Democratizing the Demand for Workers' Rights: Toward a Re-framing of Labor's Argument: Responses
McCartin, Joseph A.
TAM HONORED THAT Lance Compa and Sheldon Friedman took the time to formulate such thoughtful and generous responses to my essay. I admire their work, appreciate the breadth of experience they...
...Thus, it seems to me that the re-framing of the argument that I call for above is not unwarranted...
...Yet it is not this contradiction that troubles me so much as 70 n DISSENT / Winter 2005 Compa's understanding of the NLRA itself...
...Wagner and his staff understood that collective bargaining and freedom of association are not exactly the same things...
...Labor opposed Taft-Hartley as a "slave labor act" precisely because the act used principles of free speech and association as battering rams against union power...
...IAM HAPPY THAT Sheldon Friedman used his response to promote the Employees Free Choice Act...
...Was a rights-based political culture developed enough to be useful in the 1930s or not...
...Ultimately, both Compa's discussion of the Wagner Act and his defense of the sufficiency of today's workers' rights argument confuse freedom of association with labor solidarity...
...But he is overly optimistic when he contends that human rights arguments provide a "unifying force" that can help overcome those flaws...
...Thus the NLRA banned bargaining by organizations that accepted employer support, denied the right to bargain to unions that did not enjoy majority support, and allowed unions to negotiate contracts that could compel unwilling workers to pay union dues...
...I admire their work, appreciate the breadth of experience they bring to bear, and share many of their concerns and hopes...
...That act's framers reasoned that if the government protected workers' rights to join unions, it should also protect their rights to refrain from supporting unions...
...Free choice" is the central value of the right-to-work movement, whether the antiunionists wield it disingenuously or not...
...As generations of labor activists well understood, these are not the same things...
...But it is really Friedman and labor's "free choice" advocates who cede this ground...
...Ironically, the Taft-Hartley Act was more infused with Compa's "free speech and association" ideal than was the Wagner Act...
...The act deserves support...
...On the one hand, he argues that the act was erected on an economic foundation, "not a fundamental rights foundation," because "human rights were not developed enough in the 1930s to serve as a foundation for labor law...
...But since it has no chance of passage any time soon, perhaps it would not hurt to rethink its current framing around the notion of "free choice...
...Taft-Hartley granted employers the right of free speech with which to oppose unions and protected freedom of association by allowing states to outlaw union shops or what anti-unionists call "compulsory unions...
...Because principles of free speech and association can be tilted so easily in favor of employers due to the power imbalance that exists between them and workers, it makes sense for labor not to rely solely upon such rights-based arguments...
...Indeed, their act actually placed limits on association in the interest of promoting collective bargaining...
...On the other hand, he suggests that "Congress could have based the law on fundamental rights under the First Amendment's promise of free speech and association" as well as on the Thirteenth and Fourteenth Amendments...
...In my view, it is not the Wagner Act's promotion of collecWORKERS' RIGHTS tive bargaining but rather the Taft-Hartley Act's corruption of free speech and association that merits designation as the "original sin" of American labor law...
...But second, and more important for the purposes of this discussion, Wagner did not adopt Compa's approach because the senator sought to promote collective bargaining and foster strong unions that could carry it out...
...Finding new ways to speak about what labor once called "industrial democracy" may help us hone such arguments...
...labor history, which become clear in Compa's discussion of the Wagner Act...
...The divergence between Compa's views and mine may be attributable to our differing readings of U.S...
...His is scarcely a ringing endorsement of the rights-based argument...
...DISSENT / Winter 2005 • 71...
...Of course, Compa is right when he says that law matters, and I agree with his reading of the present flaws in our labor law...
...There were two reasons why the NLRA's framers did not pursue the rights-based approach that Compa wishes they had taken...
...Rights talk alone is bound to be as deficient as a language of labor solidarity today as it was in the past...
...In fact, recent trends in union organization don't bear out his optimism: organizing successes have been all too rare since labor took up the human rights formulation...
...Compa's treatment of the NLRA is contradictory...
...Friedman accuses me of ceding "too much ground" to anti-union ideologues when I point out how labor's present-day rights talk unintentionally reinforces aspects of the righttowork argument...
...He seems of two minds on this...
...A law that did such things obviously could not rest comfortably on the foundations of "free association...
...We won't beat these union foes by disparaging their honesty, as Friedman does...
...First, the history of constitutional law prior to 1935 made the commerce clause the most credible basis for sustaining a national labor relations law in the view of Senator Robert Wagner, who was interested in an act that could withstand Supreme Court scrutiny (as the NLRA ultimately did by a narrow 5-4 margin...
...They understood that the inequality of bargaining power between employers and workers made such constraints necessary...
...Let me turn first to Lance Compa's insightful critique...
...But, in this limited space, I must focus instead on our points of disagreement, and on only the main ones at that...
...We need to advance better arguments than they do, arguments that speak directly not only to workers' aspirations for freedom (as the right-to-work crowd does) but also to their desire for a say over the economic institutions that affect their lives...
...Indeed, even Compa himself notes that the human rights approach has been no panacea for labor...
...He cautions that labor's new appeals may not show results soon and admits that the concept of human rights is "still an abstraction for most workers...
Vol. 52 • January 2005 • No. 1
