Broken Promise: The Subversion of U.S. Labor Relations Policy, 1947-1994.

• Author: Kimmett, Charles Thomas

Before Congress passed the Wagner Act in 1935, labor unions were confronted with a host of obstacles when attempting to organize and bargain collectively. Employers routinely fired employees attempting to unionize, required workers to sign "yellow dog" contracts conditioning employment upon the promise never to join a union, and circulated "black lists" of pro-union workers to other employers.(1) As a result of these tactics, employees and unions responded with more aggressive organizing campaigns and strike tactics. More importantly, labor unions took political action and vigorously pushed for protective labor legislation.(2) The result was the Wagner Act, which protected employees' right to organize and explicitly advocated collective bargaining between unionized employees and their employer.(3) The Act outlawed employer "unfair labor practices" (ULPs)(4) and created the National Labor Relations Board (NLRB) as an enforcement mechanism.(5)

Despite the existence of the National Labor Relations Act (NLRA),(6) some critics have argued that the Act offers little actual protection.(7) In recent years, employers have more frequently committed unfair labor practices, hired legal consultants for advice on preventing unionization, and permanently replaced striking workers.(8) As a result, only ten percent of private sector American workers are unionized-down from thirty-three percent fifty years ago.(9) An important factor exacerbating this decline has been labor's inability to achieve any meaningful legislative success since 1935. Labor's recognition of its own political woes has recently caused a shake-up in the leadership of the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO). In 1995, John Sweeney became president of the AFL-CIO after defeating Thomas Donahue, the hand-picked successor of former president Lane Kirkland.(10) Sweeney's platform included an aggressive political campaign emphasizing the need to train campaign managers and spend thirty-five million dollars in the 1996 elections to support prolabor candidates.(11)

I

In Broken Promise, James Gross attempts to explain the politics that precipitated the labor movement's decline. He takes aim at labor's biggest political failure to date-the 1947 Taft-Hartley Amendment to the Wagner Act-and accuses it of creating a conflict within the basic philosophy of the NLRA (pp. 215, 272). While the Wagner Act called for a government policy that affirmatively supported collective bargaining,(12) Taft-Hartley espoused the concept of government neutrality toward collective bargaining.(13) According to Gross, this inconsistency reduced American labor policy to "shambles in part because its meaning seems to depend primarily on which political party won the last election" (p. 275).

Surveying the composition and consequent labor policy of the NLRB from the Truman through the Bush administrations, Gross concludes that the inconsistent policy statements introduced by Taft-Hartley have created a statutory hook upon which Republican-appointed Boards can hang their pro-employer labor policy to the detriment of unions. The implementation of such a policy can be attributed in large part to employers' concerted manipulation of the political system (pp. 216, 235, 239), resulting in a backlogged Board lacking remedial powers (pp. 179, 253, 284), rampant union busting by employers (p. 270), and the prioritization of managerial prerogatives and property rights over labor-management codetermination (pp. 280-81).

Gross's most stinging critique is that the NLRB's spare remedial powers provide no deterrent to corporations intent on preventing unionization. For example, the usual remedy applied against an employer who commits a ULP is a "cease-and-desist order enjoining future violations."(14) Gross calls the employer's cost of committing a ULP "a small investment with a high payoff," since by the time the employer has exhausted all of the available judicial appeals, "a...