The Bill of Rights has never been applied in the workplace, where employers are empowered to maintain near-absolute control. With our constitutional rights shredded by our employers, our rights to organize into unions are also ignored by bosses. Our freedom to be protected from unreasonable searches and seizures ends at the entrance to the workplace. Our freedoms of speech and assembly are virtually nonexistent while at work — unless you have a union.
The National Labor Relations Act (NLRA), passed in 1935, was the closest labor got to a “bill of rights.” The NLRA provided labor for the first time the legal right to organize, to bargain, and to strike without interference from the employer. For the first time employers were required to recognize and bargain with a union of the workers’ choice.
In response to five million workers striking in 1946 — mass action intended to force employers to share their profits with workers who had gone through years of hardship during World War II — a reactionary Congress voted to amend the NLRA with the 1947 Taft-Hartley Act. The law took away the right of unions to engage in secondary boycotts, made closed union shops illegal, allowed states to pass “right-to-work” laws, allowed the President to interfere in strikes, and gave employers more tools to stop workers from organizing.
The Taft-Hartley Act, passed with the votes of Southern Democrats, was in part a consequence of the failure of the labor movement to organize the South. The South has historically had low union representation; the proportion of workers represented by a union in Southern states is less than half of that outside the South. This lack of union rights disproportionately affects black workers, as at least 55-60% of all black people in the U.S. live in the South. This is a legacy of the Confederacy, and the legislative project of Jim Crow that followed.
Under Jim Crow, state legislatures sought to formalize white supremacy by targeting and disempowering Black workers, particularly in the public sector, by advancing a blitz of anti-union legislation. The South led the way in passing right-to-work legislation in the 1940s and 1950s and in stripping public-sector workers of collective bargaining rights.
A second grievous body blow to labor rights happened in 1981 with Ronald Reagan’s busting of the air traffic controller’s union (PATCO). A heretofore little-noticed judicial ruling allowing for the “permanent replacement” of strikers was increasingly used by bosses to de-unionize workplaces and drive down wages and working conditions. The threat of permanent replacement, high unemployment, and the shrinking number of unionized jobs led to a precipitous decline in the number of strikes. Since militant action is the basis of all collective power in the workplace, this created a self-sustaining downward spiral in both unionization and worker power that has yet to be completely arrested.
In the last decade, employers have imported Jim Crow-era legislation from the South to the rest of the country. They have passed right-to-work legislation in states with deep union history like Michigan and Wisconsin, stripped collective bargaining rights from public-sector workers in Wisconsin and Iowa, and established a dangerous Supreme Court precedent in Janus vs AFSCME, which imposed right-to-work conditions on the public sector nationwide.
Today, employers brazenly violate the law and victimize working people who dare to challenge their complete control. Almost 10% of workers who engage in organizing are fired by their employers, amounting to tens of thousands every year. In 92% of union organizing campaigns, workers are subjected to the psychological warfare of captive audience meetings, such as we saw in UE’s recent campaign at Refresco. Of those workplaces which successfully manage to organize in spite of employer-run terror campaigns, only half will obtain a first union contract. The ranks are cut in half yet again, as only half of these units in turn win second contracts. The percentage of unionized workers in the U.S. declined from 24% in 1979 to 10.8% in 2020, with only about six percent in the private sector. These levels are the lowest since before the great organizing drives of the 1930s. In other industrial countries, union density is many times higher.
In the public sector, workers in some states are prohibited from bargaining collectively. North Carolina and South Carolina have blanket statutes that prohibit collective bargaining for all public-sector employees. Even where collective bargaining is comprehensive, public workers are usually banned from striking, and are instead shunted into legalistic binding arbitration procedures. This has had a negative effect on both the militancy which allowed mass organization of the public sector in the 1970s, and the ability of members to coordinate against assaults on their working conditions and collective bargaining rights.
President Joe Biden has made some limited improvements regarding labor law since coming into office. Within less than an hour of being inaugurated he began the process of removing odious former General Counsel Peter Robb—a corporate consultant who actively worked with Ronald Reagan to crush PATCO. Pending Senate confirmation, the NLRB as a whole will have a pro-union majority in short order as well, which will likely help to quickly undo Trump-era precedents on issues ranging from joint employer status to “independent contractors” to election rules. However, these advances should be taken into context. The precedent has been set many times now that the incremental changes to labor rights won under Democratic presidents are undone under the next Republican president. And anti-labor Supreme Court cases like Janus v. AFSCME remain in full force with no prospect of reversal.
Given all executive orders and favorable judicial rulings are fleeting, we must look to legislative action if we wish to achieve changes which will outlast the current administration. The most comprehensive labor law proposal before the current Congress is the PRO Act (H.R.842). The bill would rein in most employer lawbreaking around organizing a union and negotiating a first contract, with punitive fines for labor law violations, a streamlined election procedure, making it harder for an employer to interfere in the election process, banning captive audience meetings, and making abuse of the terms “supervisor” and “independent contractor” by employers much harder. The bill also undoes many critical elements of Taft-Hartley, essentially ending the enforcement of “right-to-work” laws and re-legalizing secondary strikes. Notably it also would make the permanent replacement of economic strikers illegal, once again allowing for the use of the strike as a regular tactic to achieve a measure of justice in the workplace. UE locals have been actively supporting the passage of the PRO Act by engaging in delegation marches, mass phone call actions and letter-writing campaigns to their congressional representatives.
Now is the time for a law that protects workers and grants all rights and freedoms under the Constitution. In order to really safeguard workers, the right to associate — the right of working people to have the ability to say under what conditions they will or will not labor — must be enshrined in the U.S. Constitution. Workers whose rights were fully protected under the Constitution would be free to assemble, speak and associate anywhere and at all times, to organize without employer intervention, to bargain collectively, to strike, to boycott, or to refuse to handle goods.
THEREFORE, BE IT RESOLVED THAT THIS 77th UE CONVENTION:
- Calls on Congress to:
- Amend the Constitution to include worker rights;
- In the meantime pass the PRO Act, and any other legislation giving workers the same constitutional rights to organize without restriction or limitation in the workplace that we enjoy outside the workplace, including substantial penalties for employers who violate these rights;
- Repeal the Taft-Hartley Act;
- Urges UE locals to:
- Challenge state laws that restrict the rights of workers in the public and private sectors to organize, bargain, strike, and function freely;
- Build coalitions with unions and the community to expand the rights of workers;
- Meet with their local congressional delegation to get them to sign on to and actively support the PRO Act;
- Include as part of their political action work a demand for the restoration of the right to strike for private and public workers without retaliation or replacement.