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Kill Taft-Hartley

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The ambitious plans that Bernie Sanders and Elizabeth Warren have no real chance of passing the Senate and even if they do, the Supreme Court will kill them. They are more long-term and aspirational than realistic for the next four years, which is fine except that their followers believe they can be enacted. I guess you have to deal with the politics you have instead of the long-term vision you need. Anyway, given these constraints, Rich Yeselson argues that instead of reforming Taft-Hartley, why not just advocate for repealing the whole thing. Here’s the last few paragraphs, but this is something you should read all of.

Subsequent NLRB decisions claimed that employer’s free speech was an essential protected right. Only explicit threats—like closing the plant if the workers voted to unionize—would make a captive-audience meeting a violation of 8(c)—something that smart companies, assisted by union-busting consultants, made certain to avoid. Thus Taft-Hartley and what came after it vaporized the logic of the Clark Bros.decision, which had asserted that employers’ compelling workers to listen to their pitch against unionization, however worded, was inherently coercive.

By repealing 8(c) and inserting language making captive-audience meetings illegal, both Sanders and Warren would ban one of the most pervasive tactics employers use to intimidate and browbeat workers during an organizing campaign. The senators also wish to increase the right of nonemployee union staff to meet and talk with workers during an organizing drive. Section 8(c) says nothing about union staff’s ability to access the employer’s property during an organizing campaign, but this is labor’s obvious corresponding right to the employer’s “free speech.” Case law has consistently limited the right of unions to communicate with workers on company property. In 1956, in the Babcock & Wilcoxcase, the Court unanimously held that property rights usually supersede the right of workers to obtain information about unionization, as long as the union can contact workers in another way, for instance, at their home (and thus the importance to union organizing drives of home visits). This decision, affirmed in the name of a nominal fairness, nevertheless weighted the organizing process against unions.

In 1991, the Court took Babcock & Wilcoxa step further. In his most important opinion addressing labor law, Justice Clarence Thomas wrote for the Court that balancing the right of private property with the right to organize was unnecessary: “It is only where such access is infeasible that it becomes necessary and proper to take the accommodation inquiry to a second level, balancing the employees’ and employers’ rights …” and that only in highly unusual circumstances of complete geographical lack of access, where workers might live at their worksite, like logging and mining camps, might nonemployee union organizers have the right of access to the employer’s private property.

Short of card check union certification, eliminating employer captive-audience meetings and permitting unions to have access to workers at the worksite would constitute perhaps the most significant change in union organizing drives. It would cease the privileging of private property and the right of companies to intimidate their workers. Union access to workers at the worksite is not permitted now even during lunch and break hours, and this forces the union to knock on the doors of exhausted workers at their homes during their off-hours. As a conservative friend of mine once said, in all seriousness (although with a chuckle), after I had given him a law review article that explained the ludicrous conditions under which union organizing occurs in the United States: “I don’t understand how the union ever wins.”

Indeed. So Sanders and Warren are on the right path here. They embody, let us hope, the Democratic Party’s move back toward something like the labor liberalism of the 1940s through the 1960s.

I don’t quite understand, however, why the two presidential candidates didn’t just propose the full repeal of every clause and line of Taft-Hartley. It’s a terrible, incoherent law that represents postwar corporate rage toward labor unions, burgeoning anti-communism, and the South’s fear of an organizing alliance between the CIO and returning black soldiers. Given that the senators’ policy proposals are, surely, aspirational in many respects, why not just shoot the moon: Get rid of this awful law!

Warren is running as the candidate of “big structural change,” albeit within a neo-Progressive technocratic version of capitalism. Sanders says he’s a “democratic socialist” who advocates for a “political revolution.”

So under either candidate’s theory of expansive social change, and on behalf of the labor movement that we need to create a more vibrant and egalitarian economy, there’s no room for the Taft-Hartley Act.

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