Reps. Keith Ellison, D-Minn., and John Lewis, D-Ga., plan to introduce legislation Wednesday to amend the National Labor Relations Act to make labor organizing a civil right. The change will make opposing unionization bids legally perilous for businesses.
The NLRA already protects the right to form and join a union. Ellison and Lewis' legislation would dramatically expand the powers individual workers have under the act by allowing them to sue their employer in federal court under the Civil Rights Act.
The bill would also entitle workers filing lawsuits "to remedies like punitive and compensatory damages," according to a Tuesday press release.
Currently most unfair labor practice complaints go through the National Labor Relations Board, which was created expressly for that purpose. Some labor disputes are handled by a second entity, the National Mediation Board. Big Labor has long complained the process is too slow.
Ellison's proposed legislation would allow a worker to move their complaint from the NLRB to federal court 180 days after filing. He told the liberal magazine the Nation that labor activists needed to be able to circumvent the current process.
"[The NLRB] remedy is considered slow and somewhat inadequate. For some of these union-busting law firms, [they] will say 'so do it and we’ll just pay,' " he said.
More significantly, though, it would make every workplace dispute a potential civil rights matter. The possibilities for litigation would be practically endless, noted Heritage Foundation labor policy expert James Sherk.
"Things like race/gender/etc. are very obvious. They don't change. But if unions make 'union organizing' a civil right then any employee about to get laid off — such as for performance — in a company undergoing a unionizing drive need only claim he wants a union in order to make letting him go a very legally risky," Sherk said.
The real purpose of the proposed legislation was to force employers to stay quiet during organizing bids, Sherk argued.
The bill is unlikely to get far in the current Republican-majority Congress.
Ellison said he was partly doing this as a reaction to the recent Supreme Court rulings, particularly Harris v. Quinn, which Big Labor opposed. The court has moved in the direction of expanding individual rights at the expense of the unions' authority to coerce dues from unwilling members.
The main inspiration for the legislation was a 2012 book titled Why Union Organizing Should Be a Civil Right by Richard Kahlenberg and Moshe Marvit, both fellows at the liberal Century Foundation.