The Smithfield and Wackenhut RICO Suits: Forward into the Past

The Smithfield and Wackenhut RICO Suits: Forward into the Past
Global Labor Strategies
(part 2 in a series - read part 1)

In our last post we described how the RICO suits filed by Smithfield Packing and Wackenhut Corporation represent a sharp escalation in the long standing corporate assault on human and labor rights. Not content with stripping workers and their organizations of fundamental labor rights, big corporations are now going after basic constitutional rights. We argued that these suits threaten the civil rights not just of unions but of everyone.

There is a back story to these suits that stretches to the birth of the US labor movement over 200 years ago when conspiracy laws were first used to prevent workers from forming unions.

Unions as conspiracies

In 1806, members of the Federal Society of Journeyman Cordwainers—an association of Philadelphia shoemakers--— went on strike to demand higher wages. In response, the Commonwealth of Pennsylvania went to court charging that the action by the 12 year old union was a “criminal conspiracy” since, according to prosecutors, the union used unlawful coercion to achieve its economic goals—for instance, union shoemakers refused to do business or associate with bosses or workers who did not abide by its wage rates and standards. In a sign of the anti-labor legal bias that would inform much of US history, the prosecution was instigated and paid for by the employers. The government won. The union was broken and its leaders fined.

In those bad old days, courts defined the effort of workers to organize as a purely economic question. According to prevailing elite views, unions interfered with the smooth functioning of the labor market, making them a restraint of trade. The labor market was viewed like any other market with labor as a commodity like any other commodity. For most of the 19th century and part of 20th century courts with few exceptions ruled that whenever workers banded together “in combinations” they were engaged in illegal conspiracies. Injunctions generally followed.

Revolutionary change and anti-union bias

Meanwhile “combinations” of capitalists—corporations—grew with the blessings of the courts throughout the 19th century as the American economy shifted from artisan-based production for local consumption to a system dominated by huge national corporations. Thousands of smaller companies were swallowed up by larger companies, particularly as legal impediments to the growth of corporations were swept aside by state legislators and the courts.

But while the economy underwent revolutionary change, the prevailing anti-union ideology did not. The courts allowed capitalists to organize themselves into corporations which were bestowed by law with the rights of individual human beings, but opposed unions as interference with the "free, competitive" market. As Christopher Tomlins argues in The State and the Unions, the marginality of the unions in the new political system was assured

by the consistent hostility of American legal culture to virtually any form of labor organization. That hostility is conveniently symbolized in the familiar roll-call of early twentieth century Supreme Court decisions ... condemning unions as an invasion of entrepreneurial rights and dismissing legislative attempts to endorse them as legitimate bargaining agencies.

The burgeoning labor movement responded in a variety of ways. The unions of the American Federation of Labor (AFL) resisted injunctions when possible but generally functioned within the existing definitions of the law while trying to persuade courts and legislatures to allow workers to organize, strike, and boycott without legal interference. The Industrial Workers of the World (IWW) and radical trade unionists organized mass strikes and other direct actions which, while illegal, were at times too powerful for the legal authorities to halt.

The gains made by organized labor, both in its more conservative AFL form and its radical IWW form, were wiped out by the prosperity and antiunion drives of the 1920s.

The National Labor Relations Act

American labor never accepted the legitimacy of the labor injunction. The labor movement held that labor is not a commodity, because the laborer is a human being, not a thing. And human beings have human rights. In its own ambiguous way, 20th century labor law—however limited —accepted the view that labor is not a commodity, and that workers therefore do not lose their standing as human beings when they enter the workplace.

The Norris-LaGuardia Act of 1932— known the “Anti-Injunction Act”—barred the courts from issuing injunctions against peaceful collective action. Norris-LaGuardia contributed to an upsurge in union organizing in the early 1930s.

But it was the enactment of the National Labor Relations Act (the Wagner Act) in 1935 that provided the protections and regulations needed for unions to grow. The NLRA was not neutral: It was public policy designed to promote union organization to address the economic crisis of the Depression and the growing labor insurgency which that crisis spawned.

The NLRA begin with a preamble which declared the right to organize was necessary to calm industrial strife caused by management's refusal to bargain, to increase wages to stimulate commerce, and to redress an imbalance between employers who are organized into corporations and employees who do not enjoy full freedom of organization. In the words of the NLRA,

The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries….

It is declared to be the policy of the United States to…. [encourage] the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

The NLRA established the framework in which the modem labor movement has developed. It rejected the courts’ established definition of wage labor as a purely economic relationship by protecting certain basic civil liberties on the job. It guaranteed workers "the right to self-organization" and to "concerted action." It prohibited employers from interfering with these rights in specified ways. These rights we take for granted in everyday life under the Constitution, but this was new to the workplace. It created a rights discourse -- and a right of discourse -- at the workplace.

The NLRA also established a right of workers "to bargain collectively through representatives of their own choosing." The necessary complement to this right was a "duty to bargain" on the part of management. The corporate overlords would have to sit down and negotiate with representatives of their vassals. Workers would select their representatives by a majority vote; the winner would be their exclusive representative.

To oversee the rights it guaranteed, the NLRA established a powerful National Labor Relations Board (NLRB). The NLRB determined bargaining units, ran elections to determine the bargaining agent, and generally regulated labor-management relations.

Business, of course, was solidly opposed to the NLRA. Paradoxically, the Act was also opposed by a coalition of independent leftists, Communists, and civil libertarians organized around the ACLU. They feared the state regulated labor movement implied by the NLRA. And they argued against majority rule, charging that the Act was an attempt to contain the burgeoning class struggle by allowing established unions to gain control of the newly organized workers. A debate ensued—recounted by Cletus Daniels in The ACLU and the Wagner Act—which foreshadowed the crisis in labor law today.

ACLU head Roger Baldwin presciently wrote to Senator Wagner,

The pressures on any government agency from employers are so constant and determined that it is far better to have no government intervention than to suffer the delusion that it will aid labor in the struggle for the rights to organize, bargain collectively, and strike."

Wagner's response was equally compelling,

Whether we will it or not, government in every country is going to be forced to play a more important role in every phase of economic life, and for that reason is seems to me more useful to attempt to direct the nature of that role rather than merely to state the truism that government is likely to be influenced by the forces in society that happen to be strongest. Certainly these forces cannot be checked by government self-limitation nor do I believe that governmental action in such matters over a decently long period of time serves to check the struggles that labor must carry on by extra-governmental means.

Both sides of the argument were proved true. Government protection made it far easier to organize and the "duty to bargain" made it far harder for companies to refuse unions recognition. Union membership virtually tripled in the decade following passage of the NLRA. (The ACLU and almost all of the Left quickly became enthusiastic supporters of the law.)

In the long run, however, Roger Baldwin's dire predictions also proved true. NLRB and court decisions governing it, plus the Taft-Hartley Act and other legislation, enormously eroded the rights that "labor's Magna Carta"—as many had called the NLRA—seemed to establish. The basic civil liberties—freedom of speech, assembly, and the like—that are necessary for the "right to self-organization" have never been realized and still do not exist today in the workplace. And the rights to strike, picket, boycott, and engage in other forms of concerted action have been so restricted that "equality of bargaining power" between labor and management has become a complete fiction. Today, the basic rights proclaimed in the NLRA are virtually a dead letter.

Forward into the past

Union membership is now lower than it was before the passage of the NLRA. In fact, things have become so bad that in October the AFL-CIO filed a complaint with the ILO charging the Bush administration’s NLRB with “….denying workers’ rights in violation of international labor standards”.

Today, it is companies like Smithfield and Wackenhut that call for adherence to NLRA procedures, knowing that the law has been bent completely around to serve employers interests. Smithfield complains bitterly in its brief that the union wants recognition “...without involving the NLRB.”

In response to changes in the economy and to the hostile labor rights climate promoted by the pro-business NLRB and others, labor has tried to make do—just as it did in an earlier era—by directly demanding that employers bargain with them, rather than relying on government to force recognition. One of the ways unions have done this is to utilize corporate campaigns to force companies to be neutral in organizing drives, to accept card check recognition, and to bargain in good faith.

Deprived of the basic labor rights protections of the Norris-LaGuardia Act and the NLRA, workers have turned to utilizing their basic human and Constitutional rights. Corporate campaigns revive the tactics of a period when labor rights were restricted—as they are once again—and unions employed boycotts, union label campaigns, and similar activities to leverage public pressure to support their demands.

The labor movement rejects the view that labor is a commodity like any other commodity, because the laborer is a human being and not a thing. And human beings have rights. In its own ambiguous way modern labor law—however degraded—reflects this view by recognizing the rights of workers to organize to bargain collectively. Twenty-first century labor law seems to have abandoned this fundamental principle. Labor has fought back, however, by exercising rights that are constitutionally protected not only for workers, but for everybody. It is those rights that Smithfield Packing and Wackenhut are attacking in their in their RICO suit.

The RICO suits filed by Smithfield Packing and Wackenhut are, in effect, another attempt to reduce labor to a commodity by stripping workers of their constitutional rights to free speech, free association, and the right to petition government.

If these RICO suits are successful, a key union tactic could be eliminated and labor’s revival sorely impeded. But perhaps, even more important, by suppressing basic constitutional and human rights, the advocates of any cause will find their right to protest usurped.

Everyone who values freedom will lose it these suits are successful.