Rights Not Interests: Resolving Value Clashes under the National Labor Relations Act by James A. Gross (review)

The proportion of workers in the United States represented by a union in the private sector is now lower than before the National Labor Relations Act (NLRA) was passed. Since the mid-1970s, we have watched a steady decline of the labor movement that has lately accelerated, arguably to a collapse. The causes of this collapse are many—changes in our economy from a predominantly industrial character to a service-oriented character; evolving business models, particularly the fissuring of those models, that make traditional organizing strategies ineffective; and US trade policy that puts tremendous downward pressure on wages for American workers. There also is a set of causes that are more clearly intrinsic to the National Labor Relations Act—weaknesses there from enactment and others introduced over the years. Professor James A. Gross has produced some of the most insightful and important chronicles and analyses of those intrinsic factors for decades.

Gross's latest book, Rights Not Interests: Resolving Value Clashes under the National Labor Relations Act, takes us into the heart of the NLRA to explain why the right to collective bargaining is in such peril. He pins the current crisis to a clash between those who see the foundation of the act as a mechanism to mediate conflicting interests between capital and labor and those who see the foundation as a statement of fundamental human rights. Unsurprisingly, he uses this book to argue that the "interests" team is winning over the "rights" team and that only an updating of the Act grounded in a human rights framework will turn around the current decline.

On his way to making the case for the human rights framework as the moral and practical answer to what ails the NLRA, Gross takes us on a journey through the history of NLRB cases as seen through the interests-versus-rights lens. For labor law scholars and practitioners, it is a quick compendium of the greatest hits of board cases with lots of behind-the-scenes context that actually makes for a fascinating read. For example, we are treated to a personal portrait of the chairs of each NLRB from the Eisenhower administration through the Obama administration and anecdotes that reveal the relationships between the board members. As expected, we see repeated swings in policy between Republican and Democratic majorities on the board. Gross shows how, especially in more recent Republican administrations, board members and the courts have pushed the board's center of gravity further and further to an interests-based interpretation of the Act and thereby toward an interpretation more and more hostile to the right of collective bargaining and more deferential to employers' economic, speech, and property rights.

Maybe unexpectedly, the story that Gross tells leads to the conclusion that interpersonal conflicts among board members and the personality of board chairs have contributed to this overall rightward shift of the interpretation of the Act. Gross paints a portrait of Chair Frank McCulloch as a strongly principled leader, whose firm belief in the central role of labor rights in advancing social justice moved the board in a progressive direction after the retrenchment occasioned by the Taft-Hartley amendments. After the McCulloch era, however, we see repeated shifts in policy back and forth, with the board operating within a relatively narrow range until Chair James Dotson used his strong personality to make a more dramatic shift to the right. In his retelling of the history of the board during President Bill Clinton's tenure, Gross again posits that the personality of the chair, this time William Gould, influenced the development of the law. He shows how conflicts between board members and clashes with Congress inhibited even the most progressive board members from repositioning the NLRB's ideological center.

When Gross gets to the Obama administration, he rightly portrays Chair Wilma Liebman as dedicated to his rights-based interpretation of the Act...