Talking about Labor Law Reform with Richard Kahlenberg

For a company trying to ward off unionization, firing a union activist is a great investment. While the National Labor Relations Act bans such retaliation, its process is slow and its penalties are minimal. Every time Democrats have controlled the presidency and Congress, unions have pushed reforms to the law—and every time they’ve come up short. In their new book, Why Labor Organizing Should Be a Civil Right, the Century Foundation’s Richard Kahlenberg and labor lawyer Moshe Marvit propose a new approach to labor law reform: add protection against anti-union discrimination to the Civil Rights Act. The Prospect talked to Kahlenberg about why he expects his proposal to succeed where others failed, the relationship between law and culture, and whether Ann Coulter has a point.   

Why is this better than the Employee Free Choice Act?

I’m in favor of EFCA and traditional labor law reform, but we’ve been at the issue now for close to 50 years, and traditional labor law reform has not passed. So I the evidence suggests it’s time for a new strategy, and there’s a great deal of reason to believe that the civil rights approach to labor law reform will have more political resonance than the traditional efforts.

You note in your book that conservatives will oppose any pro-union reform, and that senators’ votes on labor law reform correlate with the level of unionization in their states.  So without a spike in unionization, why would your proposal fare any better?

The Civil Rights approach has a couple of advantages. One is its simplicity: it posits that there should be strong penalty when someone who works hard at their job and is doing everything else right is fired for trying to form a union and become a member of the middle class. By contrast, EFCA and other pieces of legislation involve a host of issues and, because they are complex, can be easily distorted. And so those of us who support reform get sidetracked into somewhat misleading debates about the ability to engage in a secret ballot election and so on. Our proposal is very simple and clear to people: is it OK for individuals to be fired for organizing a union?

The other big difference is that the Civil Rights approach addresses our society’s inclination to want to protect individual rights. I’m for the values of collective action and solidarity that are central to the labor movement. But they stand in contrast to a fundamental belief among many Americans that protecting individual rights is the most important role of government. So for that reason as well, I think politicians would have a harder time resisting reform if framed as a Civil Right.

How well do you think the Civil Rights Act is working right now?

If you look at the private right of action under the Civil Right Act and compare it to the NLRA, it’s clear that the Civil Rights remedies are quite a bit more powerful and effective. They provide for compensatory and punitive damages, attorney’s fees in cases where the plaintiff prevails, legal discovery requirements—none of which are available under the NLRA.

There’s a separate question about how easy it is today to bring lawsuits based on racial discrimination, in part because much of the discrimination that goes on today is more subtle than it used to be. But there’s nothing subtle about the way corporations seek to send a message by firing certain individuals who are engaged in labor organizing. The Civil Rights Act would provide an actual meaningful penalty for violating employees’ rights to form a union. It could have a very powerful deterrent effect on employers compared to the types of remedies available today.

Ann Coulter condemned your argument on the grounds that “civil rights are for Blacks.”  You write in your book about the long-time ties between the labor and Civil Rights movements. But isn’t there a strong current in American culture that views anything involving unions as an economics question, not a Civil Rights one?

Much of this is cultural. But the Civil Rights Act helped change our culture. It used to be perfectly acceptable to discriminate based on race. There’s always a debate: did the culture change first and produce the law, or did the law change first and produce a better culture? I think most people would agree that the two changed together. The laws helped change our culture in a very positive way, and so it seems to me something similar could happen with respect to labor.

Right now people don’t really focus on the fact that employees are routinely denied their right to organize. They really don’t like labor or business that much, and they dismiss labor law reform as special interest legislation. We hope to advance a change in the discussion so that we begin to recognize, as the UN Declaration of Human Rights does, that the right to organize is a fundamental human right—and that employers who discriminate against individuals for exercising that basic right are doing something that’s shameful and should be sanctioned by society.

You document how the United States lags behind other industrialized countries in protecting organizing rights. Why is that?

It may have something to do with our society’s emphasis on individual rights. When individual rights are invoked, it has tended to be on behalf of conservative values, anti-union values, like “Right to Work.” That individualistic thread in American society may help explain why our laws and culture have been less protective of unions. But we’re trying to suggest that you can flip that on its head, and emphasize that today, when an individual sticks her neck out to try to champion a union at work, she’s likely to be cut off by her employer in a way that prohibits her from exercising her fundamental rights.

Comments

Of course, true civil rights are two-way streets. As the U.S. Supreme Court said in Barnette v. W. Va. Board of Education, the First Amendment protects the "right to speak freely" and "the right to refrain from speaking at all." Current federal law already protects the individual worker's freedom to join and pay dues to a union, regardless of what the employer thinks or the majority of other employees think. Kahlenberg wouldn't change that. But the individual employee who doesn't want to join a union can still be forced to pay dues or "agency" fees whenever a union has "exclusive" bargaining power. Kahlenberg doesn't want to change that, either. In other words, he thinks a pro-union worker's freedom of association should get more legal protection than an anti-union worker's freedom of association. That isn't a "pro-civil rights" position. It's just Big Labor special pleading.

Stan Greer
National Right to Work Committee
National Institute for Labor Relations Research

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