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Labor Law for the Rank & Filer
Building Solidarity While Staying Clear of the Law
By Staughton Lynd, Daniel Gross
PM PressCopyright © 2011 Staughton Lynd & Daniel Gross
All rights reserved.
ON BEING YOUR OWN LAWYER
MARTY AND STAN
This little book first appeared in 1978. A revised edition was published in 1982.
Two working-class intellectuals inspired the original booklet. The late Marty Glaberman spent years working for automobile companies in and around Detroit. He belonged to a radical group associated with the West Indian author and intellectual C.L.R. James. In 1952 Marty published a pamphlet entitled Punching Out There he argued that the characteristic achievement of the Congress of Industrial Organizations (CIO) was a collective bargaining agreement that contained a no-strike clause. Inevitably, Marty said, the union shop steward must enforce the contract, including its prohibition of work stoppages and wildcat strikes: the union steward becomes a cop for the boss.
During those same years, the late Stan Weir began his remarkable journey as a sailor, automobile worker, truck driver, and longshoreman. One of his basic ideas was that when human beings labor together they naturally create what Stan called informal work groups. These associations arise in the workplace and cannot be transferred to a union hall away from the plant. The informal work group fosters workers' self-activity in the form of group grievances, wildcat work stoppages, and local general strikes.
Stan Weir also framed the question to which this booklet seeks to respond. When you go to work you ordinarily leave your constitutional rights as a citizen in the glove compartment of your car on the employer's parking lot. Is there anything in the law that can help us to enjoy as workers the rights to speak, to associate, and so on, that we have, at least on paper, away from work? Together with another longshoreman, Robert Miles, Stan formed a small publishing house, Singlejack Books, which printed the first two editions of Labor Law for the Rank and Filer.
The authors of this new edition generally endorse the ideas of our departed comrades, Marty Glaberman and Stan Weir. Daniel Gross is an organizer with the Industrial Workers of the World (IWW) on the campaign to organize Starbucks. A former Starbucks barista and a graduate of Fordham Law School, he is the Founding Director of Brandworkers International, a non-profit organization for retail and food employees. Staughton Lynd specialized in employment law as an attorney for Legal Services in Youngstown, Ohio, and has written, among other things, Solidarity Unionism: Rebuilding the Labor Movement from Below (Chicago: Charles H. Kerr, 1992). Since his retirement in 1996 he has advocated for prisoners.
ON BEING YOUR OWN LAWYER
Basically, this is a do-it-yourself book. Its goal is to help you deal more effectively with the law: to protect yourself when the law is against you, and to get more accomplished when the law is on your side.
Our point of view is that whenever a problem can be solved without the help of a lawyer, do it. Besides being expensive the law takes a long time. And it is written and administered by individuals who for the most part do not understand or sympathize with the experience of working people.
Lawyers, like doctors, make their profession seem more mysterious than it really is. They use big words when short words would do just as well. They encourage workers to feel helpless unless a lawyer is representing them.
The assumption of this book is that, with a modest orientation, anyone able to read can make a preliminary assessment of a labor law problem. Dr. Spock takes the same approach to medicine in his famous book on baby care. He says to the mother or father of young children: if your child shows symptom A, watch carefully to see if B or C appear as well; if they do, call a doctor; if they don't, you can take care of the child yourself.
This book views your problems in labor law similarly. Our aim is not to teach you the law. It is to teach you how to teach yourself at least the broad outlines of the law, so that you can diagnose a labor law problem, just as you might size up what's wrong with the car engine.
To know what the law is about a problem, you have to know not only the text of the relevant statutes but also how that text has been interpreted by the National Labor Relations Board, by other administrative agencies, and by the courts.
If you work in a shop or office with a collective bargaining agreement and a grievance procedure, you have a headstart in understanding this.
In using a grievance procedure, you have to know both the contract and decisions interpreting the contract. To rely on the text of the contract alone, no matter how clear it seems to be, can get you in big trouble.
Similarly, the law begins with the text of constitutions, statutes, administrative regulations, etc. But the law is more than these texts. It is also cases interpreting the texts.
THE BNA BOOKS
There is a set of books which can give you a general idea of what the law is about the most common labor law problems for workers employed by private companies. Some libraries have these books, some don't.
The Bureau of National Affairs (BNA) periodically publishes a book entitled The Developing Labor Law. It also publishes the Labor Relations Expediter.
It does not make sense to purchase the Expediter because it is in looseleaf form and is constantly updated by the BNA. If you can find a library that has this book it should be your first port of call when you want to look something up. It is arranged alphabetically; for instance, "Bargaining Units" comes before "Strikes." Use the index to try to determine what topic covers the problem you have in mind.
Every topic in the Expediter has a number, known as a "key number." The BNA periodically publishes a Cumulative Digest of cases. You can look in the Digest under the key number related to your problem and find short summaries of the important cases decided about that topic since the previous Digest was published.
Each case summary in the Digest has a citation to the full text of the decision. The decisions are collected in a series of volumes called the Labor Relations Reference Manual, or LRRM for short.
A citation lists in order: the name of the case, the number of the volume in which the decision appears, the series of books of which that volume is a part, the page number on which the decision begins, and the date of the decision. Thus, Royal Typewriter Co., 85 LRRM 1501 (1974), tells you to get volume 85 of the Labor Relations Reference Manual and look on page 1501 for a 1974 decision involving the Royal Typewriter Company.
This is also the form used to cite court decisions: first the number of the volume, then the series, then the page of that volume on which the text of the decision begins, then the court, and finally the year. Thus, the case in which one of us sought to prevent U.S. Steel from closing its mills in Youngstown is Local 1330 v. U.S. Steel, 492 F.Supp. 1 (N.D. Ohio 1980). This translates as volume 492 of the series of volumes entitled Federal Supplement beginning on page 1 decided by the United States District Court for the Northern District of Ohio in 1980. The case then went to the circuit court of appeals. There it was decided with the citation Local 1330 v. U.S. Steel, 631 F.2d 1264 (6th Cir. 1980), "6th Cir." referring to the Sixth Circuit Court of Appeals for the states of Michigan, Ohio, Kentucky and Tennessee. The National Labor Relations Board has its own series of published decisions, using the abbreviation "NLRB." The NLRB citation may give you either the page number on which the decision begins or the number of the decision, as in Sears, Roebuck & Co., 274 NLRB No. 55 (1985).
Internet-based resources are rapidly coming to dominate the legal research field and the labor law area is no exception. Lexis and Westlaw are the two leading fee-based electronic research services but they can be costly for the rank and filer. Fortunately, the NLRB itself offers a multitude of free information on its website, www.nlrb.gov. Using a search engine, you can research the full text of documents including Administrative Law Judge decisions, Board decisions, and Advice Memos.
We cite cases, using the BNA system or the internet (or both), throughout this booklet. For the same reason, we have provided in footnotes the names of books or articles we think you might find helpful.
Of course, if possible you may wish a lawyer to double check your own research. (Often lawyers will provide a first consultation free of charge.) You should definitely consult a lawyer before finally deciding on a strategy involving the possibility of a lawsuit. And in a unionized workplace, it will make sense in most cases to consult with your union rep as well, provided you can do so without giving union officials the authority to veto the path you choose to solve the problem.
Often a strategy will involve a series of steps, each involving its own deadlines and procedural requirements. For example, a discharged worker might initially file for unemployment compensation; use the outcome to assess whether to file an employment discrimination claim or an NLRB charge within the six-month period applicable to each; and hold in reserve the possibility of a federal law-suit. You will be far more independent and self-sufficient if you have attempted to arrive at a first approximation of a strategy you want to use for yourself.
But one word of caution: The law changes. Before relying on any proposition or case citation in what follows, do your best to make sure that it is still — as lawyers say — "good law." You can determine whether a case is still good law by a process called "Shepardizing." To "Shepardize" is to determine in what later cases the precedent you have in mind has been cited. You can "Shepardize" a case at a law library or through one of the electronic research systems.
OF SWORDS AND SHIELDS
Think of law and lawyers as a last resort. There is a widespread belief, especially when one is frustrated by grievance procedures, internal union appeals, or administrative complaints that seem to take forever, that it would go better before a judge. Don't believe it. The law takes at least as long. It is much more expensive. And lawyers will let you down as often as a grievance representative, if not more so.
The best way to think of the law is as a shield, not a sword. The law is not an especially good way to change things. But it can give you some real protection as you try to change things in other ways.
The law can also act as a net that restrains or co-opts efforts by workers to make change on the job. Therefore, an understanding of workplace law is a must for avoiding pitfalls to successful organizing.CHAPTER 2
WHERE DO WORKERS' RIGHTS COME FROM?
The first answer many of us are likely to give to this question is: from the Constitution.
Every American likes to say to himself or herself, "I've got my rights." It's natural to suppose that our constitutional rights travel with us wherever we go.
But this answer is, unfortunately, wrong. The Constitution protects us only from action by the state, that is, the government. It does not protect us from private employers. If you work for a government, city, state or federal, you can claim constitutional rights to freedom of speech, to freedom from unreasonable search and seizure, to due process, to equality before the law. However, in the private sector the employer has no legal obligation to respect your constitutional rights.
In the private sector, when you punch in you leave your constitutional rights behind. That's one of the reasons why it's so important for workers to take collective direct action without relying on the courts. In the private sector, you do not have a constitutional right to free speech: if your employer makes an unsafe product, and you individually "blow the whistle" on him by informing the media, you may legally be fired for doing so. There is a dreadful line of cases in which employees have been held to be justly discharged because they made statements that were disloyal to the employer.
Likewise, in the private sector you are not innocent until proven guilty. Even within a unionized workplace, when an employer disciplines or discharges you, you don't stay on the job until the grievance is arbitrated. Instead, you are off work and lose pay, and get the money back only if you win the grievance.
Furthermore, most private sector employees are employed "at will," a pernicious doctrine adopted by judges during the unbridled capitalist expansion of the late nineteenth century. An "at will" employee can be fired, demoted, or receive a pay cut at any time for almost any reason, even a very bad reason, with no notice at all. This book will discuss those reasons for which an employer may not take adverse action against a worker, even an "at will" worker. We will also show that just because a boss may legally take an action does not preclude workers from contesting that action.
Thus, in the private sector the Constitution does not protect us, but there are two other sources that give us some of the same protections we enjoy, at least on paper, outside the workplace.
One source of rights in the private sector is the union and the collective bargaining agreement. At this writing, only 7.5% of private sector workers are in a unionized workplace. If you are one of them, it's a good idea to know the contract backward and forward, and to carry a copy on your person at all times.
Seniority, for instance, comes from the collective bargaining agreement. But seniority provides only partial equality before the law. It ensures that the person who has worked longest will be laid off last, but it does not mean that foremen will be governed by the same rules as hourly employees. If an hourly worker starts a fight, he or she is likely to be fired because of a shop rule against fighting. But that rule doesn't necessarily apply to the foreman when he starts a fight. Thus the union and the collective bargaining agreement create a halfway citizenship, but not a full citizenship.
A second source of rights in the private sector is federal law. These rights were created by struggle. For instance, the struggle for the eight-hour day gained national prominence in 1886, when a sizable portion of the entire American labor movement took part in a political strike on its behalf. The international labor holiday, May Day, was one result. Time and a half pay for more than forty hours of labor in a week was finally recognized by Congress more than fifty years later in the Fair Labor Standards Act (the Wages and Hours Act) of 1938.
A partial list of other rights recognized by federal law includes:
1. The right to engage in concerted activity for mutual aid and protection (Section 7 of the National Labor Relations Act).
2.The right not to be ordered by a federal court to stop such activity (Section 4 of the Norris-LaGuardia Act).
3. The right to refuse to perform abnormally dangerous work (Section 502 of the National Labor Relations Act, and the Occupational Safety and Health Act).
4. The right to equal pay for equal work (the Equal Pay Act).
5. The right to overtime after forty hours of work in a week (the Fair Labor Standards Act).
6. The right not to be discriminated against because of race, sex, religion, national origin, pregnancy, or age (Title VII of the Civil Rights Act of 1964 and subsequent statutes).
7. The right to reasonable accommodation if disabled but qualified to do particular work (the Americans with Disabilities Act).
8. The right to 12 weeks of leave in any 12-month period because of a serious health condition (the Family and Medical Leave Act).
9. The right to free speech about union affairs, and to a minimum of due process when disciplined by a union (Title I of the Labor Management Reporting and Disclosure Act).
10. The right to pension security (Employee Retirement Income Security Act).
Most of these rights are discussed in more detail later in this booklet.
Excerpted from Labor Law for the Rank & Filer by Staughton Lynd, Daniel Gross. Copyright © 2011 Staughton Lynd & Daniel Gross. Excerpted by permission of PM Press.
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