These are dark times for labor. The Republican majority that now controls all levels of the federal government has made it clear that they plan on rolling back labor and employment protections, while also not funding and enforcing the currently existing laws. Judicial conservatives have regained their fifth vote on the Supreme Court and a new case challenging the constitutionality of public sector fair share agreements is at the Court’s footsteps.[note] Moshe Marvit, “Labor Opponents Already Have The Next ‘Friedrichs’ SCOTUS Case Ready to Go Under Trump,” In These Times, January 4, 2017,
http://inthesetimes.com/working/entry/19776/will_trumps_supreme_court_reverse_fair_share_fees_unions_foes_hope_so.[/note] House conservatives have introduced a national right-to-work amendment to the National Labor Relations Act of 1935 (NLRA), and other restrictions on union activity are likely to be moved in the House.[note]“House Resolution 785,” 115th U.S. Congress, 2017, https://www.congress.gov/bill/115th-congress/house-bill/785.[/note] All of this will come at a time when the power and reach of organized labor is at historic lows.
Today, less than 11 percent of workers in America are members of a union, including 6.4 percent of private sector workers and 34.4 percent of public sector workers.[note]“Union Members Survey,” United States Department of Labor, Bureau of Labor Statistics, January 26, 2017, http://www.bls.gov/news.release/union2.nr0.htm.[/note] The dramatic drop in union representation since the 1950s, when over a third of the workforce was unionized, has resulted in stunning income inequality, wage stagnation, continued wage discrimination against women, tens of millions of Americans working for sub-poverty-level wages, and widespread gaps in basic health, retirement, and family leave benefits.[note]Jake Rosenfield, What Unions No Longer Do (Cambridge: Harvard University Press, 2014).[/note]
Traditionally, the courts have not been kind to labor. From the very beginning of our nation’s history, the earliest union efforts were treated by conservative jurists as criminal conspiracies and interferences with employers’ property and contract rights and with Congress’ responsibility to regulate interstate commerce. Unions spent the nineteenth and early twentieth centuries decrying “judge-made law” and seeking, essentially, to get the government and courts out of labor disputes.
For a brief time this worked. The Norris-LaGuardia Act of 1932 sought to prevent the federal courts’ military from enjoining or interfering in union protest activity, and many states passed similar laws to keep their courts and police out of the fray. The NLRA made it the official policy of the United States to encourage the practice of collective bargaining. The Act established a federal agency, the National Labor Relations Board (NLRB), that would certify the existence of a union at a workplace and sanction employers who refused to deal with a bona fide union.
Much of the thrust of mid-century labor law was to encourage a private system of jurisprudence: contract negotiations, arbitration and the occasional industrial warfare of strikes, boycotts (and, later, lockouts). Though unions point proudly at the legislative and regulatory successes they have achieved since the 19th century, they retain a vestigial bias against legislating and litigating our rights and benefits.
Unfortunately, labor rights have been gutted by bad court decisions and worse legislative action. The courts pretty quickly waved away legal job protections for striking workers (particularly for those who engage in what had been unions’ greatest strategic weapon in the 1930’s: the sit-down strike), have granted employers wide “free speech” latitude to conduct campaigns of terror to break their employees’ resolve to form unions and have removed large categories of workers from protection under the Act.
Pro-union labor law reform has been largely unachievable since the passage of the NLRA in 1935, and Congress has instead twice amended the NLRA to severely restrict unions’ ability to engage in solidarity activism in the form of boycotts and sympathy strikes, to protect and enforce union shop agreements and to enhance employers’ rights to fight back against their workers’ demands for a better quality of work life. In more recent years, Congress has severely underfunded the NLRB, cutting agency staff and essentially giving employers wider latitude to break the law with impunity.
Simply put, unions are hampered by rules that would never be applied to corporations, or to any other form of political activism. One of the root causes of this injustice was a conscious decision by the framers of the NLRA to root its constitutional authority in the Commerce clause—not in the First Amendment right of free speech and assembly, nor in the Thirteenth Amendment right to be free from “involuntary servitude.”
As Rutgers law professor James Gray Pope has detailed, tying the NLRA to the Commerce clause was a conscious, “pragmatic” decision of progressive lawyers to reject a half-century of a rights-based campaign for labor law waged by the American Federation of Labor.[note] James Gray Pope, “The Thirteenth Amendment Versus The Commerce Clause: Labor and the Shaping of American Constitutional Law, 1921–1957,” Columbia Law Review 102, no. 1 (January 2002): 14, https://www.jstor.org/stable/pdf/1123631.pdf?seq=1#page_scan_tab_contents.
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The decision is not just a historical footnote. It has the perverse effect of judging worker rights—which are human rights concerns—within the frame of impact on business, to the exclusion of free speech and other considerations. The last half-century has demonstrated that, in such a framework, the courts will tend to have more sympathy for business interests.
Labor rights are rooted in fundamental constitutional rights—from First Amendment freedoms of speech and association to Fifth Amendment protections from unlawful takings to Thirteenth Amendment freedoms from involuntary servitude. However, there has grown a trend whereby labor’s foes have perversely used these constitutional rights against labor. This is seen most often in the push for so-called “right-to-work,” that prevents unions from collecting fair-share fees to cover the expenses germane to collective bargaining.
It is the time for unions and their allies to return to the rights-based rhetoric and constitutional legal strategies that preceded the passage of the National Labor Relations Act and the development of our current labor law regime. The rights of working people to unite, to protest, to withhold their labor, to boycott unfair businesses, and to demand change in all areas of business and society precede and transcend individual labor statutes. Our rights are fundamentally rooted in the Bill of Rights and the Reconstruction amendments. Where the labor law regime, through statute or judicial fiat, restrict our constitutional rights, it should be resisted and challenged as such.
[Continued at The Century Foundation.]