Saturday, January 11, 2014
Much has already been written about Boeing’s successful extortion against its unionized workforce in Seattle to make them choose between losing jobs or sacrificing pensions and taking other concessions. On January 3, Boeing workers narrowly approved a set of concessions in a controversial revote ordered by the international union over the objections of the local leadership. Certainly the fact that the Boeing corporation, a highly profitable corporation extorted workers was reprehensible as many commentators have pointed out.
What I would like to discuss here is not the decision of Boeing workers to accept concessions but the system of labor laws which allowed Boeing to place unionized workers in that situation. Looking at the question this way requires digging into the underlying set of legal rules that allow employers to either blackmail unionized workers or, more commonly, simply move to avoid unionization. It involves questions including the outlawing of solidarity or ‘secondary’ tactics, union influence over decisions of capital mobility, and the degree to which we as a labor movement can work within a legal framework designed to ensure our failure.
At the end of the day, a majority of voters in the IAM voted to take steep concessions during the mid-term of their contract. The choice they faced was a difficult one. They could agree to gut key provisions of their contract or reject the concessions and run the risk of seeing the work go eventually non-union. Either way the workers were guaranteed to lose. While it was up to those workers to debate how real the threat to move work was, anyone who follows the trajectory of unionism and capital flight to non-union locations or industries cannot ignore the threat.
Which comes back to the question of how did it come to be that Boeing acquired the power to blackmail its unionized workforce? And to the related question of can we envision a workers’ movement in which such employer power is neutralized? Ultimately, with union density in the private sector hovering a little over six percent, the labor movement must start confronting difficult questions such as these. While there is an understandable tendency to instead focus on the fuzzier questions of forming alliances with other social movements, eventually we must deal with these core economic questions.
To answer these questions, like many others in labor’s decline, takes us back to the anti-union 1947 Taft Hartley Act. (And if one wants to go further to the basic structure of the National Labor Relations Act which diverts unions into dealing with individual employers rather than entire labor or product markets which was the original and more proper focus of unionism.)
When I used to think of Taft-Hartley I often would think about it in terms of restrictions on strike activity including the restrictions on solidarity strike and certain boycott activity. Certainly in terms of strike activity, Taft Hartley played a key role in silencing labor’s economic weapons. Although the Supreme Court certainly did its part by allowing workers to be permanently replaced by scabs and outlawing other effective strike tactics.
Yet an even more basic problem with Taft Hartley (aided and abetted by decisions of the liberal supreme court of the 1960s era) is that it crippled unions’ ability to deal with business change. To take one example of many, the mineworkers in the 1960s and 1970s desperately struggled to prevent the development of a non-union wing of the industry. Efforts to impose fines employers for non-union operations ran afoul of the prohibitions on secondary activity. To take another example, one can look at the rules on reserve gates in construction, which is a legal fiction allowing employers to set up a separate scab gate to prevent construction workers from shutting down an entire construction site to prevent the use of non-union or scab contractors.
It is hard to find an industry where de-unionization has not been aided and abetted by legal rules specifically tailored to favor employers. Whether it’s the use of subcontracting in building services, successorship rules in mining or hotels, the strategy of moving to Southern or non-union areas, or the development of a non-union parts industry in auto, imposed ‘legal’ rules crippled union ability to resist. For a fuller discussion please see chapter 6 of my Reviving the Strike or, even better, James Atleson’s now classic Values and Assumptions in American Labor Law.
The point of focusing on this legal history is not to simply point out how bad or unfair the Supreme Court is or how screwed up Taft Hartley was and is. Rather, this legal history directly answers the question I posed earlier as to whether we can envision forms of unionism in which such employer power is neutralized. The very fact that these rules were changed to allow employers to wield such power, points to a world where they do not have this power. The answer is yes because imperfectly and for a brief historical time such a world existed, such the rise of Teamster power in trucking through secondary strike activity in the late 1930s and beyond.
In other words, what would it look like to have a labor movement capable of stopping employers from blackmailing workers or avoiding unions by moving capital? What if unionized labor could refuse to move or handle non-union goods? What if the labor movement had the ability once again not to bargain with individual employers but to standardize wages across industries? There is a reason that the labor movement traditionally fought so vigorously against restrictions on solidarity.
There is a tendency to look at these decisions to move capital and the forces of globalization as if they were natural phenomena. Yet they are not. In Bill Fletcher and Fernando Gapasin’s book Solidarity Divided they quote former AFL-CIO President John Sweeney discussing globalization. “This global order is neither a force of nature, nor the inevitable product of technology. It has been forged by governments, envisioned by conservative ideologues, and enforced by corporate muscle.” The same and related point can be made about the rules allowing Boeing to move work and the web of rules preventing unions from successfully attacking such corporate decisions. They are neither inevitable nor the logical working of judicial decisions. The rules, and the decisions to adhere to them, are social creations.
That’s why it is disappointing that the battle of West Coast long shore workers gets so little attention even in progressive labor circles. While many are rightfully excited about efforts to organize restaurant workers and to pull new forces into the labor movement, the long shore workers struggle hits at key issues facing unionism.
Ultimately, I don’t claim to know how exactly we crack this nut. Doing so involves complicated questions of rejecting repressive labor laws, building new forms of unionism, and reviving some old tactics. (Some of these questions will be discussed in my forthcoming book Strike Back: Using the Militant Tactics of Labor's Past to Reignite Public Sector Unionism Today, which uses the occasion of the illegal public employee upsurge to tackle these questions.) But even if we don’t have all the answers, it seems to me that part of labor’s renewal must include asking the right questions.
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