Time to Evaluate and Renovate American Labor Law

This op-ed column was originally published at TheHill.com

By John Raudabaugh

Labor unions rose to prominence during the industrial age of the 1930s, a time when workplace safety was widely deemed secondary to economic output. It’s no coincidence then that American labor law is a relic of the New Deal era—when roughly one-third of the private sector was unionized.

First came the National Labor Relations Act (NLRA) in 1935, which clearly defined the right to unionize and recognized unfair labor practices on the part of employers. Then came the Taft-Hartley Act in 1947, which acknowledged that unions are responsible for many unfair practices of their own.

Yet nearing the end of 2015—the 80th anniversary of the NLRA’s passage—national labor law is very much the same. Any attempt to update it has run aground, rendering the need for substantive reform more urgent than ever before.

To fill the legislative void, the National Labor Relations Board (NLRB)—first established by the NLRA—has become a pseudo-legislature of its own, issuing decisions and rules which not so much achieve viable reforms as they reflect the majority’s political bias.

In recent years, the now Democrat-controlled NLRB has become a pro-union agency subjecting employers to crippling labor restrictions. In August, the NLRB ruled (along partisan lines) that unions can negotiate on behalf of employees working for franchisees and contractors—easing the unionization process in the fast food industry.

(Like clockwork, unions are now ramping up efforts to unionize McDonald’s and other fast food chains.)

The United Auto Workers’ (UAW) recent victory at a Tennessee Volkswagen plant is the result of a 2011 NLRB ruling which stated that collective bargaining units can be unionized bit by bit. That is, a so-called “micro-union” can infiltrate a workplace even if the majority of the workforce sees no need for union representation. Only 162 employees are now included—a tiny subset of the nearly 1,600 workers who rejected the union in 2014.

This begs a serious question: Should labor law be subject to the whims of unelected, politically biased bureaucrats in Washington? Or should we work toward meaningful reform through legislative channels, updating a 20th century legal framework for 2016 and beyond?

Currently pending before Congress are 18 different bills addressing NLRA reform, mostly in piecemeal fashion. One focuses on stalking in the workplace. Another vows to eliminate “micro-unions”—not just in Tennessee, but nationwide. Just last month, Rep. Joe Wilson (R-S.C.) introduced the NLRB Reform Act, which would add a sixth member to the Board and mitigate the problem of hyper-partisanship.

But such proposals are limited in scope and stand little chance at passing.

The most comprehensive is the Employee Rights Act (ERA), which would update American labor law with a broad stroke. Recently reintroduced by Sen. Orrin Hatch (R-Utah) and Rep. Tom Price (R-Ga.), the bill would democratize the workplace with several basic provisions—encompassing employee privacy, free choice, personal safety, and periodic opportunities to reaffirm or reject third party representation.

For instance, the ERA guarantees a federally supervised secret ballot in all union certification elections. As it stands now, labor organizers are not required to provide one—in almost 40 percent of union recognition “elections,” they circumvent the democratic process with “card check” procedures that deny employees a private vote and leave them vulnerable to union pressure tactics.

Yet union threats and bullying are not deemed criminal behavior. Under current labor law, union violence falls through a decades-old loophole which excuses Big Labor from prosecution if said violence is perpetrated to secure “legitimate” union objectives. Rectifying this injustice, the ERA would make all violence—union-driven or not—criminal behavior.

We don’t live in the 1930s. American labor law shouldn’t either.

John Raudabaugh is the Reed Larson Professor of Labor Law at Ave Maria University in Florida and, appointed by President George H.W. Bush, served as a member of the National Labor Relations Board from 1990 to 1993.