Oren Cass's Broken Compass

Conservative politicians and their advisers do not deserve a prominent voice in the future of labor law reform.

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A lot has been said recently about Oren Cass and his new project, American Compass. The project’s mission—“to restore an economic consensus that emphasizes the importance of family, community, and industry to the nation’s liberty and prosperity”—sounds like boilerplate language in the conservative think tank sphere. But while conservative messaging has become decidedly more populist since Donald Trump’s ascension to the presidency in 2016, evoking industrial themes and a blue-collar ethos, American Compass is unique in its explicit identification of labor unions as a necessary thread within this nationalist tapestry. Libertarian rhetoric of cartels and monopolies is jettisoned to make room for eulogization of the union wage premium.

This development may feel soothing for lifelong labor advocates. Unionists are accustomed to fighting conservatives tooth-and-nail on every matter, even their right to exist; the sight of some signing their praises is virtually unheard of. Cass correctly points out that unionization brings with it many positive consequences beyond increased wages and benefits, including family stability, lower crime rates, and cohesion of local community. These spillover effects fit snugly within a nostalgic view of mid-century America and appear to be the meat of American Compass’s pro-union pitch to reticent conservatives.

Cass does not merely invoke the imagery of union halls or member picnics and call it a day; he makes several normative claims about labor law that guide his policy prescriptions. Chief among them is the claim that enforcement of the National Labor Relations Act is broken and that its system of “enterprise-level” bargaining—by which employers are obligated to bargain only on a single-firm basis—prevents unionization from taking hold again at any substantial rate. American Compass instead champions the sort of sector-wide (“sectoral”) bargaining that is on display in much of Europe, as well as the labor-management cooperation fostered in these countries by works councils, worker representation on corporate boards, and “quality circle”-style employee committees. The inherently adversarial nature of the Wagner Act, a foolish Great Depression-era relic, is consistently skewered from article to article.

Cass’s first argument is uncontroversial. The call for sectoral bargaining is squarely within the mainstream of modern labor law scholarship, most prominently analyzed by Professor Kate Andrias in a 2016 Yale Law Journal article. Most have considered the NLRA a broken legal framework since at least the 1980s.

But Cass’s hagiography for labor-management cooperation is much more contestable, as it invokes the Republicans’ failed TEAM Act of the 1990s, which called for a massive revision to Section 8(a)(2) of the NLRA, i.e. the Act’s company unionism ban. It is unsurprising, then, that American Compass recently ran an article that implored lawmakers to revive this long-dead piece of legislation. The piece was written by the head of an American Legislative Exchange Council (ALEC) spinoff organization who previously served as a former Heritage Foundation fellow and Republican Senate staffer.  

This is where the mask begins to slip for Cass’s project. Cass himself was a top policy adviser in 2012 for Mitt Romney, who supported a nation-wide “Right to Work” law and a host of other anti-union reforms as a presidential candidate, between his stints as a management consultant at Bain & Company. The rest of the masthead has similar backgrounds. American Compass’s Research Director is a McKinsey alum and former Mike Lee staffer. Its Coalition Director most recently worked for the Federalist Society. And its Communication Director hails from a union-bashing libertarian think tank.

What about the signers of American Compass’s much-discussed mission statement? Here are just a few that stood out to me as longtime union foes:

  • Jonathan Berry, a top Department of Labor official under Trump that brags on his law firm bio about the massive deregulation achieved at the agency during his tenure.

  • William Kilberg, the lead counsel for Boeing in its NLRB litigation stemming from its unlawful attempt to transfer work from unionized facilities in Washington state to a new open-shop plant in South Carolina.

  • Jeff Sessions, who holds a lifetime score of 16% on the AFL-CIO’s legislative scorecard.

  • Marco Rubio, who one-ups Sessions with an 8% AFL-CIO score.

But the real farce here is the inclusion of G. Roger King, general counsel of the HR Policy Association and a former partner at Jones Day. King is, without exaggeration, the most prominent anti-union lawyer in the country, serving as congressional Republicans’ go-to witness for decades at any hearing that needed a voice against pro-unions reforms to the NLRA. The hearings on the PRO Act last year were no different, as King found a way to oppose every proposed tweak to the labor code among the dozens listed in the drafts. Could a man who claims to believe in a greater presence of unions in America be uniformly against every single reform that unions want?

I’m not sure what Cass expects us to think in light of these signatures. Could it really be that these men are simply opposed to “this” form of unionism, i.e., the kind that donates to Democrats? Or is this some sort of roundabout request for a more subdued labor movement? Whatever their motives, I politely request one example from Cass of any of the above-mentioned signers having come down on the workers’ side in a labor-management dispute of note.

Indeed, that’s the real test for American Compass (which, it should be mentioned, does not disclose its donors). The project professes in its mission statement to “endorse no specific proposal.” Its staff do not discuss the details of any cases in their writings. But labor law, even in countries with sectoral bargaining, is invariably a zero-sum game in which labor’s power in the workplace is expanded or contracted with every adjudicative decision regarding the scope of management’s rights and obligations. So I would love to know how a Judge Cass would rule on the following questions of industrial jurisprudence throughout history, which go much farther in exposing the substance of one’s views than vague sentiments discussed in interviews:

  • Should employers be able to permanently replace workers that strike for better wages, benefits, or working conditions? (NLRB v. Mackay Radio & Tel. Co.)

  • Should employers be able to discharge workers for property-related offenses even if those actions were undertaken in response to an employer’s unfair labor practices? (NLRB v. Fansteel Metallurgical Corp.)

  • Should employers be able to contract with union-represented workers on an individual basis, or must they bargain solely with the union itself? (J.I. Case Co. v. NLRB)

  • Should employers be able to prohibit the distribution of union materials in company parking lots or the wearing of union insignia in company facilities? (Republic Aviation Corp. v. NLRB)

  • Should unions be able to picket a construction site for the purposes of persuading a general contractor to terminate its contract with a subcontractor that the union opposes? (NLRB v. Denver Building & Construction Trades Council)

  • Should unions be able to operate hiring halls in ways that favor their members over non-members? (Radio Officers’ Union v. NLRB)

  • Should employers be obligated to provide unions with financial information to support bargaining-related claims of financial hardship? (NLRB v. Truitt Manufacturing Co.)

  • Should an employer’s bargaining duties be contingent upon “mandatory” or “permissive” contractual issues? (NLRB v. Borg-Warner Corp.)

  • Should union “membership” require formal card-carrying membership, or may it consist solely of the tendering of dues? (NLRB v. General Motors Corp.)

  • Should an employer who has discharged an employee for protected concerted activity be able to assert good-faith mistake as an affirmative defense? (NLRB v. Burnup & Sims, Inc.)

  • Should employers be required to bargain over the subcontracting of bargaining-unit work? (Fibreboard Paper Products Corp. v. NLRB)

  • Should an employer be permitted to close its business without consequence, even if the admitted reason for the closure was anti-union retaliation? (Textile Workers Union v. Darlington Manufacturing Co.)

  • Should an employer be permitted to lock out its employees solely because management believes a strike may be imminent? (American Ship Building Co. v. NLRB)

  • Should unions be able to discipline bargaining-unit employees for exceeding production ceilings set by internal union rules? (Scofield v. NLRB)

  • Should an employer that has claimed future financial hardship if its employees engage in protected concerted activity be required to support its claim with objective facts? (NLRB v. Gissel Packing Co.)

  • Should a no-strike clause be read into a collective bargaining agreement solely due to the presence of a contractual grievance-arbitration system? (Boys Markets, Inc. v. Retail Clerks Union)

  • Should employers be obligated to bargain over retiree benefits? (Allied Chemical Workers v. Pittsburgh Plate Glass Co.)

  • Should employees be permitted to distribute materials on company property that advocate positions on labor issues only tangentially related to the employees’ working conditions? (Eastex, Inc. v. NLRB)

  • Should an employer be permitted to partially close business operations without bargaining first with the union? (First National Maintenance Corp. v. NLRB)

  • Should employers be permitted to hold elected union officers to higher disciplinary standards than rank-and-file employees in the bargaining unit? (Metropolitan Edison Co. v. NLRB)

  • Should unions be prevented from restricting the right to resign membership and cross a picket line during an active or imminent strike? (Pattern Makers’ League v. NLRB)

Importantly, the outcomes of these cases are not dependent on whether the employer is bargaining on a single-firm or sectoral basis. Management rights, contractual bargaining obligations, and the scope of protected activity are things that Cass’s labor law model will all eventually have to answer, and each decision is a piece to a puzzle that will determine what strength workers have on the shop floor, at the bargaining table, and yes, on the picket lines. (For all of his talk of labor-management niceties, strike activity is generally much more common across the Atlantic than here in the U.S., especially in the sectoral-bargaining nation of France.)

As much as Cass wants to obfuscate it, the uniquely adversarial nature of American labor law is a direct descendant of our country’s uniquely bloody past. It cannot be sanitized with a policy paper or a blog post. American employers, both in their facilities and in Congress, have viciously opposed unionism for centuries and will almost certainly continue to do so. Cass’s calls for disarmament should thus be aimed at the nation’s businessmen rather than the politicians who answer their call. His current attempts at persuasion fundamentally ignore the real levers of power in this country, but perhaps we should be more skeptical of taking directions from someone who, at 37-years-old, has just now discovered that unions are a necessary component of democratic society.