The September Massacre and the Need for Comprehensive Labor Law Reform

Editor’s note: The following article by Cary Hammond, published in the March 6-12, 2008 edition of the St. Louis/Southern Illinois Labor Tribune, is reprinted with their permission. Mr. Hammond is managing partner at Hammond, Shinners, Turcotte, Larrew & Young, a leading St. Louis labor law firm.

Organized labor in America operates at the intersection of labor law and economic policy, both of which are ultimately determined by voters. Nowhere is this more true than at the National Labor Relations Board.

Over the years it has been my experience that union members are generally aware of the NLRB but do not understand how it works or how politicized it has become. Thus, some background is in order.

The NLRB administers and decides cases under the National Labor Relations Act. The National Labor Relations Act (“the act”) was enacted in 1935 under the leadership of President Franklin Roosevelt and is the foundation of the modern American labor movement. In passing this landmark legislation the Congress declared it to be “the policy of the United States” to encourage “the practice and procedure of collective bargaining” and the protection of workers’ “full freedom of association, self-organization, and designation of representatives” for the purpose of negotiating terms and conditions of employment.

The National Labor Relations Board consists of five members nominated by the President and confirmed by the Senate. By law, three members of the Board must be affiliated with the political party of the sitting President. The Board has great latitude in determining what the National Labor Relations Act means: what it protects and what it prohibits. Unlike courts, the National Labor Relations Board is not bound by its own earlier decisions and is subject only to limited judicial review by the federal appellate courts. Plainly, any particular group of NLRB members bent on a partisan agenda can essentially rewrite federal labor law.

Despite this potential for abuse, the NLRB basically operated without a clear partisan agenda for the first 45 years of its existence. This changed with the election of Ronald Reagan in 1980. During his first term, Reagan appointed Donald Dotson to be chairman of the NLRB. Prior to his appointment, Dotson had argued that “unionized labor relations have been the major contributors to the decline and failure of once-healthy industries” and contended that unions were destructive of individual freedom. To add insult to injury, Hugh Reilly, a veteran staff attorney for the militantly anti-union National Right To Work Legal Defense Foundation was appointed to the important position of solicitor for the NLRB.

It was therefore no surprise that during the Dotson era at the NLRB (1983-1987) many prior rulings favorable to unions and their members were overturned. (It is worth noting that after Mr. Dotson left the NLRB he went to work for Beverly Enterprises as its Vice President for Labor Relations. Beverly Enterprises has been a frequent violator of federal labor law.)

I represented unions during the Dotson era and still remember thinking at the time that no subsequent NLRB would ever be as patently and vehemently hostile to labor. I did not foresee the NLRB of George W. Bush.

Bush's NLRB

Almost all of Bush’s Republican appointees have been management labor lawyers. This is the case with Robert J. Battista who until his term expired on December 16, 2007 was NLRB chairman. (Bush has nominated him for another term.) Last September, under Chairman Battista’s leadership, the board applied an ideological wrecking ball to what is left of the National Labor Relations Act.

In a scant period of 30 days, the Board issued 61 decisions almost all of which favored employers. These decisions were generally decided on a 3-2 basis, with all three Republican board members voting against unions and workers. The scope of this assault on longstanding rights is breathtaking. All in one month, the Bush NLRB hampered the ability of unions to gain voluntary recognition, reduced the rights of striking employees, made it more difficult for illegally fired workers to obtain back pay, denied any remedy to employees terminated as a result of illegal surveillance, enhanced the ability of employers to withdraw recognition from unions, lessened the protection of “salts” and rejected remedies sought by the NLRB’s general counsel against companies repeatedly violating the law.

After the September Massacre, any union member (or any person who would like to join a union) who believes that the upcoming presidential election is irrelevant to his condition is living on Neptune.

While it is vitally important to end the domination of the NLRB by management labor lawyers, changing the composition of the Board is only a first step. Nothing short of comprehensive labor law reform is needed. The current system is broken.

The federal labor law has degenerated to the point where resisting and busting unions and discriminating against their adherents has become a mere cost of business, and not an especially expensive one at that. There are too many obstacles to organizing, pathetically inadequate penalties for violations of the law and woefully insufficient remedies to victims of those violations.

Victims of labor law violations become painfully familiar with the truth of the venerable axiom that “justice delayed is justice denied.” The September Massacre cases illustrate this point. In one case an illegally fired employee waited 18 years for a decision on the relief to which he was entitled. In another case it was determined that an employer acted lawfully in unilaterally terminating dues check-off — 13 years earlier. Considering all of this, is it any wonder that some rank-and-file members have lost confidence in a federal labor law which supposedly exists to protect their rights?

For the first time in my many years as an advocate for unions I believe that comprehensive labor law reform is a realistic possibility.

Americans have had enough of trickle down economics, tax laws resulting in CEOs paying a lower tax rate than their secretaries, job-killing trade agreements, and a health care system which leaves 47 million Americans uncovered. Because of this pervasive dissatisfaction, polls consistently show that over 75 percent believe that our country is headed in the

wrong direction. In increasing numbers and with increasing intensity Americans are calling for a new direction.

Comprehensive labor law reform would represent a transformational change in our country but changes of such magnitude rarely occur. The great civilizing advances in America have generally occurred only after a decisive presidential election. It was, for example, after Franklin Roosevelt’s landslide victory in 1932 that the National Labor Relations Act and Social Security were enacted. Similarly, civil rights laws and Medicare became a reality following Lyndon Johnson’s rout of Barry Goldwater in 1964.

In my judgment it will take a comparably decisive outcome in this November’s presidential election by an individual capable of breaking with the past and mobilizing a new majority for progressive change to create the groundwork for comprehensive labor law reform. Transformational change is within our grasp but will not be easily achieved.

Absent an all out effort by unions, their members and their supporters, an historic opportunity will have been squandered, and I have no idea when such an opportunity will again present itself. The stakes are great. We must seize the moment and do so now.