A Look at America's Repressive Labor Law

So Little Justice—
Why Is There So Much Peace?
by Bill Onasch

Opponents of NAFTA and the WTO often rightly emphasize the lack of labor rights in other countries. It's important to support worker rights abroad. That's not charity. International solidarity is in the material interest of U.S. workers.

But while fighting repression of workers elsewhere we should not lose sight of the fact that our own country has the worst record on labor rights in the industrialized (formerly known as “free”) world. Let's take a look at a few recent examples:

Jail Term for Leader of Teachers' Strike reads the headline in the New York Times. Philip Rumore, President of the Buffalo Teachers Federation, was sentenced to 15 days in jail, and fined a thousand dollars, for the crime of leading his members after they voted to go on strike for a new contract. Edith Le Win, the Vice-President, and Barbara Bielecki, the Secretary of the union, also were fined a thousand dollars each. The leaders pleaded guilty at their hearing before the judge. “We broke the law, we know that,” Rumore said. “As teachers and officers of the BTF, we wanted to take responsibility for our actions.”

Buffalo wasn't the only place where teachers presented a lesson in labor law. Fines hang over Hamilton teachers' heads bannered a story in the Trenton Times. Teachers, food service employees, clerical workers, and school bus drivers conducted an eight-day strike in Hamilton, New Jersey. For this terrible act a judge fined the Hamilton Township Education Association 600,000 dollars, and HTEA's individual teacher members 1500 dollars each (noncertified cafeteria workers and bus drivers got off with 250 bucks). The Hamilton Township School Secretaries Association got hit with a 25,000 dollar fine plus 250 from each individual member.

Imported Nurses Step In for Strikers was the lead in a recent Washington Post story. 1200 nurses struck Washington Hospital Center, the region's biggest hospital. The “imported” nurses didn't come from abroad. They were professional scabs sent in by Denver-based U.S. Nursing Corp. The Post describes this outfit “The company has a virtual lock on an unusual marketplace niche: It provides replacement nurses for hospitals whose nursing staff members are on strike. Without substitutes, the hospital would have to cut services significantly until the strike ended. Hospitals pay U.S. Nursing for all employee expenses and salaries, plus fees to cover operation of a central office with more than 100 staff members.” Only America, among industrial nations, has such enterprises.

Judge Orders Pilots' Union to Make Payment to Airline reported Bloomberg News. After the members of the Allied Pilots Association—against the recommendation of their officers—rejected a contract extension at American Airlines, a judge reimposed a 45.5 million dollar fine against the union for job actions last year. The fine is to be paid to the poor carrier.

The KC Labor web site maintains a service to put unorganized workers in touch with unions. Not long ago we got this request:

I am an Independent Contractor - Newspaper Carrier for the local Newspaper and we are in great need of a union. Is there such a thing as a newspaper carrier union organization? If so PLEASE DIRECT US in the right direction.

I thought from first reading there wasn't much legal hope for this group but I did some checking. I eventually had to send this reply:

I'm sorry to have taken so long. I didn't like the answers I was getting and kept searching for alternatives. Unfortunately, I have no good news to report.

This is what a local labor attorney told me:

"The law is clear that independent contractors are not employees under the NLRA. The Star converted from using employee carriers to independent contractors (IC) many years ago in part to get rid of the union (I think). I believe the CWA may have taken a swing at organizing carriers some years ago and lost the IC issue at the NLRB. There's not much hope for such organizing at The Star."

I have been checking around other cities. Where carriers remain employees they are mostly unionized. But where they have been made contractors I have found no examples of any way they have been able to organize.

Labor laws in this country are stacked against working people. The Star has used these laws ruthlessly. As late as the 1970s the Star was "wall-to-wall" unionized. Today only a handful of workers in the classified department still have a union contract.

We need to change the labor laws. Your situation could be a good example of one area needing urgent relief—so-called independent contractors. We can try to publicize your situation and demand from candidates for office that they pledge to work for labor law reform. If you're interested in pursuing that line of action we'd certainly be willing to help. Other than that, I don't see much you can do in the short term.

Sorry I can't offer something better.

We also received a recent inquiry from a FedEx worker about the law and break time:

We are required to be at work by 1:00pm and don't leave until 11:50pm or 12:00am. During that time we aren't allowed any scheduled breaks or a lunch period. Is that legal? What is the requirement? I was told that I was entitled to two 15 minute paid breaks and one 30 minute unpaid lunch. My stomach would like to know.

The worker was probably disappointed by our reply:

Unfortunately, in general there are no legal requirements for lunch or other breaks. The only legally-mandated break in work is for rail operating crafts, airline pilots, and drivers falling under DoT regulations, which limit the consecutive hours they may work, and prescribe a minimum time off before returning to work. You wouldn't fall into any of those categories.

The only way workers can get guaranteed break times is through a union contract. Of course you don't have one at FedEx.

As you probably know, there are efforts being made to organize FedEx workers. If you haven't visited it already you might want to check out a local FedEx organizing site, Union Pride.

Sorry I couldn't give you a better answer. Feel free to contact us with other questions or comments.

Of course running afoul of the law is not a recent challenge for American workers. Early on in our country's history courts consistently held that unions themselves, by their very nature, were an illegal restraint of free trade. This outlaw status was modified not by a change of heart by jurists nor considered steps toward justice by legislators committed to fair play. The working class won whatever legal rights we have by defying unjust laws and getting away with it because of our power.

From Haymarket on through to the Flint Sit-Downs there were thousands of labor skirmishes, in every craft and industry, in virtually every community, that were declared to be outside the law. Many were defeated. A lot of workers lost their jobs, and some lost their lives, as a result. But because the working class is the great majority in our society, and because we do all of the productive work in our society, we have the capacity to recover from lost battles and go on to win wars.

One of the enduring myths in the American labor movement is that our legal rights to organize and bargain were granted by the Democrats, under Franklin D Roosevelt's New Deal in the 1930s. This is a distortion of the true history.

The Great Depression, with widespread unemployment and poverty, lasted, with some minor ups and downs, from 1930 until war production started taking off in 1940. For the first few years of these terrible conditions workers were in a state of shock, suffering as demoralized individuals.

But by 1934 a serious fight back developed. First there were three crucial strikes that brought major cities to the brink of mass insurrection—the Toledo Auto-Lite strike; the Minneapolis Teamsters strike; and the San Francisco general strike. Shortly thereafter the first sit-down strikes occurred in the rubber industry. The sit-down tactic—a fundamental challenge to the property rights of the boss—soon spread into many industries, above all auto, peaking in the historic Flint actions at General Motors.

Workers were also becoming aggressive in politics. In Minnesota the Farmer-Labor Party controlled the state government and the Democrats were relegated to minor third party status. In New York unions formed the American Labor Party. The ALP endorsed some major party candidates but also elected some of their own including Transport Workers Union president Mike Quill to the New York City Council. And tens of thousands of workers joined the Communist and Socialist parties.

All this profoundly shook the employers. This new labor movement not only threatened to cut into their profits by improving wages and working conditions; it also had a revolutionary potential, calling into question the right of the bosses to manage the economy and society. Since they didn't have the power at the time to repress this movement the employers looked for ways to defuse it. They got their think tanks and government agencies working on both new legal and political approaches to the class struggle.

That was the context for the first National Labor Relations Act, known as the Wagner Act. The Wagner Act, for the first time, clearly guaranteed the right of most private sector workers to organize and bargain collectively. In statutory terms this was a big step forward for the working class, no doubt about it. But in practice it actually retarded the growth of unions.

Prior to the Wagner Act a typical organizing tactic was for the organizer to knock on the bosses' door and demand that they negotiate a contract. If the boss refused the workers either walked out or sat down. It proved to be an effective and speedy approach. After a while many employers recognized unions without going through such a fight.

Under the Wagner Act an election process was established. Workers would petition to have a vote as to whether or not they were to be represented by the union. This gave the bosses time to make promises and/or threats to their workers to influence the outcome. Negotiating wasn't required until after the union was certified the winner in the vote. This didn't stop the growth of unions but it slowed everything down and reduced it to an orderly procedure.

The employers prefer not to deal with unions at all. Where they have to recognize them they want them to be closely regulated, stable institutions, limited to bread-and-butter issues. They agreed to the Wagner Act as the best remedy to the wild class struggle of the time, an acceptable concession to workers until the relationship of forces became once again more favorable for the bosses.

For the first time the Democrats started pushing themselves as the party of labor and started urging union leaders to come on board and forget about the movement for a Labor Party. FDR had considerable success along these lines.

The next major modification in labor law came during World War II. FDR put in place tri-partite boards, made up of business, labor, and “neutral public” representatives to regulate the economy, including labor relations. The union leaders were offered a major concession—millions of workers were automatically assigned to union rolls with little or no effort required to organize them. But, in return, the unions had to agree to no strikes or slow downs for the duration of the war and to wages and benefits being decided by various boards. (Only the United Mine Workers refused to get with the program; they carried out four national strikes.)

After the end of the war the bosses hoped to repeat the success they had in smashing unions at the conclusion of the First World War. They challenged the unions head on. But it was a different story in 1945-46 than 1918-19. With the GI Bill in place there were no hungry veterans ready to scab. On the contrary, most of the returning service men and women either went back to their old union jobs and became staunch fighters for the union, or supported picket lines from the outside as they prepared to go to school. The greatest strike wave in our history swept through industry after industry. At one point more than three million workers were on the picket lines at the same time. And virtually all these strikes ended in victories for the unions.

The employers shifted tactics somewhat. The United States was the only major industrialized country (besides Canada) that hadn't sustained major destruction during the war. American companies were able to take the lead in rebuilding the economies of war torn Europe and Japan. They also had the inside track for replacing the domination of the old colonial powers in Asia, Africa, and Latin America. And, after fifteen years of depression and war there was tremendous pent-up consumer demand at home. Some of them spoke openly of an American Century. 

So they wanted stability in order to take advantage of these huge opportunities. They were even prepared to improve wages and benefits for the workers out of these new profit opportunities. Instead of trying to break the unions outright they now set out to restrict union power and growth while granting contract concessions here and there.

The new line that the bosses peddled through their politicians and the media went something like this: Yes, there was a need for unions back in the bad old days. Big Business didn't always treat their workers fairly. But now the unions have gotten too big for their britches. They're threatening our economic prosperity and political stability. We have to level the playing field by putting restrictions on Big Labor just as we have done with Big Business.

In 1947 congress passed a sweeping revampment of the National Labor Relations Act, known as the Taft-Hartley Act. Among other changes Taft-Hartley

These new restrictions meant that unions couldn't legally pursue some of their most effective tactics applied during the 30s and the 45-46 strike wave. The unions did bitterly oppose Taft-Hartley and Truman vetoed it (though Truman later used the strike-breaking injunction provisions more than any other President.) But enough Democrats joined the Republicans to override the veto.

At first there was talk of defying Taft-Hartley. Initially the CIO leaders all declared they would refuse to sign the insulting, and unconstitutional non-communist affidavits. But the defiance didn't get very far and, when factional fights in the CIO heated up, some unions signed the affidavits and raided the UE, red baiting them for refusing to sign, and winning elections uncontested because the UE was barred from the ballot. (The UE successfully fought the charges of being communist-controlled and explain with some irony that they are the only union around that has been certified by the government as not being controlled by the Communist Party.)

Taft-Hartley was a major watershed for the American labor movement. We have been on the defensive ever since. While the unions grew some for a few years after passage, peaking as a percentage of the workforce in the 1950s, that was primarily due to the postwar growth of industries where the unions were firmly planted. Restructuring and globalization have decimated the old union strongholds and the percentage of union workers in the private sector has dropped back to depression era levels.

Representation election rules favor the bosses. That's why fewer than half are won. If you can't keep out scabs, if you can't mount an effective boycott campaign, too many strikes are going to be lost. And if workers are afraid to strike you're not going to get much from bosses during negotiations. That's why real wages have remained basically stagnant during a period of unprecedented “prosperity.”

Clearly we don't have much of a future if the labor movement continues to be saddled with the most repressive labor laws in the industrialized world. We won't get these laws changed by appeals to reason, or fund contributions, to “friends of labor” politicians. They're not presently interested in labor law reform.

We've all been raised to be law-abiding. Yet most of us didn't regard civil rights activists as criminals when they defied segregationist laws. Suffragists who went to jail trying to get the vote for women are now honored on coins and stamps. And when we see film of the Flint sit-downs most of us root for the criminal trespassers—not the forces of law and order.

Unjust laws should not only be changed; they should also in the meantime be defied in intelligently selected times and places. When we, like those union pioneers of the 1930s, show our power in the streets and in the communities; when we've built an independent political base; then, and only then, will  we convince those who write and interpret the laws to do the right thing.

Many in the labor movement are vilifying Ralph Nader for costing a “friend of labor” the election. But “labor's friend” said next to nothing about labor law reform. Nader was the only candidate that called for repeal of Taft-Hartley, card checks for union recognition, and urged workers to join unions. I say we need fewer friends and more candidates like Nader.

The only party that is actively trying to do something about labor law reform is a party that has yet to run a candidate for any office—the Labor Party. They have started organizing discussions about a draft position paper—Toward a New Labor Law—with trade union leaders and activists in several cities. We need such discussions here in the Kansas City area—and everywhere else.

If we can't get labor law justice then there should be no labor peace.