By Michael Barone
Another subject today.
Labor law. Specifically, Adtranz
ABB Daimler-Benz Transportation, N.A.
v. NLRB, decided by the United States
Court of Appeals last June 26. Adtranz
is a company that refurbishes rail cars for
the Bay Area Rapid Transit system in California. In 1998 the machinists' union tried
to organize Adtranz's employees. In a December 1998 election the employees voted
135-79 against the union–a typical result:
unions lose most such elections. The union
charged the company committed an unfair labor practice because the company's
1997 employee handbook contained rules
against abusive language. In May 2000
the National Labor Relations Board ordered Adtranz to revise its handbook to
rescind "overly broad" language. It apparently accepted the union's argument
that abusive language, vulgar expletives,
and racial epithets are "part and parcel of
the vigorous exchange that often accompanies labor relations."
Such a ruling, of course, collides
with a company's responsibilities under
federal laws passed long after those governing union-management relations under
which, in the Court of Appeals' words,
"employers are subject to civil liability
should they fail to maintain a workplace
free of racial, sexual, and other harassment.
Abusive language can constitute verbal
harassment triggering liability under state
or federal law." The lawyer for the union
argued that previous cases regarded it
as protected speech when "a union representative grabbed his crotch and said, 'Suck my d---, you b----.' "
The judges would have none of this.
As recounted by Michael Lynch in an article in Reason magazine, Judge David Sentelle asked the company lawyer, "Can you
imagine counsel for a large employer today
not advising his client to put in" a rule like
this one? Later, Sentelle asked the NLRB's
lawyer, "What would be a rule that they
could put in their handbook that somebody with less than a law school education
could read and make some kind of sense
of ... [that] you would say would survive what the Board did?" In a 3-0 decision, written by Judge Sentelle, the Court
said, "It is preposterous that employees
are incapable of organizing a union or exercising other statutory rights under the National Labor Relations Act without resort to abusive or threatening language."
Contending here are two different versions of labor law–one from the 1930s and 1940s, one from the 1980s and 1990s. The
earlier version is about unions, and how
they can organize workers at companies:
This was the labor law I took at Yale Law
School in the 1960s. Workers are seen
as horny-handed, uncouth, perhaps foul-mouthed men who can be expected to behave in a rough, even violent, fashion;
the important thing is that they should be
represented by a union, to have protection
against exploitation by management–exploitation that seemed inevitable in the
high-unemployment days of the 1930s.
The Clinton-appointed NLRB took this
antique view when it held that a rule
against abusive language was an unfair
labor practice, hurting union organizers.
But the NLRB and unfair labor practices are not what employment law is about today. People who practice employment
law advise employers how to deal with the
civil rights laws, laws against sexual and
other forms of harassment, the Americans
with Disabilities Act. They tell employers
to adopt certain rules and enforce them so
that they will have a "safe harbor" against
lawsuits from employees and former employees. Only 9 percent of private sector workers were union members in 1999, concentrated in a few declining-employment industries like autos and steel, plus the
building trades. For years the only growth
in union membership has been among
public sector employees, 37 percent of whom
were union members in 1999. But they are
not covered by the NLRB and the old-fashioned labor laws.
The current leaders of the AFL-CIO have
tried very hard to increase union membership among private-sector employees. But as Mickey Kaus has shown, in his
kausfiles.com Web site, those efforts have
been almost entirely unsuccessful. Even
so, reporters, relying primarily on union
sources, are constantly writing hopeful
stories about union organizing efforts;
Kaus's most recent example was two New
York Times stories about the United Auto
Workers' attempt to organize Nissan's
plant in Smyrna, Tenn. But the UAW lost
the vote this month by a 2-1 margin–the same margin by which it was beaten in 1989.
Evidently few workers see a need to
be protected by unions from the powers
of management. This makes some sense:
Union dues cost members money (and a
very large share of dues money is spent on
the union's politics, which may not be the
member's), and in a high-employment,
high-skill economy employees are not at
the mercy of managements as they were
in the low-employment, low-skill 1930s.
Liberal writers have assumed for many
years that labor unions are necessary to
the functioning of a decent advanced economy. Union membership as a percentage of the civilian work force rose from 15
percent in 1935, the year the National
Labor Relations Act was passed, to a peak
of 28 percent in the 1950s. And those were
days when almost all union members were
in the private sector. Today private-sector
labor union members amount to 7 percent
of the workforce.
Any relevance here to the war against
global terrorism? Perhaps. Franklin Roosevelt, a strong backer of unions, took pains to speak out against strikes in his wartime
fireside chats, even as he fashioned policies that encouraged union membership in wartime industries. Big labor was in
many ways as important a part of the war
effort as big government and big business.
In postindustrial America things are different. The AFL-CIO issued a rousing statement supporting the government's
war against terrorism, and some union
members will surely play heroic and useful roles in the war effort. But the place of unions in our society is not what it was
in the 1940s.
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