Crain-Mountney, Marion

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Volume 89 Issue 4 Article 5 June 1987 Has Labor Law Failed--A Rejoinder to Richard Trumka Marion Crain-Mountney West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Labor and Employment Law Commons Recommended Citation Marion Crain-Mountney, Has Labor Law Failed--A Rejoinder to Richard Trumka, 89 W. Va. L. Rev. (1987). Available at: https://researchrepository.wvu.edu/wvlr/vol89/iss4/5 This Symposium is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. HAS "LABOR LAW" FAILED? A REJOINDER TORICHARD TRUMKAMARION CRAIN-MoUNTNEY*It is no accident that Richard Trumka assigned to his speeches the provocativetitle, Why Labor Law Has Failed. Although this title had the desired effecton me (as a labor law teacher, I have an obvious vested interest in the continuingvalidity of what I teach), I found the title misleading. Trumka's comments aredevoted exclusively to a condemnation of the current National Labor RelationsBoard (the Board) and its decisions. Trumka's narrow focus prevents him fromdemonstrating that "labor law," as a whole, has failed. Consequently, his ar-guments do not support his proposal that we ought to dispose of the baby (theNational Labor Relations Act (the Act)) along with the bathwater (the currentBoard).Trumka's criticism seems to be as follows: While the philosophy and goalsof the National Labor Relations Act and the set of engraftments (judicial andadministrative) which we understand to comprise "labor law" are laudable,achievement of these goals has been frustrated through the application of laborlaw by the nonprogressive thinkers (otherwise known as conservatives) who pres-ently serve on the National Labor Relations Board. Trumka states, for example,that the Act "promises but does not deliver" protections to labor, that it "foster[s]false expectations," and that society will pay a price for "perverting the dreamof the progressives."' Trumka implicitly concedes that although the federalizationof labor law was beneficial to labor's goals when a liberal administration was inpower, centralized federal control over labor policy is unacceptable to labor whenit is exercised by a powerful and conservative institution like the Reagan Board.Therefore, Trumka urges, labor law as we know it should be abolished, and laborshould wage its battles in the state and local political arenas. In short, Trumkaadvocates a return to pre-Wagner Act days: deregulation and the consequent trans-fer of all labor disputes to the state courts.Trumka's bitterness and frustration leak out from between the lines and aroundthe margins of the transcriptions of his speeches. His comments resound withfear and anger: fear born of the knowledge that a significant and powerful ma-jority of the American people no longer seem to find the unfettered operationof the free market system socially unacceptable, and anger because, in his view,unions are shackled by a legal structure which no longer operates to aid laborin overcoming the power imbalance between labor and capital.Trumka's ultimately loses his struggle with his emotions. His comments de-generate to a thinly veiled threat of violence on behalf of organized labor if the* Assistant Professor of Law, West Virginia University College of Law. B.S., 1980, CornellUniversity; J.D., 1983, U.C.L.A.I Trumka, Why Labor Law Has Failed, 89 W. VA. L. REv. 881 (1987).1Crain-Mountney: Has Labor Law Failed--A Rejoinder to Richard TrumkaDisseminated by The Research Repository @ WVU, 1987WEST VIRGINIA LAW REVIEWpresent trend in Board decisions continues. The veil becomes all but nonexistentwhen Trumka predicts:In rejecting the notion that workers organized through unions should have rightsand should share in power, the National Labor Relations Board has excluded avital force from economic and social decisionmaking. That working men andwomen-wage earners-will reassert their rights at the workplace is inevitable.That they will use the legal process to do so becomes daily more doubtful. Thatprocess has, by now, lost all credibility.2I empathize with Trumka's fear. I, too, am disturbed at the increasingly clearimport of the decisions issuing from the Board as it has been constituted andoperated under the guidance of the Reagan administration. I might even agreewith one commentator's observation that the Board has, by virtue of its radicalshifts in composition and course with every passing political administration, "in-flicted... its own death wound." ' 3 But the Reagan Board, omnipotent as Trumkamight believe it to be, is not synonymous with "labor law" as a whole. Collectivebargaining is a child of the Wagner Act, and, through its injection of democraticprocesses into the authoritarian and hierarchical structure of the world of or-ganized capital (i.e., large corporate employers), has proved indisputably valuablein achieving the measure of industrial peace which we now enjoy. Similarly, theTaft-Hartley Act as interpreted by the courts has spawned a federal substantivelabor law--a worthy goal in itself if one accepts the need for national uniformityin labor policy.4The real problem is that "progressive thinkers," "liberals," and labor unionsno longer have popular support. Expressed in these terms, Trumka's complaintis not unique to labor law. This is a hard time for all who value individual rights.One need only scan a sampling of recent United States Supreme Court decisionsto appreciate the fact that the anti-humanist influence in this country is not re-stricted by subject matter or forum. Nor can the conservative bias of the SupremeCourt, the Board, or any administrative or judicial tribunal which one might careto name be attributed solely to appointments made by the Reagan administration.President Reagan was the victor of not one, but two landslide elections, and2 Id. at 871-72.3 See Farmer, Transfer of NLRB Jurisdiction Over Unfair Labor Practices to Labor Courts,88 W. VA. Rzv. 1, 2 (1985) (criticizing the instabilities in labor policy wrought by the political characterof the Board, and advocating the transfer of unfair labor practice cases to the federal district courts;the author proposes that the Board's jurisdiction be limited to supervision of representation electionsand review of election cases).I See Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456-57 (1957) (interpreting section301 of the Labor Management Relations (Taft-Hartley) Act as a jurisdictional grant to federal courtswhich authorizes them to fashion a federal substantive law governing collective bargaining agreements).[Vol. 892West Virginia Law Review, Vol. 89, Iss. 4 [1987], Art. 5https://researchrepository.wvu.edu/wvlr/vol89/iss4/5A REJOINDERcontinues to be one of the most popular Presidents in American history.5The fact is that it is not simply the Reagan Board, which has retreated fromthe ideal of pluralism and the notion that workers organized through unionsshould share in power, but the American populace itself. Iri light of the publicsupport for conservative (read anti-labor) policies, Trumka's proposal that unionsreturn to the state courts and "get political ' 6 is doomed to failure. Further, anyinitial success by the more powerful unions in particular states or regions of thecountry would ultimately be achieved at a high social -cost: further stratificationof workers by class, and the creation of a new class composed of the very poorestand least powerful. As Oliver Wendell Holmes observed long ago, it ispure phantasy [sic] to suppose that there is a body of capital of which labor, asa whole, secures a larger share... for the members of an organization, but, ifthey do, they get it at the expense of the less organized and less powerful portionof the laboring mass. They do not create something out of nothing:The change in our political climate which has occurred since 1935, when theWagner Act was passed, is explicable at least in part by reference to the evolution(Trumka might call it the decline) of our society from an industrial economy toa service-oriented economy. Whether one considers this a change for the better,however, is no longer relevant. The reality is that such a change has occurred,and that the number of unionized workers has diminished as a result. I agreewith Trumka that labor must respond to the changes in our economy, and eventhat those changes demand a relatively radical response, more radical than achange in personnel on the National Labor Relations Board. But I reject hisinvitation to return to pre-Wagner Act days. Such a course would do little toadvance the social values which Trumka embraces and which the drafters of theWagner Act had in mind: a sharing of wealth between capital and labor and theattainment of industrial peace.Class war might better be averted if labor sought to change the Act ratherthan to scrap it. By this I do not mean simply that the Board should be dismantledand that labor disputes be transferred to the federal district courts or to a newlycreated federal labor court, although that might be a necessary consequence ofWhile the office of the President has been blighted and the strength of Reagan's characterquestioned as a result of the negative publicity surrounding the Iran/Contra Arms Deal, the admin-istration's domestic policies have emerged from the fracas unscathed.See Trumka, supra note 1, at 881.7 Plant v. Woods, 176 Mass. 492, 496, 57 N.E. 1011, 1016 (1900) (Holmes, J., dissenting).9 See Labor Management Relations (Taft-Hartley) Act, § 101, 29 U.S.C. § 151 (1982)Experience has proved that protection by law of the right of employees to organizeand bargain collectively safeguards commerce from injury, impairment, or interruption, anqpromotes the flow of commerce by removing certain recognized sources of industrial strifeand unrest.. .by restoring equality of bargaining power between employers and employees.1987]3Crain-Mountney: Has Labor Law Failed--A Rejoinder to Richard TrumkaDisseminated by The Research Repository @ WVU, 1987WEST VIRGINIA LAW REVIEWthe sort of change which I propose. Instead, I suggest that the focus of theorganized labor movement be redirected toward the theme which is common toall persons engaged in the work relation, across all classes: alleviation of thefundamental tension that exists between our humanity, our individual differencesand the ways in which we express them, and our need to sell our labor-a sig-nificant piece of our lives measured in terms of time-in order to survive. Inother words, perhaps the time has come to redefine the word "labor" to focusupon the similarities between classes of workers rather than the differences be-tween them.It is impossible for the ever-increasing membership of the capital-gatheringclass, the professional and semi-professional service workers, to support fully thegoals of the National Labor Relations Act unless they understand and appreciatethem. In order to appreciate those goals, nonunionized workers must perceive acommonality of interest between themselves and unionized workers. The mosteffective means of acquiring such an appreciation would be through personalexperience-whether via participation in a union or through participation in anemployee organization or other group which approximates the function of thetraditional labor union and attempts to influence employers' decisions throughthe presentation of employees' concerns.I recognize that my proposal would require a significant amendment to theNational Labor Relations Act. As it is presently constituted, the Act excludesfrom its coverage both supervisory and high-level managerial employees. 9 More-over, the Act explicitly outlaws the employer dominated "employee association,"or company union. 10 Some may say that it is politically unrealistic to suggest arevision of the Act to make it possible for all employees to see the similaritiesbetween what we now think of as the laboring class, and the capital-gatheringclass. But the signposts are already pointing in the direction of worker unification.The spate of wrongful discharge litigation in recent years furnishes a good ex-ample. The goal of wrongful discharge litigation is to establish a just cause stand-ard for termination, a protection which most unionized workers covered bycollective bargaining agreements now take for granted. Managerial and supervisoryemployees are beginning to appreciate the value of job security.Similarly, professionals and supervisors are turning in increasing numbers tothe workers' compensation system for relief from job stress-related problems. Thisprovides further evidence that, at bottom, the tensions which a managerial-levelemployee feels are remarkably similar to those experienced by non-managerial,9 See National Labor Relations Act § 2(3), 29 U.S.C. § 152(3) (1982) (excluding supervisoryemployees from coverage under the Act); NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) (employeesat levels of managerial structure are so clearly outside the Act that no specific exclusionary provisionwas thought necessary).10 National Labor Relations Act § 8(a)(2), 29 U.S.C. § 158(a)(2).[Vol. 894West Virginia Law Review, Vol. 89, Iss. 4 [1987], Art. 5https://researchrepository.wvu.edu/wvlr/vol89/iss4/5A REJOINDERunionized employees. The need for job security and the desire to address col-lectively issues of employee discontent caused by stresses inherent in the workplacepresent problems of "labor law," regardless of the nature of the job.It may be that my perception of the problem does not diverge so greatly fromTrumka's. Trumka recognizes that labor is not a "special interest."" He appre-ciates the significance of the chicken-rendering case which he discusses as havingnothing to do with labor unions, but instead with "human beings, and how thelabor law treats human needs."' 12 Nevertheless, the solutions which we proposeare very different. Trumka seems to relish the idea of open hostility and classwar, romanticizing the pre-Wagner Act days.' 3 He demonstrates a cynicism whichis fundamentally inconsistent with the peaceful coexistence of the labor force andcapital owners.The tenor of my appeal is different. We would be foolish to ignore the teach-ings of our history. If we have learned anything from the union movement andour experience with the Wagner Act and its progeny, it must be the simple lessonthat we accomplish more when we unite than when we divide. The developmentof unions or employee organizations for workers at all levels would go far towardilluminating that unity of interest which we humans have in our role as workers.History has proven the fundamental value of collective bargaining and the "friendlyadjustment of industrial disputes' '14 in achieving labor peace without sacrificingour democratic ideals. If organized labor saw its role more broadly-as one ofservice to the needs of all workers-labor would regain popular support becausethe labor movement would contain something for everyone.When we pose the question as Trumka has, asking why labor law has failed,we necessarily impose limits upon the answer at which we will arrive. I believethat we should ask instead how labor law must evolve if it is to succeed in ournonindustrial society.Trumka, supra note 1, at 872.,2 Id. at 875." For example, Trumka speaks of the days (presumably prior to the Wagner Act) "where theemployer cannot fire a worker at will." Trumka, supra note 1, at 873. On the contrary, however:"[flifty years ago a foreman could discharge an employee for any reason or no reason." A. Cox,D. BOK & B. GoRuN, LABOR LAW 11 (10th ed. 1986). Today, with the advent of collective bargainingagreements containing just cause provisions, and, in the nonunion sector, the burgeoning body ofwrongful discharge and Title VII litigation, that is frequently no longer true.'1 See National Labor Relations Act § 1, 29 U.S.C. § 151.198715Crain-Mountney: Has Labor Law Failed--A Rejoinder to Richard TrumkaDisseminated by The Research Repository @ WVU, 19876West Virginia Law Review, Vol. 89, Iss. 4 [1987], Art. 5https://researchrepository.wvu.edu/wvlr/vol89/iss4/5

Has Labor Law Failed--A Rejoinder to Richard Trumka

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Has Labor Law Failed--A Rejoinder to Richard Trumka

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