Time to Permanently Replace
by Russell Mokhiber and Robert Weissman
Weak Labor Law
The recent Cincinnati riots are a jarring reminder to white people in the
United States, and anyone else who needs reminding, that the basic civil
rights of racial minorities are all too regularly violated in a country
that fancies itself the land of the free.
Maybe it's time for working people of all races to undertake a similarly
eye-opening, nonviolent insurrection to remind the country how routinely
another set of civil rights -- workers' rights to organize and
collectively bargain -- are trampled.
In U.S. union organizing contests, employers illegally fire an estimated
one in ten union supporters. In half of all organizing drives, employers
threaten to shut down or move operations. Among the most powerful of all
coercive techniques, employer threats to close are illegal, but may be
issued in a way that makes them technically legal.
Employers resist unionization through a wide array of anti-union tactics,
legal and illegal, and all designed to interfere with workers' right to
self-organize. These tactics range from captive meetings where employers
or their consultants deliver anti-union jeremiads to their employees, to
surveillance, to bribes or special favors to employees who oppose the
union. Kate Bronfenbrenner of Cornell University, the leading U.S.
researcher of union organizing practices and employer responses, finds
that more than 60 percent of employers confronting a union organizing
drive use five or more anti-union tactics.
When workers do succeed in organizing, they often confront employers who
simply refuse to bargain. Less than half of new unions are successfully
able to win a first contract.
Even the rights of workers with well-established unions are violated. Most
importantly, unionized workers' most powerful bargaining tool, the right
to strike, is effectively neutered by a preposterous Supreme Court
doctrine which holds that while workers cannot be fired for exercising
their right to strike, they can be "permanently replaced." There are some
slight differences between being fired and permanently replaced, but none
so consequential as to make a difference to workers considering striking.
In the last two decades, employers have become increasingly willing to
permanently replace striking workers -- with the result that strikes are
at record lows.
One man who explicitly makes the links between civil rights and labor
rights is William Gould, who from 1993 to 1998 was the chair of the
National Labor Relations Board -- the body which adjudicates allegations
of labor law violations. Gould views the 1935 National Labor Relations Act
as continuing the mission of the Thirteenth Amendment, adopted in the wake
of the Civil War, of making labor free.
If basic worker rights are to be respected in the United States, Gould
says, labor law needs to be revitalized to provide meaningful protections
"It makes a mockery of the law to say as we do that the law protects the
right to strike," he points out, "and yet simultaneously say that for all
practical purposes you can lose your job as a result of the strike."
"The remedies at the disposal of the Board are extremely limited," Gould
told us. "All too frequently the remedies are a license fee for illegal
behavior." The penalty for illegal firings, for example, is payment of
back pay minus what the fired worker earned between the firing and
issuance of judgment.
Having witnessed the widespread abuse of worker rights as head of
the agency charged with protecting those rights, Gould stands by the
reform proposals he put forward in a 1993 book, Agenda for Reform. We
don't agree with all of Gould's reform agenda -- notably, his support for
certain kinds of labor-management cooperation and some limits on union
action -- but many of his proposals are essential if workers' basic rights
are to be vindicated.
Among the changes in labor law Gould says should be enacted:
Unfortunately, there is a paucity of instances in U.S. history where
documented need has been sufficient to spur the creation or full
enforcement of fundamental civil rights. Such changes rarely emerge from
anything but sustained social protest and disruption of business as usual.
- Treble damages for illegal firings and egregious misconduct by
- Mandated access for unions to employees they are seeking to organize,
through presence on plant property and access to names and addresses of
employees at an early stage in the organizing campaign;
- The recognition of unions that sign up a majority of a workplace's
employees ("card check") or snap elections upon union request;
- Mandatory arbitration of first contracts, where union and employer are
unable to arrive at an initial collective bargaining agreement; and
- Repeal of the absurd permanent replacement doctrine, to give life to the
right to strike.
Russell Mokhiber is editor of the Washington, D.C.-based Corporate Crime
Reporter. Robert Weissman is editor of the Washington, D.C.-based
Multinational Monitor. They are co-authors of Corporate Predators: The
Hunt for MegaProfits and the Attack on Democracy (Monroe, Maine: Common
Courage Press, 1999).