Tuesday, December 23, 2014

Recent NLRB Initiatives While Positive Are Unlikely to Alter Labor’s Prospects

Recent articles have trumpeted initiatives by the National Labor Relations Board and the Department of Labor to shift labor policy in organized labor’s direction.   A Politico article optimistically proclaimed this would spark labor’s comeback.  Among the initiatives are the rules to speed up union elections by holding off employer challenges until after union elections, allowing employees organizing a union access to company email, tightening up on the employer scam of classifying employees as independent contractors, and holding giant employees such as McDonalds jointly responsible for the labor law violations of franchisees.

All of these changes are significant and positive. If one were to solely rely on the reactions of anti-labor republicans, these changes would tip the balance on behalf of the labor movement.   Each of these rule shifts makes sense and will incrementally help union organizers whether by providing a better means of reaching co-workers in dispersed work sites or cutting through corporate fictions that allow employers to evade responsibility for their crimes.

There certainly is something refreshing about NLRB appointees bucking the tide and trying to reverse well entrenched pro-employer rules.  Certainly, if Congressional Republicans had their way, labor law would be weakened even further, as in proposed legislation.   Driving unionization levels down to under seven percent, dismal figures not seen since the early 1900s, is not enough for these anti-labor conservatives; they want to exterminate what little remains of organized labor.   And a bi-partisan effort joined by liberal Democrats and Republicans alike snuck into the Omnibus bill provisions reversing forty years of pension protections allowing the already earned benefits of current retirees to be slashed

The reality, however, is these initiatives cannot significantly alter labor’s plight for a number of reasons.  The first is that the National Labor Relations Board can issue all of the rule shifts they want but ultimately the final decisions will be made by elite, anti-worker judges.   So just because the NLRB has issued new rules does not mean that is the end of the story as business leaders have vowed to challenge the new rules in court.  Although in theory the courts are supposed to defer to the administrative agencies, for decades anti-labor judges have interjected their own views of the world into labor policy.   These elite judicial “values and assumptions,’ to use law professor James Attleson’s term in his classic book decades ago, have imprinted a pro-management bias in labor law which tinkering around the edges cannot eradicate.   In a very real sense, even a moderately pro-worker labor board finds its hands tied. 

Second, employers will easily contend with these rule shifts.  As John Logan, a labor professor at San Francisco State University pointed out, “Don't be fooled by the crocodile tears of billion-dollar corporations or the phony outrage of right-wing propagandists: Big business still holds all the cards in the certification process, and it will continue to control the decision on whether most workplaces get a union.”  

Finally, these initiatives, although welcome, do not hit at the core problem of union weakness which is union’s lack of collective bargaining strength.  If we were to ask ourselves what would it take to have a powerful labor movement in this country, each of these helpful provisions would not likely be at the top of the list.  Rather having the ability to use power tactics of solidarity and developing a successful strike which could impact the operations of employers would be higher on the list.  As long as we as a movement are unable to fulfill our historic mission of altering the terms of the sale of human labor we will remain weak as a labor movement. 

Slightly speeding up union elections, bringing more workers under the coverage of weak labor laws, and holding a giant corporation such as McDonalds potentially liable for a slap on the wrist do not address the key points of union weakness nor will they significantly alter the balance of power.  The problem is not just which employees or employers are covered by or responsible for violations of labor law but whether there are any significant consequences for those violations.  There is a saying in the law “if there is no remedy, there is no right” and that is certainly the case in labor law.   We have decades of experience proving that employers do not care if they have to post a notice years down the road stating they violated the National Labor Relations Act or paying some minimal reduced back pay. 

The reality is the revival of the labor movement will not come from the actions of a government agency, no matter how commendable, or even Congressional action.  Rather, history shows the labor movement will once again cover strength when we figure out the strategies and tactics capable of confronting labor law