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Expanding Title VII to Cover Union Organizing

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In 2010 Philadelphia's first and only casino opened in North Philadelphia's Fishtown neighborhood, pressed against the shore of the Delaware River. During the protracted wrangling over the construction of Sugarhouse, the owners swore that their business would create hundreds of good, stable jobs in a part of town known for rusting factories and chronic joblessness.

Cory Ballard, a 25-year-old resident of Strawberry Mansion, a nearby neighborhood, and single father of two sons, got a job as a player's services representative, a position he describes as the "frontlines of the casino." He was well-liked by coworkers and managers both.

The latter half of that equation quickly changed when Ballard and many of his coworkers signed a petition in support of a union-organizing drive with UNITE HERE Local 54, which represents casino workers in the region.

He wasn't initially a union supporter, but management's tactics seemed fishy. "They had these anti-union meetings, to tell us why we don't need a union, but they never give the opposing side, so I sought my own information and decided the union was best for me," Ballard told reporters outside the Sugarhouse offices last Tuesday.

Management's attitude toward Ballard quickly soured after they learned of his pro-union stance and he was soon asked to resign after the company alleged he gave free slot play to someone he knew and claimed he would do jail time if he did not resign. He won his job back soon afterwards (with the help of coworkers who marched into management's office to demand he return to work), and Ballard returned with a union button. He was fired at the beginning of 2012 for a minor error, one that multiple employees made, and which he immediately reported to his boss. Ballard was the only one terminated.

"[This] is typical of what happens in union organizing drives: Even though the National Labor Relations Act makes it illegal to discriminate against someone based on whether or not they support a union," says Richard Kahlenberg, co-author with Moshe Marvit of the new book, Why Labor Organizing Should be a Civil Right. "[Companies] don't want to have to share productivity gains with their employees, they'd rather keep it for management and the stockholders. Firms... want to send a message to employees that they will be fired if they get involved in union organizing."

At a recent action in his support, Ballard presented Sugarhouse's management with a petition for his reinstatement signed by two-thirds of his coworkers in the player's services department. A group of his former colleagues and a local minister marched into the casino's executive offices to present his former bosses with the signatures. "Cory was one of the best coworkers we had," one current Sugarhouse employee told a manager. "It's outrageous and wrong. We know that it could happen to any one of us."

Six other strong union supporters, who have taken leadership positions on the organizing committee have been fired since the campaign went public, although never explicitly for their union support. The casino's media representatives say that the company "does not comment on individual personnel matters."

"It is unjust and unlawful for them to terminate me for my union support," Ballard says. "This is my federal right to express myself and decide I want a union. But people are actually afraid to stand up and speak because they are afraid this could happen to them."

And that's the point. Contemporary American businesses show little compunction at breaking the central pillar of American labor relations, the National Labor Relations Act (NLRA), and firing workers who express a desire for representation. Terminate a few prominent union supports, let fear keep the rest of the workforce in check, and let the vast majority of profits flow to management and shareholders, instead of to the workers who create them. A recent study by Kate Bronfennbrenner of Cornell University's School of Industrial and Labor Relations, shows that employees are fired in more than one in three union organizing drives. And that may be an underestimate. By Bronfenbrenner's accounting less than half of unfair labor practices (firings, wage cuts, harassment, and surveillance) are reported, often because the remaining employees fear further reprisals.

Employers ignore the NLRA with impunity because labor cases are arbitrated under a substantially weaker legal regime than the rest of American law. There is no jury and pre-trial discovery is not allowed, meaning the prosecutors have to solely rely on publicly available information, documents the company offers, and witness accounts, which probably includes testimony from (nervous) workers still employed at the firm. No recourse is allowed outside the NLRB and claims cannot be taken up in federal court.

The process can take up to three to five years and, in 2009, the fines paid by lawbreaking firms only averaged $5,149 per employee. (Employees terminated for organizing are required to look for work and wages are then deducted from the NLRB settlement.) Compare that paltry sum to the wages and benefits the employers would have to pay to the whole workforce if the union won. The incentives are entirely in favor of breaking the law.

It is for these reasons that Kahlenberg and Marvit argue that Title VII of the Civil Rights Act should be extended to cover labor organizing. In Why Labor Organizing Should be a Civil Right (available as of April 1), the authors claim it is time to change both the broken legal system that ineffectually "protects" American workers like Ballard, and the tactics of reformers who want to change it.

Kahlenberg and Marvit first argue the legal case. Title VII provides a powerful defense against discrimination based on race, sex, age, and religion (among others). Under the Civil Rights Act the employee can opt out of the Equal Employment Opportunity Commission process (close to the civil rights equivalent of the NLRB) and take the case to a federal court, before a jury, where they are provided with the means to retain a lawyer if they do not have the necessary funds.

Such suits are not an easy win. The opponent is almost always a business with substantial legal and monetary resources. But the incentives are not one-sided: Employees stand to win much more than $5,000. As Kahlenberg and Marvit note, "a plaintiff may be awarded a variety of remedies, including back pay (with interest), reinstatement or front pay, equitable relief, compensatory damages, and punitive damages." Lost overtime, health and pension benefits are included, as are "money damages to cover emotional pain, suffering, inconvenience, mental anguish." These cases also make the right of "discovery" available, opening up internal documents and data to the court and the public--a prospect many companies dread. In short, firing workers would no longer be a painless way to stamp out a union organizing drive.

Kahlenberg and Marvit lay out their argument clearly and concisely. The legislative proposal is simple: "The amendment of the Civil Rights Act to include protection for an employee to join or not join a union." Their idea is sound, and while it only covers one of the numerous issues that beset American workers, the protections it offers are well worth fighting for. The book's actual text is a mere 113 pages, even though it contains chapters that cover everything from an overview of international labor laws to a treatise on the importance of organized labor in a functioning democracy.

But America's political system is the Achilles heel of any attempt to change our grotesquely inadequate labor laws. As the authors note, four different Democratic presidents, with substantial congressional majorities, have failed to pass various types of labor law reform. Even Lyndon Johnson and the famed 89th Congress, which passed Medicare, Medicaid and the Voting Rights Act, proved unable to enact pro-labor legislation that would have banned so-called "right-to-work" laws, which enable workers to use a union's services without paying dues, quickly sapping its resources.

The central problem, according to the authors, is that labor law reform efforts have been too wrapped up in the complexities of the NLRA, an isolating context that sets labor and business up as two opposing special interest groups. By contrast, adjusting the Civil Rights Act emphasizes and protects the individual worker's right to join a union, theoretically negating the specter of a brutish clash between large institutions.

"This effort goes to a question everyone can understand: Should you be fired for trying to join a union?" Kahlenberg told AlterNet. "We can elevate this discussion to a higher plane and take it out of the special interest box and put it into the more morally elevated notion of vindicating individual civil rights."

This fresh focus could expand the appeal of reform. Everyone knows about the Civil Right Act and even most conservatives support it. (The book has already received verbal support and blurbs from influential labor and civil rights groups, including the NAACP.) The authors understand some political hurdles -- Republicans and big business will always oppose anything like this, so reformers must wait for another sweeping Democratic victory -- but they may underestimate other institutional barriers. All of the previous reform efforts were shattered on the battlements of the anti-democratic Senate (every proposal passed the House), which over-represents thinly populated, anti-labor states. Today, with unions weaker than ever before, and an influential wing of the Democratic Party shot through with anti-labor, pro-business ideology, it seems doubtful that even a carefully calibrated proposal like this could get through a Democratic-dominated Congress.

The question is likely to be academic for a long while. Complete Democratic control of Washington historically lasts for little more than one congressional session every 10 years. But when such a majority comes again, Kahlenberg and Marvit's plan will be preferable to another attempt to tinker with the current rusted machinery. As the case of Cory Ballard and Sugarhouse Casino shows, it is time to try something new

This article was originally published on Alternet.

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