start?" Estlund asks.
      Labor academics acknowledge that at-will employment, globalization, and a changing U.S. labor market have undercut union ranks. So has union corruption. But Morris, author of The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace (ILR Press, 2004), insists that the courts and the NLRB have played the critical role.
      Yet these same labor academics are now finding cause for optimism in new ways of organizing, especially among immigrant workers. Gathering at symposiums such as New Wave Organizing at New York University in 2005, they are sharing evidence of success outside the NLRB framework. Among the innovations: members-only bargaining as a stepping-stone to majority representation, and card-check agreements based on simple contracts rather than NLRB procedures.
      Morris favors going back to basics: Section 7 of the NLRA, which was grafted onto the act from its precursor, the National Industrial Recovery Act, specifies, "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 other concerted activities for the purpose of collective bargaining or other mutual aid or protection." It promotes organizing from below as a human right.
      "Most people don't know that the steel industry, during the first decade of the NLRA, was organized completely on a members-only basis," Morris says. "The autoworkers did the same thing following the sit-down strikes. Today, members-only bargaining would be a good way to organize Wal-Mart."
      Last year Morris, working as an advisor to the United Steelworkers International Union, helped craft an unfair labor practice charge after an employer refused to bargain with a members-only employee group affiliated with the union. (Dick's Sporting Goods, 2006 NLRB GCM LEXIS 35.) But in an advice memo, NLRB General Counsel Ronald Meisburg dismissed the charge, finding that "the Employer in these circumstances had no obligation to recognize and bargain with the Council."
      Because general counsel memos have no appeal process, Meisburg's ruling kept arguments supporting the refusal-to-bargain claim from reaching the board. But Morris isn't dissuaded, promising further action from the steelworkers union later this year. "The argument for members-only bargaining is legally sound," he says. "It's not if this change occurs, but when."
      Even the NLRB has acknowledged the spread of voluntary-recognition agreements, and in several recent cases it questioned whether they discriminate against employees who are not members of the bargaining unit. (See Dana Corp. and Metaldyne Corp., 341 NLRB 1283 (2004); and Shaw's Supermarkets, 2004 NLRB GCM LEXIS 7 (2004).)
      According to Estlund, "Card-check authorizations are a priority of union organizers, driven by the ridiculous rules governing certification elections." She admits, however, that recognition by private contract has its risks. "If disputes arise, they are commonly referred to arbitration," she says. "But who enforces the arbitrator's decision is an open question."
      Despite her enthusiasm for new forms of organizing, Estlund says "the current alternatives to collective bargaining depend on labor unions being somewhere in the picture. The problem is that the alternative models can't sustain themselves without dues and dues check-off."
      So it's a circular argument?you still can't get out of the game. But Julius Getman, chair of the University of Texas School of Law, says, "Organized labor still has the capacity to amaze people. It is possible to build unions outside the NLRA. It will just take a while."
     

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