Changing Labor's Fortunes Will Take More than Fiddling
with Rules

by Dave Cohen

Labor Notes-August 2011

Labornotes.org


Union organizers are welcoming rule changes proposed by
the Labor Department and National Labor Relations Board.

The NLRB changes would shorten the election time period
and help ensure employer appeals don't stall votes. The
Labor Department changes would make anti-union law firms
or consultants hired by employers reveal how much they
are paid.

But after spending 40 years in the labor movement, I
know these changes will not substantially improve the
chances of workers trying to organize through the NLRB
process.

At my first NLRB hearing as an organizer, the company
was represented by an anti-union law firm. During the
pre-hearing conference, the lawyer said he would agree
to an election date one year in the future. I insisted
on the usual 45 days. He stood up, with a dramatic
flourish unrolled a long piece of paper, and said, "I
have 50 reasons why there should not be an election here
ever, and we will litigate them all the way to the
Supreme Court." I appealed to the NLRB agent, who
shrugged. I agreed to an election date six months later,
rather than engage in years of hearings. We won one of
the two units. This is the kind of corporate tactics we
are up against. And that was when times were "good."

SHINE A LIGHT

Making employers reveal how much they are paying
consultants will provide fodder for the union. It shows
workers how they would benefit if the employer spent
money on them instead of on busting their union.

It's helped before. In August 1936, just a year after
the National Labor Relations Act was passed, the U.S.
Senate held hearings on employers' use of spies, thugs,
and provocateurs.

Senator Robert La Follette subpoenaed records from
outfits like the Pinkertons and exposed how much money
employers were spending on strikebreakers and guns. He
released reports from management spies hired to work in
factories.

The La Follette Commission never produced legislation to
end these practices because Southern Democrats and
Republicans could block it. But the sunlight on employer
tactics helped unions gain much sympathy, and shamed
many companies into breaking ties with anti-union
mudslingers.

The modern union-busters are more subtle but no less
destructive. Exposing a consultant's payday will not
stop his threats of plant closings, nor the one-on-one
meetings and captive-audience indoctrination seminars
that kill many union campaigns while skating on the edge
of legality.

Quicker elections, meanwhile, may catch some employers
(mainly smaller ones) off guard, but in most cases
employers will just change their union-fighting
timetable. With challenges now heard after the election,
there could still be years of delay before the votes are
counted, while employers challenge who was eligible to
vote or alleged violations by the union.

Neither of these changes increases unions' ability to
win a first contract, a process that employers now drag
out for months, if not years.

BONE TO PICK The labor movement is being thrown a bone
by an administration that understands labor law in this
country is hopelessly tilted in favor of management
rights--but won't do anything to fundamentally change
that dynamic. Notice that the failed Employee Free
Choice Act did not challenge the basic set-up, which
legally gives more rights to employers then workers.

It's like that Fred Wright cartoon: workers enter the
factory gates with a sign that reads "Abandon All Rights
You Who Enter Here."

Here are the fundamental problems:

The National Labor Relations Act cannot be fixed while
it is hamstrung by court decisions and Taft-Hartley
provisions that give corporations free speech but deny
that right to workers.

The legal concept in play is that corporations are
"persons" and therefore the government cannot curtail
their free speech. Thus they have the right to interfere
with workers who are deciding whether to join a union.

Workers' free speech rights, on the other hand, can be
curtailed by the employer because the First Amendment
only says the government cannot hold back free speech.
With free speech workers could organize for a union at
all times, not just "in non-work areas during
non-working times" as is the rule now.

The NLRA, passed in 1937, called it an unfair labor
practice for an employer to interfere with employees
organizing a union. The Supreme Court approved, for
example, a letter for the American Tube Bending Co. to
send to its employees. It simply stated that management
hoped the workers would vote no. Pretty mild stuff.

But when the Taft-Hartley Act passed in 1947, it granted
employers "free speech." As long as there were no
threats or promises, employers could say whatever they
wanted. Before Taft-Hartley, it was illegal for
employers to make workers attend anti-union meetings.
Today, those meetings are a staple of the anti-union
program.


MASTER-SERVANT

The courts and NLRB accept the idea that employers own
workers while they're at work.

The rule of masters and servants is a basic concept of
English common law, upon which much of law in the United
States is based. Essentially it says that servants must
do what their master tells them to, because he is paying
them.

This concept still exists in how the NLRB and courts
define the relationship of workers and bosses. If the
boss says so, "servants" must attend anti-union
meetings, watch anti-union videos, obey now and grieve
later, and be segregated from the rest of the workforce
so they can't talk union.

An effective labor law would have to ditch this legal
concept.

This is the essence of the argument that workers' rights
should be regarded as human rights. If workers are
regarded as human beings, they have complete human
rights equal to the employer.

Labor rights are based on business law. They shouldn't
be.

When employers challenged the NLRA, the Supreme Court
shocked many by upholding the law. But its decision was
based on the constitutional clause that gave the
government the right to regulate interstate
commerce--i.e., business.

If labor law were based instead on the free speech,
right to assembly, and anti-slavery amendments to the
Constitution, totally different, pro-worker
interpretations would follow.

Many aspects of Taft-Hartley, which handcuffs unions by
forbidding secondary boycotts and sympathy strikes and
preventing low-level supervisors from joining unions,
should fall by the wayside.

A ROADMAP

To combat the anti-worker bias that underlies our legal
system, we need to develop a long-term strategy that
combines mobilizing with legal challenges, just as did
the civil rights movement, the suffrage movement, and
the movement to end slavery. These concepts need to be
challenged at the NLRB, at arbitration hearings, and in
our contract negotiations. Take discipline, for
instance. If a worker steals, an arbitrator would uphold
his firing. He broke the company's rules, and probably
the contract, too.

An arbitrator, however, never punishes management for
stealing, except to make the employee "whole." Workers
who commit an offense move up the progressive discipline
ladder. Why not demand that a foreman who continually
violates the contract by doing bargaining unit work be
disciplined "up to and including termination for
repeated offenses"?

We can also file NLRB charges attacking the employer's
"right" to free speech in union elections, based on the
original legal interpretation that any employer
interference violates the law.

We will lose many hearings, but our concepts need to be
publicized and repeated again and again--workers' rights
are human rights--to gain acceptance.

We often file grievances over issues that are morally
right but we know are not supported by the contract. We
do it to establish a long paper trail to back up our
demands in negotiations. We need to take the same
approach to overturning our oppressive labor law.
Legislative change will follow.

____________________________________________

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