Such ini­tia­tives can give the impres­sion that the NLRB is a benign but inef­fec­tive insti­tu­tion. This is not true. The NLRB is a key part of the sys­tem of labor con­trol which ham­strings labor and pre­vents effec­tive trade union­ism in this country.

Every so often, the Nation­al Labor Rela­tions Board (NLRB) announces a new ​“pro-work­er” rul­ing to great fan­fare in the labor press. Ini­tia­tives like pro­tect­ing work­ers who tape record in a non-union shop or admin­is­tra­tive­ly short­en­ing union elec­tions all are wel­come devel­op­ments (although anti-labor fed­er­al judges will like­ly not let them stand).

To tru­ly under­stand the role of the NLRB, we should be look­ing at its war against the kind of sol­i­dar­i­ty union­ism prac­ticed by the Inter­na­tion­al Long­shore and Ware­house Union (ILWU). Unlike the par­tial pro-work­er mea­sures which neg­li­gi­bly impact labor’s prospect, the NLRB’s vig­or­ous pros­e­cu­tion of the ILWU has the poten­tial to crip­ple one of labor’s best unions.

In a recent rul­ing, the NLRB upheld an Admin­is­tra­tive Law Judge’s deci­sion that the ILWU vio­lat­ed the Nation­al Labor Rela­tions Act by engag­ing in work slow­downs against their employ­er ICT­SI. While the case is some­what com­pli­cat­ed, in a nut­shell, the Nation­al Labor Rela­tions Board is attempt­ing to finan­cial­ly crip­ple the ILWU for try­ing to uphold the ​“work juris­dic­tion” clause of their coast-wide agreement.

Even worse, the NLRB is claim­ing that by pres­sur­ing the con­trac­tor which is run­ning the port to give them work that they and the employ­er group the Pacif­ic Mar­itime Asso­ci­a­tion both believe belong to the ILWU, they are vio­lat­ing the sec­ondary boy­cott pro­vi­sions of Taft Hartley.

Before going into detail of the con­cerns about this case, it is impor­tant to dis­cuss the spe­cial role of the ILWU. The ILWU was one of the 11 left-led unions expelled from the CIO in the wake of the anti-labor Taft-Hart­ley Act. True to its roots, much like the Unit­ed Elec­tri­cal Work­ers sim­i­lar­ly expelled, the ILWU has served as a bea­con of sol­i­dar­i­ty for the entire labor move­ment for decades.

ILWU mem­bers have shut down the ports over the load­ing of good to South Africa and dis­played a mil­i­tan­cy and sol­i­dar­i­ty des­per­ate­ly lack­ing in today’s labor move­ment. Unlike oth­er unions which have been forced to aban­don indus­try­wide bar­gain­ing, the ILWU main­tains a sin­gle agree­ment cov­er­ing all ports on the West Coast, an essen­tial ele­ment in suc­cess­ful trade unionism.

In 2010, the Port of Port­land pri­va­tized the oper­a­tion of a ter­mi­nal to a Philip­pines-based cor­po­ra­tion ICT­SI. ICT­SI oper­ates ter­mi­nals pri­mar­i­ly in the Glob­al South and has come under fire for bru­tal­ly sup­press­ing long­shore work­ers in Hon­duras. The ILWU assert­ed juris­dic­tion over all of the work on the ter­mi­nal includ­ing a hand­ful of jobs plug­ging in refrig­er­a­tion units, which the record indi­cates does not require skilled work and is done by ILWU mem­bers at most oth­er ports. Inter­na­tion­al Broth­er­hood of Elec­tri­cal Work­ers (IBEW) mem­bers had appar­ent­ly per­formed the work plug­ging in refrig­er­a­tion units for the port pri­or to pri­va­ti­za­tion and sought to retain the work. The con­trac­tor, ICT­SI, has agreed to abide by the coast­wide agree­ment. The union and the coast­wide employ­er asso­ci­a­tion, the PMA, agreed these jobs should be done by ILWU mem­bers by virtue of the terms of th ecoast­wide agreement.

The ICT­SI refused to give the work to the ILWU and sub­se­quent­ly filed charges with the NLRB alleg­ing that the ILWU under­took a series of job actions and slow­downs to force their employ­er ICT­SI to com­ply with the port-wide agree­ment. The ILWU denies such a slow­down took place — and in any event, the mat­ter should have been treat­ed as a con­tract dis­pute under the col­lec­tive bar­gain­ing agreement.

But here’s why this case is so impor­tant: The NLRB is say­ing that ICT­SI is some­how not to be con­sid­ered the pri­ma­ry employ­er but is a neu­tral employ­er, mak­ing the ILWU’s actions ille­gal sec­ondary activity.

Seem com­pli­cat­ed? That’s because the whole case is based on legal fic­tions which defy com­mon sense.

What is at stake may appear to be squab­bling between unions over a hand­ful of jobs. As I have argued pre­vi­ous­ly, how­ev­er, the issues at stake involve the ILWU’s abil­i­ty to main­tain the integri­ty of a coast-wide agree­ment, which is absolute­ly essen­tial to the sur­vival of union­ism in this sec­tor. The ILWU is fight­ing a mul­ti-front bat­tle to main­tain effec­tive, indus­try-wide union­ism, which has been wiped out in most oth­er industries.

This gets to the crux of the issue: the NLRB’s spe­cial role in defeat­ing sol­i­dar­i­ty and pre­vent­ing effec­tive trade union­ism. The anti-labor Taft-Hart­ley Act out­laws sol­i­dar­i­ty activ­i­ty which it deems as sec­ondary pres­sure. While many think of the Taft-Hart­ley pro­vi­sions as only out­law­ing sec­ondary strike and boy­cott pro­vi­sions, they actu­al­ly can tie a union’s hands from even fil­ing a griev­ance or law­suit against an alleged­ly neu­tral employ­er. De-union­iza­tion in the Unit­ed States was accom­plished more by the shams that grew out of this pro­vi­sion such as sub-con­tract­ing, inde­pen­dent con­trac­tors, suc­ces­sor employ­er doc­trines, run­away shops and oth­er fac­tors than straight up strike-breaking.

Here, the ICT­SI filed charges with the NLRB alleg­ing that by fight­ing to uphold work under the coast wide agree­ment, the union was engag­ing in sec­ondary (sol­i­dar­i­ty) actions ille­gal under the anti-labor Taft-Hart­ley. The NLRB is say­ing that ITSCI is some­how a neu­tral employ­er. All of this is of a piece with a tru­ly hor­ri­ble 2012 deci­sion in which an NLRB Admin­is­tra­tive Law Judge found against the ILWU, argu­ing they had engaged in sec­ondary activ­i­ty by try­ing to defend their coast wide agreement.

All these cas­es are part of a broad­er legal régime in which, under Taft Hart­ley, the NLRB is give a spe­cial role in sup­press­ing labor rights, includ­ing pri­or­i­tiz­ing attacks against instances of unions using effec­tive sol­i­dar­i­ty. Those who think the NLRB based on their token efforts in sup­port of work­ers are labor’s friends should study this case close­ly. These pro­vi­sions high­lights the prob­lems with not just an indi­vid­ual deci­sion or two but with the under­ly­ing struc­ture of labor law — a struc­ture that unions need to start questioning.

First, sanc­tions against employ­ers for vio­lat­ing the NLRA are typ­i­cal­ly mere slaps on the wrist, such as post­ing a notice or some­times pay­ing min­i­mum back pay (which is mit­i­gat­ed by any earn­ings the work­er earns before being rein­stat­ed). In con­trast, unions who stray beyond the bound of labor law are sub­ject to injunc­tions and dam­age suits which poten­tial­ly could crip­ple a union’s trea­sury. This is the case with the ILWU case in which the com­pa­ny is seek­ing dam­ages which could amount to mil­lions of dol­lars. The NLRB is required to pri­or­i­tize and seek injunc­tions against unions for engag­ing in sol­i­dar­i­ty actions.

We have a sys­tem of labor con­trol which offers min­i­mal pro­tec­tions to work­er and neg­li­gi­ble penal­ties against employ­er vio­la­tions. This sys­tem dras­ti­cal­ly restricts effec­tive trade union­ism and harsh­ly pun­ish­es any attempt of a union to break from this sys­tem. From this per­spec­tive, the NRLB main­ly func­tions as a repres­sive appa­ra­tus to dis­ci­pline labor while offer­ing some pro­tec­tions to main­tain legit­i­ma­cy. (Of course it is hard to inveigh too much against the NLRB offi­cials when the labor offi­cial­dom has large­ly accept­ed the sys­tem of labor con­trol as legit­i­mate and has raised nary a peep against the repres­sion against the ILWU.)

Sec­ond, a dis­turb­ing fac­tor in this case is the zeal with which the NLRB is going after the ILWU. The Admin­is­tra­tive Law Judges deci­sion drips with con­tempt against the union. While this could be chalked up to a bad Admin­is­tra­tive Law Judge, the appoint­ed mem­bers of the NLRB upheld the deci­sion. Repub­li­can appointees on the NLRB for decades have bent over back­wards to find ways to uphold employ­ers’ inter­ests and under­mine work­er pro­tec­tions. In fact, the NLRB deci­sion in this case direct­ly con­tra­dicts how the labor board treat­ed the case in an advice memo on the East Coast with the Inter­na­tion­al Longshoremen’s Asso­ci­a­tion (ILA), say­ing of course the car­ri­ers and oper­a­tors con­trolled the work.

Many of the judi­cial deci­sions against sol­i­dar­i­ty came not from con­ser­v­a­tive Supreme Court jus­tices in the 1980s but from the lib­er­al Supreme Court in the 1960s. As I argue in Reviv­ing the Strike, these lib­er­als are more com­fort­able with uphold­ing rights with­in an employ­er (such as tape record­ing con­ver­sa­tions) than embrac­ing the mil­i­tant, sol­i­daris­tic form of union­ism employed by the ILWU.

By claim­ing it is still the Port of Port­land which is the employ­er rather than pri­vate com­pa­ny (ICT­SI) actu­al­ly run­ning the ter­mi­nal, the NLRB por­trays the ILWU as ille­git­i­mate and engag­ing in ille­gal sec­ondary activ­i­ty. But if one uses some com­mon sense, it is clear that long­shore work­ers have a legit­i­mate dis­pute with their employ­er over the scope of work. This is not the ILWU pick­et­ing some unre­lat­ed employ­er miles away but rather attempt­ing to deal with an issue on their docks.

The ILWU rep­re­sents mem­bers at ports along the West Coast and zeal­ous­ly safe­guards their juris­dic­tion as any union should do. After the oper­a­tions at the Port of Port­land were pri­va­tized, the pri­vate employ­er signed a port wide agree­ment but refus­es to abide by cer­tain terms even though the employ­er asso­ci­a­tion, which it vol­un­tar­i­ly joined, agreed with the ILWU. To the NLRB, none of this matters.

If this deci­sion is allowed to stand — this legal fic­tion that the port still con­trols work on a ter­mi­nal they pri­va­tized — than that log­ic can be expand­ed to oth­er areas of ILWU juris­dic­tion. Work can be spun off by ports and, even worse, the union’s hands would be tied in fight­ing because the action would be con­sid­ered sec­ondary activ­i­ty out­lawed by Taft-Hart­ley. As in many oth­er indus­tries, the use of the cor­po­rate form and legal fic­tions would destroy union­ism in this industry.

This rep­re­sents an occa­sion to ques­tion the Taft-Hart­ley frame­work and to have a dis­cus­sion about what effec­tive trade union­ism looks like. Taft-Hart­ley was passed to ren­der union­ism inef­fec­tive, as were the decades of court and NLRB deci­sions which fol­lowed. If employ­ers are allowed to defy the coast-wide agree­ment — an agree­ment that is essen­tial to ILWU pow­er — then effec­tive trade union­ism in this vital sec­tor of the econ­o­my will be crippled.

Sure, work­ers may be able to record con­ver­sa­tions at work. But the words on tape will like­ly be employ­ers gloat­ing about how effec­tive union­ism has final­ly been extinguished.