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The NLRA - Success of Failure?

It depends on if you are signing the paychecks or cashing them.




By: Shaun Francis


The legal relationship between workers and businesses is regulated in our country by the National Labor Relations Act. Passed and signed in 1935, it was, at the time, one of the - if not the - crown jewels of FDR's new deal. It was most certainly a pro-worker piece of legislation at the time of its passing.


In the 1920s and into the 1930s, America's labor relations were defined by long, expensive, often violent, and sometimes deadly strikes. Without any legislation or guidance on what rights a worker, a union, or an employer had, the parties were essentially left to figure it out for themselves. Today we take it for granted that workers can have an election and vote for or against unionization. But that wasn't the case before the NLRA was passed. Workers had to shut down businesses or whole industries to get recognition as a union and bargain collectively for their mutual aid and protection. This fight was dramatized in the 1992 film "Hoffa." The film, written by David Mamet, directed by Danny DeVito, and starring DeVito and Jack Nicholson, tells the story of the rise and fall of famous Teamster leader Jimmy Hoffa. Early in the film, it shows how violent labor unrest was in Hoffa's formative days. An excellent film and worth the watch.


Among other things, the initial iteration of the NLRA sought to end the death, violence, and negative impact on the American economy these strikes were taking. IT did so by guaranteeing the right to unionization and union elections for workers, guaranteeing the right to collective bargaining with employers on equal footing at the bargaining table by laying out many unfair labor practices that employers were prohibited from doing. A momentous victory for workers indeed! The framers of the Act understood that workers were in a deep deficit when it came to money, strength, and power compared to their employers. That has always been and will always be the case. But of course, never more so in the era of the Great Depression.


The Act created a literal tsunami of union organizing. The number of unions soared exponentially in the years following the passage of the Act. While this was a boon for workers, it was seen as an encroachment on free market capitalism and freedom by business owners. And big money business interests got to work doing what they always do - lobbying. The NLRA was subsequently altered and amended through a series of legislation, namely the Taft-Hartley Act. These efforts led by businesses rolled back much of the strength that workers and unions were given in the initial passage of the NLRA. And in the decades and years that followed, unions saw a slow but extended decline in the numbers of unionized workers in America.


So, as we sit here today, can we say that the NLRA is a successful piece of legislation? That certainly depends on what side of the table you are sitting on. For workers, the NLRA gives the promise of power without actual power. Sure, the Act guarantees them the right to form a union IF they can gather up enough support, and it guarantees them the right to fair collective bargaining with their employer IF the employer follows the law. While those rights are guaranteed in theory, the reality is that employers have come to learn that breaking the law and violating the Act carries no real penalties. The Board has very little power to do much to employers who violate the law; no authority to shut down businesses or levy punitive financial penalties for violations.


Employers, on the other hand, enjoy that the Act has prohibited unions from exercising their most powerful weapons, such as wildcat strikes, sympathetic strikes, boycotts, and other actions that hurt business and were the impetus for the law in the first place. And in exchange for taking away those powerful weapons, the law was supposed to protect the union organizing and collective bargaining process - but it really hasn't.


Take two articles about the act written from two different perspectives as exhibit A. Samuel Fleischman, writing for the left-leaning pro-worker workerorganizing.org website, describes the weakening of the NLRA thusly: "However, over the next several decades, corporate interests whittled away at the NLRA through measures like the Taft-Hartley Act and the Labor-Management Reporting and Disclosure Act of 1959, which left the NLRB oscillating between minimally functional during the Obama years to completely off the rails during the Trump administration." (https://workerorganizing.org/the-history-behind-the-nlra-americas-first-modern-labor-law-1145/) Conversely, the late Professor Michael Wachter of the University of Pennsylvania Carey Law School, a pro-business economic professor, writes, "Although often viewed as a dismal failure, the National Labor Relations Act (NLRA) has been remarkably successful. While the decline in private sector unionization since the 1950s is typically viewed as a symbol of this failure, the NLRA has achieved its most important goal: industrial peace." (https://scholarship.law.upenn.edu/faculty_scholarship/493/)


As they say, beauty is in the eye of the beholder. For many of us fighting for working families and the rights of the working class in America, it feels like the time is ripe for a rethinking of American Labor Law.


The NLRA - Success or Failure? © 2023 by Shaun Francis is licensed under CC BY 4.0

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