National Labor Law in the United States: Scanty Protections for Organizing Leave Out Many Workers

Mar 27, 2014Richard Kirsch

This is the third in a series of posts summarizing a new Roosevelt Institute report by Senior Fellow Richard Kirsch, entitled “The Future of Work in America: Policies to Empower American Workers and Ensure Prosperity for All.” The report provides a short history of how the rise and decline of unions and then explores reforms in labor policy to empower American workers to organize unions and rebuild the middle class. Today’s post explains why labor law in the U.S. provides a fragile, limited foundation for giving workers the power to claim a share of economic wealth or have a voice at work.

Last month the body that governs labor law in the United States, which for the first time in ten years has a full complement of members, proposed some new regulations. The uproar from business trade associations was predictably over-the-top, declaring that a proposed regulation simply requiring that businesses disclose the identity of anti-union consulting firms was aimed at taking employers out of the union organizing process entirely.

From the rhetoric of the business lobby and their conservative allies, you would think that the U.S. has robust labor laws, which put employers at a dire disadvantage. But the truth is that federal labor laws provide a weak and limited set of legal procedures for workers who want to organize for a fair share of the wealth they produce.

When the National Labor Relations Act (NLRA) was enacted in 1935, during the heart of FDR’s New Deal, the United States finally recognized the value of providing a systematic legal structure for workers to negotiate with employers. The NLRA’s passage alone did not make union organizing easy. It took continued pressure from striking workers, as well as government-imposed labor peace to ramp up production during World War II, to achieve some compliance by employers with the NLRA’s framework for collective bargaining.

But just two years after the War ended, Southern Democrats joined Republicans, to dramatically weaken the young law – which already had plenty of shortcomings – by passing the Taft-Hartley Act, over President Truman’s veto,. What remains is a tepid law, offering a limited, fragile foundation for organizing workers, complete with loopholes which can be exploited by employers who resist unionization.

The NLRA applies to most – but not all – private sector workers. It leaves out domestic workers, farmworkers, supervisors (workers who supervise others but don’t make policy decisions) and independent contractors (even when they work for one employer). It also leaves out all public employees.

In order for the workers who want to organize to form a union with collective bargaining rights, a majority of eligible workers in a bargaining unit must agree to support the union. The employer and union must agree to who is in the bargaining unit (or the NLRB will decide), which typically is no wider than a single facility or a certain category of workers in a single facility or department.

Workers can request to form a union by having a majority sign union cards, but the company can insist on an election, during which the company can bar union representatives from speaking at the worksite, but can compel workers to listen to anti-union speeches.

While employers are not legally permitted to fire a worker for supporting the union or for taking other forms of collective action, the only penalty that employers face for firing a worker is that they are required to re-hire the worker and provide them with back pay. Moreover, this back pay award is reduced by the amount of wages that the employee earned or could have earned after the firing. It often takes years before the Board and courts order even such a small penalty. These weak penalties make it easy for employers to break the law, and, as a result, the firing of union supporters has become commonplace.

Once a union is recognized – either by winning an election or by card check – the union and the employer are required to bargain in good faith over wages, benefits, and working conditions. Other factors impacting workers are off the table unless the union and employer agree to discuss them. If an employer refuses to negotiate in good faith, the Board may request that a federal court hold the employer in contempt and fine it, a process which usually takes years. If the employer and union do negotiate but cannot agree on these questions, the employer may determine actions on its own.

During contract negotiations, both sides are permitted to use economic pressure to win concessions over mandatory subjects. The union can not apply economic pressure to suppliers or customers, only to the employer itself. The NLRA prohibits employers from firing strikers, but employers are entitled to hire permanent replacements for strikers. After the strike ends, any striker who has been permanently replaced technically remains an employee, unless she has found comparable work. But the employer is not required to actually offer them work until a position becomes open. As a result, striking workers may be out of work for a long time or never offered a job at the firm.

Employers are also permitted to lock out workers. Workers who have been locked out also may be replaced temporarily, but not permanently. If a union strikes over an employer’s commission of an unfair labor practice – such as firing a worker for supporting the union – the employer may hire only temporary replacements, and they must reinstate the strikers immediately upon the end of a strike.

Of course, it takes timely action by the Board, backed up by federal courts, to enforce any of these protections. But, as we discussed in the previous post in this series, a combination of appointments of regulators hostile to the NLRA and aggressive corporate resistance to complying with the law have made timely enforcement the exception.

Today, the NLRA process is used much less than in the past. The number of elections for union representation dropped by 59% from 2000 to 2012, from 2,957 to 1,202. Most of the elections were to continue current union representation, rather than win the right to bargain for new workers. The number of new workers organized through the election process in this period shrank from 106,459 in 2000 to 38,714 in 2012, a decrease of 64%.

The weaknesses in current labor law, particularly in relation to the changes in the economy between the mid-twentieth century and today, provide the context for the following posts in this series, which present an array of proposals to reform and transform labor law for the 21st century economy. 

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