Working America labors under the weakest protections from abusive management in the developed world, by far. We take it as a given that our bosses can fire us for any reason (with a few exceptions like discrimination on the basis of race or gender), or no reason at all – a notion that would shock and appall working people in most advanced economies.
But corporate America doesn't want the very modest protections that do exist in this country to be enforced. Even as companies lay claim to many of the Constitutional rights of citizenship, they want to be held above the rule of law when it comes to their employees.
This desire lays at the heart of a recent barrage of assaults on the National Labor Relations Board (NLRB), a New Deal agency that for over 75 years has been tasked with enforcing the very modest protections for organized workers afforded by the National Labor Relations Act. The agency, according to former NLRB general counsel Fred Feinstein, “has the stated purpose of encouraging private-sector collective bargaining, protecting employees’ right to form a union to improve working conditions and preventing retaliation for exercising these rights.” He adds that passage of the law “helped the U.S. climb out of the Great Depression and encouraged the growth of a vibrant middle class for much of the last century.”
The primary focus of conservative outrage at the NLRB of late has been its complaint against Boeing for locating a new plant in South Carolina as an explicit act of retaliation against its unionized Washington state workers for going on strike – for exercising a right guaranteed by the law.
The company's CEO claimed that he'd “made a rational, legal business decision about the allocation of our capital and the placement of new work within the U.S.” The spin is that the company was simply pursuing its business interests according to “free market” principles, when pasty government bureaucrats intervened. But the truth is very different. Boeing can indeed locate its operations wherever it wants to for any legal reason, including seeking out states with low union rates and cheaper labor costs. What it cannot do is break the law, and that is what is alleged in the case.
As the American Constitution Society (ACS) explained it, “The right to strike is protected by law, and an employer’s retaliating against employees for exercising their legal rights violates the NLRA, the law the NLRB enforces.”
After the charge [against Boeing] was filed, the NLRB’s regional office in Washington investigated the case. That investigation involved taking sworn affidavits from witnesses and collecting other relevant evidence. Boeing had the right to present its evidence during the investigation. The evidence included public statements by Boeing officials – and reported in the Seattle Post Intelligencer Aerospace News and the Seattle Times– that they were angry that Boeing employees in Washington had gone on strike in the past. Boeing officials also said that they would, therefore, move work that was originally going to be done in Washington to a plant in South Carolina. This evidence... supports a finding that Boeing violated § 8(a)(1) and (3) of the NLRA.
Boeing has been the driving force behind the backlash against the NLRB, and the right has been quick to jump on the bandwagon. Sarah Palin, ignoring the fact that we have far fewer protections for workers than any other developed country on the planet, offered what has become an industry-standard talking-point, predicting that “eventually every state will suffer when businesses declare 'enough is enough' with these tactics and decide to relocate in more business-friendly countries.” And during the recent GOP debate in New Hampshire, Newt Gingrich called on Congress to “Immediately...defund the National Labor Relations Board which has gone into South Carolina to punish Boeing, which wants to put 8,000 American jobs in South Carolina.”
Rep. Darrel Issa, R-California, told MSNBC host Joe Scarborough that “[If] the labor union wants to make a suit, make a suit but for the government to spend your tax dollars to pursue seems to be over the top.” Issa was either misinformed about the labor laws in this country, or he was intentionally misleading the show's audience: according to the National Labor Relations Act, unions cannot sue companies for violating the labor laws. Their only recourse is to file a complaint with the NLRB – if it were defunded, union workers would have absolutely no protection whatsoever against illegal practices on the part of employers.
Even the most modest rules that might help working people form unions are under assault today. As labor journalist Mike Elk reported, the NLRB proposed a new rule this week that would simply streamline the union elections process. “Companies seeking to stop union drives often delay union elections by months in order to allow more time for extended anti-union intimidation... campaigns,” he wrote. Those extended campaigns often involve firing” organizers – in a 2007 study, economists John Schmitt and Ben Zipperer found that “about 1 in 5 union organizers or activists can expect to be fired as a result of their union organizing.” According to John-Paul Ferguson of the Stanford Business School, under duress, 35 percent of petitions filed by workers to hold a union election don't result in one being held (PDF).
A study of employer activities during NLRB administered union campaigns between 1999-2003 by Cornell University's Kate Bronfenbrenner (PDF) found that it was “standard practice for workers to be subjected to threats, interrogation, harassment, surveillance, and retaliation for union activity.”
63%of employers interrogate workers in mandatory one-on-one meetings with their supervisors about support for the union;
54% of employers threaten workers in such meetings;
57% of employers threaten to close the worksite;
47% of employers threaten to cut wages and benefits; and
34% of employers fire workers.
Some of that is what labor organizers say happened during an organizing campaign among Target employees at a New York outlet last week. The New York Times reported that according to the UFCW local, workers at the Valley Stream store had endured a “campaign of threats, intimidation and illegal acts by Target management.” UFCW has called on the NLRB to investigate the claim and call for a new election, enforcing a law that would be unenforced entirely were the agency defunded.
“The rule would also crack down on frivolous lawsuits companies often file to delay union elections,” wrote Elk. “Instead of allowing companies to challenge who is eligible to vote in a union representation election before it occurs, the rule would delay most voter eligibility appeals until after the election.” These are obviously rather modest rule-changes, but they set the Corporate right aflame. Rep. John Kline, R-Minnesota, chair of the House Labor Committee, blasted the proposal and accused the NLRB of advancing a “reckless,” and “job-destroying agenda.” “Not only will this misguided proposal to expedite union elections undermine an employer’s lawful right to communicate with his or her employees,” he fumed, “it will cripple a worker’s ability to make an informed decision.”
Labor expects a fierce fight over the modest rule. That's in keeping with a complete rejection of the very notion that corporations should be held accountable to their workers in any way. Consider a report by the New York Times' Steven Greenhouse this week about Wal-Mart's battle against a small fine levied by the Occupational Safety and Health Administration. “Wal-Mart Stores has spent a year and more than a million dollars in legal fees battling a $7,000 fine that federal safety officials assessed after shoppers trampled a Wal-Mart employee to death at a store on Long Island on the day after Thanksgiving in 2008.” The mystery, he adds, “is why Wal-Mart is fighting so hard against such a modest fine.” The answer is that the company, like so much of corporate America, rejects any rule or regulation that protects its employees out of hand – it's fighting the principle, not the fine.
Conservatives are wont to cage their policies in airy language about “freedom” and “liberty.” So consider this: in 2005, 44 percent of American workers said they “would vote for union representation if they could.” That year, about 7 percent of private-sector workers belonged to one. As the Economic Policy Institute noted, “The gap between what workers want and obtain in representation is greater in the United States than in any other advanced English-speaking country. About one-half the nonunion workforce in the United States desires union representation but does not have it, a union representation gap far larger than the roughly 25 percent to 35 percent gap in the other countries.”
We have the largest gap because the United States has the weakest protections for workers in the developed world, and firms run roughshod over their rights to organize on a daily basis – according to labor journalist Art Levine, union-busting “has become a multibillion-dollar industry encompassing more than 2,500 lawyers and consultants.” Much of that effort is legal, but much of it violates the National Labor Relations Act.
That a sizable share of corporate America's lackeys in government and the media now hold the view that American companies should be able to violate our labor laws with impunity is a tragic reflection of just how far we've drifted in the direction of full-blown corporatism.