Labor law has been ‘turned inside out to help the powerful,’ top historian says
By Mark Gruenberg 31 October 2010
|WASHINGTON - U.S. labor law “has been turned inside out, protecting the powerful rather than the powerless” in the 75 years since the National Labor Relations Act was enacted, a top labor historian says.
|“And by that standard, it’s a failure,” adds James A. Gross of the Cornell University School of Industrial and Labor Relations.
Gross was the most provocative of many speakers at the opening Oct. 27 session of a day-and-a-half conference commemorating the 75th anniversary of the NLRA, which President Franklin D. Roosevelt signed on July 5, 1935.
The act was supposed to encourage industrial democracy by making it government policy to back workers’ efforts to organize and bargain collectively, to level the economic playing field and achieve social justice, Gross said. But the GOP-enacted 1947 Taft-Hartley Act and court decisions over the last 75 years negated those goals, Gross stated.
The legislation said its aim was “to promote common justice and economic advance.” Its lead sponsor, Senate Labor Committee Chairman Robert Wagner Sr., D-N.Y., spoke in economic terms, Gross recalled. Wagner argued that giving workers power to organize and bargain would lift their wages and incomes, without federal spending, and such a rise would help haul the U.S. out of the Great Depression.
To give them that power, the senator said, you needed democracy in the workplace – as the NLRA, also called the Wagner Act, envisioned – through union organizing and recognition, by elections or company recognition of pro-union majorities.
But the Wagner Act also had a large human rights aim, Gross said. Both the senator and FDR played that down, to get a then-conservative Supreme Court to rule it constitutional. The court declared the act constitutional, 5-4, in 1937.
Taft-Hartley, court rulings and 30 years of government hostility to regulation in general – starting with the Democratic Carter administration – helped wipe out the law’s impact, Gross said. “The discussion of regulation has been recast in terms of economic efficiency…One economist even calls social justice ‘a form of superstition,’” he noted.
Besides government hostility to regulation, the NLRA failed to meet its goals for other reasons, other speakers said. One is corporate opposition to workers having a say. Another is that the NLRA encourages labor-management confrontation, which Georgetown University law Professor Carrie Menkel-Meadow said may not be the best solution for either side in modern society.
Federal appellate Judge Laurence Silberman noted the National Labor Relations Board, which administers the law, changes positions with the change in administrations. That makes judges leery, he said. He also said the law is weakened because “the issues are too understandable to the judges, who react quickly and sometimes viscerally” to NLRB rulings.
Rutgers labor studies Professor Dorothy Cobble said unions failed to some extent by not organizing outside specific industries. But another speaker pointed out that it took creation of the Congress of Industrial Organizations in the late 1930s to even start organizing mass production industries such as autos and steel, outside old crafts.
Several speakers said the fight to enact the Wagner Act – and the economic conditions that produced it – have their parallels today.
Before the NLRA, private sector union density was under 10% and it’s now 7.2%, said Harvard labor economics Professor Richard Freeman. “And then we had goons” breaking unions. “Now we have lawyers,” he added, referring to the union-busting industry, which international organizations say is a $4 billion business.
“We have to strengthen the penalties” of labor law, to deter employer law-breaking, Freeman stated. He said the NLRB “should have more discretion” in setting fines for labor law-breaking, rather than the present penalties of net back pay and posting we-will-not-violate notices. In a case he cited, an arbitrator penalized an Alameda County, Calif., hospital $4.5 million for breaking its union contract.
And the Great Depression gave the final push to the movement for labor law, added Cobble, drawing the parallel with present economic ills.
George Washington University law Professor Charles Craver said the labor movement provides needed “checks and balances” on management. “Lord Acton was right when he said, ‘Power corrupts, and absolute power corrupts absolutely.’” If union density keeps dropping, “management would have total power. I’d hate to see what would happen then. But then the workers will again demand a collective voice.”
“It is unusual to focus on an anniversary of an agency by discussing its shortcomings, but it is necessary,” said National Labor Relations Board Chair Wilma Liebman, quoting former federal appellate Judge Abner Mikva in opening the conference. The NLRB and George Washington University organized the event.
Mark Gruenberg writes for Press Associates, Inc., news service. Used by permission.