Posts Tagged ‘unions’
Wednesday, May 18th, 2016
The Verizon strike is still going on, and has passed the one-month mark. This is about working people versus giant corporations that have vast power. The 40,000 striking workers want a few things, but the immensely profitable corporation and its wealthy executives want to crush the union and have been refusing to even negotiate. The workers have been without a contract since August.
This weekend the Secretary of Labor Verizon Thomas Perez met with Verizon CEO Lowell McAdam, Chris Shelton, Communications Workers of America (CWA) president and Lonnie Stephenson, president of the International Brotherhood of Electrical Workers in Washington. The company agreed to return to the bargaining table but good luck with that. (Verizon just warned Wall Street shareholders that the strike is delaying “cost-cutting efforts.”)
One of the things the workers are asking for is for the company to stop sending workers to jobs sites that are hundreds of miles away from home for months at a time, and just hire a few more people in different locations instead. The company — with billions and billions and billions and billions in profits — and the executives — with millions and millions and millions in compensation — want to save on “costs” (regular working people are “costs”) and insists the employees be disposable cogs that can be maneuvered around the country (bye-bye families) to fit the profit needs of the corporation. They are trying to make workers pay even more for health insurance and accept lower retirement benefits.
Another thing the unions are asking for is for the company to cool off on the outsourcing of thousands and thousands and thousands of call-center jobs to low-wage countries like the Philippines and Mexico.
Meanwhile Verizon’s customers aren’t getting the promised service. But the company doesn’t care. They can just run more ads.
More Than Just Verizon’s Workers
If this sounds like it’s about more than just these workers and this company and its customers, you are starting to get the picture. Nationally the giant corporations have purchased enough of the Congress to block anything that diminishes their power and helps working people or consumers. Nationally the giant corporations have been able to weaken the unions which keeps wages down and working conditions miserable. So without strong government and strong unions regular people have nowhere to turn. THAT is why the Verizon strike is important.
National Day Of Action Thursday
CWA is holding a Verizon “Day of Action” march & rally set Thursday in Washington. They will picket from 4 p.m. to 5 p.m. at the 13 & F street Verizon Wireless store. Then strikers and their supporters will march to Lafayette Park for a rally beginning at 6 p.m.
You can donate to the solidarity fund here. “Donations to the Verizon Striking Families Solidarity Fund will be used exclusively to assist striking families with special needs who are facing very difficult financial circumstances.”
Visit the Stand Up To Verizon website to find local Day of Action events near you.
This blog originally appeared at Ourfuture.org on May 17, 2016. Reprinted with permission.
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 US.
Tuesday, May 17th, 2016
The cafeteria workers at “The Most Magical Place on Earth” are trying to organize a union. About three-quarters of the cafeteria workers at Walt Disney World in Orlando, Florida, have signed cards indicating that they want the union UNITE HERE to represent them.
Disney World, the largest single-site employer in the United States, has over 74,000 workers, the majority of them unionized. This makes Disney one of the biggest unionized labor presences in the entire state of Florida. UNITE HERE already represents 23,000 of the park’s employees, but Disney outsources its cafeteria work to the French company Sodexo, which means that the 350 people who make up the cafeteria staff lack the same union representation as the other park workers.
Sodexo is no stranger to labor disputes. They have been the target of at least nine university boycotts in recent years, with students protesting their low-pay and substandard working conditions. In 2009, the Service Employees International Union (SEIU) began a nationwide campaign against Sodexo to improve its employees’ wages and working conditions. Sodexo sued the SEIU in 2011, claiming that the union used illegal tactics in their effort. The SEIU ended their campaign and the charges were dropped, but concerns about Sodexo’s labor practices continue to follow the company. At Disney, the questionable conditions are highlighted by the fact that most of the surrounding park employees are unionized.
“Most workers at the park are unionized and they’re being served [food] by an outsourced company that isn’t,” Eric Clinton, president of Unite Here Local 362 and a former park employee, tells In These Times. “We don’t think it’s fair for an entire group of people to be without a voice at work.”
The Sodexo workers’ lack of representation regularly allows them to be taken advantage of, as workers point to erratic scheduling, short-notice relocation, and retaliatory action if they complain about their situation.
Sodexo could recognize the union through a “card check” process, which unions claim is a fairer method for workers than a traditional National Labor Relations Board election because of the opportunity for employer interference, but has yet to do so. Clinton made it clear to In These Times that the union wasn’t thinking about an NLRB election at the moment. Card check is regularly criticized by pro-business groups for depriving workers of their right to a secret ballot. Some believe that such a process allows the union to pressure employees into backing unionization against its own will. But UNITE HERE believes that an election would expose workers to pressure from Sodexo.
“I talk to people who deal with last-minute schedule changes, switched shifts. I know workers who are living in their cars,” Sammy Torres, a chef at Sodexo, tells In These Times. “We’re trying to get better benefits and show we’re not paid enough. “I’m 46. There’s no retirement plans. I’ve been fighting this for a while now. We’re going to keep fighting.”
Torres says the Sodexo staff has the support of Disney cast members, but believes the holdup actually stems from the park, not Sodexo.
“I think Disney doesn’t want it,” says Torres.
UNITE HERE has had success winning unions for other Sodexo workers throughout the country. Sodexo claims hundreds of collective bargaining agreements, but Disney insists they can’t force an outside company to change its policies.
William Lawson, a field representative at the Central Florida AFL-CIO, isn’t buying that. In a blog post titled “Of Mice and Management” Lawson writes:
Disney is already a hotbed for organized labor but you can’t get your one gold star and then stop there. There is absolutely no earthly reason why the largest employer in Central Florida, one of the most profitable entities on the face of this planet, and a household name in supposed moral virtuousness should have workers living in cars or on the street. It’s unconscionable and ”We can’t tell another company what to do” is not a valid excuse.
This blog originally appeared at Inthesetimes.com on May 16, 2016. Reprinted with permission.
Michael Arria is a journalist living in NYC. He is the author of Medium Blue: The Politics of MSNBC. Follow him on Twitter: @michaelarria.
Wednesday, May 11th, 2016
Long before the birth of Teamsters for a Democratic Union in the mid-1970s, the International Brotherhood of Teamsters (IBT) was hostile terrain for creating model local unions. In the 1930s, warehouse workers and drivers in Minneapolis revitalized Teamsters Local 574, under the leadership of Farrell Dobbs and other labor radicals. They organized widespread community support for a citywide general strike—now much celebrated by labor historians. After its success, Dobbs and other Teamster militants helped organize over-the-road trucking throughout the mid-west.
What was Local 574’s reward from the IBT? It wasn’t a lot of favorable publicity in the Teamster magazine. Instead, General President Dan Tobin expelled the Minneapolis strikers from the union in 1935. A year later, the membership of 574 was readmitted but under a new local charter. When the politics of Local 544 (its successor) continued to offend Teamster headquarters, the local was put under trusteeship and its elected officers ousted in 1941. Among the Teamster goon squad members dispatched to Minneapolis for that dirty work was Jimmy Hoffa, father of the current IBT president and an admirer of Dobbs’ organizing methods (if not his Trotskyist views).
Labor educator Bob Bussel’s new book, Fighting For Total Person Unionism: Harold Gibbons, Ernest Calloway, and Working Class Citizenship (University of Illinois Press, 2016) describes a lesser-known effort to remake another Midwestern IBT local–without drawing the same kind of fire from Tobin’s successors, including Hoffa himself.
The positive, but less threatening, changes made in St. Louis Local 688 occurred under the leadership of Harold Gibbons. Gibbons developed a long and mutually beneficial relationship with Hoffa, during the latter’s rise to power in the 1950s and ‘60s. His closest local collaborator was Ernest Calloway, a leading African-American trade unionist, labor editor, and civil rights activist, who met Gibbons when they were both Depression-era organizers in Chicago.
Like Harvard-educated Powers Hapgood, the industrial union activist profiled in Bussel’s previous biography, Gibbons and Calloway were sympathetic to democratic socialism. (For more on Bussel’s earlier book, see my review for The Nation.) Neither had positive experiences with the Communist Party or the Congress of Industrial Organizations (CIO) affiliates most influenced by CP members. They came from coal mining families in Pennsylvania and Kentucky respectively; Calloway actually worked in the mines and once described himself as a “black hillbilly.”
Their shared union vision was shaped, in part, by youthful “exposure to the UMWA, which had an admirable if imperfect record of attempting to organize across racial and ethnic lines.” Their personal development as working class leaders owed much to labor education—in Gibbons’ case, a summer school stint at the University of Wisconsin’s School for Workers and in Calloway’s case, attending Brookwood Labor College and, later, Ruskin College in Oxford.
From CIO to IBT
Gibbons aided organizing or strikes among adult educators employed by the Works Progress Administration, Chicago taxi drivers, and, later, textile workers throughout Illinois and Indiana. Calloway became a member of Gibbons’ AFT-affiliated teachers union and then plunged into CIO organizing of African-American “red caps” who assisted railway passengers with their baggage. In 1940, he bravely risked imprisonment as “one of the first African-Americans to seek conscientious objector status solely on the basis of racial discrimination”—a stance not popular with red cap union officials, particularly after the Japanese attacked Pearl Harbor.
During the war, Gibbons moved to St. Louis. There, he took over a warehouse workers local affiliated with the CIO, engineered its rebranding as an independent union and, then in 1949, “stirred disbelief and anger in both local and national labor circles” by merging with the IBT. Calloway was among those he recruited to help implement “his vision of socially engaged unionism,” amid the larger “unabashed pragmatism” of the Teamsters.
In the heyday of Local 688 during the 1950s, “total person unionism” is not a term that either Gibbons or Calloway would have employed. But their conception of how a good local should function—with members strongly connected to the union and the union playing an influential role in the community—remains quite relevant today. One of organized labor’s under-utilized resources is rank-and-file connections to community institutions, whether churches, neighborhood associations, ethnic and fraternal organizations, political clubs, or other civic groups.
Gibbons and Calloway built their local into a social and political force in St. Louis by encouraging what Bussel calls “working class citizenship”–rank-and-file activism in the community and local politics, as well as on the job. Local 688 formalized this approach with an actual “community stewards” program, training hundreds of members and then deploying them in electoral campaigns and local political struggles for racial justice, better public services, and a healthy urban environment. Bussel lauds these efforts to turn an “occupationally and racially diverse union of 10,000 members” into “a model of labor progressivism that gained national and even international attention.”
In a 1946 speech—that could serve as a rebuke to certain “organizing unions” and workers centers today—Gibbons “articulated the profound psychological dimension that lay at the core of his philosophy of unionism.” In his view, union building was not the job of “college professors, smart lawyers, or high salaried executives.” But rather, it was a task for “the men and women of the shops,” where “far too many of us fail to realize our powers, our abilities, our potentialities.”
Left cover for Hoffa?
Local 688 was, in short, not the kind of mobbed-up, big city Teamster local more typical of Jimmy Hoffa’s emerging power base in the 1950s. But, as Bussel notes, “an ally of Gibbons’ caliber and reputation” was useful to Hoffa’s plan to succeed Dave Beck as Teamsters president during a period when Teamster racketeering and corruption tainted all of organized labor and led to the IBT’s 1957 expulsion from the AFL-CIO.
According to Bussel, Gibbons hitched his wagon to Hoffa in the hopes that the latter’s “mastery of power relations might be harnessed in the support of a more ambitious social agenda.” In the early 1960s, Gibbons even left St. Louis to serve as Hoffa’s executive assistant at Teamster headquarters. In that capacity, he persuaded his boss to make a $25,000 donation to Dr. Martin Luther King’s Southern Christian Leadership Conference. But then “Hoffa rejected Gibbons’ suggestion that he speak at King’s 1963 March on Washington and also refused to seek strong anti-discrimination language in trucking contracts.”
Bussel reports that Gibbons “experienced continual frustration in his efforts to enlarge Hoffa’s perspective on racial justice” and “remained an isolated voice on the issue that he regarded as essential to restoring the trade union movement’s moral legitimacy.” Hoffa, for his part, kept his sidekick from St. Louis on “a short leash.” Hoff was “fiercely ascetic in his personal life” and, thus, disapproved of Gibbon’s “womanizing” and “hanging out in nightspots and hobnobbing with Hollywood celebrities,” a bon vivant lifestyle supported by his IBT expense account. (As longtime Chicago labor activist Sid Lens once noted, Harold was “a man of many contradictions.”)
After Hoffa was jailed in 1967 for jury tampering, attempted bribery, and fraud, he left Frank Fitzsimmons in charge of the IBT. Gibbons did not fare well under Fitz, as he was known. To Gibbons’ credit, he was an outspoken opponent of the Vietnam War and played a key role in Labor for Peace, hosting its founding conference in St. Louis. He even joined a trade union delegation to Hanoi during the war, met with top North Vietnamese officials, and conducted Washington briefings on his trip when he returned.
Enemy of Tricky Dick and Fitz
Such activities landed him on the famous “enemies list” maintained by Republican President Richard Nixon. Closer to home, Gibbons bucked Fitzsimmons by casting the only Teamster executive board vote against endorsing Nixon for re-election over Democrat George McGovern in 1972. Fitzsimmons remained Nixon’s leading labor ally until the latter’s forced resignation, in disgrace, during the Watergate scandal two years later.
In the meantime, Fitzsimmons retaliated against Gibbons by replacing him as Teamsters Central Conference chairman and warehouse division director. A few months afterwards, Gibbons was even forced to resign from his elected positions at Teamsters Joint Council 13 and Local 688. In Bussel’s description, that purge signaled the end of a “twenty year quest for total person unionism that Gibbons and Calloway had pursued in St. Louis.” Gibbons retreated to a life of retirement luxury in Palm Springs, CA. “closer to the celebrity culture that had long captivated him.” Shortly before he died in 1982, the one-time syndicalist firebrand was reduced to begging the Reagan Administration (unsuccessfully) for a job as director of the Federal Mediation and Conciliation Service.
Unlike Gibbons, Calloway remained politically engaged at the grassroots level in St. Louis. When their joint vision of an activist, community-minded union was no longer achievable in Local 688, Calloway became a neighborhood organization leader. He was also a locally influential writer and teacher of urban studies, civil rights leader, and mentor to community activists. When he died in 1989, The St. Louis Post Dispatch hailed him as a man who “labored for the underdog,” declaring that “St. Louis is a better place for his efforts.” Calloway’s union career may have been overshadowed, in his lifetime, by that of his high-flying Teamster co-worker. But, now thanks to Bussel’s dual biography treatment, this “rugged fighter for social justice” will get the broader recognition he deserves.
Fighting for Total Person Unionism should not be relegated to the labor history bookshelf; too much of its content will seem eerily familiar to anyone active in U.S. unions over the last 35 years. The management resistance and labor movement dysfunction that Gibbons and Calloway struggled to overcome, while building worker organizations of a better sort, have definitely not disappeared. And within the union officialdom, there is still no shortage of the same personal and political contradictions that Harold Gibbons displayed, during his rise and fall as a singular Teamster.
This blog originally appeared at Inthesetimes.com on May 10, 2016. Reprinted with permission.
Steve Early worked for 27 years as an organizer and international representative for the Communications Workers of America. He is the author of a new book from Monthly Review Press titled, Save Our Unions: Dispatches from a Movement in Distress. He is working on a book about political change and public policy innovation in Richmond, California. He can be reached at Lsupport@aol.com.
Tuesday, May 3rd, 2016
The 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 firstname.lastname@example.org.
Wednesday, April 27th, 2016
The 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.
Monday, April 25th, 2016
Union supporters had reason to cheer earlier this month when Wisconsin Gov. Scott Walker’s hated “right to work” law was overturned by a Dane County Circuit Judge. Unfortunately, the decision is all but certain to be overturned by Wisconsin’s conservative Supreme Court. But contained in the case is a line of questioning over the constitutionality of the right-to-work concept that has quietly been playing out in federal courts.
The result could be that all right-to-work laws are nullified—and sooner than you might imagine.
“RTW” takes money and power from unions, but is that a ‘taking?’
The logic that the Wisconsin judge leaned upon in his decision has its origins in a federal case called Sweeney v. Pence, in which unions made an unsuccessful attempt to overturn Indiana’s recent right-to-work statute on constitutional grounds. Although the unions themselves did not raise this argument in the 2014 case, Chief Judge Diane Wood argued in her dissent that “right-to-work” provisions violate the U.S. Constitution’s Takings Clause.
“This is a law,” says Marquette Law Professor Paul Secunda, “that compels one private party to provide benefits to another private party with no compensation.” He is convinced that right-to-work laws, which permit represented workers to quit their union and stop paying fees while simultaneously obligating that union to continue to spend resources representing them, are an unconstitutional “taking.”
If the issue makes its way up to the Supreme Court, and the justices agree with Secunda, the result could overturn the section of the National Labor Relations Act that allows states to pass right-to-work measures as well as the statutes in all 26 states that have passed them in one fell swoop.
The Wisconsin case won’t get there. Because Wisconsin is in the same 7th Circuit that rejected the “takings” argument in Sweeny v. Pence (making it, for now, a settled matter there), unions filed their case in state court over the state’s constitution.
But West Virginia and Michigan are states that recently passed right-to-work laws, and they are both in different federal court circuits. Unions in those states could challenge the constitutionality of right to work on the federal level. Unions in Idaho already have a case pending, which is a particularly exciting prospect as that state falls within the liberal 9th circuit. (Keep an eye out for Operating Engineers Local 370 v. Wasden.)
The “takings” approach is not without its critics. Seattle University Associate Professor of Law Charlotte Garden notes that Judge Wood’s interpretation of the Takings clause is one more commonly advanced by anti-regulatory conservatives, and that labor taking up the cause could have unintended consequences. “There’s a difficulty of applying existing ‘takings’ law in this kind of context,” she says. “Takings” is generally applied to property, she says, and what’s being taken from unions is the labor of their staff.
As an alternative strategy, Garden points out that the NLRB has indicated an openness to considering whether unions in right-to-work states can charge a fee to non-members who want to file a grievance.
Any rulemaking by the Board on right to work can expect to be challenged by business interests, which could open different constitutional questions about the law. The Indiana unions actually argued in Sweeney v. Pence that the Taft-Hartley amendments to the NLRA were only meant to apply to questions of compelled union membership, not fees for service. But I believe there remains a compelling argument about legislative intent.
Remembering our history will be vital to success
The judges who rejected the “takings” logic in Sweeney vs. Pence argued that unions weren’t uncompensated for their duty to represent all workers in a bargaining unit. They wrote, “we believe the union is justly compensated by federal law’s grant to the Union the right to bargain exclusively with the employer. The reason the Union must represent all employees is that the Union alone gets a seat at the negotiation table.” This is a bunch of ahistorical nonsense that betrays a lack of understanding of labor relations and power dynamics.
But why should we expect a couple of judges to get this right when most union activists are so muddled on the history and effects of the duties of exclusive representation and the union shop? To win, we need to understand our history and have real clarity on our goals to regain power.
When the National Labor Relations Act was written, unions were “members-only” organizations that competed with each other. They contested for power in the same workplaces over who would make the best bargaining demands, who could extract the bigger concessions from management and who could organize the most successful job actions. Employers hated this.
In pursuit of labor peace, employers began signing contracts with unions as the “sole and exclusive representative” of their workers. These early contracts gave employers a one-year guarantee that there would be no new union demands and no strikes. Unions went with it because it helped knock out the competition. The NLRB, which had been certifying unions as representing their members only, also went with it and now certifies unions as exclusive representatives, exclusively.
Agency fee originated not merely as compensation for the financial costs of representing all the workers in a unit, but for the political costs. During World War II, patriotically motivated unions pledged not to strike, and were rewarded with government-dictated wage freezes. Workers protested by quitting their unions. In order to keep unions from dropping their no-strike pledges, the War Labor Board began to reward unions a “maintenance of membership” rule which prevented workers from quitting the union during the term of a contract. This evolved into the union shop and agency fees.
The combination of exclusive representation and agency fee does contain the potential for real power and real wins for unions, as well as labor peace for employers. But it also tends to make unions more conservative and less militant. Exclusive representation without agency fee is the worst of both worlds, and should be resisted.
For three quarters of a century the only way that the NLRB would “certify” a union was as the exclusive representative of all of the workers at a represented workplace, mostly with the union’s understanding that it could bargain for a contract clause that obligates represented workers to pay some fair share of the union’s expenses.
This “union certification” gives collective bargaining the force of law that an arm of the federal government—the NLRB—will drag an employer that refuses to recognize and bargain “in good faith” with a certified union to court to force them to. So, for a union to tear up this “certification” to represent all of the workers and say, “we only represent our members now” carries the risk of losing the backing of the NLRB—but the potential reward of forcing the courts to grapple with the tradeoffs of forced representation without taxation.
To win big, we need a union in a right-to-work state that is genuinely willing to cede exclusive representation to kick out the scabs.
What I think this would look like is that union, just prior to the expiration of their current contract, filing a letter with the employer and the labor board disclaiming representation of the entire bargaining unit but demanding to bargain for their members only (and subsequently refusing to bargain over a no strike clause). We’ve got a much stronger case if it’s brought to federal court by an employer complaining that a union won’t represent all the workers than one brought by a union complaining about a loss in agency fee revenue.
It is time to start using the courts more strategically
The idea that the Supreme Court could swing from seriously considering forcing the entire public sector to go right to work in this term, to weighing the very constitutionality of right-to-work laws two or three years later might seem too fantastical, but such is the strange lack of case law over the underlying legal justification for requiring that a union represent all the workers but forbidding them to mandate dues and fees for that service work.
“This isn’t stare decisis at all,” says Paul Secunda, describing the Latin term for the legal obligation of judges to stand by settled decisions. “You’ve got one decision from one circuit court. This is hardly settled case law.”
As I’ve noted, unions have tended to shy away from judicial strategies, and, on right to work in particular, labor has long favored a legislative solution. Repealing the Taft-Hartley Act that contained the right-to-work amendment to our nation’s main labor law was the top legislative priority of the AFL, the CIO and its merged successor from the time of its passage in 1947 well into the 1980s.
There were 12 right-to-work laws on the books—all in former slave states—at the time of Taft-Hartley’s passage. They had no force of law, as the federal NLRA preempted them—that is, until Taft-Hartley. And again, a close look at the legislative intent might reveal that Congress merely meant to allow states to ban union membership—not agency fees—as a requirement of employment. Or, more crudely, they may have basically been saying, “Let the Confederacy secede from the New Deal.”
The AFL and the CIO, which by 1947 had both abandoned organizing the south, seemingly wrote the former Confederacy off at the time. Since labor lost little to no membership as a result of those first 12 right-to-work states, little brainpower was devoted to challenging the constitutionality of the scheme. Likewise, when right to work next spread to western and plains states like Arizona and Nebraska, labor similarly wrote them off.
When right to work first spread to a bedrock labor stronghold, Indiana in 1959, the move was so controversial that within eight years labor had managed to overthrow the Republicans, who supported it in all three chambers of government and repeal the law. This win—the only instance of a right-to-work law being repealed legislatively—may have ultimately been counterproductive, giving unions false hope that killing right to work is a matter of making sure the bad guys don’t win re-election.
The labor movement of 1965 could entertain such fantasies. The labor movement that has seen bases of union power in Indiana, Michigan, Wisconsin and West Virginia go “right to work” within the same half decade must wake up to the fact that it will take more than elections to reverse the damage. It will also take a judicial activism agenda for labor, like I have advocated.
And ultimately, working people in America will gain no new rights without stoking a hell of a lot of chaos, through strikes and more. But we’ll also gain no new rights without legal demands like the Operating Engineers Local 370 v. Wasden case hanging out there. It is now up to the sisters and brothers in other “right to work” states—Michigan, West Virginia and beyond—to join the fight.
This blog originally appeared at InTheseTimes.org on April 21, 2016. Reprinted with permission.
Shaun Richman is a former organizing director for the American Federation of Teachers. His Twitter handle is @Ess_Dog.
Monday, April 4th, 2016
The largest employer of low-wage workers in America is the federal government. U.S. government contractors employ over two million workers in jobs that pay too little – $12.00 an hour or less – to support a family. Contract workers – organizing under the banner of Good Jobs Nation – have walked off of their jobs repeatedly in protest, demanding a living wage and the right to a union.
This Monday, on the anniversary of Dr. Martin Luther King’s death, this movement will gain a powerful ally. Led by Jim Winkler, general secretary of the National Council of Churches and Sister Simone Campbell, executive director of the Catholic social justice lobby NETWORK, an interfaith coalition of religious leaders is issuing a call for “moral action on the economy.” They will seek to meet with presidential candidates, asking each to pledge that, if elected, he or she would issue an executive order to reward model employers “that pay a living wage of at least $15.00 an hour, provide decent benefits and allow workers to organize without retaliation.”
The movement for living wages is taking off. The federal minimum wage has been stuck at $7.25 for nearly seven years. Unable to provide for their families, fast food and other low-wage workers began to demonstrate, even at risk of losing their jobs. “Fight for 15” – the demand for a $15.00 an hour minimum wage and the right to a union – swept across the country. And is beginning to win.
In Seattle, a coalition of union, community and business leaders helped pass legislation putting the city minimum wage on a path to $15. From Los Angeles to Chicago to New York, other cities joined. In the last few days, California legislators reached a deal to move the state minimum wage to $15 by 2022. In New York, Governor Andrew Cuomo pushed through reforms that will move that state’s minimum wage to $15, starting in December 2018 in New York City.
The pressure of the government low-wage workers moved President Obama to act. He issued three executive orders, raising the minimum wage to $10.10, cracking down on wage theft and other workplace violations, and providing paid leave. The workers continued to demonstrate, calling for “more than the minimum,” seeking $15 and a union.
Senate cafeteria workers – the people who prepare the senators’ food and clean up after them – joined the protests. Their plight – one was homeless, others on food stamps, one moonlighting as a stripper to feed her children – was embarrassing. Democratic Senate staffers organized to support them. Democratic senators like Bernie Sanders (Vt.), Elizabeth Warren (Mass.), and Brian Schatz (Hawaii) demanded action. When the cafeteria contract was up for renewal in December, workers were granted pay increases of $5 an hour or more. It took more pressure and Labor Department investigation to make the raises stick, but today workers are finally receiving their pay.
Washington Post columnist Catherine Rampell, who has documented the struggle highlighted one beneficiary, Bertrand Olotara, a cook in the Senate cafeteria. His wage went from $12.30 to $17.45 an hour. He was able to quit his second job at Whole Foods and stop working seven days a week. That gave him more time with his five children. He’s even thinking of using the extra time to write a book. A living wage makes real differences in people’s lives.
Now the interfaith coalition joining with these workers and calling on those contending for the presidency to promise to do more. Republican contenders are still opposed to raising the minimum wage. Bernie Sanders has made a $15 an hour minimum wage a central plank in his platform. Hillary Clinton has supported lifting the national minimum wage to $12.50, accepting that some states and cities might go higher.
The interfaith alliance is calling on the presidential candidates to pledge moral action on the economy. When Ronald Reagan came to office, one of his first acts was to fire and replace the striking PATCO air controllers. He sent a message to employers across the country that it was open season on workers and their unions. Imagine the next president taking office and issuing an executive order lifting the wages of millions of contract workers and guaranteeing a right to organize without retaliation. Again a signal would be sent across the country.
“This election is fundamentally about whether the next president is willing to take transformative executive action to close the gap between the wealthy and workers – many of whom are women and people of color,” argues Jim Winkler, secretary general of the National Council of Churches. It’s time to take the pledge.
This blog originally appeared in ourfuture.org on April 4, 2016. Reprinted with permission.
Robert Borosage is a board member of both the Blue Green Alliance and Working America. He earned a BA in political science from Michigan State University in 1966, a master’s degree in international affairs from George Washington University in 1968, and a JD from Yale Law School in 1971. Borosage then practiced law until 1974, at which time he founded the Center for National Security Studies.
Thursday, March 17th, 2016
The most important election in Virginia this year has no candidates on the ballot.
On February 2nd, the Republican-dominated General Assembly passed the two-session threshold needed to put the open shop before the Commonwealth’s voters in November. You might be asking yourself, “Wait. I thought that Virginia was already an open-shop state?” Your inclinations would be correct: legislation barring union membership as a condition of employment was signed into law by Gov. William Tuck (a later adherent to Massive Resistance in response to Brown v. Board of Educationas a member of Congress) in 1947. As a result, Section 40.1-58 of the Code of Virginia reads:
It is hereby declared to be the public policy of Virginia that the right of persons to work shall not be denied or abridged on account of membership or nonmembership in any labor union or labor organization.
So why do this? The easy answer is that Virginia Republicans are fearful that, should the open shop meet a legal challenge in state court, Democratic Attorney General Mark Herring would not seek to defend it. The sponsor of the bill and defeated 2013 nominee for Attorney General, State Sen. Mark Obenshain (R-Harrisonburg), stated as much in the deliberations on the bill. In addition, should the Assembly find itself in pro-labor hands in the future, they could overturn the open shop with a simple majority vote. Never mind that the extreme amounts of gerrymandering in the Assembly (particularly in the House of Delegates) makes a unified Democratic state government unlikely for decades to come.
The vote this November will be the first popular referendum on the open shop since 54 percent of Oklahoma voters approved State Question 695 on September 25, 2001. In this, an opportunity presents itself to the labor movement in this country, and it is one that labor unions must take.
In the fifteen years since the Oklahoma referendum, every open-shop law has been passed through state legislatures. This, of course, advantages corporations and anti-worker conservatives as they can flood state capitols with their donations and their lobbyists at a relative distance from public scrutiny. Combined with the gerrymandering described above which ensures that an anti-worker vote will not result in the loss of an election, the deck is often stacked far too high for labor advocates to overcome. The only hope for those who live in the thirty states with a Republican legislature is the presence of a pro-labor governor and legislative procedures that require a higher threshold than a simple majority to override a veto.
West Virginia workers just found out what happens when you have the former, but not the latter.
There are demographic reasons to feel good about this campaign: 18-34-year olds are the generation most supportive of labor unions, and Black workers have both been more supportive and more eager joiners of labor unions than their white counterparts. Virginia has been a prime destination for young people over the last couple of decades due to the economic boom occurring in Northern Virginia, and the state has always had a large number of Black residents.
But the campaign against the open shop this fall cannot rely on demographics to save it. Given the opportunity that labor unions have with this referendum, the goal should not simply be to win: it should be a realignment of the conversation surrounding the role in labor unions in Virginia’s—and America’s—political economy.
There have been many issues stemming from the precipitous decline in union density in this country. The stagnation of working people’s wages, widening inequality, and a sense of alienation and disillusionment amongst the working class can all be tied back to the decline of organized labor in the United States.
But there’s another thing that declining union membership has produced, and it is, perhaps, the greatest victory of all for capitalism: the sense that, rather than being a representative of America’s working class, unions are no different from any other interest group. Former Vermont Gov. Howard Dean sought to mobilize this sentiment recently in support of Hillary Clinton’s presidential campaign when he stated that “[Democrats] don’t go after” political donations from labor unions because “labor unions are Super-PACs that Democrats like”.
(It should be noted, of course, that the only union that has spent any significant money on Bernie Sanders’s behalf is National Nurses United. It appears that only Hillary Clinton will protect us from Big Nursing and the Caregiver-Industrial Complex.)
Part of this has been on the labor movement: too much money, time, and energy has been devoted to electing Democrats at all costs to federal office, even when they are absolutely terrible. But most of it has been a concerted effort by neoliberals in both parties to erode unions’ once formidable approval ratings by associating them with the most unsavory parts of the legislative process. How unsavory? In 2013, Gallup polled Americans on the honesty of several professions. Those who engage in lobbying, a key part of the legislative and policymaking work that any interest group engages in, were at the bottom with a six percent approval rating. By comparison, an August 2015 Gallup poll saw 58 percent of Americans approving of labor unions, with 37 percent believing that they should have more influence.
By making labor unions a creature of politics, working-class Americans begin to process the information that they receive about unions the same way that they receive other forms of political information: in a partisan manner. In his 2013 book The Partisan Sort, University of Pennsylvania political science professor Matthew Levendusky states that:
[W]hen a respondent moves from unsorted to sorted, he is much more likely to move his ideological beliefs into alignment with his partisanship than the reverse, strongly suggesting that party is the key causal variable.
Therefore, when working-class Republicans think about labor unions, they are less likely to consider the fact that union members make 21 percent more than non-union members or that 29 percent more civilian workers have access to retirement plans if they are a member of a labor union. No, they are more likely to think about Democrats receiving 89 percent of the donations given out by unions in 2014. The fact that the last two Democratic presidents have supported trade deals that acted as accelerants on the continued deindustrialization of America certainly does not help matters at all.
But the labor movement has been given a golden opportunity in 2016, and it is one that should not be passed up: the opportunity to engage in the largest labor education program that this country has ever seen.
Over the next eight-and-a-half months, unions should be running ads that focus on the specifics that so many American labor ads skirt around.
- We can tell people that it is illegal for union dues to go towards political action at the federal level. While dues money can go towards political spending at the local and state levels, their dues mostly pay for representation, access to the industry-specific research needed to make negotiations more fruitful, and strike funds to support workers when their meeting their demands requires direct action.
- We can tell people about the union difference in wages, benefits, and retirement.
- But even more important than that, we can talk about the ways that labor unions benefit the communities in which they exist. Not just through increased spending in local businesses, but also through programs that benefit a community’s most vulnerable.
That last point is important, because it is how we will begin to develop the culture of unionism that we so desperately need in the South. It is important to ensure that the positive feeling that today’s youth have towards labor unions does not turn into anti-labor sentiment through a lifetime of one-way conversation dominated by capitalists and their PR lap dogs like Rick Berman.
But for this to be successful, all hands must be on deck. Virginia is one of a couple of states where such a measure could be defeated at the ballot box (the other, for my money anyways, being Kentucky), and it must be. Defeating this referendum must become the labor movement’s number one priority in 2016, even more so than the presidential election. In the piece I wrote about labor’s engagement in party politics, I stated:
If the labor movement must invest in politics, it would be wisest to do so at the community/local/state level. It is there, our ‘laboratories of public policy’, where the labor movement can have the most positive impact on the lives of working people.
There is no time like the present for the labor movement to take this advice to heart.
This article originally appeared on inthesetimes.com on March 3, 2016. Reprinted with permission.
Douglas Williams is a Ph.D. student in political science at the University of Alabama, researching the labor movement and labor policy. He blogs at The South Lawn.
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. Quinn, which 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.
Tuesday, February 23rd, 2016
First published at Jacobin.
With the death of leading anti-union reactionary Antonin Scalia, the current docket of Supreme Court cases has been thrown into turmoil.
For the labor movement, Scalia’s departure means narrowly escaping the anticipated anti-union decision in Friedrichs v. California Teachers Association. While most commentators expected a 5-4 anti-union ruling, the most likely result now is a 4-4 decision, momentarily leaving intact the agency shop for public-sector workers and preventing the establishment of a legal beachhead for future attacks.
Contrary to those who saw a silver lining in Friedrichs, judges would never have used the precedent to expand the rights of government workers on free speech grounds. Instead, as Moshe Marvitpoints out, union busters would’ve deployed the rationale in Friedrichs to argue any form of exclusive representation violates public workers’ free speech rights.
This would’ve turned the clock back over 60 years, to a time when all public employee bargaining was suspect precisely because it was deemed political. Additionally, it would’ve only been a matter of time before Friedrichs was applied to the private sector, imposing “right to work” on every workplace in the country.
But for Scalia’s death, a Supreme Court majority would have almost certainly overturned 50 years of settled law. In doing so, five individuals would have substituted their political beliefs for those of elected officials in agency shop states—participating in the broader attack on public employee rights spearheaded by politicians like Wisconsin governor Scott Walker and Illinois governor Bruce Rauner.
All of which is to say that rather than being a body above politics, the Supreme Court reflects the political trends of the day. Take last year’s gay marriage ruling. The words of the Constitution hadn’t changed, nor had some nebulous thing called “the law.” What changed, after decades of grassroots activism, was the political reality. The same forces that prompted the Supreme Court justices to change their view likely prompted establishment politicians such as Hillary Clinton to reverse their own position.
If judges simply interpreted “the law,” the death of a justice would not matter. But it does matter, and so a debate will rage over Scalia’s replacement.
Union activists should have a different discussion. Instead of engaging with the prevailing debate—which will likely consist of whether to appoint an ultra-right Republican or a corporate Democrat—those in and around the labor movement should use the confirmation battle to spark a conversation about the role of unelected judges in setting labor policy.
And we should note the role both parties have played in establishing and maintaining the present system of labor law. Even during oral arguments in Friedrichs, the liberals on the Supreme Court did not mount a rousing defense of public employee unionism. They simply warned the conservative majority about the dangers of overturning settled law—which they worried would threaten the appearance of impartiality the Supreme Court relies on to maintain its legitimacy.
Much of the body of settled law they were keen to defend—and which corporate liberals on the Supreme Court have been key to establishing—blocks effective trade unionism. Judicially created rules hamstringing labor include restrictions on class-wide solidarity and important tactics such as intermittent strikes, the permanent replacement of striking workers, and the use of the business form to evade unionism. Regardless of which candidate is eventually sworn in as Scalia’s replacement, this bipartisan consensus will almost certainly remain undisturbed.
Indeed, nowhere is the need for a Bernie Sanders–style political revolution more apparent than in the selection of Supreme Court justices. Sanders correctly rails against a bipartisan establishment encompassing politicians from both parties, corporate lobbyists and establishment media forces. But the federal judiciary, and in particular the Supreme Court, is perhaps the most quintessentially establishment grouping in American politics.
Which brings us to the bigger question at stake for unions. As long as labor allows nine establishment figures to dictate policy, we will never revive ourselves as a movement. The rules will continue to be stacked against us. Legislative or National Labor Relations Board initiatives, however well intentioned, will be nullified by the courts.
Over 100 years ago, a school of thought called Legal Realism shattered the idea that judicial decisions were anything but political decisions. Led by Oliver Wendell Holmes and firmly situated within the Progressive Movement, the Legal Realists rejected the idea that judges somehow divined decisions from abstract analyses of the law. To study law, they held, was simply to predict what judges would decide. This subversive idea—that there is no such thing as the law independent of actual decisions—proved highly destabilizing to a fundamentally undemocratic judiciary.
Around the same time, the labor movement was agitating against “judge-made law.” Understanding that labor policy was set by elites with no ties to the working class, unionists agitated not just for better judicial decisions but to remove labor policy entirely from federal courts’ jurisdiction.
For conservative unions like the AFL to radical ones like the IWW, defying judicial injunctions was a matter of official union policy. Unionists understood the law was not on their side. The anti-judicial sentiment reached its peak with the 1932 passage of the Norris-LaGuardia Act, which attempted to get federal courts out of the business of making labor policy. (Over the succeeding decades, the act was defanged by the same federal judges it was supposed to protect labor from.)
Today, the labor movement shouldn’t waste time pondering which elite Supreme Court justice will get confirmed, the latest NLRB initiative waiting to be overruled by the federal judiciary, or the newest scheme to revive labor within the confines of an unjust system of labor control. The more important discussion is the one posed by unionists a century ago: how do we break from the constraints of judge-made law?
While there is no easy answer to this question, shedding liberal illusions about the role of the Supreme Court is a start. It is also important to call out the many restrictions on union rights. We can educate, agitate and organize, but if the rules of the game are rigged, we will never succeed.
Winning requires first challenging the rules of the game and the prerogative of elite institutions to govern labor relations. Judicial support for public employee union rights, we shouldn’t forget, was only secured after millions of public-sector workers struck against a bipartisan consensus that rejected those rights.
There are no easy answers about how we knock down the barriers imposed by labor law. But let’s use the death of an arch-nemesis of labor to at least start the discussion.
This blog originally appeared at inthesetimes.com on February 17, 2015. Reprinted with permission.
Joe Burns is a former local union president active in strike solidarity, is a labor negotiator and attorney. He is the author of the book Reviving the Strike: How Working People Can Regain Power and Transform America(IG Publishing, 2011) and can be reached at email@example.com.