SEPTEMBER 8, 1994 STATEMENT SUBMITTED TO THE COMMISSION ON THE FUTURE OF WORKER-MANAGEMENT RELATIONS

There is little to say at this point about what is wrong with our labor laws and what needs to be done to fix them. But, perhaps, I can supply some sense of perspective and priority. We can't change everything that is wrong with our labor laws, at least not at once. And, since we can't, we need to think long and hard about what most needs to be changed and what it is possible to change.

In our view, the single most important change that is needed is to restore the right to organize. For reasons we all know, while this right exists in theory, workers who act as if it were real live to regret it.

For the right to organize to be real, three changes must occur:

1. Enforcement of section 7 must be changed so that it is no longer cost effective for employers to deliberately violate the law. Employees who are fired for organizing must be provided with immediate reinstatement, before the intimidation kills the organizing drive. The penalties must also be increased. Restricting the penalty to the employee's economic loss has already reduced penalties to the point where they have no deterrent effect. With immediate reinstatement, this penalty will be reduced to pocket change. While the probability of killing the drive by firing the organizers will be reduced, the cost of failure will be so low that it will still be cost effective for employers to try. The penalties need not be draconian, but they need to be credible, and this cannot be achieved by restricting them to the employees' economic loss.
   
   
2. Union must be given a fair chance to tell their side of the story. For better or worse, we seem to be committed to the idea of elections. While this might be paternalistic, there's always something to be said for an open and honest debate before a serious decision is made. But we don't have that. Under Lechmere and other case law, unless it's virtually impossible to reach the workers through other means, the union is denied access to the workplace to tell their side of the story.

   The right to organize is meaningless without a free and open election, and there can be no free and open election where one side is given unlimited access to the "voters" and the other side is muzzled. This does not necessarily mean giving the workers who want to organize the right to address captive audiences of co-workers (even when the employer does so). It certainly does not mean allowing organizing to interfere with the employers' operations. But it does mean allowing unions access to the employer's property in non-disruptive ways. There is something profoundly disturbing about employers who insist that representation elections are sacred; that workers must have the opportunity to hear both sides of the issue so they can make an informed choice, and then hide behind the shibboleth of "private property" to deny workers the right to hear the other side.
   
   

3. We must modify the NLRA so that this newly revived right to organize is available to all who need it. Under the recent Health Care Corporation case, an employee who makes any decisions, even the most minor day to day ones, is a supervisor. Given the way industry is involving employees in day to day operations, it won't be long before almost everyone is a supervisor under the NLRA, and no one has even the theoretical right to join a union.

   The key to this change is eliminating the exception for supervisors under the NLRA, and modifying the exception for managers. While supervisors and managers owe their employer a duty of loyalty, this does not distinguish them from other employees. What does distinguish some senior executives is that they have significant individual bargaining power, and do not need collective bargaining to protect their interests. Rewriting the management exclusion around this concept would protect the legitimate interests of employers without denying the right join a union to those who need it.