The National Labor Relations Act (NLRA) opens with a set of congressional findings, many of which read as if they were diagnosing our current situation:
The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers ... tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.The seventy-fourth Congress and President Franklin Roosevelt sought to fix this problem "by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection."
The NLRA tried to create a balance between unions and employers that held for decades, even in the face of legislative assaults like the Taft-Hartley Act of 1947, because unions had a mixture of legal and actual power. Since the 1980s, however, increased animosity by employers, exacerbated by the demands of globalization and technological changes, have led to a dramatic decrease in union density in America. The law has proven ill-suited to protect workers, and its weakness has emboldened employers to increasingly violate it. Today, in the middle of a deep economic recession and massive inequality, it is time for policymakers to revisit this problem.
This problem has been evident for decades, and there has been an important debate among those who believe that unions are critical to a functioning democracy with a strong middle class. Few continue to contend that the current legal structure is a well-functioning system that protects workers in organizing and bargaining collectively, or creates a true balance of power between the employee and employer as the National Labor Relations Act originally intended. The debate has centered on whether to reform or scrap the NLRA, and whether legal reform would be able to revive the private sector labor movement when it has shrunk to its lowest level since the nineteenth century, when organizing was essentially illegal.
One of the longest running attempts to reform the current NLRA model is the repeal of Taft-Hartley which was passed in 1947 and described by Nelson Lichtenstein as "a fulcrum upon which the entire New Deal order teetered," that marked the moment when "labor and the left were forced into an increasingly defensive posture." First attempted by President Harry Truman in 1948 after Congress overrode his veto, there has been a bill submitted in almost every modern Congress to repeal certain provisions or the entirety of Taft-Hartley. The Employee Free Choice Act (EFCA) represented the most recent attempt at labor law reform, by allowing card check, interest arbitration for a first contract and increased penalties for unfair labor practices. After what appeared as EFCA's likely passage following President Barack Obama's election, and Democratic control of the House of Representatives and Senate, EFCA died silently, unable to achieve the 60 votes necessary to break a filibuster. Labor advocates were disheartened as EFCA was the fourth serious attempt at labor law reform dating back to President Lyndon Johnson to go down in defeat.
A new approach to reforming labor law is necessary. This approach should not try to refight the battles of the 1940s and 50s, and should not try to change the technical and esoteric (to most Americans) provisions of the NLRA. Rather, it should be a simple and intuitive proposal that matches the simplicity and intuitive right of an employee to work with her fellow employee to have a say in her working conditions. A new approach should focus on the individual rather than the collective, couching the right and the rhetoric in the individual's right to join a labor organization and take part in collective bargaining, rather than engage in a debate over employer versus union power. The goal of any labor law reform must be to empower the individual worker to freely make the choice whether to organize, without employer coercion, and feel safe knowing that if she is discriminated for choosing to attempt to join or organize a union she will have a legal route to being made whole.
As we argue in a new book, Why Labor Organizing Should Be a Civil Right: Rebuilding a Middle-Class Democracy by Enhancing Worker Voice, it is time for a fresh approach: to amend Title VII of the Civil Rights Act to include the right to organize a union. Amending the Civil Rights Act has a variety of benefits on the ground, in the legislature, and in the courts that will be discussed in a subsequent part of this series.
When we outlined the argument in the New York Times, Richard Trumka, the president of the AFL-CIO, endorsed the idea of amending the Civil Rights Act for labor organizing, but some others on the left and right raised questions. We will seek to address these concerns in the next article.
Richard Kahlenberg is a senior fellow at The Century Foundation. He writes primarily about a variety of education issues including primary and secondary education and affirmative action policies in higher education. He is an authority on teachers' unions, private school vouchers, charter schools, turnaround school efforts and inequality in higher education.
Moshe Marvit is a labor and employment discrimination lawyer.
Suggested citation: Richard Kahlenberg & Moshe Marvit, Amending Title VII: Labor Organizing as a Civil Right (Part I), JURIST - Hotline, Apr. 23, 2012, http://jurist.org/hotline/2012/04/kahlenberg-marvit-labor-i.php.
This article was prepared for publication by Jonathan Cohen, the head of JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org