The Grand Bargain: Revitalizing Labor through NLRA Reform and Radical Workplace Relations
Oswalt, Michael M., Duke Law Journal
Amid steadily declining union density, debate has taken center stage in the American labor movement regarding the potential--or even utility--of reforming the National Labor Relations Act to reverse the trend. This Note argues that such reform is possible, through a grand legislative bargain nationalizing the so-called right-to-work regime in exchange for abolishing the NLRB election in favor of the card-check union certification procedure. Using legal, sociological, and radical democratic theory and examples, this Note demonstrates that, counterintuitively, the right-to-work environment can strengthen unions instead of weakening them. Both changes therefore benefit labor.
The seventieth anniversary of the National Labor Relations Act (NLRA) (1) prompted renewed reflection on its ability to effectively govern relations between labor and management in the modern workplace. (2) For supporters of the American labor movement, the 2005 occasion was not a cause for celebration. (3) Although surveys showed that a majority of U.S. workers would vote for a union in their workplace if an election were held, (4) by 2006 the percentage of private wage-earners in unions had shrunk to 7.4 percent, (5) less than one-third the level reported in the early 1970s. (6) That the statute valiantly proclaimed the protection of the right to self-organization to be the "policy of the United States" (7) served only as a sardonic reminder of the gulf between the Act's ideals and the everyday realities of union organizing. (8) Some commentators called for various reforms of the Act, (9) others for its repeal. (10) Jonathan Hiatt, AFL-CIO general counsel, questioned "how much of the Act [would] be left" by its seventy-fifth anniversary, given the rate at which long-standing labor law doctrines had been undermined by the National Labor Relations Board (NLRB or Board) in just the previous twelve months. (11)
Despite differences of opinion regarding traditional labor law's potential to revive workplace democracy, the labor movement has largely coalesced around a legislative proposal to reform the NLRA: the Employee Free Choice Act (EFCA). (12) The AFL-CIO centers its congressional lobbying efforts around the EFCA, to which the AFL-CIO website devotes significant attention and is the subject of aggressive petition, email, and organizational endorsement campaigns. (13)
The EFCA is ambitious legislation. It would eliminate the traditional secret-ballot NLRB election in favor of certifying a union pursuant to a Board finding that a majority of employees have signed authorizations designating the union as its bargaining representative. (14) The EFCA would also provide for first-contract mediation and arbitration if an employer and a union were unable to reach a contract agreement within ninety days. (15) And it would increase the penalties assessed to employers who commit unfair labor practices against employees during a union campaign or first-contract negotiation, including treble back pay, civil penalties, and a requirement that the NLRB seek a federal court injunction against an employer it finds has significantly interfered with employee rights during an organizing or first-contract campaign. (16)
Nonetheless, many question if any NLRA reform proposal--beneficial to the labor movement or not--is legislatively viable, regardless of which party controls the White House or Congress. In meticulously tracing the roots of what she terms the "ossification of labor law," (17) Professor Cynthia Estlund notes that "for many decades, both organized labor and especially employers have had enough support in Congress to block any significant amendment that either group strongly opposes." (18) The bar for "enough support" is rather low: "it means a minority that is big enough, well organized enough, and committed enough to tie up a bill through the arcane supermajority requirements of the Senate. …