A proposal pursuant to the Workplace Bill of Rights Resolution
adopted by
the First Constitutional Convention of the Labor Party,
November 1998
|
The Problem The
bad news is that since 1979 the percentage of union workers in the United
States has declined from 24% to 14%. The
good news is that given the choice of joining a union or not, 48% of workers in
this country would join. In other
words, if workers were presented with a free, uncoerced choice, union membership
would more than triple overnight. Unfortunately,
as unionists know from bitter experience, the National Labor Relations Act
gives employers plenty of ways to prevent workers from exercising freedom of
association. For just one example, the
Act's guarantee of the right to organize is so poorly enforced that employers
fire about 3-5 workers for every 100 who have the nerve to vote union in a secret
ballot election.[1]
With these odds, would you speak up for a
union if you worked in a non-union workplace?
Thanks to this kind of employer opposition, union organizing efforts can't
keep pace with the loss of union jobs to outsourcing, automation, and job
export. So
if the law is so bad, why not change it?
For more than half a century, the labor movement has thrown energy and
money into a series of unsuccessful campaigns for labor law reform.
In 1949, labor's crusade to repeal the
Taft-Hartley Act went down to defeat despite Democratic majorities in both
houses of Congress and President Truman in the White House.
And in 1978, a modest reform bill fell to a
filibuster, again with Democrats holding both houses of Congress and the
Presidency. This
record of failure will not be reversed with more money, better lobbying, or
stronger electioneering. The fact is
that -- absent very extraordinary circumstances -- business interests hold a
veto power over labor rights legislation in this country.
This is not because business outspends labor
15-1 on political campaigns, although it does.
It is because business occupies what political scientist Charles
Lindblom calls a "privileged position" in our political system.
Public officials need cooperation from
business, and they cannot take it for granted.[2]
While corporations can and do threaten to
withhold cooperation or move away if government does not meet their demands,
workers and unions almost never do likewise.
(When was the last time you heard of any private-sector workers
threatening to strike if government didn't meet their demands?)
In short, government leaders can usually
afford to stiff unions, but they must do what it takes to obtain the
cooperation of business.[3]
This
does not mean that labor always loses; unions can win legislative change when
business opposition is divided or less than fully committed -- for example on
bills pertaining to general labor issues like unemployment insurance and the
minimum wage. But on union-related
issues, where business is united and committed, the success rate has been minimal.[4]
In fact, Congress has never passed a
major labor rights statute until after unions and workers have demonstrated the
need for change by withholding cooperation through strikes and boycotts.
This generalization holds true from the
Erdman Act of 1898 (the first railway labor law), which was a self-conscious
response to the Pullman Strike of 1894, to the Wagner Act of 1935 -- the most
recent major labor rights statute, which was a reaction to the massive strike
wave of 1934.
A SOLUTION? In
November 1998, the delegates to the first constitutional convention of the
Labor Party declared that "we have wrongly come to accept that at work we are
not entitled to the rights and privileges we normally enjoy as citizens." The
convention then proceeded to resolve that the "Labor Party rejects the status
quo of today's workplace where workers are forced to abandon their
Constitutional Rights in order to earn their living, and are as a consequence
subject to the tyranny of the corporation." Maybe,
instead of beating our heads against the wall of labor law reform, we should go
back to constitutional fundamentals.
Imagine that in place of our half-century-old labor law -- with its
government-determined bargaining units and government-certified bargaining representatives,
we had a labor law based on the constitutional rights of free speech, assembly,
and labor freedom. It works like
this. A group of workers want to form an
organization. They call a meeting
(freedom of assembly), discuss their options (free speech) and decide they want
to deal with their employer as a group (labor freedom).
The employer is legally obligated to respect
their choice and to deal with the group or its chosen representatives.
There is no requirement of majority support,
no organizing campaign, no firings, and no election.
If the employer refuses to make any
concessions, the workers are free to request help (free speech) from their
co-workers, from workers at other companies, and from the public.
They can call a strike (labor freedom), urge
their co-workers to join in (free speech), and form large and spirited picket
lines at the company entrances (freedom of assembly).
If the employer remains aloof, they can call
for help (free speech) from members of stronger organizations, who can refuse
to handle, transport, or work on the employer's supplies or products (labor
freedom). They can urge the public (free
speech) to withdraw patronage from the employer and from anyone who helps to
maintain the employer's royal stance by supplying it with materials, selling
its products, serving on its Board of Directors, or performing any other
service. This
quick sketch leaves many questions unanswered.
But before trying to get more specific about the proposal, we would like
to explain where it came from. It is not
some utopian vision born in the heads of dreamers.
On the contrary, it has venerable roots not
only in the labor movement, but in the constitutional and statutory law of the
United States.
BACK TO THE FUTURE
We have been laboring so long under the National Labor Relations Act that it is hard to envision a comprehensive alternative.
One way to attack this problem is to turn the clock back to the period
before the NLRA apparatus took over and try to imagine other possible outcomes.
In the early 1930s, the main national labor
statute was the Norris-LaGuardia Anti-Injunction Act.
Unlike the NLRA, the Norris-LaGuardia Act was
the product of a long period of mobilization and agitation by the labor
movement. It barred the federal courts
from issuing injunctions against peaceful strikes, boycotts (including
secondary boycotts), and picketing (including peaceful mass picketing) in labor
disputes. It also barred federal courts from enforcing yellow dog contracts by
injunction or otherwise. In Section 2,
Congress set out the existing relationship between labor and owners of property
in the United States: Whereas, under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment . . . Congress
then went on to lay out the solution: wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . . If
this statement were effectively enforced in law today, we would be in a
position to triple the size of the labor movement overnight.
Of course, the Norris-LaGuardia Act by itself
did not fully enforce the statement. Its
operative provisions were designed to eliminate the main obstacles to labor
freedom in 1932, namely labor injunctions and yellow dog contracts.
But the Norris-LaGuardia Act put the
development of labor law on a track toward the effective enforcement of the
fundamental human rights of workers. Suppose
the labor law had remained on the fundamental rights track.
What might it look like today?
To answer this question, we need to know more
about the fundamental rights track. It
did not begin with the Norris-LaGuardia Act.
To unionists at that time, the Act merely recognized and protected
worker rights that were already guaranteed by the United States
Constitution. THE
LABOR AMENDMENT TO THE UNITED STATES CONSTITUTION If
you mention the labor amendment to the United States Constitution today, most
people get a puzzled look on their faces.
They know that the first amendment guarantees the right of free speech,
and they may even know that the same amendment secures the right of
assembly. But few have ever heard of the
labor amendment. It takes awhile before
they realize that you are talking about the thirteenth amendment, which
provides: " Neither slavery nor involuntary servitude, except
as a punishment for crime whereof the party shall have been duly convicted,
shall exist within the United States, or any place subject to their
jurisdiction." At that point, they
are likely to ask what in the world the thirteenth amendment could possibly
have to do with labor rights today; after all, the amendment was intended to do
away with slavery, a goal that was accomplished more than a century ago. But
according to the Supreme Court, the purpose of the thirteenth amendment was not
simply to eliminate slavery, but "to make labor free by prohibiting that
control by which the personal service of one man is disposed of or coerced for
another's benefit."[5]
Before the NLRA, unionists understood from
their own experience that in a modern industrial economy there was no way
to prohibit "that control by which the
personal service of one man is disposed of or coerced for another's benefit"
without the rights to organize, strike, boycott, and picket.
"The
truth is that in complex modern industry," said Samuel Gompers, "the only
really free labor is organized labor.
The only workers not laboring under terms and conditions arbitrarily
imposed upon them from a source wholly foreign to themeselves,
are the organized workers." Most courts
disagreed. They held that the thirteenth
amendment protected only the individual right to quit work.
But labor leaders stood their ground.
Gompers ridiculed the idea that a lone worker
could avoid employer control by quitting: "just imagine what a wonderful
influence such an individual would have, say for instance [on] the U.S. Steel
Corporation."[6]
He acknowledged that the individual right to
quit might have provided some protection in the nineteenth century, when the
individual workman owned his own tools and "made a complete article in his own
trade or calling," but since then, the individual had "lost his identity and
lost his power."[7]
Thus, the rights to organize, to strike, and
to boycott were "nothing more than the application of the constitutional bill
of rights to the conditions of our time."[8]
His point was that labor rights, like other
constitutional guarantees, must be applied to contemporary conditions if they
are to retain their vitality. The
AFL did not wait for judicial approval to put its constitutional views into
practice. Beginning in 1909, it was the official policy of the American
Federation of Labor that a worker confronted with an unconstitutional
injunction had an "imperative duty" to "refuse obedience and to take whatever
consequences may ensue."[9]
Under this policy, thousands of workers
defied unconstitutional injunctions.
Unfortunately, judges did not yet understand that their injunctions were
unconstitutional, and many law-abiding workers were imprisoned for violating
illegal injunctions. According to
historians, their principled resistance exposed the injustice of the labor
injunction and led to the passage of the Norris-LaGuardia Act.[10] When
the Norris-LaGuardia Act was passed, labor's leading constitutional thinkers
maintained that it endorsed their view of the thirteenth amendment.[11]
It doesn't take any legal training` to see
why. If, as Congress declared, "the
individual unorganized worker is commonly helpless to exercise actual liberty
of contract and to protect his freedom of labor," then the right to
organize is obviously basic to human freedom, and its denial amounts to
involuntary servitude. Senator
Norris defended this view, charging that anti-strike injunctions brought about
"slavery"[12] and "involuntary
servitude on the part of those who must toil in order that they and their
families may live."[13]
From Labor Freedom to Freedom of "Commerce" After
the Norris-LaGuardia Act was passed, workers and unions for the first time
enjoyed a degree of freedom from anti-strike, anti-picketing, and anti-boycott
injunctions. But employers continued to
interfere with the right to organize by discriminating against unionists and
establishing company-dominated unions.
The passage of the National Industrial Recovery Act in 1933 raised
workers' hopes because of its section 7(a), which appeared to prohibit
employers from discriminating against unionists or forcing workers to join
company unions. But the Roosevelt
administration did not enforce the Act, leaving it up to workers to enforce
their own rights. In 1934, the country
was shaken by four strikes that erupted into open class conflict.
West coast Longshoremen, Minneapolis
truckers, Toledo automobile workers, and southern textile workers staged
strikes that escalated into pitched battles in which thousands of workers from
many trades and industries joined the strikers in defending their picket lines
against police, vigilantes, and soldiers.
In early 1935, nationwide strikes of automobile and rubber workers were
narrowly averted. Then, in the famous Schecter
Poultry case, the Supreme Court struck down the National Industrial
Recovery Act, leaving President Roosevelt facing a strike wave with no
industrial policy in place. He turned to
Senator Robert Wagner of New York, who had drafted the bill that would soon
become the National Labor Relations Act. The
centerpiece of Wagner's bill was section 7, which guaranteed the right of
employees "to self-organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection." Section 8 of
the bill went beyond the Norris LaGuardia Act in prohibiting employers from
interfering with these rights by coercing workers, discriminating against
unionists, or establishing company-dominated unions.
In addition, to make sure that the courts did
not construe the Act against labor, section 13 directed that "Nothing in this
Act shall be construed so as either to interfere with or impede or diminish in
any way the right to strike." These
provisions continued on the fundamental rights track of the Norris-LaGuardia
Act. Like Senator Norris before him, Senator Wagner charged that the non-union
workplace resembled slavery, and promised that his bill would bestow upon
workers "emancipation from economic slavery and . . . an opportunity to walk
the streets free men in fact as well as in name."[14]
Andrew Furuseth, President of the Seamen"s
Union and the AFL's deepest constitutional thinker, begged Wagner to implement
these sentiments in law by grounding his bill on Congress' power to enforce the
thirteenth amendment.[15]
But Wagner had been convinced by lawyers that
the bill should be based on Congress' power (granted in Article I, section 8 of
the Constitution) to regulate interstate commerce.
Wagner sincerely believed that his bill would
end industrial slavery; but he also believed that it would bring about
industrial peace, thus facilitating the free flow of interstate commerce.
To Wagner, there was no contradiction between
these goals; genuine labor-management cooperation could come about only on a
foundation of worker freedom. What
the Senator did not realize was that his reliance on the commerce clause would
tilt the interpretation of his statute against worker freedom.
The first big question was whether the Act
was constitutional. If it had been
grounded on the thirteenth amendment, the issue would have focused on whether
the rights to organize and engage in concerted activity were necessary for
labor freedom. But instead, government
lawyers defended the Act as an exercise of Congress' power to "control" and "punish"
strikes under the commerce clause.[16]
Judging from the lawyers' arguments, the
Wagner Act might have been entitled the "Wagner Anti-Strike Law."
Workers' rights were to be protected not
because they were important in themselves, but because protecting them would
help to eliminate strikes. In order to
drive home the point that strikes interfered with interstate commerce,
government lawyers quoted the same labor injunction cases that, according to
Senator Norris, Senator Wagner, and the AFL, imposed involuntary servitude on
workers. They argued that strikes "disrupted"
markets, "crippled" business, and caused "disorganization, obstruction, or even
paralysis of interstate commerce."[17]
They praised federal military actions
against strikers as "efforts to bring about industrial peace."[18]
As
numerous historians have pointed out, it is unlikely that the lawyers' commerce
clause arguments had any effect in causing the Supreme Court to uphold the
NLRA. Instead, the Court was responding
to outside pressures. Workers across the
country forcefully demonstrated the need for a national labor law by staging a
spectacular wave of sit-down strikes.
President Roosevelt threatened to "pack" the Court with six new
Justices. Under this pressure, the Court
would just as likely have upheld the law under the thirteenth amendment (which
fit President Roosevelt's own rhetoric of ending "economic slavery" and "economic
royalism") as under the commerce clause.
Instead, however, the workers' movement for fundamental labor rights was
channelled by lawyers and politicians into a massive expansion of the commerce
power. For the first time in history,
the Supreme Court held that the commerce power could be used to regulate
intra-state manufacturing operations. Although
the commerce clause strategy had little effect on the upholding of the NLRA, it
had a huge impact on the interpretation of the new law.
Having been introduced to the NLRA as an
anti-strike measure, judges soon began to interpret its ambiguous provisions in
line with their thinking on what would most effectively prevent strikes.
Within a few years of its passage, the
Supreme Court had ruled that employers could permanently replace workers who
dared exercise their section 7 right to strike,[19]
that an employer could fire its entire union workforce in retaliation against
the union's threat to strike even though the collective bargaining agreement
expressly gave the union the right to strike over disagreements in
interpretation,[20] and
that an employer that flagrantly violated the workers' right to organize,
provoking them to stage a sit-down strike in protest, could then not only
discharge the strikers and obtain their imprisonment for violating an
injunction, but also pick and choose who would be fired and imprisoned, taking
back those who renounced the union while firing and imprisoning those who
remained loyal.[21]
Since worker rights had no value in
themselves, employers that violated them were guilty of no great offense.
Despite statutory language empowering the
Board to "prevent any person from engaging in any unfair labor practice" and to
order violators not only to cease and desist, but also "to take such
affirmative action . . . as will effectuate the policies of this Act," the
Court held that the Board could not penalize employers so as to prevent them
from committing future violations.[22] The
commerce clause strategy backfired even more spectacularly in 1947, when the
Taft-Hartley Act was passed under the constitutional authority of the commerce
clause. Unionists branded the Act as "The
Slave Labor Law," but the commerce approach to labor legislation was already
too well entrenched. Among other things,
Taft-Hartley amended the NLRA to ban secondary boycotts and limit the subjects
over which unions could bargain. It
would take a book to list all the bad consequences of giving the
commerce-protecting purpose of the Act priority over the freedom-protecting
purpose. We"ll settle for just one more
example. As you recall, the
Norris-LaGuardia Act barred federal courts from enjoining peaceful strike and
boycott activities in labor disputes.
Yet today, union workers can be enjoined from striking 99 percent of the
time, except in the "window" periods between contracts.[23]
This is because the Supreme Court decided --
without any indication from Congress -- that it was time to repeal part of
Norris-LaGuardia's ban on injunctions so that courts could enforce no-strike
clauses in collective bargaining agreements.[24]
And just in case some freedom-loving union
had not agreed to a no-strike clause, the Supreme Court decided that it would "imply"
(meaning "create") one for it.[25]
So much for the freedom
from government by injunction. After
more than half a century of treating labor rights as a means to the end of a
free flow of commerce, what would happen if we were to get back on the track of
treating labor rights as fundamental human rights that are valuable in and of
themselves?
THE LABOR PARTY PROPOSES . . . We
start from the proposition that workers must enjoy effective freedom of speech,
effective freedom of association, and effective freedom of labor.
These three freedoms are already guaranteed,
in theory, by the first and thirteenth amendments to the U.S.
Constitution. In addition, they have
been embodied in the Norris-LaGuardia Act and in section 7 of the National
Labor Relations Act. In practice,
however, the law does not permit the effective exercise of these freedoms.
By
"effective," we do not mean that workers must win all of their protests.
We mean that in actual practice: (1)
workers must be able to communicate with one another and with the broader
public free from government and employer censorship; (2) workers must be able
to associate together in forms chosen by themselves and not by government or
employers; and (3) workers must be able to exercise control over their personal
labor power. If all of these conditions
are fulfilled, workers may or may not succeed in a particular protest.
For example, even if a group of employees
manage to shut down an employer completely, they have only equalized the
contest. Now, each side can veto
production -- instead of just the employer.
With this in mind, here are the minimum rights necessary to make
possible effective freedom of speech, effective freedom of association, and
effective freedom of labor: FREEDOM OF SPEECH Up
to now, courts have privileged employer property rights over the workers' free
speech rights. If workers are to enjoy
effective freedom of speech and expression, this must change in at least three
ways:
(1)
Workers must enjoy freedom of speech on as well as off the employer's property.
Under current law we have freedom of speech
on public property. On private property
the owners of the property generally determine who can speak and who
cannot. Workers surrender their first
amendment rights when they enter the workplace.
Unfortunately for us, the privately-owned work site is increasingly the
only place where it is possible to speak with workers as a group.
Gone are the days when most workers lived
near their work sites and could be reached off
the employer's property.
But union representatives and co-workers from
other enterprises cannot speak with workers at their work sites because the
Supreme Court has determined that the employer's property rights trump the
workers' right of self-organization.
According to the Court, the NLRA permits the employer to exclude anyone
it wants even if there is no legitimate business reason for doing so.
Meanwhile, we supposedly have the "reasonable"
alternative of trying to track down individual workers by their license plate
numbers, or of buying advertisements in general-circulation newspapers.
This ridiculous "alternative" only
demonstrates the Court's contempt for our rights.
It does not take any leap of imagination to
recognize that when an employer has the power to effectively determine who will
-- and who will not -- speak to "its" workers, the employer is acting as a
master and it is putting the workers in the position of dependent slaves. (2)
Workers must be free from employer as well as government censorship except
where job performance is at stake.
The NLRA does prohibit an employer from interfering with communication
among its employees about "mutual aid or protection," but the Supreme Court has
created an exception for "disloyal" speech, which may include anything from
impolite criticism of the employer to commentary on issues that courts think
are for management alone (like product selection or quality).
For example, judges have held that a worker
who participates in a march protesting the employer's labor policies can be
fired for disloyalty merely because some marchers were urging a boycott of the
employer. But isn't a peaceful boycott
exactly the kind of "concerted activity for mutual aid or protection" that the
NLRA was intended to protect? When an
employer censors a worker's speech for reasons unrelated to job performance, it
is acting as a master and putting the worker in the position of a slave. (3)
The people -- including workers -- must be free to express themselves by
withholding patronage and requesting others to withhold patronage.
In theory, working people can express
solidarity by withholding patronage from employers who are unfair to
labor. Unfortunately, many employers do
not sell their own products directly to consumers.
Often, the only way for people to cast
effective "consumer votes" is to request retailers to remove the offending
employer's products from the shelves, and then boycott the retailer if it
refuses. But the NLRA prohibits unions
from peacefully picketing such retailers on the ground that the retailer is a "neutral"
in the dispute between the union and the offending employer.[26]
In other words, the NLRA seeks to protect the
"neutral" by preventing the union from informing the public that the "neutral"
is serving as a retail outlet for the unfair employer.
If consumers don't know about the connection,
then they cannot express their disapproval, and the "neutral" can continue to
profit from its sale of the unfair employer's products.
When workers are prohibited from effectively
communicating truthful information about employers, then they are treated more
like slaves than like citizens. FREEDOM OF ASSOCIATION Under
the NLRA, the government decides what groups of workers may assemble together
for collective action and bargaining. If
workers are to enjoy effective freedom of association, this must change in at
least two ways:
(1)
Any size group of workers can form an
association, including a union, and present and resolve grievances and make
agreements with the employer.
According to the NLRB, the NLRA does not fully
protect the rights of a union that has not established majority support in a
government- or employer-approved bargaining unit.
A member of a non-majority union can be fired
for insisting that his or her union steward be present at a grievance conference.
But freedom of association is not limited to
groups that have majority support. When
an individual worker is forced to face the collective power of a corporate
employer without the support of his or her union, she is placed in the position
of a helpless slave dealing with a powerful master. (2)
Workers, not the government or the employer, must determine the scope of their
own associations for purposes of collective action and bargaining.
When we think about freedom of
association, this point seems obvious.
After all, what is collective bargaining other than a group of workers
getting together to bargain with the employer?
But the NLRA is not based on freedom of association.
Instead of protecting the right of workers to
join together and deal with the employer, the Act establishes a system of
government-approved "bargaining units."
The Board and the courts decide which workers will be in which units,
and they give the desires of the employer at least as much weight as those of
the workers. When workers cannot
determine who they will associate with for mutual aid and protection, they are
denied a basic right of citizenship. FREEDOM OF LABOR Under
current law, the workers' freedom of labor is subordinated to employer property
rights. For workers to enjoy effective
freedom of labor, this must change in at least four ways: (1)
The right to strike must include the right
not to lose one's job permanently to a strikebreaker.
Under current law, workers may not be
fired for striking, but they may be "permanently replaced" by strikebreakers
even if the employer has no need to offer permanent employment in order to
obtain sufficient strikebreakers to operate.
The employer's property right "to protect and continue his business
trumps the workers' right to strike.[27]
In practice, then, an employer can
permanently replace strikers as a way of punishing them for exercising their "right"
to strike. When an employer has the
power to punish workers for exercising their fundamental rights, the employer
is acting as a master and the employee is a slave whose rights mean nothing. (2)
The freedom of labor must include the right to refuse to contribute personal
labor to enterprises that assist unfair employers by, for example, supplying
them with parts, distributing their products, or financing their
operations.
Under the NLRA, companies that deal with
unfair employers are considered to be innocent "neutrals" that should be
insulated against worker protest.
Workers who refuse to handle the products of an unfair employer are
seeking, as Samuel Gompers put it, "to exercise control of their own labor
power, . . . to control their own movements, the expending
of their own efforts, the giving of that service which constitutes their
voluntary contribution to the welfare of society."[28]
Even if a worker is not personally involved
in handling the unfair employer's product, he or she is helping her "neutral"
employer to continue "business as usual" with the unfair employer.
When a "neutral" employer can compel a worker
to contribute his or her personal labor to assist another employer in violating
the human rights of its employees, the employer is placed in the position of a
master and the worker in that of a slave with no control over his or her
personal labor. (3)
The freedom of labor must include the right to bargain with and to strike and
boycott against the company that actually controls terms and conditions of
employment. Under the NLRA,
companies can insulate themselves against worker protest by subcontracting work
and creating artificial corporate boundaries.
For example, when employees of the Hearst Corporation's Baltimore radio
station picketed at the Hearst Corporation's Baltimore newspaper, they
discovered that they were guilty of engaging in a secondary boycott against the
"neutral" newspaper. Why?
Because the radio station and the newspaper
were -- on paper -- separate corporations; it just happened that both were
wholly owned by Hearst. Of course, in
the real world, the Hearst Corporation can spread the costs of the radio strike
over all of its operations; the strike does not exert serious pressure unless
Hearst is feeling its effects. When
employers can use corporate formalities to render workers' rights meaningless,
the employer is acting like a master and the employee is reduced to
slavery. (4)
The freedom of labor must include the right to withhold personal labor in
solidarity with workers in other countries.
With corporations organized on a
multi-national basis, effective labor freedom necessarily requires the right to
combine across borders. But many efforts
at international solidarity run up against the secondary boycott
prohibition. When American longshoremen
joined other dock workers around the world in refusing to unload cargo from the
Neptune Jade, they were hit with secondary boycott charges.
When corporations are permitted to organize
multinationally, while workers are limited to local protests because of
artificial corporate boundaries, then corporations become arrogant masters
while workers are reduced to dependent slavery.
AN OPEN QUESTION
If
we were to put labor law back on the track of fundamental rights, a very
important issue would quickly arise.
Under section 9 of the NLRA, a union can become the exclusive
representative for all of the workers in a government-determined bargaining
unit by demonstrating majority support in a representation election.
The presence of a majority union extinguishes
the right of dissenters to bargain as individuals or to form their own,
minority unions. This principle of
exclusive representation was enacted to prevent employers from playing off
individual workers and minority unions against the majority
representative. But it is unclear
whether section 9 helps or hurts worker freedom.
Section 9 does not come close to eliminating
divide-and-conquer opportunities, and it probably creates some of its own.
It is very rare that a single "exclusive
representative" covers all of the employees of a single employer.
More commonly, an employer faces a number of
"exclusive representatives" and non-union units that can be played
off against each
other. Moreover, thoughtful, pro-union
analysts have argued that exclusive representation can give employers
additional divide-and-conquer opportunities.
These analysts contend that when a majority union is insulated against
competition, its officers may tend to ignore the interests of minorities.[29]
If so, then employers can exploit the
situation to divide workers along lines of race and sex.
It
is true that the U.S. labor movement has long relied on the principle of
exclusive representation, and it should not be abandoned without thorough
deliberation. However, the fact that the
overwhelming majority of industrial countries reject exclusive representation,
and most of them have much higher union density than the United States should
give us pause. At a minimum, we should
reassess our commitment to the principle, and consider possible alternatives
and modifications that might better serve labor freedom.
FROM HERE TO THERE
Suppose
we did decide that we wanted to get on the fundamental rights track.
What then?
Obviously, we are talking about long-term change.
No Congress is likely to enact protection for
fundamental labor rights in the near future.
Nevertheless, we would not be limited entirely to the standard programs
for longterm change (like education and modest, local campaigns).
Where opportunities arose, we could begin to
exercise our fundamental rights here and now.
Because these rights derive from the Constitution, they trump any
statutory or judge-made law to the contrary.
The reason why we have a written Constitution is so that the people --
not just lawyers and judges -- can read it and enforce it against the rulers of
the land. Before the NLRA, the labor
movement understood the importance of exercising labor's fundamental rights
even when courts and legislatures repudiated them.
The delegates to the 1919 convention of the
American Federation of Labor resolved unanimously to "stand firmly and conscientiously
on our rights as free men and treat all injunctive decrees that invade our
personal liberties as . . . illegal as being in violation of our constitutional
safeguards, and accept whatever consequences may follow."[30]
A
half-century ago, with the labor movement at a crossroads, John L. Lewis
thundered his support for this policy.
The big issue at the annual convention of the American Federation of
Labor was whether to engage in constititutional resistance against what
unionists were calling the Taft-Hartley "Slave Labor Act."
After an initial outburst of saber-rattling,
the AFL's top leadership had lost enthusiasm for the struggle.
John L. Lewis turned his oratorical skills to
reviving the spirit of resistance: This
Act was passed to oppress labor, to make difficult its current enterprises for
collective bargaining, to make more difficult the securing of new members for
this labor movement, without which our movement will become so possessed of
inertia that there is no action and no growth, and in a labor movement where
there is no growth there is no security for its existence, because
deterioration sets in and unions, like men, retrograde. . . .
I wonder what built up the labor movement in
this country?
Was it protecting laws and statutes that protected the organizers of our
movement when they went out to the meetings?
Oh, no! The founders of our
Federation had no such protection. They
had to fight for the right to be heard.
They had to fight for the right to hold a meeting, and men had to
sacrifice and sometimes die for the right to join a union. . . .And what you
are doing today [by complying with Taft-Hartley] -- you are repealing the 1919
injunction policy . . . and you are humbling yourselves in abasement before the
return of government by injunction.[31] AFL
Secretary-Treasurer George Meany delivered the administration's response.
It was a complete negation of the very idea
that labor could develop and live by an independent interpretation of the
constitution. Despite his public position
that Taft-Hartley was unconstitutional, Meany claimed that it was "the law of
the land": "Whether you like it or not, whether the National Association of Manufacturers and the representatives of the reactionary employers bought the Republican party or not, as someone seems to think, the fact remains that they counted the votes in Washington, and the Taft-Hartley Law is on the statute books. No one asked for a recount. Our representatives were there when the votes were cast, and no matter what the reason, whether it is the sinister reason attributed here today or not, the fact remains that they did pass this law. It is now the law of the land."[32] Now,
at the turn of the millenium, many labor activists and leaders have come to
share Lewis' view
that Taft-Hartley is indeed causing the movement to languish and decline.
In the meantime, the chilling pressure of the
Cold War has lifted. And, last but not
least, the recent change in leadership at the AFL-CIO makes it possible to look
back on the most famous lines of Lewis' 1947 speech with more optimism than
would previously have been possible. The
Mine Workers' President had threatened to resign from the Federation"s
Executive Council if it failed to defy Taft-Hartley.
In regard to that threat, he declared: "Perhaps . . . you will say 'John L. Lewis is trying to hold a gun to the head of the convention.' That is not true. I don't think anyone can hold a gun to the head of this convention. . . . As far as that is concerned, on this particular issue, I don't think that the Federation has a head. I think its neck has just grown up and haired over."[35] - END -
Peter Kellman is a labor organizer, historian, and founding member of the enlightened Program on Corporations, Law and Democracy. See his latest book, Building Unions, and more of his extraordinary work at www.poclad.org. |
