Ending our anti-union federal employment policy.

• Author: Scalia, Eugene
• Position: Advice to the President

The editors invited me to offer advice to the next President. This was difficult, because a draft was due before we knew who the next President would be: In one circumstance I would advise forceful assertion of executive powers. In the other circumstance my advice might have been, "Resign! Admit Your Transgressions!"

I have had to select an area of the law, then, where the nation would benefit from the candidates of both major parties heeding the same advice. It also has the virtue of being my principal area of practice, labor and employment law.

Practitioners speak of "labor" and "employment" law as two distinct fields, with "labor" law encompassing labor-management relations -- unionization, strikes, collective bargaining, and the law under the National Labor Relations Act ("NLRA")(1)--and "employment" law encompassing everything else: discrimination, wage and hour regulation, occupational health and safety, wrongful termination, etc. Some practitioners still proudly identify themselves as "real" labor lawyers, by which they mean they are of the cigar-chomping, rough-and-tumble world of labor-management relations. Not for them, the delicacies of the discrimination laws and individual rights litigation. Many discrimination lawyers, meanwhile, know as much about the NLRA as your average telecommunications lawyer.

Our federal labor and employment laws and policy embody the same disjunction: Federal employment laws are written and enforced with little regard to whether the workforce they are applied to is unionized. This Article argues that this state of affairs is one unions and business--and hence, roughly speaking, Democrats and Republicans--should want to end.

I.

The NLRA was one of the first federal laws to regulate the workplace and reflects a very different approach toward regulation than federal "employment" laws. It is constitutive, intended to establish a framework by which employees may achieve for themselves the things the employment laws provide by direct intervention. Specifically, the NLRA establishes and protects workers' right to act collectively to improve the terms and conditions of their employment. It is intended to set a rough parity between labor and management, so the two may contend on a relatively level playing field to achieve employment terms that improve the workers' lot without bankrupting the company (what we management lawyers call killing the goose that lays the golden egg).

Federal employment laws, most of which post-date the NLRA, supply directly many of the things that labor unions strive to achieve through bargaining.(2) Unions bargain for increased wages, for instance; the Fair Labor Standards Act ("FLSA") directly establishes a minimum wage and requires overtime pay at time-and-a-half for most employees working past 40 hours a week.(3) Workplace safety often is an important union bargaining objective and also is the objective of the Occupational Safety and Health Administration ("OSHA").(4) Similarly, the Family and Medical Leave Act(5) entitles workers to a leave of absence when the worker or a close family member has a serious health condition; collective bargaining agreements typically provide similar (or better) benefits.

Unions are among the principal advocates of employment regulation. By raising costs for rival non-union companies, employment regulations help union companies preserve market share and thus protect union jobs and wages. Employment laws also raise the floor from which unions commence negotiations. And of course, many union leaders advocate employment regulation in the genuine altruistic belief that it will improve workers' conditions generally. There is a substantial academic literature, however, suggesting that by boosting direct employment regulation, unions gradually have put themselves out of business. The more that favorable pay, benefits, and working conditions are set by the United States Congress, the less workers see a point in paying union dues to achieve the same things.(6) Today 9.4 percent of the private-sector workforce is unionized,(7) compared with approximately 16.8 percent in 1983(8) and 38 percent in 1956.(9)

There is also a substantial academic literature, sympathetic to unions, which contends that the real cause of unions' decline is increased business hostility toward unions. This literature maintains that over the years "rogue employers" have perfected methods of flouting the labor laws, and thus have been able to prevent employees from organizing and, on those rare occasions when unions manage to win an election, have prevented them from achieving collective bargaining agreements.(10) The playing field is not level after all, these critics argue, and the solution is to amend the labor laws to arm unions with some of the gleaming weaponry of the plaintiffs' bar, such as punitive damages.(11)

This Article suggests that instead of attempting to revive the American labor movement by adjusting the relative might of labor and management under the NLRA, the new Administration should consider an integrated labor and employment policy that gives management less reason to oppose unionization. For a Republican President, this would mean viewing unionization as an alternative means of regulating the employment relationship, a means that has more in common with conservative principles of limited government than does direct intervention through employment laws. For a Democratic President, this would mean honoring a core party principle: faith in labor unions. For all of us, it would mean ending our anti-union federal employment policy.

II.

When I say federal employment policy is anti-union, I mean that federal employment laws take little account of the advantages unionization is supposed to give workers, and sometimes treat unions as less capable of vindicating employee interests than individual workers acting on their own behalf.

Employees often know better than Washington bureaucrats how to improve their workplace: This Republican-sounding principle animated the most ambitious OSHA enforcement program of the Clinton Administration. In 1997 OSHA unveiled its "Cooperative Compliance Program" ("CCP"), which offered companies a sharply reduced likelihood of inspection if they adopted a set of safety measures not currently required by existing OSHA regulations.(12) The central measure gave employees a leading role in identifying and correcting workplace hazards.

This "Cooperative Compliance Program" improperly sought to force new obligations on employers without notice and comment rulemaking (employers dubbed it the "Coercive Compliance Program"), and for that reason was invalidated by the D.C. Circuit.(13) But the program was right in its premise that workplaces where employees are empowered to address safety and health conditions are less in need of government scrutiny. Exempting such workplaces from neutral inspection programs (such as CCP purported to be(14)) is especially sensible since those inspections programs are not OSHA's only means of targeting employers for inspection-employees can also trigger inspection by complaining to OSHA of unsafe conditions.(15) Thus, unionized employees whose workplace was fully exempt from programmed OSHA inspections could still summon OSHA inspectors if the company failed to address safety problems the union identified.

OSHA's CCP program did not seem to recognize that a company with a labor union might already, for decades, have had just the sort of effective employee involvement...