How Obama could fix labor law.

The law, lawyers, and the court.
Aug. 29 2008 6:47 AM

How Obama Could Fix Labor Law

A Labor Day gift to workers with bipartisan trimmings.

Union Ballot. Click image to expand.
Boeing workers vote on a labor contract

This Labor Day marks yet another year in which the five-decade-old decline of organized labor as a representative of American employees continues almost unabated. The 73-year-old National Labor Relations Act, the principal legal framework for resolving disputes about the forming of unions, is in complete disarray. It's been tattered by bad appointments to the National Labor Relations Board and by long delays in resolving the elections that determine union representation and charges of unfair labor practices brought by employees. These delays make it too easy for employers to intimidate and coerce workers, including by dismissing them for organizing. And this in turn diminishes employee interest in unions and thus undercuts the right to collective bargaining they are supposed to enjoy.

Democrats and Republicans (with their respective labor and management allies) are in a standoff about how to remedy the law. That situation is unlikely to change even if the Democratic Party swells its majority somewhat in Congress and recaptures the White House in November. Democrats, with near unanimity, support a bill, sponsored by organized labor and called the Employee Free Choice Act, that would provide for unions to be recognized on the basis of authorization cards signed by employees rather than the secret-ballot elections now provided for by the NLRA. Republicans decry this initiative, arguing that the current elections are sacrosanct. Even assuming Sen. Barack Obama wins the presidency in November, if the Senate remains prey to filibuster with fewer than 60 Democrats, Republicans will be in a position to block the bill from across the aisle from becoming law. The Democrats' view is preferable to the status quo, but there is a better approach that might occupy bipartisan common ground—an approach for which Obama is well-known, though he hasn't championed it in this way yet.

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Secret ballots to resolve union representation rights are the way to go, and Obama should meet the Republicans halfway by saying so—and then add this all-important coda: Elections should continue only if the law ensures that voting is conducted expeditiously—for instance, within one or two weeks of the filing of a union's petition seeking recognition. This is the case in Canada, whereas in the United States, the resolution of union drives currently takes months and sometimes years. Quick elections are the key to meaningful reform because delay is the principal way in which labor law stacks the deck against employees. It allows employers to engage in one-sided anti-union campaigns of intimidation and coercion, with little possibility for remedy.

The delay is caused by the NLRB itself as well as obdurate employer behavior. Perhaps, as Obama suggested to the British multinational Tesco, employers should voluntarily agree to expedite NLRB elections on their own. I have acted as an independent monitor to hear employees' complaints about unfair treatment during a union-organizing campaign, in a system devised privately by another British multinational firm operating here in the United States. In my experience, the process can take two to four weeks from start to finish.

But that privately devised solution is a rarity. And until most of business moves toward such procedures, Congress must make them address complaints quickly by imposing time limits for the NLRB is to issue a decision about whether to hold a union election or reinstate unlawfully dismissed workers. The agency's action on election disputes should be final and unappealable so that workers and management can get on with collective bargaining promptly. That there are no such mandates currently constitutes the heart of what ails American labor law.

Other reforms are also needed. For instance, the law should provide that unions have the right to communicate and address employees on company property. Today, only employers may do so. The NLRB must also be given the authority to punish companies through fines that double or triple the amount of back pay owed to workers who are illegally dismissed or demoted. The law could also spur collective bargaining with a provision for arbitration if labor and management are unable to agree on their own.

Then there is the composition of the NLRB. A Democratic president, if we next have one, should make appointments that are freer from partisan pressure from either side than they have been during the past decades. At the moment, board members are frequently reluctant to act promptly, and thus avert the crisis for union recognition caused by delay, because of the fear that their vote will be unpopular and diminish their chances of being reappointed. This has been true in both Democratic and Republican administrations. The next president should address this weakness by recruiting nominees from all parts of the country, not just the Washington-insider circle that has come to dominate federal administrative agencies. Also, appointees should be limited to one eight-year term. In this way the very best people will come to Washington, willing, like Cincinnatus, to return to their homes when their appointment ends.

These reforms would skirt an unnecessary and divisive debate about the secret-ballot election and marshal the support of Congress' center. Obama has pulled off such feats in his career as a community organizer and politician. If he can pull off this one, we might actually achieve the long unrealized objectives of the National Labor Relations Act more than 70 years after its enactment. Better late than never.

William B. Gould IV, chairman of the NLRB in the Clinton administration, is a Stanford University law professor specializing in labor law. He is the author of Labored Relations: Law, Politics, and the NLRB—A Memoir.