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Famous Victory: Collective Bargaining Protections
and the Statutory Aging Process, A
James J. Brudney
Fordham University School of Law, email@example.com
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James J. Brudney, Famous Victory: Collective Bargaining Protections and the Statutory Aging Process, A, 74 N.C. L. Rev. 939 (1995-1996) Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/146 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact firstname.lastname@example.org.
A FAMOUS VICTORY: COLLECTIVE
BARGAINING PROTECTIONS AND THE
STATUTORY AGING PROCESS
In this Article, Professor Brudney presents the results of his study of 1,224 NLRB adjudications and their fate upon federal court review, from 1986 to 1993. Professor Brudney analyzes the reversal and affirmance data, and identifies areas of general Board-court agreement and disagreement regardinghow the Act should be construed. In particular,Professor Brudney identifies a cluster of NLRA issues involving the survival of the collective bargaining relationship, over which the Board and courts markedly split. A closer look at recent cases presenting these issues, ProfessorBrudney argues, reveals recurrent Board-court tensions over the relativeimportance of stable collective bargaining relationshipsversus individual employee free choice ProfessorBrudney contends that by preferringemployee free choice to bargainingstability,courts are reflecting the emphasis on individual rights and freedom that pervades contemporary employment law, as well as contemporary law and society in Assistant Professor of Law, The Ohio State University College of Law. I received * insightful comments and suggestions on earlier drafts from Craig Becker, Victor Brudney, Sanford Caust-Ellenbogen, Cynthia Estlund, John Ferguson, Jack Getman, Deborah J.
Merritt, Nancy Rapoport, Nancy Rogers, Stephen Ross, Allan Samansky, David Shapiro, David Silberman, Clyde Summers, and Eric N. Waltenburg. I am grateful for the fine research assistance provided by Shalu Buckley, Jordan Burch, Corey Ditslear, Leo Fuchs, and Thomas Krebs, and also by Nancy Armstrong and Melanie Putnam of The Ohio State University College of Law Library. Zoe Oxley furnished invaluable support regarding the statistical aspects of this project. Michele Newton performed with skill and good humor the daunting task of compiling the empirical data. I alone am responsible for any remaining errors of commission or omission. The Fund for Labor Relations Studies and The Ohio State University each contributed generous financial support for this project.
generaL He further argues that the federal courts' apparenteffort to "update" the sixty-year-old Act to conform to the larger legal landscape is misguided and may bring considerablecosts.
Recent Differences Between Board and Appellate 2.
Restoring Bargaining Stability Versus Promoting 3.
"Pure" Free Choice
D. Conflict Recently Magnified
IV. DIVERGENT APPROACHES TO AN AGING LAW.......... 1018 A. Alternative Explanations Considered.............. 1021 B. Judicial Updating Described
C. Judicial Updating Questioned
Nearly twenty years ago, Grant Gilmore described American legal culture as passing through statutory middle age.2 Citing the New Deal as the major incubation period for federal legislation, Gilmore predicted that "mouldering statutes and elderly agencies" would plague our legal system in years to come.3 Gilmore's concern about the proliferation of aging statutes has been amplified more recently by other legal scholars4 and-in pointed terms-by public officials as well.5
1. Robert Southey, The Battle of Blenheim, in A TREASURY OF GREAT POEMS 690 (Louis Untermeyer ed., 1942).
2. GRANT GILMORE, THE AGES OF AMERICAN LAW
3. Id at 91.
4. See, ag., GUIDO CALABREsI, A COMMON LAW FOR THE AGE OF STATUTES 1-2 (1982) (describing our legal system as "choking on statutes" and advocating that courts be given the authority to limit or retire obsolete statutes); Jack Davies, A Response to Statutory Obsolescence: The Nonprimacy of StatutesAct, 4 VT. L. REv. 203,204-06 (1979) (proposing that legislatures act to withdraw primacy from enactments that are over 20 years old, allowing courts to reform or modify statutes after that point); Donald C.
Langevoort, Statutory Obsolescence and the JudicialProcess: The Revisionist Role of the Court in FederalBanking Regulation, 85 MIcH. L. REv. 672, 688-725 (1987) (discussing role of Supreme Court in updating banking laws enacted in 1930s).
5. See, eg., Pub. L. No. 104-88,109 Stat. 803 (1996) (abolishing Interstate Commerce Commission, established in 1887); S.141 and H.R. 500, 104th Cong., 1st Sess. (1995) (proposing to repeal Davis-Bacon Act of 1931); H.R. 246, 104th Cong., 1st Sess. (1995) HeinOnline -- 74 N.C. L. Rev. 941 1995-1996 942 NORTH CAROLINA LAW REVIEW [Vol. 74 The National Labor Relations Act (NLRA or Act)6 surely qualifies as one of the aging New Deal-era laws. Enacted sixty years ago to regulate relations between private firms and employees who seek to unionize and bargain collectively, the NLRA has remained essentially unchanged since 1947 in its approach to labor-management relations.7 In recent years, with the precipitous decline of private sector unionism,' the Act has been dismissed as largely irrelevant to the contemporary workplace9 or even as contributing to the demise of the unions it was initially enacted to protect.' 0 There have been (proposing to repeal Service Contract Act of 1962); H.R. 1756, 104th Cong., 1st Sess.
(1995) (proposing to abolish Department of Commerce, established in 1913).
6. Pub. L. No. 74-198,49 Stat. 449 (1935) (codified as amended at 29 U.S.C. §§ 151I use "NLRA" to refer to the 1935 statute as amended in 1947, 1959 and at other later dates. The 1935 enactment is referred to as the Wagner Act. The LaborManagement Relations Act of 1947, Pub. L. No. 80-101, 61 Stat. 136 (codified as amended at 29 U.S.C. §§ 141-187 (1994)), is referred to as the LMRA, or Taft-Hartley Amendments.
The Labor-Management Reporting and Disclosure Act of 1959, Pub. L. No. 86-257, 73 Stat. 519 (codified as amended in scattered sections of 29 U.S.C.), is referred to as the LMRDA or Landrum-Griffin Amendments.
7. Congress in 1947 significantly modified the original Wagner Act when it enacted the Taft-Hartley Amendments over President Truman's veto. The Landrum-Griffin Amendments of 1959 were aimed principally at regulating the internal affairs of unions.
The LMRDA effected only minor adjustments in the statutory scheme that governs conduct of unions and management during the organizing campaign and the bargaining process. See ARCHIBALD Cox ET AL., LABOR LAW CASES AND MATERIALS 97-98 (11th ed. 1991); ROBERT A. GORMAN, BASIC TEXT ON LABOR LAW UNIONIZATION AND COLLECTIVE BARGAINING 5-6 (1976).
8. The proportion of the private nonagricultural workforce represented by unions was as high as 35% in the 1950s, but fell to 20% by 1980 and to 11.2% in 1993. See FACrFINDING REPORT ISSUED BY THE COMMISSION ON THE FUTURE OF WORKERhereinafter DUNLOP COMMISSION REPORT]; Samuel
MANAGEMENT RELATIONSEstreicher, Labor Law Reform in a World of Competitive Product Markets, 69 CHI.-KENT L. REv. 3, 9-10 & n.23 (1993).
9. See Estreicher, supra note 8, at 9-14 (arguing that our decentralized adversarial model of labor relations is incompatible with pressures of modern, globally competitive product markets); Joel Rogers, Reforming U.S. Labor Relations,69 CHI.-KENT L. REV. 97, 97-110 (1993) (arguing that the New Deal system of labor relations cannot survive the elimination of closed national economies and of large, dominant, stable firms); see also supra note 8, at 10-16, 21-23 (noting dramatic changes in
DUNLOP COMMISSION REPORT,occupational structure of U.S. workforce, including shift to professional and service jobs
and to temporary and part-time work); WILLIAM B. GOULD IV, AGENDA FOR REFORM:
3 (1993) (stating that
THE FUTURE OF EMPLOYMENT RELATIONSHIPS AND THE LAWdecline of private sector unions is far more attributable to market factors than to the law itself).
10. See Michael H. Gottesman, In Despair,Starting Over: Imagininga Labor Law for Unorganized Workers, 69 CHI.-KENT L. REV. 59, 62-63 (1993) (stating that Act fails to protect employees who seek to unionize against employer reprisal, and fails to protect employees who choose to strike against being permanently replaced); Paul Weiler, Striking a New Balance: Freedom of Contract and the Prospects for Union Representation, 98
HeinOnline -- 74 N.C. L. Rev. 942 1995-1996 A FAMOUS VICTORY1996]
numerous calls to amend the statute in modest or far-reaching fashion, emanating from legislators and legal academics as well as interested parties."
Amidst the chorus of criticism, a significant overlooked dimension of the NLRA's current utility or lack thereof involves the interaction between the National Labor Relations Board (NLRB or Board) and the federal appellate courts. The NLRB, charged with implementing statutory protections and prohibitions, acts almost exclusively through adjudication. 2 The courts of appeals are authorized to review, enforce, and set aside the Board's decisions. 3 This Article begins an empirical and analytical examination of tensions that exist between the NLRB and the appellate courts over the contemporary meaning of the Act.
There is ample reason to focus attention on decisionmaking by the expert agency and the primary reviewing courts as a means to HARv. L. REV. 351, 358-63 (1984) [hereinafter Weiler, New Balance] (criticizing Act's prohibitions and remedies as inadequate to deter employers from unlawfully refusing to
bargain in good faith with newly certified unions); Paul Weiler, Promises to Keep:
Securing Workers' Rights to Self-Organization Under the NLRA, 96 HARV. L. REV. 1769, 1776-93 (1983) [hereinafter Weiler, Promises] (stating that Act's provisions are inadequate to deter employers from unlawfully discharging union supporters during organizing campaigns); Cathy Trost & Leonard M. Apcar, AFL-CIO ChiefCalls Labor Laws a 'Dead Letter', WALL ST. J., Aug. 16, 1984, at 8 (reporting that AFL-CIO President called federal labor laws a "dead letter" and suggested workers may be "better off with the law of the jungle").
11. For recent examples of proposed legislative reform, see, e.g., National Right to Work Act, S. 581 and H.R. 1279, 104th Cong., 1st Sess. (1995) (proposing to modify § 8(a)(3) to bar contracts between unions and management that require union membership as a condition of employment); Teamwork for Employees and Management Act, S. 295 and H.R. 743, 104th Cong., 1st Sess. (1995) (proposing to modify § 8(a)(2) to facilitate employer-initiated collaborative efforts); S. 777, 104th Cong., 1st Sess. (1995) (proposing to provide equal time on the employer's premises for unions to present information to employees during organizing campaigns); S. 778, 104th Cong., 1st Sess. (1995) (proposing to require that Board hold expedited elections in 30 days upon a showing of interest by 60% of employees); Workplace Fairness Act, S. 55 and H.R. 5, 103d Cong., 1st Sess.
(1993) (proposing to add new § 8(a)(6) that would ban the permanent replacement of strikers). For reforms proposed by legal academics, see, e.g., Estreicher, supra note 8, at 35-46 (proposing modest reforms); Gottesman, supranote 10, at 68-96 (proposing extensive reforms). See also Matthew W. Finkin, The Road Not Taken: Some Thoughts on Nonmajority Employee Representation, 69 CHi.-KENT L. REv. 195, 199-218 (1993) (proposing "members only" representation as an alternative to exclusive representation based on majority support); Gould, supra note 9, at 151-79 (proposing long list of changes).
12. The Board has long had rulemaking authority under the NLRA, see Pub. L. No.
74-198, § 6, 49 Stat. 449, 452 (1935) (codified at 29 U.S.C. § 156 (1994)), but it exercised this authority for the first time only in 1989, American Hosp. Ass'n v. NLRB, 499 U.S.
606, 617-20 (1991).
13. Pub. L. No. 74-198, § 10(e), (f), 49 Stat. 449,453 (1935) (codified as amended at 29 U.S.C. §§ 160(e), (f) (1994)).
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