03/08/2012 05:34 pm ET Updated May 08, 2012

Think Again: Labor and the 'Civil Right' to Organize

In an in-depth and deeply depressing study of the state of American unions written for the German Social Democratic foundation Friedrich-Ebert-Stiftung, author Harold Meyerson writes, "After decades during which their numerical strength has slowly but steadily declined, U.S. trade unions are now facing an unprecedented assault from a radicalized Republican right. Legislation is advancing to strip collective-bargaining rights or membership from unions."

He adds, "In the America where WalMart was the largest employer, the nonunion retailer pays its employees so little that they are compelled to shop at WalMart. The evisceration of the American middle class -- the decently paid part of its working class in particular -- has finally become an agreed-to fact among America's chattering classes."

There are, of course, many reasons for the declining strength of labor unions, but one that is often overlooked is the rewriting of labor law over the past few decades. Writing in In These Times, journalist Josh Eidelson questions why political groups have every right to boycott advertisers and funders who support causes of which they disapprove but labor unions don't have that same right to act against supporters of the employers who seek to break their strike.

The outlawing -- in the 1947 Taft-Hartley amendments to the National Labor Relations Act -- of the so-called secondary boycott by unions against suppliers and other affiliated companies tied to an initial strike target not only robbed the labor union of an effective weapon against recalcitrant employers but also of a powerful means of building lines of solidarity across industries that would strengthen them for the next round of bargaining. These laws actually prevent unions from exercising the same free speech rights that almost everyone else in America enjoys.

University of Texas School of Law professor Jack Getman, in his book Restoring the Power of Unions, says the Supreme Court specifically allows right-wing lunatics to hold signs reading "God Hates Fags" and "Thank God for Dead Soldiers" at the funerals of American soldiers but will not allow workers to hold signs that tell the truth about a certain company's labor practices if the company can be defined as the target of a secondary boycott.

Given laws like these -- to say nothing of the untold riches the right has spent stacking the courts with antilabor judges and demonizing anyone in public life who sticks up for unions -- it is no wonder that organized labor finds itself on the ropes in almost every respect these days. From its fall from roughly one-in-three workers in private industry in the 1950s to less than 8 percent of private workers today, labor has not only found itself buffeted by global economic winds and relentless political attack but also been forced to fight back in legal handcuffs, arms tied behind its metaphorical back.

It is a good time, therefore, for scholars Richard D. Kahlenberg and Moshe Z. Marvit to ask whether Americans have, or ought to have, a "civil right to organize." In a New York Times op-ed, they note, "From the 1940s to the 1970s, organized labor helped build a middle-class democracy in the United States. The postwar period was as successful as it was because of unions, which helped enact progressive social legislation from the Civil Rights Act to Medicare."

The authors first summarize the typical conservative arguments for the decline of unions: their alleged outdatedness in the currently global economy -- something that is belied by unions' strength in other nations such as Germany whose economies frequently outperform our own -- coupled with minimal protections against certain abuses that have been written into law. Then the authors identify "the greatest impediment to unions" as "weak and anachronistic labor laws":

It's time to add the right to organize a labor union, without employer discrimination, to Title VII of the Civil Rights Act, because that right is as fundamental as freedom from discrimination in employment and education. This would enshrine what the Rev. Dr. Martin Luther King Jr. observed in 1961 at an A.F.L.-C.I.O. convention: "The two most dynamic and cohesive liberal forces in the country are the labor movement and the Negro freedom movement. Together, we can be architects of democracy.

The authors then make a constitutional argument in favor of their reading of this right. Building on Dr. King's equation of the denial of equal rights on the basis of color to those on the basis of organizing, they propose using the Civil Rights Act of 1964 to make:

... disciplining or firing an employee "on the basis of seeking union membership" illegal just as it now is on the basis of race, color, sex, religion and national origin. It would expand the fundamental right of association encapsulated in the First Amendment and apply it to the private workplace just as the rights of equality articulated in the 14th Amendment have been so applied.

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