A Labor Perspective

Boston College Law Review Volume 20 Issue 1 Number 1 Article 3 11-1-1978 A Labor Perspective Elliot Bredhoff Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Labor and Employment Law Commons Recommended Citation Elliot Bredhoff, A Labor Perspective, 20 B.C.L. Rev. 27 (1978), http://lawdigitalcommons.bc.edu/bclr/vol20/iss1/3 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact . LABOR LAW REFORM: A LABOR PERSPECTIVE ELLIOT BREDHOFF * In I9_;5 Congress charted the course of this nation's labor policy by passing the Wagner Act. This Act declared that workers have the right to unionize, to engage in collective bargaining, and to be free from unfair labor practices. Sadly, after 43 years, the promise of the Wagner Act remains a hollow one for millions of Americans. Experience has proven that the National Labor Relations Act, in its present form, contains fatal defects which prevent the policies of the Act from being fully brought to life. Built-in delay, inadequate remedies, and other weaknesses have thwarted the protections ostensibly provided by the NLRA. Indeed, the Act has become a snare and a delusion. Workers seeking to exercise their rights under the Act have been victimized by firings and other employer unfair labor practices. For thousands of workers, the freedom and security promised by our labor laws have been replaced by fear, insecurity, and deprivation. The labor reform bills, as passed by the House of Representatives and filibustered to death by the Senate, contained several of the improvements most needed in the Act. The bills were designed to ensure that the rights already contained in the NLRA would be enforced through both prompt and fair procedures, and adequate remedies for violations of the Act. Now, after the great filibuster, we are back to where we started. But labor law reform is not dead. The fundamental issues raised by the congressional debates remain for future solution. I believe that three issues which Mr. Kramer and I have chosen to discuss—equal access, injunctive relief, and the make-whole remedy—along with a number of other issues will continue to inspire sharp debate until resolved by a new labor reform bill. I. EQUAL ACCESS There is nothing novel in the suggestion that employees have a right to effective access to the message of union organizers. As recently as this past term, the Supreme Court, in Beth Israel Hospital v. NLRB,' confirmed that the right to self-organization protected by section 7 of the Act depends on the correlative right to effective access to union information.' However, Copyright © 1979 by Boston College Law School. * Mr. Bredhoff is a member of the firm of Bredhoff, Gottesman, Cohen & Weinberg in Washington, D.C. He is General Counsel to the Industrial Union Department, AFL-C:10, and Special Counsel to the United Steelworkers of America, AFL-C10,CLC. Mr. Bredhoff wishes to express his gratitude to his colleagues Jeffrey L. Gibbs and Jeremiah A. Collins fOr their invaluable assistance in the preparation of this article. , 98 S. Ct. 2463 (197H). 2 The Beth Israel Court maintained that the Supreme Court has long accepted the Board's view that the right of employees to self-organize and bargain collectively established by § 7 of the NLRA ... necessarily 27 BOSTON COLLEGE LAW REVIEW 28 [Vol, 20:27 while the Board and the courts have recognized the importance of access in the abstract, they have severely limited the ability of unions to carry their message effectively to employees. In a series of decisions, unions have been deprived of the most meaningful channels of communication on the basis of mistaken assumptions concerning the availability of alternative channels of communication. The process of erosion began in 1956 with the Supreme Court's decision in NLRB v. Babcock & Wilcox Co." There, the Supreme Court., which in Republic Aviation Corp. v. NLRB had upheld the right of employees to distribute union literature on company property,' refused to adopt the same approach with respect. to distribution by nonemployee union organizers. The basic legal principles enunciated in Babcock & Wilcox were sound. -Hie Court, recognizing that the right to organize necessarily gives rise to a right to learn about a union from nonemployee organizers," held that solicitation by organizers could be prohibited by an employer only if reasonable efforts by the Union through other available channels of communication will enable it to reach the employees with its message ...." 7 Yet, the Court proceeded to drain that. statement. of meaning by assuming, without empirical support, that other available channels should be adequate to enable a union to reach employees with its message in virtually every instance, except where employees are inaccessible due to the location of a plant and the living quarters of employees!' Based on this assumption, the Court, with reference in general and uncritical terms to "[t]he usual methods of imparting information," and "[t]he various instruments of publicity,"" found alternative channels of communication to be adequate in Babcock & Wilcox. Notably absent in Babcock & Wilcox was any attempt to appraise the extent to which alternative channels of communication actually enabled the union to encompasses the right effectively to communicate with one another regarding self-organization at the johsite." 9. ... [Section 7] organization rights are not viable in a vacuum; their effectiveness depends in some measure on the ability of employees to learn the advantages and disadvantages of organization from others. Early in the history of the administration of the Act the Board recognized the importance of freedom of communication to the free exercise of organization rights. 98 S. Ct.. at 2469 & n.9 (1978) (quoting Central Hardware Co. v. NLRB, 407 U.S. 539, 542-43 (1972)). ' 351 U.S. 105 (1956). 324 U.S. 793 (1915). Id. at 805. This right is limited, however, to oral solicitation during nonworking lime, and distribution of literature during nonworking- time in nonworking areas, See Beth Israel, 98 S. Ct. at 2469 & 11,10. An employer can overcome these solicitation and distribution privileges "by a showing of special circumstances which make [a restriction] necessary to maintain production or discipline." /d. at 2469, " 35] U.S. at 113. Id. at 112. at 113. " Id . See also id. at 107 November 19781 LABOR PERSPECTIVE 29 reach employees in a meaningful and effective manner. Thus, while the Court claimed to he striking a balance between property rights and organizational rights in Babcock & Wilcox,'" it. did so without considering the actual impact its ruling would have upon organizational rights. In several cases since Babc (...truncated)