Dmitri Iglitzin is a labor law attorney with the firm of Schwerin Campbell Barnard & Iglitzin, in Seattle, Washington, and is an Affiliate Professor of Law at the University of Washington School of Law.
The top priority of the labor movement in the U.S. is passage of the Employee Freedom of Choice Act (EFCA). This law would allow workers to form unions without having to endure an employer’s pre-election campaign tactics and would enable newly formed unions to obtain good contracts for its members through binding arbitration. It also imposes some financial penalties on employers for firing employees who try to organize or support unions. Not surprisingly, it has been the subject of vigorous public debate and discussion, including a series of full-page ads from the AFL-CIO in major newspapers, and has been heatedly opposed by corporate groups.
To the people in the front lines of this debate, however, the EFCA will only be, at most, a small step forward. Conversations held over the past few weeks and months with one group of these people, the labor lawyers who represent local, regional and national unions on a daily basis, reveal a very different, and far more ambitious, wish list for legislative change at the federal level.
Union lawyers are determined, for one thing, to change federal law to either dramatically narrow the definition of a "supervisor," or to grant supervisors themselves bargaining rights. As of 2002, in excess of 8.6 million private-sector “first-line” supervisors, not much different from “leads” or “foremen,” all of whom are currently denied the right to engage in collective bargaining. Recent decisions by the National Labor Relations Board have widened, not narrowed, the pool of workers who have no rights under labor law because of this loophole.
Another perceived problem is the fact that currently, employers vigorously propagandize their employees at the workplace. According to a recent study, 91 percent of employers force employees to attend anti-union meetings one-on-one with supervisors. Unions, on the other hand, have no access to unorganized workers on the job. Union lawyers want Congress to level the playing field by prohibiting this on-the-job coercion.
At the very top of most union lawyers' wish list, however, is the repeal of key sections of the Taft-Hartley Act of 1947, which legendary United Mine Worker leader John L. Lewis once famously described as "the first ugly thrust of fascism in America." Section 8(b)(4) of this law makes it an unlawful "secondary boycott" for unions to bring any type of pressure against a "neutral" person, i.e., any person other than the employer whose employees the unions represent or seek to represent.
In many industries, especially construction and services, the project owner's or building owner's decision about whether to use a union or non-union contracting firm is the single most important factor in deciding whether the jobs there will be union or not, and about what the people performing the work will actually be paid. Under current law, unions cannot challenge a parent corporation’s directives to a subsidiary; they cannot challenge a building manager’s directives to a janitorial service, and they cannot challenge any decision to change a subcontract—even if the decision is to cease using a union-signatory firm that is paying a living wage to its employees, causing all of those employees to lose their jobs.
As longtime Pasadena, California labor lawyer David P. Koppelman points out:
Imagine U.S. foreign policy was governed by Section 8(b)4. Under this standard, our overthrow of the Taliban was an illegal secondary boycott. Why? Because our "dispute" was not with the Taliban, it was with al-Qaida; our only complaint with the Taliban was that they were "doing business" with al-Qaida by providing sanctuary for training facilities... Think that's nonsense? Yep. So's 8(b)(4).
For the past 45 years, there has been no change in the federal law governing labor relations. The result is the veritable hemorrhaging of union membership, which is now down to 12 percent of the workforce, down from 35 percent in the 1950's. Unionization in the private sector just slipped to 7.4 percent, the lowest in a century.
Advocates for unions and their members perceive that their chances for substantive labor reform are better now than they have been for at least a decade. If the current Congress fails to pass the ECFA, or if President Bush vetoes it and his veto is not overridden, there will be greater, not lesser, efforts to accomplish these changes, including efforts to repeal Taft-Hartley. The day may come when the corporate interests currently opposing passage of the ECFA may look back with regret on a missed opportunity to fob off some of labor's most vigorous supporters with half measures.