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The Activist NLRB and the Future of Organized Labor

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Shaun Richman asks a fundamental question: When the hell did the federal government get bolder than most labor unions about asserting the legal rights of workers?

On Monday, in a 3-1 ruling, the National Labor Relations Board (NLRB) reversed a Bush the Younger-era precedent that gave employers a say over whether temporary and subcontracted workers can be included in the same bargaining unit as the regular, full-time employees with whom they work beside. Go figure, most employers said “no” to the proposition that people who work shoulder to shoulder, but are paid from separate checkbooks, could bargain together in the same union. But the new Miller & Anderson, Inc. decision could force subcontractors to bargain with a certified union over the wages and working conditions determined by the controlling employer.

The ruling comes hot on the heels of the Board’s American Baptist Homes decision. That case re-established a balancing test for whether a boss’ employment of permanent replacement strikers is actually motivated by a desire to bust a union —which goes a long way towards restoring a legal right to strike.

And, of course, the Board’s attempt to expedite representation elections by holding frivolous management objections in abeyance until after the workers vote nearly broke the Congress. (Seriously, if you want to drink some delicious boss’ tears Google “quickie NLRB election.”)

As veteran union organizer Stephen Lerner succinctly puts it, “Unions have been significantly hobbled by the legal regime, and a lack of imagination to challenge it.” I have advocated that unions should pursue an agenda of judicial activism. These recent NLRB actions prove that the time is ripe to challenge the rules of the system that keep unions shackled. I’ve spent most of my career complaining about how slow and ineffective the NLRB is, as have most union organizers. That bias should not blind us to the opportunity of the moment.

Speaking of Lerner, this is worth your time:

Austerity, growing inequality, and the economic and political domination of billionaires, bankers, hedge funds, and giant corporations make the current moment ripe for birthing a movement that can radically transform the country and the world. This is a time of great peril, but also of extraordinary opportunity and—yes—reasons for hope. The last four decades have been characterized by unrelenting attacks on the working class, the weakening of unions and the financialization of capitalism. The fiscal crisis of 2007-2008, the burgeoning wealth gap, and the flood of money from corporations and the rich drowning our democracy have exposed the nation’s political, moral, and economic decay, creating conditions that beg for an alternative to a system that increasingly only works for the super-rich.

I agree that there are a lot of reasons to hope right now. I don’t see the failure of the Sanders campaign or the Walmart organizing campaign as actually failures. I see them as moments leading to something much larger, something we are already seeing in the debates around income inequality, the growth of minimum wage legislation, and even Republican politicians sometimes having to admit that these are real problems (even if their solutions are as anti-poor as ever).

So what role do unions play now, given their decreased density? Lerner suggests several possibilities. Each of these have longer descriptions but let me just lay out their intros with a brief comment. First:

Unions need to understand and educate the public about what is going on in the economy if labor and other social movements are to seize this opportunity and figure out how to turn frailty into strength. They need to demystify the complexity of the how the economy works, so that working-class people and social movements can respond in kind.

Unions are well-placed to do this, as they hire labor economists and analysts who produce perceptive critiques of the economy. In this, I would say that these unions should (and of course they already do) work in conjunction or in conversation with left-leaning think tanks like the Roosevelt Institute to build up these critiques, and then find ways to disseminate this through the politically active population.

Assert control over wealth and capital: In the post-World War II era, unions made two related mistakes that have contributed to labor’s isolation and to unrestrained corporate control of the economy: First, organized labor focused nearly exclusively on winning higher wages and benefits for only the unionized sector of the economy; and second it declined to challenge how companies were managed or how capital and wealth were invested or controlled. In the auto sector, the United Auto Workers (UAW) won higher wages in Big Three assembly plants at the same time the companies spun off and outsourced manufacturing of parts that used to be done by UAW members. These two moves both lowered standards for these workers and undercut the union’s overall power in the industry.

All of this was predicated on the idea that unions and collective bargaining were accepted by the corporate and political elites as a permanent fixture of the system and as a legitimate method for setting wages and benefits. Since the 1970s, however, union membership has been in a steady free fall with today’s union density at roughly 11 percent. This means that, in addition to having ceded control over wealth and capital, unions have largely focused on protecting the interests of only a small fraction of workers.

Some unions have already moved in this direction, especially seen in SEIU’s support of the Fight for $15, for which they have expended millions of dollars without organizing a single establishment under a contract. Lerner also points to labor support of immigrant rights in recent decades as another example of this. Of course, there are some tricks here. A union has to remain financially viable and it has to serve its own members. Those things are paramount. But that can be done while also fighting for the broader agenda of all workers. Of course, not all unions are doing this and thus you see unions arguing for exemptions to minimum wage laws for their own members. That’s the kind of negative leadership unions have to stop doing. Broadly, unions need to be allies in other mass movements. Sometimes that is happening, sometimes it isn’t. But some unions are just never going to adjust to thinking of themselves as part of a social movement.

Unions are still the best-resourced progressive organizations in the U.S., but they have been far less successful at capturing the national imagination than other movements that have no resources. If unions limit their mission to the four walls of the workplace, then they become less relevant as they represent fewer workplaces. But by embracing other mass movements—without attempting to control or hijack them—unions can grow alongside of them and those movements will benefit from the organizational resources that organized labor can bring to bear.

The idea in Occupy Wall Street that unions would co-opt the movement was laughable from an evidentary standpoint. As if the unions had that power! But the fact that activists thought it was a real thing is a sign of the distrust a lot of activists in other movements have toward organized labor and to no small extent, that reputation has been earned over the past century. But Lerner provides several examples of how unions have been doing a much better job on these issues in recent years. Such alliance building is not just about the economy, but also making unions leaders in the fight for racial justice. That’s also going to take internal organizing in many of the unions, which are not always made up of racially progressive people.

Lerner concludes:

At this moment financialized capitalism is dominant, but also incredibly fragile, caught in cycles of booms and busts. Wall Street, mega corporations and newly minted tech billionaires boast of using “creative destruction” to reshape companies and the economy while enriching themselves at labor’s expense. Instead of accepting their dominance and control unions can start to counter their destruction with their own “creative disruption”, demonstrating just how fragile their control is and the potential power of labor—if unions are willing to flex their muscles.

By articulating a vision of a more just world, going on offense, demanding more instead of accepting less, and aligning campaigns against the billionaires at the top, labor can inspire and organize a movement dedicated to redistributing wealth and power.

Going back to Richman to end this long post, he argues that unions need to build upon this newly aggressive NLRB and start making real demands of the agency (assuming that Hillary Clinton wins the general election) that would push back against the decades of corporate attack upon workers:

A good case in point is employers’ “right” to force employees to attend mandatory anti-union “captive audience” meetings during a union organizing drive. Most organizers accept that it “is what it is”—another fucked up way that NLRB election rules are rigged so that unions lose a ton of representation elections. (Although, it should be noted that unions used to lose half of all representation elections during the Clinton I-era and now tend to win about two-thirds of elections, thanks partly to more strategic organizing choices and partly to the NLRB’s recent return to its historic mission of encouraging unions and collective bargaining.)

Meanwhile, apparently, the NLRB has been on the record for half a century as inviting unions to make a case that there should be some kind of equal access standard for unions if an employer forces workers to attend mandatory meetings on the subject of union representation. A group of 106 leading labor scholars, led by Charles Morris and Paul Secunda, have filed a petition at the NLRB to re-establish just such a rule.

The speculation is that the NLRB is unlikely to act on Morris’ and Secunda’s petition, as it prefers to act on union (or employer) initiated procedural cases. The Miller & Anderson decision came in response to a union representation petition; the American Baptist Homes decision in response to an unfair labor practice charge. To win equal time, a union will have to file exceptions to a losing representation election in which the employer made use of mandatory captive audience meetings. Surely, and sadly, someone reading this article has recently lost an election under such circumstances, and can take the initiative.

Similarly, most unionists just accept that an employer has a “right” to permanently replace striking workers. For example, Jane McAlevey, in her organizing memoir Raising Hell (and Raising Expectations), incorrectly chalks it up to a law signed by Ronald Reagan. It wasn’t. It was a poorly decided 1938 Supreme Court case that was dusted off in the 1980s. Like referees in a schlocky Hulk Hogan wrestling match, Reagan’s NLRB appointees looked the other way as employers engaged in a coordinated union-busting drive that weaponized the unfrozen caveman Supreme Court precedent.

After an unsuccessful attempt to legislatively ban permanent replacements during the first Clinton era, most unions seem to have shrugged and accepted that workers can legally lose their jobs for striking—that is until the NLRB reverted to the pre-Reagan rules. But the Board can go further. The crucial phrase in that 1938 Court decision, NLRB vs. Mackay Radio & Telegraph Co., is that an employer can hire permanent replacements if it is necessary “to protect and continue his business.”

In other words, to meet the Supreme Court standard, the NLRB could force Verizon or any other Fortune 500 company to prove that they would otherwise go out of business unless they can hire scabs to steal the jobs of their striking workers. Good luck with that. Unions should get in the habit of filing unfair labor practice charges any time a boss advertises for scabs.

The NLRB even potentially has the power to reverse “Right to Work.” The statutes, passed on a state-by-state basis, aim to prevent unions from collecting fees from all of the workers they are legally obligated to represent. But the federal law that allows “Right to Work” statutes has, until recently, faced very few judicial challenges. One open question is whether the legislative intent of the Taft-Hartley act was merely to ban union membership as a condition of employment—not whether unions could negotiate mandatory fees for grievance representation services. Seattle University Associate Professor of Law Charlotte Garden notes that the NLRB could approve such a formula, and has indicated openness to cases arguing for it.

There’s a lot of potential here. But it’s going to take unions taking the offensive to make that happen. I believe that even with their decreased membership, unions have an absolutely vital role to play any future left-leaning organizing in this nation. The potential is there for far-reaching changes that would go far to reset the playing field between workers and employers. We’ll have to see if they can take advantage of it. But the first thing that has to happen is Hillary Clinton must be elected to the White House. Otherwise, the rules of the game are going to get much, much, much worse.

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