Rats have speech rights, too: Unions, protests and balloons
Outside a strip mall on Staten Island, a giant balloon rat lies deflated. I can’t imagine a less auspicious scene for the free-speech fight of the century. But it’s here the Trump administration has chosen to argue that free speech is for corporations — and not for workers. And it’s here that unions have an opportunity to reverse decades of anti-union legal dogma.
Last month, the National Labor Relations Board sought an unprecedented injunction against Laborers Local 79 in Staten Island to stop them from inflating a rat balloon. Previously, agency staffers leaked word that Peter Robb, Trump’s NLRB general counsel, “hates” the rat and was determined to exterminate it.
The NLRB is a federal agency tasked by statute to protect the rights of workers. But under Republican administrations, it does the opposite.
Now, by taking aim at the inflatable rodent, the NLRB invites a First Amendment challenge. Conservative jurists have spent centuries trying to keep unions as far from free speech rights as possible — unless it can be used as a weapon against unions. In last year’s Janus vs. AFSCME case, the conservative majority upended a 40-year-old precedent by inventing a free-speech right for public sector workers to refuse to pay union fees.
If Scabby the Rat winds up before the Supreme Court because unions claim that popping their balloon is a violation of their First Amendment rights (which it clearly is), the justices will be faced with squaring Janus with free speech in favor of forming a union.
Some history. Unions have long been subject to speech restrictions that would never be applied to a corporation. One reason is that our nation’s main labor law, the National Labor Relations Act, is constitutionally rooted in Congress’ authority to regulate interstate commerce and not in workers’ constitutional rights. Another reason is the anti-union Taft-Hartley Act, which outlawed solidarity.
Today, we think of the act’s “right to work” provisions as its biggest attack on labor. But the ban on strikes and boycotts against companies that do business with an employer in a labor dispute — on pain of multi-million dollar fines — has actually been the greater sap on union power and organizing prowess.
Essentially, Trump’s NLRB is using the act to argue in federal court that cartoonish vermin are a “signal” to engage in “illegal” boycotts, and inherently coercive. They’re leaning hard on outdated stereotypes about union thugs and broken kneecaps.
Even on Staten Island, which has one of the highest unionization rates in the country, no one is going on strike or refusing to shop at ShopRite because of a balloon. The rat doesn’t coerce; it merely makes a mockery out of a union-busting boss.
Before he joined the NLRB, Robb was a construction-industry lawyer. He’s probably spent countless billable hours listening to thin-skinned real estate developers like Donald Trump complain about rat balloons outside their windows.
The Southern District court, often a problem for Trump, rejected the NLRB’s request for a preliminary injunction on Monday. But the case will move forward. A government agency is making a value judgment about the form and content of unions’ speech that has nothing to do with coercion or its impact on commerce. The AFL-CIO must wage this free speech fight.
It’s an opportunity to challenge the entire premise of a legal regime that is directly responsible for the decimation of the labor movement.
Corporations have every legal tool at their disposal to resist workers’ unionization efforts and the economic power to subcontract and reclassify the last remaining union jobs. Taft-Hartley denies workers the right to even ask fellow workers across corporate lines to leverage their own economic power to help them gain or maintain their labor rights. When it passed in 1947, one in three workers belonged to a union. Today it’s less than one in 10, even though polls show that at least half of all workers want to join a union.
Workers either have free speech rights and equal protection under the law, or the courts are where democracy goes to die.
[This op-ed originally appeared in the New York Daily News.]
A history lesson on saving labor: Look to how unions rebounded in the 1920s for insight on how they can make progress today
Many obituaries have been written for labor. The anti-union Janus vs. AFSCME Supreme Court decision is already being followed by a dark money campaign to convince workers to quit their unions. In the private sector, employers evade the reach of workplace-based union contracts by off-shoring, sub-contracting and freelancing jobs.
Despite occasional bright spots like Missouri voters’ rejection of right-to-work, this is labor’s lowest point in a century.
The parallels between today and the 1920s are striking. Like then, unions faced existential threats and structural challenges with no obvious solutions. Yet that nadir was quickly followed by the wave of sit-down strikes, the passage of laws protecting workers’ rights to organize and an unprecedented half-century of shared prosperity.
This begs the question: what were union activists and allies doing in the 1920’s that set them up for such a dramatic reversal of fortune? And is there similar under-the-radar work we should be doing today?
Perhaps the least-appreciated most-impactful effort came from the labor colleges that served as strategic retreats for union activists. At Brookwood Labor College, in upstate New York, activists got away from the daily grind of their defensive crouch organizing. College leaders, prodded by legendary organizer A.J. Muste, pursued a line of critical inquiry with little patience for easy answers or sacred cows.
They grappled with how to reconcile traditional craft union strategies with mass production and how to revive a movement that’s rooted in our occasional refusal to work at a time that few workers were willing or able to strike. Without them, it’s hard to imagine the sit-down strikes and huge organizing campaigns of the 1930’s would have sprung up in such a briefly revolutionary time period.
That culture of debate and disagreement is badly needed today. Unions prioritize unity but without a real plan to win it can lead to a strategic cul-de-sac, much like the one unions found themselves in a century ago.
In the 1920s, an organized left advocated for “one big union”-style multiracial organizing and contested for leadership within the traditional unions. Where there was no union, they embraced alternative forms of organizing.
These activists had an analysis of what core industries of the economy were essential to be organized. Socialists took jobs in steel and auto factories when no unions were serious about organizing nor was there a clear model for how to do it. Their presence as workplace leaders made them indispensable activists in the 1930s strike wave.
For the past four decades’ corporate assault on labor there haven’t been a lot of socialists around. Thankfully, thousands of new activists are rallying to the red flag.
Witness Democratic Socialists of America, lately seen toppling machine Democrats and ruining the meals of Trumpist baby-snatchers. These activists may be essential to labor’s next upsurge. They must be similarly thoughtful as their ideological forebearers were about where to be organizing.
I don’t know what a successful union campaign would look like in the tech sector. It definitely won’t look quite like the sit-down strikes of 1934 or following the National Labor Relations Board’s rigged election rules, but it will require activists intentionally taking those jobs together and becoming trusted and respected colleagues.
Finally, the 1920s — like today — saw an emerging coterie of intellectuals and reformers advocate for getting out of the boom and bust cycle of periodic economic depressions by empowering unions to do the real Robin Hood work of income redistribution.
They didn’t talk of “making it easier for unions to organize.” Their labor law was a blunter instrument, formally encouraging collective bargaining as the country’s policy by forcing employers to recognize unions and punishing retaliation for or interference with workers rights to organize.
If the only thing that can arrest our country’s slide into barbarism and economic disorder is a robust labor movement we need legal regime that thunders, “there will be unions!” and puts union pay standards, benefits and rights in every workplace.
The biggest lesson of the 1920’s to heed is that while organizing for long-term change, we must also be formulating big demands to democratize the workplace. We’ll have a very brief and unexpected window. Let’s be ready.
[This article originally appeared in the New York Daily News.]