The Right to Organize at Work Deserves Constitutional Protection
On Labor Day, alongside stories about parades and final trips to the beach, we can expect to read the usual depressing statistics about the decline of labor unions in the United States. The problem with this coverage isn’t the facts, which are undeniable — it’s the tone of inevitability.
Today, less than 11 percent of workers, including just 7 percent in the private sector, are members of a union — a dramatic drop from the 1950s, when more than one-third of the workforce was unionized. The recent loss by the United Auto Workers at a Mississippi Nissan factory, where workers voted by a three-to-one ratio against union representation, is just the latest in a long string of defeats for the labor movement.
And this decline has a real effect on families’ financial security: Researchers have shown that nearly half of the decline in middle-class incomes is due to the shrinking rates of unionization.
Few articles probe deeply into the cause of the decline, but here’s a hint: It isn’t because unions no longer make sense in the modern economy, nor is it about American workers’ supposed skepticism toward unions (especially in the South). And it’s not more evidence that the white working class stubbornly insists on voting against its own interests.
Rather, the decline of unions is a direct result of our nation’s badly broken labor laws — specifically, the ways in which those laws and court decisions fail to acknowledge, much less protect, the constitutional rights of workers.
American courts have never been kind to labor. From the beginning of our nation’s history well into the 20th century, union organizing efforts were treated by conservative jurists as criminal conspiracies and interferences with employers’ sacrosanct contract rights. Unions spent the 19th and early 20th centuries decrying “judge-made law” and seeking, essentially, to get the government and courts out of labor disputes.
This approach did notch a few victories. The Norris-LaGuardia Act of 1932 prevented the federal courts from issuing injunctions against union picket lines (which were frequently enforced at bayonet point). Many states passed similar laws to keep their courts and local police out of the fray.
But the modern labor era began in many ways in 1935, with the National Labor Relations Act, which made it the official policy of the United States to encourage collective bargaining. The act established a federal agency, the National Labor Relations Board (NLRB), which would certify unions and punish employers that refused to deal with them. While well intended, passage of the NLRA in the form it took has had many unintended, and some extremely detrimental, consequences for organized labor.
A failure to ground labor laws in the Bill of Rights
The framers of the legislation, who at the time were leery of a conservative Supreme Court, made the pragmatic decision to root the law’s authority in the Commerce Clause, which grants Congress the right “to regulate Commerce with foreign Nations, and among the several States.” This was the subject of no small debate at the time.
Many advocates believed that labor’s rights should be based on First Amendment rights to free speech and free assembly; others thought that the Fifth Amendment right to “due process” — interpreted as a broad protection of citizens’ rights — made sense. Leaders of the American Federation of Labor had been arguing for a half-century that the 13th Amendment, which prohibited both slavery and, crucially, “involuntary servitude,” was the appropriate constitutional basis for labor rights. But the act’s framers were convinced that the Lochner-era Court that made laissez faire economics a virtual state religion would never go for more lofty human rights justifications.
Practically speaking, the court was motivated to accept the NLRA more by the wave of sit-down strikes roiling the country in 1937 than by legal theories. But conceiving of unionization as a matter of business regulation led to a very narrow interpretation of the act. Before the end of World War II, the court took away legal protections for sit-down strikers, denied striking workers the right to return to his job, and granted employers a First Amendment right to run vicious union-busting campaigns.
Much of this anti-union thrust was endorsed and enhanced by the Taft-Hartley Act of 1947, passed by a Republican Congress over President Truman’s veto. The law declared it illegal for union members to boycott or picket a “secondary” employer — that is, a company that they do not work directly for, but who has significant or even essential business dealings with their employer.
Most people think of the Taft-Hartley Act for its “right-to-work” provisions. The Act permitted states to allow workers to decline to join a union, or pay fees, even if they benefitted from union-negotiated contracts.
But it’s the prohibition against solidarity activism, the heart and soul of the labor movement, that’s been most devastating. A cable provider that gets into a fight with a television channel over revenue sharing can black that channel out. But if the workers at your local unionized grocery store want to keep Oreo cookies created at a scab factory off the shelves, they face steep fines, effectively banning the practice.
Restrictions on labor accelerated in 1949, when 10 unionized technicians at the Jefferson Standard Broadcasting Company, in Charlotte, North Carolina, were fired for distributing handbills criticizing their employer. Workers quickly filed a complaint with the NLRB arguing that they were participating in a legally protected activity, but the NLRB ruled that the technicians’ actions were not protected because they were not explicitly connected to the union contract campaign — they involved more general complaints.
Courts recognized “disloyalty” as lawful grounds for firing a worker
Upon appeal, the US Supreme Court issued Labor Board v. Electrical Workers, one of its most aggressively anti-labor decisions. The majority wrote, among other things: “There is no more elemental cause for discharge of an employee than disloyalty to his employer.”
Interpretation of the Jefferson Standard decision has led to decades of harsh and contradictory court decisions that chill the rights of workers to speak out. This past July, the Eighth Circuit ruled that six workers at a Jimmy Johns sandwich shop could be fired because they circulated memes suggesting that customers might be eating food made by sick workers. They were protesting the franchise owner’s refusal to provide paid sick days (ill workers also had find their own replacements).
The “poster attack” was “so disloyal” that it was not protected under the law, the court found. Unsurprisingly, the judges had little to say about the employer’s reciprocal responsibility to be loyal enough to its workers to let them take a day off when they get sick.
And consider the recent vote at the Mississippi Nissan plant, in which efforts to form a union were turned back. In order to determine whether workers had a legal right to form a union, the NLRB held an election with rules set forth by Congress and the courts. Among them was the requirement that only one side — the party that opposes unionization — can force employees to attend mandatory presentations of their arguments as a condition of employment. The union, according to the federal government, has no equivalent right of access or response.
Employers’ speech to captive audiences of employees is protected
As expected, managers at Nissan forced employees to attend multiple one-on-one and small group “captive audience” meetings, in which they threatened that the plant could be relocated, or shuttered, if workers voted for a union. That is nothing new. Across the country, employers make fake “economic predictions” to threaten workers’ jobs in two-thirds of all union elections, according to Cornell professor Kate Bronfenbrenner.
But restrictions on workers’ speech don’t end at rigged elections; the government also censors what unions can do at the bargaining table. Federal law requires employers to negotiate “in good faith,” but only on a tightly circumscribed set of issues — basically just wages, hours and some working conditions. A decision to relocate a factory, as Nissan managers threatened, is not an issue unions can negotiate.
This is what makes threats of plant closures such effective anti-union tactics. Workers want unions that have the ability to veto or amend management’s decisions to downsize, subcontract, automate or shift work overseas. But in the American system, unlike in much of Europe, such matters are the prerogative of management alone. When the law restricts unions from being what workers want them to be, of course there are going to be low levels of union representation.
Simply put, employees are hampered by rules that would never be applied to corporations, or to any other form of political activism. That the government can dictate to workers what they can or cannot write on a flyer, where and how they can march, and what they can and cannot boycott, is not just unfair — it ought to be illegal.
In March 2016, the Supreme Court considered the issue of speech in bargaining in Friedrichs v. CTA, a case that deadlocked 4-4 (without Justice Scalia’s vote); in that case, conservatives argued that public-sector unions violate workers’ speech rights when they collect mandatory union fees. The goal was to bankrupt the last of the big unions. The parties are suing for a do-over in the pending Janus v. AFSCME.
Union advocates should wrest the free-speech issue from conservatives, because we have the far better case: Every interaction between the government and a union is a matter of political speech. Unions and their allies should challenge unequal restrictions on free speech and assembly as the violations of workers’ constitutional rights that they are.
As economists scratch their heads this Labor Day about why the longest economic expansion on record is not translating to increases in most Americans’ standard of living, let’s take a good, hard look at precisely how the power of unions has been curbed. Just as laws permitting collective bargaining helped build the American middle class, a vigorous First Amendment defense of workers’ constitutional rights can help rebuild it today.
[This post originally appeared at Vox.]
Want to Really Help Workers? Protect their Speech!
When does free speech stop being free? At the entranceway of one’s job, apparently.
That was the implication of a ruling this month from the Eighth Circuit Court, which found that the sandwich conglomerate Jimmy John’s was within its rights to fire six employees for making signs that protested the company’s policy of forcing workers to come to work when ill.
While the decision came as a surprise to many, the logic underlying it—that employees have few, if any, free speech protections on the job—has had devastating impacts on American workers for decades. Indeed, the dramatic drop in union representation is due in part to the fact that our court system regulates employees’ ability to organize by the impact of their organizing on businesses’ bottom line, devoid of any concern for the free speech or civil rights of workers.
Until we ensure that freedom of speech extends to the workplace, workers and the labor movement writ large will continue to suffer defeats at the hands of courts, corporations and legislatures. In short, we need a 21st-century Bill of Rights for Labor.
It’s no secret that laws meant to protect workers’ rights have been under assault for decades, in spite of greater protections and progress for workers in many areas. Unions are hampered by rules that would never be applied to corporations, or to any other form of political activism. Underlying this assault is the decision by the framers of the 1935 National Labor Relations Act (NLRA) to ground the Act’s constitutionality in the Commerce Clause, not the Bill of Rights or the Reconstruction amendments.
Just consider how unions get formed. To determine whether employees at a workplace have a legal right to form a union and bargain collectively, the National Labor Relations Board conducts an election to determine whether the workers “want” to form a union. The rules that govern this election, as set forth by Congress and, subsequently, the courts, are that only one side—the party that advocates a “no” vote—can force employees to attend mandatory presentations of their arguments as a condition of employment.
Employers use half of all of these “captive audience” meetings to threaten wage and benefit cuts should they vote to go union, according to researchers at Cornell. In two-thirds of these instances, bosses threaten to go out of business entirely; in one in ten cases, employers actually hire goons to impersonate federal agents and intentionally mislead workers about their rights and collective bargaining. It’s no wonder that anti-union consultants consider exploiting this imbalance of speech to be “management’s most important weapon in a campaign.”
Unions, for their part, have tried to fix this problem legislatively, perhaps most notably through the Employee Free Choice Act a decade ago. That attempt, however, which would have allowed workers to sidestep elections entirely by simply requiring a majority of workers to sign union-affiliation cards, was greeted by a multimillion dollar right-wing assault that extolled the “sanctity of the secret ballot.” The bill, not surprisingly, did not pass.
Given that attempts to reform labor law for the benefit of labor itself have largely failed since the 1935 NLRA passage, unions and their allies need a new strategy. That starts with changing the frame of the debate—returning to rights-based legal strategies and challenging the unequal restrictions on free speech for what they are: unconstitutional.
The rights of working people to unite, protest, boycott unfair businesses, and demand change in all areas of business are fundamentally rooted in the Bill of Rights and the Reconstruction amendments. Where labor law restricts these rights, either through statute or judicial fiat, it should be resisted and challenged as such.
Given that attempts to reform labor law for the benefit of labor itself have largely failed since the 1935 NLRA passage, unions and their allies need a new strategy. That starts with changing the frame of the debate—returning to rights-based legal strategies and challenging the unequal restrictions on free speech for what they are: unconstitutional.
The rights of working people to unite, protest, boycott unfair businesses, and demand change in all areas of business are fundamentally rooted in the Bill of Rights and the Reconstruction amendments. Where labor law restricts these rights, either through statute or judicial fiat, it should be resisted and challenged as such.
Affirming free speech rights won’t just help workers or unions; it will benefit all Americans. The decline of union participation has resulted in stunning income inequality, wage stagnation, and widespread gaps in basic health, retirement, and family leave benefits, among other perverse outcomes. Stronger worker protections and a more robust labor movement is one sure-fire way to create a more prosperous and inclusive economy.
When the government can dictate to workers what they can or cannot write on a flyer, a picket sign or a tweet; where and when they can march; even what they may demand at the bargaining table, something has gone very wrong. We don’t just shift power to large corporations at the expense of struggling families; we violate a bedrock ideal of this country.
Unions have been on the defensive for so long it can be easy to accept the rigged rules of the system as a given, as immune to change—but they are not. They remain bound by the Constitution, like all else. It’s time to make sure that’s the case in practice.
[This article originally appeared at The American Prospect.]
How Union-Busting Bosses Propel the Right Wing to Power
U.S. bosses fight unions with a ferocity that is unmatched in the so-called free world. In the early days of the republic, master craftsmen prosecuted fledgling unions as criminal conspiracies that aimed to block their consolidation of wealth and property. During modern times, corporations threaten the jobs of pro-union workers in over half of all union elections—and follow through on the threat one-third of the time. In between, bosses have resorted to spies and frame-ups, physical violence, court injunctions, private armies of strikebreakers, racist appeals and immigrant exploitation.
The labor question has never been a genteel debate about power and fairness in America.
A new book from the University of Illinois Press’ “The Working Class History in American History” series offers a broad survey of how bosses have historically engaged in union-busting. Against Labor: How U.S. Employers Organized to Defeat Union Activism is a collection of scholarly essays edited by Rosemary Feurer and Chad Pearson.
The essays that comprise Against Labor cover a period that stretches from the late 1880s to the Clinton era. Elizabeth Esch and David Roediger explore the racist assumptions that were built into so-called “scientific management.” The men with the stopwatches who broke production down into ever smaller tasks had ethnic preferences for each: Lithuanians for grinding steel, “American Poles” for forging, never Mexicans for the night shift and so on. A happy (for management) side effect of this speed up was the simmering resentment between different nationalities that hindered workplace solidarity.
Chad Pearson shines a light on Progressive-era worker organizations that were created and propped up by employers to help workers resist “union monopolies.” In other words, they created unions for scabs to break strikes and open up closed union shops.
Robert H. Woodrum looks at the use of the Ku Klux Klan and employer-sponsored vigilantism to run union organizers out of the Alabama docks and reverse the modest gains southern workers made during World War I. Michael Dennis updates the southern picture by documenting the UFCW’s sustained, large-scale organizing drive in non-union Virginia supermarkets in the early 1990s. Already facing enormous competitive pressure from Walmart, the supermarkets dug in for a years-long fight with little concern for the law. The story is a perfectly concise example of just how broken the National Labor Relations Board (NLRB) was as a venue for protecting workers by the time Bill Clinton took office.
None of these stories are particularly earth-shattering revelations to people who study unions and union-busting. What’s most notable is how employer tactics get recycled and adapted from era to era, and that no era was free from union-busting. That’s a key point of Against Labor. Editors Feurer and Pearson place their collection squarely within the new body of scholarship on the “rise of the right.”
Contrary to a popular narrative that has an activist right wing resurging in the years between Nixon’s 1968 election and Reagan’s firing of the air traffic controllers in 1981, the modern right wing began rising in reaction to the New Deal. Many employers simply never accepted the legitimacy of state intervention on behalf of union rights that was enshrined in the original National Labor Relations Act. These employers—mostly small and mid-sized firms—acted as an advance guard against union rights.
They pressed against the edges of the law, testing their ability to fire union activists for cause, replace strikers, lockout recalcitrant unions and restrict organizers’ access to the job site. They learned to love making the NLRB go to court to enforce orders against bosses’ union busting, for in the courts they found far more sympathetic arbiters of management’s rights. The biggest holes in labor law’s protections of workers rights, exploited in the anti-union drives of the 1980s, mostly come from bad court decisions in the postwar years that some people like to kid themselves were a golden age of labor-management cooperation.
Sure, there were employers who talked a good game about their (junior) “partners” in labor, kept their pensions and healthcare plans funded and mostly avoided knock-down, drag-out contract fights. But, clearly in retrospect, they were ready to beat down and bust their own unions just as soon as the advance guard of reactionaries created a political environment where it was possible.
The most fascinating story in the collection, “The Strange Career of A.A. Ahner: Reconsidering Blackjacks and Briefcases,” comes from Feurer. It tells of a hired gun whose career bridged two very different eras of labor-management relations in the Kansas City area. Scholars have referred to the advent of the NLRB as a kind of transition from blackjacks to briefcases for anti-union employers. It’s commonly assumed that the Pinkertons, thugs and company “unions,” employers’ first line of defense against unions in the 1920s, were muscled out of the way by a new generation of lawyers who promised to “work the system” to represent their clients’ interests at the NLRB. But in Ahner we find a direct, lineal connection between the two approaches.
Ahner ran his own detective agency beginning during World War I. For the right price, he would spy on workers, plant bombs and frame union activists (he had lots of friends in law enforcement at a time when there weren’t terribly rigid boundaries between local business and police). This work continued into the 1930s, when he was investigated by a Senate committee probing how employers were violating the new labor act.
Recognizing that times had changed, Ahner improved his image, if not his underlying philosophy. Working with a local priest, he became co-chair of the St. Louis Labor-Management Committee, which counseled conciliation and arbitration. Through this “volunteer” work, he lined up consulting gigs with unionized employers. Mostly this was for bargaining and grievances, where union representatives who knew his history would be aghast to find him sitting across the table with an air of respectability. But occasionally—even in the 1950’s—he was called on for union avoidance work, where he pressed the limits of employers’ rights to their own free speech and to squelch their workers’.
Ahner’s story enriches our understanding of the real roots of today’s anti-unionism. One wishes Rosemary Feurer had expanded her research on Ahner and others like him and made that the subject of her book.
It also serves as a warning that today’s union-buster will claim to have “always” had a “productive working relationship” with unions when we begin to win again. But the only “always” that applies to American capitalists is that they are always against labor.
[This article first appeared at In These Times.]
Trump Wants To Privatize Air Traffic Control. What Could Possibly Go Wrong?
Promising “cheaper, faster and safer travel,” the Trump administration announced a plan this week to privatize the nation’s air traffic control system.
The announcement Monday marked the first day of the administration’s “infrastructure week,” a series of publicity events around one of the only areas of the president’s agenda that has intrigued some union leaders and Democratic legislators.
What they had hoped for was an increase in public spending to create good jobs and repair our nation’s transportation systems. What Trump wants is to give public assets away to corporate interests, while reducing pay and benefit standards for workers.
The official justification for privatizing air traffic control is to speed the conversion from a radar-based system to a more accurate GPS one. The Federal Aviation Administration (FAA) has been converting the system, but it does not anticipate finishing the job until 2020. An actual investment in infrastructure could give the FAA the resources it needs to do it faster, but if Republican politicians have any true religion, it is belief in the magic of the “free” market.
Unfriendly skies
The Trump administration’s announcement comes at a time when the public has historically low levels of confidence in our unregulated, private, for-profit air travel industry. An incident in April in which a physician was dragged off of an overbooked United flight aroused public outrage and fairly common agreement that flying in America has become, to borrow from Stephen Colbert, “a trip up the Devil’s butthole in a flying aluminum suppository.”
While always privately operated, the airline industry was once heavily regulated by federal authorities who determined which airports each airline could serve and even how much they could charge customers. The Airline Deregulation Act of 1978 was touted with similar promises of being somehow better and cheaper and offering more options.
Private sector corporations’ first priority is to turn a profit—not to serve the public. The deregulated airlines have been accused of colluding to jack up fares and fees and limit service to unprofitable locations. They routinely overbook flights and bump paying customers off of flights. Seat size and legroom rapidly approach Lilliputian proportions, unless one is willing to pay more for an “upgrade.” Indeed, the unregulated airline industry has so successfully monetized its greedy refusal to ensure basic levels of passenger comfort that if they all instituted a $25 “No Face-Punch Fee” tomorrow, many of us would sigh, shrug and pay it.
And Trump wants to hand these jackals the control over where, when and how quickly planes can move from point A to point B, when their primary motivation will be saving two minutes and $10 with each decision?! No thanks.
Echoes from the past
Trump’s mad plan to wreck the air traffic control system brings to mind the last time a feckless actor threatened everyone’s safety with a wanton disregard for the professional skills and experience of air traffic controllers. It also happened in the first year of his presidency.
In 1981, Ronald Reagan inherited an unsettled contract dispute with the Professional Air Traffic Controllers Organization (PATCO). Finding the Carter administration—the same one that deregulated the airline industry—to be a stubbornly recalcitrant employer, PATCO actually endorsed Reagan in the 1980 election (hey, he was a former union president). Reagan’s administration repaid that favor by dismissing the union’s demands for more reasonable hours and better equipment.
So PATCO went on strike. As federal employees, they had no legal right to strike—a fact that the new president reminded them of with an order to return to work within 48 hours or be fired.
Reagan’s firing of the striking air traffic controllers was a signal event in labor relations. Private sector employers soon followed suit by bargaining their unions to impasse over concessionary demands, forcing them out on strike, permanently replacing the workers and finally decertifying their bargaining units.
Air traffic controllers eventually organized a new union, the National Air Traffic Controllers Association (NATCA), which was certified 30 years ago this month. But the work of air traffic controllers remains incredibly stressful and understaffed. If Trump’s plan is successful there is no guarantee that the new private operator will retain the current workforce. Indeed, there is a good deal of incentive to hire few of the workers, tear up the union contract and lower pay and benefits for new, less experienced workers.
But, if NATCA could rebuild from the PATCO debacle then it seems likely that some union would organize the privatized air traffic controllers. If that happened, the workers would find themselves in an ironic and auspicious position. A privatized workforce would find itself regulated by a set of laws that entertain much more of a formal right to strike. If pushed too far by the privatizers on low wages, low staffing and technology that doesn’t keep up with the times, employees could go on strike—for their own working conditions and, perhaps, for the safety and dignity of air passengers everywhere.
[This article originally appeared at In These Times.]