Later On

A blog written for those whose interests more or less match mine.

The right to organize at work deserves constitutional protection

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Shaun Richman writes in Vox:

On Labor Day, alongside stories about parades and final trips to the beach, we can expect to read the usual depressing statistics about the decline of labor unions in the United States. The problem with this coverage isn’t the facts, which are undeniable — it’s the tone of inevitability.

Today, less than 11 percent of workers, including just 7 percent in the private sector, are members of a union — a dramatic drop from the 1950s, when more than one-third of the workforce was unionized. The recent loss by the United Auto Workers at a Mississippi Nissan factory, where workers voted by a three-to-one ratio against union representation, is just the latest in a long string of defeats for the labor movement.

And this decline has a real effect on families’ financial security: Researchers have shown that nearly half of the decline in middle-class incomes is due to the shrinking rates of unionization.

Few articles probe deeply into the cause of the decline, but here’s a hint: It isn’t because unions no longer make sense in the modern economy, nor is it about American workers’ supposed skepticism toward unions (especially in the South). And it’s not more evidence that the white working class stubbornly insists on voting against its own interests.

Rather, the decline of unions is a direct result of our nation’s badly broken labor laws — specifically, the ways in which those laws and court decisions fail to acknowledge, much less protect, the constitutional rights of workers.

American courts have never been kind to labor. From the beginning of our nation’s history well into the 20th century, union organizing efforts were treated by conservative jurists as criminal conspiracies and interferences with employers’ sacrosanct contract rights. Unions spent the 19th and early 20th centuries decrying “judge-made law” and seeking, essentially, to get the government and courts out of labor disputes.

This approach did notch a few victories. The Norris-LaGuardia Act of 1932 prevented the federal courts from issuing injunctions against union picket lines (which were frequently enforced at bayonet point). Many states passed similar laws to keep their courts and local police out of the fray.

But the modern labor era began in many ways in 1935, with the National Labor Relations Act, which made it the official policy of the United States to encourage collective bargaining. The act established a federal agency, the National Labor Relations Board (NLRB), which would certify unions and punish employers that refused to deal with them. While well intended, passage of the NLRA in the form it took has had many unintended, and some extremely detrimental, consequences for organized labor.

A failure to ground labor laws in the Bill of Rights

The framers of the legislation, who at the time were leery of a conservative Supreme Court, made the pragmatic decision to root the law’s authority in the Commerce Clause, which grants Congress the right “to regulate Commerce with foreign Nations, and among the several States.” This was the subject of no small debate at the time.

Many advocates believed that labor’s rights should be based on First Amendment rights to free speech and free assembly; others thought that the Fifth Amendment right to “due process” — interpreted as a broad protection of citizens’ rights — made sense. Leaders of the American Federation of Labor had been arguing for a half-century that the 13th Amendment, which prohibited both slavery and, crucially, “involuntary servitude,” was the appropriate constitutional basis for labor rights. But the act’s framers were convinced that the Lochner-era Court that made laissez faire economics a virtual state religion would never go for more lofty human rights justifications.

Practically speaking, the court was motivated to accept the NLRA more by the wave of sit-down strikes roiling the country in 1937 than by legal theories. But conceiving of unionization as a matter of business regulation led to a very narrow interpretation of the act. Before the end of World War II, the court took away legal protections for sit-down strikers, denied striking workers the right to return to his job, and granted employers a First Amendment right to run vicious union-busting campaigns.

Much of this anti-union thrust was endorsed and enhanced by the Taft-Hartley Act of 1947, passed by a Republican Congress over President Truman’s veto. The law declared it illegal for union members to boycott or picket a “secondary” employer — that is, a company that they do not work directly for, but who has significant or even essential business dealings with their employer.

Most people think of the Taft-Hartley Act for its “right-to-work” provisions. The Act permitted states to allow workers to decline to join a union, or pay fees, even if they benefited from union-negotiated contracts. . .

Continue reading.

And see also in VoxHow bosses are (literally) like dictators,” by Elizabeth Anderson, which begins:

Consider some facts about how American employers control their workers. Amazon prohibits employees from exchanging casual remarks while on duty, calling this “time theft.” Apple inspects the personal belongings of its retail workers, some of whom lose up to a half-hour of unpaid time every day as they wait in line to be searched. Tyson prevents its poultry workers from using the bathroom. Some have been forced to urinate on themselves while their supervisors mock them.

About half of US employees have been subject to suspicionless drug screening by their employers. Millions are pressured by their employers to support particular political causes or candidates. Soon employers will be empowered to withhold contraception coverage from their employees’ health insurance. They already have the right to penalize workers for failure to exercise and diet, by charging them higher health insurance premiums.

How should we understand these sweeping powers that employers have to regulate their employees’ lives, both on and off duty? Most people don’t use the term in this context, but wherever some have the authority to issue orders to others, backed by sanctions, in some domain of life, that authority is a government.

We usually assume that “government” refers to state authorities. Yet the state is only one kind of government. Every organization needs some way to govern itself — to designate who has authority to make decisions concerning its affairs, what their powers are, and what consequences they may mete out to those beneath them in the organizational chart who fail to do their part in carrying out the organization’s decisions.

Managers in private firms can impose, for almost any reason, sanctions including job loss, demotion, pay cuts, worse hours, worse conditions, and harassment. The top managers of firms are therefore the heads of little governments, who rule their workers while they are at work — and often even when they are off duty.

Every government has a constitution, which determines whether it is a democracy, a dictatorship, or something else. In a democracy like the United States, the government is “public.” This means it is properly the business of the governed: transparent to them and servant to their interests. They have a voice and the power to hold rulers accountable.

Not every government is public in this way. When King Louis XIV of France said, “L’etat, c’est moi,” he meant that his government was his business alone, something he kept private from those he governed. They weren’t entitled to know how he operated it, had no standing to insist he take their interests into account in his decisions, and no right to hold him accountable for his actions.

Like Louis XIV’s government, the typical American workplace is kept private from those it governs. Managers often conceal decisions of vital interest to their workers. Often, they don’t even give advance notice of firm closures and layoffs. They are free to sacrifice workers’ dignity in dominating and humiliating their subordinates. Most employer harassment of workers is perfectly legal, as long as bosses mete it out on an equal-opportunity basis. (Walmart and Amazon managers are notorious for berating and belittling their workers.) And workers have virtually no power to hold their bosses accountable for such abuses: They can’t fire their bosses, and can’t sue them for mistreatment except in a very narrow range of cases, mostly having to do with discrimination.

Why are workers subject to private government? . . .

Continue reading.

Later in the article:

Scotts, the lawn care company, fired an employee for smoking off duty. After Rep. Rodney Frelinghuysen (R-NJ) notified Lakeland Bank that an employee had complained he wasn’t holding town hall meetings, the bank intimidated her into resigning. San Diego Christian College fired a teacher for having premarital sex — and hired her fiancé to fill her post. Bosses are dictators, and workers are their subjects.

Read the whole thing. This is a particularly good article.

Written by Leisureguy

3 September 2017 at 8:55 am

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