American workers and justice in the global order.

Kesselman, Donna

TO SAY THAT COURTS ale the scourge of workers is a truism in American labour history. Recently, though, organized labour has often looked towards the courts for salvation. Striking Detroit newspaper unions placed their hopes in a 10(j) court injunction to reinstate strikers. Workers hoping for an "injunction"? For the last decade, Teamsters have been run by federal courts under a receivership agreement with the union to eliminate racketeering from the ranks. Has the role of the courts changed? Are they now part of labour's solutions instead of its problems? The question is raised all the more as American big business has proclaimed new legalistic ethics in its fight against both labour at home and foreign competitors abroad. Thus the crusade against corruption has become a component of American business's ideology of global domination.

Government and Globalization

Justice and the courts must be seen within this broader perspective. And yet, the function of government interference into labour affairs has not fundamentally changed, despite "globalization's" ideological smokescreen. Behind the rhetoric, then, is the reality: globalization's loudly trumpeted attempt to "reinvent government" advocates a minimalist state but concommitently, state interventionism has taken new and often stepped-up forms. In the US, new prominence for ad hoc judiciary bodies, and the interplay between NLRB labour and federal courts are among them. Two cases in point, the Detroit Newspapers dispute and the Teamsters, will help us take a closer look at these altering institutional relations.

Detroit Newspapers Dispute

Detroit newspaper workers walked out to protest employer plans to restructure in July 1995. The dispute soon became a cause celebre due to the dramatic stand-off between workers and employers. When rank-and-filers initially tried to block the distribution of newspapers, local police and private militia stormed picket lines and attacked by helicopter. Openly intending to break the unions, newspaper employer CEO Frank Vega (1) immediately secured striker replacements and announced the publisher would drag out legal proceedings until locked-out workers moved away, retired or died. The highpoint of the fight was 21 June 1997, when tens of thousands of demonstrators from all over the country took to Detroit streets, the mobilization prepared by rank-and-filers and finally called by the national AFL-CIO. On the eve of the march, the NLRB first declared the existence of an unfair labour practices dispute (UP) by employers, which lent the day an air of victory.

In fact, despite the militant face, the dispute's main focus was turning toward the courts. A few months after the initial walkout, striking unions' (2) efforts were already spent pressing NLRB authorities to declare an unfair labor practice dispute against employers, including a court-sanctioned Section 10(j) injunction (3) to reinstate strikers with back pay and fire striker replacements. Thereupon ensued a complex, media-charged boxing match between NLRB and federal judges (to whom the NLRB petitions for injunctions), reciprocally granting then rescinding the 10(j). For instance, two months after the initial NLRB declaration of an employer UP mentioned above the tables tamed, as federal courts refused to grant the 10(j) injunction. (4) Significantly, the militant rank-and-file resistance coalition ACROSS

(Action Coalition of Strikers and Supporters) had predicted the consequences of diverting class struggle towards legal procedure, immediately denouncing the local leadership's strategy in as many words: "The legal system is in the hands of the bosses. If you have expectations [for a legal solution], you'd better have a long life expectancy." (5)

In this situation the NLRB took the limelight, enjoying new prestige since the Reagan packed-labour-court years. The number of fits dispute decisions and Section 10(j) injunctions have grown significantly under the Clinton Board. Its recently retired chairman, William B. Gould IV, oversaw this comeback by reasserting New Deal industrial pluralist assumptions, which promote the NLRB'S role to ensure the "balanced regulation" of social conflict, based on shared social power between labour and management as equal partners. A highpoint of his crusade was Detroit Newspapers. Chairman Gould went out of his way to make what he himself called "unprecedented" public statements to openly defend the NLRB'S 10(j) request against the federal court justices' decisions to deny it. (6) By playing the NLRB good cop against the federal court's bad cop, he ultimately helped to legitimize state intervention into labour affairs and shore up the image of a "good" injunction for workers.

The NLRB, though, has been hard pressed to keep its promises towards labour. Less than one half of 10(j) requests made by NLRB judges are ever earned out and even then, not always to workers' gain--most notably when they concern workers' picketing to block production during a strike. What is more, legal procedure has engendered a life of its own, turning NLRB unfair labour practice disputes into a zero-sum negotiating game: each side accuses the other of unfair labour practices essentially as a bargaining ploy, then moves towards settlement by mutually retracting their respective charges. This is the pattern followed at such major disputes as the UAW against Caterpillar (900 UP charges filed then finally withdrawn) and General Motors (summer 1997). As the courts assert themselves as the ultimate arbiter, disputes are diverted away from the point of production, original contract demands fall by the wayside and strikers, like at Detroit newspapers, find themselves out of a job and then dispersed. The resulting defeats or pyrrhic victories (7-year long Caterpillar dispute, 4+-year Detroit newspaper dispute) have the end result of undermining strike militancy and, in an apparent throwback to the 19th century, justifying the courts' authority to determine the boundaries of shopfloor power.

The state's assertiveness seems all the more surprising given government's retrenchment in favour of the now trendy civil society. According to this globalization buzzword, social actors should be free to fight out compromise in a worldwide ring with no state borders. This explains why, despite the NLRB'S rhetorical exalting of New Deal vitures, the reality of government intervention is otherwise: its own case backlog remains enormous, notably due to state personnel cutbacks, including NLRB'S entry level Administrative Law Judges whose number has hit a historical low. In the legislative field, Congress intervenes not to bolster but dismantle New Deal era institutions. As David Brody notes, the pre-Wagner Act individual rights doctrine is seeking historical revenge against Wagner's albeit minimal recognition of workers collective organization and welfare. (7) An example is the Paycheck Protection Act, which under various forms remains on the legislative agenda. The stated purpose of the bill has to do with election financing: union leaders would have to solicit a "prior, voluntary, written authorization" from individual members in order to spend dues for anything but the strict defence of shopfloor demands. (8) While claiming to uphold an individual worker's right to spend his paycheck money as he sees fit, Paycheck Protection is but a euphemism for conservatives' most recent assault on hard-won workers' gains like the union shop and labour's right to run broadbased, issue-oriented campaigns in the collective interests of working families. (9)

The Teamsters

The paradox of "lesser government" discourse is more striking still in the Teamsters affair. The fate of the Teamsters over the past decade has been inextricably linked to the state: under a 1989 consent decree with the Justice Department, the union agreed to receivership in order to avoid federal prosecution for racketeering. For the moment, the outcome has been the state-engineered cancellation of the 1996 Teamster elections, the expulsion of reformist, militant UPS strike leader, anti-NAFTA president Ron Carey, and the coming to power of James Hoffa jr., the candidate of the union's "old guard." The American government's campaign against union corruption launched in the 1950s with the Landrum-Griffin Act (Labor-Management Reporting & Disclosure Act)--the legal basis for today's receivership--has thus followed its course, and in the end the union has come full circle. For the basic function of government intervention now seems clear: tame a militant union, precluding internal union democracy by preventing workers from autonomously choosing their own leaders. Though supposedly carried out in the name of fighting racketeering, government action has helped to bring back the Hoffa dynasty, with its shady reputation, which has ultimately been an objective ally of the state throughout this whole operation.

The case illustrates the new forms of state interventionism in labour affairs. The ad hoc committees set up to oversee the union mark a new breed of para-state structures under the aegis era Federal District Court and Judge whose democratic accountability, including safeguards against conflict-of-interest, remain to be proven. Among the ad hoc Independent Review Board members who censured Carey was William Webster, former FBI head and member of the board if directors of Annheuser-Busch, the beer firm against whom the local Teamsters were striking at the very time the Carey case was being heard. In addition to the nature of their composition, the looming powers granted to these committees are worth notice. Consider Carey's speedy removal from the union presidency and ultimately from the union without any semblance of due process. (10) Since Carey's demise was officially due to a money-funelling scheme involving the former Teamster president and the Democratic National Committee during the 1996 national elections, compare the prerogatives of the Teamster ad hoc committees to that of the FEC's impotence in regards to campaign financing. Despite extensive press coverage of Washington's recent campaign finance scandal, directly sighting the Democratic administration, and the Federal Election Commission's prestige as an independent government agency, presidential candidate Gore is campaigning with a free hand (and wallet). No congressman or senator has ever been seriously sanctioned, let alone removed from office, for campaign financing irregularities, despite documented abuses of a serious nature.

The theme of corruption is thus being put to use by American Big Business against labour within the US, just as it is against its other traditional rival, competitor trade countries abroad. After 20 years of Washington lobbying since the 1977 US Foreign Corrupt Practices Act, the OECD passed its Bribery Convention in 1997. (11) The convention's solemn goal of ensuring business ethics should be understood as a level for promoting American corporate practices, and thus business interests the world over. Especially targeted are European business strongholds in Africa. (12) New legalistic ethics have also helped the us to impose its global agenda on countries and international agencies through voting extra-territorial laws, often justified in moralistic terms (anti-terrorist, religious oppression, drug lords). What is more, just as in the US, where union presidents are deemed more corrupt than mainstream political candidates, America's concern for ethical business practices is quite selective, targeting various foreign countries, firms or leaders at opportune moments.

The crusade against corruption was launched as a post-witchhunt expedient to root out working-class militancy. The timing was perfect: the Landrum-Griffin Act came right on the heels of the HUAC, filling the ideological gap left once red-baiting in the US had done its historical time. In retrospect we know now that the post-witchhunt, anti-racketeering onslaught against US workers was but a dress rehearsal for the post-Cold War anti-corruption campaign for American business domination in the global market, starting with the domestication of labour at home.

Conclusion

Despite globalization's call for "less state," courts are in the forefront of what have been called more adaptive forms of government intervention into labour affairs. What is common between protracted NLRB suits, 10(j) injunctions, the Teamster consent decree and--in the legislative field--measures like Paycheck Protection is their claim to replace workers' right to hold their line on the shopfloor and run their own internal affairs without state interference. Formal references to 19th-century individualism or New Deal welfarism should not cloud over the year 2000 function of these historical precedents: dismantling workers' gains which, through years of hard-won struggles, have been imposed on both employers and state institutions.

New global ethics of legal responsibility, like the fight vs corruption at home and abroad, are components of US business's new discourse of global domination. Even globalization's civil scientists who call for more autonomy among social actors, look to the state's strong regulatory role in certain fields and, in this sense, the Teamsters' affair precedent should be heeded. The ad hoc committees can be compared to today's so called non-governmental organizations; like NGOS, they are given growing prominence despite the ambiguous nature of their public legitimacy. Their function in the Teamsters' case was unsettling at best: bypass the nation's own legal traditions and staunch respect for procedure, removing the leading militant unionist who dared take on corporate America. At the end of the day, who can say what overriding legal doctrine guides these increasingly complex, para-institutional workings?

The courts' aptitude to equitably arbitrate disputes and rid unions of racketeering has yet to be proved. After years of struggle and legal appeals, one Caterpillar striker wife and picket line leader came to her own conclusion: "Strikers in America are like Blacks: there is no justice for us." (13) Justice for workers includes labour's fight to defend its own historical gains, within state institutions or without.

(1) The employer, "Detroit Newspapers," is made up of the two dailies, The Detroit News and the Detroit Free Press, which function under a Joint Operating Agreement, authorized by the US government in 1989. The agreement allows them to combine their advertising, business, production and delivery systems. Policies of relaxing anti-trust legislation to increase employer clout is fully in sync with our analysis of the function of current government interventionism.

(2) There were six striking unions: two Teamsters Locals (Drivers Local 372, Mailers Local 2040), Newspaper Guild Local Local 22, Typographical Local 18, and also the GCIU, Graphic Communications International Union, (Graphic Communications pressmen's and photoengravers locals), which has since merged with the Communications Workers of America.

(3) Section 10(j) of the National Labor Relations Act allows the NLRB to propose injunctions to federal judges, i.e. cease and desist orders to stop violations of the Act carried out by employers or unions.

(4) One year later, in Septembre 1998, judges once again approved the 10(j) but employers refused to adhere and appealed.

(5) Position paper unanimously adopted at meeting of the Labor/Community/Religious Coalition in Support of Striking Newspaper Workers, 24 October 1995; "ACROSS Strike Call," November 1996.

(6) "The Board, the Supreme Court & the National Labor Relations Act: Reflections of the Chairman on Issues decided and Issues Presented," William B. Gould IV, NLRB, 21 May, 1998; "Acting NLRB General Council Fred Feinstein Issues Four-Year Report on use of Section 10(j) Injunctions", NLRB, 24 July, 1998.

(7) David Brody, "A Question of Rights", New Labor Forum (Fall/Winter 1998).

(8) Quote from HR 1625. Other versions of paycheck protection hills include HR 2698, S.9. The latter, S.9 has 34 Senate cosigners, HR 1625 has 158 co-signers in the House. State-level initiatives, like California's proposition 226 which voters rejected in June 1998, have essentially the same designs.

(9) Donna Kesselman, "Financement des elections: mise en cause des syndicals americains," Argent, Politique el Corruption, bilingual Symposium published by Publidix, 1999, Anne Deysine & Donna Kesselman (eds).

(10) It is worth noting that while Carey was found guilty and barred from rerunning, his adversary for union president James Hoffa jr. was also being investigated. A Federal court-appointed election overseer charged and fined Hoffa for financing improprieties in the same 1996 union elections but, unlike Carey, permitted him to rerun in the new elections overseen by state supervision at the end of 1998. In the same affair while Hoffa was cleared, his key aids were barred from working or running in the 1998 campaign. New York Times, 18 April 1998.

(11) Frank Romano, "The Foreign Corrupt Practices Act and the OECD Bribery Convention-The Polemic and the Fraternal Twins," Argent. Politique et Corruption, bilingual Symposium published by Publidix, 1999, Anne Deysine & Donna Kesselman (eds).

(12) American businessmen say they're aghast at the legal and deductible payment of "commissions" to foreign governments as a means of getting contracts by businessmen from countries like France or Germany. And yet, the complex US accounting structure for international contracts makes most tax payments to foreign countries deductible. The business practices may change, but in both cases the result is the same: it's Western taxpayers who underwrite foreign business investment and foreign governments who pocket the bucks.

(13) Interview carried out by the author in Peoria, July 1997.