Judicial ‘Amendments’ Weaken US Labour Protections

Abstract

10 | International Union Rights | 24/2 FOCUS | UNITED STATES During the height of the Great Depression, Congress enacted the National Labor Relations Act (NLRA) to create equality of bargaining power between employees and employers. Congress made it clear that, just as employers form corporations and partnerships, employees must have the equal right to form collective organisations. Without equality of bargaining power, employers could depress employees’ wages and purchasing power, which had led to economic depressions and recessions. Congress stated that this inequality must end. That insight led Congress to enact the NLRA to equalise bargaining power in order to restore prosperity to the United States. Giving workers the right to form unions and act collectively created balance between workers and employers. For the next forty years, workers and employers shared prosperity created by their rising productivity. In the early 1980s, a precipitous decline in unionisation was accompanied by a significant recession. Beginning in 2007, the Great Recession was the most serious economic crisis since the Great Depression. In spite of these economic downturns, unionised workers still earn higher wages and benefits than non-union workers, but real wages have not grown since that time despite increased productivity and periods of economic growth. The rich have gotten richer, but workers have not shared in that prosperity. What changed? Why was the NLRA through the 1930s into the 1960s a powerful law that helped lift people out of poverty, but subsequently unable to stem the tide of falling unionisation and inequality of bargaining power? The answer is that American judges created ‘Judicial Amendments’ to the NLRA. In the United States, judges are not supposed to create laws. That is the role of legislators and the executive branch. A judge that usurps the law takes a lawless path. In 1939, Osmund Fraenkel, former general counsel of the American Civil Liberties Union (ACLU) said, ‘courts have often struck down laws designed to aid labour, by conservative construction of the constitution and have emasculated them by interpretation. The most useful weapon in their varied armoury has been the doctrine that the legislature intended merely to enact the law as it had already been handed down by the courts. As if the labour pains of law-making were readily undergone for any such futile purpose’. In taking the role of legislators, the courts pervasively undermined the NLRA and the body that enforces it, the National Labor Relations Board (NLRB). These amendments undercut the very purpose of the law by giving more power to employers and less to workers, speeding the decline of unions in the United States. Achieving The NLRA’s Goals The NLRA declares its goals as protecting workers’ full freedom of association, selforganisation , and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or ‘other mutual aid or protection’, and encouraging collective bargaining. Section 7 identifies employee rights to organise, form, join, or assist unions, to choose bargaining representatives, and to bargain collectively or to abstain. The law prohibits discrimination and coercion of employees who exercise their Section 7 rights to bargain collectively in good faith once employees have selected a union to represent them. Section 10(c) gives the NLRB power to issue orders to cease unlawful activity and to take remedial action, including reinstating employees and providing back pay. While the law provides clear and meaningful direction regarding what is protected and what is unlawful, judicial amendments have weakened the law. The changes in the law now strengthen employers while disempowering unions, permitting employers to frustrate equality of bargaining power. In addition, judicial amendments now limit remedies, allowing employers to violate the Act with impunity. The Pernicious Role of Bargaining Impasses The NLRA was supposed to give workers represented by unions a say in negotiating working conditions and replace unilateral employer control with bilateral determination through collective bargaining. To make certain that employers understood that they no longer had the right to make unilateral decisions, the NLRA defined the obligation to bargain collectively in Section 8(d). The duty to bargain means the duty to ‘meet at reasonable times and confer in good faith with respect to wages, hours, and other terms...