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In the end, Linda Chavez undid her own nomination through her disingenuousness. Bush's first nominee as Labor Secretary withdrew after a storm of publicity about her relationship with a Guatemalan woman who was illegally in the United States and doing chores at Chavez's home while living with Chavez and being given money by her.
Chavez apparently broke federal laws in her actions, but if providing a room and money to Marta Mercado had really been a humanitarian act and not a way of getting housework done on the cheap, Chavez might have survived a tough fight. But she was not upfront about her past with members of the Bush transition team, and they essentially abandoned her.
Chavez was right to decry the "politics of personal destruction," which focuses on finding personal shortcomings and minor legal violations to undermine political figures, but she was a hypocrite in the extreme in her invocation of that charge. Few people have engaged in such political blood sport with as much energy as Chavez, who blasted Clinton's 1993 nominee Zoë Baird for having employed an immigrant; who engaged in barely concealed race-baiting and gay-baiting against her 1986 Maryland Senate race opponent, Barbara Mikulski; and who regularly attacked even the most modest and established regulations of the economy, like the minimum wage, as "Marxist."
The real reason that Linda Chavez should have been defeated--or withdrawn, or never nominated--is that she was unfit for the job by virtue of her steadfast and ardent opposition to the laws that she would have been charged with enforcing.
She held various Democratic policy jobs in the early 1970s before taking a job as an assistant to American Federation of Teachers president Albert Shanker in 1977. As part of a small but influential labor network of hawkish Social Democrats, she shared Shanker's opposition to most affirmative action, and she recruited conservatives such as William Bennett, Jeane Kirkpatrick and Robert Bork to write for the teachers' magazine. In the years since, she has continued to fight against affirmative action. But the Labor Secretary is responsible for monitoring affirmative action compliance by federal contractors, who employ about 22 percent of the civilian labor force.
Chavez opposed increasing the minimum wage even when it was at a postwar record low, opposed family and medical leave, derided the issue of sexual harassment in the workplace, opposed measures to eliminate inequitable pay distinctions and endorsed employer discrimination against workers who refuse overtime. And she has attacked efforts of workers, such as doctors, to organize unions.
Chavez tried to cloak herself in humanitarian robes as she withdrew, pulling together personal testimonials of individuals, especially poor immigrants, whom she had helped, but as Labor Secretary, with the policies she advocated, she would have done immense damage to millions of workers, especially poor immigrants, minorities and women. This appears to be the essence of "compassionate conservatism"--handouts for a few individuals, the boot for the vast majority.
Unfortunately, Chavez's departure, however welcome, is only a minor victory. By appointing her, Bush made it clear that his administration will be vigorously antilabor. As unions have strengthened their political operations in the past three election cycles, Republican and conservative efforts to undermine unions have escalated.
Despite the dramatic 1998 failure in California of the "paycheck protection" initiative, which would have required prior written approval of union political expenditures by each member, Vice President-elect Dick Cheney has already signaled that the Bush administration will push for similar federal legislation. There are fears that Bush may either temporarily suspend or even try to overturn new ergonomics regulations for better-designed workplaces, just implemented after a ten-year battle, and that his administration may try to revive the 1996 political fundraising scandal involving former Teamsters leaders as a tool to attack the Democrats and the AFL-CIO, especially secretary-treasurer Richard Trumka. (The presence of two current Teamsters officials on the Bush labor transition team--the only unionists on a list of corporations, trade groups and antilabor law firms--gives weight to these worries.)
Republicans in Congress have also made it clear that they want to overturn current federal regulations requiring overtime pay for more than forty hours of work in a week, to open the door to now-outlawed company-controlled "unions" (through the TEAM Act), to weaken enforcement of workplace health and safety regulations, and to give employers greater latitude in classifying workers as independent contractors, making it easier for employers to abuse and underpay workers, who are in turn denied the right to organize. The latter two initiatives were pet projects of former Missouri Representative James Talent, who was widely mentioned as a possible replacement for Chavez.
It seems, from the names mentioned, that the next Bush choice as Labor Secretary might be easier to get approved by the Senate but will be no more sympathetic to the needs of workers or the legitimate role of unions in American society. The fight over Chavez, which the AFL-CIO was preparing to launch just as she pulled out, is only the beginning of what promises to be intense combat in the years to come.
In their campaigns for the White House, the major-party candidates--even the one backed by labor--spent little time debating labor-law reform.
Nevertheless, the AFL-CIO had hoped that a Gore victory and Democratic gains in Congress would lead to strengthening of the National Labor Relations Act (NLRA) or, at least, union-friendly appointments to the National Labor Relations Board (NLRB). Continued Republican control of Congress now eliminates the possibility of the former, while Bush's court-won victory makes the latter highly unlikely. In fact, when our new President gets through filling three vacancies on the NLRB early this year, his appointees will insure that the failure of labor law--a scandal exposed in different ways by former NLRB chairman William Gould in Labored Relations and by lawyer Lance Compa in the recent Human Rights Watch report Unfair Advantage--continues to thwart union organizing for the next four years.
Since the AFL-CIO began putting greater emphasis on membership recruitment in 1995, there have, of course, been important new gains. But some of the most significant victories involved organizing campaigns in which unions used their bargaining or political clout--where they still have it--to secure recognition in new units without using Labor Board certification procedures. For tens of millions of workers in the private sector, bypassing the law is not an option--and, for better or worse, the sixty-five-year-old NLRA continues to shape organizing strategies in many key industries.
Long hailed as the "Magna Carta of American labor," the NLRA (or Wagner Act) is definitely showing signs of age. The act was designed in 1935 to promote collective bargaining as a peaceful alternative to the many violent, Depression-era battles over union recognition. Its New Deal sponsors viewed unionization as a necessary corrective to the "inequality of bargaining power" between individual workers and management. To referee workplace disputes, Congress created the NLRB, which conducts representation elections, awards bargaining rights based on them and investigates "unfair labor practices" by employers that might discourage organizing or prevent workers from negotiating a union contract.
But the limited remedies, light penalties and secret-ballot elections available under the NLRA are meaningful only if its administration is swift and efficient. In few other areas of the law is there greater truth to the axiom that "justice delayed is justice denied." When union votes are stalled for months, union victories tied up in litigation for years, bad-faith bargaining goes unpunished and fired union supporters get reinstated (if at all) long after an organizing campaign has ended, management wins--even if the board ultimately rules otherwise.
The selection of NLRB members--and the agency's influential general counsel--is determined by who controls the White House and what kind of nomination deals are brokered with the Senate. (Functioning at full strength, the board consists of three appointees, including the chairman, from the President's own party and two from the opposition party.) However, as the AFL-CIO argued in its last major campaign for labor-law reform in the late 1970s, unfair-labor-practice victims need more than a sympathetic NLRB majority or efficient functioning by the agency's 2,000 career employees around the country. The law itself must be repaired.
The enormous gap between workers' legal rights on paper and the reality of NLRA enforcement under Democrats and Republicans alike is most effectively documented in Unfair Advantage. Labored Relations also describes how bad substantive decisions, "the creakiness of the NLRA's administrative procedures" and its "lack of effective remedies" have undermined worker organizing and strike activity in recent decades. But the bulk of Gould's memoir is devoted to refighting the personal political battles that occupied him during his four and a half years as a Clinton appointee on the NLRB. Gould's book thus invites comparison with Locked in the Cabinet, Robert Reich's glibly amusing account of his stint as Clinton's Secretary of Labor. Both men assumed their Washington posts--Reich at the Labor Department and Gould at the board--after a career in academia. Even before Clinton nominated Gould in 1993, Reich had tapped him (based on his work as a Stanford University law professor and respected arbitrator) to serve on the Dunlop Commission, a panel of experts convened to recommend labor-law changes.
At the time, Gould had just offered his own ideas on this subject in a book titled Agenda for Reform. In it he called for many of the same corrective measures now advocated by Human Rights Watch: employer recognition of unions based on signed authorization cards rather than contested elections; imposition of first-contract terms by an arbitrator when the parties can't reach agreement by themselves; greater use of injunctive relief to secure quicker reinstatement of workers fired for union activity; a ban on permanent replacement of economic strikers; and heavier financial penalties for labor-law violators.
Needless to say, Senate Republicans weren't too keen on Gould's proposals and kept his nomination to the NLRB dangling for almost a year. In fact, even Reich's labor-law-reform panel--which Gould left prior to being confirmed as NLRB chairman--failed to promote these much-needed changes. Instead, the Dunlop Commission stressed the importance of amending the NLRA so management-dominated "employee participation" schemes could flourish even more widely as an alternative to unions. Repackaged as the Teamwork for Employees and Managers (or TEAM) Act and adopted by Congress after the GOP took over in 1994, this anti-union legislation was ultimately vetoed by Clinton--after frantic labor lobbying.
To survive his contentious confirmation process (and avoid the fate of fellow African-American Lani Guinier, whose nomination to a top Justice Department post was dropped by Clinton when her writings as a law professor were attacked by the right), Gould played up his credentials as a "professional neutral." He proclaimed that his goal in Washington would be "to reduce polarization both at the board and also between labor and management." Equipped with what turned out to be a serious lack of diplomatic skills, Gould might have had an easier time trying to bring peace to the Middle East.
During Gould's tenure, Congressional Republicans sought to cripple the NLRB's operations with budget cuts, harassing oversight hearings and nonstop political sniping. Positive initiatives, like general counsel Fred Feinstein's attempt to get more federal court orders reinstating fired workers while their cases were being litigated, became a lightning rod for conservative criticism. Under these trying circumstances, Gould, Feinstein and pro-labor board members like Sarah Fox and the late Margaret Browning needed to stick together and coordinate their strategy in the face of common adversaries. Gould, however, quickly fell out with his colleagues in a fit of pique over their failure "to accord me stature and defer to my leadership." His "leadership" soon took the form of public feuding with, and criticism of, his fellow Clinton appointees--combined with attention-getting public statements about many of the leading labor-management controversies of the day. Even when he was on the right side of these disputes, his ill-timed interventions had the effect of exacerbating the NLRB's political problems.
In 1998, for example, Gould injected himself into the debate about a state ballot initiative in California that would have required unions to obtain the individual consent of their members before using dues money for political purposes. Gould's statement of opposition to this Republican-backed "paycheck protection" scheme correctly noted that it would "cripple a major source of funding for the Democratic Party." When his testimony was briefly posted on the NLRB's website after being presented to state legislators, it created such a ruckus that even Congressional Democrats generally supportive of labor and the board raised the possibility that Gould should resign to avert further Republican retribution against the agency.
Ironically, Gould's batting average at the board shows that he was not as much a union partisan as his business critics claimed. According to a recent law-review analysis by professor Joan Flynn, Gould's "votes in disputed cases were considerably less predictable than those of his colleagues from management or union-side practice... [they] broke down in a much less lopsided fashion: 159 for the 'union' position and 46 for the 'management' position." In contrast, when Ronald Reagan tried to change the NLRB's alleged pro-union tilt during his Administration, his chairman was a management-side lawyer--Donald Dotson, a figure no less controversial in the 1980s than Gould was in the '90s. Did Dotson pursue Gould's stated goal of "return[ing] the Board to the center to promote balance"? Of course not. Despite equally hostile Congressional oversight by members of the then-Democratic majority, Dotson openly promoted a Right-to-Work Committee agenda, defending management interests just as zealously as he had when he was on the corporate payroll.
Naming Gould to lead the board was, thus, very much an expression of Clinton's own political centrism. Unhappily for labor, Gould's unexpected personal showboating, squabbling with would-be allies and what Flynn calls his "near-genius for irritating Congress" impeded, rather than aided, the administrative tinkering that Clinton appointees were able to do at the board during his tenure. Vain, impolitic and--in the view of some critics--hopelessly naïve, Gould often did as much harm as good. In this respect, he was not unlike the Dunlop Commission, in that Reich's vehicle for building a political consensus on labor-law reform instead fed right-wing attempts to weaken the NLRA.
Gould's defense of his record seems designed to avoid the kind of flak that Reich received over his memoir's fanciful reconstruction of private and even public exchanges with various Washington notables. Labored Relations quotes extensively from the author's minutiae-filled daily journal, leaving the impression that no such literary license has been employed. Unfortunately, Gould lacks Reich's self-deprecatory humor and acute sense of irony. The author's tedious recitation of his speaking dates, telephone calls, case conferences, lunch and dinner conversations, etc., will be a hard slog for anyone but specialists in the field or ex-colleagues searching for critical comments about themselves (of which there are many).
Outside the Beltway and the "labor bar," settling old scores about who did what to whom as part of the "Clinton Board" is much less a preoccupation than the difficulty of defending workers' rights under any administration. Unfair Advantage does a much better job of keeping this big picture in focus, in particular by documenting the rising toll of workers fired for what, in board jargon, is called "protected concerted activity." In the 1950s, author Lance Compa reports, "workers who suffered reprisals for exercising the right to freedom of association numbered in the hundreds each year. In the 1960s, the number climbed into the thousands, reaching slightly over 6,000 in 1969. By the 1990s, more than 20,000 workers each year were victims of discrimination for union activity--23,580 in 1998, the most recent year for which figures are available."
The "right to freedom of association" is, of course, enshrined in international human rights standards that the United States nominally supports and often seeks to apply to other nations. Compa, a former organizer for the United Electrical Workers who now teaches international labor law at Cornell, exposes the hypocrisy of this official stance in light of persistent NLRB enforcement problems and the structural defects of the NLRA itself. In this Human Rights Watch report, he concludes that "provisions of U.S. law openly conflict with international norms...of freedom of association."
Millions of workers, including farm workers, household domestic workers and low-level supervisors, are expressly barred from the law's protection of the right to organize. American law allows employers to replace permanently workers who exercise the right to strike, effectively nullifying that right. New forms of employment relationships have created millions of part-time, temporary, sub-contracted and otherwise "atypical" or "contingent" workers whose freedom of association is frustrated by the law's failure to adapt to changes in the economy.
The problem with Compa's sweeping indictment of the status quo is that it contains no strategy for change--other than elevating the debate about what should be done from the lowly sphere of labor-management relations to the higher moral plane of international human rights norms. At the local level, Jobs with Justice coalitions and some AFL-CIO central labor councils around the country are actually trying to build a long-term grassroots campaign to promote greater public support for the right to organize. Not unlike that of Human Rights Watch, their target audience is the same elements of academia, the arts, churches and the liberal middle class that have long displayed admirable concern about human rights violations abroad or discrimination against women, gays and minorities at home.
Public officials, university professors, the clergy, civil rights leaders and neighborhood activists are now being encouraged to intervene in organizing situations to help neutralize illegal management resistance to unionization. Workers' rights activists will find plenty of new ammunition in Unfair Advantage, and even some that's buried in Labored Relations. Hopefully, their community-based efforts will create an improved climate for organizing--in some parts of the country at least--and put NLRA reform back on the national political agenda of labor's putative allies in the Democratic Party. Yet while having a Democrat in the White House may prove a necessary condition for reform initiatives, it's hardly sufficient--as the Clinton era just proved. Workers who try to form unions will continue to be at risk until Americans elect both a Congress and a President willing to do more than just tinker with our tattered protection of the right to organize.
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Only months after a major victory on China trade, Big Business is again scavenging for cheap labor. This time, the high-tech industry is pressuring Congress to allow additional foreign technicians--particularly computer programmers and engineers--to work temporarily for US corporations. Congress, with the President's blessing, is poised to deliver a sweet deal to the industry, at the expense of US and foreign workers.
The 1990 Immigration Act set aside 65,000 H-1B visas each year to allow "the best and the brightest" from around the world to work in the United States for up to six years. In 1998, when the high-tech industry complained about an unbearable shortage of skilled US workers, Congress raised the annual H-1B ceiling to 115,000. The industry promised it was a one-time solution. But tech companies devoured the visas. Now their Washington lobbyists claim they are still starving for qualified workers.
Such evidence as exists, however, casts doubt on the alleged labor shortage. A recent study by the IT Workforce Data Project concluded that over the past fifty years, "there is no evidence that any serious shortages of technical professionals--engineers in the past, information technology specialists now--have ever occurred." If the industry faces a tight labor market, it's self-imposed. The industry has largely ignored its vast underrepresentation of women and minorities. Few tech firms recruit at African-American job fairs, and less than 1 percent of blacks with high-tech degrees have Silicon Valley jobs. The corporations also often shun older workers, who might require retraining or better pay.
The tech industry craves cheap labor, not skilled workers. H-1Bs, which are temporary and prohibit the holder from switching employers, fill the bill. H-1B workers cannot unionize, are likely to accept uncompetitive wages and do not receive the employment benefits that similarly skilled Americans would demand. Many companies reportedly force their foreign employees to work in factorylike conditions and routinely withhold wages and violate contracts. Foreign workers, dependent on their jobs for legal residence in the United States, are defenseless: If they complain, they risk being fired; if they quit, their employer can sue them. Their only legal remedy is a bureaucratic federal complaint process with few enforcement options. These foreign temps--indentured servants of the new economy--can either put up or go home.
Nonetheless, Bill Clinton, Congress, Al Gore and George W. Bush support raising the H-1B ceiling to approximately 200,000. Why? The computer industry alone has pumped more than $72 million into federal campaigns. Orrin Hatch and Spencer Abraham, sponsors of the Senate's leading H-1B bill, have received nearly $1 million in high-tech campaign contributions. David Dreier and Zoe Lofgren, authors of the industry-endorsed House legislation, each enjoy tens of thousands in Silicon Valley funding. Other powerful legislators have also profited handsomely from cooperating with Big Technology.
The industry is reminding its political welfare recipients that expanding the H-1B program is a top priority for the nation's tech firms. Their lobbyists are meeting one-on-one with politicians and are barraging Capitol Hill with daily "fact sheets." Chairmen of House and Senate campaign committees have received letters explicitly warning that tech companies will not support legislators who dawdle on H-1B. With control of Congress up for grabs, opposing the industry hardly seems worth the risk.
Representative Tom Davis, who chairs a GOP campaign committee and supports raising the H-1B ceiling, acknowledged, "This is not a popular bill with the public. It's popular with the CEOs." Once again, powerful corporations and unprincipled politicians are preparing to take advantage of vulnerable foreign labor, while many US workers are left out in the cold.
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