Should Labor Organizing Be a Civil Right?

Why Labor Organizing Should be a Civil Right: Rebuilding a Middle-Class Democracy by Enhancing Worker Voice, by Moshe Z. Marvit and Richard D. Kahlenberg, was released last year to critical and academic acclaim but not nearly enough attention. The book, whose authors are both fellows at the progressive think tank the Century Foundation, lays out a simple, brilliant idea: to amend the Civil Rights Act so that it prohibits discriminating against workers for attempting to organize a union. 

We recently had a chance to pick the authors’ brains about the inspiration for the book, how the legislation would work and why this is an idea whose time has come.

Feldner-Shaw: For those who haven’t heard about it, can you briefly describe the premise or thesis of the book?

Marvit and Kahlenberg: As the title suggests, the book Why Labor Organizing Should be a Civil Right makes the argument that labor activities are a civil right and should be treated as such by our laws. Labor organizing is deeply associated with the First Amendment—both freedom of speech and freedom of association—and like other civil rights and civil liberties deserves strong protections. Labor organizing is already theoretically protected in America through the National Labor Relations Act of 1935. However, the Act’s exclusive jurisdiction and weak remedies have made it easy for anti-union employers to simply violate the law with impunity, and have left most aggrieved workers without a remedy. Writing labor activities into our civil rights legislation would change the frame through which people see labor, and it would provide workers whose rights are violated a remedy.

Feldner-Shaw: What was the inspiration for writing this book and proposing this legislation?

Marvit, Kahlenberg: After the Employee Free Choice Act (EFCA) failed to pass, we began to discuss the possibility of thinking through the idea and advancing the argument. Our friend Tom Geoghegan first proposed the idea of protecting labor organizing under the Civil Rights Act several years ago and Tom encouraged us in thinking the time was right to develop the idea into a full-length book. Labor law reform had been tried and failed four times when Democrats controlled Congress and the presidency—from LBJ to Obama—and each time employer groups mounted massive campaigns to confuse the issues, and the legislation failed. We felt that for labor law reform to succeed, the idea would have to have more broad appeal and carry a message that everyone understood. Civil rights held that promise. We believe that a civil rights legislative campaign would complement and help grow a movement.

Feldner-Shaw: How will this differ from or improve upon protections or laws already out there to protect workers engaging in organizing efforts (i.e. the NLRA rules around striking, collective bargaining, etc.)?

Marvit, Kahlenberg: Currently, a worker who is retaliated against for trying to organize or join a union can take only one route: he or she must go to the National Labor Relations Board (NLRB) and ask the government to bring a case against the employer. If the Labor Board refuses, then the worker has no other legal remedy. If the Board agrees to take the case, they are greatly limited in what they can do. In the best cases, employees usually win a portion of their back-pay (the full amount minus what they earned or should have earned), reinstatement to a workplace that discriminated against them (and likely will fire them again within a few months), and a requirement that the employer post notice of the employees’ labor rights. Employers use the Board’s weakness against workers. They fire key employees in the organizing drive, suffering little liability, but sending the effective message to all others that if they engage in union activities their livelihoods are in danger.

By making labor organizing a civil right, the employees and unions would be in control of the case, and would be entitled to remedies that have teeth. First off, our proposal would allow for preliminary injunctions, meaning that if an employee has been fired they could get an immediate order of reinstatement while the case is pending. This exists under the Railway Labor Act, and it strips all incentive from the employer to tactically fire key organizers. Instead of allowing firms to scare all employees by firing with impunity those who engaged in labor organizing, the immediate reinstatement sends the opposite message: that workers have real rights. Then, after bringing a charge to the NLRB, the employee would be able to remove the case to federal court within a short period of time. At federal court, under a civil rights law, the employee would be entitled to real remedies, such as back pay, all damages, and punitive damages up to $300,000. Furthermore, the employer would be labeled a civil rights violator in the public’s eyes—a label no brand conscious employer wants. The employee would be entitled to attorneys’ fees, which would help defray the massive costs that unions currently bear in maintaining legal departments. And the employee would be entitled to a jury trial, which would have an important educative role.

On the more technical, but no less important side, there are a host of pre-trial benefits that come from having a case in federal court. The employee can engage in real pre-trial discovery, meaning that she could have management deposed, review emails and communications to anti-union consultants, review the financials of the company, and generally even the information playing field. Additionally, because attorneys’ fees are provided, this legislation would help build the private bar of union side labor attorneys, who would be willing to take cases on contingency. It would allow for creative litigation, like we’ve seen in other areas of law, and the creation of a litigation strategy. Over time, it would also ensure that judges would have previous labor law experience and thereby better understand what is quickly becoming an esoteric area of law.

Feldner-Shaw: How do you envision this being used by or helping organizers or others engaged in the labor movement (whether “informal” organizing or traditional labor unions)?

Marvit, Kahlenberg: There are a few ways that this would help organizers. First, it would change the calculus of employers who consider violating the law. There are currently a great number of employers who violate employees’ rights because it’s cheaper and easier to do so than to comply with the law. Our proposal would greatly increase the costs to the employer—both in litigation and in remedies—and thereby would stop many of them from engaging in anti-union activities.

Secondly, the message that labor organizing is a civil right is a strong message that would resonate with many workers, and the public more generally. Our hope is that the message would encourage the community to see labor violations as issues that harm us all, which must be supported. Just as one cannot make an economic argument against racial, religious, or gender discrimination, we should not tolerate economic arguments against labor violations.

Third, workers who take the lead in organizing campaigns will always be taking a risk. However, under the current law, they are rarely made whole when they suffer discrimination. Making labor organizing a civil right would provide a real remedy for those workers who risk their livelihoods to have a voice in the workplace.

Fourth, under the model legislation contained in the book, there is a route to a first contract. An employer who discriminates against a number of workers could face millions of dollars in punitive damages alone. Therefore, under the proposed legislation, if the employer agrees to submit to card check, recognize the union if it has a majority of cards, and agrees to submit the first contract to interest arbitration, it would not be liable for punitive damages. The employer would still have to make the aggrieved employees whole through back pay and other remedies, but it would not be liable for additional punitive damages if it signs a first contract.

Feldner-Shaw: Can you lay out and address or counter some of the arguments against this approach?

Marvit, Kahlenberg: An excellent discussion of the counter-arguments can be found in the January/February 2013 issue of Poverty & Race, but I will summarize some here:

• This proposal could not pass the current Congress: While it is no doubt true that John Boehner would never be likely to allow this legislation to be voted on, and Senate Republicans would probably filibuster it, we argue that this proposal has a better chance of passing than more traditional labor law reform efforts. It will be much more difficult for those opposed to labor to confuse the issue, and the hope is that this legislation will be ready when Democrats regain control of Congress and the presidency.
• Civil rights are reserved for identity issues and not activities: This critique takes a narrow view of civil rights, which have been expanding for decades. Federal, state, and local civil rights legislation now covers many categories such as bankruptcy, military service, homelessness, and others, which take the original purposes of the Civil Rights Act and extend them. Furthermore, labor protections would help achieve the original purposes of the Civil Rights Act by providing protections for employees to gain a voice in the workplace, increase their economic lots, and gain protections from arbitrary discrimination.
• Labor rights are about collective power, and this proposal focuses too much on the individual: Making labor organizing a civil right does nothing to diminish the collective nature of labor organizing or of diminishing solidarity. Individual rights have been used against labor for far too long, with so-called “right to work” legislation and other state-level attacks on labor rights. During the organizing campaign, while solidarity is building, employers use divide and conquer tactics to stop the campaign in its tracks. Making labor organizing a civil right would help protect individual workers when they’re at their most vulnerable so that collective power can be built.

Feldner-Shaw: Why now? Are there cultural or societal shifts that give you hope that this could be accomplished now versus at other times in history?

Marvit, Kahlenberg: Labor is at an interesting crossroads. The number of unionized Americans is at its lowest in a century, but labor still has significant social and political power. Civil rights have an unmatched level of legitimacy in American society, and we are living in a civil rights moment where various groups and activities are vying for recognition and protections. Labor should seize the momentum, and use the civil rights frame to educate, organize, and grow its ranks.

(Sierra Feldner-Shaw is the Communications Director for the UFCW Western States Council, which first published this post. Republished from ufcwwest.org with permission.)