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This Congressman Wants To Give You The Right To Sue Union Busters

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KEITH ELLISON
Rep. Keith Ellison, D-Minn., one of only two Muslim's in Congress, testifies before the House Homeland Security Committee on the extent of the radicalization of American Muslims, on Capitol Hill in Washington, Thursday, March 10, 2011. (AP Photo/Alex Brandon) | ASSOCIATED PRESS

WASHINGTON -- If your boss tramples on your right to organize in the workplace, Rep. Keith Ellison (D-Minn.) believes you should be able to sue for damages in federal court. He plans to introduce a bill in Congress next week that would grant you that very right.

"Union busters are on the march and are aggressive," Ellison, a co-chair of the Congressional Progressive Caucus, told HuffPost. "I think the [legal] options that are offered by the current process are not adequate."

Under U.S. labor law, workers have relatively limited recourse in the face of union busting. When workers are fired for union organizing, they can file what's known as an unfair labor practice charge with the National Labor Relations Board, the agency that enforces labor law. If the board pursues the charge against the employer, the worker can win back pay and reinstatement, but not the sort of damages associated with, say, sexual discrimination in the workplace.

As he explained it, Ellison's plan, first reported by MSNBC, would amend the National Labor Relations Act to make labor organizing something akin to a federal civil right. Within 180 days of filing a charge with the labor board, the worker would have the right to file a claim against the employer in federal court. There, the worker would be entitled not only to damages, but also attorney fees, drastically increasing the potential liability of an employer who runs afoul of the law.

That, Ellison said, is the underlying idea of the legislation -- to create a greater disincentive for companies to punish pro-union workers.

"If you have to worry about getting sued and paying real damages, and perhaps going through a discovery process, which might unearth some ugly tactics, then maybe you will rethink retaliating against and firing workers," Ellison said.

Ellison said his proposal's lead backers will include Reps. John Lewis (D-Ga.), John Conyers (D-Mich.) and Jerrold Nadler (D-N.Y.). But because the proposal would significantly change labor law and serve as a boon to the thinning ranks of organized labor, it would have approximately zero chance of passing the GOP-controlled House of Representatives. The U.S. Chamber of Commerce didn't respond to a request for comment on the proposal, though it could be expected to lobby hard against the measure -- if it ever got close to the House floor.

Despite its long-shot odds in the current Congress, the bill could be reintroduced in subsequent sessions and may prompt a discussion about U.S. labor law and the need for it to protect workers.

That's the hope of Moshe Marvit, an attorney and fellow at the Century Foundation, who in 2012 co-authored a book with Richard D. Kahlenberg and Thomas Geoghegan called Why Labor Organizing Should Be a Civil Right.

"I'm just hoping it's one of those things that keeps getting reintroduced and spurs a conversation," Marvit said of the bill. "These things take a long time. I'm hoping it changes the nature of how people think about labor rights."

Ellison said Why Labor Organizing Should Be a Civil Right served as the foundation for his proposal.

The book argues that ossified labor law has contributed to the shrinking union density of the U.S., where less than 7 percent of private-sector workers now belong to a union. Making organizing a protection under the Civil Rights Act, the authors write, would not only deter union-busting, but change the way Americans understand workplace rights.

Ellison said his bill would amend the National Labor Relations Act so as not to "open up" more ideological fights surrounding the Civil Rights Act. But the measure would grant workers a recourse similar to that under Title VII of the Civil Rights Act, which forbids employers from discriminating based on gender, race and religion.

Marvit said that granting workers a private right to sue may have an additional consequence: Encouraging more attorneys to specialize in collective bargaining law on behalf of workers, potentially leading to more such lawyers assuming judgeships.

"Right now if you're an attorney [in this area], unless you work for a union, there's no work for you," Marvit said. "No worker is going to go out and hire an attorney for an NLRB case." As a consequence, he added, "the number of judges who have experience in this area is really slim."

The NLRB itself has been a political flashpoint during the Obama years. GOP leaders and business groups have pilloried the decisions of the board's Democratic majority as being too union-friendly. Unions, meanwhile, say the board is simply carrying out its mission, which is to protect workers' rights and investigate unfair labor practices.

Bill Samuel, the AFL-CIO's director of government affairs, said that the NLRB serves "a very useful function," but in the end its powers are limited. The labor federation supports Ellison's proposal and consulted with his office as it was crafted.

"The protections are really completely inadequate," Samuel said of current law. "They haven't kept pace with the increasing viciousness of anti-union efforts. It can take years for a worker who's been illegally discharged to get his or her job back. The only penalty is a portion of the back wages, offset by what the worker earned, and reinstatement, which is not always a good option for someone who's moved on with their lives."

Drawing a line between falling union membership and stagnating wages, Ellison said he believed the proposal could ultimately help close the income gap.

"Can you credibly do something about income inequality without strengthening the right to organize?" Ellison said. "No way."

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