The advent of Amazon to New York City has brought focus upon that company’s attitude toward labor and the relevance of the rule of law. It was President Lincoln who first told us that capital could not exist without labor. FDR tried to make this a genuine reality by establishing a mechanism through which labor rights could be made a reality in the Great Depression.
But the National Labor Relations Act, which governs labor-management relations in the private sector, has proved ineffective and inadequate in its protection of workers against anti-union tactics which frequently border upon coercion or threats but sometimes escape prohibition through the law’s vagueness.
This, along with the law’s slow-moving nature, imperils effective union recruitment drives aimed at workers fearful of retaliation for union activity. Delay in the law means that justice delayed is justice denied, workers fearing that they cannot realize the opportunity for collective bargaining in the foreseeable future.
One answer to this can be the negotiation of so-called neutrality agreements which promote a kind of code of conduct for labor and management.
City Council Speaker, Corey Johnson, questions Amazon representatives during a hearing last month. (Emil Cohen for New York City Council)
One of its most significant features is provision of union organizer access to employer property during non-working time — a feature generally unavailable by virtue of Supreme Court Justice Clarence Thomas’ maiden opinion a quarter of a century ago.
A second feature is allowing for the expedited handling of union petitions to obtain recognition and bargaining. This could involve an agreement not to appeal the New York City regional director’s decision to the National Labor Relations Board in Washington; that would save time and avoid the anti-union Trump NLRB. (Unions would prefer a so-called “card-check” providing for recognition without an election, something rarely agreeable to private sector employers.)
But the third and most controversial area relates to employer and union speech, particularly employer “captive audiences,” through which an anti-union message is given by management on company pay time and property, emphasizing employer dominance. A well-crafted neutrality approach would prohibit these tactics and it could require both sides not to disparage one another. That would provide more fairness, balance, less acrimony and a better atmosphere for the subsequent negotiations about wages, hours and working conditions.
It’s a reasonable request for the city and state to make, given that Amazon’s plans to set up shop are at least partially made possible by the taxpayers.
But there are two cautionary notes. Employers should not be gagged. Supervisors should be allowed to speak respectfully without subtle threats about job losses or closures. And a second flag for local authorities is that, while they can and should nudge the parties to negotiate, an ordinance or legal instrument providing for any or all of these features would likely be deemed unconstitutional through the doctrine of preemption, which makes national labor law supreme.
If they agree to neutralit y— genuine neutrality — Amazon, the unions and New York City can set a good example for the nation. Sensible discourse and fairness would be the beneficiaries as well as the potential to reduce inequality between the “haves” and “have-nots,” a problem that plagues our society.
Gould, the Charles A. Beardsley Emeritus Professor of Law at Stanford Law School, was chairman of the NLRB in the Clinton administration. He is author of “Labored Relations: Law, Politics, and the NLRB — A Memoir.”