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Taking Back the Workers' Law: How to Fight the Assault on Labor Rights

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Ellen Dannin's new book, Taking Back the Workers' Law: How to Fight the Assault on Labor Rights, is an *easy-to-read tour de force of both labor law analysis and strategy development aimed at getting labor law to do what it was intended to do.

The most important labor law in the United States is the National Labor Relations Act (NLRA), passed by Congress in 1935. This law makes certain fundamental guarantees to workers when they act together: the right to bargain collectively, the right to form, join, and assist labor organizations, the right to strike, the right to support other workers, and many others. The law clearly states that, without these rights, workers are at a distinct disadvantage in dealing with their employers, and it further says that the promotion of collective bargaining is the policy of the federal government. The Act outlaws certain employer practices, such as firing or discriminating against workers who do what the law says they can do, and it creates an agency, the National Labor Relations Board, that is ordered to create appropriate remedies for employer violations of worker rights, among other things.

However, since its passage, the federal courts of appeals and the Supreme Court, and even the NLRB itself, have thwarted the will of Congress. They have made numerous rulings that, as Dannin argues in her book, undermine and often completely deny the rights the Act is supposed to guarantee. Today, employers can permanently replace striking workers, even after the employer locks them out in a labor dispute. If there is an impasse in negotiations, the employer can simply put into effect its last contract proposal rather than reach a negotiated settlement. A company can shut down its operations to avoid unionization, and close part of its operations simply to lower labor costs. Whenever there has been a conflict between workers' rights under the NLRA and employer common law (the law made by judges through their decisions) and master and servant rights, judges have invariably come down on the side of common law, refusing even to try to find compromises that would protect both rights. Recent Republican presidents, such as the Bushes and Reagan, have appointed people to the NLRB who have
strong biases against the law they are bound to enforce.

In the face of these legal setbacks, many in organized labor have argued that unions should bypass the NLRB in union organizing campaigns. Some have done just this. AFL-CIO Vice President Richard Trumka has gone so far as to say that Congress might just as well repeal the NLRA and return us to the common law. Dannin argues convincingly that this is an unwise approach. She puts forward several powerful arguments against it. First, The NLRA and the NLRB offer the only real legal protection workers currently have against employer wrongdoing. Using the NLRA and the NLRB offers workers the possibility of getting a job back and backpay when an employer illegally fires them. Refusing to use them simply means that aggrieved workers will get nothing. Using the NLRB in union elections demonstrates public sanction for the collective bargaining relationship and the union's right to represent the employees. Refusing to use it does not.

Second, since the NLRA contains certain core values and purposes that are radical in their implications for how our society should be structured--or example, worker solidarity is to be encouraged, unions are necessary to counter the tremendous power the law gives to corporations; more equal power for workers is necessary for democracy; collective bargaining is the best way to settle industrial disputes; wages should be taken out of competition within and among industries; etc.--what labor needs to do is to educate the courts that these values are in the NLRA and it is their duty to enforce them. It is the duty of unions to pressure the NLRB's attorneys to present evidence and make arguments in their briefs and hearing presentations that put the law's core values and purpose front and center. And if the NLRB will not make these arguments and present this evidence, unions can and must do so themselves.

Dannin offers a large number of concrete examples of how to do this (and she does this in a way that is easily understood by those who are not lawyers). She points out that most judges know little about labor law and they see things through the pro-employer lens of the common law. So labor must educate these judges and present arguments that pressure them to enforce the law's values. Third, many NLRB staffers want to enforce the law and are sympathetic to working persons. In fact, since NLRB staff, themselves, are union employees, the labor movement, ought to fight for better funding of the NLRB and support these workers. Otherwise the enemies of labor get their way in Congress and the NLRB will continue to suffer funding (and staff) cuts.

There is a lot more to this book than can be conveyed in a few paragraphs. Suffice it to say that every union officer and attorney should read it and act upon its recommendations. Every worker should read it too. Dannin takes the legal approach of the civil rights movement as her model for taking back the workers' law. Labor should have an easier time of it. Workers already have a law. It will surely be easier to change the way courts interpret the NLRA than it was to desegregate schools.

Ellen Dannin's book is a very welcome addition to the current public dialogue over the value of the National Labor Relation Act. Dannin approaches the subject in a methodical and rational manner free from the usual hyperbole. Few argue about the need for U.S. Labor Law reform, but the manner in which that reform takes place is the contested terrain. The debate ranges from complete repeal of the Act to simply boycotting the Act. Finally, in Dannin's book we have a voice of reason and a road map to take the NLRA back to its intended roots - protecting the rights of workers.

The passage of the Employee Free Choice Act (EFCA) would be a good step in reforming U.S. labor law but much more is needed. Over the last few years folks who have been frustrated by the lack of worker justice coming from the NLRB have engaged in a strategy of boycotting the NRLB. This strategy is designed to send a message to the Board and elected officials that the NLRB is not fulfilling its mission of protecting workers rights.

There are several problems with a "Boycott-the-Board" strategy. First, it assumes that the Board and our elected officials actually care that the NLRB no longer protects the rights of workers. On this point, there is ample evidence to suggest that they do not. Secondly, it creates a data landscape to which opponents of organized labor can point and claim that labor law in this country does indeed work. Boycotting the NLRB and refusing to file Unfair Labor Practice (ULP) charges creates an environment that will further weaken U.S. labor law, not strengthen it.

Obviously, a boycott strategy results in a drop in ULP charges being filed. As charge intake drops, the number of complaints issued against companies drops. This results in a data landscape that is manipulated to demonstrate that the NLRB does work. With this landscape, opponents of organized labor are quick to point out that charge intake is down and complaints issued are down. Thus, the case is made that the number of labor law violations against workers are decreasing and everything is working as it should. Of course, those in organized labor know this is a complete fallacy. But boycotting the Board actually creates the data that is used against organized labor and against the reality of the situation.

How do we change it? Dannin's book shows us a way forward. Dannin gives us a road map to make the needed changes to the NLRA and create a landscape that once again protects the rights of workers. I highly recommend this book.