We in the Milwaukee DSA want to encourage our members, and the general public, to unionize their workplaces. To that end, we are presenting a four part series of articles making the case for unionizing, the legal framework for it, the steps one needs to take to unionize a workplace, and a case study of successful unionization drive. This is the second part.
Up until 1933, labor unions in the United States had no legal standing. While there was nothing to prevent workers from organizing, there was no requirement that businesses had to negotiate with them, and members of unions had no legal protection. Any concessions unions might have achieved were based on a battle of wills between the workers and owners, and the solidarity of workers. In 1933, Section 7a of the National Industrial Recovery Act gave legal standing to unions, but it was basically toothless until 1935 with the passage of the Wagner Act, more formally known as the National Labor Relations Act.
The Wagner Act was passed after several years of serious labor unrest during some of the worst years of the Great Depression. This included a general strike in Minneapolis, a five day battle between 10,000 striking workers and 1,300 national guardsmen in Toledo, and a general strike of longshoremen, shutting down shipping on the West Coast. These strikes involved broad swaths of the community, including organizations of the unemployed and womens’ organizations. As such, they took on the characteristic of class struggle.
Essentially, the act is an acknowledgement of the right of workers to organize, along with an enforcement mechanism, the National Labor Relations Board. By giving workers the right to organize, the Wagner Act put labor in a normalized relationship with capital. What capitalists fear and loathe is uncertainty and chaos (and, of course, the threat of revolution is bad for business). While organized labor costs more, it’s a known quantity to owners. They know better what to expect, who to negotiate with, and what the rules are. It was a calculated risk on the part of capital. What the workers got out of this was some control in the workplace, and it made life more predictable for them as well. However, it also took the militancy out of the movement, at least for the time being.
The main clauses of the Wagner Act are:
- Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing.
- No one can interfere with an employee in exercising their right to unionize
- No one can interfere with a unionizing campaign
- No one can discriminate against an employee to encourage or discourage support of a unionizing effort
- No employee can be fired for testifying against someone who violates the above.
- Employers must bargain collectively with representatives of the workers
This stood as labor law through the remainder of the depression and through the war years. During this time, unionization increased, but during the war years, unions had agreed to a moratorium on strikes, and with a few exceptions, stuck to that.
After the war, labor unrest increased again. After holding off on strikes for the duration of the war, workers wanted increases in wages. Also, there were large shifts in economic conditions due to, on the one hand, the ending of the war economy and the reduction of production needs associated with it, which all meant decreased hours and pay; and on the other hand, the re-entry of soldiers into civilian life which meant a flooded labor market. From late 1945 through 1946, strikes occurred across the country, in some very basic industries, including meatpacking, steel work, coal mining, and electrical work. As in 1934, there were general strikes in a number of cities. All totalled, 4.3 million workers were involved. The response from Washington was the Taft-Hartley Act, passed in 1947 as an amendment to the Wagner Act. Whatever concessions capital made in the Wagner Act, they took back in the Taft Hartley Act, and it was in direct response to the strike wave.
It may seem contradictory that a strike wave in 1934 led to concessions to workers, while a strike wave in 1946 led to suppression of labor activity, but the second strike wave needs to be seen in context of the first. As stated earlier, the Wagner Act did allow workers to form unions and required businesses to recognize them, but it also normalized and formalized those relationships, taking the potentially revolutionary edge out of them. It was an effort to domesticate organized labor. The labor unrest of 1946 demonstrated that this domestication wasn’t completely successful, that organized labor, now in corral, needed to also be hobbled.
The main clauses of the Taft-Hartley Act are:
- States are allowed to forbid union shops. In other words, employees can’t be required to join unions as a condition of work. This is the “right to work” clause, and it was adopted by 27 states, the majority having done it within ten years of the passage of the Taft-Hartley Act, mostly in southern states (this is current Wisconsin law). What it allows are “free riders”, workers who benefit from union contracts and activity, without paying dues. This undermines workplace solidarity and drains the funds to maintain the union. Note also that the CIO started a campaign to organize the South before Taft Hartley.
- Secondary strikes, boycotts, or sympathy strikes are prohibited. In other words, if you go on strike, your union can’t try to encourage other unions to join your strike as a way to put pressure on your employer, or to use boycotts or any other pressure tactic. This tactic was important in the various general strikes in 1934 and 1945-46, and it gave them a class character.
- Employers, under this act, can openly oppose unions, and deliver anti-union messages in the workplace. Employers can, and do, hold mandatory meetings of employees to lobby against a union drive.
- It allows presidents to stop strikes in the interest of national security.
- Supervisors and managers are not allowed to join unions and are subject to being fired if they support a union action or take a stance contrary to the employer. This essentially drives a wedge between the different levels of workers, another effort at undermining class and workplace solidarity.
- Decertification of the union is allowed. While this sounds like a reasonable practice in theory, if initiated by the workers, in practice it is open to abuse by owners, who can use it to drive a wedge between workers.
All of these items, and the way they are administered, give a lot of power to businesses and their allies in government, and many of the provisions are designed to undermine class solidarity. Furthermore, while there are some safeguards, the penalty for violation is sometimes just seen as a cost of doing business. The PRO-Act, stalled in the Senate, addresses many of these problems, and if passed, would make unionizing much easier for the American working class. Unfortunately, a razor thin majority for the Democrats and solid opposition by the Republicans means it’s unlikely to go anywhere.
So, this is the legal foundation for unionizing at this time. It’s a difficult and uncertain, but it’s important and worthwhile. At this time, many people across the country are taking it. The next part of this series will go through the steps you need to take if you want to move forward, starting with approaching your coworkers to contacting a union, to winning your first contract.