These are dark times for labor. The Republican majority that now controls all levels of the federal government has made it clear that they plan on rolling back labor and employment protections, while also not funding and enforcing the currently existing laws. Judicial conservatives have regained their fifth vote on the Supreme Court and a new case challenging the constitutionality of public sector fair share agreements is at the Court’s footsteps. House conservatives have introduced a national right-to-work amendment to the National Labor Relations Act of 1935 (NLRA), and other restrictions on union activity are likely to be moved in the House. All of this will come at a time when the power and reach of organized labor is at historic lows.
Today, less than 11 percent of workers in America are members of a union, including 6.4 percent of private sector workers and 34.4 percent of public sector workers. The dramatic drop in union representation since the 1950s, when over a third of the workforce was unionized, has resulted in stunning income inequality, wage stagnation, continued wage discrimination against women, tens of millions of Americans working for sub-poverty-level wages, and widespread gaps in basic health, retirement, and family leave benefits.
Traditionally, the courts have not been kind to labor. From the very beginning of our nation’s history, the earliest union efforts were treated by conservative jurists as criminal conspiracies and interferences with employers’ property and contract rights and with Congress’ responsibility to regulate interstate commerce. Unions spent the nineteenth and early twentieth centuries decrying “judge-made law” and seeking, essentially, to get the government and courts out of labor disputes.
For a brief time this worked. The Norris-LaGuardia Act of 1932 sought to prevent the federal courts’ military from enjoining or interfering in union protest activity, and many states passed similar laws to keep their courts and police out of the fray. The NLRA made it the official policy of the United States to encourage the practice of collective bargaining. The Act established a federal agency, the National Labor Relations Board (NLRB), that would certify the existence of a union at a workplace and sanction employers who refused to deal with a bona fide union.
Lucas Benitez stands with other Coalition of Immokalee Workers members at the People’s Root Cause March. Source: Vermont Public Radio.
Much of the thrust of mid-century labor law was to encourage a private system of jurisprudence: contract negotiations, arbitration and the occasional industrial warfare of strikes, boycotts (and, later, lockouts). Though unions point proudly at the legislative and regulatory successes they have achieved since the 19th century, they retain a vestigial bias against legislating and litigating our rights and benefits.
Unfortunately, labor rights have been gutted by bad court decisions and worse legislative action. The courts pretty quickly waved away legal job protections for striking workers (particularly for those who engage in what had been unions’ greatest strategic weapon in the 1930’s: the sit-down strike), have granted employers wide “free speech” latitude to conduct campaigns of terror to break their employees’ resolve to form unions and have removed large categories of workers from protection under the Act.
Pro-union labor law reform has been largely unachievable since the passage of the NLRA in 1935, and Congress has instead twice amended the NLRA to severely restrict unions’ ability to engage in solidarity activism in the form of boycotts and sympathy strikes, to protect and enforce union shop agreements and to enhance employers’ rights to fight back against their workers’ demands for a better quality of work life. In more recent years, Congress has severely underfunded the NLRB, cutting agency staff and essentially giving employers wider latitude to break the law with impunity.
Simply put, unions are hampered by rules that would never be applied to corporations, or to any other form of political activism. One of the root causes of this injustice was a conscious decision by the framers of the NLRA to root its constitutional authority in the Commerce clause—not in the First Amendment right of free speech and assembly, nor in the Thirteenth Amendment right to be free from “involuntary servitude.”
As Rutgers law professor James Gray Pope has detailed, tying the NLRA to the Commerce clause was a conscious, “pragmatic” decision of progressive lawyers to reject a half-century of a rights-based campaign for labor law waged by the American Federation of Labor.
The decision is not just a historical footnote. It has the perverse effect of judging worker rights—which are human rights concerns—within the frame of impact on business, to the exclusion of free speech and other considerations. The last half-century has demonstrated that, in such a framework, the courts will tend to have more sympathy for business interests.
Labor rights are rooted in fundamental constitutional rights—from First Amendment freedoms of speech and association to Fifth Amendment protections from unlawful takings to Thirteenth Amendment freedoms from involuntary servitude. However, there has grown a trend whereby labor’s foes have perversely used these constitutional rights against labor. This is seen most often in the push for so-called “right-to-work,” that prevents unions from collecting fair-share fees to cover the expenses germane to collective bargaining.
It is the time for unions and their allies to return to the rights-based rhetoric and constitutional legal strategies that preceded the passage of the National Labor Relations Act and the development of our current labor law regime. The rights of working people to unite, to protest, to withhold their labor, to boycott unfair businesses, and to demand change in all areas of business and society precede and transcend individual labor statutes. Our rights are fundamentally rooted in the Bill of Rights and the Reconstruction amendments. Where the labor law regime, through statute or judicial fiat, restrict our constitutional rights, it should be resisted and challenged as such.
This report will outline the below ten rights which, together, constitute Labor’s Bill of Rights:
The Right to Free Speech
The Right to Self Defense and Mutual Aid
The Right to Strike
The Right to Organize Free from Unreasonable Search and Seizure
The Freedom From Taking Away Union Fees
The Right to Not Be Locked Out for Exercising Labor Rights
The Right to a Job
Freedom from Cruel and Unusual Regulation
The Right to Make Demands and Bargain Freely
Powers Not Exercised by Unions Are Reserved to Workers Who Act in Concert
Labor’s First Right: The Right to Free Speech
Over the course of a few weeks in 1949, ten unionized technicians at the Jefferson Standard Broadcasting Company distributed handbills criticizing their employer. The workers were in the middle of protracted negotiations and had been without a contract for some time. The Charlotte, North Carolina company was one of the first television broadcasters in the country. The handbills criticized the company’s substandard technical equipment and lack of local programming, and charged that Jefferson Standard considered Charlotte a “second class city.”
They were swiftly fired. The workers filed an unfair labor practice charge at the NLRB, arguing that they were participating in what they considered to be legally protected concerted activity to advance their contract campaign. The NLRB disagreed, and ruled that the technicians’ actions were not protected, because they were not obviously and explicitly connected to the union contract campaign. Upon appeal, the U.S. Supreme Court issued Labor Board v. Electrical Workers (Jefferson Standard)—one of the most anti-free speech decisions in the realm of labor law that thundered, “there is no more elemental cause for discharge of an employee than disloyalty to his employer,”7 henceforth known as the Jefferson Standard dictum.
Interpretation of Jefferson Standard has for decades led to a hash of confusing and contradictory NLRB and appellate court decisions, which continue to chill the rights of workers to speak out about their workplace.8 The idea that union activists can be fired for making what employers consider “disloyal” statements about their employer seriously undermines organizing campaigns, and is used as a tactic by union-busting firms to delay and derail legitimate organizing activities.
In Jefferson Standard, an arm of the federal government (the NLRB) declined to enforce workers’ statutory protections based on the content of those workers’ speech. Such a decision in any other realm would not pass constitutional muster; it should not in the workplace, either.
This truth should be self-evident, despite how contradictory it is to so much current labor law: working people do not shed their free speech rights simply because they desire to join together as a labor union.
How to Restore This Right
To restore this right, unions and their allies must raise more First Amendment challenges to the labor law regime. Unions, worker centers, individual workers, and law firms could—and should—challenge any governmental restriction on workers’ pure and simple words. If a flyer, tweet, or online post, in and of itself, is challenged by a government agency to violate the Taft-Hartley Act, a state labor law, or some obscure and ill-considered court decision, mounting a First Amendment challenge must become a primary strategic consideration.
Ironically, one area of labor law where the courts often consider free speech in the realm of labor is with regard to the employer’s speech rights.9 For instance, the Supreme Court has taken free speech into consideration in carving out an employer’s right to conduct captive-audience meetings. Employers use these mandatory meetings—held in all-staff, small-group, or one-on-one formats—to “educate” employees about the disadvantages of unionization, but they are really designed to confuse and intimidate employees into voting against union representation.
In a 2009 study, 10 Kate Bronfenbrenner, director of research at Cornell University’s School of Industrial and Labor Relations, found that nine out of ten employers utilize captive-audience meetings to fight union organizing drives. Employers threaten to cut wages and benefits in 47 percent of documented cases, and to go out of business entirely in a staggering 57 percent of cases. Unions win only 43 percent of certification elections when employers run captive-audience meetings (as opposed to an overall win rate of 55 percent).11 No wonder union avoidance consultants consider it “management’s most important weapon in a campaign.”
A fair application of the First Amendment would embrace the principle of “equal time” in mandatory presentations about the pros and cons of voting for a union in an election conducted by a government agency. For the government to grant employers a right to force employees to attend a “vote no” presentation, but grant no such right to “vote yes” advocates to respond to the lies, half-truths, and threats that are presented is an obvious and shameful violation of workers’ First Amendment rights.
A group of 106 leading labor scholars, led by Southern Methodist University law professor Charles Morris and Marquette University law professor Paul Secunda, have filed a rulemaking petition at the NLRB to re-establish an equal time rule (which was the NLRB standard for a brief time in the 1950s). This petition is a good start, but unions should press the matter further, into the courts to establish a clear constitutional right to be free from the one-sidedness of captive-audience meetings.
Challenging the one-sided approach to captive-audience meetings at the NLRB and in the courts will serve to highlight the unfairness that workers face when trying to organize a union, and could lead to more even-handed union elections, more consistent with the purposes of the NLRA.
Read the rest of Labor's Bill of Rights on The Century Foundation.