Worker rights in the USA: The law and the reality

I was sent a message from a Mohamed Abdi, General Secretary of the Somali Public Trade Union, asking what is the situation with labor rights in the United States. Here is my answer:

I could write a whole book on that! In fact many people already have. There are the formal, legal rights and there is the reality.

The National Labor Relations Board: The symbol vs. the reality

National Labor Relations Act
According to the law, workers have the right to organize free of harassment or attacks from the employer. Such organizing is considered “protected activity”. They also have the right to strike. That’s the law.
There is a whole bureaucracy that was established in the 1930s – the National Labor Relations Board (NLRB) – supposedly to enforce that law.

However, first of all, if workers start to organize a union, the employer has the right to organize work place meetings at which the workers are subject to the propaganda and intimidation of the employers. Any worker who speaks up against that propaganda will be marking her or himself. Legally, they can’t be fired for speaking up, but they can be harassed, transferred, etc. Also, it’s difficult to actually prove that a worker was fired for protective activity. For one thing, we all know that often there are so many work rules that it’s impossible to follow them all to the letter. And all workers do make workplace mistakes. That’s just human. So an employer can seize on this to find an excuse.

Workers at Google, fired while organizing

23,000 workers fired every year
In any case, even if a worker can prove they were fired for protected activity, it often takes years and years
to do so. So what is that worker to do in the meantime? And meanwhile, all those workers at the workplace are left without their key and most fearless leaders. According to this study 23,000 workers every year are fired or penalized for engaging in protected activity. It reports on the “near universal and systematic use of legal and illegal tactics to stymie workers’ union organizing.” It reports that among employers faced with a union organizing campaign: 30 percent fired workers when they engaged in union activities. 49 percent threatened to close or relocate all or part of the business if workers elected to form a union. (Making this threat is illegal.) 82 percent used consultants to design and coordinate their anti-union campaigns.”

The formal, legal procedure is that a union wishing to represent a group of workers starts by getting a card signed called an “authorization card”. This card authorizes that union to represent the workers. If the union gets a majority of the workers to sign these cards, it can then go to the employer and tell him or her that they represent the workers and they want to bargain for a contract – “collective bargaining”. But it’s not that simple. The employer can challenge the whole procedure and demand an election that is to be supervised by the NLRB. That is a drawn-out procedure and it’s during this that the employer brings into play all of the tricks outlined above.

The report cited above writes: “The impact of employer anti-union campaigns on the success of union organizing drives has been substantial. For example, in 2002, labor unions filed 179 petitions with the National Labor Relations Board (NLRB) to represent previously unorganized workers at workplaces in the Chicago metropolitan area. In nearly all of the cases, when these petitions were filed, the majority of workers indicated they supported unionization before the election process began. In several cases, unions demonstrated more than 80 percent support. However, unions were victorious in only 31 percent of these campaigns.” (I should note that this report is from 2005, but I don’t think much has changed from then.)

“Pro Nissan & pro union” – the UAW “organizing” slogan at the Nissan plant.
Why should workers join and pay dues to a union if it’s pro company?

UAW & Nissan
In recent years, for example, the United Auto Workers union tried to organize a Nissan plant and a Volkwagon plant in the South of the United States. In both cases the majority of workers ended up voting “no”, they did not want the UAW to represent them. (See this article.)

Even if the union can win a representation election, which is not the usual, that doesn’t end the subject. All that means is that the employer must engage in “collective bargaining” for a union contract. The employer can, and usually does, drag out that bargaining for years. Meanwhile, the workers are getting more and more frustrated and outright demoralized. In most cases, even if the union wins collective bargaining rights, they are unable to win a union contract. And even if they do, often times that contract is completely inadequate.

There are several reasons for these failures, such as that of the UAW, mentioned above.

First, of course, is the resistance of the employers by all the means explained above. And it’s not only the on-the-job threats and intimidation; it’s also the anti-union propaganda that the company brings to bear outside the work place. That includes from the politicians and the media.

But the employers have always resisted workers organizing into unions. That is simply to be expected. If a fox gets into a henhouse and eats the hens, you can’t blame the fox; it’s only doing what it was born to do! You must blame the farmer for not adequately protecting the hens!

Labor in 1930s

Minneapolis Teamsters Strike of 1934.

To adequately understand the issue of legal “labor rights”, we have to understand the history of these laws. For many years, workers organizing into a union was considered an illegal monopoly, similar to corporations banding together to fix prices. As with the racist “Jim Crow” laws in the South, these laws changed when they could no longer be enforced. Most especially this was so due to the outbreak of extreme worker militancy in the 1930s. In 1934 there were three mass strikes in the US – the San Francisco and the Minneapolis general strikes and the Toledo (Ohio) Auto-Lite strike. All three of these strikes involved mass pickets of not only the workers at the work place but thousands of workers – and the unemployed! – who supported them. They openly defied the police and the courts. And they won.

This was followed by the wave of sit-down strikes – plant occupations – in 1937. This was started by auto workers at General Motors. Again, these strikes were completely illegal… but they won. The GM strike led to a wave of over 1,000 sit down strikes throughout the country. It was not only industrial workers but store clerks and others engaged in sit downs. In one instance, children sat in in a movie theater because they felt the movie was too short! According to the book “Labor’s Giant Step” (by Art Preis), only 25 of these strikes were broken.

It was this outbreak of worker militancy that led to the passage of the labor laws that established the legal “rights”. More important, it lured the union leadership into relying the legal bureaucracy of the NLRB and the courts, rather than on the self-activity of the workers themselves. A most clear example of that was the attempt to organize a union at the smaller steel plants, “little steel”, of that time. Led by the more conservative wing of the union leadership, the workers in little steel went on strike in May of 1937. Under that leadership, they walked out rather than sat in. Initially, their strike was 100% effective. However, they were then subjected to a vicious assault by the police and “special deputies”. In Chicago, for example, the police shot and killed ten strikers and wounded another forty on May 30. A news camera recorded that massacre, but the news company refused to show the film for fear of “creating riots”! The workers had been told that the supposedly pro-labor president, Franklin Delano Roosevelt, would protect them. His response was to quote Shakespeare: “A plague on both your houses”, he said.

In the years and decades that followed, the unions got increasingly sucked into the legal channels of the NLRB and the courts. This was complemented by the leadership’s absolute insistence that if workers did go on strike, that all legal norms must be observed, and then some. For example, when hotel workers went on strike here in the San Francisco Bay area, the union leadership insisted that the strikers may not picket in front of the hotel entrance, even thought such picketing is completely legal. They insisted on this just in case the hotel complained. The result is that most strikes have not succeeded in stopping the attacks of the employers, and the result of that is that workers have often been reluctant to go on strike.

March on Port of Oakland during Occupy Oakland. This march had no “parade permit”. So what?

To return to a more recent experience – that of “Occupy Wall Street” of 2011. Here in Oakland, California, we had Occupy Oakland. For several weeks we occupied the central square in downtown Oakland. That occupation was completely illegal, but until enough propaganda could be put out there it was politically impossible to remove us. Even after they did, there was a gain that lasts to this day. According to the law, to have a march through the streets of Oakland (rather than staying on the sidewalk), a “parade permit” is required. Getting this is a long and bureaucratic process and it’s not guaranteed. During Occupy Oakland, we simply took the streets. We marched and “paraded” without a permit and it was politically impossible for the police to stop us. To this day, workers and youth continue to do this.

Recently, there has been an increase in strikes. In some cases, the strikers have gone beyond the normal, legal bounds. That was done when the workers took matters into their own hands.

Unfortunately, the union leadership does everything it can to prevent a return to those methods of the 1930s. It is no accident that this same labor leadership has supported US government policy throughout the world. That includes US support for military coups in Latin America. That was during the days of the “Cold War”, and the AFL-CIO (the US union federation) has had to change its face since then. Today, their main drive is to try to channel the rising workers movements around the world into the legal channels – the same channels which have been so ineffective for workers here in the United States. 

The one law that is enforced at all times
Given the rampant violations of the labor laws, it’s clear that the only ones who believe in obeying the law are the union leaders! So, in answer to that African union organizer’s question about legal rights for workers: There is only one law that is enforced at all times, not by the courts but by history: Might makes right. 

For more on the US labor movement see: UAW corruption starts with the pro-company strategy of the leaders.

Internationalism and the General Motors Strike.

And other articles here:

Categories: labor, United States

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