The MacNeil/Lehrer Report; Carter and Labor Reform

ROBERT MacNEIL: Good evening. Nobody could accuse the American people of conducting a passionate love affair with organized labor just now. Union members represent only a quarter of the work force in private industry, and membership has not been growing dramatically. Labor thought it was catch-up time when a Democrat entered the White House after two Presidents perceived as more friendly to business. But Mr. Carter disappointed labor in his first few months, hustling the business community like a Republican and offering no help when labor went down to a painful defeat on the common situs picketing bill.

Now, most commentators agree, Mr. Carter appears to be trying to make it up, to make labor feel loved. He`s thrown White House support behind a bill to reform labor law in a way business strongly dislikes.

Tonight, as Congress digs in for a real battle on the controversial legislation, Jim Lehrer and I examine the politics and the content of labor reform. Jim?

JIM LEHRER: Robin, the person responsible for formulating and then implementing the administration`s labor policy, of course, is the Secretary of Labor, Ray Marshall. Secretary Marshall was a Professor of Economics at the University of Texas before joining the Carter cabinet. He`s a Southerner by birth, growth and education, and his academic and work specialty had been in the areas of rural poverty and the disadvantaged worker. Organized labor warmly welcomed his appointment as Labor Secretary.

Mr. Secretary, going in, everyone expected the administration and organized labor to get along beautifully. What went wrong, sir?

RAY MARSHALL: Well, I`m not sure anything really did go wrong, except people started making their judgments too early. So far as I can determine, there was some early disagreement over policies like how fast we ought to proceed with our economic stimulus package and some disagreement early over the level of minimum wage, but I think it`s easy to exaggerate the areas of disagreement. We didn`t disagree over the directions that we were following our objectives; we simply disagreed mainly over magnitudes and those kinds of things, and I think that that`s understandable because the administration has to take a broader view than the labor movement.

My own view is that the things that we have in common are much more important than the things that tend to divide us, and that has always been the case.

LEHRER: Some have suggested that organized labor really expected too much going in. Is that true, do you think?

MARSHALL: I`m not sure. It`s clear they expected more in some of these early things than the administration gave.

LEHRER: You know, Albert Shanker -- the president of the. teachers` union - - said recently, "Of all the groups that contributed to Carter`s election, labor has been treated most shabbily." Is he right about that?

MARSHALL: Well, I don`t think that. Of course, I haven`t made a list of shabby treatment. (Laughing.)

LEHRER: (Laughing.) You wouldn`t put it on the shabby list.

MARSHALL: No, but I don`t think it`s fair to characterize the administration`s treatment of organized labor as shabby, or of any other group in this society.

LEHRER: As Robin just said, it`s been widely said that this new labor law reform package of the administration is an attempt to mend some fences, to kiss and make up, so to speak. Is that correct?

MARSHALL: No, that`s not correct. We always had in mind the labor law reform package from the very beginning; it was not calculated in any way to change a relationship. What we tried to do in putting that package together was ask ourselves what needed to be done to make the law more effective than it was. We consulted widely with labor and business groups in the formulation of that package that we finally put together, and on the basis of that it appeared, of course, that the timing gave a lot of people the impression that it was a conscious effort to mend relationships but basically it was a scheduled event that came along pretty much as we had scheduled it.

LEHRER: Was it labor`s idea or was it the administration`s idea?

MARSHALL: Well, we worked together on it.

LEHRER: And you did work with management also?

MARSHALL: Oh, yes, we discussed it with a wide number of groups of people who are experts in labor law matters and with the National Labor Relations Board itself, with organized labor and others, so that I don`t think that you could characterize it as something we just all of a sudden did. I had it as an original objective of the Department of Labor is that we would try to do some things to reform the labor laws and make them more effective.

LEHRER: All right. Let`s quickly run through what the proposals are for reform. They seem to fall into two major categories. First, speeding up the processes of the National Labor Relations Board in labor representation elections and also in the handling of unfair labor practices charges. In general terms, how do you want to do this, and why?

MARSHALL: Well, I think that actually there are three categories of objectives. The first thing I think it`s important to say is that the basic purpose of the National Labor Relations Act when it was passed in 1935 was to make it possible for workers to organize and bargain collectively through representatives of their own choosing. We think that that`s good policy and remains the policy. The choice ought to be theirs. And all that we have proposed is designed to improve the choice of the workers. One thing that we have found from the experience since 1935 is that many people have been able to thwart that basic objective by delays in the operation of the board. There are all kinds of legal tricks that can be used to delay the election process in order to achieve a particular strategic objective. We think that`s unfortunate and interferes with that basic right of the employee.

A second thing that we`ve found is that we`ve added to the Act twice since 1935 penalties against unions for violation. There were no unfair labor practices of unions originally. They have been added to the Act by the Taft-Hartley Act and by the Landrum-Griffin Act. But what has happened on the unfair labor practices against employers and the remedies against employers is that some employers have found it more profitable to disobey the law than to obey it, and the remedies, therefore, have not been very effective. So a second category is to improve the remedies so that you correct that process...

LEHRER: That was my second category, remedies.

MARSHALL: And the third category is to do some things to strengthen the rights of employees to organize and bargain collectively -- primarily to make it possible for workers to have equal access to information during an organizing campaign and to make it possible for plant guards to organize in unions where that union does not represent other employees in the bargaining unit -- the same plant -- where it exists. So those three categories are to improve the efficiency of the board and to ...

LEHRER: Make everything happen faster.

MARSHALL: Well, faster and more efficiently. And the second thing is to strengthen the remedies, and third, to strengthen the rights of certain employees and certain kinds of rights.

LEHRER: Mr. Secretary, thank you. Robin?

MacNEIL: One of the top labor men involved in negotiating the new legislation with the Carter White House was Thomas Donahue, Executive Assistant to AFL-CIO President George Meany. For this job Mr. Donahue was Vice President of the Service Employees Union. Mr. Donahue, what are the most important things that labor believes it is getting from this bill?

THOMAS DONAHUE: On the assumption that the bill passes, we think that labor won`t gain so much as the people who choose to join unions will gain. The problems with the current bill are as Secretary Mar shall has outlined them. The delays are built into everything that happens at the board. The remedies are unfair, they`re inequitable or they`re insufficient, simply, in terms of the employees who are disadvantaged by an employer`s unfair or illegal practice, and the remedies which are available to them are simply insufficient.

MacNEIL: Can you give us an example of how it`s unfair at the moment?

DONAHUE: Sure. I guess the most glaring examples are to talk about how people in the process seek to form and have a union for themselves. When that happens, very often there is a discharge of the ringleaders of such an outfit or the people primarily involved in that effort. The employee then goes to the National Labor Relations Board and files a complaint, and says it`s very unfair. The law says I have a right to form and join a union, and I`ve been discharged because I`ve been trying to do just that. Under the way the` law operates currently, in about 375 days the board will say, assuming the employee`s case has merit, "You`re right, and you`re entitled to a remedy. You`re entitled to be reinstated to your job and you`re entitled to be made whole for the lost wages." But that`s really hardly an adequate remedy to an employee who was discharged a year ago, even assuming he gets it at that point. The fact is that in many of those cases he doesn`t get the remedy at that point.

The employer contests the board`s decision, and the average time lapse then is at least another year in the courts. So you have a worker who`s discharged because he did what the law says he can do sought to form or join a union -- and two years later, perhaps, we`re talking about the amount of money that he`s lost in that two-year period; what`s happened to his family or his ability to live during that time nobody`s able to redress.

MacNEIL: Did you get everything you wanted, from organized labor`s point of view, in this bill?

DONAHUE: No, I don`t think so.

MacNEIL: What didn`t you get?

DONAHUE: Well, I think that we have a lot of conceptions about what is fair and what ought to be in the initial organizing process and in the initial collective bargaining process, and we have some perceptions about what changes ought to be made in the collective bargaining relationships of existing unions and employers.

MacNEIL: This bill does not address those.

DONAHUE: This bill doesn`t address those at all, but more importantly, even in the first theory it`s our perception that the system which now operates in Canada whereby when fifty-five percent of the people in any plant or shop say that they want a particular union to represent them, that they are members of that union, the Canadian boards -- at least, in the three or four most populous provinces -those provincial boards of labor relations then say, "All right, we will certify the union on that basis." The law says here in the United States that the employee is entitled to be recognized and to have his union recognized by the employer. We still think that`s the law, but the fact is that the popular perception has grown over the last twenty years that what the employee is entitled to is not recognition but an election.

We thought therefore that we should have recognition simply on the basis of being able to prove that a majority of the people in a particular plant are members of the union and then the process ought to go forward.

MacNEIL: But you didn`t get that one.

DONAHUE: No, because the popular perception is against that view.

MacNEIL: Can I ask you one more question: there are several rival bills sponsored by Republicans, chiefly Senator Griffin in the Senate and a group of several Congressmen in the House. Most of them seem to stress the remedies for abuses by unions as well as abuses by employers. What is your attitude to the thrust of those bills?

DONAHUE: I think that the introduction, at least, of the bill on the House side -- I haven`t seen the language of the bill on the Senate side -- but the introduction of the bill drawn by the major corporations and introduced by Congressman Erlenborn calling itself an employees` bill of rights is to my mind an effrontery of the worst order. I don`t think that the employees of this country really believe that the employers are going to design a bill to protect their rights; that, at least, hasn`t been the history of things in the United States.

The bills address themselves not to employee rights but to restricting what the employers see as union strength, and the entire thrust of the bill is to weaken the ability of unions to represent the members who choose to be represented by a particular union. The employers` bill says in one section that the employer should be entitled to demand every thirty days during a strike that the union take a vote of the members who are on strike. Well, we really think that`s a bit of effrontery on their part. The members -- the workers in a particular plant -- form and join a union, they make the rules by which they govern their own conduct, and we think it`s presumptuous at least for the employer to say he`s entitled to that right in the middle of a strike. More importantly, any professional would know that that`s simply, absolutely disruptive of the bargaining process.

So all of that is an example, and all of the other things in the employer bill, to my mind, are efforts to hobble unions in the collective bargaining process and they don`t address themselves to the problems that this bill -- the administration bill --addresses itself to, which is to deliver on the promise of the Wagner Act to workers that they would be able to form or join a union without intimidation, harassment, coercion, and that they would be able to move to the early stages of first collective bargaining with their employer. The administration bill addresses that problem; the employer bills are an effort to hobble the unions in their existing relationships.

MacNEIL: Thank you, Mr. Donahue. Jim?

LEHRER: All right, now for the other side, the view of business and management, from Heath Larry, Vice Chairman of the Board of U.S. Steel and the newly elected President of the National Association of Manufacturers. The NAM is one of the oldest and strongest trade and lobbying organizations representing American business and industry. Mr. Larry, you and your organization are very much opposed to the administration`s bill. Why, sir?

HEATH LARRY: Yes, we are, and it`s rather interesting to see how one can look at the same animal and define him in such different dimensions as apparently we`re doing tonight, because I think we share a concern for employee rights, I think we share a concern for expedition; but we are a little afraid that what`s being tried here is really to kind of shoehorn unions in even without the opportunity for employees to have a fair chance to express their views.

Let me start with an illustration: I think fifteen days where cards are claimed for as many as, what, forty or fifty percent is a pretty radically...

LEHRER: All right, now, let`s explain that. That`s talking about cards that people sign...

LARRY: This is for an election, right.

LEHRER: And that would be the fifty-five percent thing that you cited a moment ago.

LARRY: Let me go back to that for a minute. I think any of us who have spent any time tilling in the vineyard are quite aware of how easy it is to get cards from employees saying that they want to be represented. Sometimes we end up with the same fifty-five percent from two different unions, as a matter of fact, you know. I don`t want to get into that, but you know, people going home wanting to get home and see their families...

LEHRER: But of course that`s not in the...

LARRY: ..big argument, that isn`t in the bill. But we do have fifteen days for what I`d call a sneak election. At that point the probability is that the union`s been around doing quite a lot of politicking; as a matter of fact, it appears to be legal for them to go visit in the houses, which it is not for employers; it is legal for them to make promises in a way which it is not legal for employers to do. And if you end up with this deck of cards laid on the table with a potential for an immediate election of fifteen percent, there is no opportunity to find out what they promised, whether it was just or whether it wasn`t, and to make a decent opportunity for the employees to express a preference.

LEHRER: All right. Now, that, Mr. Larry, falls into this whole category of expedition, is what the Secretary would call that -- various time limits set. But are there other objections on...

LARRY: That`s one. There are many in terms of objections to the bill, as far as that`s concerned.

LEHRER: But on this thing of speeding up the process.

LARRY: Well, there are other things potentially done in the name of speed- up which I expect are really going to frustrate the process tremendously; for example, the increasing of the board to seven members unless there`s a radical change in the procedures now indulged in by the board which although results in the three-man panel making a decision and then an opportunity for the other two to review it. And that takes time. Now, if we go to seven and we have to allow for four other people to review it, unless we give up the idea of having an opportunity for the full board to review what is being done and try to achieve a sense of consistency in the decisional process, I think you`re going to really slow the place down or result in a horrible mess-up in lack of consistency.

LEHRER: Let me make that clear: the administration`s bill calls for the expansion as you just laid out.

LARRY: That`s right. Now, you talk about the problem of discharges during a campaign; it`s interesting that the problem of discharges following a campaign is not nearly the same as far as the bill is concerned. I`ll tell you this: what it does is almost put the burden on the employer -- an almost impossible burden, even if he has an absolutely just case for discipline for failure to do the work. If it happens during the campaign, he puts a horrible burden on his back to try to sustain what he`s doing, and he`s liable to have a fellow put back who has no business being put back there. And I tell you, if anything`s going to ruin discipline in a plant, that`s a real potential.

Now, going down the road: I think this business of blacklisting those who - - even repeated offenders -- is a remedy which has no place in the whole process, and I was interested to realize that a year ago the counsel for one of the major unions expressed the same view because it amounts to throwing the baby out with the bath water. You`ve got a problem with respect to an employer, maybe he`s abused the privilege with respect to an employee; but you`re going to throw 500 people out of work because of that problem? That doesn`t make sense at all.

LEHRER: Here again, let me explain: this is a proposal on the remedy section that an employer that had been adjudged a flagrant violator would be denied federal contracts for three years, et cetera.

LARRY: And then there`s another one where there`s virtually the opportunity to impose first agreements in the event that the employer has been guilty of unfair -- "guilty" is not a good word; tried -- for unfair labor practice. And you know, one of the ways you finally get around to having a legal determination of an unfair labor practice is to risk the violation, then go to court. It`s like your tax problems: sometimes you have to risk the violation in order to get a determination. And I think the idea of having imposed settlements in that kind of a case is an abomination.

Now, finally -- one more and then we`ll get on to some other subjects -- I am greatly disturbed by this business of upsetting a very fine balance between what can be done by unions and what can be done by employers during a campaign period. As I said a little bit ago, if we`re going to start to upset it and give the unions a right to address employees within the plant and the dimensions given in the bill, then I think we`d better start looking at some other things. We`d better start asking whether it`s just as proper for employers as unions to go visit the employees in the home, whether it s just as proper for employers as unions to make the kinds of promises which are made during campaigns, whether it`s just as proper for employers as unions to ask for lists -- and maybe we`d be entitled to their lists of those whom they`d lined up in advance, that kind of thing. You know, that`s a very delicate balance and I think it has been very finely worked out over the years and I`m greatly disturbed that if you`re going to try to preserve something fair for employees -- and I realize that he says I`m kind of arrogant in saying I`m concerned about employees, but I do point out that at this point he`s representing about twenty-five to twenty- eight percent of the work force. There`s a vast non-unionized group out there who I have no evidence has been brainwashed or forced into the position that they are, and I don`t believe it to be the case, and I think we have just as much right to speak for them as they do.

LEHRER: All right, let`s flesh some of these things out. Robin?

MacNEIL: Mr. Secretary, as I understand the business objection and their supporters` to the bill, as Mr. Larry has just indicated, is that it tilts the balance away from the delicate balance that exists now, in their view, and tilts it dramatically in favor of labor. How do you answer that, that this is a deliberate tilting in favor of the labor side of the equation?

MARSHALL: I think you`d really have to strain to make that argument. I don`t see anything in the bill that does anything to force anybody to join a union or to force anybody to sign a contract under any circumstances. The only thing that I see that we do in this bill is to make it difficult to delay the election process so that the workers can make their free choice and to increase the remedies. And I might say with respect to the provision that Mr. Larry talked about with equal access to information, it doesn`t say anything there that the employers, cannot visit the homes of the employees; in fact, the board was backing away from that.

LARRY: The decision goes against that, though.

MARSHALL: Well, what we say here is equal access of employees, and what we recommended would only permit the union to get access to the employees if the employers first take some action to address the employees or otherwise get information to them and the board would judge that the union didn`t have equal access. So I don`t really think that this would do anything other than make it possible for the worker to express his choice more effectively and to bring remedies against people who consciously, intentionally and habitually violate the law.

MaCNEIL: So you use the word "remedies." One of the phrases that keeps recurring -- for instance, it`s language that`s been used by Senator Griffiths and others -- is that it is changing the philosophy from one of remedy to one of penalization of employers. What is your answer to that?

MARSHALL: Well, I think that`s not correct, either. There`s nothing punitive in this legislation. It`s mainly designed to correct the imbalance that presently exists, and that imbalance is that in many cases -- not a majority by any means, but in many cases -employers have found it cheaper to disobey the law than to obey it. And all that the increased remedies section is designed to do is to put some teeth in those remedies so that you correct that imbalance.

MaCNEIL: Mr. Larry, do you and the people who see it your way believe that this is going to greatly increase the proportion of union workers in the economy? Is that one of your fears?

LARRY: I don`t know that for sure, but I do think that it gives a union an opportunity to use pressure tactics which I would like not to see them have the opportunity to use. I don`t believe either unions or employers ought to have the opportunity to use pressure tactics in this kind of a situation. I stand just as strongly as Tom Donahue or as the Secretary does in saying that the most important thing we can do in this whole thing is to ensure that employees have the opportunity freely to express their views free of the pressure of either unions or management.

MacNEIL: I wonder what Mr. Donahue`s view is on that business of whether it`s going to increase union membership?

DONAHUE: Well, let me first come out against pressure tactics. I share Heath`s view that we shouldn`t use pressure tactics -- whatever that means. Will it increase union membership? I`m a union believer, obviously, so I think that it will. I think that people given a free and unfettered choice will choose to join,-and I think they will do that in probably larger numbers than they do now. But I don`t think that ought to be the test of the bill. The test of a free election in our local or federal elections is that everybody`s able to make their choice, not how it comes out. And if you were to ask me five years from now, if you were to come and say, "The bill was passed and membership didn`t go up. What do you think now?" I`d have to say fine, as long as the people had an opportunity to choose I`d be for it.

LEHRER: We just have a couple of minutes left and I wanted to ask each one of you whether or not this is going to turn into one of these very bloody, all-stops-out fights. Is business -- are you going to the mat on this one, sir?

LARRY: Let me say we`re greatly concerned about it, and we are certainly ready, I believe, to turn out fully as much effort -- perhaps more -- as was the case in situs picketing, because I think that more is at risk over the long run.

LEHRER: From labor`s point of view, how important is this?

DONAHUE: I can`t see what`s at risk in the long run except making the process work better, giving people an opportunity to choose; and when people are hurt by an illegal act of an employer, giving them more adequate remedy. Is it an important thing? Sure, it`s a very important thing.

LEHRER: How important is it to labor? Are you organizing a major effort to ...

DONAHUE: Oh, sure, we are indeed. We`re working with all sorts of coalition groups right across the country who support the point of view. There have been a number of editorials in the New York Times and others already supporting the legislation.

LEHRER: Mr. Secretary, is the administration going to do anything other than propose it? Are you-all going to go up there and fight on the Hill for it also?

MARSHALL: Yes. This bill is perfectly compatible with the President`s main objective for government, which is to make it work better, make it more responsive. It`s compatible with his concept of reorganization and efficiency, because that is really the main thrust of the bill.

LARRY: I`m a little interested in that one, because one of the aspects for efficiency, frankly, is one of the items in one of the other bills. Mr. Erlenborn`s bill would propose removing the opportunity of unions to impose fines for failure to ...

LEHRER: Speaking of efficiency and speeding up, we`ve got to go. Robin?

MacNEIL: Yes, thank you all very much, gentlemen. Good night, Jim.

LEHRER: Good night, Robin.

MacNEIL: That`s all for tonight. Jim and I will be back tomorrow night and other news permitting, our story will be what`s left of Carter`s energy program. I`m Robert MacNeil. Good night.