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Beyond the Labor Board | The Nation

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Beyond the Labor Board

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This past September, the National Labor Relations Board issued a startling sixty-one decisions in a legal blitzkrieg on working Americans. The NLRB has been led by a pro-business majority of Bush appointees since 2002. Its bias was never more apparent than during this latest round of decisions, labeled a "September massacre" by the AFL-CIO. One ruling makes it harder to join a union through majority sign-up procedures--the preferred organizing method for many unions that hold out little hope for fair and timely NLRB elections--while another allows employers to decertify existing unions using the very same forms of majority recognition now denied to union organizers. Other rulings facilitate employer discrimination against union supporters and limit remedies available to workers illegally fired for engaging in union activity. Canned for demanding a voice at the workplace? No back pay if you choose to walk a picket line instead of looking for a new job!

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Max Fraser
Max Fraser lives in New Haven, Connecticut.

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Civil disobedience says, in effect, that the law is not sacred when a better world is at stake.

According to Jon Hiatt, general counsel for the AFL-CIO, "The Bush board has so changed the law, in terms of established precedent, that it's now virtually impossible for workers to get a fair shake, either in the unfair labor practices arena or the elections arena." Instead, the AFL-CIO is demanding the board be "shut down" until less partisan appointments are made to three recently vacated posts on the five-member board.

Bush's labor board may indeed be the worst in history, and a temporary shutdown couldn't be a bad thing. But it wouldn't address the deeper problems plaguing the labor movement, which date back at least to 1947, when the Taft-Hartley Act greatly curtailed workers' ability to strike and otherwise pressure employers to recognize unions. Since then, Democratic labor board majorities have had little positive effect on organizing. Private-sector union membership dropped steadily and by more than half between 1977 and 2000, while the two parties spent equal time in the White House. The Reagan years were particularly dismal, but labor didn't exactly thrive under the Carter and Clinton boards. Today less than 8 percent of private-sector workers belong to a union.

The Employee Free Choice Act--the majority card-check bill currently stalled by a Republican filibuster in the Senate and an assured presidential veto--is hailed by organized labor as one way out of this mess, but it's at best a partial solution. The legislation's actual effect on new organizing is uncertain, as it won't by itself change the broader antilabor climate that causes many campaigns to fail. It would leave intact many key Taft-Hartley restrictions, including a provision that allows individual states to pass the "right to work" laws that account for the virtual nonexistence of a Southern union movement.

An assortment of legal scholars, labor historians and trade unionists have called for a more far-reaching shift away from the labor board framework. Until the middle of the last century, workers regularly turned to an expansive interpretation of the Thirteenth Amendment banning "slavery and involuntary servitude" to legitimate their rights to organize and strike. Without the ability to form unions and threaten employers with collective action, they claimed, wage workers were powerless to improve working conditions and in effect bound to a contractual servitude. The amendment obliged the government to eliminate any such system. So these labor observers argue that the amendment could once again be a valuable organizing tool. When companies like meatpacking giant Smithfield engage in egregious unionbusting campaigns--or when regressive state legislation like New York's Taylor Law is used to criminalize striking mass-transit employees--workers would take their battles to the courts, demanding their rights to organize and strike under the Thirteenth Amendment.

"The Smithfield case is very much the kind of situation the amendment was created to redress," says Rutgers law professor James Pope. "Overall, the Thirteenth Amendment approach hinges on the idea that the labor movement ought to act as a real rights movement. A real rights movement conducts the struggle over a long-term time frame, and it fights over issues of basic principle." That basic principle applies equally to all workers--including those afforded little or no protection by the NLRB. Immigrant workers are arguably the greatest organizing priority for labor today, but their often irregular status makes them ill suited for board-certified organizing methods and vulnerable to abusive employers. "If you look back, slavery created a caste of workers of color who were denied citizenship rights, whose human rights were abused and whose work put them beneath the floor established for free labor," argues Maria Ontiveros, professor of law at the University of San Francisco. "To a great extent, that's where the undocumented population is today." The Thirteenth Amendment would provide a compelling moral and legal rationale for extending those workers full labor rights, which in turn would improve conditions for American workers at the bottom of the labor market.

Implementing the Thirteenth Amendment strategy will require some legal and tactical ingenuity. It has the potential, however, not only to protect a worker's right to organize from the vagaries of partisan politics but to galvanize a movement aimed at making labor rights an essential and unassailable feature of American democracy.

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