Thinking About A Non-Elite Labor Law after Sean O’Brien’s Speech at the RNC

A Note to J.D. Vance, Josh Hawley, and Oren Cass

I have always been a labor utilitarian. I desire what produces the greatest good for the greatest number of workers. Workers’ lots improve when they have actual power (not just “voice”). As I write, I’m listening to Owen Cass referencing papal encyclicals and invoking principles of Catholic social justice. Interesting, and I have some prompt reaction to what I’m hearing. And I recently watched Sean O’Brien’s excellent speech at the Republican National Convention in which he commended what I will refer to as republican or right-populists. I thought I’d try to provide an independent response (because I am not a party affiliate).

I am the first to agree that the National Labor Relations Act/Wagner & Taft-Hartley vision of labor power is extremely limited. Even as a young worker, I intuitively understood that the purpose of existing labor law was to hopefully (but merely) prevent employers from firing employees attempting to unionize. I don’t think anyone (except in far-out lanes) has a contrary view that this is what the law should be, though there is significant disagreement about the rules in place to distinguish “legitimate” or “for cause” firing from illegal union-evasive firing.

I think it is silly to argue you are against firing workers for their union sentiments at the same time you agitate for legalistic impediments to worker reinstatement from illegal firing. The fact is that employers routinely lie about the bona fide nature of employee discharges, and I don’t wish to discuss the point further here. Except to make one additional point. Most of the management preliminary sub-rules of labor organization regulation: you can’t threaten employees with “reprisal”; you can’t promise or confer benefits to employees when they are deciding to unionize; you can’t “surveil” employees; you can’t “interrogate” employees—all of these sub-rules—are subordinate to protecting the employee from firing/discharge. Do that and the rest of the rules respecting preliminary union-protective regulation fade into relative insignificance.

I don’t think most republican “populists” would seriously disagree to this point. But all of this is the easy front end of labor law. Even corporatists on the left and the right agree here. The back end of the labor law kicks in once a union is established. And the dirty little secret is that corporatists and most politicians (of both democratic and republican stripes) agree here, too. Because, although workers are “allowed” (at least in polite circles) to win unions, unions are not allowed to “win” labor disputes. The hope is that unions won’t lose in these disputes too badly. But make no mistake, the structure of the National Labor Relations Act ensures that unions will ultimately lose disputes. That is the real reason union density won’t budge from 6% even in a gilded age. Workers know this. So, unless you are for, really for, the modification, the substantial amendment of labor law, you are not really for workers. Sunnier interpretations of bad laws won’t cut it.

What does it mean for an employer to “bargain in good faith”? Our law says that an employer can never be compelled to agree to any “mandatory subject” of bargaining. This comes as a shock to workers who organize a union only to discover that the employer’s “answer” is simply “no.” “We will not agree to improve conditions because we do not have to do so.” I’ve been directly involved in many cases in which employers said something this simple and were permitted (with just a few caveats) to say it. As long as the employer shows up to negotiations on time and sends someone with authority to bargain it has factually done most of what it is required to do. Again, sophisticated workers know this.

If the union does not like it, the union may strike, and the strikers may be permanently replaced. Unless the union is one of the very few with resources, that is the end of the matter, because employers can wait out a strike longer than you can strike. Will the right-populists change any of that? It has remained unchanged since 1935, even though almost none of it is written into the labor statute (the NLRA).

But there is an even simpler “tell” on the authenticity of “new labor” advocates. From the time I understood things at all, I realized that the entire method of labor law control is speech suppression. Even though I seek no violence, I may not picket at the doorstep of an employer that is a “neutral” to whatever labor dispute I may have with my own employer. Why? Because those employees (of the neutral/secondary employer) may act in league with me as a matter of solidarity. They may strike—especially if they can see the specifics of what my labor dispute is all about and determine that it implicates working people more generally. It is one of the unstated goals of the system to conceal and obscure those specifics.

The section of the law regulating these kinds of “secondary boycotts” is (not surprisingly) statutory, found in NLRA Section 8(b)(4) of the NLRA, and it is in my experience the most aggressively enforced labor provision in all of labor law. Historically, “8(b)(4) charges” must be investigated within 72 hours of filing; and the director of the local NLRB office is required to seek a federal court injunction shutting down the secondary boycott. A union is also liable for tort damages if “injury” occurs during a secondary boycott. What does that mean? Nothing good. Are you “feeling me”?

Perhaps some of this secondary boycott regulation could be understood if there had actually been violence, or the like, during the course of a labor dispute. But this is very often not the case, and it is not necessary to find an explicit threat of violence to find a violation. It is labor law functioning as a sword towards employees, rather than as a shield protecting them. And the “whole thing” can be set off by picketing with signs (which has, since labor law’s inception, been seen as an activity implicitly threatening coercion—more threatening or coercive than mere speech).

I’ve seen some pretty calm secondary picketing, and it matters not one whit once the system presumes employers are under threat. It is hard to see this policy of containment as other than protecting speech at the beginning of a process that will fail. Unless speech remains unsuppressed at the precise moment it means the most—when other workers and the community  will see and hear it and react in ways causing significant economic expense to the employer—it cannot, and will not, enlist the support of the working class.

So, notwithstanding Sean O’Brien’s recent speech and vote of confidence at the Republican National Convention, I could design a pretty brief questionnaire that I think would do a better job at predicting the likelihood of future alliance. Ask about permanent replacements, lockouts, the duty to bargain over the closure of business, and the expansion of the right to strike and picket that is co-extensive with Railway Labor Act law (where employees are permitted to engage in secondary activity). Weak answers to those kinds of questions mean you are looking at cosmetics. You are still in the domain of the elites, no matter how much the mantle of populism may be invoked.