VOLUME 2, NUMBER 31    <>    MONDAY, SEPTEMBER 3, 2001

If the great pamphleteer Tom Paine were alive and agitating today, chances are he’d be barnstorming on behalf of workers who have suffered the same experience that he endured before immigrating to America: being fired for trying to organize a union.

While Paine is best remembered for inspiring American revolutionaries, he was a working class hero in his native England, where he once worked as an “exciseman,” or traveling tax-collector and smuggler-catcher. When his co-workers complained they were underpaid, he organized them, took their case to Parliament, and was fired for his troubles.

Soon afterwards, Paine moved to North America, where his pamphlets, “Common Sense” and “The Crisis,” helped build support for a war of independence to replace monarchy with democracy. King George, the revolutionaries declared, had denied Americans the rights Englishmen had enjoyed since the Magna Charta.

On Labor Day 2001, a modern-day Paine would argue for reviving, modernizing, and enforcing a Depression-era law that once was hailed as “Labor’s Magna Charta.” The National Labor Relations Act (NLRA) of 1935 guarantees working Americans the right to organize without fear of reprisal and to bargain with their employers for better wages, benefits, and working conditions. Until it was weakened in 1947 and systematically flouted by employers since the 1970s, this law made it public policy to encourage the growth of unions to lift living standards and serve as counterweights to corporate power.

For Paine’s spiritual descendants, the time is right to make the case for restoring the nation’s earlier commitment to collective bargaining, a system that encourages a small measure of democracy in the workplace. Many of the arguments for protecting workers’ rights to organize that were made in the depths of the Depression still ring true today. Now as then, unions are essential because they raise wages, reduce economic inequalities, and help individual employees redress grievances against powerful employers.

Moreover, now that Americans are increasingly nervous about the churning new economy, the nation can benefit from many other roles that unions have played. Unions are sources of education and training, providers of portable health and pension benefits, referral services matching skilled workers with job opportunities, and partners for responsible employers, such as Harley-Davidson motorcycles and the Kaiser Permanente hospitals and health plans, that are seeking to provide quality to their consumers.

The Union Advantage. Today’s Tom Paine would point to how, over the past half century, unions helped to build a more prosperous, egalitarian, and inclusive America, and how the deunionization of America has coincided with increasing inequality and stagnating living standards.

The case is clear: Thanks in large measure to a labor movement that reached a high-watermark of 35 percent of the entire workforce by the middle of the 1950s, American family incomes grew by an average of 2.4 percent to 3 percent a year from 1947 through 1973, with every sector of society seeing its incomes roughly double. Then unions started their steady decline to their present position: 16 percent of the entire workforce and scarcely 10 percent of private sector workers. Meanwhile, real wages (average hourly pay, adjusted for inflation) stagnated, with most families maintaining their living standards by having husbands, wives, and even teen-age children working longer hours. When real wages finally increased at the end of the 1990s, when a booming economy approached full employment, Congress increased the minimum wage, and a feistier labor movement put the problem of wage stagnation on America’s agenda.

Even now, unions help workers raise their wages and improve their benefit package. By the end of the 1990s, union members earned 32 percent more than unrepresented workers, according to the Bureau of Labor Statistics in the U.S. Department of Labor. Moreover, the “union advantage” was even greater for workers who are vulnerable to discrimination. Union women earned 39 percent more than their non-union counterparts, and the union premium was 54 percent for Latino workers and 45 percent for African Americans. Union members are also more likely to have health courage and pension plans. And from the longstanding apprenticeship programs in the building trades to innovative efforts to help telecommunications workers learn how to use new technologies, unions are second only to the military as a source of job training and skill development.

Embattled Workplaces. Before more workers, and the entire nation, can benefit from what unions can do, more workers need to be able to form and join unions. But, when workers in the private sector try to form unions, companies often go ballistic, resorting to their ultimate weapons of terminating union supporters or threatening to close down the entire workplace, possibly moving it to Mexico.

The widespread use of these tactics has been documented in a growing bookshelf of studies by academic observers.

Harvard Law Professor Paul Weiler estimates that one in 20 union supporters — an average of approximately 10,000 workers a year — are fired by their employers during union organizing campaigns.

Similarly, in a study of 400 elections on union representation conducted by the National Labor Relations Board, Dr. Kate Bronfenbrenner of Cornell University found that 50 percent of the employers threatened to close the office or plant and 32 percent fired workers who actively supported the union. These actions are in violation of the NLRA’s provisions prohibiting employers from firing, harassing, or threatening employers who seek to organize unions. But, as the journalist Michael Kinsley once said of campaign finance, when it comes to employer opposition to workers’ organizing efforts, the real scandal is not what is illegal but rather what is legal.

Because of amendments to the NLRA in 1946, spotty enforcement by over-burdened federal officials, and slick tactics by the lawyers, publicists, and employee relations specialists who earn an estimated $300 million a year advising employers how to defeat organizing drives, union-bashing tactics have become commonplace.

All in all, according to Bronfenbrenner, 80 percent of employers who face employee organizing efforts hire consultants to help them conduct anti-union campaigns. And their tactics make a mockery of the NLRA’s promise that workers are guaranteed “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Brofenbrenner found another, uglier reality. In addition to the 32 percent of employers who break the law by firing pro-union workers and the 50 percent who skirt the law by threatening to close down the workplace, others use legal but hardball tactics: 91 percent of employers facing organizing efforts force employees to attend anti-union meetings; 77 percent distribute anti-union leaflets; and 58 percent show anti-union videos.

In addition to these efforts, employers can often also get away with these tactics: firing employees who refuse to attend the anti-union meetings or who insist on asking embarrassing questions; excluding known union supporters from these meetings; and barring union representatives from the workplaces during the weeks before the federally supervised elections where workers decide whether to be represented by a union.

These conditions resemble sham elections in totalitarian countries. In fact, they violate international conventions that the United States has signed protecting freedom of association — a right that’s a close cousin to the U.S. Constitution’s guarantees of free speech and freedom of assembly. According to a recent study by the international watchdog group, Human Rights Watch: Workers’ freedom of association is under sustained attack in the United States, and the government is often failing in its responsibility under international human rights standards to deter such attacks and protect workers’ rights.

The Forgotten Wagner Act. All this is a far cry from the original vision of the National Labor Relations Act, which saw unions as indispensable institutions in an industrialized democracy. Introduced by Senator Robert F. Wagner (thus, the NLRA is frequently called “The Wagner Act”), a liberal Democrat from New York, and signed into law by President Franklin D. Roosevelt, the NLRA reflected the era’s egalitarian economic philosophy. The Depression had been caused by corporate excesses, the New Dealers believed, and by the lack of consumer demand resulting from low wages. Moreover, ordinary citizens were powerless to right these wrongs unless they joined together. Thus, unions were desirable because they offered workers a way to resist corporate abuses, raise their wages, and restore their rightful role in the nation’s economic, social, and political life.

Today’s Tom Paine might argue that such organizing is an essential element not only of a free society but of any truly free market economy, as it ensures that the price of products on the shelf reflects their true cost of manufacture, including the cost of just working conditions. He might cite the forthright legislative “findings” that precede the provisions of the NLRA, which read like a populist treatise about the causes and consequences of economic inequality and, remarkably, are still the law of the land.

Thus, the law begins by blaming hostile employers for labor unrest, declaring: The denial by some employers of the right of employees to organize and the refusal by some employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife.

The law goes on contend that individual workers don’t have the power to improve their conditions and to present collective action as a cure for the lack of mass purchasing power that produced the Depression: The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers who are organized in the corporate or other forms of ownership association ... tends to aggravate recurrent business depressions by suppressing wage rates.

Because its backers believed in the desirability of unions and collective bargaining, the NLRA was based on the principle that workers should decide whether to form organizations of their own without their employers being involved. The law created the National Labor Relations Board (NLRB) to administer a simple democratic procedure for workers to decide whether to be represented by a union. Workers would sign cards authorizing a union to represent them. The NLRB would verify the validity of these cards. If a majority of the employees at a workplace expressed their support, the NLRB would “certify” the union as their “exclusive representative.” If there were a legitimate question about whether the majority of workers wanted union representation, the NLRB would conduct an election where the employees would choose between the union and “no representative.”

Employers were expected to stay out of this process. Because employers control their employees’ livelihoods, the New Dealers believed that any efforts on their part to discourage workers from forming unions would have the effect of coercing the employees. This concern even trumped traditional considerations of free speech, since employer involvement in the process could intimidate, not inform, the employees. This view was expressed in a 1941 decision by the legendary civil libertarian, Judge Learned Hand: Language may serve to enlighten a hearer ... but the light it sheds will in some degree be clouded if the hearer has no power ... What to an outsider will be no more than the vigorous presentation of a conviction, to an employee may be the manifestation of a determination which is not safe to thwart.

With federal law supporting them, workers organized the automobile, steel, rubber, and garment industries, with union membership increasing from less than 4 million in 1935 to almost 11 million on the eve of World War II.

But the post-war years brought a wave of strikes, a Republican resurgence, and a corporate drive to limit labor’s rights. In 1947, Congress overrode a veto by President Truman and enacted amendments to the NLRA introduced by two conservative Republicans, Senator Robert A. Taft of Ohio and Representative Fred Hartley of New Jersey, that weakened unions in many ways. Now, employers would be allowed to conduct campaigns against union representation as long as there is “no threat of reprisal or promise of benefit.”

With a green light from federal law, companies began to resist their employees’ efforts at organizing. By the late 1970s, with the nation’s economy mired in inflation and stagnation and American companies facing international competition, organizing campaigns resembled trench warfare between employers and employees more than the deliberative process envisioned by the New Dealers who drafted the NLRA. Workers who tried to form unions often found their workplaces had become hostile environments, with managers making thinly veiled threats of shutdowns, layoffs, or pay cuts. That was the conclusion of the bipartisan Commission on the Future of Labor Management Relations, which was appointed by President Bill Clinton and chaired by John Dunlop, who had served as Secretary of Labor under President Gerald Ford. The panel reported in 1994: The United States is the only major democratic country in which the choice of whether or not workers are to be represented by a union is subject to such a confrontational process.

In other words, workers who try to organize unions often find that their jobs become a living hell. This puts the lie to the glib generalization, promoted by conservative academics, corporate spokespeople, and elite editorialists that union membership has declined because workers no longer want to join unions. In fact, while Americans make an individual decision to join organizations such as the NRA, the PTA, or the AAA, people join unions as part of an entire workforce, usually after a federally supervised election, and often after their employers have tried to frighten them out of it. And there are two important indications that, given a less intimidating process, many more working Americans would choose to join unions.

First, there’s the large number of teachers, state and local government employees, and other public sector workers who belong to unions. Educators, librarians, and highway engineers are hardly hotheads, but they are covered by state or local labor relations policies, and, in most parts of the country, their employers don’t discourage them from organizing.

Second, there is the survey of working Americans conducted for the Dunlop Commission in 1994. The study found that, even without any organizing efforts in their workplaces, about one-third of non-union private sector workers would vote for a union if given the chance. If their preferences prevailed, union density in the private sector would increase to 44 percent five times the current level and the highest in history.

Restoring the Right to Organize. So how to offer these workers the opportunity to make a choice that should be their birthright as Americans? There’s no shortage of ideas for reforming labor law, including: toughening penalties against employers who fire or harass union supporters; encouraging companies to recognize unions after a majority of workers have signed authorization cards; and making organizing easier for workers whose wages and working conditions are determined by large companies that contract with their nominal employers, such as building service workers employed by janitorial firms hired by major building owners.

Many of these ideas were endorsed by the Dunlop Commission in 1994. Still others were part of a labor law reform proposal supported by President Jimmy Carter in the late 1970s but stymied by the familiar coalition of conservative Republicans and southern Democrats. At neither time was there a national movement for restoring the right to organize capable of energizing progressive Democrats and winning over moderate Republicans and border-state Democrats.

Even if progressive Democrats win the White House in 2004 and sweep both houses of Congress, there will still be a need for a national sense of urgency, similar to the worker organizing, intellectual ferment, and governmental innovation that produced the National Labor Relations Act in 1935.

Once again, if workers start organizing across the economy, responsible business leaders may seek new ways to stabilize labor relations. Once again, opinion-makers may call attention to problems that unions can help solve, such as lagging purchasing power, increasing inequality, and the growing sense that faulty management policies are preventing many employees from doing their best work. And once again, public policymakers may define larger public purposes that would be served by restoring the right to organize, such as lifting the working poor into the middle class, serving as a source of skill-development and stability in churning industries like high-tech, and creating a mechanism where workers can offer ideas for improving the quality of the products they make and the services they provide.

But first, it will take a sense of outrage at how workers are fired, harassed, or intimidated simply for joining together to speak their minds.

And that will take today’s Tom Paines arguing that restoring the right to organize is simply “common sense.”

David Kusnet was chief speechwriter for President Clinton from 1992 through 1994. A former staffer for the American Federation of State, County and Municipal Employees, AFL-CIO, he is now a visiting fellow at the Economic Policy Institute. This article first appeared at www.tompaine.com.