Labor law is in reality “play nice” law. The law – much of which was set up in the 1930s – recognized that bosses would not “play nice” with workers unless forced to do so. Tellingly, the law is centered on compelled “recognition” of unions, the elected workplace representatives of workers. In other words, the law realized that in the absence of state coercion bosses would not recognize workers – they would not even acknowledge workers’ existence. In light of recent Bureau of Labor statistics disclosing further declines in rates of union membership – it seems appropriate to reexamine some class dynamics at play in discussions of unionism and labor law.
Technically, all labor law really says is that workers have the right to organize into unions and if they do the boss is obligated to negotiate with those unions and discuss any changes in working conditions workers might want to have. In theory, the boss can’t fire workers for organizing unions, but bosses do fire workers for this all the time and the law does precious little about it. I don’t have space here to talk about what happens to bosses if they do fire workers for joining or forming unions but, trust me, if I explained it you would not think there was much protection for workers at all. Now if workers do manage get some union representation, and if the boss and the workers cannot agree to the workers’ proposed changes to their work (like, for example, better pay, better hours of work, maybe a little vacation), the boss does not have to change a thing. In fact, as long as the boss has discussed in a reasonably detailed way any proposed changes with the workers, and the workers and the boss get stuck in disagreement on those proposals, the boss can simply require that the workplace be governed exactly as the boss sees fit (usually, the way that it had been run all along).
Of course, if workers and their union don’t like the fact that the boss refuses to agree to their proposals about work, the workers (with or without a union, by the way) have the right to strike. But if the workers go out on strike, and the reason for the strike is the fact that the workers and the boss cannot reach agreement on changes to work that the workers would like, the boss can simply replace the striking workers. The boss can literally go out on the street and hire anyone willing and able to do a striking worker’s job. (This is why unionized NFL players, symphony violinists, and airline captains have at least a little leverage, it is not as easy to replace them). And a “replacement” can keep a striking worker’s job for as long as the boss is willing to employ the replacement and the replacement is willing to stay. Formerly striking workers have no say in the matter.
If workers are able to successfully organize a union and get the employer to enter into a collective bargaining agreement–an increasingly rare event these days since less than 7% of the private sector workplace is represented by a union–the boss must agree to follow the agreement. (Just like you have to pay for the car you bought in accord with the terms of the purchase contract you signed).
Now I’ve been studying and teaching labor law for a long time and I think what I’ve just written is all you need to know about it. So here is my question. What is anti-unionism “about”? When you think about it, all the law really tells bosses is: 1) Don’t fire workers for joining a union; 2) Talk about work proposals to any union your workers happen to set up (you don’t have to agree with the union or your workers about anything); 3) If you do agree with your workers’ union, follow the agreement.
Do you see where I am going with this? Even if someone doesn’t like unions they can’t with a straight face claim that union rights convey any “power” at all. This state of affairs reveals the absolute power that anti-union bosses really want: 1) To fire workers at will (including for their having the audacity to organize to improve their working lives); 2) To avoid even having to talk with workers (that’s pretty disrespectful); 3) To have no obligation to follow agreements entered into (in other words, to have license to break deals).
You know, they used to call employment law “master-servant” law, and it seems to me the rejection of labor law – as weak as it is – is all about underscoring the distinction between “masters” and “servants.” The masters really want to not have to deal–in any way–with the servants, who are expected to show up at their jobs and shut up. Cap in hand. If that kind of invisibility isn’t about class I guess I don’t know what is.
All of this is pretty dispiriting until one considers the enormous energies nevertheless expended to oppose unions. Why? Given the cards that American business already holds by virtue of the way labor law presently fails to protect workers, why do right wing ideologues bother to relentlessly press anti-union rhetoric?
Consider that one of the great waves of union organizing began in 1933 with the enactment of the National Industrial Recovery Act, a law that was declared unconstitutional by the Supreme Court within just a couple of years of its passage. That statute had language that rhetorically praised workers and unions but offered little or no actual worker protection (it was weaker even than today’s very weak labor law). Nevertheless, workers were convinced en masse that somehow with the passage of the statute President Roosevelt wanted them to “join the union.” This initiated a mass organizing frenzy that was fueled largely by psychological impulses. In other words, union organization was legitimized and unprecedented class solidarity resulted.
Those on the right know this history, and I believe it is their unrelenting mission to ensure that the working class experiences no similar signaling that might lead to an explosion of solidarity. Thus, opposition to the present fictitiously protective labor law remains necessary for them out of fear of what the working class may believe labor law stands for more than out of any concern about what it actually stands for. Thus, anti-unionism becomes something approaching broad opposition to any potentially “progressive” ideas emanating from the working class. The agenda is to perpetually nip working class activism in the bud. Given this relentlessness it is little wonder that union membership and representation continue to decline. But as history reminds us, these statistics can change rapidly. Union membership rose from under 10% in the early 1930s to about 25% by 1938. In other words, necessity is often the mother of invention.