The Labor Law Reform We Need

At a 2009 rally for the Employee Free Choice Act, bus driver Theresa Gares told how she was fired for organizing. Labor should fight to prohibit all unjust firings, not just those for organizing. Photo: Transport Workers Union.

When the next opportunity for labor law reform arrives, union membership will be smaller and our political clout even more diminished. If we are to succeed, future reform proposals must be wrapped in a broader mantle that will appeal to all workers.

The four-year drive for the Employee Free Choice Act was the single largest union-backed campaign in decades and it succeeded in uniting the labor movement as never before. I doubt there was a steward in the country who wasn’t familiar with EFCA and why we needed it.

The proposed law, which so many members fought for between 2006 and 2010, would have made it faster and easier for workers to gain union recognition through card check, created stiffer penalties for employers who violate labor laws, and helped workers win difficult first contracts through binding arbitration.

Many union leaders believed EFCA to be labor’s last opportunity to address the obstacles to recruiting new members and a rebirth of the labor movement.

While campaigning for EFCA was easy among union members, once we ventured beyond our ranks it was a much harder sell.

With faith in democracy deeply ingrained in the national psyche, it was almost impossible to convince the general public that card check was as democratic as a secret ballot election. Every time the opposition yelled, “Union bosses want to take away your right to vote,” we were put on the defensive and our allies floundered.

FUTURE TENSE: LABOR NOTES 400

The changes in the labor movement, the economy, and politics since the first issue of Labor Notes came out in February 1979 have been profound.

For our 400th issue, Labor Notes asked several activists to address what happened to labor—and what we should do given the spot we're in.

Download the entire package.

Donate today and support the movement you want to see.

So while EFCA appealed to union members and a small population of workers who imagined they might one day like to join a union, it appeared to the public as a narrow “special-interest” labor bill.

The demise of EFCA closely resembled the fate of other reform bills backed by the labor movement: one against permanent striker replacement (1993); a bill for speedier elections, greater union access during organizing drives, and relief for illegally fired workers (1978); and repeal of Taft-Hartley (1966), where we could not stop a filibuster in the Senate.

WINNING THOUGH SMALLER

Past reforms led by the labor movement have won minimum wage, health and safety regulations, child labor laws, and prohibitions against discrimination. And whenever the labor movement was on the offensive fighting for all workers, union membership grew.

What’s left to achieve that might inspire all workers—union and non-union alike?

“Employment security” could be the remaining frontier. A campaign to pass state laws requiring “just cause” before a worker is fired could also spur union growth, since one of the top reasons workers are afraid of organizing is the knowledge they are likely to be terminated.

Our existing laws have not diminished workers’ fears because the procedures are too uncertain and lengthy (two to three years at the Labor Board and another two years in the courts) to provide any assurance. Winning state “just cause” laws that allow cases to be decided quickly by arbitrators might give workers more confidence.

As described in Clyde Summers’s important 1976 Virginia Law Review article on the topic, the United States is alone among industrialized countries in allowing at-will employees to be terminated for arbitrary reasons. Because of union protests and aggressive legal action, Germany, France, Japan, Sweden, the United Kingdom, and South Africa require employers to have a just cause to dismiss non-probationary employees.

One state has also passed such a law. The Montana Wrongful Discharge from Employment Act was passed in 1987. Applicable to non-union non-probationary employees, it prohibits discharges without good cause, allows workers to sue for up to four years of back pay, and provides a way for workers to recover attorneys’ fees.

Despite fear-mongering by opponents, the Big Sky state’s robust economic growth has not been affected. Statutes in Puerto Rico and the Virgin Islands also prohibit termination without “good cause.”

CHAMPIONING EVERYONE

Winning “just cause” legislation will certainly not be easy. But building a movement on a similar scale to the effort put behind EFCA would offer union activists an opportunity to champion an issue that would benefit all workers and also help union growth.

A “just cause” campaign could potentially engage working people at many levels. Short of state or federal legislation, local unions, central labor councils, and worker centers could seek to enforce a just cause standard through workers’ rights boards and community pressure.

Communities could declare certain areas “Just Cause Zones” and fight to enforce just cause as a community standard—like living wage laws, but potentially much wider. Political activists could use the proposed legislation as a litmus test for candidates. We could hold hearings on the need for just cause and lobby state legislatures.

If just cause campaigns succeed, workers will have more security to participate in organizing drives. Montana’s unionization rate reflects its mix of industries and history of militant struggles, but it’s hard not to notice that the state, at 14.6 percent, has a healthier percentage of union members than the national average. Neighboring Idaho has less than half the rate of unionized workers.

Even if campaigns for just cause do not succeed, they would be an opportunity to educate millions of not-yet-union workers about the concept (especially if the campaign used ballot referendums) and the increased job security it could bring to their lives.

By popularizing the just cause concept and raising expectations, more workers may respond by thinking, “If we can’t get this protection through the legislature, let’s get it by forming a union!”



Rand Wilson is organizing director for Service Employees Local 888 in Boston.

/>

Comments

Henry Soria (not verified) | 09/23/12

I wish we could pass just cause legislation in California. Rather than seeing just cause enforced through the courts, it would be wonderful if unions could enforce it through expedited arbitration. It would be an excellent way to get our foot in the employer's workplace. Having been part of an organizing campaign in the private sector, I have seen how the fear of a worker being fired gets in the way from ensuring workers remain organized. Right now, I am negotiating a contract where a recently terminated worker, who was an advocate of the organizing campaign, has been fired. If we want to organize workers and increase density, we need to eliminate all possible hurdles.

Peter Knowlton (not verified) | 07/20/12

I'm no expert on the subject but it strikes me that in most other countries the issue of "just cause", with the exception of getting fired for discriminatory reasons, is really an issue of severance pay. It is, also, the biggest difference on getting fired between US and the rest of the world. Go here for some World Bank bed time reading on the subject: http://siteresources.worldbank.org/SOCIALPROTECTION/Resources/SP-Discuss...

I like the analysis and Rand’s thinking on this issue as another way to begin labor’s re-connect with unorganized workers, who organized labor has basically lost touch with. But I think the rest of the world’s approach of severance pay is more doable (is that really a word?) or realistic than the legalistic, we need more lawyers approach to defend whether or not I was fired for “just cause”. In most countries, except the US, if the boss wants to fire you they can but… they have to pay you severance. The payment is normally based on a combination of pay and service time. When you make the employer pay severance for firing a worker (for reasons NOT having to do with discrimination based on class, race, sex, sexual orientation, union, religion, age, etc. and is whole other kettle of fish) then they will likely not do it so readily. Knowing you get severance eases the fear, somewhat, of workers speaking up to confront injustice. There becomes an economic “safeguard” for workers and a dis-incentive for employers. It puts the societal issue, expressed into law, of workers versus employers on a more equal footing. For those of us in the labor movement who deal with these issues every day the boss will initially fire one of our members and then, not unusually, a severance settlement might get negotiated instead of the worker coming back to work. That's what workers in other countries get, by law, whether you got a union or not.

What you get from being represented by a union (regardless of the country for the most part) is a right to union advocacy and a hearing on your firing based on a "just cause" standard if you want to try and get your job back. The real difference for US unorganized workers is that US labor unions represent such a tiny fraction of the working class, especially in the private sector. In most other countries a much larger percentage and spectrum of the working class are or can be, by law, covered and protected by a union. Therefore, a much greater percentage of the working class gets "just cause".

a (not verified) | 07/19/12

"give them five weeks of paid time off to start! It sounds like a super idea!"
I think you've misinterpreted the phrase "to start". It's colloquial equivalent to "right off the bat", "to begin with", and "from the get go".
Recall the article's question was, "suggest a top ten list of goals", implying long term conditions. "To start" meant, "this has to go at the top of the list".
You've interpreted it to mean, "begin first workday with 5 weeks paid vacation"
"What's stopping you?"
Most people don't start businesses for the same primary reason they don't startup drug smuggling gangs. It pays well, but it's excessively immoral to pursue.

CarrieB (not verified) | 07/16/12

I would like to see a list of the 2013 ten points/ mission of organized labor. Does not exclude others but provides a list of some or our top priorities. For Example.

1. Just Cause Protection
2. Mandatory Minimum Vacation
3. Mandatory Minimum Sick Leave
4. Expanding the Right to Collectively Bargain
5. Paid Maternity Leave
. . . . .

NancyEJ | 07/17/12

6. Mandatory term limits on union officials
7. Mandatory collective bargaining agreements for all union staff
8. Mandatory ethics standards for all unions
9. Mandatory dues refunds for poor service
10. Mandatory union election standards
11. Mandatory members bill of rights that gives union members direct control over how their union is run
12. Living wage standards and free healthcare for all union employees, including part time, "lost time" and casuals
13. Full financial disclosure by all union officials, including multiple salaries, reimbursements and expense accounts, and the public disclosure of all union officials' tax returns

CarrieB (not verified) | 07/16/12

I would like to see labor unify around national mandatory vacation and sick leave minimums. For example every worker guaranteed a minimum of three weeks of paid vacation and two weeks of paid sick leave to start. Would like it to grow from there and be more in line with the rest of the world which offers twice as much.

NancyEJ | 07/17/12

Why don't you start a company and hire a bunch of people who need jobs and give them five weeks of paid time off to start! It sounds like a super idea! What's stopping you?

And you might want to start by demanding all labor unions grant that to all their employees!

jburns | 07/13/12

Thanks for writing the article as focusing on the big picture is what the labor movement needs to do. While establishing an individual right to not be fired except for just cause may help organizing, I believe it will do little to reverse the tide here. The problem with such a campaign, and similar initiatives proposed recently, is that it fails to focus on what we really need, collective rights. Even if after tremendous effort we win such campaigns, it would not budge union density.

The key problem with labor law is that we do not have the meaningful right to strike. Our right to collectively bargain, to use workplace-based solidarity, and to strike has been gutted by Congress through Taft Hartley and numerous court decisions. These are group rights, not individual rights.

If labor is going to embark on another rights campaign, it should hit at the crux of the matter, the violation of our constitutional and human rights. Even if we don't prevail in convincing Congress to change the law, maybe even the process of trying to change the laws would get more trade unionists to see the need for civil disobedience and other forms of resistance.

Rand Wilson | 07/14/12

I was hoping that you (and others) would weigh in with other ideas. And the right to strike is certainly a good one. I worked on the corporate campaign with Local 14 in 1988 and '89 that prompted the campaign to win a ban on striker replacements. And like EFCA we cam close to winning it under Clinton. Sadly, I think our chances of winning broad working class support for it is much diminished. But we need to keep raising the importance of it.

Just Cause laws will hopefully be crafted to not just apply to individual discharge but to mass firings and layoffs.

John Womack jr. (not verified) | 07/13/12

Rand Wilson is right. Too many unions too often fight battles on terms that look irrelevant or (worse) selfish to workers who cannot see what the battles have to do with them. Some of the problem is simply educating these other workers, and educating them faster than the uneducated arrive on the scene. But the problem remains, unions do often represent their struggles as partial, for workers at a particular place or company or in a particular industry, not as general, as action in class struggle, for the good of waged workers of all kinds. Unions in battle should not (as they too often do) assume they are simply due solidarity; they have no reason to sulk or bear grudges when they don't get it. They need to fight more often for causes that give clear, solid reason for solidarity from outside their ranks, outside their prospective ranks, in other companies and industries. Of course unions have to protect their existing membership and struggle within their jurisdictions for more members. But they grow strongest when they draw support from the mostly ununionized working class at large. It's very important that the focus not be (as too much of the time it has been) on support from "the public," a muddle much too unreliable now. The goal is for unions to win support from workers not in unions. And they are most likely to win it if they clearly deserve it. For their own good and the good of all waged workers a broad range of struggles for "just cause," of the kind Rand Wilson proposes, would make a big difference, year after year.

Rand Wilson | 07/14/12

"Just Cause" is such a nice double entendre! It has the potential to spread at a very grassroots level and like "Living Wage" campaigns, it puts employers and their political allies on the defensive. "Oh, excuse me, did you say you were against a Just Cause standard? Why are you against Just Cause?" It will be fun to watch the bosses squirm!

NancyEJ | 07/12/12

In reality, most employers terminate exclusively for just cause already and the majority of workers are wise enough to know union bullslop when they smell it. Are there still workers fired for illegal discriminatory reasons? Certainly, and there always will be, unions or no unions. However now it is far more common for the typical union-targeted employer to hold on to bad employees for far too long, not get rid of good employees unfairly.

In other words, American workers who are worrying about job security are concerned primarily that they'll lose their job to a lay off, not to some capricious termination because those "at will" terminations just aren't happening. And if anything the average worker wishes their employer would go ahead and fire the deadbeats so the good workers wouldn't have to carry all their deadweight.

Of course there are plenty who are worried about losing their job for just cause -- absenteeism, tardiness, the inability to perform to job standards -- and of course the union organizer will always convince those poor folks that it's the bosses fault they can't get to work on time. Unions have always been able to capture the votes of the 20% of workers who deserve to get canned and think a union might save them so why not. The other 80% don't need to pay protection money and they know it. They know dues money to today's union is money down the drain.

Get a clue, folks. American workers don't want unions. They know how they work, they know what they can and cannot do, they can see through the union hype and they aren't buying. Everyone knows unions are irrelevant except those still sucking on their teats.

beechnut79 (not verified) | 08/14/12

True, many regular employers do have "just cause" clauses in their guidelines. But so many have found a clever way to get around this as well, and that is the increasing use of staffing agencies, even for long-term positions. And the agencies won't go to bat for you if you get in trouble, as their attitude is that the customer is always right. I know. I've been there and done that and am still trying to fight my own case after over three years without ever being able to set the record straight. I even believe they may have even been bought off to keep quiet and not contact me, even though I don't have the proof.

If we don't move entirely toward a just cause system, we should at the very least pass legislation that would offer those workers who feel they have been fired unfairly to be able to obtain some recourse through independent aribtration. I believe that taking this step would even reduce the need for unions. A text of the proposal I recently emailed to the governor of my state is available upon request. We all know that unions were not perfect, but now the pendulum has swung too far the other way and corporations have way too much power. I do. however, believe that we may now need unions more than ever.

sdondley (not verified) | 07/11/12

The biggest threat to workers is not lack of job security but lack of democracy due the influence of money. Every progressive organization should be focusing as much as possible on this problem.

beechnut79 (not verified) | 08/14/12

Very true, and no doubt the only way we'll accomplish this is by Constituional Amendment. Whether Obama or Romney wins in November it won't make much of a difference because the real winners will be the number crunchers. They are the ones who really rule the world, and I hope to live long enough to see the end of these days and an amendment is probably the only way to get it done short of total revolution. And with that you don't always get something better than what came before. Yet if the anger builds enough Wall Street and its environs could become the Bastille of our time.

Rand Wilson | 07/12/12

Do you think we can win the labor movement to that position? And while I agree that getting money out of politics is a very worthy goal, unfortunately for many workers lack of democracy is a given and they are skeptical about both major parties. Maybe a campaign for Just Cause might be more immediately engaging.

Mike Wilzoch | 07/11/12

Here we go again down an Orwellian wormhole where yet another SEIU official offers advice to solve a problem largely of their own making. While the author might be a decent guy, no excuse for avoiding the elephant in the room: that SEIU was the principal reason that EFCA died. While there is still an imperative for progress here, getting suggestions from those who can’t deal with the madness in their own Union is becoming a barren source of amusement. As an extra added bonus, SEIU has been widely utilizing the very same despicable conduct EFCA would have addressed on other unions and its own members—often in open collusion with employers—ever since.

Unity? What exactly was the nation’s largest Union doing when we had the best chance in a generation to pass real labor law reform? Raiding UNITE HERE and the Puerto Rican Teachers Union, whose members were billy clubbed in their own streets at the infamous 08 SEIU Convention. They were trying to approach the armed camp masquerading as a convention of working people to appeal to the delegates to stop SEIU officials from cutting a deal with their corrupt Governor, an honored guest at the big show, to bust their Union and deliver their dues dollars to the Purple Mausoleum. http://www.youtube.com/watch?v=M0sFjqmld5I

Where were all the big thinking reformers in SEIU when this was going on? Lerner, Ragen, Henry, Medina and the rest of them were neck deep in it. In fact, they played key roles in this bullshit and the next travesty, occurring at the very same time: the IU’s hostile takeover of the formerly progressive, democratic, and effective UHW. http://www.beyondchron.org/news/index.php?itemid=9839
A cynic might say that EFCA’s key imperative for workers to be free to vote on issues which affect them without coercion was undercut somewhat by this reprehensible scam. It all came down to the UHW leadership insisting that 65,000 UHW homecare workers be allowed to vote on an IU mandate that they be merged with the crime scene that was Local 6434.

Andy Stern’s well protected protégé Tyrone “Flim Flam” Freeman had just been found by the LA Times of skimming a cool million from $9/hr homecare workers for years. Numerous pleas and reports to the IU for relief from Freeman’s tender mercies went unanswered, as they turned the other way and covered it up instead.
http://www.latimes.com/news/local/la-me-union-sg,0,237951.storygallery

EFCA would have been a huge lift even if labor and the community were united and pushing like there was no tomorrow to get something decent. But with the SEIU freakshow on the public stage, care to guess why no Dems would jump on that burning wagon as it headed over the high side? Or are still jumpy about the whole subject--even the handful with backbones?

It just kept getting worse. Of course, no vote was allowed, and progressives lost a powerful advocate, as the new IU approved UHW has openly colluded with employers to illegally deny workers their voting rights (Kaiser http://www.democracynow.org/2011/7/22/nlrb_orders_new_election_after_ruling and Fresno homecare) campaigned against the rest of labor for “pro-business” issues and candidates, http://sternburgerwithfries.blogspot.com/2012/06/leaked-seiu-email-offer...
and has even formed a “strategic partnership,” blessed by the IU, with the California Hospital Association. Their latest “joint venture:” to weaken RN–patient staffing ratios fought for by SEIU and the CNA for decades. They may save lives—but it cuts into their “partners” record multi-billion dollar profits! http://sternburgerwithfries.blogspot.com/2012/07/mary-kay-and-cha.html

So while workers’ rights are certainly under attack in this country, and labor law reform is urgently needed, the notion that the ruling elites at SEIU—whose excessive compensation puts them on the other side of the solar system from the 99%--can be trusted to “lead the way” is a cruel joke. After 40 years in the movement—23 in SEIU before the UHW purge--I know these hypocrites personally. Anything the author might have to offer that is useful (and there is food for thought there) would be put through the purple grinder and be subject to being moved by bureaucrats who have proven they would sell out their grandma for a candy bar--and any coalition for a nice bone from the opposition.

Before anyone in purple can really be taken seriously on how we proceed on salvaging labor law reform, enriching the Occupy movement (next on their scope for “acquisition”) or any other damn thing—recognize that the IU is currently poison to the movement and simply can't be trusted at all. You in the locals have to find the guts to confront Goliath and oppose the painful damage they have done to workers everywhere. The upcoming Kaiser rematch might provide an opportunity.

Once again, all locals will be expected to send staff from their needed assignments at home and flood California with the same BS from the last rancid election that even the toothless NLRB had to call illegal--and call for a new election. UHW now has a track record of selling out workers in the most grotesque ways, and will have a tough climb to hang onto these knowledgeable workers. Most of those assigned last time had no clue what they were getting into--but that's a hard sell today. What would happen if rank and file leaders in the locals said they didn't want any part of this--on ethical as well as operational grounds, and forbid the use of their staff in violation of our code to "do no member harm." No doubt it would be bloody, and some locals could be trusteed and staff fired. But if you are a serious trade unionist--you simply refuse to screw other workers. Doing this cost many of us everything we owned, but from that sacrifice came the hope of NUHW.

There's more of us than there are of them. They will not relinquish their ruthless power unless confronted by a serious rebellion in the ranks. As Frederick Douglass put it--"Power concedes nothing without a demand. It never did and never will." If you are an honorable man--you will find a way to join with many others who are already thinking the same thing. The high hats have never fully recovered from the trusteeship. If it has a domino effect elsewhere...it won't be fast or easy but it can--and must--happen for the movement to progress. The 1%ers don't need any help just now, especially from a union. Time to cut that anchor loose so we can focus on the boss, without having to watch our back for that shiv from "friends."

Rand Wilson | 07/12/12

Good critique of past SEIU missteps and the sordid role of the IU in Calif. Let me assure you, I will not be going to California to assist with the Kaiser campaign.

LNUN (not verified) | 07/11/12

The problem that I see is that there are no longer large homogenous employers that have hundreds or thousands of employees in the same place. Those that are (public sector employers, hospitals, large manufacturers, railways and airlines) already have above average union density.

Right-to-work isn't going away and neither is employer resistance.

Maybe we should embrace reforms that make these two things irrelevant and bring unions to even the very small employers. Forming bargaining units by an entire industry (sector bargaining) would eliminate the incentive for individual employers to bust unions (they might anyway). For instance, a union could apply to the NLRB to represent all servers in sit-down restaurants in a county, city, or metro area. All the employers and servers would be bound to the agreement made between the union and an employers association, though employers could go above and beyond if they chose to do so. No one would be forced to join the union, but only members could get a grievance rep or get union plus discounts or union sponsored insurance and retirement. This way thousands of people could organize instead of organizing one restaurant with 10 workers at a time and having different agreements.

This would take wages out of competition and standardize employment practices, which employers would like. It would also allow many low income workers employed by small firms to organize and improve their working conditions.

EFCA is only propping up an antiquated system. Other reforms are nice, but will only re-enforce the idea that unionism is no longer necessary because the government takes care of us.

Rand Wilson | 07/12/12

What you describe sounds very similar to the Works Council concept that is used in some European countries. I personally really like the idea and would be interested in what approach or approaches could be used to implement something like that in the U.S.

Phil A Thomas (not verified) | 07/11/12

Rand, while I still believe EFCA could have been sold had those in the marble palaces put some effort into it, the moment is definitely gone for a generation. The just cause idea seems like a good one, in particular because it can be done at the state or local level without federal preemption problems. I could see it making organizing more difficult among white collar professional types, who often have an inflated sense of their worth to their employer (and might be able to afford their own attorney), but for the rest of the workforce it could only be a boon to unions. Instead of having to convince the NLRB to investigate firings, the union's attorneys could just sue on the worker's behalf and get discovery. Employers would argue to the NLRB that the union was providing a benefit to the workers to get their votes, but we could probably find a way to finesse that to get it past the Supremes.

Rand Wilson | 07/11/12

Thanks Phil. Your point about employers arguing that the union was providing a benefit to the workers to get their votes, is one that I had not thought of. But as you said, I think there are ways around it. Even with a well funded campaign, winning Just Cause reforms could take years. But campaigning for it would make labor a champion for the whole working class while educating workers about the lack of protections they currently have and the need for organization to win their rights.