American Workers: Shackled to Labor Law
Does the National Labor Relations Act do more harm than
good?
BY JOSH EIDELSON
May 23, 2012
http://www.inthesetimes.com/article/13181/american_workers_shackled_to_labor_law

Some of labor's dramatic victories in recent years have
come from organizations that, by choice or necessity,
operate outside of the protections and prohibitions of
labor law.

Republicans hate the National Labor Relations Board. But
they're not the only ones. In speeches to workers and
testimony in Congress in the '80s and '90s, then-AFL-CIO
President Lane Kirkland repeatedly declared that union
members would be better served by "the law of the
jungle." Some union presidents agreed, including Richard
Trumka, who now heads the AFL-CIO. In 1987, Trumka
called for abolishing both the law's "provisions that
hamstring labor" and "the affirmative protections of
labor that it promises but does not deliver."

In other words, it's not just Mitt Romney who argues the
National Labor Relations Board - which interprets and
enforces labor law - does more harm than good.

That's in part because the National Labor Relations Act
(NLRA), as amended by Congress and interpreted by the
courts, bans or restricts labor's most effective
tactics. The occupations of workplaces that fueled
momentum for the NLRA, passed by Congress in 1935, are
now illegal under it. The aggressive strikes - shutting
down workplaces or even entire cities - that forged the
modern labor movement have largely been replaced with
strikes that are essentially symbolic. While anti-choice
groups can target Planned Parenthood by pressuring the
Komen Foundation not to fund it, and progressives can
hurt Rush Limbaugh by calling on advertisers to drop his
show, unions face unique legal restrictions on mounting
equivalent "secondary boycott" campaigns that spread a
struggle throughout a supply chain.

Of course, when Republican presidential candidates bash
the NLRB, it's for restricting business, not unions. On
paper, the NLRA actually commits the government "to
promote collective bargaining" and requires most
companies to recognize and negotiate with unions that
win elections. It made it illegal for companies to spy
on, threaten or retaliate against workers for union
activism or other "concerted activity."

But reality has proven to be a different story. "This
labor law is a scam," says Larry Cohen, president of the
Communications Workers of America. "It is garbage. ...
It's a fucking lie."

Getting around a failing law

During an organizing drive, managers can legally hold
mandatory anti-union meetings in which they predict that
unionization would shut down the company. Even when
workers win a union election, 52 percent of the time
they haven't won a union contract a year later, because
managers can legally sabotage union contract
negotiations by refusing to concede anything. If a union
contract is in place, once it's up for re-negotiation
managers can legally lock out union members, denying
them any work until they accept a worse contract or vote
out the union.

And companies don't restrict themselves to these legal
union-busting tactics. In 57 percent of union elections,
employers threaten to shut down the worksite. In 34
percent, they fire union activists. When a union
activist is illegally fired, it's difficult to prove
that the firing was retaliatory - and even if the
government sides with the union, generally the worst
that can happen to management is being forced to
reinstate the worker with back pay. This process often
takes years, which can be more than enough time to quash
an organizing campaign. Fred Feinstein, who served under
President Clinton as the NLRB's top prosecutor, says the
penalties available against employers "don't provide any
deterrence" for companies set on breaking a union.

Efforts to reform this legal imbalance have been failing
for decades. Where labor is succeeding, it's often in
spite of or outside of the law, not because of it. Major
unions have abandoned government-run elections in favor
of "comprehensive campaigns" that leverage some
combination of worker, consumer, media and political
pressure to extract agreements from companies not to
terrorize or stonewall. By blocking tracks, spilling
grain, and defying a restraining order in Longview,
Wash., members of the International Longshore and
Warehouse Union (with help from Occupy) beat back a
company's attempt to do their jobs without them. Other
labor organizations - like the National Domestic Workers
Alliance, or "workers' centers" - are growing and
achieving victories through activism without identifying
as unions at all.

"The majority of our work in Justice for Janitors was
trying to figure out how to negotiate around the
secondary boycott laws," says Stephen Lerner, the
architect of that campaign for the Service Employees
International Union. In the Justice for Janitors
campaign, labor law restricted the Service Employees
union (SEIU) from targeting building owners, even though
they - rather than the contractors who technically
employed the janitors - were the real decision-makers.

Some of labor's dramatic victories in recent years have
come from organizations that, by choice or necessity,
operate outside of the protections and prohibitions of
labor law. Longtime farm worker Gerardo Reyes works for
one such organization, the Coalition of Immokalee
Workers (CIW). The Florida-based group doesn't identify
itself as a union, it doesn't seek recognition as one by
management or by the government, and it doesn't
negotiate union contracts. But CIW has extracted "Fair
Food" agreements from the growers who directly employ
farm workers. CIW has won and defended agreements with
the growers by pressuring - and sometimes boycotting -
well-known companies at the other end of the supply
chain. In February, following a multi-year campaign, CIW
achieved an agreement with Trader Joe's under which the
company will only buy tomatoes from growers following
"Fair Food" rules.

For farm workers under CIW agreements, says Reyes, "it
is better as it is right now" than it would be under the
NLRA. "Would we be better off if workers in Florida or
in the entire nation were covered? It's hard to tell,
because that's not our reality ... so we just work with
what we have."

A sobering debate

Others argue that stripping away labor law would leave
unions far worse off - not because current law removes
the need for aggressive worker activism, but because
withdrawing the formal protection for union activity
would make such activism much harder to pull off.

"If we took away the NLRA right now," says Cornell
University Labor Education Director Kate Bronfenbrenner,
labor "would lose the protections that they do have when
employers try to break unions." While harshly critical
of the current labor law regime, Bronfenbrenner suggests
that labor leaders may use it as a scapegoat in an era
of declining unionization. "It is not like unions are
using the power they have" under current law, says
Bronfenbrenner, who thinks labor should aggressively
build coalitions, mount anti-corporate campaigns and
nurture workplace activism.

Yet the fact is, if a union wanted to test its luck with
fewer legal restrictions on strikes and boycotts and no
legal right to recognition or negotiations, it could do
so right now by legally dissolving itself and
re-constituting as something more like the CIW.
Historian and New Labor Forum editor-at-large Steve
Fraser argues that the downside of the NLRA may be less
in the explicit restrictions it enforces than in the way
its existence has "locked the trade union movement into
a juridical way of proceeding" and made it "doubt other
tactics."

The law is unlikely to change, argues Lerner, as long as
politicians "think the consequence of not having labor
law reform is there's no conflict" with the powers that
be (both corporate and political). "We're more likely to
get labor law reform if we're out there mass organizing
the private sector and demonstrating the need." To fix
the law, he argues, we need conditions like the ones
that birthed it: hundreds of thousands of workers
pushing against - and beyond - the limits of current law
by organizing, occupying or going on strike. It takes
"ammunition," says Lerner, "to prove ... there's a crisis
that needs to be fixed."

ABOUT THIS AUTHOR
Josh Eidelson is a freelance writer and a contributor at
In These Times, The American Prospect, Dissent, and
Alternet. After receiving his MA in Political Science,
he worked as a union organizer for five years. His
website is http://www.josheidelson.com. Twitter:
@josheidelson E-mail: "jeidelson" at "gmail" dot com.

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