The theme of my remarks today relate to the fact that The Old Order Faileth and it is a development very much tied to contemporary labor relations and labor laws and our search as practitioners for new answers. But, preliminarily, let me say how much I appreciate the chance to return to New England, where my great-grandfather first came after an escape from slavery, service in the United States Navy, and settling in Massachusetts in 1865; where slightly less than one-hundred years later I received my bachelor’s degree a few miles away from here; and where I have made so many good friends over the years including the late Charles Schmidt as well as Matt Bodah, both outstanding labor researchers and writers with me at the University of Rhode Island. This meeting inspires good memories of Ted’s support during my tumultuous Washington days and the help given by the late Senator John Chafee. (1)

We have made what are in some respects enormous strides since those good old and bad days of the ‘50s when segregation was still the order of the day and where President Eisenhower said that the law could not change the hearts of men, while expressing a lack of knowledge about civil rights legislation which his administration put forward. Yet Brown v. Board of Education,(2) notwithstanding the continued segregation of so much education today, did make a mighty contribution toward a different understanding of and attitude toward race, expanded upon by the civil rights comprehensive legislation of the 60’s, set back somewhat in these past couple of years since 2017.

But those 1950s, and indeed ‘60s, were truly good old days in a number of respects. The idea of a social compact between the state and the workforce was accepted by Eisenhower after 20 years of the New Deal and Fair Deal. Unions represented approximately 35% of all workers in the economy, so much a part of the economic scene as to earn the sobriquet, “Big Labor.”

Today it is very different. The social compact is in tatters, as seen by the determined undertaking to emasculate ObamaCare, the major reform of this century to date. The federal minimum wage is now 37% below its 1968 level after factoring in inflation. And 1% of households receive 22% of the nation’s income as of 2015, up from 9% in 1984—the highest percentage for the 1% since the 1920s. Inequality has grown as unions have declined, and the preponderant view is that there is a connection between these two factors.(3) And union representation has declined to 10.5% of the workforce in the private sector, slightly more than 6%—one out of every 20 workers.

The reasons for all of this are the usual suspects—foreign competition, globalization, deregulation of transportation, as well as technological innovation, particularly in the disproportionately unionized sectors of the economy. This has produced in its wake a new “contingent” workforce of part-timers or temporary workers, as the late Audrey Freedman of the Conference Board first called it, now substantially populated by an undocumented workforce encouraged by American business to fill vacancies at the price which is right—for the latter!

I well remember one of my earliest assignments on the legal staff of the United Auto Workers in Detroit in the early ‘60s. I researched labor arbitration opinions so as to challenge employers who prohibited their workers from “moonlighting.” Fast forward three-and-a-half decades later, when I was in Washington attending one of our NLRB Supreme Court oral arguments in a box seat which Justice Ginsburg kindly reserved for me and my Chief Counsel. The question before the Court was whether a so called “salt” or worker paid by the union could be afforded the protection of labor law, employers maintaining that the answer should be in the negative because, in their view, the worker was loyal to the union and not the company.

The Supreme Court held 9-0, Justice Scalia and Justice Thomas and all joining in Justice Breyer’s opinion that such union paid workers could not be dismissed or disciplined for union activity.(4) But the point here is that never once did the employer insist that such workers were disloyal because they moonlighted for another employer, i.e. in this case the union. No, the objection really wasn’t moonlighting. This would be impossible then and a quarter century later today because so many workers are employed by two or three employers, often part of the new gig economy.

Now there has been recent pushback against much of this. Workers and their union and community allies have demonstrated for a minimum of $15 per hour, more than double the federal law, and they have done so successfully in a number of jurisdictions, both in cities and states like Seattle, Mountain View, San Francisco, and on a staggered basis, even California which possesses the fifth-largest economy in the world!

We know that we are on the cusp of what may be unprecedented automation, though most remain agnostic about the extent to which it will reduce jobs and wages which substitute for  those jobs lost.(5) Now, even at the level of 2020 political debate some have argued for a Universal Basic Income (UBI), though the sobering reality articulated by Gene Sperling is that “[a] full  UBI plan that offered $12,000 per adult and $4,000 for each child under 18 would cost at least $3 trillion annually. That is nearly double what the federal government currently collects in income taxes and even approaches current revenue from all existing federal taxes together, including income, corporate, and payroll.”(6)

Nonetheless, as Sperling himself notes, the dignity of labor is best promoted by policies designed to augment the safety net, protecting against worker dislocation whether attributable to trade or technology. During the 2000 presidential campaign, Senator Bill Bradley advocated a form of wage insurance which would build on unemployment compensation and aid those workers laid off by providing the difference between the pay rate of a new job and the old one, where the latter was superior to the former. President Obama sounded this same theme anew in proposals propounded in his second term, i.e. the State of the Union Message in 2016.(7) A UBI might be fanciful but something must be done to assist those who have lost out through no fault of their own. The inability of the United Auto Workers to reverse three plant closings instituted by General Motors dramatizes this protection vacuum all the more.

Meanwhile, however beyond the $15 minimum wage campaign, there have been efforts already undertaken to limit the above noted inequities. Notwithstanding the Supreme Court’s pernicious holding in Janus that “fair share” agreements in the public sector are unconstitutional,(8) teachers have demonstrated and engaged in walkouts in numerous so called “red” states like West Virginia, Oklahoma, Arizona, and others similarly situated. California has enacted new gig worker legislation which is designed to stop the exclusion of workers from employee status by misclassifying them as so called “independent contractors” who are deprived of both labor law protection and the social safety net which we’ve inherited from the New Deal.(9)

But here is the problem. The teacher walkouts, while successful for the most part, do not seem to have institutionalized union representation where none existed previously. The $15 per hour demonstrations, however successful, don’t culminate thus far in union representation or dispute resolution systems, even though unions are involved in these efforts. And Uber and Lyft have vowed to fight gig economy labor legislation next year both in the legislature and at the ballot box.

What then can be done? The visceral reaction by many is to espouse labor law reform (and I have certainly been guilty of this myself in the past) as an answer. This is indeed part of the answer—but, upon further reflection, a very small part of it.

The California Agricultural Labor Relations Act of 1975, as amended by the Davis Administration in 2003 to provide for interest arbitration in first contract negotiations, was viewed as a dream statute from the perspective of collective bargaining proponents, seen particularly through the lens of the inadequacy of the National Labor Relations Act. I have learned first-hand from my three years as Chairman of the relevant law-enforcement agency that this statute is even more fundamentally moribund than the NLRA itself—as union organizing has itself become moribund in agriculture. The best statute cannot work in the absence of private initiative.

And here is another related problem. The evidence is that different interpretations of the NLRA itself have not affected union density one way or another.

The Obama Board, which exceeded the record of all recent administrative agencies with decisions that supported the statue’s policy objective to promote both worker freedom of association and collective bargaining, presided over a union density decline almost equal to that of the George W. Bush era. During the Bush Board (2001-2008) the density drop was 1.3% over eight years. Under the Obama Board, the drop was 0.8%.

Equally interesting, the same was true during my Clinton Board, when we used the most effective enforcement tool in the Act, Section 10(j), at historically unprecedented frequency. This section allows the Board to obtain temporary injunctive relief to preserve the status quo as it was prior to an unfair labor practice pending hearing before the agency and it thus diminished delays that undercut the effectiveness of equitable remedies including reinstatement of employees. We should strengthen this aspect of the law and mandate future boards to act with more frequency.

But in 1994, when the Board issued 104 authorizations of temporary injunctive relief in one year, a historically unprecedented number, union density declined by 0.5% in that one year.

Of course, law that is deficient should be fixed, but the number one problem of anti-union employer speech cannot be directly affected because of the constitutional protection afforded such.(10) More expansive remedies could be devised and it is consistent with common sense and equity to give unions the same access to private property to speak as employers have, a right denied today.(11) Though the repeal of the state right-to-work laws (providing not work, but just an incentive to be non-union) would make a difference, as could the enactment of California-type gig economy laws, the evidence supports the proposition that law is fundamentally subordinate or peripheral to what is done elsewhere.

In a much overlooked portion of his recent book, Steve Greenhouse(12) has written that in the ‘50s and ‘60s union organizing expenditures as a percentage of their budgets was 30%—and today it is 3%. Indeed, while John L. Lewis poured money into CIO organizing efforts in the 1930s which constituted 50% of CIO expenditures,(13) as of 1995, most unions were spending 2 or 3 percent of their budgets on union organizing.(14) The Change to Win fissure at the beginning of this century arose out of this same dispute, yet labor leaders in this century have acknowledged that only five of the AFL-CIO’s 54 unions had met a 30% goal established in the 90s by the federation’s president, John Sweeney.(15)

These facts highlight the limits of labor law which are part of the limits of law panorama. Professor Melvyn Dubofsky has noted in the context of Andrew Jackson’s defiance of the Court involving the Cherokee Nation as well as the inability of desegregation to be the “rule” rather than the “exception” that when “…common or conceptual values [clash with rules], the rules lost.”(16) That’s what seems to be happening here, in substantial part, because “…[t]he passage of time and generations does seem to have strengthened various factors that tend to ‘calm down’ our unions and their leaders.”(17)

In any event, it defies common sense to ignore the reality that this has much to do with the decline of unions, the growth of inequality in our society, as well as the fraying of the democratic process itself.

Finally, there is one further aspect of labor law reform which may have become a kind of flavor of the month—and that is the call for so called sectoral bargaining. This seems to be an attempt to emulate the German system where industry-wide bargaining results in the imposition of the bargain’s terms on those in the industry who are not party to the negotiations and agreement.(18) It may be that this would constitute a step toward more equality(19)—but the American system(20) lacks the German works councils and workers on the board (which have been advocated by Senator Warren,(21) though no unions like the UAW which have had experience with the process seem to be calling for it).(22) Similarly, the multi-employer associations which flowed easily from European employer cartelization and cooperation have not produced many multi- employer associations in this country. The system of majority rule for an appropriate unit might have to be revised because unions are generally successful, in voting elections at least, on a decentralized basis.(23) It may be that the inability of workers to have a “voice” on such a broad basis is the reason why Uber and Lyft are actively promoting sectoral bargaining in California ride-hailing.

Probably the best approach here is to repeal that portion of Taft-Hartley which precludes the NLRB from imposing a multi-employer bargaining unit. Just as should be the case in the debate over medical insurance and the single-payer system, all things being equal, let the consumer—in this case the workers—decide what suits them best.

So, one can see that there are many challenges in front of us. I suppose that my message today is that they don’t lend themselves to facile interpretation or easy resolution.

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1. William B. Gould IV, Labored Relations: Law, Politics and the NLRB—A Memoir, 161 (2000).

2. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

3. Henry S. Farber, Daniel Herbst, Ilyana Kuziemko, Suresh Naidu, “Unions and Inequality Over the Twentieth Century: New Evidence from Survey Data,” Working Paper #620, Princeton University Industrial Relations Section (May 2, 2018)

4. NLRB v. Town & Country Elec., Inc., 516 U.S. 85 (1995).

5. Carl Benedikt Frey, “The Technology Trap: Capital, Labor, and Power in the Age of Automation,” 249-50, 254 (2019); David Autor and Anna Salomons, “Is Automation Labor- Displacing? Productivity Growth, Employment, and the Labor Share,” Brookings Papers on Economic Activity, BPEA Conference Drafts (March 8-9 2018).

6. Gene Sperling, “Economic Dignity,” Democracy (Spring 2019).

7. Barack Obama, “2016 State of the Union Address” (Delivered January 12, 2016). Full text available here in The New York Times.

8. Janus v. American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448 (2018); See generally William B. Gould IV., “How Five Young Men Channeled Nine Old Men: Janus and the High Court’s Anti-Labor Policymaking,” 53 University of San Francisco L. Rev. 209 (2019).

9. In the wake of the Ninth Circuit ruling in Chamber of Commerce v. City of Seattle 890 F.3d 769 (9th Cir. 2018), invalidating a Seattle ordinance providing for collective bargaining covering ride-hailing drivers, I have advanced the view that California and other jurisdictions may enact such legislation without fear of contravening labor or antitrust law. William B. Gould IV, “Dynamex is Dynamite, but Epic Systems Is Its Foil—Chamber of Commerce: The Sleeper in the Trilogy,” 83 Missouri L. Rev. 989, 1020-1025 (2018).

10. NLRB v. Gissel Packing Co., Inc., 395 U.S. 575 (1969); Chamber of Commerce v. Brown, 554 U.S. 60 (2008). This is why neutrality pledges are most likely to produce an upsurge in unionization. William B. Gould IV, “Using an Independent Monitor to Resolve Union- Organizing Disputes Outside the NLRB: The Firstgroup Experience,” 66 Dispute Resolution Journal 46 (2011).

11. Lechmere, Inc. v. National Labor Relations Board, 502 US 527 (1992).

12. Steven Greenhouse, Beaten Down, Worked Up: The Past, Present, and Future of American Labor, 181 (2019).

13. Email from Steven Greenhouse to William B. Gould IV on October 22, 2019.

14. Rick Fantasia and Kim Voss, Hard Work: Remaking the American Labor Movement (2004), p. 133.

15. Steven Greenhouse, “Splintered, But Unbowed,” The New York Times (July 30, 2005).

16. Melvyn Dubofsky, “The Federal Judiciary, Free Labor, and Equal Rights” in The Pullman Strike and the Crisis of the 1890s: Essays on Labor and Politics (Richard Schneirov, Shelton Stromquist & Nick Salvatore eds., 1999), p. 166.

17. Richard A. Lester, As Unions Mature (1958), p. 31.

18. Rolf, David “A Roadmap to Rebuilding Worker Power,” The Century Found (August 9, 2018); Report by Kate Andrias and Brishen Rogers, “Rebuilding Worker Voice in Today’s Economy,” Roosevelt Institute (August 2018); David Madland, “How to Promote Sectoral Bargaining in the United States,” Center for American Progress Action Fund (July 2019).

19. This may seem to have been part of the assumption in the joint-employer cases which the Trump Board still is attempting to reverse. Browning-Ferris Indus. of Cal., Inc. v. N.L.R.B., 911 F.3d 1195 (D.C. Cir. 2018).

20. Bock, Derek C., “Reflections on the Distinctive Character of American Labor Laws,” 84 Harvard L. Rev. 1394 (1971).

21. It is difficult to incorporate foreign labor law without consideration of the entire system. William B. Gould IV, “Taft-Hartley Comes to Great Britain,” 81 Yale L.J. 1421 (1972).

22. Morath, Eric, “German Labor Ties Don’t Translate,” The Wall Street Journal (October 21, 2019) p. A2.

23. In this connection, the Board has held that an appropriate unit (there may be more than one) in multilocation industries is presumptively a single location. See Sav-On Drugs, Inc., 138 NLRB 1032 (1962).