Welcome to the 21st Century on this Fine Labor Day

Less than two weeks ago, the National Labor Relations Board (NLRB) issued a decision to bring labor law into the 21st century. The case concerned Browning-Ferris Industries, a recycling plant that contracted out part of its processing to a company called Leadpoint. Under previous NLRB rulings, Browning-Ferris would have no responsibility to bargain with Leadpoint workers since the company did not exercise but delegated its authority over labor matters. All that changed with this latest decision. The NLRB determined that Browning-Ferris should be considered a joint employer since it has indirect control over the employment terms and conditions of the Leadpoint workforce. As just a couple of examples, Browning- Ferris decides how fast Leadpoint workers should work. It also requires Leadpoint to pay its employees less than Browning-Ferris pays. Such indirect control constrains the kinds of labor contracts unions can negotiate.

The implications of Browning- Ferris are huge: suddenly, companies that use subcontractors, temp agencies, and franchising- if determined to be joint employers- will be forced to bargain over whatever employment matters they influence. For too long, large companies have been able to hide behind subcontractors, to write off their responsibility to the workers that help make them rich. According to the General Accountability Office, 8% o f American workers are considered “core contingent workers” as Leadpoint workers are. Previous NLRB rulings didn’t account for their particular conundrum: being affected by two employers but only being able to bargain with the one that is subordinate to the other. This decision empowered unions to deal with such realities. Wrote the NLRB majority, “It is not the goal of joint-employer law to guarantee the freedom of employers to insulate themselves from their legal responsibility to workers.” This decision aims, in the words of the NLRB, “to best serve the Federal policy of encouraging the practice and procedure of collective bargaining.”

Well, for now at least.

If the history of labor policy reveals one thing it’s that NLRB judgments to enhance union power are vulnerable to attack, through the legislative process, from the Supreme Court, and even from within the NLRB itself. Pro-labor rulings don’t always stick, or are watered down as corporations pursue refinements and clarifications in the context of their own interactions with unions.
That was certainly not the intent of Senator Robert Wagner, author and champion of the National Labor Relations Act (NLRA) signed into law eighty years ago. His Act gave American workers the effective right to collective bargaining at a highly tense moment of mass industrialization. Burgeoning industrialists were resisting workers’ attempts at collective action, at times through violence and force. Unions were responding to industrialists’ rebuffs with violence and disruption in kind. Wagner found his solution to industrial conflict in “workplace democracy,” seemingly modeled after the wider political democracy: representative in form, elections-based, voluntaristic, grounded in civil liberties, producing enforceable decisions through deliberation and negotiation and compromise, and involving (quasi) judicial interpretation of the rules and procedures of participation through the NLRB. Wagner explained his Act as a way to “create a free and dignified workingman who had the strength to bargain collectively with a free and dignified employer.” Collective bargaining, his theory went, would satisfy the needs of all parties and would elevate industrial relations by making all parties dignified and reasonable.

Ironically, it was the language and apparatus of democracy that helped unravel Wagner’s vision of calm and reasoned labor relations through collective bargaining. The Taft-Hartley amendments were passed by Congress just twelve years after FDR signed the NLRA into law. Taft-Hartley bolstered the speech rights of employers presumed disadvantaged by Wagner’s Act by, among other things, allowing employers to hold “captive audience” meetings without giving unions the right of immediate response. At the same time, the amendment restricted the assembly rights of unions by disallowing secondary boycotts, certain strikes, and the closed shop, all of which were powerful tactics used by unions to grow their ranks and legal under the original NLRA. Ostensibly, such provisions restored “balance” to labor-management relations, and that’s how Taft-Hartley authors explained their intentions in the text of the Act; however, these amendments were a big blow to labor, resting on the fiction that unions ever hold more cards than employers given the realities of capitalism.

Taft-Hartley was just the beginning of partisan attempts to “stack” workplace democracy against unions. The NLRB has empowered employers through numerous decisions on such matters as union elections, subjects for bargaining, and how to deal with subcontracted workers- despite employers’ inherent power advantage. For example, until very recently, the NLRB allowed employers to delay union certification elections by (1) disallowing electronic document- filing and communication, (2) allowing employers to withhold the names of prospective voters until an election has been approved, (3) allowing employers to file briefs up to 14 days after a pre-election hearing, (4) automatically delaying elections by 25-30 days to allow for employer objections, and (5) requiring the NLRB to review every aspect of post-election decisions, even when there were no objections. The longer the delay, the less likely a union is to win certification.

The NLRB, through influence from the courts, has also restricted the subjects for mandatory collective bargaining, thereby removing certain checks on employers wishing to bust unions through operational decisions (like terminating a division of a business or relocating workers to a nonunion plant). According to John S. Irving of Kirkland & Ellis, the Supreme Court’s landmark Fibreboard decision made subcontracting a topic for mandatory bargaining in certain instances but not all; its First National Maintenance decision allowed for partial plant closures without any bargaining whatsoever. The NLRB has tended to require bargaining on management decisions such as subcontracting, relocating, closing units, and laying workers off on a case by case basis, often affirming the idea that employers should not be required to bargain if such decisions are motivated by entrepreneurial reasons.

The recent Browning Ferris decision reversing precedent on joint employment took care of the effective exclusion of companies contracting out labor from collective bargaining. Nonetheless, decades and decades of rules and procedures such as the ones outlined above certainly impacted unions and depressed worker organizing. In the years since Taft-Hartley, unions adapted to the legal/institutional climate they faced with “business unionism” focused on servicing members as clients rather than engaging workers deeply in self-governance or developing a working class consciousness. Despite a revival of union commitment to new organizing beginning in the 1990s, unionization in the private sector stands at only 6.6% today, according to the Bureau of Labor Statistics. A 2014 Gallup poll shows 53% of Americans approve of unions, but only 35% want to see them have more influence and 71% would vote for “right to work” laws that weaken unions by making dues-paying optional.

Despite positive developments at the NLRB, unions face sky-high hurdles on this Labor Day, and the promise of democracy at work remains unfulfilled, shallow, hollow for the vast majority of working people. Maybe there’s a way out for unions, maybe not. But, the demise of unions facilitated by our National Labor Relations Board, U.S. Congress, and judiciary is certainly out of step in this moment of an emboldened 99%.

To Read More:
GAO. Contingent Workforce: Size, Characteristics, Earnings, and Benefits.
http://www.gao.gov/assets/670/669766.pdf

James Gross, 1995. Broken Promise: The Subversion of US Labor Relations Policy, Philadelphia: Temple University Press.

John Irving. “Operational Changes: The First National Maintenance/Fibreboard Dual”
http://www.kirkland.com/siteFiles/kirkexp/publications/2566/Document1/Operational%20Changes.pdf

NLRB. NLRB Representation Case Procedures Fact Sheet.
https://www.nlrb.gov/news-outreach/fact-sheets/nlrb-representation-case-procedures-fact-sheet

NLRB. Browning-Ferris Industries Decision on Review and Direction.
http://webcache.googleusercontent.com/search?q=cache:ijv3p6Q7kjcJ:https://apps.nlrb.gov/link/document.aspx/09031d4581d99106+&cd=2&hl=en&ct=clnk&gl=us