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Time to Permanently Replace
Weak Labor Law

by Russell Mokhiber and Robert Weissman

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 to workers.

"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:

  • Treble damages for illegal firings and egregious misconduct by employers;
  • 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.
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.

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).

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(c) Russell Mokhiber and Robert Weissman