In recent decades, organized labor has been negatively impacted by the process of deindustrialization and the birth of a “new economy,” liberalized trade policies, global markets, global, corporations, global payrolls, and a renaissance of classical liberal economic ideology and pronounced employer resistance to organized labor.

Such resistance is measured in part by demands for “flexibility” in business operations which  often translates into demands for changes in union work rules, concessionary bargaining, employment of striker replacements or the elimination of unions altogether.

An increasingly diverse workforce in terms of race, ethnicity and sex ( the white male is now a minority worker), the rise of “contingency” workers (independent contractors, part-time workers, and temporary workers) and the unprecedented application of technology and science to the workplace are also among the disparate factors that challenged labor’s historic role as a countervailing power to the hegemony of capital in the workplace.

In 1978, organized labor placed its faith in the Labor Reform Act (LRA) as a means of confronting the new economic realities, arresting its spiral of decline and securing rights guaranteed to it by the National Labor Relations Act. LRA called for reducing the excessive delays in holding elections, provided an antidote to “captive audience” meetings by employers by granting labor equal time to address employees during organizing campaigns and increased the size of the National Labor Relations Board (NLRB) to shrink the backlog of cases before it. The reform measure would further stiffen existing penalties, often viewed “as a bargain price for union-busting,” by imposing a ban on federal government contracts to repeat violators of the law, double back pay with no “mitigation,” and compensation for workers when their employer refused to bargain. The endorsement of the reform by President Jimmy Carter and a Democratic Congress failed to produce a more favorable legal climate for labor.

In 2003, organized labor  turned to the Employee Free Choice Act (EFCA) for its salvation. Its provisions required that employers recognize a union after a majority of workers sign cards or petitions authorizing union representation; provided for mediation and arbitration of first contract disputes; and authorized stronger penalties for violation of the law when workers seek to form a union.

Opponents of EFCA argued that the reform measure would permit an assorted and shadowy mosaic of dictatorial and corrupt union thugs, gangsters, and bosses to rule, spell the end to democracy in the workplace, and eliminate the jewel of the democratic process, the secret ballot. (The  EFCA, did not, however, rule out the secret ballot if 30% of workers desired it.)

While President Barack Obama, an original cosponsor of the reform measure, agreed to sign  it should it reach his desk, he failed to  get the opportunity to do so as the measure was defeated in the Senate when the Democrats were unable to overcome the roadblock of a Senate filibuster.

Growing employer opposition to organized labor was reflected in summary evidence of the “standard practice for workers to be subjected to threats, interrogation, harassment, surveillance and retaliation for union activity” gathered by Kate Brofenbrenner. director of labor education research at Cornell School of Industrial and Labor Relations and published May 20, 2009, by the non-partisan Economic Policy Institute.

A glance at the study reveals employers threatened to close plants in 57% of elections, discharged workers in 34%, and threatened to cut wages and benefits in 47% of elections. Workers were forced to attend anti-union one-on-one sessions with a supervisor at least weekly in two-thirds of elections.

In 63% of elections, employers used supervisor one-on-one meetings to interrogate workers about who they or other workers supported, and in 54% used such sessions to threaten workers.  Added to the mix of employer resistance was the fact that by 1980 the use of legal consultants hired to ensure a “union free environment” had become a major industry with annual sales of “well over one-half billion dollars.” In Maine, the tax supported agency, the Small Business Administration, received sharp criticism from labor groups for sponsoring “union busting” seminars on “Maintaining Non-Union Status.”  A Portland attorney captured the concern of unionists regarding the new legal offensive when he declared “I think union busting is a valid concept.”

There was no mistaking labor’s disquietude with the existing legal framework and its long odyssey and struggle to protect its rights guaranteed under the law. Now in 2019, a new measure, Protecting The Right To Organize Act (PRO) again seeks to make labor a countervailing power to corporate sovereignty over the workplace by addressing critical roadblocks to union growth and strength.

For example, PRO dramatically increases the scope and powers of the National Labor Relations Board (NLRB) to levy penalties and to enforce them, imposes liability on directors of corporations and officers who participate in violations of workers rights,  protects employees by seeking an injunction which prevents unemployment while a worker’s case for violation of rights is pending, and empowers the NLRB to enforce its own rulings instead of waiting upon the Court of Appeals to make a determination.  PRO further  permits workers to directly go to court when they believe their rights have been violated.

PRO combats misclassification of workers as supervisors and independent contractors, strengthens workers’ right to support boycotts, strikes, and other acts of solidarity, and prohibits companies from permanently replacing workers who participate in a strike. PRO further permits unions and employers to negotiate contracts that allow unions to collect fair-share fees, protects the integrity of union elections against coercive captive audience meetings, empowers workers to go directly to court if they believe their rights have been violated, and prohibits employers from forcing employees to waive their right to engage in collective or class-action.

The current reform mosaic to alter the legal climate is reflected in presidential aspirant Bernie Sanders’s commitment to consign right-to-work laws to the graveyard of history. For organized labor, right-to-work is less a mark of individual freedom in the workplace as it is a means of veiling exploitation. New seeds of reform crafted to secure a balance of power in capital-labor relations,  restore democracy to the workplace, and ensure a more equitable distribution of wealth are, once again, seeking to germinate.

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