Posts

Posted on

SCOTUS Is on the Verge of Decimating Public-Sector Unions—But Workers Can Still Fight Back

On Thursday, the Supreme Court agreed to hear Janus vs. AFSCME, the case that will likely turn the entire public sector labor movement into a “right-to-work” zone. Like a lazy Hollywood remake, the case has all the big money behind it that last year’s Friedrichs v. CTA did, with none of the creativity.

In Friedrichs, the plaintiffs argued that interactions between public sector unions and government employers are inherently political. Therefore, the argument went, mandatory agency fees to reimburse the union for the expenses of representation and bargaining were forced political speech, violating employees’ purported First Amendment right to not pay dues.

The case ended in a 4-4 deadlock in March 2016, following the death of Justice Antonin Scalia, who had appeared poised to vote against the unions’ interests.

Much like Friedrichs, the Janus case has rocketed through the federal courts. The National Right to Work Foundation, which represents the plaintiffs, petitioned the Supreme Court to hear the case in early June. All briefs will likely be submitted by mid-January 2018, meaning SCOTUS could hold hearings almost exactly a year to the date that the Court last heard the same arguments.

The defendants may argue for procedural delays, which could potentially kick the decision into the following court term in 2018-2019. And it’s possible that in the meantime Justice Anthony Kennedy could die of a heart attack, or Sam Alito could forget to look both ways while crossing First St. and get run over by a bus. And the Democrats might take back the Senate next year, preventing the Trump administration from naming any more conservatives to the Court.

That’s the kind of magical thinking we’re left with, because the conservative majority on the Supreme Court is clearly determined to tilt the power of the country in favor of big business and against unions for at least a generation, and they care little about how just or fair their decisions appear to the public.

“Right to work” laws, currently on the books in 27 states, strip the requirement that union members pay union dues. Unions claim this creates a “free rider” problem, allowing workers to enjoy the benefits of union membership without contributing a dime. This deprives unions of crucial funding, but also—and this is no small consideration for the right-wing—every union family that drops their membership becomes one less door that union members can knock come election season.

Most national unions have been preparing for this eventuality since the first time the Roberts court took up the issue of public sector union fees in 2014’s Harris Vs. Quinn case. (If you’re keeping score, yes, the conservative justices on the Supreme Court have spent three years in a row trying to break the backs of unions).

Much of this preparation has focused on making sure that unions have a shop steward in every department and that every new hire is asked by a living breathing human being to actually join the union. But, as I wrote earlier this month, the bigger threat once workers have the right to evade union fees is the direct mail and phone-banking campaign that is already being run by Koch Brother-funded “think tanks” to encourage workers to drop their union membership and “give yourself a raise.”

As I wrote then, “The slick ‘give yourself a raise’ pamphlets will do the most damage in places where members think of the union as simply a headquarters building downtown. … But where members are involved in formulating demands and participating in protest actions, they find the true value and power of being in a union. That power—the power of an active and involved membership—is what the right-wing most fears, and is doing everything in its power to stop.”

There is a certain irony in conservatives applying the First Amendment to collective bargaining, a principle that conservative jurists have studiously avoided for two centuries. If every interaction that a union has with the government is a matter of speech, then we have a stronger argument for instituting a Bill of Rights for labor to protect workers and their right to demand fair treatment on the job.

Unions are already oppressively regulated. They are told by the National Labor Relations Board whom they can picket, when they may march and what they might say on a flyer. And they face steep fines if they disobey. Workers are forced to attend endless hours of anti-union presentations before a union election with no right to respond or boycott.

If every interaction the government has with a union is a matter of political speech—as a ruling in favor of Janus would imply—unions must respond by forcefully arguing that the rules of the system have been unfairly holding workers back, violating of our rights to free speech, due process and equal protection.

[This article originally appeared at In These Times.]

Posted on

The Right Wing Has a Vast, Secret Plot to Destroy Unions for Good. Here’s How to Fight Back.

The vast right-wing network of Koch brother-funded “think tanks” is now plotting to finish off the public sector labor movement once and for all.

In a series of fundraising documents obtained by the Center for Media and Democracy of Madison, Wis., and published in the Guardian, the CEO of a cartel of 66 well-funded arch-conservative state capitol lobbying outfits promises funders a “once-in-a-lifetime chance to reverse the failed policies of the American left.”

Tracie Sharp, the leader of the States Policy Network (SPN), goes on to explain that the pathway to permanent right-wing victory is to “defund and defang” unions that rely on the legal protections of state labor law.

Though less well-known, the SPN is something of a sister organization to the American Legislative and Exchange Council (ALEC), which writes cookie cutter “model legislation” for right-wing state legislators.

SPN affiliates, like Michigan’s Mackinac Center and Ohio’s Buckeye Institute, promote ALEC’s agenda in the public sphere and attack organizations that are opposed to it. Both networks have effectively nationalized the conservative agenda in state legislatures.

The One Percent Solution

What’s fueling this drive is a combination of the vast sums of money that flow into elections in the Citizens United-era along with the gerrymandering that has helped rig elections in favor of Republicans. The result has frequently been “triple crown” GOP-led state governments that hold little accountability to voters but tremendous debts to their corporate masters.

University of Oregon professor Gordon Lafer has documented the rise of the corporate legislative agenda in all 50 states in his new book, The One Percent Solution: How Corporations Are Remaking America One State at a Time.

Lafer found that state bills pushed by ALEC and the SPN, along with more traditional business lobbyists like the Chamber of Commerce, generally fall into four broad categories.

The first, and most obvious, are efforts to constrain or destroy institutions that empower working people to fight back, such as labor unions.

Second are efforts to privatize public services. Lafer found these efforts were primarily intended to diffuse the responsibility of providing these services. “If no public authority is responsible,” he writes, “demands become customer-service issues rather than policy problems that must be addressed by democratically accountable officials.”

Third are efforts to block—or preempt—rebel cities from passing living wage or fair scheduling laws, thereby foreclosing on the ability for localities to defend and advance progressive goals.

Finally, through tax cuts for the wealthy and austerity-driven cuts to vital public services, Lafer found that this corporate agenda seeks a downward shift in what people come to expect for a basic standard of living.

In other words, the One Percent’s solution is to convince the rest of us, as the Dead Kennedys song goes, that soup is good food; that each new indignity is simply our new standard of living and that we shouldn’t expect more.

“Give yourself a raise”

If the States Policy Network does really strive for this One Percent goal outlined by Lafer, then it’s no wonder that the group has been most dogged in pursuing its union-busting agenda. SPN and ALEC have long understood what many Democratic politicians are only just beginning to realize: strong unions help keep right-wing politicians out of office while protecting the social safety net.

SPN and ALEC have aggressively pursued so-called “right-to-work” legislation as a means of bankrupting unions and knocking out a key component of their opponents’ get-out-the-vote operation. Twenty-eight states now have these anti-union laws on the books. Five of them—all former bedrocks of union power—were passed this decade as a part of the anti-union drive described in the documents released by the Center for Media and Democracy.

That’s hardly the extent of the role of these “think tanks” in busting unions. Flush with cash, they’ve begun volunteering their efforts as union avoidance consultants where no one has asked for their services.

In 2013, I was part of a drive to organize the workers at Chicago’s United Neighborhood Organization Charter School Network, under the terms of a neutrality agreement. The employer was getting rocked by a financial and insider dealing scandal that was a daily cover story in the local media. The schools’ employees joining the Chicago Alliance of Charter Teachers and Staff (ACTS) was the only positive headline they had to look forward to when we launched the card drive.

That didn’t stop an SPN affiliate, the Illinois Policy Institute (IPI), from harvesting teachers’ email addresses and spamming UNO’s e-mail lists with condescending admonitions to “not sign any union petition or authorization card unless you are certain that you want union representation.”

These union busters seemed to assume that the “launch” of our card drive meant a bunch of beefy goons were about to descend on the schools to strong-arm teachers. In fact, the public launch of the card drive was the union organizing equivalent of a touchdown dance. The representative, democratic organizing committee we had spent weeks training, educating and empowering signed up over 90 percent of their colleagues in time for a May Day card count certification.

The Illinois Policy Institute is better prepared for the upcoming Supreme Court case, Janus vs. AFSCME. Originating from Illinois, the case is a blatant do-over of the craven attempt to turn the entire public sector labor movement “right-to-work,” previously pushed in the Friedrichs case.

Should the Supreme Court vote to make union fees voluntary, the IPI and its sister organizations are prepared to run the mother of all “open shop” drives. They will likely FOIA the names and as much contact information as possible of every union-represented public sector worker and inundate them with glossy materials encouraging them to “give yourself a raise” by quitting the union.

How to fight back

The revelation of the SPN’s nakedly partisan agenda should open every one of its affiliates to challenges over their status as tax-deductible educational charities. These challenges are worth pursuing, if only to delegitimize their role in public debates. But this won’t really affect their bottom line—their funders have so much money they hardly need the tax breaks for donating to their favorite political causes.

In preparation for the post-Janus attacks, public sector unions should behave more like Chicago ACTS and confound the SPN’s moldy old assumptions about the source of union power. To do this, we need to greatly increase members’ democratic involvement in their unions. The slick “give yourself a raise” pamphlets will do the most damage in places where members think of the union as simply a headquarters building downtown. If that’s the extent of their interaction, workers could fall for the cheap trick of blaming the union for the stagnant wages and reduction in benefits that are actually the direct result of the GOP’s corporate agenda.

But where members are involved in formulating demands and participating in protest actions, they find the true value and power of being in a union. That power—the power of an active and involved membership—is what the right-wing most fears, and is doing everything in its power to stop.

[This article originally appeared at In These Times.]

Posted on

A New Bill of Rights for Workers: 10 Demands the Labor Movement Can Fight for and Win

ON A CLOUDY AFTERNOON IN APRIL 2006, ROGER TOUSSAINT LED A PROCESSION OF UNION WORKERS ACROSS THE BROOKLYN BRIDGE. Toussaint, president of Transport Workers Union Local 100 and an immigrant from Trinidad and Tobago, was on his way to surrender himself to the authorities to serve a 10-day jail sentence. His crime? He led the largely Black and Latino union membership in a 60-hour strike the previous winter, shutting down the city’s subway and bus system in violation of a judge’s injunction and New York’s 1967 Taylor Law, which bans public-sector strikes.

The court also slapped the union with a $2.5 million fine and suspended its ability to collect dues for a year. Individual strikers were fined two days’ pay for each day on strike.

Punishments this draconian are rare outside the world of labor law. Toussaint saw more jail time than any of the top bank executives responsible for the 2008 financial crisis.

To change the law—and the barriers to organizing the law poses—we have to change the way we think about it. The sweeping 1935 National Labor Relations Act (NLRA) and the many local laws it spawned are not the source of workers’ rights to organize.

Rather, those rights are rooted in the Constitution through the rights of free speech and equal protection, as well as freedom from involuntary servitude. Labor laws simply regulate those constitutional rights, much as election laws regulate the right to vote. And just as restrictive voter ID laws can violate citizens’ voting rights, bad labor laws can trample workers’ rights. While “corporate persons” have established free speech rights, for example, a union—a collection of actual persons—has no similarly recognized protections. This disparity would in turn seem to violate the 14th Amendment right to equal protection under the law.

Unions must reverse a half-century-long strategy of avoiding the courts and mount legal and political challenges to labor laws that infringe on workers’ speech, curtail their bargaining power and deny them the right to extend solidarity to fellow workers. This is a long-term strategy, one made longer-term by the inability to appoint progressive federal judges in the near future. But if we are ever to restore key protections for labor, we need to demand a workers’ bill of rights.

In a July report for The Century Foundation, I propose 10 such rights as well as strategies to advance them that can be adopted by both union officials and rank-and-file workers.

Labor's Bill of Rights

THE FIRST RECORDED COURT CASE INVOLVING WORKER ORGANIZING in the United States dates back to Thomas Jefferson’s second term. Shoemakers picketing for higher wages were convicted of using “threats, menaces and other unlawful means” to maintain a conspiracy.

That set the tone for jurisprudence of workers’ rights in the new republic, where conservative jurists treated union organizing as a criminal activity. As a result, unions spent the 19th and early 20th centuries decrying “judge-made law” and demanding the codification of their rights.

These demands resulted in a landmark victory. The 1935 NLRA encouraged collective bargaining by establishing a federal agency, the National Labor Relations Board (NLRB), to certify the existence of a union at a workplace and sanction employers who refused to deal with a bona fide union.

Another point of the NLRA was to keep labor disputes out of the courts. Most unions have stuck with the intent of the Act and shied away from pursuing rights and benefits that cannot be won at the bargaining table. Employers have shown no such reticence. They’ve attacked workers’ rights in the courts since the day the NLRA was passed, steadily chipping away at hard-won protections.

A fundamental flaw in the Act opened the door to these successful attacks. The NLRA’s authority derives from the Constitution’s commerce clause. Legal experts at the time argued that this framing had the best shot at withstanding legal challenges under a Supreme Court hostile to New Deal legislation.

Representatives of the American Federation of Labor (AFL) had, instead, pushed hard to base the Act on the 13th Amendment, which banned slavery and involuntary servitude. The AFL’s Andrew Furuseth warned of settling for short-term legislative gains while leaving unsettled the legal question of “whether or not that man or woman shall have a right to combine with others for the purpose of … doing collectively what you can’t do individually.”

His concern proved prescient. The NLRA’s grounding in the commerce clause means that when labor disputes go to court, they are judged by their potential impact on business. The last half-century has demonstrated that, by this yardstick, the courts consistently sympathize with business interests. As a result, unions are hampered by rules that would never be applied to corporations, or to any other form of political action.

Consider what happens when workers decide to form a union. The rules of union certification elections, set by a series of unfortunate court cases and NLRB decisions, permit employers to force workers to attend “vote no” presentations or be fired.

In a 2009 study, Cornell University’s Kate Bronfenbrenner found that employers utilized these captive audience meetings in nine out of 10 union elections. Employers threatened to cut wages and benefits in 47 percent of documented cases, and to go out of business entirely in 57 percent of cases. In one in 10 instances, bosses actually hired goons to impersonate federal agents and lie about the process. Not surprisingly, unions lose 57 percent of elections when employers run these “captive audience” meetings.

Ironically, corporations have argued for—and won—the right to hold these meetings on the grounds of their First Amendment rights as “persons.” Yet union advocates possess no equivalent right to hold their own “vote yes” meetings.

The captive audience meeting is but one of many areas in which labor law favors employers. Workers form unions because they want a say on the job. Yet employer-friendly court decisions have created a distinction between “mandatory” and “permissive” bargaining issues. Employers are required to bargain over the former, but can legally tell the union to go to hell when it raises the latter. Labor law thus removes from the bargaining table many of the issues that matter most to workers, including the decision to downsize, subcontract or shift work overseas.

The existing labor law regime even circumscribes solidarity, the lifeblood of unions. “An injury to one is the concern of all” is one of the oldest precepts of the labor movement, yet it is illegal for unions and workers to officially join others’ strikes and boycotts.

Corporations, by contrast, engage in so-called secondary boycotts all the time. Cable providers, for example, black out television channels to protest a network’s rate increase, instructing viewers to call the network CEO to complain. Why are secondary boycotts legal when used by media companies for profit, but illegal when exercised in solidarity by workers?

UNIONS HAVE BEEN PLAYING DEFENSE FOR SO LONG, they tend to accept the rigged rules. But a fresh look at the body of labor law reveals many restrictions on union activity to be constitutionally suspect.

There are several arenas where unions can advance a rights-based agenda. First, they can push the NLRB for rule changes. A group of leading labor scholars is currently petitioning the NLRB to re-establish a rule guaranteeing equal time for pro- and anti-union presentations in the workplace. Trump’s Republican-dominated NLRB won’t be sympathetic. The next Democratic NLRB should be keenly aware of what a limited window for action it may have.

In some cases, unions must be prepared to defy NLRB orders and push key questions into the courts. Labor groups might start by challenging the excessive restrictions on signal picketing (efforts to embarrass unfair employers without an explicit call for a boycott). Noxious hate groups such as the Ku Klux Klan and the Westboro Baptist Church have seen their pickets vigorously defended by the courts. Unions should argue that to restrict signal picketing is to violate workers’ First and 14th Amendment rights.

Of course, labor can’t rely on the courts and the federal government to save it. Advancing a workers’ bill of rights will also require protest and direct action, but this must be complemented by new legal and political strategies. Whenever public-sector unions defy state-level no-strike laws, as the New York City transit workers did in 2006, they should seek federal injunctions to stop the state from issuing crippling punishments, arguing for their right to strike on First and 13th Amendment grounds.

In all of these arenas, labor must be willing to make bold demands. The NLRA was drafted and passed within a matter of months, in part because it reflected the rights-based agenda that labor advanced for decades.

It is time for unions to return to demanding workers’ rights without apology.

[This article originally appeared in the September issue of In These Times.]