How to Make the Much-Needed Employee Free Choice Act Politically Acceptable
Craver, Charles B., Labor Law Journal
American labor law has reached a critical point. Private sector union membership has declined from 35 percent in 19543 to 7.6 percent today.4 The National Labor Relations Act (NLRA),5 which was enacted in 1935 to protect the rights of employees to form, join, and assist labor organizations and to select exclusive bargaining agents to negotiate their basic terms of employment, has become an outdated and anemic statute. When the NLRA was passed, the United States was a mass production economy dominated by relatively large corporate employers, most of whose employees desired union representation. The existing American Federation of Labor (AFL), which consisted primarily of trade unions representing skilled craft workers, did not know how its union affiliates could effectively organize industrial bargaining units consisting of skilled, semi-skilled, and unskilled workers. It formed the Committee for Industrial Organization to develop a strategic plan. AFL leaders hoped to organize employees in the automobile, steel, rubber, and electrical manufacturing industries and divide those individuals among different trade unions. When it became clear to union leaders on the Committee for Industrial Organization that such a system would not work well for industrial workers, they withdrew from the AFL and formed the Congress of Industrial Organizations (CIO).
CIO leaders quickly established the United Automobile Workers Union, the Steel workers Union, the Rubber Workers Union, and the Electrical Workers Union, and these new entities began to organize the manufacturing facilities in their respective industries. Although many employers initially opposed union organization, the combination of the new National Labor Relations Board (NLRB) and strong union efforts overcame employer opposition. The vast majority of industrial workers desired a collective voice, and they selected industrial unions to represent them. From the enactment of the NLRA in 1935 until the Taft-Hartley Act amendments in 1947, labor organizations could ob- tain NLRB certification through either secret ballot elections, or "any other suitable method" to determine if a ma- jority of workers in an appropriate bargaining unit desired a collective voice. In many cases, once it became clear that a majority of employees in particular bargaining units had signed authorization cards designating specific unions as their bargaining agents, employers voluntarily extended recognition to those labor organizations without the need to utilize the NLRB elections process.
During the 1940s and 1950s, competition between AFL and CIO affiliates was significant, and private sector union membership grew from 15 percent in 1935 to 35 percent in 1955.6 At that time, AFL and CIO unions decided to reunite in the AFL-CIO.7 Despite recent predictions by current opponents of changes to the current labor laws suggesting that increased union membership would greatly increase unemployment, the U.S. did not experience such a problem when unions represented over one-third of the labor force. What we did see during that period was a willingness of employers to share firm success with workers, in the form of generous wages and fringe benefits, creating a sizable blue-collar middle class. Nonetheless, corporate leaders were becoming concerned about diminishing profits caused by increased labor costs generated through the collective bargaining process.8 As a result, a growing number of unorganized firms decided to work harder to prevent the unionization of their employees.
American business leaders also engaged in political activity to limit the rights and economic power possessed by labor organizations and their supporters. In 1947, they induced Congress to enact the Labor-Management Rela- tions Act (LMRA)9 amendments to the NLRA. These statutory changes prohibited a number of unfair labor practices by labor organizations, and restricted the capacity of unions to employ secondary activity to enhance their bargaining power vis-à-vis primary employers. …