Supreme Court, Labor Law and the Deskilling of Teaching

The strike is labor's most powerful weapon. It is the most direct and forceful way to pressure employers to cede to workers’ demands. Strikes have become increasingly rare over the past few decades, mostly because of unions’ increasingly dependence on political action (e.g., lobbying, voting as a block, financing campaigns). However, there have been several laws and Supreme Court decisions that have limited when and how strikes could be undertaken or that increased the risks to workers.

In 1938, the Supreme Court ruled in NLRB v. Mackay Radio (NLRB is the National Labor Relations Board) that employers had the legal right to permanently “replace” striking workers. According to a recent piece in Truth Out, there was nothing in the National Labor Relations Act (NLRA) of 1934 (nor any other law) that gave employers this right. Rather, the court just figured that it was a right of bosses to can their workers when they were troublesome.

In reality, the NLRA was written to reduce labor unrest and aid employers in their quest for profits by limiting when and how strikes could occur and providing legal recourse for employers when they created too much disruption to profits. The Supreme Court merely interpreted the law in way that was consistent with that of the ruling class and that was favorable to their businesses.

Regardless of the rationale, this right of employers severely restricts workers’ right to strike under NLRA. The threat of being permanently replaced makes striking a very risky endeavor, particularly for the majority of workers who depend on their income to support their families and themselves. This threat is often sufficient to make workers think twice and choose not to strike in the first place.

However, the threat of replacing workers is only credible when two conditions can be met: replacement workers must be available and ready to work and the striking workers are not able or willing to stop them. The latter condition has typically been met through the use of force. The first condition occurs automatically for so-called unskilled work during times of high unemployment. Pretty much anyone can work a cash register, so firing all cashiers at a grocery chain is not a big risk for employers. In contrast, for “skilled” workers, like teachers, the threat is much less credible. So long as teachers are required to have a valid credential, which requires a bachelor’s degree, plus a year or two of professional training, school districts cannot permanently replace striking teachers and still keep the schools operating.

The employing class is working on a solution to this dilemma (despite the fact that teachers, like most workers, have become increasingly reluctant to strike). By deskilling the teaching profession, free market education reformers are reducing the need for highly trained, credentialed teachers. For example, pretty much anyone can proctor a standardized test or monitor a room full of children seated at computers engaged in online curriculum or distance learning. The more schools utilize such methods, the easier it becomes to replace relatively well paid, unionized professionals with low paid, non-unionized workers.

Crippling the Right to Organize?

Huck/Konopacki Labor Cartoons

In an Op-Ed in the New York Times on December 15, William Gould (Chairman of the National Labor Relations Board, 1994-1998) argued that American workers will lose their right to be represented by a union on New Year’s Day because the National Labor Relations Board will lose its quorum and therefore its ability to decide cases.

The Sky Is Not Falling On New Year’s Day (It’s Been Falling All Along)

In reality, the NLRB lost its quorum in 2008, when three of its five seats became vacant and Democrats and Republicans repeatedly blocked each other’s nominations. In March 2010, Obama made 2 recess appointments, which temporarily gave the body feet again, but those will expire at the end of the year. Thus, the NLRB has been crippled for years, with a brief and impotent respite in 2010. Its status in 2012, therefore, will be more of the same.

Without a functioning NLRB, Gould argues that employers will be able to interfere with union elections. They won’t have to recognize unions that have been supported by majority votes and they will be able to illegally fire workers and without being compelled to reinstate back pay.

All of these are terrible for workers, of course. The problem is that bosses have been doing these things for the past 70 years (particularly during the last 40 years, when employers started to exploit more loopholes in the National Labor Relations Act), even with a functioning NLRB, which exists as a sort of “supreme court” for labor conflicts. Like the Supreme Court, the NLRB has been subject to the same fluctuations and whims of presidential politics and has often ruled against the interests of workers. Even when “pro-union” officials have served on the NLRB, the board has functioned primarily to ensure that private business is allowed to operate with as few constraints as possible in their pursuit of profits. That is to say that even when it has forced employers to provide back pay or accept the results of a union election, the employers were still permitted to underpay and overwork their employees, while extracting huge profits from their labor.

Huck/Konopacki Labor Cartoons

 A Union Is Only As Strong As Its Membership (Not Its National Laws)

The NLRB came into existence in 1935 with the passage of the Wagner Act, which came in response to years of labor unrest, including several major General Strikes in 1934 (e.g., San Francisco Waterfront, Minneapolis Teamsters, New England Textile workers, Toledo Auto-Lite) that left many workers dead and hundreds injured.

The Wagner Act and the NLRB were designed as bones to be tossed to the unions to make them more quiescent. The labor unrest, particularly the General Strikes, came at great cost to capital and the capitalists recognized that making a few small concessions, like allowing the right to organize and collectively bargain, not only would keep their employees on the job and making profits for them, but could also be used to manipulate union leadership and get them to be more compliant partners. Unions, too, would have new rules they would be expected to follow. Strikes could occur, but only after certain hoops had been jumped through. Arbitration, mediation, cooling off periods, fact-finding, are all ways to take the wind out of workers’ sails and chill their tempers, while keeping them in the factories making widgets for the bosses.

The Wagner Act and the new NLRB did give labor many new rights and privileges, but in the long-term it also took the teeth out of their movement. Admittedly, there was an upsurge in strikes and union organizing immediately after the passage of the act, but this subsided as the bosses learned how to manipulate the new laws and labor leaders were coopted. Even so, there were few General Strikes after the passage of the Wagner Act, with the Oakland General Strike of 1946 being the only notable exception.

Part of the problem was the unions themselves, which by this point were almost entirely oriented toward the self-interest of their own membership, rather than the interests of the working class as a whole, and a general acceptance of the existing social order. That is to say they accepted the right of a tiny minority of the population to maintain a monopoly on wealth and political power, as well as the inequality and privation that resulted. Indeed, they saw their bosses not as oppressors, but as benefactors whose existence was required in order for them to receive a paycheck, even if that paycheck was barely enough to pay the bills. This was in marked contrast to the perspective of revolutionary unions like the Industrial Workers of the World, who not only fought for short-term improvements in pay and working conditions, but for the long-term abolition of the wage system and bosses.

While there were numerous strike waves after the passage of the Wagner Act, particularly in the 1940s and 50s, unions began to use this tactic less and less, focusing more on political action (i.e., getting “their” guys elected to public office) and legal action (i.e., getting the NLRB to rule in their favor). This approach gave the bosses the clear advantage. They could do whatever they wanted in the workplace and then hope (or lobby) for a favorable ruling by the NLRB, keeping profits high and workers’ income low in the interim. They have far more money than the unions, which gives them the clear advantage in terms of getting their guys elected to office and in terms of stacking the NLRB in their favor. Furthermore, regardless of who is in office, the political and legal systems are both designed to favor capital over labor.

While political and legal actions are indirect and fickle means to achieve workers’ interests, direct action (e.g., strikes, boycotts, slow-downs, sabotage) places direct pressure on the bosses and is much more effective at achieving workers’ demands. It directly empowers workers, instead of leaving them at the mercy of political middlemen and bureaucrats. It reminds the ruling elite that their ability to rule is tenuous and not assured.

Prior to the Wagner Act, there were still unions and successful strikes. Workers could not count on the courts or governmental bodies to defend their interests, so they relied much more heavily on direct action. Labor can still do this and, in fact, has no other choice. Even with “pro-labor” representatives on the NLRB, labor had been steadily losing ground over the past 40 years. This was due in large part to labor’s unwillingness to emphasize organizing and direct action and its overemphasis of union resources on political and legal action, generally at the expense of organizing. With an eviscerated or nonexistent NLRB, perhaps unions will recognize this truth, and focus once again on their one true strength: their ability to withhold their labor.

ILWU Shuts Down Tacoma and Seattle Ports, Smashes Longview Terminal

In response to police violence and employer intransigence, the International Longshore and Warehouse Union (ILWU) shut down the ports of Seattle and Tacoma, WA yesterday, the New York Times reported this morning. The ILWU has been in a year-long struggle at the new $200 million EGT Terminal in Longview, WA, where the employer (EGT) has been hiring non-union workers in violation of the ILWU contract. Earlier this week, union members blockaded trains from entering the port and were assaulted by police armed with rifles and rubber bullets, pepper spray and clubs. Many were arrested and injured.

Yesterday, around 500 longshoremen stormed the new terminal in Longview with baseball bats, smashing windows, damaging rail cars and dumping tons of grain from the cars, while over 1,000 more shut down the ports of Seattle and Tacoma by staying home from work (see the New York Times article). Both actions appeared to be wildcat actions, as the ILWU claimed they had not authorized them.

EGT, a joint venture between U.S., South Korean and Japanese companies, not surprisingly, condemned the actions, accusing the ILWU of criminal activity. However, no union members physically hurt anyone and their actions came in response to police violence against nonviolent demonstrators that did injure people, including women and children.

When capital is threatened, it is considered acceptable and necessary to use violence against workers, even when they are engaged in peaceful and nonviolent protest. However, it is considered unacceptable for workers to defend themselves or their working conditions in any way, particularly if it impinges on bosses’ ability to maximize profits and especially if it includes vandalism or sabotage even when it does not result in any physical injuries.

Judge Ronald Leighton of United States District Court in Tacoma expanded the existing restraining order to block all longshoremen in Washington from shutting down ports. (The previous restraining order only applied to the Longview local).

The original restraining order was issued on behalf of the National Labor Relations Board ostensibly because the ILWU was engaged in “unfair” labor practices by “improperly” harassing scabs. However, workers cannot allow the courts or the government to dictate how to protest their exploitation and expect to be successful. Also, one must wonder what kind of harassment (if any) the government would consider proper and allow?

Judge Leighton, who issued the original restraining order, said there was a peaceful way to protest. “It requires some restraint,” he said. “Your clients have none of that.” He added that they must also obey local laws (quoted from the New York Times article).

Yet the train blockade was both peaceful and nonviolent until the police came in with guns, pepper spray and clubs.

More importantly, labor cannot and should be limited to simply protesting, which is essentially just organized complaining. Rather, workers achieve success in struggles with their employers by halting profits through job actions like strikes, blockades, boycotts, slowdowns, working-to-rule, and sabotage.

The requirement to obey laws is absurd. The laws were written and are enforced primarily to protect private property and capital. The law overwhelming favors the wealthy and the bosses over the interests of working people. Laws are routinely written, interpreted and rewritten specifically to limit working peoples’ ability to protest, resist and fight their exploitation and oppression. It is completely justified and necessary to disregard and resist laws that are unjust or that harm us.

ILWU Chief Arrested, Military Force Threatened

Militias Battling Striking Workers, Great Upheaval, 1877

Bob McEllrath, president of the ILWU (International Longshore and Warehouse Union) was arrested this week at a protest in Vancouver, Washington, along with 18 other ILWU members. ILWU members protested his arrest and quickly secured his release. However, in the process, authorities threatened to call in the army next time, according to the ITF website.

The ILWU was protesting the hiring of non-union workers at the port of Longview, in violation of the ILWU contract with the port authority. Union members blockaded trains headed for the port. Riot police attacked the nonviolent demonstrators with pepper spray and clubs, including women and children, injuring many. The police also carried rifles loaded with rubber bullets. Despite the attack, protesters held their ground forcing the cops and trains to temporarily back off. At least one train eventually did make its way through, according to The Daily News Online.

Unlike the majority of unions in the U.S., the ILWU is still willing to defend its members’ interests with militant actions like strikes and blockades, even at the risk of getting arrested or physically assaulted. They are also willing to confront the federal government, which issued an injunction against blocking shipments to and from the port through the National Labor Relations Board (NLRB), according to the The Daily News Online article.

Their willingness to violate the law in order to defend their members’ interests is not only courageous, but key to winning this and future labor battles. The NLRB is stacked in favor of business interests and will generally rule against labor. Even the notion of “cooling” off periods, which do not specifically preclude strikes but delay them, works in the interests of the bosses, as it diffuses anger and organizing momentum and gives the bosses and authorities more time to figure out how best to quash the strike.

The general trend toward banning strikes by teachers and other public sector workers, likewise, must be resisted. Regardless of court orders and legislation, if workers’ rights and living standards are under attack, they can and should take job actions. There was a time when unions were not legal and ALL strikes and job actions were therefore illegal. Workers did not recognize or obey the law then. Their disregard for the law helped pave the way for collective bargaining, the eight hour day, paid holidays, overtime pay, free weekends, and a child labor laws. Similarly, African Americans violated Jim Crow laws and risked being arrested, beaten or killed, to defend their rights and freedoms. Yet most labor leaders today seem to be more concerned with playing nice with their politician friends, or avoiding jail time, than doing what is necessary to support their members.

The ILWU also has the backing and solidarity of hundreds of thousands of dock workers from around the world. International Transport Workers Federation (ITF) president Paddy Crumlin said the bosses “need to take a big step back and think about what they are trying to force through, then see sense and talk to the ILWU about how to resolve this issue before it escalates even further. . . 350,000 plus dockers in the ITF will be watching how the company treats their American colleagues and, if the company makes it necessary, will be ready to take lawful solidarity action in support of the ILWU.”

International solidarity is absolutely essential to many jobs actions nowadays, with international capital controlling so much of the economy. The grain terminal in question is owned and operated by EGT – a consortium that includes North America, South Korea-based STX Pan Ocean and Japan-based Itochu Corporation. Simultaneous ITU strikes in the U.S., South Korea and Japan would place much more pressure on EGT than a single protest in Washington state.
 

Military Used Against U.S. Citizens?

It has been done before and it will likely be done again, though state militias and outfits other than the official U.S. army will be most likely used, as the military is prevented by the Posse Comitatus Act (1878) from maintaining law and order on U.S. soil. On the other hand, the law has also been temporarily suspended and could again, if Capital becomes scared enough of the angry masses. In 2006, for example, Congress authorized the president to suspend the act and deploy federal forces to enforce domestic laws in the event of disasters, terrorist attacks or “other conditions,” which might include labor unrest or general strikes. However, these changes were repealed in 2008.

Regardless of which heavily armed branch of government is used, the threat has been made against port workers and it is not an idle threat. The ILWU has been battling EGT for over a year, with workers shutting down the port on numerous occasions and many of its members getting arrested. EGT’s bosses are clearly getting fed up with the interruptions to profits and have called in the governments’ guns to protect their non-union, low paid scabs and keep the union workers from stopping business.