The Poverty & Race Research Action Council recently organized a forum around Richard D. Kahlenberg and Moshe Z. Marvit’s recent book, Why Labor Organizing Should Be a Civil Right. They asked several well-known figures from the labor and civil rights worlds, plus some academics and public interest group leaders, to provide their commentaries on the article below, a précis of the book. Excerpts of this interesting and useful conversation appear below, with a full version available in the Poverty & Race Research Action Council newsletter.
Richard D. Kahlenberg and Moshe Z. Marvit write:
On April 4, 1968, when Dr. Martin Luther King, Jr. was tragically gunned down in Memphis, Tennessee, he stood at the intersection of two great forces for greater human dignity: the Civil Rights Movement and the labor movement. King was in Memphis, it should be remembered, to support striking black sanitation workers who marched with King carrying posters with the iconic message, “I AM A MAN.”
The signs had resonance in part because, as black Americans, the sanitation workers were sick of being derisively referred to by racist whites as “boy.” But in addition, as garbage collectors, they were tired of being poorly treated by management and by fellow citizens, who looked down upon them. Because their employer would not provide them with a place to shower after work, garbage collectors were shunned by bus drivers and fellow passengers and often had to walk home. Managers, failing to fully recognize the basic humanity of sanitation workers, refused to install safety features on garbage trucks. After two sanitation workers were accidentally crushed to death by a defective packing mechanism on a garbage truck, 1,300 workers went on strike. Their message, “I AM A MAN,” contained a powerful demand for better treatment.
King rallied with sanitation workers and affirmed their dual message of racial and economic justice. “Whenever you are engaged in work that serves humanity and is for the building of humanity, it has dignity and it has worth,” King told American Federation of State, County and Municipal Employees (AFSCME) workers in March 1968. He told them, “All labor has dignity.”
King had long seen the connection between the labor and civil rights movements as engines for human equality for men and women alike. While some racist union locals famously resisted progress for blacks, most were far more progressive on issues of civil rights than society as a whole. The massive labor federation, the American Federation of Labor and the Congress of Industrial Organizations (AFL-CIO), became a critical supporter of civil rights legislation, including the 1964 Civil Rights Act, which, in Title VII, forbade racial discrimination in employment. In a 1961 speech to the AFL-CIO, King declared, “Our needs are identical with labor’s needs: decent wages, fair working conditions, livable housing, old age security, health and welfare measures, conditions in which families can grow, have education for their children, and respect in the community…. The duality of interests of labor and Negroes makes any crisis which lacerates you a crisis from which we bleed.”
In the last year of his life, King had begun a multi-racial Poor People’s Campaign, and in his final Sunday sermon, delivered at the National Cathedral in Washington, DC, he called his vision of economic justice nothing less than his “last, greatest dream.” In Memphis, King recounted the great victories for civil rights in Montgomery and Selma, and suggested, “You are going beyond purely civil rights questions to questions of human rights,” raising “the economic issue.” People must not only have the right to sit at a lunch counter, but also the right to afford a hamburger, he told the audience.
What Came of King’s Twin Dreams?
In the years since King was struck down, enormous improvements have been made in racial attitudes and in the life chances of African Americans. The black middle class has grown significantly, the number of black professionals has increased, and the black/white educational gap on such matters as high school graduation rates has shrunk dramatically. While far more progress needs to be made, we have since 1968 witnessed a sea change in racial attitudes, culminating in the once inconceivable idea of a black American President being elected. As Harvard Law professor Randall Kennedy has written in his 2011 book, The Persistence of the Color Line: Racial Politics and the Obama Presidency: “One of the great achievements delegitimization of racial prejudice.” In that sense, the 1964 Civil Rights Act has proven a tremendous success. Among the broader public in America and internationally, the Civil Rights Movement is rightly regarded as iconic in the struggle for human dignity and inclusion. While more work surely needs to be done, the trajectory on race is generally pointed in the right direction.
By contrast, since the 1960s, the American labor movement has seen enormous setbacks. Labor once dreamed that, with the vanquishing of Jim Crow, the racism that had kept working-class whites in the South from uniting with blacks would diminish and Southern states could be unionized.
But organized labor did not conquer the South; instead, to a significant degree, Southern anti-union practices have spread through much of the country. From its peak in the mid-1950s, organized labor has declined from more than one-third of private sector workers (and one-half of the industrial workforce) to less than one-tenth. Today, even public sector unionism is under attack in several states. Meanwhile, economic inequality has skyrocketed to the point that the top 1% of Americans own more than the bottom 90%, and income from productivity gains have gone almost exclusively to the top 10%. Economists agree the two phenomena are connected, and that rising economic inequality in America is due in some significant measure to the weakness of the American labor movement.
The Civil Rights and National Labor Relations Acts
There are many factors that help explain why the nation has progressed on King’s vision for civil rights while it has moved backward on his emphasis on the importance of economic equality and union strength. However, among the most important—and the easiest to remedy—is the substantial difference between the strength of our laws on civil rights and on labor. Seventy-five years of experience with the National Labor Relations Act of 1935 (NLRA) and 45 years of experience with Title VII of the Civil Rights Act of 1964 suggest that the former has proven largely ineffectual in protecting workers, while the latter has been quite successful in diminishing discrimination and changing social attitudes.
The 1964 Civil Rights Act, subsequently amended in 1991, provides powerful penalties for employers who discriminate on the basis of race, sex, national origin or religion. Under the 1991 amendments, employment discrimination remedies have been expanded to include not only back pay but compensatory and punitive damages up to $300,000. Civil rights laws also provide plaintiffs with the opportunity to pursue legal discovery, something that employers assiduously seek to avoid. Furthermore, plaintiffs are given access to jury trials; and when plaintiffs prevail, defendants are liable for up to double the hourly rate for plaintiffs’ attorneys’ fees.
Under the NLRA, it is likewise illegal to discriminate against employees for trying to organize a union, because lawmakers recognized that firms should not be allowed to use their disproportionate power to intimidate workers. But the penalties and processes under the NLRA are far weaker. If employers are found to have violated the law, they must reinstate any terminated employees and provide them with back pay, normally after a lengthy and arduous process of enforcement. And under the NLRA, there is extremely limited opportunity for discovery and no jury trial. Faced with the prospect of having to negotiate substantial wage and benefit increases with a union, businesses have a strong financial incentive to fire organizing employees and risk paying the penalties as a cost of doing business. Labor lawyer Thomas Geoghegan writes in his 1991 book, Which Side Are You On?: “An employer who didn’t break the law would have to be what economists call an ‘irrational firm.’”
Amending the Civil Rights Act for Labor Organizing
The central thesis of our new book, Why Labor Organizing Should Be a Civil Right, is that the Civil Rights Act should be amended to add protection for employees seeking to organize a union. Just as it is illegal to fire someone for race or gender or national origin or religion, it would be illegal under the Civil Rights Act to fire someone for trying to organize or join a union. . . . (Read more here.)
Response Commentary by Theodore M. Shaw
Professor of Professional Practice, Columbia Law School, [email protected]
Richard Kahlenberg’s and Moshe Marvit’s précis of their book left me with deeply conflicted feelings and reactions. It is provocative and thoughtworthy in a manner that requires more time and greater reflection. Consequentially, my initial reactions may not survive further reflection; still, they are strong enough that they demand articulation, if only because I cannot get to where Kahlenberg and Marvit (K&M) are without jumping significant hurdles and reordering long-held principles and beliefs. My own views of class and race invite a “gut rush” acceptance of K&M’s thesis; yet I am left with a profound discomfort that defies my ability to organize adequately into thoughts.
The invocation of Dr. Martin Luther King’s last campaign, grounded in an understanding of historical and contemporary relationship between class and race, and of the need to adopt the politics of a movement for racial and economic justice, exerts a powerfully seductive force on progressives. Dr. King did not want to go to Memphis, but the strike by black sanitation workers appealed to his core beliefs in a way that coincided with his development as a leader that took him beyond the struggle against racial segregation and discrimination. By 1968, King could no longer stay silent about the Vietnam War and American militarism. Nor could he pursue his dream of a just society without addressing economic inequality, not only for black Americans whose struggle against racial discrimination had left them economically disadvantaged, but for all Americans. King was charting new territory, not because no American had challenged economic injustice before him, or even because no African-American leader had done so. . . . (Read more on page 13 of the PDF.)
Commentary by Ross Eisenbrey
Vice President, Economic Policy Institute, [email protected]
I disagree with a fundamental premise of the article. The premise is that the Civil Rights Act has so improved the status of black Americans that we should use the same legal model to improve the status of workers. But as the authors note, Dr. King did not accept that legal rights, even backed by strong sanctions, are enough. We have to judge the success of the Civil Rights Act with a yardstick that includes economic progress: “People must not only have the right to sit at a lunch counter, but also the right to afford a hamburger.” However great the improvements for African Americans have been in legal rights and social relations, the economic gains have been less impressive. . . . (Read more on page 13 of the PDF.)
Commentary by Julius Getman
Professor of Law, Univ. of Texas School of Law, [email protected]
It is time to amend the National Labor Relations Act. It has failed to meet the stated statutory goal of “encouraging the practice and procedure of collective bargaining,” and it has failed to protect the right of employees to unionize. Kahlenberg and Marvit recognize the law’s weakness and suggest strengthening it by bringing the right to organize under the Civil Rights Act. This would have the beneficial effect of increasing penalties imposed on employers who discharge or otherwise penalize union supporters. They suggest that the National Labor Relations Board administer the new approach, describing the Board as “an agency that is finely attuned to the nuances of labor law through its more than 75 years of experience handling labor disputes.”
Kahlenberg and Marvit anticipate a cultural change occurring once this new approach is tried. They see their proposed change in the law as a step towards making anti-union discrimination as culturally despised as racism. If this occurs, employers might stop opposing unions so fiercely. “Conceivably, writing labor organizing protections into the Civil Rights Act could also spawn a cultural shift in employer behavior. Employers who are found guilty of racial or gender discrimination are today seen to have done something shameful,” they write.
I favor their proposal because it would grant significant protection to employees who are now legally vulnerable to economic devastation. . . . (Read more on page 14 of the PDF.)
Commentary by Leo W. Gerard
International President, United Steelworkers, [email protected]
Unions put power in the hands of working people, just as the vote put power in the hands of black people. Immediately after President Abraham Lincoln emancipated the slaves, former slave-holders—that is, the wealthy of the Confederacy—conspired to prevent black people from exercising their franchise, to prevent them from wielding the power of the vote to improve their lives. Immediately after the Wagner Act was passed in 1935, right-wing politicians, at the behest of robber barons, conspired to prevent working people from exercising the right to organize enshrined in the law, a right that enabled working people to improve their lives. . . . . (Read more on page 15 of the PDF.)
Commentary by Sheryll Cashin
Professor of Law, Georgetown Law Center, [email protected]
I will leave it to others more expert than me to comment on the substantive merits of the proposal to amend the Civil Rights Act put forth by Richard Kahlenberg and Moshe Marvit. I will say this: They are surely on to something important, perhaps transformative. I agree with them and Dr. King that there is a profound congruence between the goals of the labor movement and the demand for universal human dignity that animated the Civil Rights Movement. The forgotten march, The Poor People’s Campaign of 1968, which King envisioned but did not live to see to fruition, embodied this convergence. The Campaign would bring blacks, Chicanos, Native Americans and rural whites from invisible hamlets of poverty to occupy the National Mall in a tent city that lasted six weeks. As King imagined it, this multiracial coalition united by economic oppression would kickstart the second phase of the Movement. Mere civil rights, the ability to sit at any lunch counter, were irrelevant without economic means, and so he conceived of a civilly disobedient campaign to put pressure on national leaders to adopt an “economic bill of rights.” . . . . (Read more on page 16 of the PDF.)
Commentary by Larry Cohen
President, Communication Workers of America
Using Dr. King as their vehicle, Kahlenberg and Marvit write on how Labor and Civil Rights are intertwined, and they note the ascension of civil rights and decline of labor rights since the 1960s.
On a tactical level, our partners in the Civil Rights Movement tell me that they would be opposed to opening the Civil Rights Act, but would be supportive of adding private right of action to their existing support for collective action in the workplace.
Any such initiative will be the target of the same sustained U.S. Chamber of Commerce campaign which has rolled back worker rights, our standard of living and the U.S. economy. In the U.S., our collective bargaining framework has been systematically destroyed by the Chamber’s 40-year campaign, resulting in flat real wages for 30 years. . . . (Read more on page 16 of the PDF.)
Commentary by Randi Weingarten
President, American Federation of Teachers, [email protected]
We’ve always been a nation built on the simple belief that everyone deserves equal access to economic opportunity and a path to the American dream. That no matter who you are or where you are from—immigrant or native-born—each of us should have a fair shot to achieve our dreams and care for our families. Today, that fair shot, that path to economic opportunity, is under attack by a group of elites seeking to enrich themselves at the expense of the rest of us.
And one of the biggest threats to economic opportunity is the coordinated effort to strip Americans of their right to collectively bargain for fair wages and benefits and a better life for their families and communities. Consider this: Between 1973 and 2007, union membership in the private sector dropped from more than 34% to 8%. During that time, wage inequality in the private sector increased by more than 40%. As we saw in Michigan, extremist politicians continue to ram through policies dubbed “right-to-work” which instead choke the ability of unions to act effectively. These so-called “right-to-work” laws have depressed wages and suppressed the ability of workers to collectively bargain. Today, when workers seek to join unions, 25% of employers fire at least one pro-union worker. And workers are routinely harassed, intimidated and threatened for trying to form or join a union. . . . (Read more on page 17 of the PDF.)