Time to Evaluate and Renovate

John N. Raudabaugh
Reed Larson Professor of Labor Law, NRTW Staff Attorney,
Former Member, National Labor Relations Board

Presentation before the 2015 Federalist Society’s National Lawyers’ Convention

Our nation’s private sector labor law, the National Labor Relations Act (“NLRA” or “Act”), is a product of the New Deal and the industrial age. In its first edition, the 1935 Wagner Act, employee rights to organize were recognized and employer unfair labor practices were defined. Twelve years later the statute was balanced by the Taft-Hartley amendments adding union unfair labor practices to the NLRA. To address corruption, the 1959 Landrum-Griffin Act was enacted to require labor organizations, employers, and labor relations consultants to file annual reports and union members were granted a Bill of Rights. The NLRA was last amended in 1974 addressing the health care industry.

Over the past 80 years, our nation’s economy, indeed, the global economy and the nature of work has changed significantly. While some efforts have been made over the last four decades to amend or tweak federal labor law, none have succeeded. To fill the vacuum, the National Labor Relations Board (“NLRB” or “Board”) has become a pseudo-legislature issuing decisions and rules reflecting the Board majority’s political bias. It is time to ask:

  • Should federal labor law be viewed as a vehicle to restore organized labor’s density of 60+ years ago or to ensure us and our fellow citizen-workers choices for workplace voice?
  • Should federal labor law impose third-party representation, forced fees, and a single voice system on citizen-workers who would prefer the right to work and speak for themselves?
  • Should organized labor continue to obfuscate how to object to dues and fees and harass and punish citizen-workers for objecting?
  • Should organized labor continue to be immune from sanctions for the use of violence?
  • Should federal labor law be overhauled to bolster organized labor’s presence globally to, in turn, affect or determine global work standards, impose global labor law conventions, and upend business models generally?
  • Should federal courts defer to agency “expertise” in decision-making if substantive rationale is repeatedly reversed, correlated with political majorities?
  • Is federal labor law about the American citizen-worker or about organized labor’s institutional survival?
  • What should be the substantive rights and protections of federal labor law in the 21st century – continuing the choice between third-party representation and confrontationalism and rare, random, and legally limited opportunities for worker voice and participation?

Congress must step forward, consider proposals for federal labor law reform, conduct substantive hearings, and act in the best interests of American citizen-workers. Frankly, the review should consider all federal workplace laws and regulations, including the coordination of terms and definitions and the resolution of violations and enforcement. A range of voice models must be studied and considered – works councils, employee involvement committees, and members only. Employees and their employers should be able to converse with or without industrial age third-party exclusive representatives and forced dues and fees imposed on those who do not want third-party representation.

Currently pending before Congress are some 18 bills addressing NLRA reform, mostly in piecemeal fashion. Each bill addresses legitimate concerns but an overall assessment of federal labor law is essential. Current proposals concern:

  • stalking,
  • preemption and identity theft,
  • remedies for NLRA violations including personal liability, attorneys’ fees, and civil penalties,
  • salting,
  • adding a sixth NLRB member,
  • review of General Counsel complaints in federal district court,
  • preventing port slowdowns,
  • exclusion of jurisdiction over Indian tribes on Indian lands,
  • prohibition of micro-units,
  • restricting NLRB regulatory authority to internal NLRB functions,
  • protecting employee personal contact information,
  • allowing merit pay independent of a collective agreement,
  • restricting definition of joint-employer,
  • ensuring right-to-work for all private sector workplaces,
  • requiring a representation case hearing in no less than 14 days and an election in no less than 35 days from petition,
  • prohibiting union and employer agreements to reduce or terminate retiree health insurance benefits,
  • obstructing commerce by robbery, extortion, or threats of physical violence to person or property,
  • certifying a labor organization as the exclusive representative based on card signing without a secret ballot election.

The most comprehensive overhaul is the proposed Employee Rights Act. It would:

  • equalize the general unfair labor practice prohibition by adding “interfere with” to union behaviors,
  • require a majority vote by secret paper ballot of all unit employees to approve third-party exclusive representation,
  • require a recertification majority vote by secret paper ballot of all unit employees covered by a collective bargaining agreement between the 120th and 110th day prior to contract expiration or within 30 days if no negotiated agreement is then in effect whenever the bargaining unit experiences turnover, expansion, or alteration by unit merger exceeding 50 percent of the bargaining unit,
  • eliminate the recent representation case rule and return to a unit hearing with right of review and no certification of a bargaining representative until pre-election issues are resolved,
  • require an employer to provide only the employee name and home address regarding the eligible voter list,
  • delay any election until after all issues are resolved by a hearing officer or Regional Director upon appeal and review,
  • delay election results and union certification until the Board conducts a hearing and resolves any issue pertaining to the conduct or results of the election.
  • make unions liable for lost wages and forced dues, fees, and liquidated damages for interfering, restraining, or coercing employees filing or attempting to file a decertification petition,
  • provide all represented employees regardless of union membership status the right to vote by secret ballot regarding contract ratification or initiation of a strike or refusal to work,
  • require written opt-in after a notice period of not less than 35 days rather than optout to union dues, fees, or assessments or other contributions for any purpose not directly related to collective bargaining and contract administration functions on behalf of the represented employee with expiration of such authorization not later than one year and no automatic renewal,
  • require a majority vote by secret ballot conducted by a neutral third party of all represented unit employees affected on any offer for a collective bargaining agreement or to authorize a strike with costs borne by the labor union,
  • provide independently verified annual audit report of a union’s financial condition and operations to all represented employees,
  • confront the Enmons decision and make unlawful the threats of force or violence to restrain, coerce, or intimidate any person for the purpose of obtaining the right to represent that person.

The NLRB’s politicalization and frequent policy shifts have eroded public confidence, threatens business models, and makes compliance unpredictable. Federal courts have criticized the Board’s flip-flopping or oscillation regarding caselaw precedent, although Chevron deference to so-called “administrative expertise” continues. Surely fairness and predictability must be expected. And, the operation of case assignment to Board panels must be objective. In Fiscal Year 2015, of the 305 published decisions rendered by the ten, three member panels, the seven Democrat majority panels decided 273 and the three Republican majority panels decided 32. That is an average of 39 for each Democrat majority panel but only 11 for each Republican majority panel. As to the structure and operation of the Board’s intake and case processing, much could be done to streamline and reduce operational costs.

Core labor law reform must address decision-making. The Board’s adjudicative function in unfair labor practice cases should be eliminated and replaced with an Article III labor and employment law court. The Board would be redesigned to focus on representation cases, investigating and prosecuting unfair labor practices, and conducting mediation and case settlement. Such specialized federal courts also could be channeled FLSA, OSHA, and EEO cases to further more informed consideration and resolution.

It is indisputable that much must be done and now. Rather than continue nursing care of an 80 year old statutory framework, it time to birth something new.