Scholar Floats Radical Plan: Repeal Most of National Labor Relations Act, Turn Unions, Workers Loose in Streets, Courts

WASHINGTON –The National Labor Relations Act is so weak, hamstrung, antiquated and encumbered with pro-business provisions and court rulings that Congress should repeal almost all of it and turn unions and workers loose in the streets and the courts, a labor law scholar says.

Marion Crain, co-author of a new book on economic inequality and fragility – of workers and the middle class – floated that radical idea at a May 28 session on “Work And Life After The Great Recession” at The New America Foundation, a progressive think-tank.

Admitting that repealing the NLRA, also known as the Wagner Act, “would get my friends in the labor movement angry,” Crain argued the law is so emasculated since its passage in 1935 that “its promise has turned into an illusion.”

That promise was that the right to organize and collective bargaining would improve workers’ lives.  They did so, she said, until the 1947 Taft-Hartley Act, the 1959 Landrum-Griffin Act and subsequent federal court rulings hollowed the Wagner Act out.

And those were deliberate policy choices, Crain declared.  So the U.S. should make another deliberate policy choice by repealing all but one key section of the NLRA – and by turning workers and unions loose to march on the streets, launch secondary boycotts and sue in the courts for triple damages, just like they can do now under civil rights laws.

Crain would keep just one section of the Wagner Act: Its section 7 that legalizes the right to organize and bargain collectively “and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” – or the right not to do so.  She’d trash the rest.

Though Crain did not say so, congressional Republicans, acting at business behest and over strenuous union opposition, pushed through both the 1947 and 1959 laws.  Those two laws “demolished the protection of labor law,” she said.  And the GOP blocks reform now.

Taft-Hartley “outlawed the secondary boycott, which was labor’s strongest weapon” and “limited the right to picket, which is one of the main ways unions have to get their case to the public,” Crain explained.  And the NLRA’s penalties are so weak that employers view them as a small cost of doing business.

To make matters worse, the courts also allow “permanent replacement” of economic strikers, Crain added.  And federal power in labor law, called pre-emption, overrides state efforts to help workers, noted Crain, a law professor.  “Labor law’s been ossified,” she said.

Crain said labor law repeal should be replaced by retaining section 7 of the NLRA, but vastly increasing penalties for labor law-breaking, making them similar to triple damages imposed for violating civil rights laws.

She would also strengthen the power of workers to bring class-action suits – a power the Supreme Court sharply slashed in a decision several years ago involving the huge sex discrimination class-action pay case against Wal-Mart.  And Crain would outlaw employers’ right to fire people for posting critical comments on Facebook and other social media.

“Our proposal is radical and utopian, but the NLRA is so anachronistic that it’s dangerous.  Dramatic problems require dramatic solutions,” Crain contended.

The other panelists, including Crain’s co-author, Michael Sherraden, did not comment on her idea.  Instead, they concentrated on other policy choices politicians can make to help restore the middle class.

Sherraden, in particular, argued for recreation of the New Deal’s job creation programs, since private-sector firms won’t do so – especially for the long-term unemployed, jobless youth and notably for jobless minority youth.

FDR’s Civilian Conservation Corps employed a million jobless young men per year on public space projects, such as planting trees for future national forests in denuded areas of the U.S.  An equivalent program these days, Sherraden said, would employ 3 million youth.

That’s important, he noted, because too many youngsters, coming out of high school, trade school or college, have no jobs and no prospects.  That’s an unsafe condition for them and for society, Sherraden said.

And FDR’s Works Progress Administration and Public Works Administration not only fixed up and created U.S. infrastructure, he added, but employed 3 million people, at the depths of the Great Depression, to do so.

With U.S. population now three times the size it was in FDR’s day, a new WPA would employ 9 million people, he said.  “You’ve just eliminated U.S. joblessness, all at one stroke.”

Whether that idea would get anywhere in a GOP-gridlocked Congress is another matter.  During his congressional tenure, ex-Rep. Phil Hare, D-Ill., a former union shop steward, floated a new WPA plan.  He never got a hearing.

And the current Congress is more intent on letting employers cut wages and benefits and shift more of the cost of supporting U.S. workers to programs such as food stamps and Temporary Assistance for Needy Families – and then cutting those – the panelists admitted.