SCOTUS and the Uncertain Future of Organized Labor

English: United States Supreme Court building ...

(June 27) This has been a blockbuster week for the Supreme Court to say the least. With DOMA, Proposition 8, Title VII, and affirmative action decisions dominating the coverage, few have taken note of the Supreme Court’s move on Monday to grant review to a set of cases that could strike a severe blow to private sector union organizing.

The first case, Noel Canning, challenges the ability of the President to make recess appointments to the National Labor Relations Board when the Senate has technically kept itself in session. Due to GOP obstruction in the Senate, the NLRB has for years struggled to maintain a three-member quorum. The Supreme Court held in New Process Steel that, absent such a quorum, the NLRB cannot legally rule on cases brought before it. If the Supreme Court decides that the President’s recess appointments to the NLRB are unlawful, the NLRB will become basically non-functional for as long as Senate Republicans continue to deny the NLRB a quorum by blocking new appointments to the agency. In a world with a non-functional NLRB, private sector unions will find themselves with nowhere to turn when employers illegally coerce, intimidate, and otherwise unlawfully obstruct organizing campaigns.

The second case, Mulhall, challenges the legality of the most successful private sector union organizing tactic in the last decade. Because the federal protections for workers attempting to organize unions are so weak, a number of unions have sought to win organizing agreements with employers before embarking upon organizing campaigns. These organizing agreements set the terms for what the union and the employer are allowed to do in a given union organizing drive. Among other things, the agreements often require that the employer remain neutral during the organizing campaign and agree to recognize the union as soon as the majority of the workforce has signed union authorization cards.

Major unions that have a heavy organizing focus, like SEIU and UNITE HERE, owe much of their organizing success in the last decade to this particular tactic. In the worst case scenario, the Supreme Court could rule that organizing agreements necessarily violate the Labor-Management Relations Act‘s prohibition against employers providing “things of value” to unions. In so doing, it would destroy one of the few ways private sector unions have managed to expand their memberships in recent years.

These two cases — which are slated to be decided upon next year — could deliver a devastating one-two punch to private sector unionism, which is already at a historical low point. That would likely mean an even bleaker future for economic equality and working class power, both in our workplace and in our politics.

Matt Bruenig writes frequently for Policy Shop, where this post originally appeared.

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4 Responses

  1. Joe Burn’s book on “Reviving the Strike” includes a good history of the Court’s only briefly disguised refusal to acknowledge workers’ right to organize and negotiate with the boss. They have ALWAYS seen property as a God-given right, and opposition to it as harmful disorder, but have recognized the need to reinstitute the “natural order” one step at a time. They may now have sweet dreams of the end of the rebellion. We need to find, or write, a fundamental and constitutional right to democracy at work, since (it should by now be obvious), no mere law is strong enough to overcome indefinitely the will of the Court.

    • Carl’s comment on the need to wage a long-term struggle for a basic constitutional right to democracy at work is indisputable. We need to couple that with innovative efforts to support workers organizing for their rights in the workplace even if not supported by current labor law as misapplied by the courts. Current creative efforts to encourage and support Walmart and fast food workers’ organizing must be expanded.

  2. There can be little expectation with the present Supreme Court that there will an outcome favorable to the rights of working people. One can only assume that a court that rules that corporations are people will conclude that unions who exert economic and political pressure on corporations are a threat to “people.” The real question workers and their unions should be asking is what do we do about it. Where do we go from here? I think it can be predicted that absent legal rights to organize and bargain collectively, unorganized workers will resort to the kinds of labor tactics that resemble the open class warfare that existed prior to the passage of the NLRA and the establishment of the NLRB. The very purpose for passing the NLRA was to deescalate these labor disputes which employers saw as highly disruptive and unmanageable. Today these lessons have largely been forgotten by corporations and their right wing cohorts in government. Thus, we are condemned to repeat the education process.

    • Totally right, Thomas. How do we repeat the educational process? In the 1930’s socialists and communists helped galvanize working class organizing through a whole series of innovative and disruptive tactics. The Wagner Act was enacted in response. Eighty years later private sector organizing is back to ground zero. Have we learned the lesson?

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