Tell the Bosses We're Coming. Shaun Richman
Now, in the twenty-first century, I know that it’s fashionable for people to snark in the comments section that “freedom of speech is not freedom from the repercussions of speech.” And union organizers tend to disabuse people of the notion that they have many enforceable rights at work (without a union contract, that is). But, stretch your mind a little bit and try to see what Herbert Hill saw.
The Bill of Rights and the Reconstruction Amendments (Thirteen, Fourteen, and Fifteen) are the best things in the U.S. Constitution. They clearly articulate human rights that people understand and believe in. The only problem with them is that, with the crucial exception of the Thirteenth Amendment, they only restrict the government from violating your rights. On a day-to-day basis, however, your boss has way more power over your life and liberty.
The NAACP looked at the NLRB and saw an arm of the federal government that was certifying that workers—Taxpayers! Citizens!—had democratically chosen an organization to represent them. This arm of the government, with the threat of a court injunction, had directed those workers’ employer to meet with their representative and bargain in good faith. That arm of the government would also step in if any party claimed that the other side’s behavior was unfair and would issue a decision that is binding.
This, Herbert Hill argued, was state action. Whatever the NLRB signed off on, whatever the NLRB blocked, was bringing the government in as a party. If it was an action that would violate constitutional rights if the government were to do it directly, it would also be a violation in government-regulated labor relations.
That was their argument anyway. In particular, they saw the NLRB as a strategy for getting free speech, due process, and equal protection into workplaces. And those principles are respected in the duty of fair representation, which they did win. But those principles still don’t apply to employer behaviors, largely because Hill’s workplace constitution approach was abandoned.
Congress did finally pass civil rights legislation in 1964, and many activists found those laws a preferable way to address workplace discrimination. Plus, unions chafed at increased governmental regulation of their constitutions and collective bargaining, even if it was for a righteous cause. Finally, Ronald Reagan’s court appointments ushered in a new era of conservative jurisprudence that prioritized the literal words written by long-dead white male slaveholders over novel constitutional interpretations like Hill’s.22
But the results of these efforts further solidified the legal preference for exclusive representation and forced unions into the role of quasi-governmental representative in the workplace. The responsibilities of behaving as a workplace government can get particularly problematic when unions are prevented from collecting their “union shop” equivalent of taxes, as “right to work” laws aim to do.
The “Right to Work” and the Dismantling of the Postwar Labor Movement
The maintenance of membership clauses of the Second World War period, the closed shop agreements that the craft unions enjoyed before them, and the union shop/union security provisions that were bargained in the immediate postwar era drove captains of industry, right-wing ideologues, and rabid racists out of their bloody minds. Anti-labor propaganda and political pressures ensued.
Between 1944 and 1946, five states (Florida, Arkansas, South Dakota, Nebraska, and Arizona) passed laws that were given the confusing but populist-sounding name “Right to Work.” Some of these laws aimed to make illegal the closed shop, which made union membership a precondition for getting hired on a job. Others aimed to outlaw any rule whereby a worker could lose his job for refusing to join or pay any kind of fee to a union after he was hired. All of the bills appealed to that peculiarly macho American notion of rugged individualism.
Unions initially responded with technical legal appeals. Their argument: the National Labor Relations Act was the nation’s labor law. It allowed and indeed encouraged union-shop and closed-shop clauses as a subject of bargaining. Federal law is supreme and preempts state law; therefore these “right to work” laws were unconstitutional attempts by states to overrule the federal government.
The 1946 midterm elections saw the New Deal Democrats turned out of office for the first time. One of the factors in the Republicans’ victory was the public’s mixed opinion on the postwar strike wave. The strike wave was a result of workers’ pent-up frustrations with wartime inflation and wage freezes compounded with long-simmering resentments from Depression-era privations. The strike wave resulted in greatly increased wages and a new private welfare state of employer-paid benefits. But it was also incredibly disruptive and convinced many politicians that labor had somehow become “too powerful.”
The Taft-Hartley Act that the Republican Congress passed in 1947 was a series of amendments to the NLRA that aimed to blunt the power of unions and give bosses more legal tools to fight them. Its “right to work” section devolved the issue to the states, thereby killing the legal challenges that unions were pursuing.
Union leaders threatened hellfire and damnation for any politician that voted for Taft-Hartley. They increased their political fundraising and campaigning, and they made legislative repeal their number one priority. This was not a particularly effective strategy (so says this writer who has the benefit of seventy years of hindsight).
First, the obvious: Congress never repealed Taft-Hartley or meaningfully reformed labor law. This was despite tremendous efforts by unions to elect Democrats over the decades. There were substantial Democratic majorities in 1949, 1965, and 1977 and repealing Taft-Hartley was simply not prioritized by Presidents Truman, Johnson, and Carter.
The phrase “right to work” is a cynical manipulation by right-wingers, but it does have some support. Compelling workers to join a union or face termination is not the most popular thing in the world. As we have seen, union-shop clauses are compensation for the workplace governance functions that unions are legally compelled to provide. They could be seen as a tax. But unions are not just a neutral workplace government, a labor-management committee, or a works council. They are political organizations, with social views, and they work toward civil rights, openly allied with a political party.
This system is a bit of a muddle, but exclusive representation, the duty of fair representation, and the union shop are all essential components of what made it work. “Right to work” attacks put unions and their allies in the untenable position of having to defend the system solely based on its least popular component. This is not unlike forcing defenders of the Affordable Care Act to justify it solely because of the individual mandate. Both systems fall apart without forcing individuals to pay their fair share, but the individual mandate is the most divisive component of the system.
By focusing solely on legislative lobbying, unions engaged the issue as a special interest. For the remainder of the twentieth century, labor, where labor was strong, was able to prevent passage of state “right to work” bills. Where it was weak—the South and Southwest—states fell like dominoes.
Without the ability to negotiate union shops, unions have largely avoided new organizing in “right to work” states. As we’ll see in the next chapter, this left labor regionally isolated and encouraged capital flight and union avoidance.
THREE
The Routine of Collective Bargaining
Management has no divine rights. —WALTER REUTHER, 1948
A HUGE PART OF THE SYSTEM in which we are trapped is the routine of collective bargaining.23 In contracts that last anywhere from three to seven years, unions trade preservation of wages, pensions, and health insurance for significant concessions on workplace protest and the boss’s ability to run his business as he damn well pleases. The result is cutbacks in pay and benefits for which unions bear most of the blame, a decline in our power, and the perception by workers, inside and outside the labor movement, that unions can’t be the change agents that workers want them to be.
Much of this is reinforced by our lousy labor law regime. But this is not an area where