Labor Law Is Failing Us. It’s Time To Push for a New Labor Act.

Shaun Richman November 23, 2015

Auto workers at the River Rouge auto factory in Detroit submit their ballots for a union. (Library of Congress)

The Employ­ee Free Choice Act (EFCA) was a bad bill, and it is dead­er than dead. It is time for labor to pro­pose a com­pre­hen­sive set of amend­ments to the nation’s pri­ma­ry col­lec­tive bar­gain­ing law, the Nation­al Labor Rela­tions Act.

EFCA would have guar­an­teed a union’s right to a first con­tract, imposed puni­tive fines on employ­ers that break the law and cer­ti­fied new union bar­gain­ing units by card check. EFCA was labor’s stalk­ing horse for years before it effec­tive­ly died when the Tea Par­ty con­gress took office in 2011. It was our pri­ma­ry way of artic­u­lat­ing to allies and leg­is­la­tors how the law stacks the deck in favor of the boss. It was our main vision for reform, mem­ber­ship growth and power.

Our allies look to the unions for our plan to restore work­ers rights in this coun­try. If we don’t pro­pose a new work­ers law, they will con­tin­ue to flog the dead horse of EFCA.

The prob­lem with EFCA was that it was too nar­row­ly con­ceived and the card check pro­pos­al was a blun­der. Indus­try pounced on it, wag­ing a high-priced media cam­paign decry­ing how un-Amer­i­can it was that unions want­ed to do away with the sup­posed sanc­ti­ty of the secret bal­lot in cer­ti­fi­ca­tion elec­tions. Nev­er­mind the fact that such elec­tions are a farce that would make Vladimir Putin blush; that the boss gets to draw up the vot­er list and watch­es every employ­ee walk into the vot­ing booth after hav­ing spent months threat­en­ing their jobs if they vote against his wish­es and just gen­er­al­ly scar­ing the shit out of peo­ple. (Although, hav­ing writ­ten that, it occurs to me that I’ve described a very Amer­i­can way of con­duct­ing an elec­tion. But I digress.)

The media onslaught had the effect of tem­porar­i­ly degrad­ing pub­lic opin­ion of unions, and Oba­ma did not pri­or­i­tize the bill dur­ing the two years when his par­ty con­trolled Con­gress. But Obama’s indif­fer­ence did labor the favor of spar­ing us the humil­i­a­tion of not gain­ing sig­nif­i­cant­ly more new mem­bers had EFCA passed.

I’ve orga­nized under pub­lic sec­tor card check sys­tems, as well as under pri­vate card check agree­ments. It’s nice. It’s also more demo­c­ra­t­ic. But, at best, card check helps work­ers who already want a union and who are already work­ing with a union’s orga­niz­ing depart­ment to pos­si­bly side step some of the worst parts of a boss fight. Cre­at­ing the con­di­tions for the great upsurge in union mem­ber­ship that this coun­try bad­ly needs will require more than a nar­row tweak of the law.

But nar­row tweaks are all that labor seems to put for­ward. In the Clin­ton years, unions mere­ly sought a ban on the per­ma­nent replace­ment of strik­ers. Like Oba­ma, Clin­ton failed to pri­or­i­tize labor law while he had a con­gress he could work with. Today, the clos­est thing that unions have to a pro­pos­al for labor law reform is actu­al­ly an amend­ment to fed­er­al civ­il rights statute. Richard Kahlen­berg and Moishe Marvit’s pro­pos­al to make union orga­niz­ing a civ­il right is a tac­it admis­sion that the labor act is just too dif­fi­cult to amend. It is.

For 30 years after the pas­sage of the 1947 anti-union amend­ments to the labor act, full repeal of Taft-Hart­ley was labor’s main leg­isla­tive goal. George Meany’s AFL-CIO cam­paigned — unsuc­cess­ful­ly — for repeal like a spe­cial inter­est. There was lit­tle recog­ni­tion from the broad­er pro­gres­sive move­ment that Taft-Hart­ley — which carved work­ers out of cov­er­age, restrict­ed unions’ abil­i­ty to engage in sol­i­dar­i­ty job actions and legal­ized right to work” — was designed to kill the labor move­ment and had, in fact, kicked off the long, slow decline that are we still experiencing.

Our new reform pro­pos­al should aim to undo the worst of Taft-Hartley.

There will be no sig­nif­i­cant labor law reform for many years. Wash­ing­ton will remain grid­locked, and even if the Democ­rats did con­trol all branch­es of gov­ern­ment, they won’t move on our bill with­out a huge amount of pres­sure. This sad polit­i­cal fact should lib­er­ate us to pro­pose a sweep­ing bill that gets at the heart of what con­sti­tutes eco­nom­ic pow­er and civ­il rights. We should empha­size reform pro­pos­als that demon­strate how cor­po­ra­tions want one set of rules for work­ing peo­ple and anoth­er one for them­selves. Here are some ideas for how to do just that.

Equal time. Why do boss­es get to force employ­ees to sit through manda­to­ry anti-union pre­sen­ta­tions where lies by omis­sion and out­right lies are pre­sent­ed with no debate or chal­lenge? The orig­i­nal Labor Rela­tions Act declared it the pol­i­cy of the Unit­ed States to encour­age col­lec­tive bar­gain­ing, and to restrain employ­er inter­fer­ence with work­ers’ orga­niz­ing rights. The con­cept of neu­tral­i­ty was inher­ent in the law. Employ­ers suc­cess­ful­ly argued that it was uncon­sti­tu­tion­al for the gov­ern­ment to pre­vent them from say­ing any­thing at all about their opin­ions on union­iza­tion. Employ­ers now use their con­sti­tu­tion­al­ly pro­tect­ed dog-whis­tle speech to ter­ror­ize employ­ees out of want­i­ng a union. (Rid­dle: When is a threat that you will lose your job if you vote for a union not a threat? When it is phrased as a pre­dic­tion of what might hap­pen if a union forms and the com­pa­ny becomes uncom­pet­i­tive!”)

Fine, you have a right to free speech. But what right do you have to make your employ­ees attend a debate” where only the rep­re­sen­ta­tives of the no” option can speak? An equal time pro­vi­sion for manda­to­ry dis­cus­sions of union­iza­tion, that made the non-invi­ta­tion or non-atten­dance of a yes” rep­re­sen­ta­tive an unfair labor prac­tice could serve to end the prac­tice of cap­tive audi­ence meet­ings alto­geth­er. Regard­less, think of the fun of mak­ing Rick Berman or the Cham­ber of Com­merce defend the pro­pri­ety of a restrict­ed, one-sided debate.”

Finan­cial penal­ties. Don’t do the crime if you can’t pay the fine. Seems per­fect­ly rea­son­able, right? Unfor­tu­nate­ly, the NLRB is lim­it­ed to reme­dies that make whole” an employ­ee who is fired for union activ­i­ty. Worse than that, tech­ni­cal­ly the Board is sup­posed to sub­tract any unem­ploy­ment insur­ance or oth­er wages made in the inter­im from a back pay award. So, if an employ­er fires a union leader on the eve of a union elec­tion, his only pun­ish­ment is to pay what he would have paid any­way minus what­ev­er the employ­ee was able to scrape togeth­er while wait­ing to get her job back.

Obvi­ous­ly, this incen­tivizes employ­ee ter­mi­na­tions dur­ing an orga­niz­ing cam­paign, as the fine is far cheap­er than bar­gain­ing wages and ben­e­fits increas­es for all the work­ers. EFCA con­tained a pro­vi­sion for real fines against employ­ers who fire union activists, but that didn’t get enough atten­tion over all the noise about card check. This pro­vi­sion should be a focus of future leg­isla­tive efforts. There is no short­age of work­ers who can tes­ti­fy about how hor­ri­bly they were treat­ed by union-bust­ing employ­ers, and these sto­ries must be told.

But why lim­it fines to cas­es of ter­mi­na­tion? Any vio­la­tion of the act, par­tic­u­lar­ly egre­gious on-going vio­la­tions, should face a poten­tial rem­e­dy of fines. The NLRB would be entire­ly self-fund­ed if it could impose fines for the ram­pant vio­la­tions of the act that employ­ers com­mit. Hell, it could be an income gen­er­a­tor for the entire fed­er­al gov­ern­ment. And what would employ­ers’ argu­ment against finan­cial penal­ties for break­ing the law be? It couldn’t be any­thing more sophis­ti­cat­ed than we just think we shouldn’t have to take this law seriously.”

Orga­niz­ing rights for super­vi­sors. The idea that super­vi­sors are not work­ers and don’t belong in a union is an ide­ol­o­gy that was foist­ed upon us by Taft-Hart­ley. The pro­hi­bi­tion on orga­niz­ing rights for super­vi­sors was insert­ed into the law at the request of the auto man­u­fac­tur­ers who were deeply dis­turbed that their fore­men had begun to form unions of their own after WWII. First-line super­vi­sors are rarely giv­en enough deci­sion-mak­ing author­i­ty to be an actu­al boss and, pri­or to 1947, unions count­ed them as mem­bers (still do in some pub­lic sec­tor units, and con­tracts where the boss agrees to look the oth­er way).

These days, the ques­tion­able super­vi­so­ry sta­tus” of cer­tain work­ers is used to force hear­ings that delay union elec­tions and tie unions up in knots over con­cerns that super­vi­so­ry taint” of union activists ruled out of the unit could cause a suc­cess­ful union elec­tion to be over-turned. The bloat of mid­dle man­age­ment is one of the major inef­fi­cien­cies in the U.S. econ­o­my – and union avoid­ance is a pri­ma­ry cul­prit. Give super­vi­sors orga­niz­ing rights. Give the work­ers that they nom­i­nal­ly super­vise a vote on whether they would be in the same bar­gain­ing unit or not.

Restore sol­i­dar­i­ty rights. Taft-Hart­ley placed severe lim­its on unions’ abil­i­ty to engage in what, in mid-cen­tu­ry shoptalk, is referred to as sec­ondary boy­cotts” or hot car­go agree­ments,” but which the lay­man might sim­ply under­stand as sol­i­dar­i­ty activism. Imag­ine a world where Yuengling bust­ed their union (you live in that world; the year was 2007). Shouldn’t mem­bers of the UFCW have the free­dom to refuse to touch that scab­by piss-water and keep it off the shelves of your local gro­cery store? Now, imag­ine that work­ers at a Chi­nese sneak­er fac­to­ry go on strike. Shouldn’t mem­bers of the ILWU be free to refuse to help unload those dirty goods from the ship­ping con­tain­ers, and Team­sters free to refuse to put them on their trail­ers? Before 1947: sure. Now: total­ly illegal.

Imag­ine the pow­er we would have if work­ers could actu­al­ly sup­port each other’s orga­niz­ing efforts across indus­tries, and if com­pa­nies who prof­it from the exploita­tion of sec­ondary” employ­ers were brought to account for their com­plic­i­ty. Here’s the kick­er: Amer­i­can con­sumers are sub­ject­ed to sec­ondary boy­cotts all the time! Usu­al­ly it’s in the form of a cable com­pa­ny cut­ting off its sub­scribers’ access to a cable sports chan­nel in a pay dis­pute. If the Amer­i­can peo­ple can under­stand and tol­er­ate the one kind of sec­ondary” boy­cott, then they sure­ly could tol­er­ate the kind that’s actu­al­ly in their eco­nom­ic inter­est. Alter­na­tive­ly, it should all be made ille­gal, and all cable com­pa­nies should be com­pelled to car­ry every con­ceiv­able cable chan­nel on their net­work for all con­sumers at all times.

Ban right to work.” The Taft-Hart­ley amend­ment allowed states to pass so-called right to work” laws that pro­hib­it unions from nego­ti­at­ing an agency fee in shops where they are com­pelled to rep­re­sent every­one. Ini­tial­ly, only the for­mer slave states passed such laws. The Repub­li­can gov­er­nors in states like Wis­con­sin and Michi­gan who have recent­ly rushed these attacks on unions through their Repub­li­can leg­is­la­tures have revealed the RTW agen­da to be a naked­ly par­ti­san act. They’ve done us the favor of cre­at­ing an open­ing for a seri­ous pro­pos­al that union rights should be the law of the land and not the play­thing of ALEC. It is time to ban tight to work.”

The AFL-CIO should ini­ti­ate a broad debate on what the work­ers’ law” of the 21st cen­tu­ry should look like, and all involved in the endeav­or should shun cute or sim­ple solu­tions. We’re gonna be out in the wilder­ness, polit­i­cal­ly speak­ing, for a while. Let’s not domes­ti­cate our demands for restored rights and pow­ers too easily.

Shaun Rich­man is an In These Times con­tribut­ing writer and the Pro­gram Direc­tor of the Har­ry Van Ars­dale Jr. School of Labor Stud­ies at SUNY Empire State Col­lege. His Twit­ter han­dle is @Ess_Dog.
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