Thursday, December 18, 2008
Current labor law violates the right to COMMERCIAL assembly?
As much as I thought I was aware of the poor state of unions in the USA I was surprised to read in the last chapter of Thomas Geoghegan's book, Which Side Are You On, that blocking unionization is a simple, standardized process, performed by hired hands who get away with breaking the law (the core of the blocking process) -- automatically.
At any whisper of a certification campaign by employees and management simply fires the leaders (never more than 1, or at most 2, out of 20). Said leaders then automatically file for reinstatement which is automatically granted them -- 4 years later! -- with back pay which is automatically granted -- minus any wages they earned anywhere else! -- after which 80% are fired again -- for "legal" reasons this time! -- within a year.
IOW, there is no effective right to organize labor under US law -- only the right to ask for your employer's permission to organize.
I would argue that the current legally prescribed labor organizing process violates the First Amendment right to assembly.
This is tricky. Commercial speech is protected but less so than political speech (e.g., advertising)? I can see the right to organize for the purpose of wage bargaining as as being recognized as protected commercial assembly (would be a new concept) which is protected even if less so than political assembly.
This gets trickier. The current legally prescribed organizing process does not directly prohibit organizing -- but steers all organizing activity into a narrow channel which is impossible to navigate against simple, standardized technique practiced by the opposite commercial interest.
It is not as if labor has any other forum or venue in which to pursue organzing. The law prescribes ONE path and one path only -- and it is IMPOSSIBLE to negotiate said path if the opposite interest desires not.