KELLMAN: Labor Organizing Must Challenge Corporate Rule

March 1, 2011
Peter Kellman

It is time for labor to go beyond signing contracts with corporations. We need to start challenging the very concept of corporate privilege and rule.

The people of this country need to act on the understanding that we the people create corporations through our state legislatures. As the Pennsylvania Legislature declared in 1834; "A corporation in law is just what the incorporation act makes it. It is the creature of the law and may be molded to any shape or for the purpose the Legislature may deem most conducive for the common good." If we don't mold corporations, they will continue to mold us. They will mold us at the expense of our rights, our health, our democracy, our communities, our environment and most importantly our souls.

For almost 80 years, labor's message has been primarily limited to protecting the interests of organized workers. But workers¹ rights don't exist in a vacuum. A fundamental law of physics can also be applied to politics: two things cannot occupy the same place at
" imagine the message that labor would be sending by voluntarily giving up that corrupting influence on our body politic, the Political Action Committee. "

the same time. Workers' rights in this country have been relegated to a little space under a chair in the corner of a large room occupied by corporate "rights"-- in quotes because only people can have rights, and corporations are not people.

People have rights, inalienable rights. Corporations have only the privileges we the people give them, because corporations are created by people through their legislatures. Corporations are not mentioned in the United States Constitution. Their constitutional privileges stem from Supreme Court cases, judge-made law. These judges are lawyers, appointed for life. In Santa Clara County v. the Southern Pacific Railroad Corporation (1886), the Supreme Court of the United States declared that "...equal protection of the laws, applies to these corporations." The meaning of the Court was clear: corporations are persons under the law deserving "equal protection."

Equal protection is a term used in the 14th Amendment to bring African-Americans under constitutional protection. The activist Court of 1886 bestowed "equal protection" on the corporation. This judicial conversion of people's rights to corporate privilege has done much to create the present situation. The price of each expansion of corporate privilege has been a contraction in workers¹ rights.

Every day union people are confronted with this erosion of their rights in union organizing, internal governance, the political process and authority over union property such as pension funds. Look, for example, how the court's role diminishes the power of the Occupational Safety and Health Administration (OSHA) to the detriment of workers' rights.

OSHA was put in place by Congress in 1970. When you called up OSHA, it would send an investigator to your place of work. Corporate managers objected and went to court. They argued that the corporation should be afforded the same protection that flesh and blood people have under the Fourth Amendment against unreasonable searches of their property. They said OSHA inspectors needed a search warrant to inspect corporate property!

In 1978 (Marshall v. Barlow) the Supreme Court of the United States agreed. So the right of individual people to be protected from the government arbitrarily entering a persons home was extended to corporations. The Court ruled that corporations have the privilege to require OSHA inspectors to get a search warrant before entering corporate property to investigate the complaints of a worker regarding her health and welfare. In essence, the Court interpreted the obligation of the government to "promote the general Welfare" of workers to be secondary to the liberty of a corporation to prevent entry of a government inspector. In this case, while the OSHA inspector is getting a warrant from a judge, the corporation can clean up its act and avoid being found in violation of the law.

The OSHA case is but one example of how the granting of privileges to corporations diminishes the rights of workers. Another is the way corporate employers injected "employer free speech rights" into the process by which workers exercise their "right to associate" in choosing a union to represent them in the workplace.

Under the National Labor Relations Act of 1935 the National Labor Relations Board (NLRB) required employer neutrality when it came to the self-organization of workers. That is, if an employer interfered in any way with a union organizing drive it was considered a violation of the Act. "The right of employees to choose their representatives when and as they wish is normally no more the affair of the employer than the right of the stockholders to choose directors is the affair of employees" stated the Board. However, with the 1947 passage of the Taft-Hartley Act (termed " the slave labor act" by labor), corporate privilege was inserted into labor rights and corporations were granted "free speech" in the union certification process.

The concept of "corporate free speech" in the union certification process may sound benign to the casual observer. However, if you are involved in a union organizing drive the brutality of the corporate employer's use of "free speech" to usurp the worker¹s right to "freedom of association" becomes apparent in many ways. One example is called the "captive audience meeting" where the employer assembles workers during working hours and harangues them on the negative consequences of unionization.

The corporate spokesperson will inject the notion that if the workers choose a union the company might take that as a sign that their facility might not be a good one to invest in. The company spokesperson will point out that many union shops have been closed over the past couple of decades and the work moved to non-union areas of the country or offshore. The company uses "corporate free speech" to send a clear message: voting for a union means you are voting to close the facility. So much for a worker¹s right to "freely associate."

The OSHA unreasonable search and the Taft-Hartley corporate free speech instances illustrate that workers cannot assert their fundamental rights unless they deny corporate privilege. Yet for years most of organized labor's activity has revolved around labor Political Action Committees (PACs) giving money to people running for Congress. The money was followed by union leaders trying to convince union members to vote for endorsed "labor candidates." Then, when the new congress took office, labor lobbyists encourage politicians to support labor issues. Labor¹s record isn't very good because the focus has been on the money given to politicians instead of rank- and-file organizing to confront corporate privilege.

If labor abandoned its PACs and focused its energy on getting members involved in the process, think of the results. First, labor could develop organizations that would put resources into involving the membership in the political process rather than trying to influence politicians with money for their campaigns. Secondly, imagine the message that labor would be sending by voluntarily giving up that corrupting influence on our body politic, the Political Action Committee.

The bottom line is that historically, managers and large stockholders of corporations have a leg up on the rest of us. This process has continued for over 100 years and unlike the union people of a century ago, we no longer understand the origins of corporate privilege. So it is time to take another look. And out of that look MUST come an agenda created by working people that promotes workers' rights and challenges the root of corporate privilege.

So what is labor to do? Labor should take a sabbatical for a year and use the time to analyze what we have been doing over the past century. Then, with history as a guide and real democratic participation of the membership, labor could put together a new agenda that promotes workers' rights and attacks corporate privileges.

© 1999 Peter Kellman