Labor Law and the Heavy Hand of the State
There is one remarkable exception to the deregulatory trend in the United States. While politicians happily hack away at regulation, protective legislation, standards and governmental's ability to action on behalf of the whole community, one organization seems to be singled out for further containment - unions. There have been, of course, some attempts at workplace deregulation designed to weaken worker protection and workplace anti-discrimination legislation. But no one is talking about deregulating unions. One can only assume that the proponents of "free enterprise" are very concerned about "free labor" and are prepared to use the power of the state to prevent "free collective bargaining."
Through the courts (which have increasingly seen their role as interpreting labor legislation) and the National Labor Relations Board, the state has played a heavy handed role in undermining workers basic civil rights to form unions, to collectively bargain with employers, to extend solidarity and take concerted activity with other workers, and ultimately to go on strike and apply other economic sanctions against a recalcitrant employer.
Our labor law isn't just bad because the enforcement is weak and the penalties on employers for violating workers organizing and union rights are minuscule - though this is certainly true. Rather, US labor law is faulty because it denies a majority of workers their basic right to organize and collectively bargain. Consider for a moment, the following features of US labor law.
1) The first and most basic assumption of US labor law is not neutrality - but the assumption of the law is that the "natural" state of the workplace is union free. What a strange assumption for a democracy. Shouldn't the default be that the natural state of the workplace is organized, with workers having collective voice - and the responsibility, fundamental to a democracy, to participate in decisions that affect them. They should be able to relinquish that responsibility, but the default should be organized, not unorganized.
2) Most of labor law consists of barriers over which workers must climb in order to organize - that is, gain the right to be "certified" by the NLRB as a union and the "sole bargaining agent" for a group of employees. And with each year, with endless decisions by the NLRB and the courts these barriers are getting higher and higher. First, in order to be certified, the union must prove that a majority of employees in the designated bargaining unit have voted union. (In the past, other methods of proof of majority support were permitted including petitions signed by the majority of employees, or a "card check" where the union demonstrates that a majority of the employees have signed union cards.) Through a series of decisions the courts have determined that the employer has the right to exclude union organizers from company property, including the parking lot, and lunch rooms. The courts have also permitted the employer to have a say in the workers decisions about whether or not to form a union - even permitting management organized captive audience meetings of employees where workers are harangued about the evils of unionization. Finally, while workers are suppose to be protected by the NLRB from being fired or discriminated against for attempting to organize - there is an illegal firing in one out of four organizing drive. And the worst penalty an employer will face for such illegal behavior is to be forced to reinstate the fired employee (often many months after the organizing drive has been defeated).
3) Workers are guaranteed the right to strike - but this right is severely limited. Both in labor law and by a court decision the right to strike is greatly constrained. For example, because of the Supreme Court "MacKay Radio" decision, employers are permitted to "permanently replaced" striking private sector workers, effectively denying them the right to strike.
4) The state through the NLRB determines "appropriate bargaining unit." Workers are severely limited in their ability to exercise their freedom of association - the human right that underlies the right to organize. You can organize, but the state will tell you with whom. Unions are about constructing a community of interest among workers, but the state through the NLRB has tended to assure the weakest and least solidaristic community possible, by separating white collar from blue collar, front office from back office, full-time from part-time and skilled from unskilled.
5) There is a ban on "solidarity strikes" and "secondary picketing." Freedom of association means that you should be able to call on your co-workers in another plant to extend solidarity and engage in a solidarity strike or other solidarity economic action. Labor law seeks to contain economic action to the immediate (primary) employer and strictly forbids
6) Labor law only applies to "employees" as defined by the National Labor Relations Act - and it's definition excludes lots and lots of workers. All sorts of people are not considered "employees" under the act - including most public sector workers, private sector university professors (Yeshiva decision), and almost anyone who supervises anything.
Few people today remember that when the National Labor Relations Act, the cornerstone of US labor law, was adopted by Congress in 1935, its purpose was not simply to provide a procedural mechanism to end industrial strife in the workplace. Rather, this monumental piece of New Deal legislation had a far more ambitious mission: to promote industrial democracy. To achieve this extension of democracy into the workplace, the NLRA instituted "free collective bargaining" between workers and employers. Unions were to be encouraged, not simply tolerated, as it was understood that workers could not engage in meaningful collective bargaining without collective representation.
Needless to say, it has been a long time since we've heard any President or Administration, much less Congress, talk about promoting industrial democracy. In fact, the very term "industrial democracy" seems like a contradiction in terms. While the battle to restore "fairness" in labor law is important, even a victory in this campaign would simply bring us back to 1935. We need instead to question the basic assumption of US labor law that the natural state of the workplace is union-free with workers having few rights.