Ashlee Rezin Garcia/Chicago Sun-Times via AP
Elizabeth Warren joins striking Chicago Teachers Union and SEIU Local 73 members on the picket line, October 22, 2019.
This year, Senators Bernie Sanders and Elizabeth Warren are running for president on the most pro-union and pro-worker platforms the nation has seen in decades. Their similar plans for sectoral bargaining and requiring corporations to permit their employees to elect members of their corporation’s board of directorshave drawn the attention of the commentariat. But as has largely not been noticed, their plans would also shift the legal landscape that frames the balance of power between workers and employers back toward what it was in the last decade of major private-sector union growth—1937 to 1947—by repealing key provisions of the 1947 law that has played a major role in the steady decline of workers’ rights and the stagnation of their incomes.
Sectoral bargaining and including workers on corporate boards are ideas that are new to the American economic landscape, though they’ve long been features of Germany’s more social market. They would strengthen the power of employees—but would not, in themselves, strengthen American unions. In fact, unions must grow enormously in numbers and influence in order to win the political struggle with corporate and reactionary America that will ensue over these proposals. Unions, workers, and their political supporters like Sanders and Warren are going to have to be much more militant and aggressive in order just to get to the point where sectoral bargaining and corporate representation can overcome the opposition of the most intensely anti-union corporate/political class in the advanced world. Class accords derive from class conflict.
But these two pols mostly have the right idea. In matters of union growth and workers’ rights, the Sanders and Warren labor plans are almost—but not quite—the same. Sanders has a proposal to outlaw firing “at will”—a centuries-old class imposition of Anglo-American law—and only permit firing for “just cause,” which would be like providing a union contract to everybody in the county. Sanders also says his goal would be the doubling of union membership in his first term of office.
Can union membership double in four years? In fact, it has happened three times before in our history, each time during a tremendous surge of working-class militancy: during the mid-1880s, which saw the rise of the Knights of Labor and the eight-hour-day movement; during the radical moment immediately following the end of the First World War; and during the middle-to-late 1930s, which witnessed the rise of the CIO’s industrial unionism and the efforts of the AFL to compete with its new rival. Heartening as Sanders’s support for growing unions may be, it will take a kindred burst of militancy to double labor’s size and scope.
For her part, Warren generally goes into more detail than Sanders on the platform planks they essentially share, and throws in a few new ideas of her own. She pledges, for instance, that her administration will take the worker’s side against local and state officials who campaign against workers’ efforts to unionize. (In Tennessee in 2014, Governor Bill Haslam and Senator Bob Corker—both Republicans—agitated against the United Auto Workers’ campaign to organize the Volkswagen plant in Chattanooga.)
What is most interesting about the two plans, though, is that they both propose to repeal sections of the 1947 Taft-Hartley Act. Taft-Hartley was passed by a coalition of Republicans and Southern Democrats over the veto of President Harry Truman. Conceived at a time when organized labor was at its peak in economic, political, and ideological influence, and had initiated a massive strike wave involving 14 percent of all U.S. workers following the end of the Second World War, Taft-Hartley significantly revised—and from labor’s perspective, weakened—the 1935 National Labor Relations Act (NLRA), the founding legislative text of the modern labor movement. (Technically, Taft-Hartley, named for its two congressional sponsors, is a revision of the NLRA, not a stand-alone piece of legislation.)
AP Photo
Secretary of the Senate Carl Loeffler, center, certifies passage of Taft-Hartley over presidential veto, June 23, 1947. Looking on are the bill's co-authors, Representative Fred Hartley, left, and Senator Robert Taft.
Corporate leaders and right-wing ideologues (and no, there were very few “corporate liberals,” despite what some historians have argued) had been pushing Congress to undercut the NLRA ever since the Supreme Court upheld its constitutionality in 1937. After the Republicans won a landslide victory in the 1946 midterms, in part due to a backlash against the postwar strike wave, the employers and their allies in Congress seized their chance. Taft-Hartley was a mash-up of corporate America’s greatest anti-union hits. No, it didn’t reduce union density immediately, let alone become the “slave labor act” that John L. Lewis and other union leaders called it. But it did create a complicated set of new bureaucratic limitations on unions that undermined their institutional security, made major categories of workers ineligible to join unions, and compelled all union officials to sign an affidavit asserting they were not communists, which drove a wedge between a potent communist-affiliated sector of the CIO and the mostly FDR liberals they had often worked with over the preceding decade. It also gave employers a right to campaign against their workers’ efforts to unionize, in part by requiring employees to attend anti-union meetings—a tool that management has used to devastating effect in the subsequent decades.
At the time it became law, Taft-Hartley was the most controversial and contested domestic-policy issue in the country—kind of like Obamacare times ten. There were constant arguments about the bill in the media, massive demonstrations against it in such areas of union strength as Detroit and New York City, and a portentous sense that it would dramatically change the power relationships between the working class and those who owned and directed their labor. Some also thought it might lead to the presidential election of the bill’s Senate sponsor, “Mr. Conservative” Robert Taft of Ohio (who, it must be said, while never winning the White House, did retain the support of many union voters in his heavily unionized state). The fear of communist influence in the labor movement was, of course, tied to the newly perceived threat of the postwar Soviet Union. In his 1947 State of the Union address, Truman declared that meeting the Soviet challenge was his primary foreign-policy priority. The national conflict between management and the labor movement topped his discussion of domestic policy.
Today, if Americans know anything at all about Taft-Hartley, they are familiar with the law’s section 14(b), which permits states to adopt “right to work” laws that prevent unions from negotiating contracts mandating that every worker the union represents must pay the union for the costs of that representation. Taft-Hartley thus permitted states to make union security provisions illegal. Immediately after the law was passed, most Southern states became right-to-work havens. Currently, 27 states are right-to-work, although last year, labor beat back at the polls an effort to turn increasingly conservative Missouri right-to-work.
Section 14(b) makes it harder for unions to organize workers, depletes union treasuries, and divides workers who pay union dues from the “free riders” who don’t, yet benefit from a union contract. While there are competing studies about its efficacy, it has undoubtedly limited the scope of union expansion, especially in the generally anti-union South. It is a signature anti-union articulation of plutocrats, corporations, and their political allies, who fought to impose it on the state level even before Taft-Hartley became law.
So it’s good but unsurprising news that, whatever their differences, the two candidates on the left wing of the Democratic Party wish to abolish it. Moreover, this opposition might reignite labor’s and mainstream Democrats’ own opposition to 14(b). More than half a century ago, in 1966, labor’s congressional allies made an effort to repeal it, but the still-powerful alliance of Senate Republicans and Southern Democrats beat it back easily. (Everett Dirksen, the GOP Senate leader and something of a hero in the passage of the 1964 Civil Rights Act, opposed any support for labor with much greater vehemence than he brought to civil rights.) After 1966, when President Lyndon Johnson told labor to focus on other Great Society legislation, not 14(b), most pro-labor Democratic politicians pretty much gave up on repealing it, even though unions, which then constituted around 30 percent of the workforce, still retained significant political clout.
Now, more than a half-century later, Sanders and Warren are restoring the elimination of 14(b) to the agenda of a renewed labor social democratic movement.
But Taft-Hartley is much more than 14(b)—and Sanders and Warren also wish to revise or repeal other important sections of the act that pretty much nobody has bothered thinking about in decades. Taft-Hartley created various land mines for unions to maneuver around that now routinely explode in typical organizing drives and contract situations. It would be good to defuse them.
Ashlee Rezin Garcia/Chicago Sun-Times via AP
Bernie Sanders takes selfies with supporters after speaking at a rally at the Chicago Teachers Union headquarters, September 24, 2019.
Both the Sanders and Warren proposals address the parts of the law that define who is eligible to join a union, particularly the vexed issue of who is a “supervisor. They also go after Taft-Hartley’s prohibition of secondary boycotts and the rights of “employer’s free speech” in opposing organizing drives. Sanders and Warren would allow the NLRB to certify a union if a majority of workers in a bargaining unit sign authorization cards—a right eliminated by Taft-Hartley. They would also require binding arbitration if the parties cannot reach a collective-bargaining agreement. This last set of issues is one that labor has sought through the Employee Free Choice Act (the “card check” bill) for many years; so let’s turn to the candidates’ other, more novel, ideas.
With the extraordinary growth of unionization between 1937 and 1947, the legal definition of precisely who is a “supervisor” or “employee” became of critical importance for both labor and management. One of the biggest challenges to corporations following the war was the rapid rise of a militant union of supervisors and foremen. The Foreman’s Association of America (FAA) represented neither rank-and-file workers nor salaried managers, but the (mostly) men in the middle. During the war, the FAA staged strikes against major companies, and signed a contract with Ford in 1944. Corporate managers and their allies in Congress viewed an alliance of unionized workers with unionized supervisors as not only a grave challenge to workplace hierarchy but also a grave threat to class hierarchy and, indeed, American social stability. As the historian Jean-Christian Vinel observes in his important book, The Employee: A Political History, reactionary opposition to supervisors’ unions in this period imagined it auguring total social degeneration, such that the United States, rather than defeating fascism, might, instead, as one lawyer said, experience “mob production” and then might fall like “once free France.”
Both the NLRB and the Supreme Court had upheld the right of supervisors to unionize in the Packard Motorcase (the Board’s argument in the case remains very much worth reading). But only a few months after the Supreme Court holding, Taft-Hartley passed and, in three separate definitional provisions, made sure to eliminate the possibility of supervisory unions. The FAA effectively ceased to exist, and with its demise ended the possibility of a decisive shift in the relationships of power between corporations and labor. Subsequent administrative and case law became a laborious linguistic slog which held that some workers in ambiguous job categories were non-supervisors and permitted to unionize, while others were not.
This is where Warren’s pro-union proposal is nonetheless somewhat disappointing (as is Sanders’s, which barely mentions the subject). She wishes to limit Taft-Hartley’s definition of what constitutes a “supervisor,” citing the examples of charge nurses and construction foremen as employees now categorized as supervisors who, with a more precise definition of the term, might be recategorized as employees eligible to unionize. This would be an advance over current law. But just limiting the definition, by permitting some workers to unionize who cannot today, will not stop the chronic parsing of the meaning of the word “supervisor” and the restrictions on the rights of millions of workers to organize. It would be much better to simply eliminate the definitions within Taft-Hartley altogether. If there are some conflicts of interest between supervisors and employees, workers should be free to set up two separate union units.
Warren and Sanders also both pledge to legalize secondary boycotts, which were—sort of—prohibited by Taft-Hartley. The standard understanding of the term is a practice in which a union, in a dispute with Company A, would not only pressure that company, but also pressure third parties, for instance, the company’s suppliers or customers, so that those companies or customers would, in turn, pressure Company A by threatening to end their business relationship with it. Secondary boycotts go back to the 19th century; they are some of the oldest tactics in the union arsenal.
Taft-Hartley is a notoriously terribly written law, reflecting the ideas and interests of the more reactionary House, Taft’s shrewd management of the Senate bill, and the intensely aggressive interventions of the National Association of Manufacturers. Nobody bothered to define secondary boycotts—they just knew they didn’t like them. Accordingly, the bill’s secondary-boycott provisions are perhaps the worst written of all—the discussion of them on the NLRB website is like a Dickensian parody of the law.
Taft-Hartley included a loophole that unions used for years, allowing unions to “publicize” their disputes to consumers. This could be done with handbills, and the Supreme Court ultimately ratified that practice in 1987. Yet the confusion within the law about what was legal and what wasn’t has persisted. Much of the prohibition on secondary boycotts discussed in administrative and case law has to do with picket signs—an old and powerful symbol of labor militancy. As a labor lawyer used to remind us when I worked in the labor movement, you’re usually not in violation of the law if you put your message on a piece of paper (or send it to the media), but you’re in trouble if you attach it to a piece of wood.
In the case of secondary boycotts, Warren and Sanders seem to be clear: Both favor repealing the parts of Taft-Hartley having to do with them. Warren further pledges to eliminate a subsequent prohibition in the 1959 Landrum-Griffin Act on “hot cargo” agreements, which are agreements between unions and a third-party employer to boycott the primary employer in a labor dispute. Hot-cargo agreements are more threatening to corporations precisely because they are voluntary agreements, born of the power of the union to seek them, between “secondary” companies and unions, rather than the union being in an antagonistic relationship with those companies. The Teamsters effectively used hot-cargo agreements for years. Even though there are work-arounds to the secondary-boycott provisions in Taft-Hartley, eliminating the entire section would cut back on the legal parsing required to stay within the law and perhaps inspire labor to come up with even more inventive tactics.
Finally and, perhaps, most significantly in its potential to change the power relationship between labor and capital during organizing campaigns, both candidates promise to eliminate the right of companies to hold mandatory or “captive audience” anti-union meetings with their employees during a union organizing campaign. The authors and supporters of the NLRA believed that workers should choose whether they wish to unionize without the interjection, let alone coercion, of their employers—unions are organizations of, by, and for workers. After all, they reasoned, employers not only have an interest in opposing unionization, but also control their employees’ fate at their company. In Clark Bros., a famous NLRB decision in 1946, the Board’s fading New Deal labor majority sustained this central principle, even when the employer’s speech was anodyne, asserting, “It need hardly be stressed that their economic dependence renders employees unduly responsive to the suggestions of their employer. …” Moderate labor experts, like Harry Millis, the chairman of the NLRB during the Second World War, thought that employers should be permitted to apprise employees of factual inaccuracies that unions made in the course of their campaigns. But Millis did not think that the employers, given their intrinsic power over those whose paychecks they signed, should be able to propagandize to employees in compulsory workplace meetings.
Faced with the insistence of employers that they exercise a right to object to unionization, however, Taft-Hartley overturned Clark Bros.(which had been upheld at the circuit court level) and included an “employer’s free speech” provision, Section 8(c), which assured employers that their “expression of any views, arguments, or opinion … shall not constitute … an unfair labor practice if such expression contains no threat of reprisal or force or promise of benefit.”
Subsequent NLRB decisions claimed that employer’s free speech was an essential protected right. Only explicit threats—like closing the plant if the workers voted to unionize—would make a captive-audience meeting a violation of 8(c)—something that smart companies, assisted by union-busting consultants, made certain to avoid. Thus Taft-Hartley and what came after it vaporized the logic of the Clark Bros.decision, which had asserted that employers’ compelling workers to listen to their pitch against unionization, however worded, was inherently coercive.
By repealing 8(c) and inserting language making captive-audience meetings illegal, both Sanders and Warren would ban one of the most pervasive tactics employers use to intimidate and browbeat workers during an organizing campaign. The senators also wish to increase the right of nonemployee union staff to meet and talk with workers during an organizing drive. Section 8(c) says nothing about union staff’s ability to access the employer’s property during an organizing campaign, but this is labor’s obvious corresponding right to the employer’s “free speech.” Case law has consistently limited the right of unions to communicate with workers on company property. In 1956, in the Babcock & Wilcoxcase, the Court unanimously held that property rights usually supersede the right of workers to obtain information about unionization, as long as the union can contact workers in another way, for instance, at their home (and thus the importance to union organizing drives of home visits). This decision, affirmed in the name of a nominal fairness, nevertheless weighted the organizing process against unions.
In 1991, the Court took Babcock & Wilcoxa step further. In his most important opinion addressing labor law, Justice Clarence Thomas wrote for the Court that balancing the right of private property with the right to organize was unnecessary: “It is only where such access is infeasible that it becomes necessary and proper to take the accommodation inquiry to a second level, balancing the employees’ and employers’ rights …” and that only in highly unusual circumstances of complete geographical lack of access, where workers might live at their worksite, like logging and mining camps, might nonemployee union organizers have the right of access to the employer’s private property.
Short of card check union certification, eliminating employer captive-audience meetings and permitting unions to have access to workers at the worksite would constitute perhaps the most significant change in union organizing drives. It would cease the privileging of private property and the right of companies to intimidate their workers. Union access to workers at the worksite is not permitted now even during lunch and break hours, and this forces the union to knock on the doors of exhausted workers at their homes during their off-hours. As a conservative friend of mine once said, in all seriousness (although with a chuckle), after I had given him a law review article that explained the ludicrous conditions under which union organizing occurs in the United States: “I don’t understand how the union ever wins.”
Indeed. So Sanders and Warren are on the right path here. They embody, let us hope, the Democratic Party’s move back toward something like the labor liberalism of the 1940s through the 1960s.
I don’t quite understand, however, why the two presidential candidates didn’t just propose the full repeal of every clause and line of Taft-Hartley. It’s a terrible, incoherent law that represents postwar corporate rage toward labor unions, burgeoning anti-communism, and the South’s fear of an organizing alliance between the CIO and returning black soldiers. Given that the senators’ policy proposals are, surely, aspirational in many respects, why not just shoot the moon: Get rid of this awful law!
Warren is running as the candidate of “big structural change,” albeit within a neo-Progressive technocratic version of capitalism. Sanders says he’s a “democratic socialist” who advocates for a “political revolution.”
So under either candidate’s theory of expansive social change, and on behalf of the labor movement that we need to create a more vibrant and egalitarian economy, there’s no room for the Taft-Hartley Act.
