Changes in U.S. workforce put role of National Labor Relations Act into question


The National Labor Relations Act (NLRA), celebrating its 75th anniversary this year, prompts a look at its continued place in the American workforce.

“Administered by a five-member board appointed by the president, the NLRA has had a colorful and controversial history,” says Marion Crain, JD, the Wiley B. Rutledge Professor of Law at Washington University in St. Louis.

But changes in the American workplace and other factors raise the question of how the NLRA will adapt in the future.

The NLRA rose out of the Depression, a period of high unemployment, severe economic distress and widespread industrial strife. Signed into law by President Franklin D. Roosevelt in 1935, the act guaranteed workers the right to organize unions, to bargain collectively with their employer through representatives of their choosing, and the right to participate in other concerted activities for mutual aid or protection, including strikes.

“Few statutes evoke stronger emotion on the part of management, workers and organized labor,” Crain says.

The act was designed to promote industrial peace by channeling labor disputes into collective bargaining, to balance power between individual employees and employers organized in the corporate form and to inject democracy into the workplace at a day-to-day level. Throughout its history, the tension between these goals has resulted in controversy about all aspects of the act.

“Legal debate has ensued over the scope of protected activity — whether the means or objectives of some collective worker activities are so disloyal or so harmful to employer property interests in the management of the business that they should not be protected,” Crain says.

“The act’s notoriously weak remedies, the politicization of board appointments, which has resulted in the board being forced to operate with fewer than five members, and disagreement over statutorily acceptable routes to select a majority representative are other issues,” she says.

Over the course of the act's history, the American workforce has changed.

Union density has declined precipitously. In 1954, 35 percent of the American workforce covered by the NLRA was unionized; in 2010, only 12.3 percent of the workforce covered by the NLRA is unionized.

Union strength in the public sector, however, has grown and continues to grow (37.4 percent of public sector workers are unionized, as compared with 7.2 percent of private sector workers), and public sector union members now outnumber private sector union members.

“Debate rages over the reasons for union decline, with many casting at least part of the blame upon the NLRA and its interpretation and administration by the board and the courts in directions that are hostile to organized labor's interests,” Crain says.

“But structural factors also play a powerful role, including the shift from an industrial society with its heavily-unionized manufacturing base to a service and information society where union density has historically been low, the advent of new labor-saving technologies that facilitate labor outsourcing, the globalization of work, the hardening of employer resistance to unionization and the growth of the ‘union-free’ consultant industry,” Crain says.

Crain says other factors impacting union density in the U.S. are:

* shifting cultural norms and strengthening of the American commitment to individualism;
* the growth of statutory protections for individual workers outside the labor law context;
* a more diverse workforce; and
* bureaucracy and complacency among union leadership.

The continuing relevance of the NLRA will depend on whether the board can adapt it to address the shifting labor market, the now often boundary-less workplace, new methods of organizing deployed by unions seeking to reinvent themselves, and increasingly aggressive forms of employer resistance.

“We may be able to learn from other countries that possess a more robust union presence, both in the workplace and in politics through a Labor Party,” Crain says. “There may also be other forms of worker representation besides labor unions that could be effective in affording workers a voice and some measure of economic power in the workplace."

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