Dennis Walsh on Taking Back the Workers’ Law

Dennis P. Walsh is a former Member of the National Labor Relations Board (The views expressed in this Comment are his own, and do not necessarily reflect the positions of the NLRB or any Member thereof.) He has this to say about Taking Back the Workers’ Law by Ellen Dannin:

Ellen Dannin’s book, Taking Back the Workers’ Law (How to Fight the Assault on Workers’ Rights) is something of a wake-up call for those of us who believe in the promise of the National Labor Relations Act. Scrolling across the screen saver in my office at the National Labor Relations Board, I have portions of Section 1 of the NLRA, which sets forth the basic purposes of the Act: “encouraging the practice and procedure of collective bargaining and . . . protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing.” In all my positions at the Board, whether as a Member making policy and deciding cases, or as a staff attorney, I have attempted to use these words as a guide to my interpretations of the statute and my advice to others who are charged with interpreting it. In the same vein, Ms. Dannin uses these words as a central theme of her book, as she describes how the courts and, to some extent the Board, have perverted the meaning of the Act and how practitioners and labor activists can restore its true purposes. I believe this book should be required reading for all those who believe in the promises our government has made with regard to the protection of workers’ rights to organize and to freely associate to advance their interests, as well as for all of those who believe the government, and particularly the NLRB, have reneged on those promises.

It has become fashionable for academics and practitioners alike to criticize the Board for failing to truly protect the right to organize and to promote the process of collective bargaining. There is merit to some of this criticism, as Board appointments have become more political and divided Boards have interpreted the Act in ways that tend to discourage organizing and minimize the already weak remedies that the Act provides for interference with the rights it purports to protect. And since the early years of the Act, the circuit courts and the Supreme Court have often burdened the Act with interpretations that, in many cases, actually undermine its underlying purposes. But many of the Act’s detractors go further and assert that the Act is no longer relevant and the NLRB can no longer be trusted to protect workers, and therefore should be ignored or avoided altogether by the labor movement and by workers. This is where Ms. Dannin parts company with those detractors. She asserts that worker advocates must continue to bring their cases to the Board, but with a new focus. She advises that they go back to “first principles,” relying on the underlying purposes of the Act, which was designed to lift workers out of poverty and powerlessness by readjusting the balance of bargaining power in the workplace so that workers can negotiate better wages and working conditions through the process of collective bargaining. She lays out a systematic, practical guide for advocates to litigate cases with these purposes in mind, developing factual records and making legal arguments that will educate both the Board and the courts as to how they can make decisions that truly protect the rights of workers to organize and engage in collective bargaining. Although much of her advice relates to litigation, it is not only directed at lawyers, and she also acknowledges that the strategy for revitalizing the right to organize and to bargain collectively must be multipronged, relying also on legislative reform, organizing, and educating the public. But the heart of her argument is that the law itself can be an instrument of positive change for workers, if worker advocates rely on the core purposes set forth in Section 1 of the Act when they plan their litigation strategy.

I may have some small quibbles with some of Ms. Dannin’s arguments, such as her reliance on Board statistics that purport to show that the Board has always scheduled elections quickly and run them efficiently. It is my view that these statistics do not account for the fact that a party that wants to delay the process can always find a way to drag it out, and thus that party usually has the upper hand in the negotiations for an election agreement, and thus can often get what it wants in terms of the election arrangements and the scope and composition of the bargaining unit. In addition, the statistics do not reflect the coercive nature of the election campaign, which the Board’s weak remedies do very little to ameliorate. For these reasons I believe that voluntary recognition should be encouraged, and not made more difficult by Board decisions that place roadblocks in its way. But I do agree with Ms. Dannin’s ultimate point, which is that the election process should not be thrown out altogether because of these deficiencies; the focus should rather be on improving the process and strengthening the Board’s remedies against coercive conduct, so the process is available for those who wish to utilize it as a truly free and fair way of choosing whether or not they wish to be represented for the purposes of collective bargaining.

The National Labor Relations Act and the Board that administer it remain the preeminent source of protection for workers who desire to work together to improve their working conditions and engage in the process of collective bargaining. Ellen Dannin’s book, Taking Back the Workers’ Law, is an important counterpoint to those who would devalue the importance of the Act and the Board, and a rallying cry for those of us who believe in its promise. It should be required reading for all of us.

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