The labor movement today is undergoing an important debate about the proper way to prioritize resources - should unions spend money on political campaigns in an effort to win labor-friendly laws, or on union organizing drives?
In her new book
Taking Back the Worker's Law, Ellen Dannin makes a strong argument for a third, thusfar mostly-ignored component of a grand strategy to renew the and expand union movement: a litigation strategy which would give more teeth and weight to the National Labor Relations Act in employer-worker relations.
Below, I review the book, make suggestions for some gaps that need to be filled in this excellent work, and add some thoughts on how the union movement can use litigation, social movement organizing, and political organizing in a coherent strategy to rebuild the union movement.
Review of the Book
Dannin makes many important points, the first of which is that the National Labor Relations Act, the law which governs collective bargaining, is a remarkably pro-labor law. NLRA states that the government's priority is to support and expand collective bargaining arrangements, as (1) a counterweight to the power given corporations via the incorporation laws and (2) as a way to provide workers with substantive training in democratic processes. Dannin, herself a former NLRB attorney, believes that most NLRB employees are pro-labor, and that they want to help unions, within the boundaries of fairness required of government agencies.
A string of anti-union court decisions regarding NLRA, Republican budget cutbacks, and conservative NLRB appointments have made the NLRB less friendly to the union movement than the framers of NLRA had intended. But demonizing NLRA and NLRB, as many unions do now, is counter productive: NLRA is the only legal mechanism to punish employers for anti-union activity; moreover, any reform of NLRA (even if such reform could be achieved above Bush's veto) could easily result in more anti-union rulings which erode the newly won union rights. Therefore, Dannin believes that a concerted legal strategy, akin to the NAACP Legal Defense Fund's epic efforts to end school segregation, can make the NLRA an effective pro-union law again.
The top priority in this legal strategy should be overturning the following anti-union practices under NLRA:
- The Employer's Right to go out of Business, established in Textile Workers Union v. Darlington Manufacturing Co.
- Anti-Union Discrimination, from NLRB v. Adkins Transfer Co.
- Permanent Striker Replacement, established only three years after NLRA was enacted, in NLRB v. Mackay Radio and Telegraph Co.
- Obstruction of Worker Solidarity, established in Lechmere, Inc. v. NLRB
- Implementation upon Impasse, the doctrine which allows employers to implement their "final offer", no matter how unreasonable, if union negotiations reach an impasse; established in First National Maintenance Corp. v. NLRB
Dannin offers some incredibly pragmatic suggestions for unions on how to file NLRB complaints, how to use the burden of proof to their advantage, how to behave during the union card campaign in order to minimize the possibility that the card campaign will be challenged, how to use a posting order to maximum advantage, and so on. (In some cases, when the NLRB finds that the employer is bargaining in bad faith, the NLRB orders the employer to post a notice that it is bargaining in bad faith. Although some unions claim that this is an empty punishment, Dannin encourages unions to use the posting order to embarass the employer, to notify employees of their rights, etc.)
As a final word, Dannin invites unions to use the NLRB as a resource, rather than rail against it. She also warns unions to rethink the current "card check" strategy, in which unions strike a private bargain with an employer that the employer will recognize the union if a certain percent of employees sign union cards stating that they want the union. Such agreements make unionization a private, not public, act. In contrast, using the government-regulated union election process means that the collective bargaining agreement which results is government sanctioned, and reminds the public that promotion of collective bargaining is the law of the land and in the public interest.
Some gaps to consider
Dannin's book is a remarkable work, not the least because she has highlighted a way for unions to regain strength through strategic thinking and legal skill. However, there are some gaps in her book:
- How to get there from here - Dannin explicitly draws a comparison between the effort to take back NLRA and the NAACP's effort to desegregate schools. But the school desegregation strategy was a carefully constructed set of tiny steps (anti-discrimination in law schools, anti-discrmination in graduate schools and colleges, etc.) which led to one big goal (anti-discrimination of public schools), was very mindful of public sentiment at the time (wary of interracial dating and marriage, one possible result of desegregating public schools), and considered the mindset of judges trying the cases (hence the focus on law schools early on). Dannin does not suggest a similar set of incremental decisions leading to her desired legal outcomes, nor does she elaborate on mechanisms to make judges sympathize with the union cause. What kind of incremental decisions are needed to fight the employer's right to go out of business without punishment? Is it best to target employers who destroy a small town, where union support was high? Is it best to target large employers with huge profits, like Wal-mart?
- Winning the judges - remarkably, Dannin's book for the most part ignores the fact that many judges on the federal bench are conservative ideologues, appointed in some cases explicitly to advocate for the interests of corporations. What is the best way to contend with this problem? For example, is it best to try cases in the liberal Ninth Circuit?
- The purpose of NLRA and the benefits of collective bargaining - Dannin views the union movement of the NLRA, and therefore views them as a way of balancing corporate power, educating workers in substantive democratic processes, and organizing the economy properly. She does not say much about the role of unions in substantively improving the lives of workers by providing better wages and benefits. This point is important, because she believes that an important part of case strategy is tying the arguments in the case to the values and priorities of NLRA, while at the same time grabbing a sympathetic ear from the judge. Balancing coroporate power and educating workers in the democratic power is not likely to win a judge's sympathy; but organizing the economy to promote commerce and improving the worker's living conditions is. Therefore, it may be best to design a case strategy which claims that the NLRA is meant to promote commerce and improve worker's living conditions.
Tying together litigation, organizing, and elections
The great rift between the AFL-CIO and Change to Win labor federations focuses on the relative priorities of social movement union organizing (exemplified by SEIU's recent Justice for Janitors effort at the University of Miami) versus electoral work (exemplified by AFL-CIO's efforts to put minimum wage initiatives on the ballot in key states this year, in order to bring liberal voters out to the polls to support Democratic senate candidates.) There has not been much focus on a litigation strategy to rebuild the union movement.
I believe that litigation, organizing, and elections can be woven together into a cohesive strategy which will substantially strengthen the union movement.
Change to Win's organizing drives are frequently accompanied by a "social movement" element which enlists the community's support via public demonstrations, hunger strikes, demonstrated support from community leaders, etc. Such efforts usually argue that (1) it is shameful for the employer to pay the workers insufficiently; (2) low pay means that workers can contribute less to the community, or must draw more on public welfare; and (3) the union is the best way to ensure that business in conducted in a way that promotes the public interest. For example, security guard organizing campaigns usually argue that the employer must provide better training to its employees, in addition to arguing for higher pay.
AFL-CIO's electoral work also focuses on the plight of the workers and the ways in which low pay is not in the community's interest. Books like "Nickel and Dimed" help make the case that it is not fair to deny hard-working employees a decent wage.
Unions need to expand on these public arguments and take them one step further. They need to make the argument that unionization is good for the economy, as the NLRA envisioned. Dannin makes the case several times in the book: by equalizing wage rates across employers in an industry, unionization forces employers to compete on other factors, e.g., good service or high quality products. Moreover, wage improvement (an explicitly stated priority of NLRA) enables workers to spend more money in their local economy.
The more that unions make these kinds of public arguments - whether in unionization campaigns or in ballot initiative campaigns - the better they will be able to make the case in the courtroom. Tying unionization directly to improving the plight of workers and improving the organization of the economy, unions will be able to convince judges that unionization is the priority of the NLRA, and therefore, that only decisions which support unionization will support the NLRA. Naturally, these public arguments will require the support of public intellectuals, especially professors in labor studies and economics.
The point is that unions will need to build a broad base of support for unionization, based on the rationale of NLRA. In this way, arguments made in organizing and ballot initiative campaigns can be imported directly into the courtroom, in a way that will provide judges with considerable latitude to make pro-unionization decisions. This trick also makes court cases cheaper to prosecute, as the same intellectuals who make the public case for the commercial benefits of unionization can be called as "expert witnesses" in the courtroom, to testify that unionization promotes the NLRA policy of organizing the economy.
Ultimately, litigation success depend on the views of the judges. The famed
Brown v. Board of Education decision was handed down under the profoundly anti-white supremacy leadership of Justice Earl Warren; without his leadership and the evolving public attitudes against white supremacy, the decision would likely have been much weaker.
Litigation without organizing and political work will result in empty gains. Organizing without litigation and political work will be much, much harder. Even successful political efforts will be weakened without successful litigation. But a cohesive strategy that incorporates litigation, organizing, and political work can substantially strengthen the union movement.
