Should Joining a Union Be a Civil Right?

AlterNet.org

AlterNet / By Jake Blumgart

Should Joining a Union Be a Civil Right?

A new book proposes amending the Civil Rights Act to cover labor organizing, so workers can press for real penalties against bosses who fire them for trying to unionize.

March 9, 2012 |

Paul Robeson leading shipyard workers in song in Oakland CA, 1942.

Photo Credit: NARA via pingnews

In 2010 Philadelphia’s first and only casino opened in North Philadelphia’s Fishtown neighborhood, pressed against the shore of the Delaware River. During the protracted wrangling over the construction of Sugarhouse, the owners swore that their business would create hundreds of good, stable jobs in a part of town known for rusting factories and chronic joblessness.

Cory Ballard, a 25-year-old resident of Strawberry Mansion, a nearby neighborhood, and single father of two sons, got a job as a player’s services representative, a position he describes as the “frontlines of the casino.” He was well-liked by co-workers and managers both.

The latter half of that equation quickly changed when Ballard and many of his co-workers signed a petition in support of a union organizing drive with UNITE HERE local 54, which represents casino workers in the region.

He wasn’t initially a union supporter, but management’s tactics seemed fishy. “They had these anti-union meetings, to tell us why we don’t need a union, but they never give the opposing side, so I sought my own information and decided the union was best for me,” Ballard told reporters outside the Sugarhouse offices last Tuesday.

Management’s attitude toward Ballard quickly soured after they learned of his pro-union stance and he was soon asked to resign after the company alleged he gave free slot play to someone he knew and claimed he would do jail time if he did not resign. He won his job back soon afterwards (with the help of co-workers who marched into management’s office to demand he return to work), and Ballard returned with a union button. He was fired at the beginning of 2012 for a minor error, one that multiple employees made, and which he immediately reported to his boss. Ballard was the only one terminated.

“[This] is typical of what happens in union organizing drives: Even though the National Labor Relations Act makes it illegal to discriminate against someone based on whether or not they support a union,” says Richard Kahlenberg, co-author with Moshe Marvit of the new book, Why Labor Organizing Should be a Civil Right. “[Companies] don’t want to have to share productivity gains with their employees, they’d rather keep it for management and the stockholders. Firms…want to send a message to employees that they will be fired if they get involved in union organizing.”

At a recent action in his support, Ballard presented Sugarhouse’s management with a petition for his reinstatement signed by two-thirds of his co-workers in the player’s services department. A group of his former colleagues and a local minister marched into the Casino’s executive offices to present his former bosses with the signatures. “Cory was one of the best co-workers we had,” one current Sugarhouse employee told a manager. “It’s outrageous and wrong. We know that it could happen to any one of us.”

Six other strong union supporters, who have taken leadership positions on the organizing committee have been fired since the campaign went public, although never explicitly for their union support. The casino’s media representatives say that the company “does not comment on individual personnel matters.”

“It is unjust and unlawful for them to terminate me for my union support,” Ballard says. “This is my federal right to express myself and decide I want a union. But people are actually afraid to stand up and speak because they are afraid this could happen to them.”

And that’s the point. Contemporary American businesses show little compunction at breaking the central pillar of American labor relations, the National Labor Relations Act (NLRA), and firing workers who express a desire for representation. Terminate a few prominent union supports, let fear keep the rest of the workforce in check, and let the vast majority of profits flow to management and shareholders, instead of to the workers who create them. A recent study by Kate Brofennbrenner of Cornell University’s School of Industrial and Labor Relations, shows that employees are fired in more than one in three union organizing drives. And that may be an underestimate. By Bronfenbrenner’s accounting less than half of unfair labor practices (firings, wage cuts, harassment, and surveillance) are reported, often because the remaining employees fear further reprisals.

Employers ignore the NLRA with impunity because labor cases are arbitrated under a substantially weaker legal regime than the rest of American law. There is no jury and pre-trial discovery is not allowed, meaning the prosecutors have to solely rely on publicly available information, documents the company offers, and witness accounts, which probably includes testimony from (nervous) workers still employed at the firm. No recourse is allowed outside the NLRB and claims cannot be taken up in federal court.

The process can take up to three to five years and, in 2009, the fines paid by lawbreaking firms only averaged $5,149 per employee. (Employees terminated for organizing are required to look for work and wages are then deducted from the NLRB settlement.) Compare that paltry sum to the wages and benefits the employers would have to pay to the whole workforce if the union won. The incentives are entirely in favor of breaking the law.

It is for these reasons that Kahlenberg and Marvit argue that Title VII of the Civil Rights Act should be extended to cover labor organizing. In Why Labor Organizing Should be a Civil Right (available April 1), the authors claim it is time to change both the broken legal system that ineffectually “protects” American workers like Ballard, and the tactics of reformers who want to change it.

Kahlenberg and Marvit first argue the legal case. Title VII provides a powerful defense against discrimination based on race, sex, age, and religion (among others). Under the Civil Rights Act the employee can opt out of the Equal Employment Opportunity Commission process (close to the civil rights equivalent of the NLRB) and take the case to a federal court, before a jury, where they are provided with the means to retain a lawyer if they do not have the necessary funds.

Such suits are not an easy win. The opponent is almost always a business with substantial legal and monetary resources. But the incentives are not one-sided: Employees stand to win much more than $5,000. As Kahlenberg and Marvit note, “a plaintiff may be awarded a variety of remedies, including back pay (with interest), reinstatement or front pay, equitable relief, compensatory damages, and punitive damages.” Lost overtime, health and pension benefits are included, as are “money damages to cover emotional pain, suffering, inconvenience, mental anguish.” These cases also make the right of “discovery” available, opening up internal documents and data to the court and the public—a prospect many companies dread. In short, firing workers would no longer be a painless way to stamp out a union organizing drive.

Kahlenberg and Marvit lay out their argument clearly and concisely. The legislative proposal is simple: “The amendment of the Civil Rights Act to include protection for an employee to join or not join a union.” Their idea is sound, and while it only covers one of the numerous issues that beset American workers, the protections it offers are well worth fighting for. The book’s actual text is a mere 113 pages, even though it contains chapters that cover everything from an overview of international labor laws to a treatise on the importance of organized labor in a functioning democracy.

But America’s political system is the Achilles heel of any attempt to change our grotesquely inadequate labor laws. As the authors note, four different Democratic presidents, with substantial congressional majorities, have failed to pass various types of labor law reform. Even Lyndon Johnson and the famed 89th Congress, which passed Medicare, Medicaid and the Voting Rights Act, proved unable to enact pro-labor legislation that would have banned so-called “right-to-work” laws, which enable workers to use a union’s services without paying dues, quickly sapping its resources.

The central problem, according to the authors, is that labor law reform efforts have been too wrapped up in the complexities of the NLRA, an isolating context that sets labor and business up as two opposing special interest groups. By contrast, adjusting the Civil Rights Act emphasizes and protects the individual worker’s right to join a union, theoretically negating the specter of a brutish clash between large institutions.

“This effort goes to a question everyone can understand: Should you be fired for trying to join a union?” Kahlenberg told AlterNet. “We can elevate this discussion to a higher plane and take it out of the special interest box and put it into the more morally elevated notion of vindicating individual civil rights.”

This fresh focus could expand the appeal of reform. Everyone knows about the Civil Right Act and even most conservatives support it. (The book has already received verbal support and blurbs from influential labor and civil rights groups, including the NAACP.) The authors understand some political hurdles—Republicans and big business will always oppose anything like this, so reformers must wait for another sweeping Democratic victory —but they may underestimate other institutional barriers. All of the previous reform efforts were shattered on the battlements of the anti-democratic Senate (every proposal passed the House), which over-represents thinly populated, anti-labor states. Today, with unions weaker than ever before, and an influential wing of the Democratic Party shot through with anti-labor, pro-business ideology, it seems doubtful that even a carefully calibrated proposal like this could get through a Democratic-dominated Congress.

The question is likely to be academic for a long while. Complete Democratic control of Washington historically lasts for little more than one congressional session every 10 years. But when such a majority comes again, Kahlenberg and Marvit’s plan will be preferable to another attempt to tinker with the current rusted machinery. As the case of Cory Ballard and Sugarhouse Casino shows, it is time to try something new.

Jake Blumgart is a freelance reporter-researcher based in Philadelphia. Follow him on Twitter.

AFL-CIO president: GOP ‘started the war on working Americans’

AFL-CIO president: GOP ‘started the war on working Americans’

By Megan Carpentier
Tuesday, October 4, 2011

Topics: afl cio president ♦ debt ♦ john boehner ♦ mass layoffs ♦ president ♦ trade

Rallying attendees on the second afternoon of the Take Back The American Dream summit, AFL-CIO President Richard Trumka said of Republicans, “If they want to have a debate on class warfare, we’ll have that debate,” because “It wasn’t our class that started the war on working Americans.”

Trumka used his time to illustrate many of the examples of what he termed the “strange morality” of the modern economy, from mass layoffs at Bank of America despite record profits to narratives in which “the jobless are blamed for the unemployment crisis.” He also noted that, “The years from 1997-2010 represented the first protracted decline in family income since the Great Depression.”

Yet, referring to the many debates in Washington this year, he asked “When are we going to recognize that this crisis is a jobs crisis, not a debt crisis?”

When it comes to the supercommitee charged with resolving said debt crisis, Trumka offered his take to great effect: “We’ll fight anyone from any party that tries to cut Social Security, Medicare or Medicaid benefits.”

But it wasn’t on behalf of benefits that Trumka called upon the audience to call their Congress members. Instead, he rattled off a toll-free number for listeners to use to express their opposition to the still-pending Korean, Colombian and Panamanian free trade agreements and then encouraged them to call House Speaker John Boehner’s office and demand that he bring up for a vote the recently-passed Senate bill denouncing China’s currency manipulation.

Obligatory trade policy shout-outs out of the way, Trumka returned to the meat of his speech and his obvious rhetorical preferences: the economic crisis. “Americans want to work,” he intoned, “and we won’t stop fighting, shoving, pushing and kicking until every single one is back to work.”

And lest his opponents try to argue that “‘Government can’t create jobs,’” he promised his response would be, “‘Just you watch, we’ll make government create jobs.’”

Photo: Flickr user transportworkers.

Megan Carpentier

Megan Carpentier is the executive editor of Raw Story. She previously served as an associate editor at Talking Points Memo; the editor of news and politics at Air America; an editor at Jezebel.com; and an associate editor at Wonkette. Her published works include pieces for the Washington Post, the Washington Independent, Ms Magazine, RH Reality Check, the Women's Media Center, On the Issues, the New York Press, Bitch and Women's eNews

Unions Head to Wall Street

09.29.11 - 3:03 PM

Unions Head to Wall Street

Citing common cause, the Transport Workers Union - one of the country's largest unions with over 200,000 members - has announced its support for the Occupy Wall Street protests. They plan to join a Friday rally; other unions are following suit.

The Village Voice interviewed Transport Workers Union Local 100's spokesman Jim Gannon:

Why did they join? "Well, actually, the protesters, it's pretty courageous what they're doing," he said, "and it's brought a new public focus in a different way to what we've been saying along. While Wall Street and the banks and the corporations are the ones that caused the mess that's flowed down into the states and cities, it seems there's no shared sacrifice. It's the workers having to sacrifice while the wealthy get away scot-free. It's kind of a natural alliance with the young people and the students -- they're voicing our message, why not join them? On many levels, our workers feel an affinity with the kids. They just seem to be hanging out there getting the crap beaten out of them, and maybe union support will help them out a little bit."

Could Unions Help Rebrand Occupy Wall St from a Dirty Hippie Protest to a Populist One? from ANIMALnewyork.com on Vimeo.

We May Be Numb, But We Ain’t Dead

by David Macaray / July 28th, 2011

Even though union membership hovers at about a 12-percent (down from a high of 35-percent in the 1940s and 1950s), there’s a way of looking at these figures that gives us cheer. With the U.S. population at more than 300 million, that 12-percent figure converts to about 14.7 million members—which is pretty close to the total number of union workers you had back in the 1950s.

And because, undeniably, there is strength in numbers, let’s consider a tantalizing hypothetical. What if America’s 14 million union members went on a spontaneous one-day strike to remind the country of just how important working people are, and how skewed and weird and mind-numbing our priorities have become? Let’s take a moment to consider that.

Admittedly, right out of the chute there will be skeptics and naysayers who will argue that such a thing couldn’t happen—that it’s illegal, that it’s too ambitious, that it would be a logistical nightmare, that it could only end badly, etc. But instead of jumping to conclusions, let’s examine these objections.

First, yes, it is illegal—particularly when you begin including people like police, firemen, nurses, postal workers, etc. So maybe we’d have to consider making some exceptions. Yes, federal workers could be fired for going on a wildcat strike. Everyone still remembers 1981, when Reagan fired the Air Traffic Controllers for going out on what was technically an illegal strike.

But let’s look at it carefully. First, we have Obama in office, not Reagan. Second, unlike actual strikes, which can last for weeks or months, this is one-day strike. And the fact that it’s a one-day deal will be made known in advance, which means employers won’t hire replacement workers and, very likely, won’t fire anyone.

Of course, America’s bosses will raise bloody hell and threaten to fire everybody—that’s what bosses do when they’re cornered—but because such a move would be utterly self-destructive (the costs associated with recruiting and retraining an entire workforce would be staggering), they won’t do anything….except simmer.

Let’s also remember that these aren’t lone wolves who can be picked off one by one. These strikers will have a union to represent them. Consider what happened in China and India a couple years ago when workers went out on spontaneous wildcat strikes. When management fired the ringleaders, the workers threatened to call another wildcat unless they were hired back—which they were. The same would happen here. The message: If you fire anyone, we’ll turn around and shut you down again.

In the worst case scenario, if there turned out to be some fines that had to be paid, let the union pay them. After all, if there’s one thing organized labor has plenty of, it’s money. Labor spent an estimated $400 million dollars on Democratic campaigns during the 2008 elections.

There’s another advantage to a one-day strike. While it’s difficult getting people to engage in explicitly political or time-consuming stuff—marching in parades, attending rallies, carrying placards, making phone calls or writing chain letters—all they have to do to pull off this protest is stay home. Their very absence assures its success.

As for being a logistical nightmare, nothing could be further from the truth. In fact, given that we live in the Internet Age, and given that this would be a union-organized, union-administered event (i.e., working off up-to-date membership rosters), it would be a logistical piece of cake.

But what would a one-day strike achieve? What good would it do? At the very least it would get the nation’s attention and demonstrate the heretofore unrecognized and unappreciated fact that working people (the country’s largest voting bloc) possess a tremendous amount of leverage.

As a society, we’re more or less numbed out. There’s a huge disconnect between what’s going on around us and what’s being done in response. Even though we’re involved in three wars, still recovering from the second-greatest financial crash in our history, and are watching the middle-class being systematically dismantled—you wouldn’t know it from the public’s response. Nothing (or very little) is happening in the streets.

We need to react. The public needs to be reminded that Wall Street ain’t the only entity with muscle. History has shown that social movements have muscle. And because the only bona fide social movement in place is the labor movement, it’s time for organized labor to lead the charge.

David Macaray, a Los Angeles playwright and author (It’s Never Been Easy: Essays on Modern Labor), was a former union rep. He can be reached at: dmacaray@earthlink.net. Read other articles by David.

This article was posted on Thursday, July 28th, 2011 at 8:01am and is filed under Unions.

Workers Rights?

Workers

by Jonik / June 29th, 2011

Jonik is a long-time contributor of cartoons to National Lampoon, New Yorker, NY Times, Gourmet, Playboy, Cosmopolitan, Audubon, Fantasy & Science Fiction, Wall St. Journal, Mad, and other national publications. He began also doing editorial cartoons the day after Papa Bush started bombing Baghdad. His editorial work has been published in many alternative publications and is not copyrighted so that activists without budgets can "steal this cartoon." Those with budgets, however, are nice about sharing that. Read other articles by Jonik, or visit Jonik's website.

This article was posted on Wednesday, June 29th, 2011 at 8:01am and is filed under Cartoon, Human Rights, Labor.

In These Times

NLRB Issues Rule to Prevent Union Busting and Speed Up Elections

By Mike Elk

Tuesday
Jun 21, 2011
11:25 am

Today, the National Labor Relations Board proposed a rule that would dramatically speed up and reduce frivolous challenges to union elections. Companies seeking to stop union drives often delay union elections by months in order to allow more time for extended anti-union intimidation sessions and campaigns, which often times involve firing. By speeding up the timeframe in which elections occur, the NLRB is giving more protections to union workers seeking to join a union.

“Over the decades, the Board has revised its rules periodically, looking for ways to achieve a broadly-shared goal: making the representation process work as well as possible” said NLRB Chairwoman Wilma B. Liebman. “One important result has been to reduce the typical time between the filing of an election petition (which triggers the Board’s procedures) and the actual election. But the current rules still seem to build in unnecessary delays, to encourage wasteful litigation, to reflect old-fashioned communication technologies, and to allow haphazard case-processing, by not adopting best practices.”

The NLRB rule would streamline union elections by allowing for electronic filling of election petitions. The Board is also proposing to require companies to give unions a full list of potential voters’ telephone numbers and email addresses when available—a move that would help unions campaign among workers.

The rule would also crack down on frivolous lawsuits companies often file to delay union elections. Instead of allowing companies to challenge who is eligible to vote in a union representation election before it occurs, the rule would delay most voter eligibility appeals until after the election.

The proposed rules shifting appeals until after the elections are expected to greatly speed up the cycle which can sometimes be delayed for months until all the appeals are heard. Companies often use these delays to bring in union busters and run expensive anti-union intimidation campaigns against workers.

The rule change won quick approval from organized labor. “With the proposal of these new standards, the Board is taking a modest step to remove roadblocks and reduce unnecessary and costly litigation—and that’s good news for employers as well as employees” said AFL-CIO President Richard Trumka in a statement. “The proposed rule does not address many of the fundamental problems with our labor laws, but it will help bring critically needed fairness and balance to this part of the process.”

The proposed rule also received quick criticism from the Republican member of the NLRB, Brian Hayes. “Without any attempt to identify particular problems in cases where the process has failed, the majority has announced its intent to provide a more expeditious preelection process and a more limited postelection process that tilts heavily against employers’ rights to engage in legitimate free speech and to petition the government for redress” said Hayes. “The majority acts in apparent furtherance of the interests of a narrow constituency, and at the great expense of undermining public trust in the fairness of Board elections.”

The rule is sure to quickly be attacked in the press by Republicans. Republicans have launched an unprecedented campaign against the NLRB in the wake of the Boeing case—threatening to defund the agency. The International Association of Machinists (IAM) filed ethics charges with the Senate Select Committee on Ethics calling for an investigation into South Carolina Republican Sen. Lindsey Graham for his role in trying to stop NLRB in the Boeing Case. IAM charged Sen. Graham with violating Senate Rule 43 by trying to stop a law enforcement trial.

Speaking over the weekend at Netroots Nation, Senator Sheldon Whitehouse (D-RI) said that the attacks on the NLRB “strike me as un-American”. Despite wide condemnation of Republicans' interference with the independent authority of the NLRB, more attacks on the NLRB are likely to come as the rulemaking process gets underway. The public will have 75 days to comment on the rule before it becomes established law. Over the next 75 days, we can expect to see a full throttled attack on the NLRB from Republicans, corporations, and their allies in the media.

Putting Labor’s Money to Good Use

by David Macaray / June 21st, 2011

The practice known as “union-busting” isn’t limited to goon squads cracking heads, or companies hiring public relations firms that specialize in scare tactics and intimidation. In its broadest sense, union-busting describes what congressional Democrats have been doing since the 1980s—taking labor’s money while voting against workers’ rights, giving tough speeches at union halls, then using weasel words when addressing business groups, and refusing to go on the record as unabashedly “pro-union.”

No matter how much campaign money they’ve received from organized labor, you won’t hear Democrats say publicly what Franklin Roosevelt said publicly in 1935: “If I worked in a factory, the first thing I would do is join a union.” Whatever their reason—whether they simply don’t believe in the labor movement, or they’re too scared to admit they do—very few Democrats are willing to stand on their hind legs and repeat what FDR said.

Which brings us to Grover Norquist, the notorious anti-tax, anti-government zealot. Norquist’s rhetoric has inspired supporters to compare him to Thomas Paine and Samuel Adams, and, conversely, has led detractors to suggest that he’s ever so slightly brain-damaged. But whether he’s a crusading patriot or eccentric crackpot, there’s no denying that Norquist terrifies Democrats and Republicans alike.

He terrifies Republicans because he wields enormous leverage within the conservative-libertarian wing of the Party. He wields it for two reasons: (1) by being able to raise obscene amounts of money for political campaigns, and (2) by requiring candidates to sign an oath promising never, ever to raise taxes… or risk having Norquist and his minions throw their support (money) to another candidate.

In short, you either place your signature on his “no tax increase under any circumstances” document or you get steamrolled by the well-financed, anti-tax juggernaut. While some folks might refer to such strong-arm tactics as “extortion,” Norquist and his crowd regard it as a critical test of ideological purity.

As clumsy and peremptory as Norquist’s approach is, it’s also brilliant — so brilliant that organized labor should immediately adopt it. If labor is serious about building an army of progressive Democratic foot soldiers — Democrats who not only believe that the survival of the American middle-class will be led by the labor movement but are willing to stake their careers on it — it needs to adopt a tactic as equally brutal and uncompromising as Norquist’s.

Instead of trying to convince itself that it can reap a bountiful harvest from the current crop of House and Senate Democrats, organized labor needs to sow the seeds of an entirely new strain of representative by announcing that it will no longer support any candidate unless he or she is willing to sign a Norquist-like oath — a written pledge to make unions a top domestic priority and to work diligently on a pro-labor agenda.

What would that agenda look like? Enacting stronger labor laws, strictly enforcing statutes already on the books, passing the EFCA (card check), raising the minimum wage, leveling the “free trade” playing field, and resuscitating labor’s image by flooding the media with the message that it was organized labor who invented the middle-class, and that the reason we’re in the economic mess we’re in is because the voice of the American worker has been drowned out by corporate interests.

And when Democrats smugly pose their “gotcha” question — Who would you rather have in office, an ineffective, pro-labor Democrat or an openly hostile Republican? — labor’s answer should be, “We don’t spend another dime until we have a candidate worthy of us.” To use a baseball analogy, it makes no difference whether you pop up or hit a line-drive to the centerfielder. Both result in outs.

While Grover Norquist has shown he can raise a ton of cash, the AFL-CIO and CTW (Change to Win) can raise more. Organized labor may be struggling, but one thing it’s not short of is money. And money — tactically spent — is what it will take to whip the Democrats into shape. The message: Support union labor or look for a new career.

David Macaray, a Los Angeles playwright and author (It’s Never Been Easy: Essays on Modern Labor), was a former union rep. He can be reached at: dmacaray@earthlink.net. Read other articles by David.

This article was posted on Tuesday, June 21st, 2011 at 8:01am and is filed under Democrats, Labor, Unions.