Neither Side Satisfied by Current Labor Law

There is a growing consensus among labor scholars at universities around the nation and leaders of both unions and management that now, 50 years after it was adopted by Congress, the National Labor Relations Act is more of a handicap than an aid to good labor-management relations.

There also seems to be a consensus for either repealing the act or changing it drastically.

Dissatisfaction with the law has been voiced repeatedly at the many conferences and seminars held around the country to “celebrate” its 50th anniversary.

Once again last week, when more than 100 labor experts met at Stanford University for another “celebration” of the law’s anniversary, there were few kind words for it from any of the 26 speakers who addressed the two-day session, the theme of which echoed a recent congressional committee report arguing that the law “is being used as a weapon to obstruct collective bargaining.” The report said that “the notion that the law protects workers against discrimination because of their union views has become an illusion.”

Several speakers at Stanford noted the increase in calls from unions to either eliminate the law entirely or just ignore it.

The unions’ antagonism toward the law is based primarily on the rough treatment that they are getting these days from the conservative, Reagan-appointed National Labor Relations Board, whose five members administer the law.

Even though he was not at the conference, the most frequently quoted union leader was AFL-CIO President Lane Kirkland, who said recently that the NLRB “is now a deterrent (to collective bargaining), a weapon of the most retrograde, anti-union employers who have aggressively engaged in practices contrary to the spirit of the law.”

While the current board is more conservative than any of its predecessors over the past five decades, the decisions of all boards have been substantially influenced by the political views of the President who appointed them. That means management was usually unhappy with the ruling of liberal boards, and labor was unhappy with many of the rulings during previous Republican administrations.

Dissatisfaction with the law itself, however, now seems more widespread than ever.

Richard Martin Lyon, a partner in Seyfarth, Shaw, Fairweather & Geraldson, one of the largest labor law firms in the nation representing management, told the Stanford conference participants that, while there are wide differences between them, “we all seem agreed that the law needs a drastic face lift although we don’t agree on the (kind of) new face (that it needs).”

Lyon cited worker participation programs as an example of the kinds of problems that can develop. Lyon is an enthusiastic supporter of these programs, which are designed to encourage cooperation between management and labor and to give workers a voice in making decisions about their jobs.

Current law, he said, can seriously retard worker-participation programs in non-union companies because of a section prohibiting management from creating company-dominated unions that can be used to frustrate legitimate attempts by workers to form their own, independent unions. “I see the law on the road to becoming an anachronism by blocking (management’s financial) commitments to worker cooperation when they are most needed,” Lyon said.

He wants the law changed to allow companies to create and contribute money to worker participation programs in non-union companies. Lyon seemed to confirm the fears of many union leaders that often management uses worker participation programs as a weapon to get rid of unions or to keep them out of companies rather than for the purpose of giving them a legitimate voice in company operations.

Since Lyon also said that “the union movement is dead,” he left no doubt in the minds of neutral and pro-union delegates at the session that his ideas for giving the law a “drastic face lift” would mean even more trouble for organized labor than it now faces.

Other delegates, such as former United Auto Workers President Douglas Fraser, proposed simply reviving the fairly modest AFL-CIO labor law reforms that were passed by a House majority in 1977 but were killed by one vote in a Senate filibuster. The proposals were mostly aimed at speeding up union representation elections and legal procedures of the NLRB.

Probably the most useful aspect of the conference was a discussion of the roots of the law, which was originally known as the Wagner Act.

Abner J. Mikva, a U.S. Court of Appeals judge for the District of Columbia, stressed that the law was originally designed to actively assist workers “rather than simply allow them to wage economic war against employers.”

Mikva said the law is supposed to make the bargaining process “fair” but to do so by “favoring labor. The act is supposed to be biased.

“No one feared that . . . a John D. Rockefeller would be overwhelmed by any of his individual workers.”

It is not enough for the law to give equal treatment to unequals, Mikva said, where workers as individuals are almost always at a disadvantage in dealing with their employers.

Now, he said, Congress should re-evaluate the power balance between workers and employers and “accept as a national tenet of faith that a free and healthy trade-union movement is an integral part of democracy in the United States, just as it should be in totalitarian countries such as Poland.”

That may be an admirable goal, but unions and their allies certainly do not have the power in Congress to achieve it now and will probably not in 1988, even if the Democrats win the presidency and large congressional majorities in the elections then.

The law is also unlikely to be changed under the Reagan Administration to help employers crack down harder than ever on unions. Labor has enough friends in Congress to prevent any such action for many years to come.

But if the demands for eliminating or drastically changing the law continue to increase, Congress ultimately may make some significant and urgently needed improvements in the nation’s labor laws.

Farm Union in N.J.

When just 14 migrant farm workers in New Jersey voted last week to be represented by a union, they may have written yet another chapter in the long and largely unsuccessful effort to unionize America’s farm workers.

Farm workers are excluded from the National Labor Relations Act that gives other workers the right to form unions and reach enforceable contract agreements with their employers. And the vast majority of states, including New Jersey, have no law that specifically gives farm workers the right to form unions.

Such laws are important because, like the federal labor law, they allow workers to vote by secret ballot in government-conducted elections on whether they want union representation. If a majority votes for a union, the company and union are required by law to negotiate with each other in good faith toward a contract on wages and working conditions.

Even in California, which has the nation’s strongest and most pro-union farm labor law, organizing among farm workers has been a struggle. Unions have organized less than 10% of the state’s farm workers.

While California law specifically encourages unionization, the state’s growers have been able to substantially avoid its impact with help from the Administration of Gov. George Deukmejian. But even before Deukmejian came to the growers’ aid, during Gov. Edmund G. Brown Jr.’s pro-union approach toward the state’s farm labor law, Cesar Chavez’s United Farm Workers was growing very slowly.

Yet the effort to unionize farm workers nationwide is far from over as shown by the imaginative use of the New Jersey constitution by a government lawyer assigned by the state to assist the Agricultural Workers Organizing Committee, known by its Spanish acronym COTA.

For nearly a decade, COTA had been successful in getting farm workers to sign cards saying they wanted union representation. But the union failed to get even one grower to agree to recognize it as bargaining agent.

So the New jersey union leaders went to Richard Goldberg, assistant to the public advocate of the state’s Division of Public Interest Advocacy (itself a unique agency in America). As allowed by that state’s law, Goldberg in effect became the union’s lawyer. He found a provision in the state constitution that simply says that “persons in private employment have the right to organize and bargain collectively,” and it did not exclude farm workers as do most state labor relations laws. Before Goldberg, no one had never used that kind of very general legal provision to help farm workers unionize.

When all of the workers at the 300-acre farm of Saul Levin in Cumberland County signed union authorization cards and Levin, backed by the New Jersey Farm Bureau and all other grower associations, refused to talk with the union, Goldberg took the grower to court.

Two months ago, New Jersey State Superior Court Judge Edward S. Miller sent Levin and his son, Saul, to jail for a few hours for refusing to obey his order to negotiate with the union.

The Levins were released when they agreed to let their workers vote by secret ballot on whether they wanted a union. The election was held last week, and the 14 workers voted unanimously for the union.

There is still no sign that Levin will actually agree on a contract with the union, but Lisa Block, the union’s spokeswoman, said the court ruling was “a major breakthrough.”

“The first step is always the hardest. And now all farm workers are going to be willing to take the risk (and join the union). There are a lot of people on the verge already, and next year things (farm worker organizing) on the East Coast are going to go crazy.”

And grower Levin himself seemed to agree. If he signs a union contract, Levin said, “the idea (of unionizing farm workers) will spread like wildfire and put every farmer in Southern New Jersey out of business.”

Based on farm labor experiences in California so far, the hopes of the farm workers union are as exaggerated as growers’ fears.

But the Superior Court ruling in New Jersey could have far-reaching consequences. Goldberg said it could change the nature of farm labor organizing in New Jersey, and he is now writing a proposal for a law that will supplement the few words in the New Jersey constitution on which he has had to rely so far. Moreover, if developments in New Jersey help farm workers organize, unions may be able to take advantage of similar general clauses in other state laws and constitutions to promote unionization.

The small “first step” victory by COTA last week also indicates that, in time, there may yet be a viable nationwide union of farm workers.

There is already cooperation between COTA and the Chavez union that could lead to a merger of the two if COTA, which now has a few hundred members, grows as its leaders expect. Southern New Jersey has about 30,000 farm workers--about the number of members in Chavez’s union.

Another union, the Michigan-based Farm Labor Organizing Committee, has already started merger talks with the UFW. Like the New Jersey union, the Michigan farm labor union is operating without any specific farm labor law to assist it.

The Michigan union used a boycott to force Campbell Soup Co., and growers in the area who sell vegetables to Campbell, to create and then abide by the decisions of a non-governmental committee that will regulate their labor relations under the chairmanship of former U.S. Secretary of Labor John Dunlop, now a Harvard professor.