This is the eighth article in the Judicial Amendment Project series on the history of the National Labor Relations Act. The stories in the series to date include:
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So far, we have looked at judicial amendments one at a time. But in the real world of unions and collective bargaining, judicial amendments work together to weaken the employee rights Congress created.
When Congress enacted the National Labor Relations Act (NLRA), it included a policy statement that shows it unequivocally valued collective bargaining. Section 1 says, “Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bargaining power between employers and employees.”
Congress also said, “It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”
But instead of equality of bargaining power, the judicial amendments of lockouts, striker replacement, and employer implementation of workplace terms have increased employer power while weakening union bargaining power. A study that looked at the effects of striker replacement and implementation upon impasse shows that employers have roughly twice the bargaining power that unions have when employers have both these weapons.
Section 13 of the NLRA says that nothing in the NLRA is to “be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.” However, instead of respecting the law, the Supreme Court acted as if it were a legislature and radically changed the law Congress enacted.
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In the case of collective bargaining, judicial amendments have held that if a union takes a strong position in bargaining and the employer claims that the parties are at an impasse, the employer can implement its offer. A second judicial amendment lets employers permanently replace strikers, while a third judicial amendment allows an employer to lock out its workers. Finally, a series of judicial amendments have declared that certain union bargaining weapons are just too powerful. As a result, the courts have progressively eroded union bargaining power.
A union cannot know what the employer’s strategy will be, so it has to be prepared for all contingencies. To see how collective bargaining works under the judicial amendments of striker replacement, lockout and employer implementation of workplace terms, it is important to see how all of these weapons operate together. Think of them as creating a branching tree of possible outcomes.
First, it is possible that the parties could reach an agreement and not use any of the bargaining weapons. They could, for example, reach an impasse but eventually resolve their differences, perhaps by their own efforts or by using the assistance of the Federal Mediation and Conciliation Service. This, of course, is the ideal contemplated by the statute. Two parties of roughly equal power bargain and reach agreement on the terms and conditions of employment best suited to their particular situation.
Another scenario the law clearly contemplated is that the parties bargain to impasse, the union strikes, and both parties suffer economic losses which eventually pressure them to agree. The employees lose wages and the employer loses production. As a result, they compromise on an agreement that both can live with, even though neither may view its compromise as ideal.
Now consider the many other possibilities created by the addition of implementation upon impasse, striker replacement and lockouts, including replacement of employees.
The parties may reach an impasse, the employer implements its final offer and the parties then reach an agreement, most likely by the union employees capitulating. Or the employer might lock out the employees after reaching an impasse, which may be followed by union capitulation.
The parties might reach an impasse, followed by the employer’s implementing its final offer, and the parties then failing to reach an agreement. At that point, the union might hang on or it might become moribund, leading to de-unionization – either by walking away or through decertification (an official vote by employees to remove the union as their representative).
Or the parties reach an impasse, the workers strike, the employer replaces the strikers (permanently or temporarily), the parties reach an agreement on workplace terms and on striker reinstatement, and many or all strikers are recalled to work.
Or the parties reach an impasse, the workers strike, the employer replaces the strikers (permanently or temporarily), the parties reach an agreement on workplace terms and on striker reinstatement, but few or no strikers are recalled to work, and the union eventually becomes moribund and is decertified.
Or the parties reach an impasse, the workers strike, the employer replaces the strikers permanently, and after one year, when they are no longer eligible to vote in a National Labor Relations Board (NLRB) election, a decertification election is held in which the only eligible voters are the strike replacements (also known as scabs) and the union is decertified.
Or the parties reach an impasse, the employer locks out the workers and then replaces them (permanently or temporarily), the parties reach an agreement on workplace terms and on reinstatement, and many or all the employees are recalled to work.
Or the parties reach an impasse, the employer locks out and replaces the workers (permanently or temporarily), the parties reach an agreement on workplace terms and on reinstatement, few or no employees are recalled to work, and the union eventually becomes moribund and is decertified.
In other words, there are many ways the employees can lose in this standoff under the judicial amendment rules. Even when an agreement is reached, it is likely to be less favorable to employees than under the rules Congress wrote. And while there are situations in which employees must sacrifice when the business is in financial difficulty, in many cases there is merely a shift in economic benefits from those who do the work to the wealthier owners and managers, increasing income inequality.
Employers can also lose in this game, spending so much money and time on beating the union that the business is destroyed. The Don Lee Distributor case from the Detroit area demonstrates the range of costs that pursuing an implementation on impasse bargaining strategy can visit on all parties. The case began in 1990. After a lengthy trial, the five-employer bargaining coalition was ordered to rescind the changes they had made and make employees whole for lost wages. The employers appealed up to the Supreme Court and lost at every stage. Nearly two decades later, In 2009, the employers paid their employees $41 million in backpay. As co-author Ellen Dannin has written previously:
The workers lost homes, had marriages broken, and suffered mental stress during the years the process took. No remedy can bring back those lost years or repair the emotional and personal costs. Government and society bore the huge costs of trying and deciding a case in which the hearing lasted sixty days. Eventually, the employers were forced by the outcome of the case and other pressures to sign collective bargaining agreements. At learning this, some employees wept, because they had despaired of ever seeing justice done. Bear in mind that this was a happy outcome for the employees. As bad as all this was, they did not strike, so they were not permanently replaced. They also were not locked out. The union was also able to hang on as their representative and fight to regain at least some of what was taken from them.
In other words, the judicial amendments have created so many ways that employees, unions, and, yes, employers can lose that this system violates Congress’ stated policy of restoring equality of bargaining power between employers and employees. Not only do the employees and unions lose, but we all lose as American jobs become increasingly bad jobs, with low pay, no benefits, poor working conditions and a loss of democratic citizenship.