The Huffington Post, March 13, 2012
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Like many progressives I had hopes that President Obama could push the Employee Free Choice Act (EFCA) through Congress. There was no doubt that it would be difficult to get it through a Senate filibuster, but the support of a few moderate Republicans did not seem impossible. Passage seemed close enough that a bit of horse trading and arm-twisting could pull the bill over the line.
In reality, it turned out that it was not close. In spite of the best efforts of the labor movement and its supporters, the bill had nowhere near the votes needed to get through a filibuster. The issue was not just getting the few Republicans that would be needed to end a filibuster; the problem was that many Democrats in the Senate would not go near a bill that would make unionization easier.
In an environment of unrelenting employer hostility to unions, there can be little doubt that there needs to be some change in the rules if workers in the private sector are going to have chance of being able to organize successfully. As it stands, it is standard practice for employers to fire workers who are engaged in an organizing drive.
While such firing is against the law, the penalties are trivial. When it gets around to hearing the case, which could take years, the National Labor Relations Board can order that a worker wrongly fired be rehired. Workers wrongfully fired are also entitled to the difference between the wages that they would have earned on the job from which they were fired, and the wages they actually earned. This is often little or nothing. Imagine being fired from a job at Walmart that paid little more than the minimum wage.
Meanwhile, the firing is great strategy from the employers' standpoint. The troublemakers are gone. The union is shown to be impotent and the rest of the workforce conceals any possible interest in the union in order to avoid the same fate. It doesn't help much if the organizers get rehired a year or two later. Imagine that President Obama got to jail his opponent's campaign workers for the two months prior to the election, but had to release them the month after. That is the roughly the state of union elections in America today.
But EFCA got nowhere and it is not likely to get anywhere any time soon. There was very little public understanding of the issues involved. And one of the key demands, that workers could organize through majority sign-up rather than a secret ballot election (a situation that already exists at the discretion of the employer but not the workers), seemed undemocratic to many people who might have otherwise been sympathetic. If labor is to again be able to organize in the private sector, it clearly needs a new path forward.
This is where Why Labor Organizing Should be a Civil Right by Richard Kahlenberg and Moshe Marvit (Century Foundation) takes off. This book is written from the perspective of two lawyers who recognize the importance of the labor movement to progressive change in the United States over the last 8 decades.
The book's key proposal is that workers who are trying to organize should be given the same sort of legal protection that African Americans or women enjoy against discrimination based on race or gender. This means that workers who are fired would get to sue in real court (not the NLRB) for real damages. As in civil rights cases, they would be entitled to collect attorney's fees from employers if they won their case.
Attorneys' fees are a huge deal, since it means that workers could afford to get lawyers in cases where it otherwise would probably not pay to hire a lawyer. As part of their suit, workers would also have the opportunity to engage in discovery, forcing employers to turn over documents about hiring union-busting consultants and to reveal discussions that might have led workers to exercise their right to seek union representation.
This is the sort of huge rethinking that is needed if labor and progressive politics more generally are going to have a chance to advance in the decades ahead. The current situation of labor is striking because the laws are incredibly tilted against workers in a way that even many progressives do not recognize. If workers violate the law, for example with a wildcat strike or secondary boycott, employees can go to court and get an injunction in hours.
Unlike the situation where employers fire organizers, the penalties for the workers in these cases are hardly a wrist slap. Leaders of the action face imprisonment if they defy an injunction. Any assets of the union can be seized, which could include any strike fund, bank accounts, even office equipment. Imagine if Jeffrey Immelt, the CEO of GE, faced jail time every time the company violated a labor law?
If it ever was passed into law, Kahlenberg and Marvit's proposal would likely have substantially more impact on unionization rates than the EFCA, but more importantly the proposal has a greater prospect of gaining the sort of popular support needed for passage. The issues that motivated the EFCA required a knowledge of the specifics of union organizing that few people have. As a result, even people sympathetic to labor often did not support the bill. By contrast, the Kalhlenberg-Marvit proposal is rooted in a rights-based approach that should be more intuitive to the public.
The authors are not naïve in thinking that this reframing will cause a bill to magically sail through Congress and land on the president's desk. Employers will be every bit as forceful in opposing a bill that seeks to give workers this right to sue as they were in opposing ECFA. However, the big difference is that labor and its supporters are far more likely to be able to gain the popular support to overcome this opposition going the civil rights route.
This argument also helps to pull the argument away from a sort of loser liberalism story where the government is reaching over to help labor by letting them go to children's court (the NLRB) because it feels sorry for them. Instead, labor is seeking symmetry in the relationship with management. Employers get to take their grievances to real court; workers should have the same opportunity.
While Kahlenberg and Marvit did not invent the proposal that is the centerpiece of the book, they deserve credit for bringing it back to public attention in a forceful manner at a time when labor and the progressive movement more generally are desperately in need of new directions forward. This is a book worth reading and argument worth taking seriously.