Labor Advocate Online
Labor Day Special

Labor and the Law

"As in Great Britain, labor organizing in the United States was discouraged by the common law doctrine that unions represented a conspiracy against the public good."óColumbia Encyclopedia.

You work for a private employer and you think you, and your fellow workers, are getting a raw deal from the boss. You decide you want a union. What do you generally have to do?

You quickly find there are many hoops to jump through. First you figure out who should be in your bargaining unit. Then you need to get at least thirty percent of the workers in that unit to sign cards saying they want the union to represent them. If the boss gets wind of this effort early enough they can often nip it in the bud through intimidation. On the other hand, if a majority sign cards the union may ask the boss to voluntarily recognize the union and start negotiating.

Such voluntary recognition is extremely rare. Usually the boss tells the union to drop dead. The union then must take the signed cards to an office of the National Labor Relations Board (NLRB) and petition for an election to determine whether the union shall be entitled to legally represent you in collective bargaining.

After the petition is filed there will be haggling between the boss and the union over exactly who will be in the unit that will vote. Once the NLRB determines the unit an election date is set.

At that point, more likely than not, your boss hires a consulting firm specializing in keeping unions out. The company is allowed to compel workers to attend captive audience meetings where the boss and/or consultants will alternately warn, apologize, threaten, and promise anything to convince the workers to vote no. They can do the same in one-on-one meetings.

Union supporters are restricted to campaigning in nonwork areas during nonwork time.

The law is stacked in favor of the boss in such elections. But frequently the employers and consultants go even a little bit farther than the law allows. They often fire key union supporters and make illegal threats and promises. Itís not easy for unions to successfully challenge such violations. Even when the NLRB finds the company guilty of infractions the penalties are so inconsequential they can be easily absorbed as part of the cost of doing business.

About half of all such elections are lost by the union. But letís say through a combination of being good and lucky you win. Just exactly what have you won? Not much. The boss is required to negotiate in "good faith" with the union for at least a year. Winning the election doesnít get you a raise, or seniority protection, or a grievance procedure, or health insurance, or anything. The boss has to talk to the union occasionallyónothing else. Itís up to you to convince the boss to agree to a decent first contract.

If the employer doesnít budge workers naturally consider the tactic of a strike. Strikes get their attention. If youíre not working they canít make any money off of your labor. Workers have instinctively grasped the potential power of this action for time immemorial.

With some important exceptions, the law generally guarantees your right to strike. But many workers are shocked to find out the law doesnít protect their right to return to work after a strike. Unless the strike is certified as being against company unfair labor practicesóas defined by lawóthe employer is free to hire "permanent replacements" to take over the strikerís jobs. Lose the strike and you lose your job. (Even during ULP strikes the boss is permitted to hire "temporary replacements" to break your strike.)

Letís say you go on strike for that first contract and the boss moves to hire "permanent replacements." Clearly your response should be to try to keep the scabs out of your workplace through a picket line. You then learn another important lesson in American labor law. The Taft-Hartley Act outlaws mass picketing to block access to the workplace. The company will find a judge limiting your pickets to a token number. In addition to company security guards the police will be on hand as needed to escort scabs into your former jobs.

Does your employer produce a consumer product? You probably think it would be a good idea to go to stores selling these products and tell them to stop handling them during the strike. You could even put up a picket line at stores not voluntarily complying with your request and urge the public to boycott their stores. That can be effective. Itís also against the law, known as a secondary boycott.

How about going to railroad workers, and Teamsters truck drivers, and asking them not to transport any goods from your employer during the strike? Good idea. But while rail and truck workers can usually refuse to actually cross your strike line they canít legally refuse to handle goods that somehow get beyond the picket lines. Thatís known as hot cargo and itís been against the law for decades.

These are the most repressive labor laws of any industrialized country. Itís no wonder that so many organizing drives and strikes fail; the wonder is that many still succeed.

In earlier periods of our nationís history laborís legal status was even worse. Common law held that unions themselves were illegal conspiracies. Unions were once prosecuted under anti-trust laws. Labor laws have mainly been modified for the better only in the face of massive disobedience by workers with strong public support. Like the civil rights movement, labor has often had to defy unjust laws in order to change them.

But itís important to keep in mind that while massive disobedience can be effective isolated disobedience leads only to victimization. Small groups of workers canít successfully flout the law. Class solidarity can challenge unjust lawsóand historically has.

Of course actually changing, not just defying, the law requires political action. Neither major party has shown the slightest inclination to make laws better for workers. The farthest the Democrats have gone is to allow unions to be recognized through card check instead of going through vicious election campaigns. It remains to be seen how serious is their commitment to even that modest reform.

Only the Labor Party has developed a serious program for dealing with repressive labor laws. Check out their Campaign For Worker Rights.

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