The legality of card-check neutrality was recently raised in the highest body of the U.S. government, the Supreme Court. Taking it very seriously, Harvard labor law professor Benjamin Sachs told the New York Times that Mulhall vs. UNITE HERE Local 355 could be “the most significant labor case in a generation.” (Nov. 10)
There are two legal processes used to unionize a workplace: card-check and elections. Card-check neutrality is a common practice and the preferred method for labor organizing.
Anti-union, pro-boss organizations prefer so-called “secret ballot” elections that are the opposite of democratic. They feature intimidation tactics, harassment, firings, intensified favoritism and secret “captive audience” meetings. Card-check neutrality bars the employer from doing any of those things.
The employer has to consent to this process, meaning unions have to find ways to compel employers to sign a card-check neutrality agreement, either through employers directly or by passing laws. In the case of UNITE-HERE Local 355 in Florida, the union promised $100,000 of support for a law that would allow Mardi Gras Gaming to open casinos with greyhound racing (called “rasinos”) in Florida, with the understanding that these casinos would agree to card-check neutrality.
Yet this common practice turned into a landmark case that sought to take away union rights. On the Mulhall side of the case were the same forces that have been pushing anti-worker “right-to-work” (for less) laws in nearly every state. These anti-union forces argued that card-check agreements are a thing of “value” that the employer gives to the union, which violates laws against racketeering.
Specifically, the employer gives the union access to the workplace, lists of employees’ addresses and neutrality, meaning that the employer won’t engage in an anti-union smear campaign. The charge of “racketeering” is used in this case to take away workers’ rights, rather than limiting illegal practices by employers and politicians.
On the other side was UNITE HERE Local 355, whose position is supported by major labor unions in the AFL-CIO and the Service Employees union. Local 355 argued that card-check neutrality has consistently been upheld as legal, and is key to maintaining what is referred to as “labor peace” during a union drive. Employers give access to the workers and promise neutrality in return for unions declining to engage in strikes, pickets or boycotts.
Out of three possible results, the best one happened in this case, when the Supreme Court on Dec. 10 dismissed the case. Card-check neutrality agreements were left untouched. Another option was that certain aspects of neutrality agreements could have been made illegal. The worst result would have been if all aspects of neutrality agreements were voided, allowing free rein for employers.
The challenge by Mulhall was a major attack by the corporations and boldest sections of the ruling class on the already weakened organized labor movement. But this time, the labor movement squeaked out a temporary victory.
A weakened labor movement has exactly two options: struggle or die. Right now, some labor leaders envision a third option: “labor peace,” support for Democratic politicians and help for the employer. This could ultimately lead toward the demise of the labor movement.
Role of unions in capitalist society
Marxists have always been leaders in the labor movement because of our determination to build a movement of the working class to take back everything we create and to run society for the workers’ benefit. We call this socialism.
Speaking 150 years ago, Karl Marx summed up what needs to be the real purpose of the labor movement: “Apart from their original purposes, [the unions] must now learn to act deliberately as organizing centers of the working class in the broad interest of its complete emancipation. They must aid every social and political movement tending in that direction, considering themselves and acting as the champions and representatives of the whole working class.” (“Trade Unions: Their Past, Present, and Future,” 1866)
With this in mind, we must defend our political right to card-check neutrality, while pushing labor and other social movements to unite and fight on behalf of all the interests of the working class and the oppressed. There will be no such thing as “labor peace” until the workers control what we create.