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118 national lawyers guild reviewjected to the sort of unlawful threats and promises that Bronfenbrenner’sstudy shows are now par for the course. 16 Weiler’s proposal would, bynecessity, take the employer out of the administrative hearings that lead upto the election and, to a great extent, the campaigning in the days before thevote. That would mean that the employer not only does not get to weigh inon the appropriateness of the unit sought by the union or the supervisory ormanagerial or confidential status of any particular employee, but would nothave the opportunity to intimidate employees with threats of plant closureor timely discharges of union supporters. 17Either of these changes would go a long way toward the goal of allowingemployees to make up their own minds in an atmosphere free from coercion.We have, however, been down this road before: the 1977 labor law reformbill originally proposed a fifteen day timetable, which the proponents of thebill then extended to twenty-five, then thirty, and finally thirty-five days tomeet their opponents’ complaint that there was something unfair about notallowing the employer the right to voice its full-throated opposition to theunion by every lawful means available to it. 18 They used the rhetoric of theFirst Amendment and democracy to argue that there was something unfairabout not allowing the employer to use its free speech rights to communicatewith workers—roughly the same arguments that the opponents of EFCA areraising now when arguing that there is something inherently suspect abouta card check rather than a secret ballot election.The opponents of quick elections start from a false premise: the ideathat the employer should have an equal say in the Board’s definition of theunit that the union proposes to represent. There is no principled reason, totake a familiar example, why an employer’s preference for a multi-locationbargaining unit should make a difference if the union is seeking a singlelocationunit; the Board should accept the union’s proposed unit, so long asit does not offend any statutory restrictions, 19 and leave any individualizedissues, such as the supervisory status of particular employees, to be resolvedthrough the challenged ballot procedure.Employers couple their argument that the employer must be given a voicein the definition of the bargaining unit with an equally dubious proposition:that the First Amendment not only bars the NLRB from preventing themfrom speaking to their employees about the merits of unionization, 20 but thatit requires the NLRB to make sure that they have enough time to drive thosepoints home. Employers are not, on the other hand, asked to make the samesorts of concessions to unions: on the contrary, unions are not allowed ontothe employer’s property to campaign, 21 much less allowed the right to attendthe employer’s captive audience meetings with employees.
organizing—with or without the nlrb119But while quick elections would cure many of the problems with thecurrent state of the law, the Board has become so accustomed to allowingemployers to thrust themselves into these issues that the habit of accommodatingtheir interests has become part of the NLRB’s DNA and changingthis would require rewriting the Board’s rules and regulations from scratch. 22Which would probably be a good thing in and of itself, if for no other reasonthan to rouse the Board out of its current malaise.D. Privatizing the ActFinally, there are some commentators would shake up the current systemeven further by eliminating the NLRB’s exclusive jurisdiction to enforceSection 8(a)(3) and allowing private suit instead. 23 In addition to shiftingresponsibility for enforcement of that part of the Act to the District Courts,these reformers would also give the courts the power to award tort remedies,attorneys’ fees and punitive damages.This proposal has the least likelihood of passage of all of the proposedreforms—none of which, we should remember, have actually been enacted inthe past fifty years. It is also the most dubious: the courts are, if the experienceof the last seventy-five years is any guide, more conservative than theBoard on almost every issue, from finding retaliatory motives to developingthe substantive law in this area. The Board, with all its faults, is still betterthan the courts, for nearly the same reasons as 75 years ago. 24In addition, while opening up the field to plaintiffs’ employment lawyerswould benefit some workers, it would also run counter to the basic premisesof the Act. The lawyer representing a victim of discrimination is often moreinterested in recovering damages than in winning reinstatement. 25 Thatindividualistic approach to litigation of these claims might develop somegood case law and might give employers a real incentive not to discriminateagainst union activists, but it will not help workers exercise the rights thatthe NLRA promises.E. Starting OverIn the days after the catastrophe at the Massey Energy mine in WestVirginia that killed 29 miners, news outlets ran the story of the Mine Workers’three failed organizing drives at that mine. The Union lost each ofthem, despite having support from a majority of the miners according toMine Worker officials, when the Employer threatened to close the mine ifit went union. 26It does not take a change in the law to make that sort of threat unlawful.It should not take a change in the law to get the Board to force the employer
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Nathan GoettingCall for theRwandan
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Page 33 and 34: Alan ClarkeU.S. War Crimes: Torture
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Page 49 and 50: testimony on torture policy111willf
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Page 53 and 54: Henry M. WillisORGANIZING—WITH OR
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Page 63 and 64: David GespassBook Review: TheAssass
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Page 67 and 68: editor’s preface continuedFor thi
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