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In their campaigns for the White House, the major-party candidates--even the one backed by labor--spent little time debating labor-law reform.
Nevertheless, the AFL-CIO had hoped that a Gore victory and Democratic gains in Congress would lead to strengthening of the National Labor Relations Act (NLRA) or, at least, union-friendly appointments to the National Labor Relations Board (NLRB). Continued Republican control of Congress now eliminates the possibility of the former, while Bush's court-won victory makes the latter highly unlikely. In fact, when our new President gets through filling three vacancies on the NLRB early this year, his appointees will insure that the failure of labor law--a scandal exposed in different ways by former NLRB chairman William Gould in Labored Relations and by lawyer Lance Compa in the recent Human Rights Watch report Unfair Advantage--continues to thwart union organizing for the next four years.
Since the AFL-CIO began putting greater emphasis on membership recruitment in 1995, there have, of course, been important new gains. But some of the most significant victories involved organizing campaigns in which unions used their bargaining or political clout--where they still have it--to secure recognition in new units without using Labor Board certification procedures. For tens of millions of workers in the private sector, bypassing the law is not an option--and, for better or worse, the sixty-five-year-old NLRA continues to shape organizing strategies in many key industries.
Long hailed as the "Magna Carta of American labor," the NLRA (or Wagner Act) is definitely showing signs of age. The act was designed in 1935 to promote collective bargaining as a peaceful alternative to the many violent, Depression-era battles over union recognition. Its New Deal sponsors viewed unionization as a necessary corrective to the "inequality of bargaining power" between individual workers and management. To referee workplace disputes, Congress created the NLRB, which conducts representation elections, awards bargaining rights based on them and investigates "unfair labor practices" by employers that might discourage organizing or prevent workers from negotiating a union contract.
But the limited remedies, light penalties and secret-ballot elections available under the NLRA are meaningful only if its administration is swift and efficient. In few other areas of the law is there greater truth to the axiom that "justice delayed is justice denied." When union votes are stalled for months, union victories tied up in litigation for years, bad-faith bargaining goes unpunished and fired union supporters get reinstated (if at all) long after an organizing campaign has ended, management wins--even if the board ultimately rules otherwise.
The selection of NLRB members--and the agency's influential general counsel--is determined by who controls the White House and what kind of nomination deals are brokered with the Senate. (Functioning at full strength, the board consists of three appointees, including the chairman, from the President's own party and two from the opposition party.) However, as the AFL-CIO argued in its last major campaign for labor-law reform in the late 1970s, unfair-labor-practice victims need more than a sympathetic NLRB majority or efficient functioning by the agency's 2,000 career employees around the country. The law itself must be repaired.
The enormous gap between workers' legal rights on paper and the reality of NLRA enforcement under Democrats and Republicans alike is most effectively documented in Unfair Advantage. Labored Relations also describes how bad substantive decisions, "the creakiness of the NLRA's administrative procedures" and its "lack of effective remedies" have undermined worker organizing and strike activity in recent decades. But the bulk of Gould's memoir is devoted to refighting the personal political battles that occupied him during his four and a half years as a Clinton appointee on the NLRB. Gould's book thus invites comparison with Locked in the Cabinet, Robert Reich's glibly amusing account of his stint as Clinton's Secretary of Labor. Both men assumed their Washington posts--Reich at the Labor Department and Gould at the board--after a career in academia. Even before Clinton nominated Gould in 1993, Reich had tapped him (based on his work as a Stanford University law professor and respected arbitrator) to serve on the Dunlop Commission, a panel of experts convened to recommend labor-law changes.
At the time, Gould had just offered his own ideas on this subject in a book titled Agenda for Reform. In it he called for many of the same corrective measures now advocated by Human Rights Watch: employer recognition of unions based on signed authorization cards rather than contested elections; imposition of first-contract terms by an arbitrator when the parties can't reach agreement by themselves; greater use of injunctive relief to secure quicker reinstatement of workers fired for union activity; a ban on permanent replacement of economic strikers; and heavier financial penalties for labor-law violators.
Needless to say, Senate Republicans weren't too keen on Gould's proposals and kept his nomination to the NLRB dangling for almost a year. In fact, even Reich's labor-law-reform panel--which Gould left prior to being confirmed as NLRB chairman--failed to promote these much-needed changes. Instead, the Dunlop Commission stressed the importance of amending the NLRA so management-dominated "employee participation" schemes could flourish even more widely as an alternative to unions. Repackaged as the Teamwork for Employees and Managers (or TEAM) Act and adopted by Congress after the GOP took over in 1994, this anti-union legislation was ultimately vetoed by Clinton--after frantic labor lobbying.
To survive his contentious confirmation process (and avoid the fate of fellow African-American Lani Guinier, whose nomination to a top Justice Department post was dropped by Clinton when her writings as a law professor were attacked by the right), Gould played up his credentials as a "professional neutral." He proclaimed that his goal in Washington would be "to reduce polarization both at the board and also between labor and management." Equipped with what turned out to be a serious lack of diplomatic skills, Gould might have had an easier time trying to bring peace to the Middle East.
During Gould's tenure, Congressional Republicans sought to cripple the NLRB's operations with budget cuts, harassing oversight hearings and nonstop political sniping. Positive initiatives, like general counsel Fred Feinstein's attempt to get more federal court orders reinstating fired workers while their cases were being litigated, became a lightning rod for conservative criticism. Under these trying circumstances, Gould, Feinstein and pro-labor board members like Sarah Fox and the late Margaret Browning needed to stick together and coordinate their strategy in the face of common adversaries. Gould, however, quickly fell out with his colleagues in a fit of pique over their failure "to accord me stature and defer to my leadership." His "leadership" soon took the form of public feuding with, and criticism of, his fellow Clinton appointees--combined with attention-getting public statements about many of the leading labor-management controversies of the day. Even when he was on the right side of these disputes, his ill-timed interventions had the effect of exacerbating the NLRB's political problems.
In 1998, for example, Gould injected himself into the debate about a state ballot initiative in California that would have required unions to obtain the individual consent of their members before using dues money for political purposes. Gould's statement of opposition to this Republican-backed "paycheck protection" scheme correctly noted that it would "cripple a major source of funding for the Democratic Party." When his testimony was briefly posted on the NLRB's website after being presented to state legislators, it created such a ruckus that even Congressional Democrats generally supportive of labor and the board raised the possibility that Gould should resign to avert further Republican retribution against the agency.
Ironically, Gould's batting average at the board shows that he was not as much a union partisan as his business critics claimed. According to a recent law-review analysis by professor Joan Flynn, Gould's "votes in disputed cases were considerably less predictable than those of his colleagues from management or union-side practice... [they] broke down in a much less lopsided fashion: 159 for the 'union' position and 46 for the 'management' position." In contrast, when Ronald Reagan tried to change the NLRB's alleged pro-union tilt during his Administration, his chairman was a management-side lawyer--Donald Dotson, a figure no less controversial in the 1980s than Gould was in the '90s. Did Dotson pursue Gould's stated goal of "return[ing] the Board to the center to promote balance"? Of course not. Despite equally hostile Congressional oversight by members of the then-Democratic majority, Dotson openly promoted a Right-to-Work Committee agenda, defending management interests just as zealously as he had when he was on the corporate payroll.
Naming Gould to lead the board was, thus, very much an expression of Clinton's own political centrism. Unhappily for labor, Gould's unexpected personal showboating, squabbling with would-be allies and what Flynn calls his "near-genius for irritating Congress" impeded, rather than aided, the administrative tinkering that Clinton appointees were able to do at the board during his tenure. Vain, impolitic and--in the view of some critics--hopelessly naïve, Gould often did as much harm as good. In this respect, he was not unlike the Dunlop Commission, in that Reich's vehicle for building a political consensus on labor-law reform instead fed right-wing attempts to weaken the NLRA.
Gould's defense of his record seems designed to avoid the kind of flak that Reich received over his memoir's fanciful reconstruction of private and even public exchanges with various Washington notables. Labored Relations quotes extensively from the author's minutiae-filled daily journal, leaving the impression that no such literary license has been employed. Unfortunately, Gould lacks Reich's self-deprecatory humor and acute sense of irony. The author's tedious recitation of his speaking dates, telephone calls, case conferences, lunch and dinner conversations, etc., will be a hard slog for anyone but specialists in the field or ex-colleagues searching for critical comments about themselves (of which there are many).
Outside the Beltway and the "labor bar," settling old scores about who did what to whom as part of the "Clinton Board" is much less a preoccupation than the difficulty of defending workers' rights under any administration. Unfair Advantage does a much better job of keeping this big picture in focus, in particular by documenting the rising toll of workers fired for what, in board jargon, is called "protected concerted activity." In the 1950s, author Lance Compa reports, "workers who suffered reprisals for exercising the right to freedom of association numbered in the hundreds each year. In the 1960s, the number climbed into the thousands, reaching slightly over 6,000 in 1969. By the 1990s, more than 20,000 workers each year were victims of discrimination for union activity--23,580 in 1998, the most recent year for which figures are available."
The "right to freedom of association" is, of course, enshrined in international human rights standards that the United States nominally supports and often seeks to apply to other nations. Compa, a former organizer for the United Electrical Workers who now teaches international labor law at Cornell, exposes the hypocrisy of this official stance in light of persistent NLRB enforcement problems and the structural defects of the NLRA itself. In this Human Rights Watch report, he concludes that "provisions of U.S. law openly conflict with international norms...of freedom of association."
Millions of workers, including farm workers, household domestic workers and low-level supervisors, are expressly barred from the law's protection of the right to organize. American law allows employers to replace permanently workers who exercise the right to strike, effectively nullifying that right. New forms of employment relationships have created millions of part-time, temporary, sub-contracted and otherwise "atypical" or "contingent" workers whose freedom of association is frustrated by the law's failure to adapt to changes in the economy.
The problem with Compa's sweeping indictment of the status quo is that it contains no strategy for change--other than elevating the debate about what should be done from the lowly sphere of labor-management relations to the higher moral plane of international human rights norms. At the local level, Jobs with Justice coalitions and some AFL-CIO central labor councils around the country are actually trying to build a long-term grassroots campaign to promote greater public support for the right to organize. Not unlike that of Human Rights Watch, their target audience is the same elements of academia, the arts, churches and the liberal middle class that have long displayed admirable concern about human rights violations abroad or discrimination against women, gays and minorities at home.
Public officials, university professors, the clergy, civil rights leaders and neighborhood activists are now being encouraged to intervene in organizing situations to help neutralize illegal management resistance to unionization. Workers' rights activists will find plenty of new ammunition in Unfair Advantage, and even some that's buried in Labored Relations. Hopefully, their community-based efforts will create an improved climate for organizing--in some parts of the country at least--and put NLRA reform back on the national political agenda of labor's putative allies in the Democratic Party. Yet while having a Democrat in the White House may prove a necessary condition for reform initiatives, it's hardly sufficient--as the Clinton era just proved. Workers who try to form unions will continue to be at risk until Americans elect both a Congress and a President willing to do more than just tinker with our tattered protection of the right to organize.
After three years of diplomatic fatigue, the United States put delegates from 170 countries out of their misery at the latest round of climate talks at The Hague in November by scuttling the negotiations and, in the process, thumbing its nose at nature as well as at the rest of the world. The good news is that the collapse of the global warming talks may set the stage for a truly transformative initiative to pacify the inflamed climate and, at the same time, dramatically expand the global economy.
The world's glaciers are melting, the oceans are heating up, tropical diseases are migrating north and the weather is becoming increasingly destructive. All that is the result of a l-degree increase in temperature over the past century. By contrast, the world will warm by up to 11 degrees this century, according to the United Nations' Intergovernmental Panel on Climate Change.
The United States killed the Hague negotiations by insisting on meeting its Kyoto goal (reductions of greenhouse gas emissions, primarily coal and oil, to 7 percent below 1990 levels) simply by planting trees and buying cheap emissions credits from poor countries. But the escalating pace of climate change makes it clear that a reliance on carbon-trading and tree-planting is nothing more than an expression of institutional denial of the magnitude of the problem. The EU, frustrated by US foot-dragging, refused to cave, demanding that Washington meet at least half its obligation through real domestic reductions in oil and coal burning. The result was a diplomatic meltdown.
Abandoning the minimalist goals of the Kyoto Protocol, many European nations are now taking their cues from science: The climate crisis requires 70 percent cuts in a very short time if civilization is to avoid the catastrophic effects of global warming. Britain, which in November suffered its worst flooding in centuries, will cut emissions 60 percent in the next fifty years. Holland, faced with a devastating sea-level rise, will cut emissions 80 percent over the next forty years. Germany is contemplating 50 percent cuts.
The US obstructionism also ignores a recent sea change in attitudes among Congressional Republicans, corporate leaders and multinational oil companies. Three years ago, Nebraska's Senator Chuck Hagel co-sponsored a resolution not to ratify the Kyoto Protocol. Today Hagel concedes the science of global warming. Last year, Indiana's Richard Lugar and James Woolsey, former head of the CIA, called for the United States to begin reducing coal and oil use by substituting energy from agricultural wastes.
Oil companies, with the exception of ExxonMobil, are similarly moving to confront the crisis. Shell has created a new, $500 million core company for renewable energy. Its director was recently appointed to head a new G-8 task force on clean energy. Texaco is putting serious resources into renewables. British Petroleum, with major solar investments, now advertises that BP stands for "Beyond Petroleum." In the auto industry, William Clay Ford recently declared an end to "the 100-year reign of the internal combustion engine." That declaration follows Ford's participation in a $1 billion joint venture with Daimler-Chrysler and Mazda to bring fuel-cell-powered cars to market in three years. (These initiatives are partly "greenwashing," aimed at pacifying environmentalists, but they also reflect preparations by oil and auto companies to maintain their role as prominent players in a new energy economy.) Most striking, at the World Economic Forum in Davos at the end of January, the CEOs of the 1,000 largest corporations voted climate change the most urgent issue facing humanity today.
What growing numbers of corporate leaders understand is that a global transition to clean energy would create millions of jobs, especially in poor countries. It would transform dependent, impoverished countries into robust trade partners, substantially expanding global markets. It would make the renewable industry a central engine of economic growth.
Ironically, the corporate powers behind the Bush administration may prove more alert to the wealth-creation potential of an energy transition than Gore. While Christie Whitman, expected to be the new EPA administrator, didn't know the difference between ozone depletion and global warming (and questioned the science behind both), Paul O'Neill, the new Treasury Secretary, has expressed serious concerns about the climate--and even, at one point, pushed for a carbon tax on oil to reduce emissions.
In May, when the parties to the climate talks reconvene, they should consider three interactive strategies:
§ Subsidy switches. The United States currently spends around $20 billion a year in direct subsidies of fossil fuels. If that money were put into renewable technologies (as well as into retraining displaced coal miners) it would provide incentives for the big oil companies to aggressively develop and market fuel cells, wind farms and solar systems.
§ A progressive fossil fuel efficiency standard. The parties should scrap international "emissions trading" and instead adopt a standard under which every country would begin at its current baseline to improve its fossil fuel efficiency by a specified amount every year until the 70 percent reduction is attained. By drawing progressively more of their energy from noncarbon sources, countries would create mass markets that would make these sources as cheap as coal and oil.
§ Creation of a large technology-transfer fund. The nations of the world should consider a tax on international currency transactions to fund the transfer of clean energy to developing countries. A tax of a quarter-penny per dollar on those transactions--which total $1.5 trillion per day--would help stabilize capital flows as well as net about $300 billion a year for wind farms in India, fuel-cell factories in South Africa and solar assemblies in El Salvador.
These measures would be far easier to negotiate, monitor and enforce. More important, they would represent a scale of response appropriate to the magnitude of the climate crisis that threatens the continuity of our organized civilization.
We do need government regulation—not to build socialism but to save capitalism.
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