Reproduced with permission from Daily Labor Report, No. 81, pp. C-2 -- C-3 (April 28, 2003). Copyright 2003 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com

Major Revisions in Labor Laws Not Likely
In Today's Political Landscape, Speakers Say

In the current political environment, it is unlikely that any "significant" labor law reform
favoring unions can be enacted, labor law professor Jack Getman told an April 24 session of the conference on the future of unions, which was hosted by the LBJ School of Public Affairs, University of Texas at Austin.

That does not mean that unions should despair of making some changes to the law, said Getman of the university's School of Law, but they need to focus on specific, badly needed reform and steer clear of attempting broader changes.

Getting rid of the Mackay doctrine that allows employers to permanently replace strikers would be one such specific reform that would dramatically alter the power balance between employers and unions, Getman suggested.

Concurring with Getman's assessment, Lance Compa, a professor at the Cornell University's School of Industrial and Labor Relations, said legislation overturning the U.S. Supreme Court's 1937 ruling in NLRB v. Mackay Co., 304 US 333 (2 LRRM 610), which permits the permanent replacement of strikers, is achievable politically. He conceded, however, that it may not happen until after the next national election, or even the one after that.

Compa pointed out that a bill banning permanent replacement nearly passed in the early 1990s, ultimately failing for lack of a couple of votes needed to halt a filibuster. To gain those extra votes, it is a matter of building the necessary political power base, Compa said. "Unions are still a strong political force in society and by building
the right kinds of alliances, they can make the changes that are needed," he asserted.

Getman said that labor also has to focus on changes in the law that will give it greater access to the workplace in organizing drives. Employers now have predominant access to the workers through captive audience meetings while unions' access to the
employer's property is restricted by law.

However, although their access is limited, unions still have a powerful organizing tool in the form of the inside employee organizing committee, he pointed out.

Getman suggested that unions should be willing to strike some political compromise on reform to Section 8(a)(2), which restricts employee participation groups. Unions need to view employee participation committees as a "potential form of inside organizing and not as a threat to unions," he said.

The United Steelworkers, he pointed out, has used so-called company unions as an effective organizing device. Getman also suggested that the National Education Association "began as a company union" but has been transformed into a "militant, real union."

A further specific change that would strengthen labor's hand, Getman said, would be reform of Section 8 (b)(4) which bars secondary boycotts. This might be accomplished, he suggested, if the argument is framed as a First Amendment free speech issue. The current law could be challenged with the right test case, Getman said, and the current Supreme Court appears favorably disposed toward First Amendment claims.

Compa said that employers are unlikely to compromise on a legislative change to Section 8(b)(4), but he agreed with Getman that tackling it as a free speech issue in the courts might accomplish the same objective. He suggested that Nike Inc. v. Kasky, heard April 23 by the U.S. Supreme Court, could be the needed test case (79
DLR AA-1, 4/24/03).

Labor Law Reform Not the Answer

Several conference speakers said that labor law reform is not the answer to revitalizing the labor movement.

Robert Flannigan, a professor at Stanford University, said that even if there were a more congenial environment for labor law reform it is "unlikely that [reform] would fix the problem." He suggested that "tinkering" with the law could improve the success rate in elections but that increased success would be "insufficient to counter the declining unionization."

Flannigan noted that in Canada there has been a shift from card check recognition to mandatory elections. While that shift has resulted in a reduced win rate for unions, he said, the previous era in which card check recognition was dominant in Canada is not enough to explain the higher level of union membership in Canada than in the United
States.

Professor Leo Troy of Rutgers University said the decline of labor cannot be blamed on the National Labor Relations Act. Even labor advocates in academic circles have acknowledged that structural change in the economy is a major cause of the decline in union membership in the United States, he said. The decline, Troy said, began in the
mid-1950s with the rise of the service economy.

William Lucy, the secretary-treasurer of the American Federation of State, County, and Municipal Employees, told the conference that labor has to ask itself whether "we need more members or do we need a clearer mission that is accepted by the
members we have?" Lucy posited that "having more members is not the solution." Rather, what is needed is having shared common goals and values, he said.

Illustrating his point, Lucy said the recent reorganization of federal agencies to enhance national security took away the collective bargaining rights of some 600,000 federal workers. This situation, he suggested, did not raise a concern among other workers, because they did not see it as a threat to themselves.

"Labor needs to build an agenda that the broader society can connect to," Lucy said, one that focuses on good jobs, education, and fundamental fairness. "We need to articulate goals and values that benefit, not just union members, but the broader society."

Organized labor is "now paying the price for not looking beyond our own membership in the 1960s," Lucy suggested. "If we're only concerned about wages, hours, and working conditions [of our own members], we've got a problem."

The labor movement has to address the impact of globalization on the U.S. workforce, he said. But simply organizing more members is not going to address this problem. The solution to problems created by globalization is political, Lucy said, and labor needs to draw political strength by tapping support in the broader society.

Taking a swipe at politicians who take labor's financial help but then do not push labor's agenda, Lucy said, "Politicians need to get the message that they need to be seen with us in the daytime."

By Elizabeth Walpole-Hofmeister