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Organizing as a Civil Right: How to Boost Labor and Reverse Inequality

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Chicago public school teachers and their supporters picket in front of the Chicago Public Schools headquarters in Chicago.
Chicago public school teachers and their supporters picket in front of the Chicago Public Schools headquarters in Chicago.
Scott Olson/Getty Images

These are dark days for the American labor movement – and, not coincidentally, for the American worker. Decades of globalization, technological change, and a relentless assault by employers and right-wing politicians have left unions gasping for air. Only about 7 percent of private sector workers belong to a union, down from 35 percent at the height of labor’s power, in the mid-1950s. Public employee unions, now the core of the movement, are hanging on, but they’re taking a beating, too – and not just from conservatives like Gov. Scott Walker in Wisconsin; now even liberals are piling on, as witness Mayor Rahm Emanuel's fight with Chicago's teacher's union.

As labor has weakened over the past few decades, American workers have lost much of their ability to bargain over wages, hours, benefits, and working conditions. At the same time -- and surely this is no coincidence, income from productivity gains have gone almost exclusively to the top 10 percent, while middle-class workers have seen their incomes stagnate or shrink. And with unions less able to supply money and manpower to political campaigns, the Democratic party is increasingly outgunned by the corporate-funded GOP, further weakening labor’s political hand.

Union decline looks irreversible. But it doesn’t have to be. Or so says policy analyst Richard Kahlenberg. A big factor in labor’s slide, he argues, is the failure of current law to protect workers who want to organize a union from employer retaliation, especially firing. In a new book, co-authored with Moshe Marvit, Kahlenberg, a fellow at the liberal think tank The Century Foundation, proposes amending the Civil Rights Act so that it makes firing a worker for attempting to unionize legally akin to discriminating on the basis of sex or race. Under the protection of civil rights law, workers illegally fired for organizing would have access to far more effective remedies than the ones provided by current labor law, including damages, injunctions, discovery, legal fee awards, compensatory and punitive damages.

In the preface to the book, Why Labor Organizing Should Be a Civil Right, Tom Geoghegan, a noted labor lawyer whom Kahlenberg credits with first coming up with the idea, argues that bringing union organizing under the protection of civil rights law would "change the culture as much as the civil rights revolution did" for racial and gender discrimination. Moreover, he adds, "Nothing would do more to put a brake on the country's runaway economic inequality."

RollingStone.com recently got Kahlenberg on the phone to talk about the push to shore up the labor movement, rebuild the middle class, and restore economic justice by making union organizing a civil right.

Your proposal would make firing a worker for trying to organize a union a violation of the Civil Rights Act. But isn’t that already illegal under existing law?
Yes, but the law is weak and the penalties fail to deter employers from firing workers. Labor rights are routinely abrogated. If you look at what goes on in the private sector today, when an employee, or a group of employees, tries to organize a union in order to protect their interests, employers frequently fire the ringleaders, and that puts a stop to the union organizing effort because the leaders are gone and everyone else is scared. There are thousands of documented cases each year in which employees are wrongfully fired for trying to organize a union.

Amending civil rights law is potentially a tall order. Why not strengthen existing labor law through legislation?
Labor law reform is always an uphill battle. Progressives have been trying to improve it for almost fifty years now, going back to Lyndon Johnson.

Right. Most recently, in 2009, Democrats and the Obama administration tried to get the Employee Free Choice Act enacted, which would make it easier to organize and stiffening penalties for employer abuses, but the bill didn’t even make it to a formal vote in the Senate.
I personally support EFCA. I think it’s a good idea. But it failed in part because it was complicated, and therefore easy for opponents to distort, and also because it was seen as a fight between two sets of special interests: Organized labor on the one hand and business interests on the other.

Public employee unions, which are now under siege, aren't covered by the country's key labor law, the National Labor Relations Act. Why not? And would you bring both private and public workers under the protection of the Civil Rights Act?
The way that the law has developed in the United States is that we have a federal labor law that covers most private sector workers – not all, but most – and public sector workers are protected under individual state laws, which makes subject to the whims of the political trends in the particular state they happen to live in. It seems to me there's a strong argument for federal protections for all employees. 

Why is framing labor organizing as a civil rights issue a better way to go?
We think that if we frame this in terms of civil rights and anti-discrimination, the American public will understand what is at stake, and understand the basic issue of fairness.  If you put it to people, “Should an individual be fired even if they’re doing a good job at work because they’re trying to assert their fundamental right to organize a union?” most people will answer, “No, that’s unfair, it’s wrong, and it ought to be stopped.” And we think that simple message has a greater chance of prevailing.

But still, amending the Civil Rights Act will require Congress to act.
The only way that this legislation would move forward would be under a Congress that is friendly to labor rights and civil rights. So I think as a practical matter, you’d need a Democratic Congress and a Democratic executive. The next time that happens, we think that it’s important for progressives to have a plan ready.

How do you reconcile the labor-movement emphasis on solidarity with the individual-rights emphasis of civil rights legislation?
I believe in solidarity. If that were a value that was deeply woven into the American ethos, then I think it would make sense to lead with that argument. The reality is that we are a country that values individualism and individual rights. And rather than battle against that cultural emphasis, I think it makes more sense for labor to advance collective rights in a way that fits into the American story, which is that an individual standing up for his or her rights shouldn’t be discriminated against for doing so. And so to my mind, rather than continuing to butt our heads against the wall of American individualism, it makes more sense to harness that sense that individuals have rights in this country that ought to be respected. One of the major roles of the government is to protect individual rights.

How do you see the stakes in this fight?
Labor is under unprecedented assault. We really face the prospect of a country without labor unions. And more broadly, there are clear economic trends in this country – growing inequality, decline in the middle class – that coincide with the decline of the labor movement. Between the 1940’s and around the early 1970’s, when labor unions were strong, productivity gains were matched by wage increases.  Since the mid seventies, productivity has continued to increase, but wages have been mostly flat. When you look at who gets the productivity gains there, they’re going today to the 1 percent, not to workers, something that has been less apparent in other countries with stronger labor movements.

Where is public opinion on this? Aren't people generally ambivalent about labor unions?
The public is mixed on unions, but strongly support the basic right of collective bargaining.

Short of your proposal actually going into law, how else can labor rights be shored up?
Even short of legislation, I think it’s important for the labor movement to emphasize the rhetoric of civil rights. The UAW is starting to do that with a campaign organizing workers in the South, and I think that can be very effective. The Civil Rights Movement in this country is quite rightly iconic. If the labor movement could associate itself more closely with the movement and the need to promote the dignity of individuals and of individual workers, then I think they’ll have a much better time explaining themselves to the public.

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