In 1935, as part of the National Labor Relations Act (popularly known as the Wagner Act), the federal government gave labor unions the “right to organize,” which meant, among other things, that it was now a federal crime for companies to attempt to dissuade employees from joining a union by issuing threats of reprisal or discharging union activists.
In principle, if management did something blatantly illegal, such as firing the employees who were promoting (or, in management’s view, “instigating”) the union membership drive, the company could be charged with a violation of federal labor law. If found guilty, the company would be fined, the employees would be reinstated, and the company would be forced to pay back wages to the reinstated employees (minus any wages they earned at other jobs during the interim). That’s how it was intended to work.
But management soon found ways to beat Wagner. For one thing, they realized that time was on their side, that while the intent and spirit of the Act was clear and compelling, its nuts-and-bolts enforcement was a bureaucratic thicket. They found that by purposely drawing out the process—by requiring years to adjudicate a case—they could profit by stalling. They found they could “win” even when they lost..
It boiled down to logistics. By the time the unjustly fired employees were reinstated, years later, the membership drive was all but dead. If the company’s goal in firing the activists was to prevent employees from joining a union, they succeeded. They succeeded even when found “guilty” of illegal termination, even when receiving the obligatory slap on the wrist. In this way the “right to organize” provision of the Wagner Act was effectively side-stepped.
In 1978, the Carter administration attempted, more or less, to address this problem. Not by doing anything radical, mind you—not by adding hundreds of NLRB field investigators, not by establishing hard and fast time limits—but by introducing two remarkably tame and almost laughably superficial changes to the Wagner Act.
The first called for allowing NLRB “judges” to begin the reinstatement of workers immediately, which, in fact, would have done little more than shorten the process from three or four years to one or two years. The second called for stiffer fines if found guilty, and for making full restitution (of all their back pay), without subtracting any wages the employee may have earned in the interim.
Again, neither of these changes amounted to more than tweaking the Wagner Act. Even if the Carter administration’s proposed changes had become law, they wouldn’t have prevented companies from willfully depriving workers of the legal right to organize. That said, it was still interpreted as a step forward—a pathetically tiny step, a miniscule step, but a step nonetheless. And for that reason, labor fought hard for the changes.
In 1978, the Democrats owned the government. They held the House, the Senate, and the White House. But even with this numerical and tactical advantage, the bill failed. Even with the Republicans still recoiling from the disgrace of Watergate, even with the Democrats occupying the White House and controlling Congress, even with a bill that was almost pitiful in its modest ambitions, the legislation failed to pass.
It failed to pass because the Democrats defeated it. They didn’t just defeat it, they crushed it. The bill lost by a landslide. Why? Because, deep-down, Democrats in the House and Senate were just as frightened of a heavily unionized (and therefore “independent”) workforce as were their Republican counterparts.
Which brings us to the EFCA. The part of the EFCA debate that sticks in the craw of organized labor is the part where the anti-union coalition (Wall Street, the U.S. Chamber of Commerce, the Republican Party, et al) pretends its opposition to the bill is based on a desire to protect the employees’ “right to choose.” They’ve parroted this “free choice” nonsense so often, the public is starting to believe it.
Of course, the opposite is true. Corporate America doesn’t want workers to freely choose—not if they’re going to choose to join a union. If management honestly embraced workplace democracy and allowed the chips to fall where they may, union membership would likely be closer to the 35-percent it was in the 1950s, rather than the 12.4-percent it is today. Polls show that close to 60-percent of American workers are interested in joining up, but are too scared to try.
Most people don’t realize it, but workers get fired everyday for union activism. Is it legal? Of course, it isn’t legal. It’s as illegal as Grand Theft Auto, but it still happens. You walk into your place of work during a union membership drive wearing a “Vote Union” button, passing out pro-labor pamphlets, and you run a good risk of being fired.
It’s happening right now, today, in Southern California. A group of trash sorters employed by Republic Services, Inc., in Anaheim, is attempting to unionize. Understandably, none of them would give their name to the reporter doing the story for the Orange County Register because they were terrified of being fired.
Most of Republic’s employees are immigrants, poorly educated. If you were to tell these “poorly educated” men that being fired for union activism, was illegal, they’d laugh in your face. (Just as African Americans would laugh, if you told them racial discrimination didn’t exist because it had been outlawed.)
It’s been said before, and it’s still true. We don’t need new labor laws. What we need is to enforce the ones already on the books. The law clearly says that workers have a legal “right to organize.” Yet, companies routinely break that law.
Some optimistic labor aficionados honestly believed that by electing a Democratic president in 2008, we had a good shot at fixing this mess. Some optimistic labor people believed a Democratic House and Senate would reinvigorate the Wagner Act. By all indications, these people are going to be terribly disappointed.
DAVID MACARAY, a Los Angeles playwright (“Larva Boy,” “Americana”) and writer, was a former union rep. He can be reached at email@example.com