The Nlrb: What Went Wrong and Should We Try to Fix It?

• Publication year: 2015

The NLRB: What Went Wrong and Should We Try to Fix It?

Julius G. Getman

THE NLRB: WHAT WENT WRONG AND SHOULD WE TRY TO FIX IT?

Julius G. Getman^*

For eighty years, national labor policy as set forth in the National Labor Relations Act (NLRA) has been committed to overcoming the "inequality of bargaining power between employees . . . and employers" by "encouraging the practice and procedure of collective bargaining" and by "protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives."¹ The basic tenants of national policy may be restated in terms of a series of commands directed at the National Labor Relations Board (NLRB or Board) and the courts. These may be stated as follows:

1. Promote and protect the right of workers to organize for the purposes of collective bargaining.

2. Prevent employers from using their economic power to inhibit free choice by workers.

3. Leave the parties free to negotiate their own agreements.

4. Recognize and protect the right to strike.

The key to turning these commands into a living reality was the establishment of the NLRB, an expert agency that was to use its understanding of labor relations reality to establish national labor policy by defining more precisely the general terms of the NLRA subject to minor and supportive review by the courts.

When the law was first enacted, its drafters probably assumed that the Court would be instructed in the realities of labor relations by the newly established NLRB and its presumed expertise. That has failed to happen, in part because the expertise of the Board is largely fictional and because the Court regularly ignores and overrides even sensible Board opinions.

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This positive vision of an expert Board and a supportive Court has been supplanted by the reality of an activist Court, ignorant of labor relations, making key policy decisions, many in conflict with the basic concepts of the NLRA. The Board has become a controversial, often politicized, agency whose best efforts are denounced by politicians and often overruled by the Supreme Court.

The greatest problem for unions today is organizing. The Supreme Court has played a major role in constructing the current system under which employers have immediate and constant opportunity to make the case against unions to its employees, and the NLRB is forbidden to grant union organizers the right to come on an employer's parking lot to speak to employees. In its Jean Country decision, the Board attempted a sensible and modest effort to balance Section 7 rights of employees with property rights of employers.² In its key ruling on access, Lechmere, Inc. v. NLRB, the Supreme Court rejected the Board's effort to balance "the degree of impairment of the Section 7 right [to organize] if access should be denied" against "the degree of impairment of the private property right if access should be granted."³ The Supreme Court denied the Board the ability to employ such a balancing test primarily on the ground that "[b]y its plain terms . . . the NLRA confers rights only on employees, not on unions or their nonemployee organizers."⁴ The value to the employees of learning the union's arguments in favor of organization is barely mentioned. Indeed, paying almost no respect to the concept of informed choice, the Court said that it would be enough if the employees knew that there was a campaign. In the study that I did with Professors Goldberg and Brett, we were able to measure campaign familiarity and, not surprisingly, discovered a major employer advantage based on attendance at meetings.⁵

In the early days of the Wagner Act, the Court, by way of dictum, declared that employers could not only hire replacement workers to do the work of strikers but were entitled to give them employment rights superior to strikers, without regard to seniority or business needs.⁶ The Court has regularly reaffirmed this dictum without examining either the need for it or how it can be

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reconciled with the oft stated policy of insulating job rights from union activity. Thus, Justice O'Connor was able to state accurately that employees who strike in support of union bargaining positions "gamble" their jobs.⁷ And despite ample precedent for treating picketing as a form of free...