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"Commentary on the Kahlenberg-Marvit Article: Julius Getman"

January/February 2013 issue of Poverty & Race

Professor of Law, Univ. of Texas School of Law, JGetman@law.utexas.edu

It is time to amend the National Labor Relations Act. It has failed to meet the stated statutory goal of “encouraging the practice and procedure of collective bargaining,” and it has failed to protect the right of employees to unionize. Kahlenberg and Marvit recognize the law’s weakness and suggest strengthening it by bringing the right to organize under the Civil Rights Act. This would have the beneficial effect of increasing penalties imposed on employers who discharge or otherwise penalize union supporters. They suggest that the National Labor Relations Board administer the new approach, describing the Board as “an agency that is finely attuned to the nuances of labor law through its more than 75 years of experience handling labor disputes.”

Kahlenberg and Marvit anticipate a cultural change occurring once this new approach is tried. They see their proposed change in the law as a step towards making anti-union discrimination as culturally despised as racism. If this occurs, employers might stop opposing unions so fiercely. “Conceivably, writing labor organizing protections into the Civil Rights Act could also spawn a cultural shift in employer behavior. Employers who are found guilty of racial or gender discrimination are today seen to have done something shameful,” they write.

I favor their proposal because it would grant significant protection to employees who are now legally vulnerable to economic devastation. I do not, however, see this as something likely to have a major effect on organizing. It would not eliminate the advantages that employers now have in campaigning against unions, such as the right to make captive audience speeches and to keep union organizers off their premises. It is unlikely to alter the pro-employer bias of the courts. Nor would it be wise for unions and their supporters to anticipate this law leading to “a cultural shift in employer behavior.”

I think that the authors are too kind to the NLRB. It would, for example, have been extremely difficult for observers to note any deep understanding of nuances in the decisions of the Bush Board. If Romney had won, there is reason to believe that the Board would have become openly and consistently anti-union and anti-worker. Finding a way to make the Board less of a political battleground would itself be a significant reform.

A cultural shift in attitudes towards unions would be highly desirable. I do not believe that it can be achieved to any significant extent by using the language or applying the law of employment discrimination. It will require more sweeping changes in the law, such as prohibiting the hiring of permanent replacements in strikes and eliminating or reducing the secondary boycott prohibitions. It will also require changes in the labor movement, such as more consistent mobilizing of the rank-and-file, continuing aggressive struggle against the “malefactors of great wealth” (think Walmart and Sheldon Adelson), and making common cause with other progressive movements. There is reason to be hopeful that needed changes are in fact taking place, but the process is slow and the obstacles formidable.

Despite my criticisms, the authors are to be commended for stimulating discussion about needed changes in our dysfunctional labor laws.
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