It’s Broken, So Fix It: A Proposal to “Neutralize” the National Labor Relations Act

1. It’s Broken, So Fix It: A Proposal to “Neutralize” the National Labor Relations Act Richard N. Block Professor School of Labor and Industrial Relations Michigan State University For Presentation at 14th Annual Bernard Gottfried Labor Law Symposium Wayne State University Law School October 12, 2006

2. Overall Purpose of NLRA and NLRB • Create, maintain, and support a system of • Worker choice for or against union representation • Fair procedure to determine workers’ preference for union representation and collective bargaining • Decision based on an administrative process rather than economic leverage • Collective bargaining if workers choose union representation

3. NLRA is Broken • Substance • Organizing/Worker Choice • Bargaining • Administration • NLRB • General Counsel

4. Organizing and Worker Choice • NLRB election “rules” favor employers • Complete access to employees during working hours • May keep unions off premises • Required attendance – captive audience speeches • Minimal regulation of what is said • A union-avoidance industry • Generally greater resources than union • Dependence of employees • Unions and NLRB elections • Voluntary contacts • NLRB elections do not meet international standard for fairness (Cingranelli, 2006)

6. Implications • Unions win a majority of elections but only organize a minority of workers in units in which elections held • Unions have less success in larger units • Better working conditions? • Resources to oppose unions?

8. Implications of Data • Fundamental Problem is small number of elections and workers involved • Between 1992 and 2005, average of .2% of all private nonag private sector workers and .27% of estimated covered nonag private sector employees involved in NLRB elections • Even if unions had won every election, it would have made almost no difference in representation rate and would not have stemmed decline in representation and membership rates • The amount of NLRB election activity in terms of the size of unorganized employment is almost unnoticeable • Unionization through NLRB representation election an expensive and difficult process for unions

9. Bargaining • Basic Legal Doctrine • No obligation to agree • Implementation at impasse • Industrial Conflict • Strikes • Permanent Replacements • Assertion of “good faith doubt” • Lockouts • Temporary Replacements • First Contract • 23% of certifications did not obtain a first contract within 2 years of certification (Cooke, 1985) • Probability of first contract reduced by • Objections • Meritorious or settled UFLP charge

10. Administration of Act • NLRB • Perceptions of partisanship and lack of confidence by unions and management • Recess appointments • Permits president to appoint a decision-maker with no consultation with other party • Many decisions made by recess appointees SOURCE: NLRB Website, www.nlrb.gov

11. Involvement of Third Parties • Examples • National Right-to-Work Foundation • National Alliance for Worker and Employer Rights • May tend, in some instances, to harden positions before Board • NRTWF in Dana case on neutrality agreements • American Rights at Work • Center for Union Facts

12. Labor Law Has Become Highly Politicized and Publicized • Kentucky River cases issued on September 29 • Pre-decision • Colbert Report segment at http://www.youtube.com/watch?v=arSyu4he-kU • Post-Decision • The New York Times at http://www.nytimes.com/2006/10/04/washington/04labor.html?pagewanted=all • The Washington Post at http://www.washingtonpost.com/wp-dyn/content/article/2006/10/03/AR2006100301535.html • Detroit News/AP at http://www.detnews.com/apps/pbcs.dll/article?AID=/20061004/BIZ/610040425/1001 • Wall Street Journal at http://online.wsj.com/article/SB115989727688181367.html?mod=home_whats_news_us. • MSNBC at http://www.msnbc.msn.com/id/15118114/

13. General Counsel • Inherent tilt toward employer interests • employers can challenge existing doctrines by initiating actions and maintaining actions pending a decision • Property rights • More difficult for unions to initiate actions • Imbalance in injunctive relief • Prevents unions from maintaining actions under 8b(b)(4), 8(b)(7), and 8(e)

14. Responses • Union • Reversion to economic leverage • Neutrality agreements • How voluntary is “voluntary recognition?” • Legislation – Employee Free Choice Act • Employer • Secret Ballot Protection Act • Third Parties • Dana • Legislation as a collective bargaining substitute • “Living Wage” Laws • “Wal-Mart” Laws • Maryland (overturned by Maryland D.C.) • Chicago (Mayoral veto upheld)

15. Living Wage Ordinances Passed, 2000-06 SOURCE: Brennan Center for Justice at New York University

16. Proposed Changes • “Neutralize” and “Depoliticize” the NLRB • Establish a tripartite Board (full-time) • Equal number of members explicitly representing labor, employers, and the public • Cases to be heard by a labor, employer, and public rep • Board can decide procedures • All cases with a union and employer perspective • Will encourage movement toward the middle • Examples • World War II War Labor Board • Korean War Wage Stabilization Board • Michigan Public Sector Act 312 • Canadian boards • Ontario, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Saskatchewan, Canada (federal jurisdiction)

17. Proposed Changes (cont.) • Create a system of part-time tripartite regional boards (as in WWII WLB) • Redeploy current ALJ’s as neutrals and as staff • Orders to be effective immediately • Addresses some of remedial issues • To NLRB for final disposition

18. Proposed Changes (cont.) • Eliminate General Counsel • Each party should have equal access to the board • Employers currently have a minimal screen for most cases • Through property rights • Can act and litigate • Unions cannot act • Must depend on General Counsel • Examples • Concerted activity • Weingarten

19. Proposed Changes (cont.) • Regional offices roles • Investigate charges • Advice to parties • Mediation and settle • Case goes to Regional Board if unable to settle with no report that would be seen as prejudicing board

20. Proposed Changes (cont.) • Injunction cases – 10(j) or 10(l) • Create position of Board Injunction Officer (appointed by Chair) • Regional office can recommend that Injunction Officer request injunctive relief

21. Other Issues • Judicial Review - Reduce scope of judicial review to make labor relations legal system self-contained • Possible standards for review • Similar to arbitration awards • Due process • Based on wording of statute • Similar to post-arbitral deferral • Procedures fair and regular • Result not “clearly repugnant” to wording of NLRA (Spielberg)/not “palpably wrong” (Olin) • Canadian system of privative clauses • Did Board have jurisdiction over the dispute? • Did Board provide due process? • Will make collective bargaining system self-contained

22. Conclusions • Act is broken • Proposing a system to reexamine legal doctrine over the long run • Neutral • Equal access • A reconceptualization of the structure of our national labor policy