Selling Us Down the Kentucky River

Leaving for school tomorrow, now seems a good time to reflect upon the greatest current threat to labor unions: the group of cases that are collectively called “Kentucky River.” Jonathan Tasini efficiently sums them up:

In a normal, sane world, these cases (involving nurses) would not pass the smell test: the employers are seeking to classify these nurses as “supervisors” because they exercise “independent judgement” (“yes, that patient is going into cardiac arrest so I better do something”) and “responsibly direct other employees.” Doing so, according to a study by the Economic Policy Institute, would potentially take as many as 8 million workers out of union bargaining units. Poof. with the stroke of a pen.

If the Bush-dominated National Labor Relations Board rules as predicted against the rights of professional, skilled and educated workers than the boss whose workers I have been organizing for the past few months can legally refuse to deal with our union. That this system could justify denying the right to organize and bargain collectively to a group of workers who may have wide discretion in their daily assignments but are denied any kind of job security, are frequently paid a pittance and denied pensions, maternity benefits, child care and more with no power to do anything about it individually is an indictment of the state of federally protected workers’ rights. It begs the question: is it time to abandon federal labor law?

Prior to 1937, labor relations in the U.S. had a Wild West character. Unions organized and struck employers and ensured that “unfair” (read: non-union) products would not be bought, sold or distributed by union members. Bosses on the other hand fired and blacklisted union activists and set up sham “company unions” to nullify their workers’ complaints. Workers’ rights (and pay and benefits) were guaranteed only insofar as the collective strength of the unions could make the boss’ violation of them a Very Bad Idea.

This resulted in so much strike activity and economic instability that the government finally intervened and with the National Labor Relations Act established certain legal rights for workers engaging in collective activity, as well as an orderly process for enforcing those rights and certifying workers’ choice of union representatives through elections. The law worked well and millions of workers took the opportunity to organize unions at their jobs, winning massive pay increases, great new benefits and generally contributing to the nation’s economic recovery following the Depression and war.

But the law never covered all workers, only those defined as “employees” under the act. Government employees were excluded, and only gained rights as state governments passed laws that covered them. In a nod to the racist Dixiecrats, whose support was essential to passing the law, farm workers and domestic employees were excluded. Employees who worked for companies not engaged in interstate commerce (which was more narrowly defined before the civil rights movement), like hotel and restaurant employees, were not covered at first. We often make the mistake of saying, as a shorthand, that these workers who are not defined as “employees” under the act can’t be in unions. What’s more accurate is that their legal status is still in that pre-1937 Wild West. They can still organize, and if they are effectively united and strong can compel an employer to recognize and deal with their union, but the Boss is also free to fire and blacklist anyone at all.

Of course, the Boss has been pretty free to fire, harass and intimidate employees who are trying to form a union for a long time now. Decades of Reagan and Bush Board decisions, backed up by a few key Supreme Court decisions, have perverted the law so that it now exists as a framework for employers to conduct a legal 30 day reign of terror before a union authorization election. For this reason, most unions that are serious about organizing have largely abandoned the NLRB election process in favor of pressure campaigns to get the employer to voluntarily recognize the union based upon a majority of workers signing union authorization cards. Fearing the threat to its union-breaking authority, the NLRB is considering a rule that would deny card check-certified unions the traditional 12 month time bar against petitions to certify or decertify any union following recognition, effectively forcing a costly election.

The problem with completely abandoning the NLRB process is that subsequent amendments, in 1947 and 1959, also defined a “union” under the act and created a legal framework for liquidating renegade unions. For example, when the government decided that Communists couldn’t hold elected positions in labor unions, well, you might ask, what constitutional authority did they have to limit anyone’s right to free assembly? The answer is none, really. You are free to organize a free association, elect a Communist as your president and call yourselves a union, but the NLRB need not legally recognize you as a “union” and can keep you off any certification (or decertification) ballot. So, for example, when the old CIO-affiliated United Electrical Employees (UE) refused to comply with the anti-Communist provisions of the Taft-Hartley amendments to the act, the AFL’s International Brotherhood of Electrical Workers (IBEW) petitioned to replace them as the certified bargaining representative at scores of companies, and only the IBEW was allowed to appear on the ballot, resulting in tens of thousands of UE members being “raided” by the IBEW and leaving the UE a shadow of its former self.

The same legal fate awaits any union that violates provisions of the act, including especially those that ban powerful union strategies like expanding picket lines to companies that are allied with the principal employer, refusing to ship, sell or stock any goods made by non-union workers and demanding union recognition for so-called “supervisors.”

All of the unions that I have worked for are in a position to withstand such a threat. Sure, some chintzy “union” could exploit the situation to petition for a sham election and replace the Hotel Trades Council or 1199 as the titular, legal “union” on record, but the workers would know which union secured the strong contract, high wages and excellent benefits that made their jobs “good jobs,” and would retain loyalty to the real, renegade union. But such bold and effective unions are, alas, not the norm.

The union I currently work for is also in a strong position to fight the law. The vast majority of our contracts are characterized by shockingly high salaries and generous benefits that translate to significant member loyalty and we have the additional protection of having most of our members working in the public sector, which is not affected by the NLRB at all. Plus, we have “no raid” deals with our closest competitors.

But it’s still scary as hell to step outside the relative comfort of 70 years of established law and go back to the Wild West.