What Labor Needs

John L. Lewis, legendary president of the United Mine Workers of America, once called it a "despotic, damnable, reprehensible, vicious slave statute" and "the first ugly, savage thrust of fascism in America." President Harry S. Truman characterized it as "completely contrary to our national policy of economic freedom" and an attempt "to shackle American labor and to give overwhelming power to employers." Millions of organized American workers commonly referred to it for years as the "slave-labor act."

The law in question was (and is) the Labor Management Relations Act of 1947, better known as the Taft-Hartley Act after its Republican sponsors, Senator Robert A. Taft of Ohio and Representative Fred A. Hartley, Jr. of New Jersey. It was enacted by the reactionary 80th Congress over the veto of President Truman and has ever since been the law of the land. There have been attempts to rescind Taft-Hartley from time to time, most recently in 1965 when Democrats controlled both houses of Congress and the presidency, but although a repeal bill passed the House that year, it was filibustered to death in the Senate.

During the last third of the 20th century, conservative dominance of the political discussion and the economic agenda made Taft-Hartley repeal a non-starter; even liberal Democrats gave up on it. Then, in the 2000 election campaign, a strange thing happened: Revoking the Taft-Hartley Law was once more part of the national dialogue, albeit on the fringe, where the Green Party's Ralph Nader made it a minor cause célèbre.

There is good reason why the issue has reemerged from the shadows of public policy. Labor has its back against the wall, and Taft-Hartley remains, as Harry Truman termed it, "an extremist measure" aimed at immobilizing unions by curbing legitimate strikes and other job actions, and by making organizing more difficult. Historically it was a knee-jerk reaction to the National Labor Relations (or Wagner) Act, a classic New Deal measure pushed through Congress in 1935 by the great liberal Sen. Robert F. Wagner of New York. The Wagner Act established the right to organize and bargain collectively for higher wages and better working conditions; it set up a permanent National Labor Relations Board (NLRB) charged with upholding that right, encouraging the formation of independent, democratic unions, conducting union-certification elections, enforcing fair labor practices, and arbitrating labor-management disputes. As organized labor's "Magna Carta," it quickly became a bête noire of the American right.

The right's answer, carved in legislative stone for half a century now, was Taft-Hartley, which amended the Wagner Act on behalf of big business interests. Its key features include the following: the outlawing of "closed-shop" agreements that make union membership a precondition to employment, the legalization of state "right-to-work" laws that allow workers to share in union-won wage-and-benefit increases without joining and supporting the union (the infamous Section 14(b)), the prohibition of secondary boycotts, mass picketing, and jurisdictional or sit-down strikes (key organizing techniques of the 1930s), the requirement that unions give prior notification of strike intentions, the exclusion of supervisors and contractors from eligibility for union membership, and the establishment of presidential injunction power to halt major strikes for 80-day "cooling off" periods. The impact of these and other aspects of the law has been to make life infinitely more difficult for labor organizers and to weaken the strike as an effective tactic.

The consensus view is that while not crippling the union movement, Taft-Hartley broke labor's organizational momentum in the late 1940s, leaving it in a holding pattern thereafter, forced to fight rearguard actions rather than taking the offensive. Labor's work was made hardest in traditional anti-union regions like the South and the Great Plains, where right-to-work statutes nullifying the union shop have proliferated. To date, 22 states have adopted such employer-friendly legislation. Things could have been worse. Taft-Hartley backers originally aimed at making national unions irrelevant and industry-wide strikes illegal. For example, one suggested provision would have strictly limited collective bargaining to local unions and individual firms; it failed passage by just one vote in the US Senate.

Nevertheless, the impact of Taft-Hartley has been bad enough, contributing in no small measure to the steady erosion in union membership as a percentage of the work force since the 1950s. Perhaps its worst feature was to change the mission of the NLRB from one of protecting working people by facilitating unionization to one of being a supposedly impartial referee between corporate management (which needs no help) and labor. Specifically, Taft-Hartley empowered the board to apply the Wagner Act's unfair-labor-practice clause to labor itself, and to slow and complicate the union-certification process in the guise of fairness to employers. In practice, this has meant the use of the NLRB under conservative administrations to frustrate organizing drives by requiring multiple hearings and workplace elections, and by postponing the adjudication of worker grievances, such as the illegal firing of union supporters.

Ralph Nader, who became labor's unlikely (and unappreciated) tribune in the last election, holds Taft-Hartley directly responsible for the plight of today's unions through its establishing of the "right" of companies to actively oppose union organizing efforts using all the tools at the disposal of the modern corporation. Rather than maintaining a traditional neutral stance while awaiting the decision of its employees on whether to accept formal representation, he says, present-day management can use a wide array of subtle and not-so-subtle techniques to persuade, cajole, intimidate, and threaten workers, or simply to drag out negotiations to the point of discouragement. Taft-Hartley, Nader argues in calling for its repeal, codified the principle that "it was OK to bust unions and deny workers their right to collectively bargain"; it exists, in his view, as a basic infringement of human rights.

It's an apt evaluation. Whatever the arguments were in the 1940s for the Taft-Hartley Act, they no longer apply -- if, indeed, they ever did. In the new era of corporate monoliths and economic globalization, organized labor cannot defend the interests of American workers without a public-policy assist in the form of a basic revision in fundamental labor law. The labor-management playing field, which was reasonably level at the end of World War II, is now tilted heavily in the direction of the corporate sector, and stagnating American wages, as well as declining fringe benefits, show it. In a nation as rich as ours, that's a disgrace, and it's time to redress the balance.

Wayne O'Leary is a writer in Orono, Maine.

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