Saturday, September 7, 2013
The disputes that led to one of the nation’s most militant and progressive unions, the International Longshore and Warehouse Union (ILWU) abandoning the AFL-CIO are not, as some may argue mere jurisdictional squabbles, but rather touche on central issues facing trade unionism today. The question at stake is whether one of labor’s most militant and effective unions will be able to defend its traditional jurisdiction and in doing so maintain strong working standards for tens of thousands of long shore workers.
On August 29, ILWU President Robert McEllrath sent a letter to AFL-CIO President Richard Trumka notifying him of the ILWU decision to disaffiliate from the AFL-CIO. The letter zeroed in on the failure of the national AFL-CIO to offer support to the ILWU in fending off multiple raids on long shore work. Since the letter lays out the multiple challenges faced by the ILWU, it will be quoted at length.
“..we have seen a growing surge of attacks from various affiliates. A particularly outrageous raid occurred in 2011, when one affiliate slipped in to longshore jobs at the new EGT grain facility in the Port of Longview, Washington, and then walked through ILWU picket lines for six months until we were able to secure this critical longshore jurisdiction. Your office added insult to injury by issuing a directive to the Oregon State Federation to rescind its support of the ILWU fight at EGT, which threatened to be the first marine terminal on the West Coast to go non-ILWU.
The attacks by affiliates against the ILWU have only increased. One affiliate has filed a string of ULP charges as well as an Article XX charge that not only interfere with ILWU contractual rights at specific ports; the ULP charges also are attempting to dismantle core jurisdictional provisions in our Longshore Contract for the entire West Coast. In Los Angeles and Oakland, another affiliate is imposing internal union fines against dual union members for the “crime” of taking a job as a longshoreman — the stated purpose of the fines being to prevent the ILWU from filling new waterfront jobs that replace traditional longshore work due to new technologies. In Oakland and Tacoma, another affiliate is trying to use a recent NLRB ruling against one of our employers to take over ILWU jobs with some of our other employers. Throughout the Pacific Northwest, we are daily seeing still other affiliates blatantly cross the picket lines of ILWU members who have been locked out for months by the regional grain industry. And just this week, some of the Building Trades affiliates have displaced ILWU workers in the loading of barges at Terminal 46 in Seattle where longshoremen have done this work for generations. They also had the gall to file several ULP charges against us for picketing at our own marine terminal. These multi-state attacks against the ILWU are being coordinated in large part by a law firm with close ties to the Federation.”
Not only has the national AFL-CIO done nothing to stop these attacks, they prevented state labor councils from supporting the ILWU and as Labor Notes reports, national AFL-CIO officials responded to the ILWU’s pullout by forbidding local affiliates from issuing solidarity charters to the ILWU, which would allow for continued affiliation at the local level.
It would be a mistake to reduce these disputes to fights over particular jobs. At stake is something far greater—the future of unionism in one of the strategic sectors of the economy. Some employers, with the support of the National Labor Relations Board and the collaboration of certain unions, are attempting to use labor laws to strip the ILWU of coast wide control of long shore work which is essential to retaining unionism in this sector. As will be discussed below, in that regard they are attempting to use the same tools of de-unionization used in most other sectors of the economy.
An August 28 decision by a National Labor Relations Board administrative law judge (ALJ) illustrates the tremendous challenges the ILWU faces. In a truly horrible decision in which the ALJ barely contained his contempt to the ILWU’s brand of unionism, the ALJ ordered the ILWU to quit taking actions (both on the job slowdowns and arbitration/court procedures) to pressure their own employer to honor the ILWU coast-wide collective bargaining agreement and fill positions monitoring refridgerized containers with members of the Longshore Union. Without going into the legal complexities here, the decision basically attempts to prevent the ILWU from enforcing its’ own coast-wide agreement.
This really hits at the crux of the matter in this dispute and why it is so important for organized labor. This is not an isolated jurisdictional dispute over a handful of jobs. The ILWU was organized during the 1930s on a very traditional union principle—to maintain wages on the ports, the union needs to organize and maintain contract standards coast-wide. Individual employers and ports could not be allowed to undercut standards because that would threaten the very survival of the union. Maintaining jurisdiction is not just about maintaining the jobs but the very vehicle necessary for maintaining hard-won union standards in the industry.
Indeed, this used to be one of the key tenants of unionism—maintaining standards across industries. It’s how unions raised wages from the 1930s through the 1970s in industries such as trucking, steal, construction and mining. In all of those industries union standards were allowed to erode and unionism declined. Now the ILWU is fighting the same battle. (And indeed, East Coast International Longshoremen’s Association members in the Philadelphia ports faced similar challenges in 2010 from a sweatheart union contract at Del Monte.)
In industry after industry, effective unionism has been destroyed, in large part, because employers were allowed to use corporate fictions to defeat unionism. Tactics like subcontracting, runaway shops, closing down and re-opening non-union, opening non-union subsidiaries (double breasting), privatization in the public sector, classifying work as independent contractors, etc were critical tools in busting unionism. These are not apolitical legal decisions but rather central parts of what I call the” system of labor control” in this country. Only where unions ignore these corporate fictions such as SEIU’s Justice for Janitors campaigns or in reality the city-wide restaurant strikes can we truly make headway in confronting corporate power.
Here is a chance for the AFL-CIO to get behind a militant union in its efforts to defend effective, traditional trade unionism. Yet, sadly that is not going to happen which probably says more about union decline than any pronouncements coming out of Los Angeles in the next week. One thing we can be sure, when the labor movement does revive it will likely look a lot more like the struggle being waged on the docks of the West Coast.
Sunday, June 30, 2013
In the last week, a flurry of decisions has thrust the Supreme Court on center stage of the nation’s political agenda. Interspersed with truly horrible decisions on voting rights and anti-discrimination law was a victory on the issue of gay marriage. While others have analyzed those decisions in more detail, here the focus is on the role of the Supreme Court in setting labor policy.
What these decisions collectively show is that the Supreme Court, at the end of the day, makes political decisions. By this is meant not merely that these decisions are somehow tainted by politics depending on your perspective, but that the essence of what the Supreme Court does is making political decisions. For a labor movement largely crippled by decades of unfavorable Supreme Court decisions, this understanding is crucial to labor’s revival.
In the last week, the Supreme Court has dominated the news with a series of decisions covering important topics ranging from gay marriage to civil rights statutes to anti-discrimination law. The negative decisions are easiest to see for what they are—blatantly political decisions reflecting a pro-business, right wing, racist agenda. In a decision making it harder for plaintiffs to sue corporations for civil rights violations, the Supreme Court adopted a restrictive view of who constitutes a supervisor, shielding employers from liability from those who exercise power on their behalf. In Shelby County v. Holder, the Supreme Court gutted a key component of the Voting Rights Act of 1965.
But even in two cases related to gay marriage, we need to be clear of the political nature of the Supreme Court decision-making. In
Windsor v. United States,
the Court ruled that the Defense of Marriage Act was unconstitutional. In another
decision, Hollingsworth v. Perry, the Court conveniently ducked the issue of
the constitutionality of California’s
Proposition 8 banning opposite sex marriages on procedural grounds. To be clear, these are victories but
victories based on years of activism by the LGBT movement, not gifts handed
down by the Supreme Court.
The political nature of Supreme Court decision-making in this area should be readily apparent. For one, it is simply not conceivable that the Court would have made the same decision if presented the opportunity twenty, ten, five or even two years ago. The Constitution has not changed during this period—the words on paper are the same. If the Court was merely interpreting the Constitution or applying legal theories, when the case was decided would not matter. But, here timing is everything. For the Court was merely following shifting political winds rather than breaking new ground in the area of gay marriage.
One can further see that by the way the Court issued these decisions, ducking on the question of whether a California ban on gay marriage was unconstitutional and in the DOMA case not following the logic of their decision and requiring a non-discriminatory standard by applied across the board, an inconsistency pointed out by Scalia in his dissent.
A century ago the labor movement had a crystal clear understanding of the role of the United States Supreme Court. From the early 1900s into the 1930s, labor activists railed against not just unfavorable labor law decisions but against the very idea that judges should be allowed to intervene in labor matters. From conservative AFL officials or radical unionists, labor activists understood that courts were engaged creating in judge-made labor law. This activism finally resulted in the passage of the Norris LaGuardia Act of 1932, which stripped Federal judges of jurisdiction to issue labor injunctions save in very limited circumstances. This legislation was based on the idea that elite judges could not be trusted to set policy regarding labor issues.
Labor’s understandings during this period were paralleled by a school of thought penetrating elite legal circles in the first several decades of the 1900s. Embracing a set of ideas known as Legal Realism, these legal theorists rejected the idea that judges merely interpreted the law by correctly applying abstract legal decisions. Rather, Legal Realists, led by their chief leader, Oliver Wendell Holmes, charged that judges in reality made political decisions.
More important, this skeptical view of judicial lawmaking led to a strong sense of the illegitimacy of anti-labor judicial decisions. This understanding would prove crucial during both major periods of union upsurge—the 1930s for private workers and the public employee rebellion of the 1960s—when winning unionization of necessity meant defying court orders.
For today’s labor movement, having a clear understanding of the Supreme Court’s role in labor’s current crisis is crucial our revival. For as law professors Ellen Dannin and Ann C Hodges have explained in an excellent ongoing series in Truthout that all labor activists should read, the Supreme Court has judicially amended the NLRA over the last 80 years. We cannot understand or overcome the weakness of the modern labor movement with addressing the role of the judiciary in suppressing labor rights.
And more right wing judicial activism is likely coming with the Supreme Court agreeing to hear two important labor cases in the next year, on the Noel Canning case regarding recess appointments to the NLRB and the other an attack on employer neutrality agreements used as an alternative to the rigged NLRB process.
With the labor movement on the road to extinction, we need to once again ask ourselves how long we can allow unelected judges to set labor policy in the