By Mark Gruenberg
Once again, Congress’ ruling Republicans are attacking the National Labor Relations Board, and, by implication, the 1935 Wagner Act, formally known as the National Labor Relations Act (NLRA), which created the agency.
And once again, the GOP and its right wing ideologues and business puppeteers miss the point. The NLRA isn’t extraordinarily strong. It’s extraordinarily weak. You might even call the GOP’s view of the NLRA and the NLRB a set of, to use a Trump administration phrase, “alternative facts.” Yet the entire argument masks a mistaken assumption about the NLRA.
The Republicans and their allies portray the Wagner Act and the NLRB as devilish, all-consuming predators ready to pounce and devour their firms with sanctions, fines and mandates to recognize workers’ rights and unions. Nothing could be further from the truth.
As an example, consider some anti-worker statements from the Feb. 13 House subcommittee oversight hearing on the NLRB. They’re typical management “alternative facts”:
Management side labor lawyer Kurt Larkin: The board’s actions “have unjustifiably tilted the playing field in favor of unionization and created substantial legal and procedural burdens for employers.”
FACT: Union election win rates have barely budged in the last decade.
Larkin again: “The board’s rules infringe on the employers’ statutory right to communicate with workers.”
FACT: The only practical effect of the board’s rules is to reduce the time employers have to “communicate” with workers. The board’s rules still don’t stop such “communication” as one-on-one supervisor browbeating of workers or “captive audience” meetings where management inveighs against unions, which workers must attend or be disciplined – both of which are legal -- much less illegal management spying, intimidation and threats to move.
Raymond LaJeunesse, legal director of the National Right-to-Work Legal Defense Fund, a top anti-worker organization: The board “eviscerated non-members’ rights not to pay for union activities other than bargaining and contract administration.”
FACT: Unions must publish public notices, called Beck notices for the private sector and Hudson notices for the public sector, allowing non-members whom the union represents to opt-out of paying for everything but bargaining and contract administration. And in the 28 right- to-work states, including Michigan, the Beck and Hudson non-members can take totally free rides, paying zip.
Rep. Denny Walberg, R-Mich.: “Are employers educated on wanting to avoid a union?” Management lawyer Larkin: “The vast majority of my clients don’t enter into business to avoid unionization.”
FACT: Union-busting is a multibillion-dollar industry, and 71-87 percent of firms, depending on the industry involved, use such advisors, the Labor Department reports. Union-buster “advice” to employers about labor law-breaking comes with pro forma warnings about illegal tactics, while noting the NLRA’s penalties are not much more than net back pay, years later, for workers who were harmed, plus required postings of an “I-won’t-do-it-again” notice.
The Labor Department issued a rule last year ordering the union-busters, which it calls “persuaders,” to report spending regardless of whether the advice to firms is direct or indirect. It estimated the U.S. has about 6,000 “persuader” firms. DOL’s rule is tied up in court.
We could go on, but you get the idea. But why is the NLRA so weak?
Our answer is that it’s based on a faulty assumption, and that more-modern laws upholding individuals’ rights – notably civil rights laws – aren’t. The assumption? That businesses can be, by and large, trusted to obey the law.
The corollary to that assumption is that the Wagner Act’s aim should be to help workers, and not really punish the corporate despots, in the interest of labor-management peace. More than half a century of evidence, plus actual statements and actions by the corporate class, from 1935 – or maybe 1835 -- through now, shows that assumption is wrong.
By contrast, civil rights laws assume violators deliberately break the law, and fine and jail them accordingly. Victims can sue for triple damages, and seek not just I-won’t-do-it-again notices but actual court injunctions that tell lawbreakers: “Obey, or go to jail.”
So here’s our conclusion: When, a Congress – not this Congress – finally strengthens labor law and worker rights, it should start by dropping the faulty assumption that businesses can be trusted to obey the law. Assume lawbreakers really mean it. Legislate accordingly.
Sure, most businesses obey the law, just like most people obey laws against murder.
But those who don’t, REALLY don’t, and should be punished harshly – just like we punish convicted murderers:
• If you profit from breaking labor law, the fine should equal your profits.
• If you’re a honcho who breaks labor law against your workers, you do the time. In jail.
• If a union-buster gives wink-wink, nod-nod, break-labor-law “advice” to a company, treat the union-buster as aiding and abetting a felony. Convict and sentence the union-buster accordingly.
• And if a Walmart, for example, engages in a pervasive pattern of law-breaking, then the fines and jail terms should be in a pervasive pattern of confiscation.
Then there will be real teeth in labor law, and no more faulty assumptions.