Labor: Game Wardens for Dinosaurs

It violates First Amendment rights to force people to pay union dues that are used to support political candidates or causes with which they disagree. The U.S. Supreme Court said that in 1988. The decision was written by its most liberal member, William Brennan.

So why did it take George Bush until April 13, 1992, in the middle of a tough re-election campaign, to 1) issue an executive order requiring all government contractors to remind employees of their rights; 2) instruct the Department of Labor to impose new record-keeping regulations for unions, making it easier to verify what percentage of union dues go to political candidates and causes; and 3) urge the National Labor Relations Board to adopt expedited procedures to deal with the backlog of 300 cases of individuals who have had their constitutional rights violated?

Round up the usual suspects. President Bush is a busy guy. With a lot of things to do. And, until the need for re-election beckoned, domestic issues just didn't grab his attention like the fall of the Berlin Wall, the reunification of Germany, the breakup of the Soviet Union, not to mention Operation Desert Storm.

But what have the NLRB and its general counsel, Jerry Hunter, been doing for the last four years to protect these employee rights? They certainly can't use foreign policy as an excuse. And, unlike the Department of Labor, the NLRB doesn't take orders from the president. It is an independent agency whose primary function is to protect the individual rights of employees.

As its general counsel, Hunter plays a major role in shaping NLRB policy because of the enormous discretion he possesses in deciding which cases to prosecute. And the fact is that the NLRB and Bush appointee Hunter have not been doing much to protect the First Amendment rights of individual employees. So what is their excuse?

It's easier to understand if you think of labor unions as dinosaurs. All the signs are there—the lumbering gait, the bloated countenance, the musty smell of creatures living beyond their time, destined for extinction. And think of the NLRB and Hunter as game wardens who believe their prime purpose is to protect and preserve the dinosaurs as the endangered species they are.

The wardens are fighting a losing battle. Before national labor laws were passed in the 1930s, only 11 percent of the private work force belonged to labor unions. After the creation of the NLRB, union membership soared to 23 percent of the private work force in 1937 and 35 percent in the early 1950s at the height of the Korean War. After that, it was all downhill: 27 percent in 1970; 22 percent in 1980; and today, less than 12 percent. Before the turn of the century it will be under 10 percent.

The decline is not only statistical. The recent capitulation of the United Auto Workers in its five-month strike against Caterpillar is vivid proof. The UAW folded at the threat of permanent replacements for the strikers because, if it hadn't, scores of Caterpillar workers were going back to work to save their jobs in defiance of their union. They weren't about to learn the hard way that a union's only weapon, a strike, can be hazardous to your job when your employer uses the other side of the blade—giving your job to someone who wants it more.

Herein lies the explanation for what the NLRB has been doing for the last four years—fighting a rear-guard action to slow the decades-long decline in union membership. (A decline, by the way, not yet matched by a similar decline in the number of NLRB employees.) Understandably, making it easier for employees to assert their First Amendment rights and more difficult for unions to spend employee dues on their favored political candidates and causes is not high on the agenda of the NLRB or its general counsel.

What is? Maintaining a traditional adversarial relationship between companies and workers is very important. A case in point is the attempt by General Counsel Hunter to declare illegal the growing trend in American industry toward greater employee involvement in decision making.

Hunter claims in a complaint against Electromation Inc. that volunteer employer-employee action committees devoted to single topics such as a communication network, a no-smoking policy, an attendance-bonus program, and absenteeism are illegal under federal labor law. Such employer-employee committees are, this reasoning goes, akin to company-dominated labor unions and would undermine the traditional adversarial nature of management-labor relations required by our national labor law. Hunter has already won at the trial level, and the case is now on appeal to the NLRB, which heard oral arguments late last year.

Hunter's decision to prosecute Electromation is significant because it betrays a bureaucratic mindset, a blinkered view of an adversarial model of labor relations as the only acceptable one. It is an attitude as out of date as the dinosaurs Hunter is striving to save.

It is a myth that American industry is not competitive in the world economy. While labor unions were declining in the 1980s, American productivity in manufactured goods was increasing 3.1 percent a year, faster than in European countries and the same rate as in Japan, which started from a much lower base. During that same period, U.S. manufacturing labor costs declined 7 percent while in the eight other top industrial economies, including Japan, labor costs rose by more than 45 percent. Indeed, our so-called trade deficit is largely made up of automobiles and imported oil; in everything else, from computers to aircraft, semiconductors, medical instruments, communications, and chemicals, the United States is, as Forbes recently described it, the world's most competitive economy. Our trade surplus with Europe alone was $16 billion, and we export more to Japan than we do to any European country.

Worker involvement has played an important role in this turnaround in American manufacturing productivity. It is not the only reason, to be sure, but a vital component nonetheless, whether in the form of Japanese-style quality circles, productivity committees, or the other myriad forms that worker empowerment on the factory floor has taken. Hunter wants all this to end. Then we can return to the confrontational labor relations that characterized earlier decades when unions had more members, U.S. companies did not face foreign competition, management and labor treated each other as enemies, and the NLRB was not yet preoccupied with institutional self-preservation.

Rolling back employee involvement and improved U.S. productivity are not Hunter's only goals. He also seeks to make it easier—and penalty free—for union supporters to threaten managers with bodily harm, even death.

In a case involving Precision Window Manufacturing, Hunter filed a complaint seeking the reinstatement of a union supporter who, in a workplace altercation, threatened to kill his supervisor. Escorted from the plant, the supporter vowed to return at the end of the shift to carry out his threat. And return he did, waiting in a car outside the factory gates. Police were called, and they prevented the employee from taking further action. No harm, no foul, claimed Hunter, and he persuaded the NLRB to reinstate the union supporter and give him a second chance.

"A second chance at what?" is a legitimate question for the threatened supervisor and his company. Hunter doesn't care. Dinosaurs need all the protection they can get.

Cynics might question whether George Bush really cares about the First Amendment rights of employees or whether his executive order simply marks another election-year conversion. After all, unions support Democrats more than Republicans.

And the fact is, George Bush cannot undo the last four years of sitting on his hands and watching the NLRB and Hunter sit on theirs, leaving employees and their First Amendment rights unprotected. But Bush can do something a lot more concrete than simply begging the NLRB to adopt more expeditious procedures for handling workers' complaints about union dues. He can ask for Hunter's resignation as general counsel.

As Leo Amery said on the floor of Parliament in May 1940, quoting Oliver Cromwell and urging Neville Chamberlain to resign as prime minister: "You have sat too long for any good you have been doing. Depart, I say, let us have done with you. In the name of God, go!" It is a message that many of the members of the NLRB would do well to heed.

Contributing Editor Michael McMenamin is a lawyer with the Cleveland-headquartered firm of Walter, Haverfield, Buescher & Chockley.