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A comic strip on the AFL-CIO’s Web site this Labor Day helps explain why a growing number of labor leaders want to retire the Wagner Act-a New Deal era law that will soon turn 70-for discouraging the very thing that § 1 of the law encourages: “the practice and procedure of collective bargaining.” In the strip, Vivian Voice runs for Congress as a good government candidate. But there’s a catch: She has to play by the same rules that unions do when they try to organize workers under the Wagner Act. This means Vivian won’t qualify for the ballot unless she first persuades a whopping 30% of the eligible voters to sign a petition supporting her. Fortunately, Vivian is entitled to a list containing the names and home addresses of eligible voters. Unfortunately, the list is controlled by her opponent, the incumbent Congressman Joe Powers. Joe doesn’t have to share the list with Vivian until a few weeks before the election, when it is too late to help her. Meanwhile, Joe may hold campaign rallies as often as he wants, and can even force voters to listen to his speeches. But Vivian can be barred like a trespasser from setting foot in her own district. She won’t earn the right to do that unless she manages to win the election. She will have to stand at the gates outside the community and wave signs or shout about her qualifications as voters come and go. No wonder union organizers try to avoid the National Labor Relations Board (NLRB), the federal agency having sole power to enforce the Wagner Act. Unless a union has more leverage than Vivian Voice does, and can use to it to broker a deal to gain representative status, the board must hold an election rigged in favor of the employer (like Joe Powers’). Although the letter of the law encourages employees to choose collective bargaining, overreaching board members and activist federal judges have written so many pro-employer interpretations into the Wagner Act that it is nearly impossible to conduct a fair election. At first, the statute was applied in a way that protected employees’ rights to choose representation. Unions used to win 80% of elections governed by the statute; they now win less than half. In the mid-1950s, nearly 40% of private- sector workers had collective bargaining rights. Today that figure has dropped to less than 10% of U.S. employees, or about the same percentage as before the Wagner Act was passed. Surveys show that millions more would sign up with unions if only they could. A complex picture To be sure, there are a number of reasons for the declining unionization rate: employers’ growing power to ship living-wage jobs overseas, the labor movement’s long-time failure to invest in organizing and the nonunion preferences of a more professional work force are some of them. Those factors are largely beyond the reach of the law, but activism by bureaucrats and judges in suppressing Wagner Act rights is not. The older the statute gets, the more likely it becomes that employee rights will go unprotected. In an era when one in 10 workers is fired during the campaign leading up to a union election, only a hero or a fool would risk his livelihood by participating in one. Indeed, labor leaders such as AFL-CIO Vice President Richard Trumka have called for abolishing the law altogether. So, at age 70, should the nation’s basic labor law finally be retired? I say no. The answer is not to repeal the only law holding out the promise of workplace democracy, but to press the NLRB and the federal courts to restore that promise. They can do this by overruling prior misinterpretations of the law’s plain language relating to employee free choice. For starters, the U.S. Supreme Court should overrule its 1992 decision in Lechmere v. NLRB, which created an artificial distinction between nonemployee organizers, who can be barred from employer premises and employee organizers, who have the right to campaign for union votes at work. Section 2 (11) of the Wagner Act, which defines “employee,” makes no such distinction. Activist judges should not have invented one. The justices also should throw out their 2002 decision in Hoffman Plastics. In a cruel blow to immigrant Latino and Asian workers, the case held that undocumented aliens may be denied back pay even when they have been fired in blatant violation of their Wagner Act union organizing rights. Congress never contemplated such an outcome. The court had no business rewriting the laws to manufacture that result. As Ellen Dannin of Wayne State Law School has pointed out, many other activist decisions can be targeted for revision through litigation. Such a strategy was used by the National Association for the Advancement of Colored People when it fought to overturn Plessy with Brown v. Board of Education. No American voter would put up with the special rules applied to Vivian Voice. Nor should any American employee. Christopher David Ruiz Cameron is associate dean for academic affairs at Southwestern University School of Law and chairman of the labor relations and employment law section of the Association of American Law Schools.

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