Every so often, the National Labor Relations Board (NLRB) announces a new “pro-worker” ruling to great fanfare in the labor press. Initiatives like protecting workers who tape record in a non-union shop or administratively shortening union elections all are welcome developments (although anti-labor federal judges will likely not let them stand).
Such initiatives can give the impression that the NLRB is a benign but ineffective institution. This is not true. The NLRB is a key part of the system of labor control which hamstrings labor and prevents effective trade unionism in this country.
To truly understand the role of the NLRB, we should be looking at its war against the kind of solidarity unionism practiced by the International Longshore and Warehouse Union (ILWU). Unlike the partial pro-worker measures which negligibly impact labor’s prospect, the NLRB’s vigorous prosecution of the ILWU has the potential to cripple one of labor’s best unions.
In a recent ruling, the NLRB upheld an Administrative Law Judge’s decision that the ILWU violated the National Labor Relations Act by engaging in work slowdowns against their employer ICTSI. While the case is somewhat complicated, in a nutshell, the National Labor Relations Board is attempting to financially cripple the ILWU for trying to uphold the “work jurisdiction” clause of their coast-wide agreement.
Even worse, the NLRB is claiming that by pressuring the contractor which is running the port to give them work that they and the employer group the Pacific Maritime Association both believe belong to the ILWU, they are violating the secondary boycott provisions of Taft Hartley.
Before going into detail of the concerns about this case, it is important to discuss the special role of the ILWU. The ILWU was one of the 11 left-led unions expelled from the CIO in the wake of the anti-labor Taft-Hartley Act. True to its roots, much like the United Electrical Workers similarly expelled, the ILWU has served as a beacon of solidarity for the entire labor movement for decades.
ILWU members have shut down the ports over the loading of good to South Africa and displayed a militancy and solidarity desperately lacking in today’s labor movement. Unlike other unions which have been forced to abandon industrywide bargaining, the ILWU maintains a single agreement covering all ports on the West Coast, an essential element in successful trade unionism.
In 2010, the Port of Portland privatized the operation of a terminal to a Philippines-based corporation ICTSI. ICTSI operates terminals primarily in the Global South and has come under fire for brutally suppressing longshore workers in Honduras. The ILWU asserted jurisdiction over all of the work on the terminal including a handful of jobs plugging in refrigeration units, which the record indicates does not require skilled work and is done by ILWU members at most other ports. International Brotherhood of Electrical Workers (IBEW) members had apparently performed the work plugging in refrigeration units for the port prior to privatization and sought to retain the work. The contractor, ICTSI, has agreed to abide by the coastwide agreement. The union and the coastwide employer association, the PMA, agreed these jobs should be done by ILWU members by virtue of the terms of th ecoastwide agreement.
The ICTSI refused to give the work to the ILWU and subsequently filed charges with the NLRB alleging that the ILWU undertook a series of job actions and slowdowns to force their employer ICTSI to comply with the port-wide agreement. The ILWU denies such a slowdown took place — and in any event, the matter should have been treated as a contract dispute under the collective bargaining agreement.
But here’s why this case is so important: The NLRB is saying that ICTSI is somehow not to be considered the primary employer but is a neutral employer, making the ILWU’s actions illegal secondary activity.
Seem complicated? That’s because the whole case is based on legal fictions which defy common sense.
What is at stake may appear to be squabbling between unions over a handful of jobs. As I have argued previously, however, the issues at stake involve the ILWU’s ability to maintain the integrity of a coast-wide agreement, which is absolutely essential to the survival of unionism in this sector. The ILWU is fighting a multi-front battle to maintain effective, industry-wide unionism, which has been wiped out in most other industries.
This gets to the crux of the issue: the NLRB’s special role in defeating solidarity and preventing effective trade unionism. The anti-labor Taft-Hartley Act outlaws solidarity activity which it deems as secondary pressure. While many think of the Taft-Hartley provisions as only outlawing secondary strike and boycott provisions, they actually can tie a union’s hands from even filing a grievance or lawsuit against an allegedly neutral employer. De-unionization in the United States was accomplished more by the shams that grew out of this provision such as sub-contracting, independent contractors, successor employer doctrines, runaway shops and other factors than straight up strike-breaking.
Here, the ICTSI filed charges with the NLRB alleging that by fighting to uphold work under the coast wide agreement, the union was engaging in secondary (solidarity) actions illegal under the anti-labor Taft-Hartley. The NLRB is saying that ITSCI is somehow a neutral employer. All of this is of a piece with a truly horrible 2012 decision in which an NLRB Administrative Law Judge found against the ILWU, arguing they had engaged in secondary activity by trying to defend their coast wide agreement.
All these cases are part of a broader legal regime in which, under Taft Hartley, the NLRB is give a special role in suppressing labor rights, including prioritizing attacks against instances of unions using effective solidarity. Those who think the NLRB based on their token efforts in support of workers are labor’s friends should study this case closely. These provisions highlights the problems with not just an individual decision or two but with the underlying structure of labor law — a structure that unions need to start questioning.
First, sanctions against employers for violating the NLRA are typically mere slaps on the wrist, such as posting a notice or sometimes paying minimum back pay (which is mitigated by any earnings the worker earns before being reinstated). In contrast, unions who stray beyond the bound of labor law are subject to injunctions and damage suits which potentially could cripple a union’s treasury. This is the case with the ILWU case in which the company is seeking damages which could amount to millions of dollars. The NLRB is required to prioritize and seek injunctions against unions for engaging in solidarity actions.
We have a system of labor control which offers minimal protections to worker and negligible penalties against employer violations. This system drastically restricts effective trade unionism and harshly punishes any attempt of a union to break from this system. From this perspective, the NRLB mainly functions as a repressive apparatus to discipline labor while offering some protections to maintain legitimacy. (Of course it is hard to inveigh too much against the NLRB officials when the labor officialdom has largely accepted the system of labor control as legitimate and has raised nary a peep against the repression against the ILWU.)
Second, a disturbing factor in this case is the zeal with which the NLRB is going after the ILWU. The Administrative Law Judges decision drips with contempt against the union. While this could be chalked up to a bad Administrative Law Judge, the appointed members of the NLRB upheld the decision. Republican appointees on the NLRB for decades have bent over backwards to find ways to uphold employers’ interests and undermine worker protections. In fact, the NLRB decision in this case directly contradicts how the labor board treated the case in an advice memo on the East Coast with the International Longshoremen’s Association (ILA), saying of course the carriers and operators controlled the work.
Many of the judicial decisions against solidarity came not from conservative Supreme Court justices in the 1980s but from the liberal Supreme Court in the 1960s. As I argue in Reviving the Strike, these liberals are more comfortable with upholding rights within an employer (such as tape recording conversations) than embracing the militant, solidaristic form of unionism employed by the ILWU.
By claiming it is still the Port of Portland which is the employer rather than private company (ICTSI) actually running the terminal, the NLRB portrays the ILWU as illegitimate and engaging in illegal secondary activity. But if one uses some common sense, it is clear that longshore workers have a legitimate dispute with their employer over the scope of work. This is not the ILWU picketing some unrelated employer miles away but rather attempting to deal with an issue on their docks.
The ILWU represents members at ports along the West Coast and zealously safeguards their jurisdiction as any union should do. After the operations at the Port of Portland were privatized, the private employer signed a port wide agreement but refuses to abide by certain terms even though the employer association, which it voluntarily joined, agreed with the ILWU. To the NLRB, none of this matters.
If this decision is allowed to stand — this legal fiction that the port still controls work on a terminal they privatized — than that logic can be expanded to other areas of ILWU jurisdiction. Work can be spun off by ports and, even worse, the union’s hands would be tied in fighting because the action would be considered secondary activity outlawed by Taft-Hartley. As in many other industries, the use of the corporate form and legal fictions would destroy unionism in this industry.
This represents an occasion to question the Taft-Hartley framework and to have a discussion about what effective trade unionism looks like. Taft-Hartley was passed to render unionism ineffective, as were the decades of court and NLRB decisions which followed. If employers are allowed to defy the coast-wide agreement — an agreement that is essential to ILWU power — then effective trade unionism in this vital sector of the economy will be crippled.
Sure, workers may be able to record conversations at work. But the words on tape will likely be employers gloating about how effective unionism has finally been extinguished.
In this new book, longtime organizers and movement educators Mariame Kaba and Kelly Hayes examine the political lessons of the Covid-19 pandemic and its aftermath, including the convergence of mass protest and mass formations of mutual aid. Let This Radicalize You answers the urgent question: What fuels and sustains activism and organizing when it feels like our worlds are collapsing?
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Joe Burns, a former local union president active in strike solidarity, is a labor negotiator and attorney. He is the author of the book Reviving the Strike: How Working People Can Regain Power and Transform America (IG Publishing, 2011).