Jottings By An Employer's Lawyer

Wednesday, March 21, 2007

A "New Spring" in Labor and Employment Law?


Today's post by Professor Rick Bales at Workplace Prof Blog about Charlie Morris' letter to the NLRB advocating for a rule that would allow members-only minority-union bargaining, a "radical idea" explained more completely in his book, The Blue Eagle At Work: Reclaiming Democratic Rights In The American Work Place, prompted more general thoughts about where we are in the relatively narrow, but very important, world of labor/employment law. And more importantly, where we have been and where we may be going.

My time in this area, which now spans more than 30 years, has been tremendously impacted by two developments that occurred in the first decade after I was licensed — one that happened and one that didn't.

The one that did not happen was passage of the Labor Reform Act of 1977. As a two year lawyer, I knew it was a major battle between organized labor and business, but I can only now appreciate how different my professional life would have been if it had passed.

Notwithstanding Democratic control of the House, Senate and the White House, the Labor Reform Act died on the Senate Floor without ever coming to a vote — it was defeated by a filibuster led by (still) Senator Orrin Hatch (R-Utah). (It did pass the House. If cloture could have been invoked it would have passed the Senate and been signed by then President Carter.)
Amazingly, I can't even find a copy of the full text of the bill online (unheard of in today's internet world), but a summary of H.R. 8410 of the 95th Congress is here.

What was being proposed then may sound very familiar to those following the debate about the Employee Free Choice Act. Among other things the 1977 Labor Reform Act would have:


  • Amended the National Labor Relations Act to increase the size of the National Labor Relations Board to seven members and the terms of Board members to seven years.
  • Directed the Board to issue rules to protect specified employee and labor organization rights, facilitate the resolution of disputes concerning voter eligibility, and govern elections in cases in which an appeal had not been decided prior to the date of election.
  • Created expedited elections where a majority of members of a bargaining unit sought recognition of a union or de-certification of an existing union.
  • Specified damages where there was an unlawful refusal to bargain prior to entry into a first bargaining contract.
  • Provided for expedited consideration and relief from certain alleged unfair labor practices which resulted in a deprivation of employment.
  • Denied, for up to three years public contracts to persons willfully violating final orders regarding unfair labor practices.

Think how all our world's would have changed if it had passed.

The seminal event that did happen was President Reagan's firing of all air traffic controllers in the summer of 1981. Again, even though I was by that time a Board Certified Labor and Employment Lawyer, I had no idea how President Reagan's act would ultimately impact the world of work, which of course was where I worked.

The Wikipedia entry under "Patco Strike", even with a couple of missing supporting citations, has a good summary of the basic events:

On August 3, 1981 the union declared a strike, seeking better working conditions, better pay and a 32-hour workweek. In doing so, the union technically violated an oft-overlooked 1955 law {5 U.S.C. (Supp. III 1956) 118p.} that banned strikes by government unions. However, several government unions (including one representing employees of the Postal Service) had declared strikes in the intervening period without penalties. Ronald Reagan, however, declared the PATCO strike a "peril to national safety" and ordered them back to work under the terms of the Taft-Hartley Act of 1947. Only 1,200 of the more than 12,000 controllers returned to work[citation needed]. PATCO thought it could cause the national air system to grind to a halt and use that as a bargaining tool. Reagan gave union members 48 hours to return, knowing that Transportation Secretary Drew Lewis had secretly trained replacements and the airplanes kept flying at 80% of normal[citation needed].

On August 5, following their refusal, Reagan fired the 11,359 striking air traffic controllers who had ignored the order, and permanently banned them from federal service. They were replaced initially with nonparticipating controllers, supervisors, staff personnel, some nonrated personnel, and in some cases by controllers transferred temporarily from other facilities. Some military controllers were also used until replacements could be trained. It proved the most stunning defeat for unions in 60 years.

Although the real impact of President Reagan's action has been debated (for a good summary of that debate see Professor Michael J. Hayes 2006 speech, The PATCO Strike: Assessing Its Impact 25 Years Later) there is no question that it is widely perceived as setting a different tone for management/labor relations over the ensuing years.

A third development, not as clearly connected to labor and employment law has also been significant — President Reagan's approach to appointing federal judges. (For a good description and analysis see Professor David O'Brien's article, Why Many Think that Ronald Reagan's Court Appointments May Have Been His Chief Legacy.) In short, President Reagan appointed not only conservative judges matching his political philosophy, but relatively young lawyers, who with lifetime appointments would continue their central role on the bench long after his presidential term expired.

As an example, two judges still on active status on the 5th Circuit, Chief Judge Edith Jones and Judge Jerry Smith, were both associates at big firms in Houston when I began practice as one in 1975. They were appointed by President Reagan in 1985 and 1987, at the ages of 36 and 41.

It is difficult to overstate the impact that the federal judiciary, shaped by Reagan and post-Reagan appointments, has had on the interpretation of federal, and by analogy, state employment laws in the last twenty-five years.

As I have commented in this space before, most things in the law are cyclical — with a pendulum effect of correcting and over-correcting. It has been an uncommonly long cycle in labor and employment law where the general overall direction has not changed. But if there is a change in store, and certainly there is change in the wind, it behooves employers and those who represent them, to be aware, now.

There may or may not be a Prague-like spring change in store for employment and labor law. But for the first time in many, many years, it is not unthinkable.

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