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Labor’s Bill of Rights

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.
[/note]

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.]

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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.]

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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.]