Stop union-busting: get rid of bosses
The ruling class has a warning for workers exercising their rights: we will cut off our own noses to spite you. Executives at major corporations have said as much recently by shutting down parts of their businesses where workers pushed to unionize amid a renewed nationwide interest in labor organizing.
Starbucks, the most high-profile of the firms, appears to be trying to restore its reputation for ruthless union-busting by closing one of its shops in Ithaca, N.Y. Employees at the store were among 220 Starbucks stores to vote this year in favor of union representation. Chipotle also looks to be attempting to crush a nascent workers' movement in its own corporate fiefdom by shuttering one of its stores in Augusta, Maine, the first-ever Chipotle to petition for a vote on union representation. News of the closure came days after workers at a Chipotle in Lansing, Michigan followed their Maine comrades' lead. And Amy's Kitchen announced in early August that it would close its plant in San Jose, California, where workers had begun to organize for union representation about 100 miles south of a company facility in Santa Rosa where workers had done the same.
These developments hardly seem coincidental. All of these closures were announced within weeks of one another with organizing efforts spreading like wildfire, and all three corporations are represented by law firms known for their “union avoidance” expertise. Starbucks and Amy's have hired the services of union-buster extraordinaire Littler Mendelson, while Chipotle is represented by one of Littler’s competitors, Morgan Lewis.
The involvement of these firms doesn't mean that the store closures are above board. In 1965, the Supreme Court ruled in Textile Workers Union v. Darlington Mfg. Co. that a company may not cease operations at part of its business if the decision was “motivated by a purpose to chill unionism in any of the remaining plants.” But the companies are likely being instructed to view any possible violations of the National Labor Relations Act (NLRA) as the cost of doing business. It's simply not worth it for bosses to worry about getting caught disobeying the law. NLRA violations occur in almost half of all union drives.
This has become a routine occurrence for several reasons. For one, the federal agency that administers legal matters involving labor unions, the National Labor Relations Board (NLRB), is now woefully underfunded by Congress. The lack of adequate staffing has led to a bottleneck of casework, and the lag between illegal retaliation, such as a venue closure, and a judgment in favor of workers may itself chill the frenzy of union activity that had been going on at the companies' other stores. Secondly, back-pay, which the NLRB can force bosses to give illegally laid-off workers, likely pales in comparison to labor costs that the company would have incurred if its workers weren't intimidated out of organizing by layoffs and firings. Thirdly, in the event that the Board does mandate back-pay, it subtracts whatever laid-off workers earned between their termination and the Board's judgment, diminishing the penalty paid by management.
It's also not entirely clear that Starbucks, Chipotle, and Amy's did break the law by shutting down shops, even if their hatred of unions is visible from outer space. Workers must be able to prove that the actual decision to close facilities was motivated by anti-union sentiment, and they haven't received much help from the Supreme Court after Darlington. In 1981, for example, in the case First Nat'l Maintenance Corp. v. NLRB, justices ruled that partial business closures targeting union activity were permissible if done “purely for economic reasons.” Bosses, the Court said, have the “need for unencumbered decision making,” and the decision to close parts of their business isn't one of the protected “'terms and conditions of employment' over which Congress has mandated bargaining.”
This hasn't just helped bosses undermine newly-established unions trying to win a first contract. There is a long trend of executives chilling union activity by moving production lines “purely for economic reasons” from union-friendly states, to states governed by Republicans, to jurisdictions outside of U.S. law entirely. Private sector union density has shriveled partially as a result of this trend, from 35.7 percent in 1953 to 6.1 percent last year, despite the fact that unions are incredibly popular. Inequality has exploded as a result, and the country has effectively become an oligarchy.
Policymakers can do something to reverse this corrosive trend by passing the Protecting the Right to Organize (PRO) Act, legislation that has come within three Senate votes of being sent to President Biden's desk this Congress. The bill would mandate stiffer punishments for employers who violate the NLRA by establishing higher back-pay orders for illegally terminated workers and civil litigation risk for executives who conspire to illegally bust organizing efforts. The bill would also, for the first time, allow the NLRB to fine companies found guilty of unfair labor practices, raising the cost of doing business as usual. But the threat would remain of employers avoiding NLRA violations altogether by closing unionized shops and invoking pure economic reasoning, as is their right under the precedent set by First Nat'l Maintenance.
There is a remedy to this problem. Pro-union lawmakers could complement the NLRA and borrow from legislation written by local officials across the country in support of housing activists. So-called Tenant Opportunity to Purchase Acts grant tenants the first right to buy property when their landlord decides to sell. Why shouldn't there be a Workers Opportunity to Purchase Act on the federal level? If bosses decide to wash their hands of a unionized shop by closing it “purely for economic reasons,” workers should be given an opportunity to make it economic by reorganizing as a firm without controlling bosses and their need for exorbitant executive compensation. In other words, unionized workers should have legal rights and government support to re-open a shuttered facility themselves, as a worker-owned cooperative.
Here's how this might look in practice: If any business or part of a business closes where workers have voted to unionize, whether the decision to close was made one week or one decade after the vote, the workers should have the right to form a co-op and have the first opportunity to lease or purchase the commercial real estate that once housed the business where they worked. The federal government could then help the new venture gain its footing with financing, either through direct lending or wholesale financial market interventions, from a newly-established federal agency or a newly-created office within the Department of Labor, designed to make credit to co-ops more affordable. (The Small Business Administration, the traditional government purveyor of credit to small businesses, is too close to corporate lobbyists to be trusted with such responsibilities).
Wholesale financial interventions could be accomplished through loan guarantees, purchases by the federal government on secondary markets of securities backed by commercial loans, or both. And there's no reason that the Commerce Clause, which undergirds the NRLA and the NLRB, couldn't also apply to a Worker Opportunity to Purchase Act. The U.S. government has the Constitutional power to regulate commerce to benefit workers, even if this authority has atrophied in recent decades.
This isn't to say that worker-owned cooperatives should be the ultimate goal of the labor movement. The movement should endeavor to establish a socialist economy, and many worker co-ops under capitalism must focus the vast majority of their members' collective energy on survival and, therefore, tend to make solidarity and broader labor movement goals low priorities. Moreover, co-ops under capitalism must follow cruel market logic, a reality that forces some to adopt exploitative practices of their conventional competitors.
But similar criticism can be made of many labor unions under capitalism, and no one on the left would seriously suggest abandoning collective bargaining, nor should they. Moreover, establishing a shared material interest between labor organizers and worker co-ops could inject much-needed class consciousness into the latter, encouraging co-ops to venture outside of their silos and toward efforts to transform the broader economic system.
Creating a Worker Opportunity to Purchase Act could also benefit the labor movement without establishing a single new worker co-op. The legislation would create disincentives for bosses to close shops to bust unions, whether newly-formed or long-existing, and it would discourage mass layoffs of unionized shops during a recession because it would give workers an opportunity to establish a competitor.
A Worker Opportunity to Purchase Act would also encourage workers to organize unions because they might anticipate that their bosses will respond to a successful union drive by shutting down their shop, and they would relish the opportunity to exercise their right to self-management. Either way, unionizing only to see the shop closed would no longer be a likely dead-end outcome and an effective means of chilling organizing activity, and if their bosses decide to bargain with the union, it would still be a win for these workers because they would end up with higher pay.
Thus, with a Worker Opportunity to Purchase Act, those seeking to build worker power would have more weapons in their arsenal to fight back against increasing dominance by capitalists who have effectively undermined labor unions over the past few decades, in no small part by their ability to move production from jurisdiction to jurisdiction in a race to the bottom for working conditions.
If bosses are able to layoff workers because they view these workers' compensation demands as excessive, workers who organize should be able to retaliate: they should be able to effectively fire bosses demanding too much of a return on capital and create a race to the bottom for those seeking to make a living off of unearned income. A Worker Opportunity to Purchase Act could help achieve this and put a damper on the ruling class’ eagerness to crush unions by destroying parts of their ventures and the communities that these shops serve.
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All denunciations of this idea as liberal utopianism should be directed to Sam Knight.
Email: samueledwardsknight@gmail.com
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