What are the prospects for labor rights in the next four years? The question would seem to require some estimate, first, of what the Republicans intend and, second, of their capacity to do it. But current labor law is not amenable to these straightforward calculations. Congress has not significantly amended the law in more than forty years, and regarding basic doctrine—the rights of workers to organize, choose their own representatives, and bargain collectively—the Taft-Hartley amendments (1947) to the original National Labor Relations Act (1935) are the last word. The upshot is that labor law in practice is something like a constitution, in which the law is what the National Labor Relations Board (NLRB) and, ultimately, the Supreme Court say it is. Changes of administration have mattered, certainly, but their impact is indirect, mediated through NLRB appointments and a real but variable influence on how the law is applied. A second complication, arising from the first, is that sixty years of case law have turned labor law into a monster. There are some in the labor movement who have given up on it. If labor’s best hope is to extricate itself from the law, then how we judge the impact of a hostile Bush administration becomes problematic. No Dissent reader is going to root for the employer side in the next big representation case. But if it helps wean the unions from a stultifying law, is adversity such a bad thing? Or, conversely, are we supposed to cheer for the good intentions of the Clinton administration?
Consider the record. Bill Clinton had a better than average opportunity to reshape the NLRB because of the number of pending openings in 1993. The new chair, William B. Gould, was a notable choice. A Stanford law professor of feisty independence and no interest in playing the inside-the-beltway game, he had just published a book, Agenda for Reform, arguing for a strengthened labor law. In 1995, sensing an opportunity being wasted, reformers in the leadership of the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO) toppled Lane Kirkland’s regime. John Sweeney came to power vowing to reinvigorate the labor movement and turn around its lagging organizing efforts. And at that point, the economy shifted into high gear; the labor market became the tightest in memory. If ever there was a moment for union resurgence, this was it. In fact, membership did grow modestly, although not enough to arrest the movement’s shrinking density (16 percent in 1993, 14.9 percent in 1995, 13.9 in 1999). Last year, membership actually fell by 219,000. Union density now stands at 13.5 percent, but in the private sector—the NLRB’s bailiwick—the figure is 9 percent, the lowest it’s been since the modern movement got on its feet a century ago.
To understand these numbers, we have to look at the underlying dynamics. Some half-a- million union jobs disappear every year, mostly as a function of mark...
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