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Garment Factory Workers in Southern California Are Calling for a Boycott of American Apparel

Tuesday, May 3rd, 2016

Mario VasquezThe General Brotherhood of American Apparel Workers (GBWAA), a union for garment workers at American Apparel’s southern California manufacturing facilities—one of which, its downtown Los Angeles location, is the largest garment-making factory in the country—has called for a boycott of the brand’s merchandise, pointing to mass layoffs and reduced compensation and benefits that have intensified since new management in January 2015 began a process of post-bankruptcy restructuring throughout the corporation.

GBWAA is currently awaiting a certification election date from the National Labor Relations Board, and workers with the union say they are calling for the boycott because American Apparel consumers must know corporation is not the high-wage, sweatshop-free company once marketed itself to be, especially since Paula Schneider replaced American Apparel founder Dov Charney as chief executive officer of the corporation.

Schneider’s appointment was approved by a corporate board that had been mostly hand picked by the hedge fund Standard General, who effectively had control of the company after a failed bid by Charney to regain control. Previously ousted as CEO amid reports of alleged sexual misconduct, Charney saw millions of his voting shares go to Standard General. When the company filed for bankruptcy in October 2015, claiming its debt was insurmountable, complete ownership went to the company’s principal debtholders: Goldman Sachs Asset Management, Monarch Alternative Capital, Coliseum Capital, Pentwater Capital Management and Standard General (famous for their previous alleged hostile takeover of Radioshack), who kept on Schneider as CEO—much to the dismay of Charney and workers at American Apparel production sites that had already began organizing.

Union president Stephanie Padilha dos Santos tells In These Times, “If you’re used to buying American Apparel and think that the company is great and that the whole concept of paying fair wages in [the garment] industry was what made the company a huge success, then we invite you now to boycott the brand because it is no longer sweatshop-free.”

Padilha alleges that the company has been outsourcing production to other “sweatshops” around Los Angeles, while reducing the once relatively high wages earned by production workers at the company, which were the highest in the world, according to the company.

American Apparel did not respond to requests for comment by In These Times.

Meanwhile, in another round of layoffs, over 500 workers are reported to have been laid off this April as part of what Schneider has called a “redesign of [their] production process.”

Victor Narro, Project Director at the UCLA Labor Center, says that American Apparel was famous for providing high-wage garment jobs that are seldom seen for the immigrant communities typically doing the work in Los Angeles. “These garment workers are not going to be able to find a similar type of workplace in the industry,” Narro says.

Padilha says that after being abruptly let go with little notice, “All the dignity that the company provided [the laid-off workers] will be gone and they’re going to have to go back to the poor reality of the garment industry.” In the past, GBWAA has led work stoppages over decreased conditions and has filed dozens of unfair labor practices against the company since Schneider took over. Padilha believes a union can put a check on further layoffs and stabilizes the free falling wages and hours for the garment workers. American Apparel did not respond to requests for comment by In These Times in regards to GBWAA claims.

The company, however, has stressed that “the GBWAA could not fairly represent the interests of its near 4,000 production workers, even if elected” because of Charney’s appearances at union functions throughout 2015 “Mr. Charney has used every tactic imaginable to claw his way back to the head of the company—including organizing workers to demand his return as CEO,” says a letter by American Apparel legal representatives, asking a U.S District Court to force Charney to appear at NLRB hearings to provide testimony as well as submit documents relating to GBWAA in its appeal of the union’s petition for election. The appeal centers on the claim that GBWAA is a Charney-created entity.

Nativo Lopez, an organizer in Los Angeles who has worked with American Apparel workers over issues of immigrant rightssince 2009, says that the company’s allegations are “absolutely false.” Lopez says that garment workers active in Lopez’s immigrant rights advocacy organization, Hermandad Mexicana, helped lead organizing, with Lopez serving in a voluntary advisory position. Thus, GBWAA is claiming it is an independent union—not a product of Charney.

Workers, he says, only focused on the return of Charney to company leadership initially because “working under him, in his administration, [they were] enjoying above-minimum wage and benefits that they had never previously experienced in any other apparel company where they had been employed.”

“The ‘Save American Apparel’ slogan has been changed to ‘Boycott American Apparel,” Lopez says, predicting an entire offshoring of American Apparel’s domestic manufacturing to low-wage countries, joining the approximately 97 percent of apparel brands in this country who do not produce their clothing in the United States. Onlookers from the finance world havesaid the same elsewhere. “It’s no longer the same American Apparel,” Lopez tells In These Times.

The last public union campaign at American Apparel garment factories occurred in 2003, when UNITE (the garment workers union that soon after merged with HERE to form UNITE HERE) tried to organize workers in the downtown manufacturing hub. Charney was not supportive, according to Stephen Wishart, a senior research analyst with UNITE HERE at the time, whosaid of the campaign:

The company’s activities included holding captive meetings with employees, interrogating employees about their union activities and sympathies, soliciting employees to ask the union to return their union authorization cards, distributing anti-union armbands and T-shirts, and requiring all employees to attend an anti-union rally. The company’s most devastating tactic, though, was threatening to shut down the plant if the workers organized.

Charney, speaking to the Los Angeles Business Review in 2004 about the unsuccessful union organizing campaign, called unions an “obstacle”:

The concept of a union is a check against greed on the part of the employer. If I really wanted to be motivated by greed alone and pay the lowest possible wage, I wouldn’t be working in this factory. To say, “Let’s appoint a union to represent the workers even further” may put into disequilibrium the delicate balance that I’ve created between all the parties.

Narro says that although wages were high at American Apparel, the benefits of union collective bargaining agreements have always been sorely lacking and it remains evident in its current restructuring process. “If he had worked something out with UNITE back in 2002, and they agreed to a union contract, [then] these workers would have had a lot of protection right now. Nothing is guaranteed, but they would not have been as vulnerable to the bankruptcy and the downsizing and the management decisions.”

“Union contracts would create mechanisms to protect workers as much as possible,” says Narro. Organizing amid the corporation’s restructuring is “harder to do now because there’s nothing to enforce,” he adds.

For now, GBWAA hopes the boycott will bring to the light the urgency they feel is required in its certification efforts, especially as predicted further layoffs loom. Padilha says the NLRB needs to act now, telling me, “As soon as a hedge fund takes over, the company goes into bankruptcy. Workers getting laid off, having their rights ripped apart, and they make no money. Everything is changing; outsourcing production. There [are] enough reasons why this election is what workers need right now.”

This blog originally appeared at inthesetimes.com on May 3, 2016. Reprinted with permission.

Mario Vasquez is a writer from southern California. He is a regular contributor to Working In These Times. Follow him on Twitter @mario_vsqz or email him atmario.vasquez.espinoza@gmail.com.

Prince Was a Champion for Working People

Wednesday, April 27th, 2016

Kenneth-Quinnell_smallThe world lost a musical icon [on April 21]. You’ll read about his impact as a musician and an entertainer elsewhere, but let’s take a second to look at Prince’s career-spanning fights on behalf of working people.

For more than 40 years, Prince was a union member, a long-standing member of both the Twin Cities Musicians Local 30-73 of the American Federation of Musicians (AFM) and SAG-AFTRA. Beginning with “Ronnie Talk to Russia” in 1981 on through hits like “Sign o’ the Times” and later works like “We March” and “Baltimore,” Prince’s music often reflected the dreams, struggles, fears and hopes of working people. (And he wasn’t limited to words, his Baltimore concert in the wake of Freddie Gray’s death raised funds to help the city recover. I got to sit on the right side of the stage, high in the rafters, to watch joyously.) Few of America’s artists have so well captured the plight of working Americans as Prince, putting him in the line of artists like Woody Guthrie and Bruce Springsteen as working-class heroes.

Ray Hair, president of AFM, spoke of Prince’s importance: “We are devastated about the loss of Prince, a member of our union for over 40 years. Prince was not only a talented and innovative musician, but also a true champion of musicians’ rights. Musicians—and fans throughout the world—will miss him. Our thoughts are with his family, friends and fans grieving right now.

And this is a key part of his legacy. Prince was deeply talented and could have easily made his success without much help from others. And yet he was a massive supporter of other artists, from writing and producing songs for artists as diverse as Chaka Khan, the Bangles, Sinéad O’Connor, Vanity, Morris Day and the Time and Tevin Campbell (among many others) to his mentoring and elevating of women in music, to the time where he put his own career on the line in defense of the rights of artists. And every musician that came after owes him a debt of gratitude.

The music industry has a deeply troubled past, with stories of corporations exploiting musicians, especially African American musicians, being plentiful enough to fill libraries. At the height of his popularity, Prince decided that he would fight back. He was set, financially and career-wise, and had nothing to gain from taking on the onerous contracts that artists were saddled with when they were young, inexperienced and hungry. If he lost everything by taking on the industry, he still had money and fame to rely on. But he knew this wasn’t true for many other musicians, and Prince was always a fan of music, and he knew that taking on this battle would help others. So he took on the recording industry on behalf of music. On behalf of the industry’s working people—the musicians themselves.

And it cost him his name and his fame.

In the ensuing battle, Prince famously renounced his birth name and began performing under an unpronouncable symbol instead of a name. He fought the company at every turn, even writing the word “slave” on his face in protest of the conditions he worked under. He said: “People think I’m a crazy fool for writing ‘slave’ on my face. But if I can’t do what I want to do, what am I?” For the rest of his career, which never recovered to his early heights, he continually fought to change the way that record companies treated artists, explored new ways to distribute music to fans and battled to give artists more control and more revenue for the art they create. In a still-changing musical landscape, Prince was one of a handful of artists who helped shape a future where musicians, working people, get the fruits of their labor.

In honor of Prince’s passing, check out his performance, an all-time great, at the country’s largest annual event brought to you by union workers, the Super Bowl.

This blog originally appeared at aflcio.org on April 22, 2016. Reprinted with permission.

Kenneth Quinnell: I am a long-time blogger, campaign staffer and political activist.  Before joining the AFL-CIO in 2012, I worked as labor reporter for the blog Crooks and Liars.  Previous experience includes Communications Director for the Darcy Burner for Congress Campaign and New Media Director for the Kendrick Meek for Senate Campaign, founding and serving as the primary author for the influential state blog Florida Progressive Coalition and more than 10 years as a college instructor teaching political science and American History.  My writings have also appeared on Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.  I am the proud father of three future progressive activists, an accomplished rapper and karaoke enthusiast.

When Scalia Died, So Did ‘Friedrichs’—And an Even Grander Scheme To Destroy Unions

Wednesday, February 24th, 2016

Conservatives had a great plan in motion to decimate unions. If Justice Antonin Scalia hadn’t died in his sleep, they almost certainly would have pulled it off.

First they got the Court to rule their way in 2014’s Harris v. Quinnwhich targeted home healthcare unions. Like “right to work” laws, the case sought to gut unions’ funding and diminish solidarity by saying that union members can’t be required to pay dues. The Court agreed, holding that the First Amendment does not allow the collection of fair share fees from home healthcare workers. The decision, written by Justice Alito and signed by the Court’s four other conservatives, also not-so-subtly invited further attacks on the funding and membership of unions.

Next came Friedrichs v. California Teachers Association, which sought to expand Harris to impose right-to-work on all public sector employees. The conservative Center for Individual Rights (CIR) rushed Friedrichs to the Supreme Court by essentially conceding at every lower court that under current law, it should lose. Friedrichs could only win if the Supreme Court overturned 39 years of precedent that date back to the 1977 Abood v. Detroit Board of Education decision.

When the Court accepted Friedrichs, there was some hope that Justice Scalia might provide the critical vote to save public-sector unions. This was not because Scalia had any great love for labor—he did not—but because he understood the basic economic theory of free riders: Just like any other enterprise, it can be difficult for a union to get its members to pay dues when they can get all the benefits of the contract for free. Scalia had said as much in a 1991 concurrence-dissent, and many were hoping that he would exercise consistency with Friedrichs.

However, the oral arguments on Friedrichs last month destroyed any such illusions. Justice Scalia, never coy about his beliefs, made it clear that he now believed that fair share fees should be eliminated. Though it’s often difficult to divine the Court’s final decision from oral arguments, it was plain after the Friedrichs arguments that labor would lose.

Accordingly, labor was scrambling to figure out how best to run a union in a post-Friedrichsworld. Meanwhile, conservatives already had a plan in the works to expand what they saw as a certain win.

Last week, in a little-noticed case called D’Agostino v. Baker, the National Right to Work Legal Defense Foundation lost at the First Circuit in their attempt to argue that the First Amendment does not allow exclusive representation of home healthcare workers. This case sought to expand theHarris holding by arguing that the First Amendment prohibits home healthcare unions not only from collecting fees from workers who don’t want to pay, but also from bargaining on behalf of any worker who doesn’t opt to be a member.

Former Supreme Court Justice David Souter wrote the decision for the First Circuit inD’Agnostino, relying heavily on Abood and its progeny. If history is any indication, National Right to Work was planning on appealing this case to the Supreme Court. The case  provided a glimpse of what the likely post-Friedrichs plan of attack would have been: After you win on the dues front, go after membership.

In addition, other cases, such as Bain v. CTA, that attacked the membership rights of unions but had been thrown out by lower courts, were likely to reappear.

However, on Saturday it was reported that Justice Scalia had been found dead. With his absence from the Court, conservative plans to attack union dues and membership through Supreme Court challenges may have dissolved for now.

If President Obama can get a new justice confirmed by a Republican-controlled Senate and that justice is permitted to take part in Friedrichs, then the case will likely be decided 5-4 in favor of labor.  If Republicans leaders made good on their vow to thwart any nomination by Obama, or the new justice does not take part in Friedrichs—either because the Court decides not to set it for rehearing or the justice must recuse herself—then all indications are that the case will be decided 4-4. In the event of such a tie, the lower court ruling is upheld—in this instance, the 9th Circuit’s dismissal of the case.

When the Supreme Court ties 4-4, no precedent is set. Anyone in labor worried about that outcome in Friedrichs can rest a bit easier remembering that no precedent is needed here. Aboodcreated the precedent in 1977, and Friedrichs was a shameless ideological ploy to overturn that longstanding precedent. In Friedrichs, the CIR did not present the Supreme Court with the typical grounds for review: either a “a circuit split,” where lower courts issued conflicting decisions, or proof that circumstances had changed so significantly since Abood that the Supreme Court needed to reconsider its ruling. (Justice Stephen Breyer pointed to the absurdity of the Court overruling good case law for no good reason when he asked in oral arguments whether the Court should also revisit its landmark 1803 decision in Marbury v. Madison, which helped set the very terms of judicial review.)

Therefore, unlike other cases on the Court’s docket, if Friedrichs goes away quietly, it will stay gone until there is another conservative majority.

Without a Friedrichs decision that bans fair share fees, it is unlikely the Supreme Court would accept D’Agostino, and even less likely that it would decide against labor in such a case. Other cases attacking the membership rules of unions on specious Constitutional grounds are similarly unlikely to make it to the Supreme Court. With Justice Scalia’s unexpected death, conservatives will have to go back to attacking labor the old-fashioned way: at the state and federal legislatures.

This post originally appeared on inthesetimes.com on February 15, 2016.  Reprinted with permission.

Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

 

How Scalia’s Death Affects That Important Public-Employee Union Case

Wednesday, February 17th, 2016

dave.johnsonWith the death of Supreme Court Justice Antonin Scalia’s death Saturday, the court’s ideologically conservative 5-4 majority is no more. One big case this affects is Friedrichs v. California Teachers Association, which the conservative ideological majority on the court was prepared to use to bankrupt public-employee unions. Now they can’t do that.

The Friedrichs case involves a lawsuit from anti-union groups that want to stop public-employee unions from collecting dues from non-members, even though they are required by law to provide expensive services. A unanimous 1977 ruling by the Supreme Court, in Abood v. Detroit Board of Education, had said that unions can collect dues from nonmembers for “collective bargaining, contract administration, and grievance adjustment purposes” while those nonmembers are free to choose whether to also pay into union funds used for political purposes. The conservative, anti-union ideologues on this court, which included Scalia, went against precedent and “settled law” in agreeing to hear this case at all.

The post” Why You Should Pay Attention To The ‘Friedrichs’ Supreme Court Case explains”:

The Supreme Court has once again decided to reconsider “settled law.” This time it is a case involving the rights of public-employee unions to charge employees a fee for the services the unions are required by law to provide to all employees – even those who are not members of the union. The goal is to bankrupt the unions by denying them the funds necessary to perform the required services.

The argument is that since unions protect working people’s pay and rights, paying fees for union services therefore violates the “free speech” of those who support concentrated wealth and power.

The purpose of keeping unions from collecting dues while requiring them to provide services was clearly to bankrupt the unions. The post “Supreme Court Appears Ready To Bankrupt Public-Employee Unions” looked at the funding behind the case — and behind getting the anti-union ideologues onto the court:

The names Koch, Bradley, Scaife, Olin, Coors, Walton and the others are well known to people who study the massive amount of money behind the so-called “conservative movement” that has helped drive anti-democracy efforts and the resulting inequality in the decades since the 1970s. This small band of wealthy foundations and billionaires are among the same conservative donors who funded the efforts to place the current corporate-conservative majority on the court, and many of the politicians who voted to put them there.

What Now?

Justice Scalia died before the Court decided the Friedrichs case. The court is now evenly divided, with four justices who almost always rule on the side of big corporations and billionaires against unions, environmentalists, consumer groups and all other interests the protect the non-wealthy public in general. The other four justices usually consider the constitutionality, law and merits of the cases before them.

In the Friedrichs case, there is little doubt that the court will now tie 4-4 because of the unanimous Abood precedent. The rules of the legal system say a tie in the Supreme Court means that the ruling of the lower court that advanced the case up to the Supreme Court stays in effect.

In the case of Friedrichs v. California Teachers Association, that lower court is the Ninth Circuit Court of Appeals. That court ruled that the unanimous 1977 Supreme Court ruling in Abood is still settled law and applies, so the California Teachers Association could continue to collect dues from nonmembers.

Put another way, Scalia’s death likely means that public-employee unions will not be forced into bankruptcy by the corporate/billionaire-funded “movement” ideologues on the Court.

This blog originally appeared at OurFuture.org on February 16 2016. Reprinted with permission.

About the Author: Dave Johnson has more than 20 years of technology industry experience. His earlier career included technical positions, including video game design at Atari and Imagic. He was a pioneer in design and development of productivity and educational applications of personal computers. More recently he helped co-found a company developing desktop systems to validate carbon trading in the U.S.

With Gov. Snyder Failing to Fix the Problem, Working People Step Up in Flint Water Crisis

Thursday, January 28th, 2016
Kenneth Quinnell

Michigan Gov. Rick Snyder (R) has been rightly criticized for how he has handled the water crisis in Flint. In his State of the State speech earlier this month, he had a chance to take the crisis head on and failed to do so. Working people, on the other hand, are stepping up where Snyder has failed.

Ron Bieber, president of the Michigan AFL-CIO, responded to Snyder’s speech:

The people of Flint deserve answers and accountability, but the governor didn’t provide either tonight. Until the governor waives his [Freedom of Information Act] exemption and releases all materials on the Flint water crisis—including those from his senior staff—his promise to release a handpicked number of emails is hollow. To help the people of Flint start to heal and ensure a disaster like this never happens again, the governor needs to be fully transparent with the public and start telling the truth.

Sam Muma, president of the Greater Flint Central Labor Council, agreed:

It seems pretty clear that Rick Snyder still doesn’t get it. Our city needs sustained, long-term resources from the state to clean up the mess that Snyder created, and on that front, the governor’s speech fell short. All I heard were more empty promises from a politician who’s desperate to dodge the blame. Snyder needs to start being straight with people and show real leadership if he’s ever going to help Flint recover.

Meanwhile, union members have been helping out Flint residents. UAW and LIUNA members have volunteered to help out, and now Plumbers and Pipe Fitters members are going door to door to help residents install filters that will make their water a lot safer. Focusing on seniors and people with disabilities first, the plumbers have helped instill more than 1,000 filters since last week. Residents like Lucia Chapman, who was deeply concerned about the safety of her brother who has a disability and her grandchildren, have been thankful for the efforts of the union members. “I don’t have to worry about if I’m drinking bad water. Everything will be alright because we got people like him,” she said, in reference to plumber Tony Slatton, who changed her faucet and installed her filter.

Learn More:

If you would like to know how you can help, visit Michigan AFL-CIO’s website for details.

This blog originally appeared in aflcio.org on January 27, 2016. Reprinted with permission.

Kenneth Quinnell is a long time blogger, campaign staffer, and political activist.  Prior to joining AFL-CIO in 2012, he worked as a labor reporter for the blog Crooks and Liars.  He was the past Communications Director for Darcy Burner and New Media Director for Kendrick Meek.  He has over ten years as a college instructor teaching political science and American history.

Chicago Window Workers Who Occupied Their Factory in 2008 Win New Bankruptcy Payout

Tuesday, January 26th, 2016

kari-lydersenSeven years after Republic Windows & Doors workers occupied a recently-shuttered factory in Chicago, making international news, and three years after they opened their own window company, they are receiving a $295,000 payout in bankruptcy court that is both a symbolic and pragmatic victory.

When a company goes bankrupt, workers are usually at the end of the line to get paid, as they are considered “unsecured creditors” behind various secured creditors who are owed money. That means workers often never get money they are owed.

But the Republic Windows workers have broken the mold in many ways, starting when they occupied the factory on Goose Island in the Chicago River, receiving massive community and political support and convincing Bank of America and JP Morgan Chase to hand over the severance and vacation pay due them.

They became a poster child of the American Recovery and Reinvestment Act (or the “stimulus”) after the company was bought by a California-based maker of highly energy efficient products. Then they occupied the factory again when that owner threatened to close it. Finally in spring 2013 they opened their own factory, New Era Windows.

In January 2009, not long after the occupation, the United Electrical Workers (UE) union, which represented Republic workers, filed a complaint with the National Labor Relations Board charging that the company violated the union contract by closing abruptly without negotiating over the closure terms. Two years later, the board ruled in favor of the workers and decided they were due two weeks’ wages, the estimated amount of time that bargaining over a closure would have taken.

The company was in bankruptcy proceedings by then, however, and it wasn’t until this week that the bankruptcy court ordered the release of the funds. The NLRB will distribute the money to individual workers.

A release from the NLRB this week noted:

The Board found that the employer violated the National Labor Relations Act when they closed their Goose Island facility and moved operations to an alter ego operation in Iowa. However, ongoing bankruptcy procedures made full or partial compliance with the order unlikely until a successful suit against the employer’s insurer made additional assets available for the repayment of debts.

The board continued that: “Bankruptcy proceedings often prevent compliance with Board-ordered remedies as employer’s assets are liquidated through Chapter 7 processes. While the employees did not receive full back pay, obtaining partial compliance in this case is a victory for workers who have been waiting for a remedy since 2008.”

“Some people feel like it’s not enough, but it’s symbolic,” said Armando Robles, one of the New Era worker-owners and a leader of the occupation and ensuing efforts. “It’s a huge victory.”

UE organizer Leah Fried noted that the payout is thanks to “the constant haranguing we had do to. We had to wait until everyone else came out of the woodwork, but the fact we kept pressuring the court” paid off.

“It’s great that seven years later, [the workers are] still winning money,” she says.

The former Republic Windows CEO, Richard Gillman, was sentenced to four years in prison for fraud charges related to the closing of the factory and the purchase of another window factory in Iowa. He was released after serving significantly less time than the sentence.

New Era has been growing, with 14 worker-owners and four new hires, Robles said. This is the slow season, however, when few people are ordering windows. Robles said the bankruptcy payment should mean about $1,200, helping him pay rent and bills until New Era business picks up in the spring.

“It hasn’t been easy, obviously,” said Fried. “But they’ve shown you can run a company without bosses, and do well.”

This blog originally appeared in inthesetimes.com on January 25, 2016.  Reprinted with permission.

Kari Lydersen, an In These Times contributing editor, is a Chicago-based journalist and instructor who currently works at Northwestern University. Her work has appeared in the New York Times, the Washington Post, the Chicago Reader and The Progressive, among other publications. Her most recent book is Mayor 1%: Rahm Emanuel and the Rise of Chicago’s 99 Percent. She is also the co-author of Shoot an Iraqi: Art, Life and Resistance Under the Gunand the author of Revolt on Goose Island: The Chicago Factory Takeover, and What it Says About the Economic Crisis.Look for an updated reissue of Revolt on Goose Island in 2014. In 2011, she was awarded a Studs Terkel Community Media Award for her work.

Yesterday’s ‘Friedrichs’ Arguments Show Labor’s Difficulties in a Post-‘Citizens United’ World

Tuesday, January 12th, 2016

Editor’s note: In These Times has covered the Friedrichs case since the beginning. For more pieces on the case and its potential impact, see this roundup.

Yesterday, the Supreme Court heard extended arguments in Friedrichs v. California Teachers Association. The case is ostensibly a First Amendment case about whether public employees who do not want to join a union can withhold all fees—the same as “right to work”—or whether unions can charge those employees fees—“agency” or “fair share” fees—to cover activities germane to collective bargaining. The plaintiffs, 10 objecting teachers and a Christian education association, were asking the Supreme Court to overturn the 1977 case Abood v. Detroit Board of Education that declared that agency fees were the proper compromise between workers’ constitutional rights and the government’s interest in promoting labor peace.

However, despite a fairly clear issue before the Court, the arguments proceeded bizarrely, jumping repeatedly between disparate issues. This seemed to be largely the result of two fairly unique circumstances surrounding this case.

First, the Supreme Court had almost no record that could be used to address basic questions. Usually, cases that end up in front of the Supreme Court take a slow path in front of lower courts, where evidence is introduced and a conversation of sorts develops between the parties and the judges. By design, the conservative Center for Individual Rights, which represented the plaintiffs, pushed this case through the system in record time.

At each lower court, the plaintiffs’ position was that the case should be dismissed on the basis of longstanding Supreme Court precedent. As a result, the plaintiffs were able to get the case in front of the Supreme Court in less than two years. But they did so without much evidence from which either side could draw from.

This led to arguments that were, at best, abstract political positions talking past each other. At one point, the attorney for the California Teachers Association tried to explain to Justice Scalia about the history of public sector agency fees and public services, arguing that in New York City the use of such fees helped the city deliver better transit services. When pressed by Scalia on how the fair share fees led to this result, the union attorney basically had to throw up his hands and state that without a factual record, he has little to rely on other than what was raised in the various amicus briefs.

However, it was not just the lack of a record in this case that made it so peculiar—it was also the broad assumption among the Justices and the attorneys that money is speech. Being required to pay a fee for a benefit is now considered compelled speech, and any expenses negotiated between a union and a government employer constitute political speech. In one telling moment of the argument, when the attorney for the State of California tried to argue that mileage reimbursement rates are among the prosaic matters that public sector unions negotiate, Chief Justice Roberts shot back, saying, “It’s all money. That’s money.”

Chief Justice Roberts further articulated this position when, in one of his classic simplifications (recall his 2007 affirmative action formula: “the way to stop discrimination on the basis of race is to stop discrimination on the basis of race”) he stated, “If your employees have shown overwhelmingly that they want collective bargaining, then it seems to me the free-rider concern that’s been raise is really insignificant.” Completely missing from Justice Roberts’ statement was any awareness of how people act in the real world, or half a century of social science research on collective action and the free rider problem. Instead, it’s as simple as: if they approve, then they will pay; if they don’t pay, they don’t approve.

According to the Court’s current First Amendment jurisprudence, money appears to be not only speech, but also the type of speech that deserves the highest form of protection. The problem with this view is that even if one assumes that money does represent some form of speech, it would represent among the most imprecise and inscrutable type of speech.

When someone buys a banana from Walmart, does that purchase signal that the buyer believes in Chiquita’s use of paramilitary organizations in Colombia, or affirms Walmart’s use of union-busters, or buys into the myriad of conservative causes supported by the Walmart and Walton Family Foundations? Or does it mean that the person craved a banana and found herself near a Walmart? It is impossible to know without engaging in actual speech with the individual.

In the yesterday’s arguments, Justice Breyer tried fruitlessly to point out that we have to beware in ascribing too much meaning to money. “You will go out this door and you will buy hundreds of things, if not thousands, where money will go from your pocket into the hands of people, including many government people, who will spend it on things you disagree with.” But with a quick out-of-context quote by James Madison, the attorney brushed aside Justice Breyer’s concerns.

In this case, which was purportedly all about the First Amendment, it was shocking how little speech or the political positions of the unions were discussed in the oral arguments. Indeed, though several of the Justices repeatedly cast teacher pay and merit pay as highly political issues over which teachers could disagree, it appears that Rebecca Friedrichs (the lead plaintiff in the case) actually agrees with the union on these issues.

This leads to the natural question of what happens when conservatives have completed the project of going after union money and actually go after union speech. Contrary to the picture painted by many of these conservative organizations, unions are not simply massive war chests secretly funding the Democratic Party. They are organizations that represent millions of workers each and every day in grievances, contract negotiations, the press, the legal system, the political sphere and in a variety of other domains. Unions engage in an enormous amount of “speech” on behalf of their memberships—is each and every part of that speech open to First Amendment attack?

Judging by the briefs submitted in this case and the oral arguments, there is good reason to be concerned about future attacks. After union dues and fees, the likely next attack will be about exclusive representation. If the Supreme Court here determines that the requirement to pay fees for representation violates public sector workers’ First Amendment rights, it is hard to see how they won’t also soon determine that public sector unions’ representation of workers does not also violate their First Amendment rights. While some union advocates have argued for the elimination of exclusive representation (especially in response to “right to work”), one has to recognize that American labor law was established with a careful balance in mind. Without required fees and without exclusive representation, the horizon will change greatly.

Though it’s impossible to divine from oral arguments which way the ultimate decision will go, yesterday’s argument showed a lack of understanding on the part of some of the justices of how unions function, an antipathy towards their activities on behalf of their membership and a view of them as being at odds with the Constitution. None of that bodes well for the outcome unions are hoping for in this case.

This blog originally appeared in inthesetimes.com on January 12, 2016.  Reprinted with permission.

Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

What's This Friedrichs Case Really About?

Monday, January 11th, 2016
Jackie Tortora

You may have heard something about the upcoming U.S. Supreme Court case on Friedrichs v. California Teachers Association. The main thing you need to know is that this is an attack on working people’s freedom to come together and form unions, plain and simple. These are the nurses who make sure their patients have what they need to get well and the teachers who advocate for their students and class sizes.

Here’s a handy graphic you can share with your friends and family.

Friedrichs_3_800
This blog originally appeared at aflcio.org on January 5, 2016.  Reprinted with permission.
Jackie Tortora is the blog editor and social media manager at AFL-CIO.

 

UAW Overrules Academic Workers BDS Vote Against Israel Despite Finding Strong Turnout, No Misconduct

Wednesday, January 6th, 2016

in these timesOn December 15, 2015, the United Auto Workers (UAW) International Executive Board (IEB) nullified the resolution passed last year by members of UAW Local 2865, the 13,000 teaching assistants and student-workers at the University of California system, that called on the International to endorse the Boycott, Divest, and Sanctions (BDS) movement against Israel by withholding their financial investments in companies “complicit in severe and ongoing human rights violations as part of the Israeli oppression of the Palestinian people.

The decision to nullify the BDS resolution, which had made Local 2865 the first American local union to endorse a boycott, was the outcome of an appeal filed by a member of Informed Grads, a group of local union members who opposed BDS. Stephen Brumbaugh, a Local 2865 member at UC Los Angeles, took his case up with the International’s executive board after Local 2865 had previously dismissed it in May 2015, failing to find merit in its claims.

The IEB went through a period of fact-finding, gathering testimony and evidence from Informed Grads and Local 2865 before issuing the decision. While UAW IEB admitted that the December 2014 vote on the BDS measure was democratic and free of any misconduct, producing a turnout higher than previous elections held by the local, the IEB concluded that in its view the resolution violated the International’s constitution by “lead[ing] to a direct economic deprivation for members of the UAW, as well as other organized members by, categorically interfering with the flow of commerce to and from earmarked companies” at Boeing, Caterpillar, General Electric, Lockheed Martin, ITT, Northrop-Grumman and Raytheon, the firms targeted by BDS advocates.

Brumbaugh’s attorneys on the appeal are associated with Gibson, Dunn, & Crutcher, a global law firm known for providing for big business, including Walmart in a 2011 landmark civil action discrimination suit. “We are very pleased by [the UAW] International Union’s forceful rejection of BDS, which sets a powerful precedent for other labor unions and national organizations,” said Scott Edelman, a partner at Gibson, Dunn & Crutcher, in a statement by Informed Grads.

At one August hearing, Brumbaugh and his attorneys introduced several letters sent by “prominent labor union advocates” to UAW International to condemn BDS, including Randy Cammack and Rome A. Aloise, both International Vice Presidents with the International Brotherhood of Teamsters, and J. David Cox, Sr., National President of the American Federation of Government Employees.

“We would find it difficult to ask our members to support your union in a labor dispute with the University of California so long as you are engaged in activities that are fundamentally hostile to their interests,” Cammack and Aloise say in their letter. “Unlike the members of your union, who are graduate students and therefore union members for a short period of time, our members are working in jobs that must support them for a lifetime and it is our job to protect them for all of their working lives.”

Another letter submitted by Brumbaugh came from Jonathan D. Ginzel, the Director of Labor & Employment Relations at Caterpillar (one of the corporations targeted by BDS resolutions for its alleged role in the demolition of Palestinian villages), who tells a UAW International executive that the company “outright rejects any suggestion that Caterpillar is engaged in or complicit in any human rights violations anywhere in the world” and asks the International to “void this Resolution and take whatever additional steps are necessary to confirm that the UAW does not support an effort to divest from Caterpillar or Israel.”

Kumars Salehi, a UAW 2865 member and BDS caucus member at UC Berkeley, calls the IEB’s claims of potential economic deprivation a “model of business unionism,” the union model that eschews engagement with broader social issues beyond its members’ day-to-day needs.

“This is clearly an argument that is from the perspective of the employers rather than of workers. This is the sort of argument that could be used against any boycott,” Salehi says. “There are people within UAW and the labor movement in general that critique the assumption that the interests of employers and ‘the flow of commerce’ are the same as the interests of workers.”

The IEB uses these letters later in their report to support their conclusion that by passing the BDS resolution, Local 2865 broke its constitutional obligation to work together with other unions for the “solidification” of the labor movement. But UAW members claim that their local began organizing around BDS after a call for boycott was made by Palestinian trade union confederations in July 2014 in the midst of the 50-day assault waged by the Israeli military that left 2,100 Palestinians dead.

“Citing ‘the solidification of the labor movement’ in order to justify negating the will of our members is pretty sinister and hypocritical,” says Salehi, adding that in the eyes of the IEB, it seems the rule is that Palestinian trade unions are not a part of the labor movement.

The IEB also ruled in favor of Informed Grads on the charge that the BDS resolution violated the union constitution’s ethical code, saying the resolution was “suggestive of discriminatory labeling and a disparagement” of its Israeli and Jewish members.

“The local union’s attempt to address the predicament of the Palestinian people appears to be accomplished through biased targeting of Israeli/Jewish UAW members, and the scorning of the state of Israel and all alleged entities complicit in actions against Palestine,” the IEB said in report of the decision.

David McCleary, UAW 2865 Northern Vice President, speaking on behalf of UAW 2865 Executive Board, told In These Times, “We firmly reject accusations of antisemitism, and the evidence presented during the appeal process clearly supports this view. As one of many Jewish members of UAW 2865 who supported this divestment campaign, I can say that the accusation is personally hurtful and I expected better of our International Executive Board.”

“While this decision nullifies our non-binding resolution, it does not erase the voices and efforts of the countless rank-and-file members of our union, passionate about equality and justice for Palestinians,” McCleary added.

Unted Electrical Workers (UE) and the Connecticut AFL-CIO have followed Local 2865’s lead on a BDS endorsement over the course of the past year but have met opposition. UE’s resolution has been challenged through the National Labor Relations Board by an Israeli non-governmental organization on the grounds that it amounts to illegal secondary boycotts (aproduct of the Taft-Hartley Act). In California, as Glenn Greenwald has written for the Intercept, UC administrators and state lawmakers have been vocally supportive of expanding hate speech definitions to include criticism or “demonization” of Israel, which would conceivably limit BDS activism at least in theory.

“No letter from the IEB can erase the educational and organizational work we have done over the past year—work we will continue to do, energized no doubt by the IEB’s undemocratic, business-friendly attempt to nullify this vote,” the BDS caucus says in a statement. “We are part of a growing movement for union solidarity with the people of Palestine and for a democratic and visionary U.S. labor movement.”

At New York University, graduate worker and UAW member David Klassen, says he was “excited” about the BDS campaign in California because it was everything he felt was missing in the UAW: “a long period of education, open debate” followed by “an open referendum in which members can actually decide what the policy of their union will be.”

Klassen is a member of the Academic Workers for a Democratic Union within UAW, a new wave of graduate student workers who say they aim to reform the International in more progressive directions, and says he is invested in ensuring that UAW has “venues in which people can forward their voices and have open debate” rather than important union decisions being made “quietly, in backrooms.” Klassen says that the nullification decision is the “perfect example” of closed-door decision-making that the International needs to break from.

While the IEB may have halted the BDS resolution from Local 2865 for the moment, Klassen says that AWDU members have learned from the effort in California and have launched their own BDS campaign at NYU. While he admits the common assumption is that members would want to shy away from a “controversial” or “divisive” issue, he says members have seemed to prefer democratic debate over the issue.

“People want to know that their union is a place where they can have debates about the world that they live in—that collectively, they can negotiate not just for [their] narrow, material interests at work, but also the world in which they live.” he says.

This blog originally appeared at InTheseTimes.com on January 6, 2016. Reprinted with permission.

Mario Vasquez is a writer from Santa Barbara, California. You can reach him at mario.vasquez.espinoza@gmail.com.

Working People Must Be Protected in 'On-Demand Economy'

Wednesday, December 16th, 2015

Kenneth-Quinnell_smallToday, the AFL-CIO released its “Statement of Principles on the On-Demand Economy” laying out ways to protect working people in an ever-changing work environment.

AFL-CIO Director of Policy Damon Silvers said:

“The AFL-CIO is committed to making sure that the on-demand economy leads to better lives for working people. New technologies must not be an excuse for old-style injustice. Workers in the on-demand economy, no matter what their titles, must have decent wages and benefits, safety and, most of all, a collective voice on the job.”

Here are the principles:

1. Use technology to empower, not weaken, workers.

2. Promote economic and social inclusion.

3. Establish rules to achieve binding corporate accountability, regardless of where or how people work.

4. Make portable benefits available to all workers.

5. Safeguard the employment relationship to ensure workers’ job protections.

6. Increase opportunities to access good jobs.

7. Ensure a level playing field for business.

Read more about each of the principles.

The AFL-CIO is committed to working with business, government and communities to find solutions that work for employers and working people in the on-demand economy. Today, AFL-CIO General Counsel Craig Becker is participating in a forum with The Hamilton Project. AFL-CIO Secretary-Treasurer Liz Shuler will speak on a panel at the U.S. Department of Labor’s “Future of Work” symposium on Thursday.

This blog originally appeared at AFL-CIO.org on December 9, 2015. Reprinted with permission.

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist.  Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars.  Previous experience includes Communications Director for the Darcy Burner for Congress Campaign and New Media Director for the Kendrick Meek for Senate Campaign, founding and serving as the primary author for the influential state blog Florida Progressive Coalition and more than 10 years as a college instructor teaching political science and American History.  His writings have also appeared on Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.

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