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Want to Really Help Workers? Protect their Speech!

When does free speech stop being free? At the entranceway of one’s job, apparently.

That was the implication of a ruling this month from the Eighth Circuit Court, which found that the sandwich conglomerate Jimmy John’s was within its rights to fire six employees for making signs that protested the company’s policy of forcing workers to come to work when ill.

While the decision came as a surprise to many, the logic underlying it—that employees have few, if any, free speech protections on the job—has had devastating impacts on American workers for decades. Indeed, the dramatic drop in union representation is due in part to the fact that our court system regulates employees’ ability to organize by the impact of their organizing on businesses’ bottom line, devoid of any concern for the free speech or civil rights of workers.

Until we ensure that freedom of speech extends to the workplace, workers and the labor movement writ large will continue to suffer defeats at the hands of courts, corporations and legislatures. In short, we need a 21st-century Bill of Rights for Labor.

It’s no secret that laws meant to protect workers’ rights have been under assault for decades, in spite of greater protections and progress for workers in many areas. Unions are hampered by rules that would never be applied to corporations, or to any other form of political activism. Underlying this assault is the decision by the framers of the 1935 National Labor Relations Act (NLRA) to ground the Act’s constitutionality in the Commerce Clause, not the Bill of Rights or the Reconstruction amendments.

Just consider how unions get formed. To determine whether employees at a workplace have a legal right to form a union and bargain collectively, the National Labor Relations Board conducts an election to determine whether the workers “want” to form a union. The rules that govern this election, as set forth by Congress and, subsequently, the courts, are that only one side—the party that advocates a “no” vote—can force employees to attend mandatory presentations of their arguments as a condition of employment.

Employers use half of all of these “captive audience” meetings to threaten wage and benefit cuts should they vote to go union, according to researchers at Cornell. In two-thirds of these instances, bosses threaten to go out of business entirely; in one in ten cases, employers actually hire goons to impersonate federal agents and intentionally mislead workers about their rights and collective bargaining. It’s no wonder that anti-union consultants consider exploiting this imbalance of speech to be “management’s most important weapon in a campaign.”

Unions, for their part, have tried to fix this problem legislatively, perhaps most notably through the Employee Free Choice Act a decade ago. That attempt, however, which would have allowed workers to sidestep elections entirely by simply requiring a majority of workers to sign union-affiliation cards, was greeted by a multimillion dollar right-wing assault that extolled the “sanctity of the secret ballot.” The bill, not surprisingly, did not pass.

Given that attempts to reform labor law for the benefit of labor itself have largely failed since the 1935 NLRA passage, unions and their allies need a new strategy. That starts with changing the frame of the debate—returning to rights-based legal strategies and challenging the unequal restrictions on free speech for what they are: unconstitutional.

The rights of working people to unite, protest, boycott unfair businesses, and demand change in all areas of business are fundamentally rooted in the Bill of Rights and the Reconstruction amendments. Where labor law restricts these rights, either through statute or judicial fiat, it should be resisted and challenged as such.

Given that attempts to reform labor law for the benefit of labor itself have largely failed since the 1935 NLRA passage, unions and their allies need a new strategy. That starts with changing the frame of the debate—returning to rights-based legal strategies and challenging the unequal restrictions on free speech for what they are: unconstitutional.

The rights of working people to unite, protest, boycott unfair businesses, and demand change in all areas of business are fundamentally rooted in the Bill of Rights and the Reconstruction amendments. Where labor law restricts these rights, either through statute or judicial fiat, it should be resisted and challenged as such.

Affirming free speech rights won’t just help workers or unions; it will benefit all Americans. The decline of union participation has resulted in stunning income inequality, wage stagnation, and widespread gaps in basic health, retirement, and family leave benefits, among other perverse outcomes. Stronger worker protections and a more robust labor movement is one sure-fire way to create a more prosperous and inclusive economy.

When the government can dictate to workers what they can or cannot write on a flyer, a picket sign or a tweet; where and when they can march; even what they may demand at the bargaining table, something has gone very wrong. We don’t just shift power to large corporations at the expense of struggling families; we violate a bedrock ideal of this country.

Unions have been on the defensive for so long it can be easy to accept the rigged rules of the system as a given, as immune to change—but they are not. They remain bound by the Constitution, like all else. It’s time to make sure that’s the case in practice.

[This article originally appeared at The American Prospect.]

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Labor’s Bill of Rights

These are dark times for labor. The Republican majority that now controls all levels of the federal government has made it clear that they plan on rolling back labor and employment protections, while also not funding and enforcing the currently existing laws. Judicial conservatives have regained their fifth vote on the Supreme Court and a new case challenging the constitutionality of public sector fair share agreements is at the Court’s footsteps.[note] Moshe Marvit, “Labor Opponents Already Have The Next ‘Friedrichs’ SCOTUS Case Ready to Go Under Trump,” In These Times, January 4, 2017,
http://inthesetimes.com/working/entry/19776/will_trumps_supreme_court_reverse_fair_share_fees_unions_foes_hope_so.[/note] House conservatives have introduced a national right-to-work amendment to the National Labor Relations Act of 1935 (NLRA), and other restrictions on union activity are likely to be moved in the House.[note]“House Resolution 785,” 115th U.S. Congress, 2017, https://www.congress.gov/bill/115th-congress/house-bill/785.[/note] All of this will come at a time when the power and reach of organized labor is at historic lows.

Today, less than 11 percent of workers in America are members of a union, including 6.4 percent of private sector workers and 34.4 percent of public sector workers.[note]“Union Members Survey,” United States Department of Labor, Bureau of Labor Statistics, January 26, 2017, http://www.bls.gov/news.release/union2.nr0.htm.[/note] The dramatic drop in union representation since the 1950s, when over a third of the workforce was unionized, has resulted in stunning income inequality, wage stagnation, continued wage discrimination against women, tens of millions of Americans working for sub-poverty-level wages, and widespread gaps in basic health, retirement, and family leave benefits.[note]Jake Rosenfield, What Unions No Longer Do (Cambridge: Harvard University Press, 2014).[/note]

Traditionally, the courts have not been kind to labor. From the very beginning of our nation’s history, the earliest union efforts were treated by conservative jurists as criminal conspiracies and interferences with employers’ property and contract rights and with Congress’ responsibility to regulate interstate commerce. Unions spent the nineteenth and early twentieth centuries decrying “judge-made law” and seeking, essentially, to get the government and courts out of labor disputes.

For a brief time this worked. The Norris-LaGuardia Act of 1932 sought to prevent the federal courts’ military from enjoining or interfering in union protest activity, and many states passed similar laws to keep their courts and police out of the fray. The NLRA made it the official policy of the United States to encourage the practice of collective bargaining. The Act established a federal agency, the National Labor Relations Board (NLRB), that would certify the existence of a union at a workplace and sanction employers who refused to deal with a bona fide union.

Much of the thrust of mid-century labor law was to encourage a private system of jurisprudence: contract negotiations, arbitration and the occasional industrial warfare of strikes, boycotts (and, later, lockouts). Though unions point proudly at the legislative and regulatory successes they have achieved since the 19th century, they retain a vestigial bias against legislating and litigating our rights and benefits.

Unfortunately, labor rights have been gutted by bad court decisions and worse legislative action. The courts pretty quickly waved away legal job protections for striking workers (particularly for those who engage in what had been unions’ greatest strategic weapon in the 1930’s: the sit-down strike), have granted employers wide “free speech” latitude to conduct campaigns of terror to break their employees’ resolve to form unions and have removed large categories of workers from protection under the Act.

Pro-union labor law reform has been largely unachievable since the passage of the NLRA in 1935, and Congress has instead twice amended the NLRA to severely restrict unions’ ability to engage in solidarity activism in the form of boycotts and sympathy strikes, to protect and enforce union shop agreements and to enhance employers’ rights to fight back against their workers’ demands for a better quality of work life. In more recent years, Congress has severely underfunded the NLRB, cutting agency staff and essentially giving employers wider latitude to break the law with impunity.

Simply put, unions are hampered by rules that would never be applied to corporations, or to any other form of political activism. One of the root causes of this injustice was a conscious decision by the framers of the NLRA to root its constitutional authority in the Commerce clause—not in the First Amendment right of free speech and assembly, nor in the Thirteenth Amendment right to be free from “involuntary servitude.”

As Rutgers law professor James Gray Pope has detailed, tying the NLRA to the Commerce clause was a conscious, “pragmatic” decision of progressive lawyers to reject a half-century of a rights-based campaign for labor law waged by the American Federation of Labor.[note] James Gray Pope, “The Thirteenth Amendment Versus The Commerce Clause: Labor and the Shaping of American Constitutional Law, 1921–1957,” Columbia Law Review 102, no. 1 (January 2002): 14, https://www.jstor.org/stable/pdf/1123631.pdf?seq=1#page_scan_tab_contents.
[/note]

The decision is not just a historical footnote. It has the perverse effect of judging worker rights—which are human rights concerns—within the frame of impact on business, to the exclusion of free speech and other considerations. The last half-century has demonstrated that, in such a framework, the courts will tend to have more sympathy for business interests.

Labor rights are rooted in fundamental constitutional rights—from First Amendment freedoms of speech and association to Fifth Amendment protections from unlawful takings to Thirteenth Amendment freedoms from involuntary servitude. However, there has grown a trend whereby labor’s foes have perversely used these constitutional rights against labor. This is seen most often in the push for so-called “right-to-work,” that prevents unions from collecting fair-share fees to cover the expenses germane to collective bargaining.

It is the time for unions and their allies to return to the rights-based rhetoric and constitutional legal strategies that preceded the passage of the National Labor Relations Act and the development of our current labor law regime. The rights of working people to unite, to protest, to withhold their labor, to boycott unfair businesses, and to demand change in all areas of business and society precede and transcend individual labor statutes. Our rights are fundamentally rooted in the Bill of Rights and the Reconstruction amendments. Where the labor law regime, through statute or judicial fiat, restrict our constitutional rights, it should be resisted and challenged as such.

[Continued at The Century Foundation.]

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How Union-Busting Bosses Propel the Right Wing to Power

U.S. bosses fight unions with a ferocity that is unmatched in the so-called free world. In the early days of the republic, master craftsmen prosecuted fledgling unions as criminal conspiracies that aimed to block their consolidation of wealth and property. During modern times, corporations threaten the jobs of pro-union workers in over half of all union elections—and follow through on the threat one-third of the time. In between, bosses have resorted to spies and frame-ups, physical violence, court injunctions, private armies of strikebreakers, racist appeals and immigrant exploitation.

The labor question has never been a genteel debate about power and fairness in America.

A new book from the University of Illinois Press’ “The Working Class History in American History” series offers a broad survey of how bosses have historically engaged in union-busting. Against Labor: How U.S. Employers Organized to Defeat Union Activism is a collection of scholarly essays edited by Rosemary Feurer and Chad Pearson.

The essays that comprise Against Labor cover a period that stretches from the late 1880s to the Clinton era. Elizabeth Esch and David Roediger explore the racist assumptions that were built into so-called “scientific management.” The men with the stopwatches who broke production down into ever smaller tasks had ethnic preferences for each: Lithuanians for grinding steel, “American Poles” for forging, never Mexicans for the night shift and so on. A happy (for management) side effect of this speed up was the simmering resentment between different nationalities that hindered workplace solidarity.

Chad Pearson shines a light on Progressive-era worker organizations that were created and propped up by employers to help workers resist “union monopolies.” In other words, they created unions for scabs to break strikes and open up closed union shops.

Robert H. Woodrum looks at the use of the Ku Klux Klan and employer-sponsored vigilantism to run union organizers out of the Alabama docks and reverse the modest gains southern workers made during World War I. Michael Dennis updates the southern picture by documenting the UFCW’s sustained, large-scale organizing drive in non-union Virginia supermarkets in the early 1990s. Already facing enormous competitive pressure from Walmart, the supermarkets dug in for a years-long fight with little concern for the law. The story is a perfectly concise example of just how broken the National Labor Relations Board (NLRB) was as a venue for protecting workers by the time Bill Clinton took office.

None of these stories are particularly earth-shattering revelations to people who study unions and union-busting. What’s most notable is how employer tactics get recycled and adapted from era to era, and that no era was free from union-busting. That’s a key point of Against Labor. Editors Feurer and Pearson place their collection squarely within the new body of scholarship on the “rise of the right.”

Contrary to a popular narrative that has an activist right wing resurging in the years between Nixon’s 1968 election and Reagan’s firing of the air traffic controllers in 1981, the modern right wing began rising in reaction to the New Deal. Many employers simply never accepted the legitimacy of state intervention on behalf of union rights that was enshrined in the original National Labor Relations Act. These employers—mostly small and mid-sized firms—acted as an advance guard against union rights.

They pressed against the edges of the law, testing their ability to fire union activists for cause, replace strikers, lockout recalcitrant unions and restrict organizers’ access to the job site. They learned to love making the NLRB go to court to enforce orders against bosses’ union busting, for in the courts they found far more sympathetic arbiters of management’s rights. The biggest holes in labor law’s protections of workers rights, exploited in the anti-union drives of the 1980s, mostly come from bad court decisions in the postwar years that some people like to kid themselves were a golden age of labor-management cooperation.

Sure, there were employers who talked a good game about their (junior) “partners” in labor, kept their pensions and healthcare plans funded and mostly avoided knock-down, drag-out contract fights. But, clearly in retrospect, they were ready to beat down and bust their own unions just as soon as the advance guard of reactionaries created a political environment where it was possible.

The most fascinating story in the collection, “The Strange Career of A.A. Ahner: Reconsidering Blackjacks and Briefcases,” comes from Feurer. It tells of a hired gun whose career bridged two very different eras of labor-management relations in the Kansas City area. Scholars have referred to the advent of the NLRB as a kind of transition from blackjacks to briefcases for anti-union employers. It’s commonly assumed that the Pinkertons, thugs and company “unions,” employers’ first line of defense against unions in the 1920s, were muscled out of the way by a new generation of lawyers who promised to “work the system” to represent their clients’ interests at the NLRB. But in Ahner we find a direct, lineal connection between the two approaches.

Ahner ran his own detective agency beginning during World War I. For the right price, he would spy on workers, plant bombs and frame union activists (he had lots of friends in law enforcement at a time when there weren’t terribly rigid boundaries between local business and police). This work continued into the 1930s, when he was investigated by a Senate committee probing how employers were violating the new labor act.

Recognizing that times had changed, Ahner improved his image, if not his underlying philosophy. Working with a local priest, he became co-chair of the St. Louis Labor-Management Committee, which counseled conciliation and arbitration. Through this “volunteer” work, he lined up consulting gigs with unionized employers. Mostly this was for bargaining and grievances, where union representatives who knew his history would be aghast to find him sitting across the table with an air of respectability. But occasionally—even in the 1950’s—he was called on for union avoidance work, where he pressed the limits of employers’ rights to their own free speech and to squelch their workers’.

Ahner’s story enriches our understanding of the real roots of today’s anti-unionism. One wishes Rosemary Feurer had expanded her research on Ahner and others like him and made that the subject of her book.

It also serves as a warning that today’s union-buster will claim to have “always” had a “productive working relationship” with unions when we begin to win again. But the only “always” that applies to American capitalists is that they are always against labor.

[This article first appeared at In These Times.]

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