REFORMING LABOR LAW.

• Author: Block, Richard N.
• Position: National Labor Relations Act

If the National Labor Relations Board is reorganized, "Employers, unions, and employees can have confidence that each will receive a fair hearing, regardless of which political party is in control of the reins of government."

The 1997 teamsters' strike against United Parcel Service (UPS) was heralded as a sign of the resurgence of unionism in the U.S. The union appeared to have struck over a popular issue--part-time work--and it seemed to have the support of the public. The strike ended in what looked like a triumph for the Teamsters and organized labor.

After the strike, however, unionism returned to bleak reality. Department of Labor data released in January, 1998, showed another year of declining unionization in the U.S. Of all employees over the age of 16, 14.1% were union members in 1997, down from roughly 32% in 1954. Private-sector union membership in 1997 was at 9.8%, below what it was in the 1920s, prior to the passage of any legislation protecting the rights of employees to unionize. While it is true that unionism in many developed market economies has been declining in recent years, the drop in the U.S. is remarkable for its longevity, consistency, and perseverance.

While many reasons have been advanced for the long-term decline--such as global competition, improved human resource management techniques, unresponsive unions, and the increase in legislation protecting individuals--trade unionists and many neutral observers believe that the evolution of labor law under the National Labor Relations Act (NLRA) is a major contributor. The potential for delays in conducting union representation elections and obtaining employer compliance with National Labor Relations Board (NLRB) orders, the near monopoly of access to employees by employers during union organizing campaigns, remedies that do not deter labor law violators, and employer permanent replacement of strikers have made it difficult for unions to organize and to bargain. Union-supported attempts in 1977-78, 1991, and 1993 to address some or all of these problems legislatively were thwarted by Republican-led filibusters in the Senate.

Given this situation, one would expect the management community to be quite satisfied with the state of labor law in the U.S. Yet, this is not the case. Non-union employers say that the law prevents them from establishing employee participation plans even when their workers have no desire to be unionized. Business argues that the structure and process of investigating and deciding unfair labor practice charges harm small firms that are unable to afford the requisite legal representation when such an accusation is filed against them. Employer advocates point out that the investigation and prosecution of the case are done at public expense, rather than billed to the charging party, while the employer must bear its own legal costs. They maintain that small employers are unable to afford the back pay liability when the NLRB takes an excessive amount of time to decide cases involving unlawful discharge. Employers contend that they are denied the right to argue before the NLRB that a union representation election should be in several of its facilities, rather than in a single one. Finally, they criticize a 1995 U.S. Supreme Court ruling which extended the protection of labor law to job applicants and employees who also are paid union organizers ("salts").

These concerns have been manifested in the legislative process. In 1996, the appropriation bill passed by the House of Representatives prohibited the NLRB from spending funds to adopt a single facility rule. Legislation that would have made it lawful for nonunion...