Trump’s Labor Board Wants to Make It Harder for Workers to Organize. Here’s How We Fight Back for Free Speech
A Republican party that survives through voter suppression may be replicating its model in the workplace. In December, the National Labor Relations Board (NLRB) invited public commentary on a possible revocation of a rule that makes employers provide union organizers with contact information for workers in advance of a representation election.
Ostensibly, the Board, which will almost certainly remain in control of Republicans until 2021, is reconsidering Obama-era rules that sped up the timeline of union elections and added phone numbers and email addresses to the list of contact info that unions must be furnished before an election. But outgoing Board Chairman Phil Miscimarra’s bellyaching about “employee rights of free choice and privacy” implies openness to removing any legal right of union organizers to talk with potential members.
The very fact that Trump’s NLRB is inviting public comment indicates that it is considering reversing a much older precedent: the 52-year-old Excelsior rule that employers should provide a list of names and addresses of eligible voters in an upcoming union certification election. Sharon Block, a former member of the NLRB and current Executive Director of the Labor and Worklife Program at Harvard Law School, has argued that the slew of hastily-decided reversals of second-term Obama precedents “seemed to be a rush to set the clock back on workers’ rights as much as possible.”
The Excelsior rule makes employers provide union organizers with a list of eligible voters and their home addresses a few days before an election. It’s an essential tool in a campaign, and any cut is a blow to unions. However, it is also important to remember that Excelsior was a bad compromise, and a real solution lies in actual free speech in the workplace. That will require that unions wage a free speech fight to regain our voice at work.
Captive-audience meetings versus knocking on doors
As soon as the National Labor Relations Act was passed in 1935, employers were already challenging the legal framework for workers to organize and bargain collectively.
In six short years, the bosses succeeded in demolishing the Act’s mandate of employer neutrality by strenuously appealing to the Supreme Court that the standard restricts bosses’ First Amendment right to inform their workers about just how strongly they oppose unionization. Six years after that, a Republican Congress codified this unequal application of free speech in the Taft-Hartley Act.
For a brief time after Taft-Hartley, the NLRB enforced an equal time standard by granting union organizers access to talk to workers on the job when an employer conducted captive-audience meetings. In an all-too-familiar pattern, the Board ping-ponged back and forth between different legal standards on employer speech and union access, depending on which political party was in the White House, until 1966.
That was the year of Excelsior Underwear, Inc ., the NLRB decision that established the right for unions to be furnished with a list of names and addresses of eligible voters. It was issued on the same day that the Board declined to reinstate the equal time rule. The case that we should have won that day was General Electric Co. and McCulloch Corp.
Loathe to trample on management’s rights and private property, the Democratic majority begged the unions in that case to try visiting workers at home and see if that effectively counter-balanced the boss’s work-time campaigning.
Anyone who has worked as a union organizer will tell you that an Excelsior list is no match for the mandatory round-the-clock campaigns of intimidation that union-busters consider “management’s most important weapon” in beating back an organizing drive.
Kate Bronfenbrenner, director of Labor Education Research at Cornell University, has been documenting employer union-busting tactics for decades. Her most recent study, covering the period of 1999 to 2003, found that 9 out of 10 employers use captive-audience meetings to fight a union organizing drive. Bosses threaten to cut wages and benefits in 47 percent of documented cases, and to shut down entirely in 57 percent of union elections. Incredibly, in one out of 10 campaigns employers hired “consultants” to impersonate NLRB agents.
That report is nearly nine years old. It is likely that when Dr. Bronfenbrenner updates her research, all of these numbers will be even higher—particularly the instances of outright lies and deception.
Within the General Electric Co. and McCulloch Corp. decision, the NLRB explicitly invited unions to press the issue of equal time if experience were to prove that knocking on workers’ doors was no match for mandatory captive-audience meetings. Labor law scholars Charles Morris and Paul Secunda were clever enough to notice this half-century-old invitation. Last year, they organized 106 of their leading peers to sign on to a petition to the NLRB to reinstate the equal time rule.
The right to free speech
We shouldn’t hold our breath waiting for Trump’s NLRB to respond to that petition, but we also shouldn’t be patient about demanding change. This past summer, I proposed that unions wage a constitutional battle to challenge the most unequal aspects of labor law and fight for workers’ constitutional rights on the job. Call it Labor’s Bill of Rights.
At the heart of the problem is that the National Labor Relations Act derives its constitutional authority from the Commerce Clause. That means that when workers’ rights are challenged in the courts, judges are weighing corporations’ First Amendment claims against unions’ claims that workers’ rights to organize and go on strike are good for business.
Under that framework, bosses’ rights and business interests have trumped workers’ free speech and human rights. Consider union certification elections. These are official legal elections conducted by an arm of the federal government. At stake is whether the government will enforce certain statutory rights of the workers who wish to form a union. The rules of the election are determined by the government through court decisions, congressional action and NLRB rule-making. In this simple “yes” or “no” vote about whether there shall be a union, only an employer—and only one advocating a “no” vote—can force voters to attend speeches where they will tell them how to vote And if any voter declines to attend, she can be fired. This is compelled political speech and a massive violation of workers’ free speech rights.
Perversely, Trump’s NLRB could be doing us a favor if it really does kill Excelsior lists by making the imbalance of free speech rights in union organizing campaigns that much starker. Regardless of what new form of union busting the Trump NLRB endorses, we should start waging a campaign to restore the equal time rule now.
What this free speech fight would look like as a campaign is this: every time an employer stages a captive-audience meeting in advance of a union election, we should file an Unfair Labor Practice charge. And every time a union loses an election where the employer conducted captive-audience meetings (which, again, is almost always), we should file an appeal to have the election results overturned.
We should be filing these cases now, even with a Trump Board that will dismiss them all. If we can file a couple hundred challenges and make enough noise about them, we can turn the free speech fight over captive-audience meetings into an obvious controversy that the next Democratic-majority NLRB must respond to.
A Democratic NLRB with a modicum of decency would—at a minimum—re-establish the rule that conducting captive-audience meetings while providing union advocates no right of response is grounds to void an election and order a re-run. Better would be a rule making the very act of conducting captive-audience meetings an Unfair Labor Practice subject to court injunctions, unless union advocates are granted an equivalent platform—in work locations, on work time—from which to campaign for a union yes vote.
If the NLRB were to rule in our favor, we should expect the first employer to face sanctions to resist and drag the case into the federal courts. And then we’re off to the races with a well-deserved counter-attack to the cynical right-wing Harris, Friedrichs and Janus efforts to use free speech as a cudgel against union rights.
[This article first appeared at In These Times.]
A Better Way to Protect Workers
[This op-ed was co-authored with Moshe Z. Marvit.]
Maybe we should thank Joe Ricketts for closing his Gothamist and DNAinfo websites in petty retaliation for the writers’ vote for a union. Or maybe the NBC News executives who turned a blind eye to Matt Lauer’s harassment of female colleagues until the #MeToo movement empowered enough of them to make their complaints too official to ignore. Or the federal contractor that fired a bicycle-riding employee who flipped off the president’s motorcade, a gesture captured in a photo that went viral.
These bosses revealed that a workers’ rights system that is applied unequally to only some workplaces and only some employees is no way to ensure that everyone’s rights are respected. Workers may have the right to do their jobs free from sexual harassment and assault, but it has become increasingly clear that employers violate those rights by exploiting the power disparity in the workplace.
Similarly, workers may have a right to organize a union and collectively bargain, but in reality workers are often fired for organizing, and the laws against such practices — like all protections against unfair terminations — place the burden on employees to prove illegitimate intent.
Bosses hold all the power in the at-will employment system that most American workers are subject to, under which they can be fired for “good cause, bad cause or no cause.” Employees who speak up risk everything — their jobs, their reputations, their livelihoods — while facing the unfair legal burden of having to prove their boss’s intentions. Until workers have the freedom from unfair firing, too many workplace rights will remain unfulfilled.
The alternative to at-will employment is “just cause,” which is the principle that an employee can be fired only for a legitimate, serious, work-performance reason.
The “just cause” system is typically part of union contracts. However, today only about 6 percent of private-sector employees are covered by a union contract. And there is a concerted effort to strip public-sector employees of many of their traditional rights and protections.
Republicans constantly argue that to compete, American corporations need to be treated like their European counterparts when it comes to corporate taxes — Europe has a very low average tax rate. Workers deserve a similar push to receive the job protections that their European counterparts enjoy.
A just-cause rule would give workers greater freedom to say no to requests that have nothing to do with their jobs, like “Can you pick up my dry cleaning?” or “Come up to my hotel room.” It would provide workers more power to resist unfair schedule changes, like an attempt to cancel a preapproved vacation. It would allow workers to resist mandatory overtime presented as voluntary. It would firmly place the burden on an employer to show that the reason it fired an employee had nothing to do with, say, the sick day she took to care for her child or the memo she wrote to complain about a powerful co-worker making sexual advances (three-quarters of women who have filed sexual harassment claims at work experience retaliation, according to one report).
The idea for a just-cause law is not novel. It is the norm in most democracies around the world, and our law reviews are filled with arguments in favor of it. Years ago, for example, Montana passed a wrongful discharge law that offers significant, though not complete, protections for many employees.
We are at a time in this country when just cause may be a necessity. Employers have become increasingly adept at violating workers’ rights with impunity. And the judiciary, which is responsible for determining employers’ intent in discrimination cases, is increasingly filled with “originalists” like the new Supreme Court justice Neil Gorsuch, who are inclined to side with employers and to believe that workers have no right to break a rule even if their lives depend on it.
Senate Democrats have indicated a willingness to propose bold solutions for restoring a balance of power between workers and corporations as a part of their “Better Deal.” Their labor bill would ban “right to work” provisions, which permit workers who are represented by a union to pay nothing for that representation; restore workers’ right to engage in solidarity activism; and expand the National Labor Relations Act to cover public-sector as well as private-sector workers and create financial penalties to bosses who willfully break the law.
If the bill had passed 40 years ago, it might have prevented our current age of vast inequality. The prevalence of outsourcing, subcontracting and other union-avoidance business strategies make it pretty clear that employers would continue to evade and sabotage any system of labor rights that is tied to an individual employer, rather than one that applies to all employers.
We need a law that protects and empowers workers to speak out to ask for raises, to combat sexual harassment, to complain about unsafe working conditions and, yes, to join unions.
Just cause — a legal right to your job — should be an essential part of any package of reforms to restore workplace dignity and fairness.
[This post originally appeared at the New York Times.]
The Biggest Labor Stories of 2017: A Look Back in Horror and Hope
The first year of any Republican presidential administration is sure to bring new attacks on unions and their allies. This year has seen plenty of anti-labor offensives, as well as inspiring fights and encouraging signs for the future.
Let’s start with the most over-blown “fake news” labor story of 2017: the asinine notion that Donald Trump has a cunning plan to cleave white working-class voters away from the Democratic party by protecting American jobs and giving unions a fair shake. From the coalmines of West Virginia to the Carrier plant of Indiana, Trump’s claims of saving jobs have been spectacles of hucksterism that resulted in fewer good jobs.
His invitation of building-trades leaders to the White House in his first week on the job—once seen as a canny exploitation of union leaders’ simmering resentment towards Democratic party indifference—is now understood as the gesture of a clueless buffoon struggling vainly to treat his new job like his business ventures. “Let’s bring in a few dealmakers and talk about construction projects,” he probably thought. “Maybe they have some good suggestions for how my idiot son-in-law might go about bargaining for peace in the Middle East.”
Meanwhile, his Department of Labor and National Labor Relations Board (NLRB) appointments, and the speed with which they are reversing any gains that workers made under the Obama administration, are all bog-standard right-wing moves. The official labor policies of the Trump administration are exactly the same as would have been Jeb Bush’s or Mitt Romney’s.
But workers refuse to wait until Trump is impeached, voted out or felled by his nauseatingly unhealthy diet. The year was marked by some impressive organizing campaigns that offer hope for the future.
Beating Trump in the rebel cities
Some of the most strategic organizing of this Trump moment has been focused on winning real gains for workers where we can: in our rebel cities and blue states. Alt-labor organizations have been leading this fight.
The Fair Workweek Initiative has been fighting the mostly non-union retail, fast-food and other minimum wage service industries that have kept their employees virtually on-call through abysmal short-staffing policies. From New York City to the entire state of Oregon, workers won new laws in 2017 that force employers to post work schedules at least one week in advance, pay workers surcharges for last-minute changes and abolish the prevalent practice of scheduling workers for “clopens” (working a first shift the morning after closing up).
The New York City fair scheduling ordinance was part of a comprehensive labor law passed by the city council in May. One part that will be watched closely by union allies and haters alike is a requirement that fast-food establishments create a mechanism to allow employees to make voluntary contributions from their paychecks to a qualified nonprofit to provide services and advocacy on their behalf.
This is dues check-off for Fight for $15, and that is amazing.
One of the biggest challenges for alt-labor is funding the work. Collecting voluntary membership dues from more than a few hundred of your most hardcore supporters is a massive challenge if you don’t have access to payroll deductions. Without those deductions, a union or workers center is relying on auto-renewing credit card contributions or Automated Clearing House direct deposit arrangements with members’ checking accounts.
Speaking from experience, even teachers bounce checks and miss credit card payments with distressing regularity in our new age of inequality.
If New York City’s voluntary-for-workers-but-legally-mandated-for-employers dues check-off system helps Fight for $15 find a sustainable funding stream, it will be a model for other rebel cities and eventually for federal legislation.
Also of note is the return of the big May 1 “Day Without Immigrants” protests that first rocked the country in 2006, this time as an obvious rebuke to our racist president. Not nearly enough attention was paid to the fact that in the midst of the May Day actions, immigrant workers and small business owners shut down the small city of Reading, Pa. in a general strike. The action was organized by Make the Road PA. In the endless organizing debates about the value of going wider vs. deeper with community organizing, Make the Road’s impressive action is a powerful example of what can be done with scant resources but long-term commitments in working-class communities.
The Empire strikes back
In July, the Trump administration officially abandoned Obama’s effort to double the minimum pay that salaried employees should legally be paid. That effort was spear-headed by Tom Perez, the most dogged Labor Secretary we’ve seen in half a century. It aimed to raise the wage of overworked employees classified as “professionals” and “supervisors” by corporations seeking to avoid paying overtime to the still-insufficient sum of $47,476. Many corporations—Walmart most prominently—raised their middle ranks’ pay in anticipation of the new rule. Fortunately, few companies have rescinded those raises now that they are no longer legally obligated to pay (probably out of fear of mass resignations and lawsuits).
Two months after this effort was ditched, the Supreme Court agreed to hear a lazy remake of a bad sequel of an attempt to force public sector unions to go “right-to-work” that had seemingly died along with Antonin Scalia. The new case, Janus vs. AFSCME, is wrong on facts and legal precedent. But it has the benefit of a stolen Supreme Court seat—and the blessing of the U.S. government, which has filed an amicus brief against the very concept of a strong labor movement.
More recently, the right-wing hack who Trump appointed to befoul the former office of Tom Perez declared his intent to restrict and over-regulate workers centers as if they were statutorily-recognized unions. This is an attempt to silence these shoestring budget organizations by making their boycott activities punishable by crippling multi-million dollar fines. As Sharon Block writes, it’s a back-handed compliment that corporate interests see these alt-labor groups as a threat to their agenda. It also shows why we need a new Labor’s Bill of Rights.
New hope in the private sector
Workers in the private sector continue to organize. Even where there are notable successes, there are also challenges related to how badly any Republican president can damage the legal paths to justice for workers.
Responding to tumultuous changes in their industry, journalists and other content producers for major media companies have been organizing at a rapid-fire pace. Journalists at Salon, The Intercept, Thrillist and Vox, video writers at Vice, and editorial producers at MTV News all organized with the Writers Guild of America East this year. Meanwhile, the reporters at the Los Angeles Times—long a bastion of anti-unionism—organized with the News Guild.
But, in a move that threatened to chill this organizing heat wave, billionaire Joe Ricketts abruptly shut down his Gothamist and DNAinfo news networks days after workers prevailed in an NLRB election. This move is perhaps the starkest example of how our labor-relations system is broken beyond repair—and why new models of worker representation are needed.
In higher education, following a frustratingly late-in-term Obama NLRB decision to restore the right of graduate employees to organize, graduate workers have begun to do so in great numbers. Graduate employees at American University, Brandeis, the University of Chicago and beyond have joined the ranks of adjuncts and other contingent faculty who organized with a crowded and competitive field of unions who seek to represent them.
There are varying degrees of resistance. Rare is the college that doesn’t at least put up a fancy F.A.Q. that bemoans the potential “diminishment of the collegial relationship between some students and their mentors.” But some universities—led by the Ivy Leagues—are refusing to bargain with certified unions or cooperate with the NLRB at all. They’re dragging out the clock, waiting for Trump’s board to overturn Obama’s precedent and strip grads of their organizing rights all over again.
To be clear, that means that the Ivy League universities—which tout themselves as bulwarks of liberal democracy—are appealing to an increasingly authoritarian Trump administration to rule that their employees have no rights.
Finally, as a part of their “Better Deal,” Senate Democrats introduced a comprehensive reform bill to reshape the National Labor Relations Act. It would ban “right to work,” restore workers’ right to engage in solidarity activism, expand the act to cover public sector workers and “independent contractors,” streamline union certification procedures and create financial penalties to bosses who willfully break the law.
It’s exactly the bill we needed Jimmy Carter to sign into law in 1978.
I don’t mean to be churlish. These reforms would surely be helpful in restoring workers’ rights. But they also wouldn’t go far enough towards expanding the membership and political reach of unions in all states and all sectors of the economy as rapidly as we need if we’re going to stop the creeping spread of fascism.
For that, we need “all-in” systems of labor rights like just cause and sectoral labor standards. These ideas are being discussed in Washington. I’ve been in some of the conversations. Repealing Taft-Hartley, as the “Better Deal” would essentially do, is – amazingly – the centrist compromise within the Democratic establishment right now. Bigger and bolder reform ideas are possible!
There are two key dynamics at play. First, while the Republicans’ control Congress, any Democratic bill is a dead letter. This actually makes the next year an ideal time to float radical trial balloons, which, if they gain any traction could remain a part of the agenda in 2021. Second, the race for the Democratic presidential nomination is quickly shaping up into a race to the left, and most potential candidates want to make their mark on workers’ issues.
These political dynamics, plus continued on-the-ground organizing, are reasons for optimism in 2018.
[This article originally appeared at In These Times.]
How Bosses Use “Open Shop” Campaigns to Crush Unions
U.S. employers have never been particularly accepting of unions. Yes, there were a few decades after World War II when most employers engaged in a largely stable pattern of collective bargaining that recognized unions as junior partners in industry. Wage increases kept pace with gains in productivity, and union endorsements were courted by both parties. But, as heavily as that postwar labor relations compact features in the rosy rhetoric of union boosters who decry global capitalism and the modern GOP, the truth is that corporations have been periodically going to war against their workers far more often they’ve occasionally conceded their basic humanity.
Two new books shed light on the sustained union-busting campaigns that bookended that all-too brief period of labor-management détente. One focuses on the innocuously named “open shop” drive, which was a vicious nationwide union-busting campaign that began at the dawn of the 20th century and lasted well into the New Deal era. The other documents how the last great wave of worker militancy was smashed by a coordinated union-busting drive that anticipated Ronald Reagan’s presidency by more than a decade.
Reform or repression?
The unions that managed to survive the turbulent boom-and-bust cycle of the 19th century were largely organized on a craft union model that bears only a slight resemblance to today’s trades. Unions not only trained their members in their craft skills, but also determined the process, materials and speed of production. Employers had to contract with strong unions for a certain number of orders at prices that the unions determined.
The “open shop” drive was a coordinated effort by industry associations like the National Association of Manufacturers for bosses to gain complete control over production decision-making. This is the subject of Chad Pearson’s Reform or Repression: Organizing America’s Anti-Union Movement.
As Pearson compellingly documents, open shop campaigners sought to place their movement within the mainstream of the vaguely-defined “progressive movement” that preceded the Great Depression. Corporate executives railed against “union dictation,” and claimed their aim was to wrest control from union contracts in order to promote harder-working men. The breakfast cereal magnate C.W. Post claimed his union-busting work was necessary to protect children from picket-line violence. Some of the earliest appearances of the noxious slogan “right to work” come from this era.
That phrase was disingenuously employed to convey a sense of freedom for workers to not have to pay fealty to a union in order to get hired for a job. In practice, the “freedom” to not join a union was paired with a blacklist for those who chose to do so. Promoting “harder-working men” was a way of speeding up Taylorist production lines to sweatshop standards. And violence on picket lines was almost always instigated by privately hired armies of Pinkertons and other assorted spies and mercenaries.
Open shop campaigners did find allies within the broad political class of self-styled “progressives” who—then as now—did not root their efforts in the centrality of class politics. For example, it is somewhat shocking to read in Reform or Repression about “open shop” endorsements from Louis Brandeis—the attorney who negotiated the vaunted “Protocols of Peace” in the New York City garment industry. Without a base of actual workers, these earlier progressive men supported unions in the abstract, but were uncomfortable with the grisly details of strikes, boycotts and enforcing the union shop that were necessary to maintain unions as a permanent presence in the economy.
In this hair-splitting, open shop advocates probably found their biggest hero in Theodore Roosevelt. The trust-busting “progressive” was the first sitting president to weigh in on industrial disputes and mediate settlements that involved pay increases and other concessions to striking workers. He also steadfastly refused to endorse any deal that forced any employer to recognize any union as the exclusive representative of its workers.
Open shop organizations also recruited “free men” to be face of their drives. We can call them scabs, but forcing workers to join a union before they could get the job rubbed some the wrong way, and bosses exploited this.
Pearson has a good eye for vivid character studies. A particularly engrossing chapter contrasts the stories of two very different class traitors in the Cleveland open shop movement: John A. Penton and Jay P. Dawley. In the 1880s, Penton was president of a craft union of ironworkers that competed for worker loyalty with a more established union called the Iron Molders Union (IMU). In those days, unions competed to see who could organize the most militant protests. A campaign that ended in a union contract could mean terms that forced workers to join the victorious union—or face termination—If they wanted work. By 1893, Penton’s union had been forced to merge with the larger IMU.
The bitterness of that defeat curdled and warped Penton’s principles. He became an “open shop” advocate, ostensibly because men should be free to choose which organization to join—or not join. In practical effect, he served as a propagandist and recruiter of scabs for the industry’s campaign to break the Cleveland IMU in 1900, where he was regarded as “The Dr. Jeckyl and Mr. Hyde of the Labor Movement.”
Dawley was a compatriot of Penton’s, a lawyer who secured injunctions against union picket lines and defended Penton’s efforts to arm his scabs with .38 caliber revolvers. The former president of the Cleveland Employers Association shocked his white shoe comrades by coming to the aid of the city’s striking garment workers in 1911. It was no small coincidence that Dawley’s conversion-by-fire came just two months after the actual fire at New York’s Triangle Shirtwaist Factory. That the picket lines were mostly full of women helped him finally see that the violence and law-breaking that he so abhorred in industrial conflict was a mostly one-sided affair—and that it was his (former) side that was perpetuating most of it.
Dawley spent the rest of his life as an advocate of union causes—albeit one who counseled peaceful bargaining and arbitration over strikes and boycotts. There’s a lesson about the power of narrative and visible leaders here. The average union member today is more likely to be a black or brown woman than some Archie Bunker cliché. Labor can pick up unexpected allies by putting the actual workers whose livelihoods are on the line front and center in our campaigns.
Knocking on labor’s door
How women and people of color began to organize themselves into the mainstream of the labor movement is the subject of Lane Windham’s new book, Knocking on Labor’s Door: Union Organizing in the 1970’s and the Roots of a New Economic Divide. It is also a tale of how the open shop drive came roaring back to life.
This is an essential read for anyone grappling with the question of why modern union organizing isn’t more successful. It is also a much-welcome corrective to the false narrative that unions simply stopped trying to gain new members sometime after the merger of the AFL and CIO.
In fact, the early 1970s brought a major wave of worker militancy, the kind that periodically roils the United States. The massive teacher rebellion of unionization that began in New York City in the early 1960s was still in full-swing. Unprotected by the National Labor Relations Act and still with few public-sector labor laws to fill the gaps, teachers continued to stage illegal strikes for union recognition throughout the decade. Other public sector workers fought for union recognition, too. The 1968 Memphis sanitation workers’ strike, which Martin Luther King was in town supporting when he was assassinated, was a notable flashpoint in that struggle.
The unionized private sector was also in the midst of a historic strike wave. Many of the strikes were formally sanctioned by union leadership seeking wage increases that kept up with record-high inflation. A large number of workers rocked the postwar labor relations framework by waging wildcat strikes in defiance of contracts that traded impressive-sounding wage increases for brutal speed-ups in productivity. There’s a whole bookshelf of material written about how one General Motors factory in particular—its Lordstown, Oh. plant—simply could not maintain smooth production between its periodic wildcats and the thousands of workers who quit every year.
During this same period, unions sought to organize roughly half a million private sector workers a year in NLRB elections. Much of this organizing was led by women and workers of color. It represented, Windham argues, a second wave of the civil rights era, as regulations like the Equal Employment Opportunity Commission opened up new industries and jobs to workers who had previously been excluded. Once in the job, women and minorities soon concluded that actual fair treatment would only come with unionization.
Although the number of eligible workers voting in union representation elections did not decline in the 1970s, the percentage of successful union yes votes did. For the first time since the NLRB was established in 1935, unions began to lose a majority of all representation elections—a decline that has continued to the present day.
Egged on by a then-new cottage industry of “union avoidance” consultants and anti-union law firms, employers aggressively pressed against the limits of labor law when campaigning against union organizing drives. They skirted the prohibition against threatening the jobs of union supporters by phrasing those threats as predictions of the negative impact that a union would have on the company’s bottom line. They threw out fantastical scenarios about how unions might trade away benefits. They swore the unions would make no gains unless the workers went on strike—and that the company would permanently replace them if they did so. They froze planned pay increases and told the workers that the unions and the law forced them to do so.
And when they got caught actually breaking the law—by being too obvious in their espionage of organizing activity or materially punishing a union leader—the paltry punishments that were meted out sparked a new union-busting revolution. Why obey the law at all? Paying an illegally fired union activist just the wages she was owed—minus whatever unemployment insurance or moonlighting money she earned in the years it took for the case to get adjudicated—was far less money that a successfully negotiated union contract would ever cost.
At the heart of American corporations’ renewed resistance to union organizing was the increase in domestic competition from foreign competitors. This was not strictly the dumping of products made cheaper in overseas sweatshops that we tend to think of as the driver of inequality in the global economy. The first pangs of competitive anxiety were triggered by German and Japanese manufacturers who had finally recovered from the world war and could export quality products at affordable prices. Their competitive edge was that the cost of their workers’ health and retirement benefits were not loaded onto their payroll and then passed on to consumers as a higher retail price: Those social welfare benefits were the responsibility of the state.
Since most U.S. corporations—to this day—are unlikely to embrace social democracy, those in the 1970s resolved to fight the global pressure by fighting their own workers. But union supporters must grapple with an uncomfortable fact about our system of labor relations, which bases the very existence of a union, as well as the additional expenses of pensions, health insurance and other “fringe” benefits, on the individual firm level. In any industry that is not 100% unionized, the decision by workers to form a union really can make a company less competitive. And high-union-density industries are just juicier targets for capitalist vampires like AirbnBb and Uber to compete by undercutting those standards.
In her conclusion, Windham writes “As the twentieth-century version of industrial capitalism gives way to new forms, working people find themselves in need of a wholesale redefinition of collective bargaining.” She finds some hope in the “alt-labor” organizations that are “struggling to shore up workers’ economic security in new ways, such as through workers’ centers, new occupational alliances, and public campaigns to raise wages.”
Both Pearson’s and Windham’s books, by highlighting the controversies in two of labor’s roughest periods, help us sharpen the question of how we regroup and reform to fight back in the 21st century. I would encourage more creative thinking about “all-in” labor rights models. What if we pushed for laws to end the “at-will” legal doctrine and grant a “Right to Your Job” to all workers? And what if we looked to countries that we compare ourselves to that have labor laws that apply wage increases and work rules to entire sectors all at once?
What these books make clear is that bosses rarely stop trying to blow up whatever system workers have won to enforce basic standards of decency—and that their strategies evolve with the times. How much longer will we spend trying to patch-up a badly battered 70-year-old labor relations system?
[This article originally appeared at In These Times.]