79 Pages Posted: 15 Aug 2009 Last revised: 26 Aug 2017
Date Written: October 23, 2009
In September Massacre: The Latest Battle in the War on Workers' Rights under the National Labor Relations Act, reprinted in 'A Fresh Start for A New Administration: Reforming law and Justice Policies' (2008), I focused on several of the sixty-one decisions issued by the George W. Bush-appointed National Labor Relations Board (Bush II Board) issued in September 2007. I showed that those decisions fit into an historic trend of weakening the NLRA’s protective power - a trend embraced by all three branches of government that has legally and economically disempowered unions and thus weakened their capacity to protect workers. I also suggested that the effect of this government action has been to repress rather than recognize the fundamental human rights guaranteed under NLRA Section 7.
This article expands on that analysis by giving a retrospective of several more of the most controversial Bush II Board decisions. I argue that, notwithstanding the fundamentally progressive nature of Section 7's protection of the workers' right to self-organize and to band together for mutual aid or protection - rights that are guaranteed by the correlative duty on employers to recognize unions - the Bush II Board's decisions can be placed in the context of a larger trend among the other government branches to disempower workers. In particular, government action has narrowed the definition of employee, shrunk the contours of Section 7, diluted employees' economic weapons, and weakened the NLRA's remedial framework.
This article uses examples of government action to show how these working class rights have been diminished. In the initial section entitled The Vanishing Employee, I focus on two areas: the Bush II Board's willingness to read three subclasses of employees (salts, students, and the severely disabled) out of the NLRA; and the willingness of all three branches of government to broaden the statutory exemptions (Congress's Taft-Hartley amendments, which created the supervisory exemption; the Supreme Court’s Kentucky River decision, which broadens that exemption; and the Bush II Board’s Oakwood Trilogy, which further broaden that exemption). In the following section, I illustrate the shrinking contours of Section 7 with three examples. First, I examine the extent to which the Supreme Court’s Lechmere/Babcock doctrine - employers are privileged to post their property against nonemployee union organizers - and the Bush II Board’s recent treatment of salts work together to curtail employees' right to self-organization. I then review the oscillating history of employees’ right to insist upon a witness during an investigatory meeting, arguing that these Weingarten rights are essential to protecting the nonunionized workplace. I then examine the Bush II Board’s Register Guard decision to discuss the extent to which employees' right to self-organization has been curtailed by the employers’ discriminatory control over e-mail access. I round out the discussion with a review of the case law that has diluted the right to strike, has weakened the NLRA’s remedial framework, and has undermined the Board’s long-standing doctrine of voluntary recognition.
I conclude with several observations and recommendations. The benefits of the NLRA's formal recognition of unions have proven fleeting: The protective power of the NLRA has been eroded by legislative amendment, judicial 'amendment' and even by the Board itself - the very agency tasked by Congress with protecting workers' rights. The trend reveals three branches of government willing to erode the protections provided for workers using the very law that was intended to safeguard those protections. But to re-empower workers, more than simple legal reform is necessary. Educating the public about the needs of workers, coupled with fundamental reform of the labor movement especially at the level of political and economic strategizing, are needed.
Suggested Citation: Suggested Citation
Lofaso, Anne Marie, The Persistence of Union Repression in an Era of Recognition (October 23, 2009). 62 Maine Law Review 199 (2010). Available at SSRN: https://ssrn.com/abstract=1449552