Posts Tagged ‘unions’
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 firstname.lastname@example.org.
Wednesday, February 17th, 2016
With 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.
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.
Thursday, January 28th, 2016
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.
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.
Wednesday, January 13th, 2016
WASHINGTON. D.C.—Last night, President Obama gave his State of the Union address before a joint session of Congress—but barely mentioned unions. The president did touch on a number of issues important to workers—such as increasing manufacturing in America, taxing the rich more equitably, increasing education funding and increasing enforcement of trade laws—but said nothing about increased attacks on workers’ rights around the country during the last 12 months.
This despite 2011 being the a year in which unions (especially those representing public-sector workers) have been under unprecedented attacks in places like Wisconsin, Ohio and Indiana.
The only time Obama explicitly mentioned a union was in reference to “Master Lock’s unionized plant” in Milwaukee, which he said is now running at “full capacity” because the company brought back jobs from overseas.
At the beginning of his speech, Obama said: “At the end of World War II, when another generation of heroes returned home from combat, they built the strongest economy and middle class the world has ever known.” However, he did not mention the fundamental role that unions played in building that middle class. Unions represented nearly one-third of all workers in the decade following World War II.
One of the only times that President Obama did indirectly to address union issues was in what could be interpreted to be a reference to wanting more “flexibility” in contract language “to replace teachers.” Obama said:
Teachers matter. So instead of bashing them, or defending the status quo, let’s offer schools a deal. Give them the resources to keep good teachers on the job, and reward the best ones. And in return, grant schools flexibility: to teach with creativity and passion; to stop teaching to the test and to replace teachers who just aren’t helping kids learn. That’s a bargain worth making.
While some could interpret this language as attacking the contract clauses of teacher union contracts, American Federation of Teachers President Randi Weingarten did not see this as an anti-teacher union statement, telling In These Times, “I heard a different tone about what teachers and students need—as well as what he has always said about teacher accountability.” Weingarten further praised the speech, saying that it was about “fighting for the middle class, for economic fairness, taking on the banks, telling others to stop bashing and leading with accountability—it’s an important populist message for the times we are in. I think the president deserves that acknowledgement.”
The only other time that Obama referenced an event involving a union was in speaking about the role of workers (represented by the United Auto Workers union) in helping to revive the auto industry. Obama said: “In exchange for help, we demanded responsibility. We got workers and automakers to settle their differences. We got the industry to retool and restructure. Today, General Motors is back on top as the world’s number one automaker.”
While praising GM’s return to profitability, Obama did not mention how, despite the auto industry returning to profitability, the industry has done nothing to eliminate a two-tier wage system that was implemented as part of the bailout. The UAW did not return request for comment on the president’s section of the speech.
“There is little or nothing in this speech to oppose what most employers are doing; cutting jobs, busting unions, slashing wages, liquidating benefits, and running roughshod over workers in every way possible,” said UE Political Action Director Chris Townsend. “As for workers, we are forced to work for a poverty existence at a “competitive wage” until we tipple into the grave. How inspiring is that?”
Kim Bobo, executive director of Interfaith Worker Justice, criticized the speech for failing to emphasize the importance of protecting living standards and workers’ rights. “We need a national jobs policy that creates enough jobs for all those who are able to work, raises core standards around living wages and family-supporting benefits, stops and deters wage theft, and ensures that public and private sector workers have the right to collective bargaining,” she said in a statement Wednesday.
But despite the lack of positive references to the role of unions and organized labor, the speech did receive good reviews for Obama’s calls to renew America’s manufacturing sector, enforce trade laws more fairly, crack down on Wall Street, and reform tax laws to tax wealthy people at higher rates. (Billionaire Warren Buffet’s secretary was actually present for the speech to symbolize America’s dysfunctional tax code; her boss actually pays a lower tax rate overall than she does.) Specifically, he called for the creation of a “Trade Enforcement Unit that will be charged with investigating unfair trading practices in countries like China.”
AFL-CIO President Richard Trumka said:
President Obama’s speech tonight shows that he has listened to the single mom working two jobs to get by, to the out-of-work construction worker, to the retired factory worker, to the student serving coffee to help pay for college. …And tonight he made clear that the era of the 1% getting rich by looting the economy, rather than creating jobs, is over—what a contrast to the vision presented by presidential candidates squabbling over how much further to cut the taxes of the 1%.
The call for reviewing manufacturing and cracking down on unfair trade practices drew particular praise from United Steelworkers (USW) President Leo Gerard. He said:
President Obama has listened to us as American workers and laid out a vision of the America we want and need, one that creates jobs and prosperity for us and not the 1% who have looted the economy….The President’s commitment to discourage job outsourcing and promote insourcing is a ticket to a better economy.
We especially applaud the announcement to renew his policy to get tough on trade enforcement with a new unit to bring together resources and investigators from across the government to go after unfair trade practices in countries around the world, including China.
The GOp chose Indiana Governor Mitch Daniels to deliver the party’s response to the State of the Union address. Daniels has spearheaded the effort to pass “Right-to-Work” legislation in Indiana, which would weaken private-sector unions. On its website, the AFL-CIO said the choice of Daniels sends a “clear signal the party is making attacks on working people a top priority in the 2012 elections.”
Surprisingly, though, Daniels didn’t say anything about unions. At least from my perspective last night, it was as if the massive fights for collective bargaining rights we witnessed in Wisconsin and Ohio last year (which, of course, continue in Wisconsin) never even happened.
Full disclosure: the UAW and USW are In These Times sponsors.
This blog originally appeared in inthesetimes.com on January 13, 2016. Reprinted with permission.
Mike Elk is a labor journalist whose investigative work has been cited on the front page of the New York Times and debated by Whoopi Goldberg and Barbara Walters on ABC’s The View. Elk won a Sidney Award for his coverage of how corporations crafted legislation to exempt prison labor from U.S. minimum wage laws. Elk has also written for the New York Times, the Washington Post, Reuters and The Nation and is currently a reporter at Politico.
Monday, January 11th, 2016
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.
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.