Jobs And Freedom: Why Labor Organizing Should Be A Civil Right
Our guest authors today are Norman Hill and Velma Murphy Hill. Norman Hill, staff coordinator of the historic 1963 March on Washington for Jobs and Freedom, is president emeritus of the A. Philip Randolph Institute. Velma Hill, a former vice president of the American Federation of Teachers (AFT), is also the former civil and human rights director for the Service Employees International Union (SEIU). They are currently working on a memoir, entitled Climbing Up the Rough Side of the Mountain.
Richard D. Kahlenberg and Moshe Z. Marvit have done a great service by writing Why Labor Organizing Should Be a Civil Right: Rebuilding a Middle-Class Democracy by Enhancing Worker Voice, an important work with the potential to become the basis for a strong coalition on behalf of civil rights, racial equality and economic justice.
In the United States, worker rights and civil rights have a deep and historic connection. What is slavery, after all, if not the abuse of worker rights taken to its ultimate extreme? A. Philip Randolph, the founder and president of the Brotherhood of Sleeping Car Porters, recognized this link and, as far back as the 1920s, spoke passionately about the need for a black-labor alliance. Civil rights activist Bayard Rustin, Randolph’s protégé and an adviser to Martin Luther King, Jr., joined his mentor as a forceful, early advocate for a black-labor coalition.
Back in 1950, Randolph co-founded the Leadership Conference on Civil and Human Rights to lobby on behalf of both racial equality and economic justice. The very title of the famous 1963 protest march, "The March on Washington for Jobs and Freedom," conceived of by Randolph and organized by Rustin, reflected their black-labor perspective. To them, the struggle for political freedom and the struggle for labor rights were two sides of the same coin. Thus, two years later, they founded the A. Philip Randolph Institute, an organization of black trade unionists, to be a living bridge between organized labor and the black community.
With a lot of prodding from Randolph, the AFL-CIO also came to recognize the deep connection between labor rights and civil rights. The civil rights movement has moved the same way, acknowledging organized labor as by far its strongest ally. In a 1961 speech, Dr. King spoke to this, declaring that “Negroes are almost entirely a working people. Our needs are identical with labor’s needs: decent wages, fair working conditions, livable housing, old age security, health and welfare measures, conditions in which families can grow, have education and respect in their community. That is why blacks support labor’s demands and fight laws that curb labor."
That is why the labor hater and the race baiter is virtually always a twin-headed creature, spewing anti-black epithets from one mouth and anti-labor propaganda from the other. That is why, at the time of King’s assassination in 1968, he was preparing to lead a march in Memphis, Tennessee, in support of black sanitation workers who were striking for union recognition. And that is why, for generations of black Americans and other minorities, a “good” union job was understood to be a path to the middle-class.
Still today, the benefits of trade union membership for African Americans, women, and other minorities are clear. According to one recent estimate, the wages of black union members are 31 percent higher than the wages of African Americans who are not union members. The union wage advantage for women workers is 34 percent; for Latino workers, it’s a whopping 51 percent. That being true, the decline of the union movement should be of special concern. In the mid-1950s, about one-third of the workforce belonged to unions. Today the proportion is down to not much more than 10 percent.
So what can be done to reverse this decline? In Why Labor Organizing Should Be a Civil Right, Richard Kahlenberg, a Century Foundation senior fellow, and Moshe Marvit, a labor and employment discrimination law attorney, offer a carefully reasoned and well-documented explanation of falling union membership, proposing a convincing idea for reversing it.
By ascribing de-unionization to globalization and the offshoring of jobs to poor, low-wage countries, some conclude that labor’s decline is irreversible. But, examining statistics from 2007, Kahlenberg and Marvit find that, although all the world’s advanced economies were affected by globalization, they experienced union decline in highly varying degrees. Not surprisingly, they also find that union coverage (the proportion of workers covered by collective bargaining agreements) and union membership in the United States is lower than in all other advanced countries. (In addition, they show that low union coverage correlates with great economic inequality, so that the U.S. has the most unequal distribution of both income and wealth.)
Why is the labor movement relatively weak in the United States? Not because workers don’t want unions; the percentage of nonunion workers who would like to join unions is rising, not declining. (In 2002, it rose above 50 percent and has remained there since.) So Kahlenberg and Marvit look elsewhere for the answer. They locate it in the National Labor Relations Board (NLRB).
In recent decades, the authors show, employers have increasingly fought union organizing campaigns by harassing and firing pro-union workers—from 1999 to 2003, employers illegally fired workers in over one-third of all unionization campaigns. These actions, especially firings, often stop organizing efforts cold by frightening workers. The NLRB, operating under the 1935 National Labor Relations Act (NLRA), does little to mitigate this fear—less than the labor regimes in other advanced countries.
For example, in 2009, it took a median of 963 days for the NLRB to decide an Unfair Labor Practice (ULP) complaint—the better part of three years. Without prompt resolution of ULPs, employers can destroy organizing campaigns long before the NLRB rules against them.
Furthermore, the financial penalties for worker rights abuses are so trivial that it’s economically rational for employers to continue to violate the NLRA. Crucially, the authors show that American workers who are covered by more protective regulations than allowed for under the NLRA—for example, railroad and airline workers are covered under the Railway Labor Act, which has more severe penalties for employers—have much higher unionization rates.
What, then, can be done? Kahlenberg and Marvit have a creative answer: place the right to organize in Title VII of the Civil Rights Act of 1964 (as amended in 1991), which banned discrimination against individuals based on race, gender, religion, and other categories. The Kahlenberg-Marvit proposal would add workers seeking to organize a union as a new protected category.
The NLRB would still hear these workers’ complaints, but the procedures for processing them would be those used by the Equal Opportunity Employment Commission (EEOC) in dealing with grievances under Title VII. Those procedures would enable the worker to hire a lawyer on a contingency fee basis and file for a preliminary injunction in a federal court. If it is granted, a fired worker could be back on the job within days, taking the weapon of fear away from the employer. Furthermore, the employee would then have the right of discovery, that is, the pre-trial right to subpoena both individual managers and owners along with company documents—something companies dread. Finally, if the worker wins the trial, the employer would no longer get a free ride: penalties for violating the worker’s right to organize could include, the authors say, “back pay (with interest), reinstatement or front pay, equitable relief, compensatory damages, and punitive damages” (pp. 65-66). Also, if a worker wins his or her case, the employer would pay attorney’s fees and costs. This combination of provisions has worked for those currently protected under Title VII, providing a strong enough deterrent to greatly reduce illegal acts of workplace discrimination and intimidation.
Kahlenberg and Marvit realistically acknowledge that their proposed amendment to the Civil Rights Act could not pass the current Congress. But discussion around the proposal can begin now. And the labor and civil rights movements, in their traditional black-labor-minority coalition, can begin acting now. African Americans, Latinos, and other minorities have historically been the most exploited segments of the workforce, and a coalition with the civil rights and labor movements at its matrix—in alliance with other minority, religious and women’s groups, as well as gay and lesbian and liberal organizations—could begin to build a majoritarian democratic movement to create real social and economic change.
AFL-CIO president Richard Trumka and NAACP president Benjamin Todd Jealous are among those who have already endorsed the idea of treating the right to organize as a civil right. More leaders of the liberal-labor alliance should begin to advance this concept, while also working to elect Congressional representatives, senators, and a president who can translate it into law.
- Norman Hill and Velma Murphy Hill
Reviewed: Why Labor Organizing Should Be a Civil Right: Rebuilding a Middle-Class Democracy by Enhancing Worker Voice. By Richard D. Kahlenberg and Moshe Z. Marvit; preface by Thomas Geoghegan. New York: The Century Foundation Press, 2011. xv + 150 pp. Figures, notes, index. $19.95 (paperback).
The authors should be commended for discussing the importance of the connection between the labor movement and the civil rights movement. It is certainly true that the struggle for workers rights is and ought to be deeply and intimately connected to the struggle for the civil and human rights that Title VII was written to protect. In keeping with MLK’s famous maxim, “Injustice anywhere is a threat to justice everywhere” we would do well to remember that the struggle for justice is broader than any one groups’ movement.
Having said the above, the idea of adding labor rights to Title VII presents significant legal problems for workers and could be potentially fatal to any serious effort to enact true, meaningful labor law reform in this country. I will touch on several of the reasons why it is important that we do not try to conflate the individual rights protected by Title VII with the collective rights protected by the NLRA.
First, and most importantly, Section 7 of the NLRA is a unique piece of statutory language within the canon of American law. It is the only law I know of that is fundamentally designed to protect the rights of a group of people engaging in activity together. Of course, it does protect the right of the individual worker to engage in union activity. But, the activity that it was written for is “protected concerted activity.” Title VII, on the other hand, was written to deal with the individual’s right to be free from discrimination, in employment, accommodations, etc. The labor movement is built upon the principle of solidarity and the Wagner Act literally codified legal protection for solidarity. If every individual who feels their labor rights have been violated is forced to address the violation individually through their own private action, the union movement’s fundamental strategy of creating collective solutions to workplace issues will not be possible anymore under our legal system. The original Wagner Act created a level playing field where workers and bosses could resort to “economic weapons” to achieve their goals and the NLRB could step in to facilitate solutions and create “industrial peace through law.” For the sake of workers and our economy, that is the model to which we should endeavor to return.
Second, there are a whole host of practical problems inherent in placing labor rights under the auspices of Title VII. It is easy to understand how a worker who has been fired during an organizing campaign can go to court to get their job back. It is harder to see how workers and their unions could use the court system to address violations of the NLRA during bargaining or after a contract has been signed. For example, are we really supposed to go to federal district court every time an (a)(5) charge is filed for failure to provide information during negotiations? Court litigation is lengthy, costly, and complicated. It involves lawyers, civil procedure, and rules of evidence. It is hardly worker friendly. It is simply not a practical solution to the majority of problems that arise in the workplace.
Third, as the authors correctly point out, Title VII allows individuals to go to court to address violations of their civil rights. Anyone with even minimal knowledge of American labor history knows that judges have been almost universally opposed to union activity when it has come before them. The American legal system is one that fundamentally privileges property rights over most other rights. Unions do a variety of things, but at their core unions are about leveling the economic playing field and allowing workers a share of their boss’ gains. History teaches that judges protect bosses. That is why, in his wisdom, Senator Wagner created a statute that allows labor rights, through the use of the agency model, to be protected by federal employees who are labor law experts. The political appointees that are involved tend to come from the labor and management bars and are, therefore, equipped to understand (at least theoretically) the need to apply the statute fairly. Congress’ task now should be to give that agency some teeth, not to use Title VII to place labor rights in the hands of judges who may not be familiar with labor law and who will not be sympathetic to the struggle for collective rights.
Labor law reform will be hard won when it finally happens. We cannot waste another opportunity for reform by pushing legislation that, once again, addresses the wrong problems with the wrong solutions. True and meaningful labor law reform cannot and must not be focused on eviscerating the essence of the Wagner Act by making labor rights individual rights. A threefold approach to reform is necessary: beefing up the penalties available to the NLRB and enhancing its powers of enforcement; mandating first contract arbitration; and, most importantly, returning economic weapons to the hands of workers by eliminating permanent striker replacement.
Individualism is the problem, not the solution. To truly realize the dreams of our labor, civil, and human rights heroes it is essential that we place power in the hands of people who need it. No matter the struggle, the solution will be arrived at collectively and the law must protect our collective power.
Sam Lieberman, a nationally known labor attorney, nails this one. We need serious reform of the NLRA including quicker representational process, larger penalties for violation of the law and vastly speedier enforcement mechanisms, especially in cases of illegal discharge. A law that exist to encourage and protect concerted activity is fundementally different from anti-descrimination laws that can (not always of course) focus on individual discrimination
Regarding Mr. Lieberman's comments, a few quick responses:
1. In our book, Why Labor Organizing Should Be a Civil Right, Moshe Marvit and I propose amending the Civil Rights Act to provide an additional avenue of relief for workers who are discriminated against for labor organizing. We do not advocate repealing the National Labor Relations Act. Accordingly, "individuals who feel their labor rights have been violated" would not be "forced to address the violation individually" as Mr. Lieberman suggests; NLRA remedies would still be available.
2. We also believe in collective action and worker solidarity but we recognize that Americans deeply value individualism, which is why we propose the Civil Rights approach as a more politically realistic way of strengthening organized labor than traditional strategies.
3. We agree with Mr. Lieberman that broader labor law reform is necessary, but we think it is more likely to be passed if we can first enact legislation to deal with the ability of employers to discriminate against workers for union organizing.
We have agreed to accept the Shanker Institute's kind invitation to write a piece for the Shanker blog on labor organizing as a civil right and plan to elaborate on these issues in the near future.
Adding labor rights to Title VII there are a whole host of practical problems inherent in placing labor rights under the auspices of Title VII. It is easy to understand how a worker who has been fired during an organizing campaign can go to court to get their job back. It is harder to see how workers and their unions could use the court system to address violations of the NLRA during bargaining or after a contract has been signed.