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Feature
Story (continued) |
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Conversation
with
Jim Pope
Rutgers Law Professor |
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| Free
to Speak ... Assemble ... Organize |
I first got interested in labor rights during
the four years I worked in a shipyard. After that, I went to
law school. I took a course in constitutional law, and my
teacher acted as if labor rights had nothing to do with the
Constitution. And I thought, gee, that’s odd. So I started
looking into it. I’ve spent years in archives. It’s such
ancient history, and a lot of it has been forgotten.
The labor movement was actually a leading
force in putting the First Amendment on the map. Until this
century, there wasn’t a single U.S. Supreme Court decision
enforcing the First Amendment. But in the late 1920s, there
were all these spectacular battles where Wobblies would come
into town and start speaking from soapboxes and get thrown
into jail. Those fights brought the First Amendment to people’s
attention.
DEMANDING OUR RIGHTS
And yet, eventually, the law was interpreted
so that workers and unions were excluded from the First
Amendment. Labor rights always get short shrift whenever they
come up against anything else, especially property rights. And
it leads some of us to feel that there’s a structural
problem we need to correct in the National Labor Relations
Act.
There are several things we might be able to
do with the ideas we present in this paper. One is that they
could serve as the basis for civil disobedience in the right
kind of situation.
In the 1930s and 40s, the labor movement
fought so hard for the principle that you don’t let the
factory operate during a strike. Employers where unions were
strong didn’t even attempt to operate during a strike until
the late 1970s. Because workers said, "You may not take
our right to organize seriously, but we do. And if you violate
our right to organize, we’re going to stop production."
That was the sanction workers put on the employers.
So now, when we’re facing routine labor law
violations, the idea of going back to that kind of
self-enforcement — stopping production or mass picketing —
seems a lot more plausible than getting Congress to enact
strong penalties on employers who violate workers’ rights.
TOWARD A NEW STRATEGY
The purpose of this paper is not to say what
labor’s strategy ought to be. But we want unions to know
that if, for instance, they need to do civil disobedience,
their rights derive from the Constitution. And that may affect
their strategy.
I also think there’s a place for legislation
to ensure that we have constitutional rights in the workplace
or on private property.
We need to generate discussion about what a
labor law built on the idea of organizing as a fundamental
human right would look like. And that’s where we’re not
yet very far along. We need to begin thinking about a way we
could totally replace the NLRA with something based on the
idea that organizing is a basic human right.
Next: A Conversation
with Libby Devlin ->
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with Peter Kellman
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