Achieving the Achievable: Realistic Labor Law Reform.

• Author: Bierman, Leonard

TABLE OF CONTENTS ABSTRACT 311 TABLE OF CONTENTS 312 I. INTRODUCTION 313 II. LAW AS A HELPFUL BUT NOT SUFFICIENT CONDITION 317 A. The Role of Law 318 B. The Role of Other Factors 325 III. REALISTIC REFORMS 330 A. Mail Balloting 331 B. Meaningful Debate 341 C. Neutrality Agreements 354 IV. CONCLUSION 365 I. INTRODUCTION

"The U.S. labor movement is in crisis." (1) This statement, made hundreds of times during the last sixty years, is as true today as ever. Despite news reports regarding a surge in union-related activity, (2) a sense of increased workers' leverage given labor shortages during the "Great Resignation," (3) and some notable organizing victories in previously unorganized workplaces, the crisis persists. (4)

Union density rates have been declining since the mid-1950s, with significant drops occurring during economic downturns. (5) While unions have become more "efficient" at organizing, in the sense that they are selecting targets where they will face less resistance and can organize at faster rates, they are also organizing less. (6) In fact, even after the last few years, in which unions have received considerable public attention, unionization rates have not improved. Data from the U.S. Bureau of Labor Statistics show that in 2022 the share of workers belonging to labor unions dipped to a historic low of 10.1%, notably even lower than what it had been before the Covid-19 pandemic. (7)

In explaining the downward trend and in a quest for a solution, commentators, labor scholars, and supporters of the labor movement have honed in on one specific solution--labor law reform. They argue that for labor's fortunes to be reversed, the National Labor Relations Act ("NLRA") (8) must be changed. (9) The most recent manifestation of this argument comes in the form of the Protecting the Right to Organize Act ("PRO Act"), recently passed by the U.S. House of Representatives, (10) which includes provisions to the like of organized labor. For example, the proposed legislation outlaws the use by employers of workplace anti-union captive audience speeches. (11) A different provision provides that employees be allowed to use, during union organizing drives, employer "electronic communication devices and systems" (including employer computers, internet access, cell phones, etc.) unless the employer can show a "compelling business rationale" to prevent such use. (12) Supporters have referred to the PRO Act as "the clear solution" to labor's problems. (13)

The approach advanced by the PRO Act and its supporters follows what we describe as a "law-centric" understanding of the labor relations process. From this perspective, the basic content of the law is believed to play a determinant role in the fortunes of organized labor, and the decline in unionization rates is attributed to the inadequacy of the law in protecting the rights of employees to seek union representation. (14) Under this view, PRO Act provisions, such as the banning of captive audience speeches and the requirement that employers provide union access to electronic communication devices, are the sine qua non in halting union decline. (15)

In this Article, we take a different view regarding the prospects of labor law reform. First, we argue that while the law plays a role in the state of the collective bargaining process, the law plays only a subordinate role. other factors, such as market forces, technological developments, globalization, union initiatives and energy employed in organizing the unorganized, and the strategies employed by the actors in the system, appear to be at least as important, if not more significant, than the legal landscape. (16) History tells us that the great bursts in union growth that took place at the beginning of the Great Depression were due to strikes and self-help in other forms. Second, and more specifically related to the proposals in the PRO Act, we believe those efforts are unlikely to offer relief because they are unlikely to receive the support of a closely divided U.S. Senate (and, in any case, likely to face potentially successful constitutional challenges). (17)

Thus, in this Article we submit that, instead of focusing upon legislative changes such as those in the PRO Act, the proper focus should be on proposals that--while comparatively modest in scope--act in symbiosis with union organization activities, are practically achievable, and likely pass Supreme Court muster. (18) The proposals we advance focus on issues regarding organizing, as it presents the area in which changes to regulation could arguably have the most meaningful impact on unionization trends. (19) The proposals involve: (1) the expansion of the use of mail balloting in representation elections, (2) the adoption of policies that would facilitate meaningful debate in organizing campaigns, and (3) encouraging the expanded use of neutrality agreements. We believe that these proposals are achievable in that they can be instituted by the National Labor Relations Board ("NLRB") itself through adjudication or rulemaking, (20) and to the extent that they require legislative action, they could receive support from centrist legislators, who will be crucial for passage regardless of which party controls the U.S. Congress. We also believe these proposals are likely to withstand constitutional challenge, although we recognize that recent decisions of the U.S. Supreme Court might present some potential roadblocks. (21)

To illustrate the point that the law, while important, plays a subordinate role, Part II provides a brief historical overview of the development of U.S. labor law. Part II also describes other factors that have played a role in the fate of labor, which we contend one must consider when evaluating the prospects of labor law reform. In Part III, we discuss the three proposals. We aver that our proposals are achievable in that they are consistent with the current legal framework, do not raise potentially successful legal challenges, and are politically feasible.

2. LAW AS A HELPFUL BUT NOT SUFFICIENT CONDITION

   We contend that in addressing the crisis faced by the U.S. labor movement, one must pay attention to the law but also, at the same time, look past it. That is, changes in the law matter, but other factors play an arguably more significant role. In Part A of this section, we provide a brief history of the development of labor law to illustrate this point. We show that increases in unionization activity in the 1900s preceded the enactment of the NLRA and the increased unionization rates that occurred after the enactment of the Act were the result not only of the pro-union nature of the original statute but also of other factors, such as the actions of the War Labor Board and the strategies of the labor movement itself. We similarly contend that the decline in unionization rates experienced since the mid-1950s has been the result not only of the clear changes in the Act's policy, as reflected in the enactment of the 1947 Taft-Hartley amendments and interpreted treatment of the statute by various NLRBS, (22) but also by other factors operating outside the confines of the labor law framework. Indeed, while relevant, we assume that law is subordinate to other factors, not the least of which is union organizational lethargy and reticence in using available resources. (23) In Part B, we describe those other factors to illustrate our point about the limits of the law.

   Our brief historical overview begins in the early 1930s. While the enactment of the NLRA in 1935 constitutes a watershed moment in the history of labor in the United States, equally important was a period of intense self-action unions took in the preceding years. (24) This period involved a series of significant work stoppages in major cities, including Minneapolis and San Francisco. (25) In Minneapolis, the Teamsters Union deployed tactics such as roving pickets using automobiles and communication via short-wave radios. (26) In San Francisco, a longshore strike had the effect of a general strike, as it impacted workers in industries across the country. (27) These two events were not isolated occurrences but part of a wave that saw strike totals double between 1932 and 1934. (28) This activity might have also set the spark that lit the movement resulting in the formation of the Congress of Industrial Organizations ("CIO") and with it, organizing across industrial lines. (29)

   The enactment of the NLRA unquestionably accelerated the momentum created by this direct action. (30) As noted labor historian Walter Galenson averred:

   In terms of importance to the labor movement, star billing must be given to the National Labor Relations Act, which was enacted in 1935 after the futile NRA attempts to safeguard the right of collective bargaining through voluntary agreement among employers. The declaration by the U.S. Supreme Court in April 1937 that the NLRA was constitutional was a major factor in making that year one of the most memorable in the annals of American labor. (31) This New Deal legislation was unabashedly pro-union in nature, explicitly stating in section one (the Preamble) that the legislation was to promote the "right to organize" and "encourage and promote the policy and procedure of collective bargaining" in the United States, a provision which has never been amended to this very day. (32) For example, to promote labor organizing, the administrative agency charged with enforcing the NLRA, the NLRB, between the period 1935 to 1941 adopted the position that any employer speech opposing unionization represented a violation of the NLRA. (33) Employers during this time were required to remain "strictly neutral" concerning unionization efforts at their workplaces. (34) The judiciary also played a role by substantially extending the right of workers, unions, and by generally supporting the NLRB's interpretation of the Act. (35)

   The momentum created by the NLRA gained speed...