“The Amazon Workers in Bessemer Would Already Have Their Union If We Had the PRO Act”
The April union election loss at an Amazon fulfillment center in Bessemer, Alabama has been treated in the media as a signal event for the labor movement in the Biden era. But what exactly it signaled remains subject to debate.
Kim Kelly is a freelance writer who covered the Amazon election on the ground for More Perfect Union. Shaun Richman, program director at SUNY’s labor center, previously directed the American Federation of Teachers’ charter school organizing division. Here they discuss changing worker attitudes, labor law, media coverage and organizing strategy as possible lessons to take from the loss in Bessemer.
Shaun Richman: Biden’s statement on the Amazon campaign in March, from a historical perspective, was the strongest pro-union message from any U.S. president. The Franklin D. Roosevelt quote that the CIO put on organizing posters, “If I went to work in a factory, the first thing I’d do would be to join a union,” almost has an unspoken, but I would never work in a factory contained within it. On Presidents’ Days, when unions’ social media people have to trot out these memes of presidential statements on unions, they’re pretty terrible. John F. Kennedy sounds like a negging pickup artist: “Our labor unions are not narrow, self-seeking groups. They have raised wages, shortened hours and provide supplemental benefits…” etc. It’s always stated as this negative they’re not all bad; some of them are actually fixing things. Whereas Biden strongly emphasized this being the workers’ decision and nobody gets to interfere with it — the federal government has your back. It was good and possibly a better signal to all workers organizing. How did that play out in a live organizing campaign in a warehouse in the deep South?
Kim Kelly: I think folks were impressed that the president was paying attention to what they were doing, and the idea that he was kind of urging them on, and clapping back at Amazon for all of the union busting techniques they’d been pulling out and hammering people with for months. But it came at a point where a lot of people had already voted. It would have been much more impactful if he’d come out in early February and said all that. It was a little Johnny-Come-Lately, I think, in terms of actual usefulness, but it helped.
SR: It might be a matter of timing. The original right to organize in the 1930s, Section 7a of the National Industrial Recovery Act just said you have the right to organize, but there was no enforcement mechanism, which is not dissimilar to our broken labor law system today. Even more impactful than FDR’s endorsement of joining a union were crusading senators like Robert La Follette Jr. and Robert Wagner holding hearings to interrogate employers who defied the law, and holding up stories from workers who were trying to form a union in the face of employer intransigence. And out of that came the drafting of the National Labor Relations Act, which was really meant to have some penalties for violating the workers right to organize, weak as it ultimately turns out that they were.
Biden’s statement was good, but now is Bernie going to pick up the ball and do the hearings? Is Warren? Because Amazon executives deserve to get grilled on the bathroom stall stuff and the mailbox. What are some of the worst things that you saw that Congress should be grilling them on?
KK: I’m generally skeptical about Congress doing anything, but hopefully the high-profile nature of the situation will mean that Bezos and his buddies will be held accountable in some way for what they pulled. Amazon has created its own surveillance state here; the workers clock in and do all their tasks through an app on their phone, so they were getting anti-union propaganda through the app and text messages, sometimes up to five a day, to their personal cell phones. Amazon bought billboards in the area. They set up a sketchy mailbox in front of the warehouse in defiance of the NLRB. They essentially bullied the county into adjusting the traffic light patterns at an intersection in front of the warehouse, where workers have been stopping to talk to organizers on their way in.
Some of this is legal, and it’s not unexpected that Amazon would try to innovate union busting and disrupt that space, but they can’t be allowed to keep doing this. If all of these politicians who made statements or tweeted about how they support these workers hauled Amazon’s corporate leadership up in front of them and grilled them on why they thought they could get away with it — at the very least it might be able to stop Amazon from using the same tricks or coming up with new ones. I’m not really sure what kind of power Congress has to force a private company to stop union-busting.
SR: In my experience, an elections appeal and unfair labor practice investigation process can really drag out and can pull more facts and private documents into the public sphere, and can create real leverage for a union to rerun the election on terms that are somewhat fairer. That depends on somebody in power also having some real leverage over the employer and saying, ‘Stop breaking the law or you’re not going to get this tax break or this government contract anymore.’ Or even, just: ‘Jeff Bezos, get ready to park your butt in this Senate hearing room.’
This seems like it’s changing for the better. When I was doing charter school organizing it was local politicians that we needed to weigh in. But because of “Democrats for Ed Reform” and a lot of rich education reformers who threw their money around, liberal Democrats who could have stopped the behavior of a specific charter school chain in their district that was firing union activists and blatantly violating the law, just wouldn’t touch it because of the political landscape. I think that’s changed.
The “organizing model,” which labor researcher Kate Bronfenbrenner developed through lots of scientific research in the 1980s — measuring the most effective union tactics and the most effective boss tactics, and measuring win rates as these tactics went head-to-head in surveys of NLRB elections — was also developed in a social context that contemporary activists tend not to appreciate. In the 1980s the experience was that politicians and the general public won’t really have much sympathy for a union or really care that the boss broke the law, and so we have to do most of our organizing in secret until we have a supermajority of workers ready to make a public demonstration of support for the union and, generally, a union organizing campaign has to be better than good to have a chance at winning.
This idea that nobody’s going to be sympathetic is out the window. You’ve got a bunch of members of Congress who intellectually understand that the decline of the labor movement causes Democratic election losses. But they don’t understand how deep the problems are. As much as it frustrates me that there are still a lot of unions that don’t follow science, the devotion to the organizing model has led the labor movement to sort of suffer in silence, because even the things bosses are allowed to do often fly under the radar, like captive audience meetings are outrageous when you actually explain to people what goes on in them.
What went on in Amazon’s captive audience meetings?
KK: One of the things that made the workers I spoke with so angry about it is that normally this is a company where if you show up one minute late, you’ll get docked an hour of your flexibility time. They only have 15 minutes for a bathroom break, 30 minutes for lunch. But Amazon has all the time in the world to sit them down in a classroom with an anti-union consultant who is being paid $3,200 per day, just droning at them for hours about how a union is going to take all your money, and the company might have to shut down the warehouse, or cut hours or pay, if you vote for the union. Amazon made it clear that your time doesn’t matter.
SR: That’s the point! The utter stupidity of the messaging (“do it without dues”) is the point. Last week, we’re measuring you down to the second because these packages gotta get out for one-day delivery. Now, whatever, this [anti-union meeting] is more important. And I think that workers come to the conclusion, oh, they’ll burn this place down. If we actually win the election, they’re going to turn around and say this facility is underperforming, your one-day turnaround really bombed in April, we’re going to route more packages through other facilities, and here come the layoffs.
KK: In these captive audience meetings, Amazon said voting for the union might impact your pay, and benefits. There were rumors going around that if the workers voted to form a union, the company would just pull their investment and bounce. Bessemer is a very strategic location in terms of shipping and receiving around the South. It wouldn’t make any sense for them to leave. They essentially said, ‘You can do whatever you want but you know…vote wisely.’
SR: The law says you can’t make threats. But there’s this bad Supreme Court decision that says, well, you can mask your threats as economic predictions.
KK: You can certainly insinuate things.
SR: This is an example of how unions get stuck in old models. Bosses have a First Amendment right to conduct captive audience meetings. But there was a period of time when the NLRB would enforce an equal time rule that if the boss did mandatory captive audience meetings, the union gained some additional access to the work site: non-work times, break rooms, non-work hours. In 1966, unions asked the NLRB to reinstitute an equal time rule and the Johnson NLRB politely declined, because they said later today we’re issuing another decision in a case called Excelsior Underwear Inc., where we’re going to say that 30 days out from the election, you get to have the names and addresses of all the workers on the voting list. So you can contact them at home, and they said, ‘Try that, see if it works. If it doesn’t, come back to us.’ We never did. Because we learn to organize through a style of staff trainings and oral tradition, if you go more than one generation out, shit just gets forgotten.
If I were the RWDSU (Retail Wholesale and Department Store Union), I would be demanding as a remedy that when this election gets rerun, the union gets equal time to run their own meetings on work time. The NLRB has the authority to do that, and it’s a First Amendment issue when you really look at it. You’ve got an arm of the government conducting an election that’s going to determine whether additional statutory rights are applied to the voters. The rules of that election are that one party can force the voters to attend a mandatory meeting upon pain of termination. The other side has no right to respond. And beyond that a boss can only have a captive audience meeting if they’re advocating a “no” vote. If there’s a neutrality agreement, and they in any way signal, “we want you to vote for the union,” that’s also illegal. When you step back from that, how is that not coerced political speech, ala the Janus decision?
KK: It’s all ridiculous. The union was criticized for not doing home visits, which would be a valid critique if we’re not in the grips of a deadly pandemic that is disproportionately killing Black and brown people, while you’re trying to organize a group of Black and brown workers. The pandemic greatly affected the union’s ability to reach workers. Amazon has the voters trapped in that facility for 10 hours a day and is attached to them on their phones, 24⁄7. Workers didn’t feel comfortable staging large scale meetings. You can’t go to the beer hall or book a conference room at a hotel and cram a bunch of people in there and get the energy flowing when there’s a deadly virus in the air.
SR: The overall voter turnout was 55%? You never see turnout that low in an NLRB election. This was a pandemic election and that added a lot of noise. I agree that a lot of the left criticism is essentially victim blaming. I appreciate what RWDSU did because it’s Exhibit A for why we need the PRO Act and better enforcement and remedies at the NLRB. I think there’s a lot of policymakers for whom it was an eye opening experience.
Another unspoken principle of the organizing model is that you don’t want to campaign in public and risk a high-profile loss that could have a chilling effect on other bargaining units in the same industry, or the same city. I felt that way for most of my tenure as an organizing director. I got disabused of that in a campaign at the first charter school in New Orleans to win collective bargaining. We got voluntary recognition, but only after the school board held a public meeting to grill the teachers on why they wanted a union. And every education reporter in the city live-blogged it, powerbrokers in the city turned out to testify pro and con. And I’m just sweating sitting in this auditorium. And it was actually massively empowering, partly because we had a terrific Organizing Committee (OC) and their messaging was on point, but anti-union voices on the faculty also got amplified. Still, it got campaigns going at a bunch of other charters. I got much more open to doing more of the campaigning in public.
But I think a lot of people that are criticizing this are still active duty organizing directors, and they’re thinking, ‘You just fucked up my campaign at this auto parts factory or at this hospital.’ I’m not sure that’s correct. I’m not sure at this point, after the Fight for $15, and other public campaigns — particularly in digital media newsrooms — that losing round one sends a message of futility. That might actually sort of get people more fired up like, ‘Well, we’re coming back.’ But you have talked to way more of these workers than I have.
KK: People are disappointed. They’re heartbroken after pouring endless hours of their time over the course of months into this campaign that didn’t reach the finish line. But when I was down there talking to Jennifer Bates and Darryl Richardson, who are two of the major driving forces of this campaign on the OC, they said, ‘Okay, we have more work to do, and we’re gonna do it.’ These folks have been knocked down. They went up against this terrifying global behemoth, and they didn’t get the result they wanted, but they’re not going to give up and they want to keep pushing the message forward. One woman, Linda Burns, a real fire starter, said, ‘Look, if I have to go to Cleveland, if I have to go to Chicago, I will go wherever I need to go to spread this message and tell Amazon: You’re still on notice. We’re coming for you.’
It was a little infuriating seeing so much of the discourse online, versus what I saw and felt and heard from the workers and organizers and the supporters down in Birmingham and Bessemer. It wasn’t this devastating blowout loss that was painted as in some corners. It is a loss. But when you add nearly 500 challenged ballots, the numbers look a little better. There are nearly 1,000 workers in this Amazon facility in the deep South, who voted “Yes” after being inundated with anti-union propaganda and scare tactics for months.
They haven’t been federally recognized, but a union is a group of workers that come together, and collectively fight for what they need — these Amazon workers are a union. RWDSU has been inundated with calls and messages from workers at other Amazon facilities. We know that there are independent organizing efforts already underway. Look at Amazonians United or what’s happening in Staten Island. I think we’re seeing workers across the country taking these different approaches and looking at different tactics and looking at what worked and what didn’t work in Bessemer and applying that to their own campaigns. If anything, this is a really important case study for what to do, and what not to do, when you’re trying to organize a company like this in the deep South. All that is to say, they’re not ready to give up, so I don’t understand why so many people were ready to give up on them.
I know that there was criticism of the media coverage. There was so much of it, which was unexpected and I think it was pretty cool — for a couple of months, a labor fight was one of the biggest stories in the country, and millions of people who had never thought about unions or thought about the people behind the package they just got yesterday, they’re thinking about it. They’re thinking about what happens in an Amazon facility, they’re thinking about what a union is, and hearing that a union could be helpful for people who were in a bad spot or had a bad employer, or who have a job in general. It’s not something you can measure, but I think it really raised the public consciousness around unions and around labor and workers’ rights.
SR: Unions suffer in silence while the legal process is totally mystified. At my labor center, our students are mostly in the building trades which is a model where you get on a waiting list to join the union, they train you and then get you placed in union jobs on construction sites. One time we had some Fight for $15 strikers speak at an event about their struggle. And our students were like, ‘That’s terrible. Why don’t you guys just join the union?’ The low levels of union density are not because millions of workers don’t want a union. You really have to show how the process is rigged in the bosses’ favor.
KK: And now there are millions of explainers of all of this arcane NLRB stuff! What normal person that isn’t a labor nerd even knew what the NLRB was before this election? But now, there’s all of these high profile media articles and explainers and videos breaking down this process, and showing not only how hard it is, but here’s how you do it. I think that’s a good thing.
SR: I don’t know what labor person can’t see that as a good thing.
KK: There was criticism about the coverage being too positive, which is almost surprising given how labor is usually treated in the press. The union had a media lockdown for the first half of the campaign. The press started showing up when there was momentum. More workers finally felt comfortable talking to the press. Politicians were coming down, the workers were having rallies. ‘Oh, there’s a rally! Oh, Danny Glover’s coming by? Oh, Bernie and Killer Mike are rolling through!’ Of course, this is the kind of thing that we can convince our editors to let us go down and cover.
SR: There are readers probably shouting, ‘But! You don’t go public until you’ve got 70% assessed on a public petition.’ If the PRO Act passes, I think we have to be open to doing more of our organizing in public. That said, we still need organizing committees that are representative, that are accountable to each other and to their co-workers and empowered to make real decisions about moving the campaign forward. I’m loath to criticize the organizers who worked on this campaign, but it looks like there were some corners cut when it came to creating the kind of organizing committee that can see a group of workers that size through a tough campaign.
KK: But, they had an OC! It’s such a strange thing to say, ‘Oh, they didn’t have an organizing committee, they didn’t spend any time on that.’ But, they did! There was a good chunk of people that were devoted to organizing and talking to their coworkers every single day. I see people who maybe don’t know every part of the story, discounting the work that those workers put in on top of their 10-hour shifts, and their side jobs and families.
SR: Of course there was an organizing committee, but under the organizing model, the OC needs to be about 10% of the workforce, it has to be representative of all shifts and job classification, ethnic groups. It has to be that between all the members of the OC you can reach every single member of the bargaining unit. And RWDSU couldn’t have had that. Not in that amount of time and not with the thousand or so temp workers Amazon threw into the unit. We followed the organizing model very slavishly in the charter school organizing division and it meant that we walked away from 9 out of 10 campaigns because we just couldn’t get the leaders we needed on the OC. We need to be open to dealing with a little more experimentation, while remaining committed to the science of what can win and what definitely won’t.
KK: A lot of the people who are upset about these initial election results, I’m hoping that they see it that way, and not as like, ‘Well, it’s not worth doing.’ I hope that they instead take the idea that, ‘If it’s that hard, we’ve got to make it so it isn’t that hard. This shouldn’t be allowed to stand.’ The PRO Act is a pretty good Band Aid. It’s not gonna fix everything, but if it can make it even just a little easier, it’s worth it.
The Amazon workers in Bessemer would already have their union if we had the PRO Act a year ago. We wouldn’t have had to deal with any of this bullshit if we had had decent labor laws in place. I am always skeptical that the government will ever really do anything useful, but there’s only a couple of Democratic holdouts on this bill now, and I’m feeling a little hopeful.
A Brief History of the U.S. Government’s Targeting of Left-Wing Immigrants
On September 8, 1947, federal agents walked into the midtown Manhattan office of the Hotel, Restaurant & Club Employees & Bartenders Union Local 6 and arrested its president for being an “undesirable alien.” Michael J. Obermeier had been organizing hotel workers into a succession of scrappy independent unions since he arrived in New York as a German immigrant around the time of the first World War. By the time of his arrest, he led 27,000 union members in a powerful affiliate of the American Federation of Labor.
That same day, attorneys for the CIO’s Transport Workers Union Local 100 were fighting an aggressive move to deport John Santo, the union’s Romanian-born organizing director. Local press asked the Deputy Commissioner of Immigration and Naturalization, Thomas Shoemaker, if these actions were a part of a crackdown. Shoemaker’s mild response was that the legal actions were “in the normal order of business.”
The truth is that they were both. The federal government was cracking down on union leaders it believed to be Communists, and it was specifically targeting activists based upon their immigration status. Dozens of arrests, prosecutions and deportation procedures were initiated against alleged Communist activists in the weeks and months that followed. It’s a pattern that has marked American politics for over a century.
A new book by lawyer and historian Julia Rose Kraut, Threat of Dissent: A History of Ideological Exclusion and Deportation in the United States, comprehensively lays out this long history of using the denial—and even the threatened removal—of citizenship in order to restrict some forms of political action.
A history of ideological exclusion
Restrictions on naturalization coincided with the advent of partisan politics, according to Kraut. Article I of the Constitution directs Congress to “establish an uniform rule of Nationalization,” and the first one that Congress set, in 1790, allowed white foreigners to become citizens after just two years of residency. This liberal policy made the United States a haven for political refugees throughout the 1790s, and they became active in American politics. The Irish fleeing British rule and French fleeing the twists and turns of their revolution tended to support Thomas Jefferson’s new Democratic-Republican clubs that were critical of the Federalists’ drive for a strong central government.
By the end of the decade, the Federalists were frustrated by the legislative intransigence of Jefferson’s party and with its many publications that were critical of them. President John Adams, a Federalist, was facing a tough re-election and itching for war with France. In 1798, he signed the notorious Sedition Act into law, which made it a crime to publish material critical of the government, or the president. Less well remembered is that the Federalists also updated the Naturalization Act to greatly increase the years of residency needed to become a citizen, and passed an Alien Friends Act, which gave the president the power to deport non-citizens that he deemed a threat to the nation’s security.
Most of us were taught in high school that the United States ultimately survived this early test of our democracy. After all, when Adams lost to Jefferson in 1800, he peacefully transferred power, establishing a norm. The Sedition Act expired and Adams never used his expulsion powers under the Alien Friends Act. Readers of this publication, on the other hand, are all too aware that a reliance on norms makes for a vulnerable democracy, and a hardening of the line between citizen and resident alien leaves the latter population vulnerable to persecution. (Indeed, the reason Adams never had to use his deportation powers, Kraut shows us, is that many of Adams’ targeted enemies self-deported before he had the chance to do it by force.)
In the century that followed, Congress continued to make it difficult for immigrants to naturalize, but primarily for reasons of regulating the workforce, coupled with racist exclusion (mostly directed at Asian workers). Kraut does not neglect this scorched underside of our national melting pot myth, but the subjects of “ideological exclusion and deportation” are perhaps less well understood—even by those on the Left—than the fact that our immigration laws are inherently racist.
The 20th century drive to deny and revoke citizenship of dissidents began with a bang. When President William McKinley was shot to death in 1901 his assassin, Leon Czolgosz, claimed to be an anarchist who drew his inspiration from a lecture he attended by Emma Goldman. Although Czogolz was a natural-born citizen, anarchism was still viewed as a foreign ideology and Congress responded by voting to ban anarchists or anyone who advocated the “overthrow by force or violence of the Government of the United States,” language that in one form or another remains in federal immigration code.
Goldman was made notorious by the assassination that she neither called for nor condoned. But she was a revolutionary, and her writings and public speeches on anarchism and workers’ rights, not to mention her advocacy of free love and contraception, made her the bête noire of the law and order types who wanted to stamp out “criminal anarchy.” The barrier to kicking Emma Goldman out of the country, aside from the yawning gulf between philosophical anarchism and advocating real acts of violence, was that she was a U.S. citizen by marriage.
Obsessed with so-called undesirable aliens, Congress in 1906 passed a law that for the first time allowed for the denaturalization of a person who obtained citizenship through fraud or misrepresentation. Immigration officials almost immediately began investigating Goldman’s estranged husband. Finding that he had misrepresented his age in his application for citizenship, he was denaturalized. Goldman lost her own citizenship as a result and spent 10 years restricting her travel, well-aware of how vulnerable she now was to deportation. She was eventually purged in 1919, along with 248 other foreign radicals, and deported to Russia during the first Red Scare that followed the Bolshevik revolution and (at the time) the largest strike wave in U.S. history.
Anti-communism would animate most changes to immigration law, and much of federal law enforcement, in the decades that followed. The Department of Justice’s Bureau of Investigation (forerunner to today’s FBI) that was created to investigate potentially fraudulent immigration paperwork in 1908 transformed into a domestic spy agency focused on going after underground Communists in the 1920s. In 1940, Congress again revised immigration and naturalization code, and passed the Smith Act, making it a federal crime to “knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence,” or to belong to an organization that did. This included publishing, public speaking and organizing. The Smith Act further required foreign nationals to be fingerprinted and to sign an affidavit regarding the date and place of entry to the United States, the intended length of stay, the activities he or she expected to be engaged in, criminal record (if any) and other information that the Immigration and Naturalization Service (INS) might request.
This 20th century sedition law was drafted in response to the INS’s inability to deport Harry Bridges, the longshore workers leader who led the 1934 strike that snarled shipping up and down the West Coast and led to a general strike in San Francisco. Although Bridges’ denied belonging to the Communist Party (CP), he was seen as a threat to commerce and national security. Bridges, who emigrated from Australia in 1920, was vulnerable to deportation and the House Un-American Activities Committee pressed the INS to begin deportation proceedings—under the older Anarchist Exclusion language—in 1938. A June 1939 Supreme Court decision, Strecker vs. Kessler, narrowly ruled that the exclusion language could only be applied to someone who was an active member of an organization that fit its definition of one that advocated the violent or forceful overthrow of the government. Bridges was definitely not an active member of the CP at the time, denied ever having been a member, and the prosecution could never prove otherwise. He walked out a free man.
The new law added 10 years of retroactivity to the affidavit required in a naturalization application, regarding membership in a revolutionary anti-government organization. This is why the infamous question in congressional hearings and other investigations was, “Are you now or have you ever been a member of the Communist Party?” It was a trap. Answer honestly, and you could go to jail under the Smith Act. Lie, and you could be denaturalized and deported under the Nationality Act. Michael J. Obermeier, the New York hotel workers leader, was one of 41 Communist labor organizers arrested in the initial crackdown of 1947. By 1949, Kraut writes, “the number had swelled to 135” and the Attorney General, Tom C. Clark, maintained a list of 2,100 foreign Communists who he wanted to deport.
“Are you now or have you ever been…”
Michael J. Obermeier is not one of the stories that Kraut tells in Threat of Dissent. He’s my research subject. Over a decade since filing my first Freedom of Information Act requests, I’ve been studying his FBI file and those of his comrades. Without knowing the complete dark history that Kraut’s book compellingly brings into the light, it was clear to me that the FBI was prioritizing investigatory resources based upon the immigration status of its targets. Obermeier was fingered in 1942 for work he was doing among German-Americans in support of the Allied war effort. Within two years, FBI agents had interviewed a dozen ex-comrades and had dug up details on numerous trips in and out of the country in the years between his first arrival in the country and his (unsuccessful) 1939 naturalization application, and were building the case to deport him.
By contrast, the FBI began investigating Obermeier’s long-time organizing partner, Jay Rubin, in late 1943. President of the NY Hotel Trades Council, Rubin was allied with a number of conservative AFL craft unions and maintained stable bargaining relationships within the hospitality industry. More importantly, from the FBI’s perspective, he became a naturalized citizen in 1929. He was added to the Security Index, a list of key individuals to be arrested if the government ever decided to completely suppress the Communist Party. But the FBI mostly kept tabs on him, and only briefly considered denaturalizing him in the late 1950s when a couple of agents convinced themselves that Rubin had only pretended to quit the CP in 1950.
Gertrude Lane, the General Organizer (and, later, Secretary-Treasurer) of the Hotel, Restaurant & Club Employees & Bartenders Union Local 6, was a natural born citizen and graduate of Hunter College. Despite evidence that she served on the CP’s National Committee, she was dismissed as “not currently of sufficient interest” to add to the Bureau’s Security Index. Instead, the New York office mildly collected her birth, education and voter records, known aliases and whereabouts—and passively accepted tips from snitches.
As with the Alien and Sedition Acts of 1798, we’re taught in school that the postwar Red Scare was a test of our democracy that we ultimately passed. After all, the overreach of the Smith Act was eventually blunted by the Supreme Court, and today, the Communist Party can operate in the open as a legal organization once again. But people’s lives were destroyed in the process, and immigrants were singled out for targeted harassment. More importantly, the principles of ideological exclusion and denaturalization are still enshrined in the law under the exclusive purview of the executive branch.
A good chunk of the latter half of Threat of Dissent is focused on the Nixon and Reagan administrations’ efforts to deny entry visas to scientists and public intellectuals who belonged to socialist or antifascist organizations, or who supported Palestinian statehood or opposed South African apartheid. This includes the ridiculously petty efforts to deny the ex-Beatles member John Lennon a visa renewal because of his public opposition to the war against Vietnam, and to kick the famed actor Charlie Chaplin out of the country for thumbing his nose at the House Un-American Activities Committee. “These cases,” writes Kraut, “served as a reminder of the importance of discretion and of who holds that discretion to determine the fate of foreigners seeking to enter the United States, as well as the potential for abuse of discretion under the law.”
Indeed, that executive discretion is at the heart of President Trump’s so-called “Muslim Ban.” While obviously racist in his intentions, his executive order drew its authority from Red Scare-era ideological exclusion laws and the flimsy argument that visitors from majority-Muslim nations are predisposed towards terrorism. Now consider Trump’s recent efforts to declare the loose network of antifascist organizers a “domestic terrorist organization.” He wants to tap into the surveillance and civil forfeiture powers afforded him under the PATRIOT Act (which Democrats voted to renew during Trump’s term). Just wait until Stephen Miller tells him he can also deport antifascists who aren’t natural-born citizens!
If Joe Biden is able to defeat Trump in November, progressives should treat his presidency with the same level of fear and loathing as we did the Trump and Bush administrations. The basic democratic rights of citizenship should not be the playthings of presidents. When we are finally able to turn our attention towards shutting down Stephen Miller’s toddler concentration camps and establishing a “pathway to legal citizenship,” we also have to insist upon irrevocable citizenship as a right.
[This article was originally published at In These Times.]
If “Cancel Culture” Is About Getting Fired, Let’s Cancel At-Will Employment
[This article was co-authored with Moshe Marvit.]
You know what should be canceled? The legal right of most bosses to fire you for a “good cause, bad cause, or no cause.”
That status quo is so widely accepted that some progressives don’t think twice about appealing to the authoritarian power of bosses in the pursuit of social justice: Many high profile social media campaigns have been employed to get people who are caught on video committing racist acts in their everyday lives fired from their jobs. But the desire to hold racists and sexists accountable—or the related struggles against sexism, homophobia and fascism—need not be in conflict with the principles of workplace rights.
So-called “cancel culture” is not well-defined, but its critics frequently use the moniker to refer to an activist program of making individuals who harm their neighbors or coworkers with acts of racism, sexism (and worse) accountable through exposure and de-platforming—including attempts to get them fired. Liberal critics have been more likely to raise free speech concerns than any about workers’ rights, while leftists are likelier to argue that free speech doesn’t mean freedom from the consequences of speech.
Depending on what websites you read, “cancel culture” could be portrayed as the biggest threat to society outside of a pandemic with no end in sight, a cratering economy with tens of millions of people out of work and facing eviction, and unidentified men wearing camouflage and carrying machine guns removing protestors from the streets of Portland. The terms of the debate are so problematic that Trump used the occasion of his July 4 speech to complain of leftists that, “one of their political weapons is ‘cancel culture’—driving people from their jobs, shaming dissenters, and demanding total submission from anyone who disagrees.” Then, because the concept of irony has apparently died of complications from Covid-19, he continued, “This is the very definition of totalitarianism.”
Three years ago, we published an op-ed in the New York Times explaining how U.S. workers lack a basic right to their jobs that many workers in other countries enjoy as a legal standard. As a solution, we proposed a just cause “right to your job” law as a badly needed labor law reform. Since then, we’ve been encouraged to see the issue turn up on many progressives’ agenda.
In the debate between a right to your job and the need to de-platform bigots, some have raised concerns that without the boss’s right to fire an employee for any reason, racists and sexists would get more of a free pass at work. But this argument misses what “just cause” means. It doesn’t mean that employees cannot be fired, it means they can’t be fired for a reason that’s not related to work. Racism, sexism, harassment and other forms of conduct in and out of the workplace that make other employees feel unsafe and violate policies around respect and equity are grounds for discipline and termination—but are also subject to due process. When you look at how “just cause” plays out in areas where it exists—in the public sector, under many union contracts, or in other countries—it’s clear that racists, sexists and harassers are, in fact, disciplined.
Beyond the pale and unacceptable
American workers stand apart from those in other countries, as they’re governed by a body of judge-made law called the “at-will” employment doctrine. The doctrine is built around a sort of false mutuality, where the employee has the “liberty” to quit her job for any reason, and the employer has the right to fire her for any reason. The alternative, commonly negotiated in union contracts, is “just cause”: the principle that an employee can be fired only for a legitimate, serious, work-performance reason. In a union contract—where “just cause” is commonly found—it is usually combined with a progressive discipline system and a grievance procedure to challenge write-ups, suspensions and terminations that a worker feels was unfair.
Progressive discipline typically starts with verbal warning of an infraction or unsatisfactory performance. If, after that warning, a boss thinks that the situation has not improved, it may be followed up with a formal warning in writing, then a suspension without pay and, finally, termination. The progressive steps of discipline reflect an increasing seriousness of infraction, or inability to improve following warnings and remedial supports. Lower levels of discipline might be accompanied by new training or counseling to help the employee improve. But—and this is a key point—while some matters might go through the entire progression of discipline, other more serious infractions might go straight to a higher level of discipline.
A vocal or demonstrative racist creates a hostile work environment for her coworkers, and can be punished—or even fired—under a system of just cause and due process. Let’s look at a few real-world scenarios. Casually browsing through arbitrators’ decisions in New York, we found the case of a professionally-classified employee at a social service agency serving developmentally disabled children and families, who made racist remarks about a supervisor to a fellow worker that other co-workers overheard. Horrified, the co-workers who were subject to an unwelcome racist rant reported it to management, complaining that they were not comfortable working with such an unabashedly racist co-worker. The racist employee was fired. She brought the case to arbitration, arguing that she was not given progressive discipline and was fired without just cause.
The case went all the way up to arbitration and a neutral third-party upheld the termination. The damning judgment: “Under these circumstances, I find that the Employer acted reasonably and had just cause to terminate Grievant’s employment. In maintaining a respectful, productive and safe working environment for a diverse workforce as well as a proper atmosphere for the Employer’s clientele, the use of certain negative language is beyond the pale and is unacceptable, making progressive discipline unwarranted.”
Amy Cooper, the entitled white lady who called the cops on “an African-American” birder in the Ramble of New York’s Central Park is a slightly more complicated case. Cooper was caught on video reacting in a reflexively racist way to a Black man who just wanted to protect some birds from getting gored by an off-leash dog, threatening to unleash some unpredictable police response upon him. She was quickly doxxed, and angry internet hordes demanded she be fired from the investment firm that she worked for. The firm, Franklin Templeton didn’t hesitate to fire her to protect its own reputation. But even Amy Cooper deserved due process.
The targeted campaign against the investment firm arguably made Cooper’s behavior in Central Park a work-related cause of damage to her employer’s business. More relevant is how uncomfortable her presence in Zoom meetings and on email CC lines would be for her co-workers in the immediate aftermath of her scandalous behavior. It would not be unreasonable for an employer to move directly to a suspension under those circumstances. It could be a suspension without pay while she cooled her heels and consulted with anyone willing to represent her in an appeal. If the employer decided that her time away from regular duties should be spent in implicit bias training or anger management counseling, then the suspension could continue some form of compensation.
If the goal of “cancel culture” is to “make racists afraid again” by making their despicable behavior carry real-world consequences, then Cooper very nearly losing her job would likely have been as effective as her actually losing her job. And under a just cause standard, she probably wouldn’t have been immediately fired for this one terrible offense.
Let’s look at one more example. In a widely-discussed piece for New York Magazine critiquing “cancel culture,” Jonathan Chait complained about the firing of a political data analyst named David Shor. In Chait’s telling, Shor tweeted a link to a paper by Princeton Professor Omar Wasow, which showed that non-violent protests increased the vote for Democrats, whereas protests viewed as violent increased the vote for Republicans. What followed was a Twitter debate between Shor and several others concerning the propriety of Shor posting the paper, wherein Shor was accused of racism and his employer was tagged. A few days later, Shor was fired from his job.
Chait uses the Shor episode, along with several others, to point to a “left-wing illiberalism” that seeks to silence people with opposing viewpoints. However, in Chait’s examples and his discussion of the problems, he almost wholly lets the employer off the hook. He engages in no discussion of at-will employment or how Shor’s employer should not have been permitted to fire him for a “superficially innocuous” tweet, but instead blames “leftists” and “the far left” for causing Shor to lose his job. Nowhere does Chait even mention that it was not the Twitter users who fired Shor, but his boss.
The problem for Chait was a “cancel culture” that included everyone except the powerful arbiter of speech who actually canceled his employment—his boss.
The cause must be just
In her 2017 book, Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It), University of Michigan professor Elizabeth Anderson argues that we think too narrowly about the power and ubiquity of “governments.” We almost exclusively focus on the power of the politicians we elect while ignoring the far more coercive power of our bosses. All workplaces have a system of government. In the United States, a unionized workplace is like a constitutional monarchy. We have some rights and can petition the King. A non-union workplace is a dictatorship. Left-wing activists need to think twice before appealing to the authoritarian power of a boss. Even if the cause of anti-racism is just, the boss’s arbitrary authority to punish his employees for what they do in their private time is a massive restriction of our civil rights.
Corporations are only temporarily embarrassed when right-wing employees spark a controversy. But corporations actually dislike left-wing ideas and are usually all-too-happy to find an excuse to quash them, leaving progressive activists far more vulnerable to campaigns of harassment targeted against their livelihoods. This can be seen in academia, where there has been a multi-year effort to police the speech of academics—on anything from the 1619 Project to the BDS movement—that’s viewed as too far left. Critics have tried to force risk-averse university administrators into firing such professors for tweets that get caught in the right-wing media echo chamber.
All workers deserve just cause protections, and we need to fight for this right as a matter of principle and self-defense. This can be done without endorsing an alliance with the boss that enshrines a broad unchecked power to fire at-will employees.
[This article originally appeared at In These Times.]
The Powerful Movement To Micromanage and Defund Public Schools Has Been Awfully Quiet About Police
Police are violently suppressing street protests across the country in mutiny against community demands for democratic accountability and respect for human rights. Their brutal rejection of basic demands for greater oversight and penalties has fueled larger demands for defunding police departments, if not outright abolition and replacement with other bodies. In this context, some activists are calling for a crackdown on police unions, which they say protect police from democratic accountability.
That these calls are not being joined by a seemingly obvious ally is telling.
There is already a political movement that blames unions for the harm done to Black communities by publicly funded institutions. Its adherents argue that these public bodies misspend the money they have and deserve no additional resources. It is well-funded by the philanthropy world, hyped by celebrities, cloaked in the rhetoric of civil rights and showered with uncritical media coverage, and has been successful in bending city, state and federal budgets to its will. It calls itself “the “education reform movement.” For years it has ruthlessly pursued an agenda of removing practitioners and their allies from the decision-making process, impose strict and arbitrary accountability on teachers and students and experiment with market-based solutions. Its “no excuses” approach to testing and discipline has, among other travesties, exacerbated Chicago’s school-to-prisons pipeline and decimated New Orleans’ Black middle class
Its silence on the subject of police reform at this moment when millions of people are calling the question on whether Black lives really matter is deafening.
Where is charter-school-evangelist Stand for Children’s proposal for charter police departments, with entirely new forces of unarmed patrol members trained in de-escalation and restorative justice to serve neighborhoods who wish to opt out of failed systems of urban law enforcement? When will the Bill & Melinda Gates Foundation, which has poured money into complex and controversial teacher metrics, drop a bunch of grants to encourage cities to collect and publish individual cops’ arrest records and excessive force complaints, and to calculate the “value added” to the life of every civilian who was “served” by an officer for the decade that followed the interaction? Why is Michael Bloomberg not breathlessly calling for an end to “last-in, first-out” police layoffs by seniority, as he has for teachers, at this moment when so many police departments are finally facing the prospect of budget cuts?
The obvious truth is that the rich philanthropists who bankroll ed reformers have no problem with modern policing. It probably makes them feel very safe. Indeed, the group that cynically calls itself Democrats for Education Reform (because it is none of those things) put out a mailer in Washington, D.C., in the middle of a nationwide police riot, to blast democratic socialist city council candidate Janeese Lewis George over a call to “divest from [police] and put that money into violence interruption programs.” Their focus on education was always guided more by the goal of breaking the power of the teachers unions than actually addressing racism and inequality.
I think I’m legally obligated to mention here that In These Times’ indefatigable fact-checkers found an obscure blog post by Stand for Children’ Jonah Edelman gently inquiring whether his…I dunno who even reads this? Staff? Funders? Alex Russo?…were “willing to join us in supporting advocacy efforts for meaningful police reforms as well as common sense criminal justice reforms that will make our communities safer and more just?” Sorry, I couldn’t hear that one over the ringing in my ears from Stand for Children’s abysmal failure to say or do anything of substance on the question of over-policing black communities.
The rank hypocrisy of the education reform movement isn’t the only lesson here. The fact that critiques of police unions align so well with the education reform agenda should give left critics of police unions pause. Why the focus on police unions, instead of police budgets and mayors? What are you trying to accomplish? Why the attacks on the beleaguered AFL-CIO? It’s not like the largest police unions, the Fraternal Order of Police or Patrolmen’s Benevolence Association, are or ever have been affiliated with it. And one of the biggest police unions within the house of labor, the National Association of Government Employees, belongs to the Service Employees International Union, which quit the AFL-CIO a decade and a half ago.
AFL-CIO aside, why focus on police collective bargaining rights at all? What democracy-tramping language do police union contracts grant that city bosses weren’t already happily giving to beat cops before the rise of public sector unionism?
The union contract that covers Chicago cops has five times as many pages as the one that covers New York City cops. Many of those pages deal with discipline and expunging of records. The New York contract is shorter because police discipline is carved out of New York’s public sector labor law; it cannot be bargained over. And yet cops in New York are as shielded from disciplinary scrutiny as those in Chicago. An officer who kills in the line of duty is allowed several days to get his story straight before facing any questioning. That’s not in the contract. It’s the discretion of police brass and the mayor’s office.
Police unions are not nearly as much of a problem as their bosses—city leaders—who hide behind collective bargaining agreements because the uglier truth is that keeping Black residents in fear remains good politics with comfortable white voters. My own mayor, Bill de Blasio, is as guilty of this as your own mayor, wherever you live.
What we on the Left should avoid is arguing that police should be stripped of the right to have a union because every argument we make will be turned around on teachers, sanitation workers and other public employees. Go ahead and argue that police departments should be defunded and abolished. I’m right there with you. And budget cuts are a pretty convenient way for democratic representatives of We The People to engage in some hard bargaining against fairly tone-deaf and entitled cop union leaders. As any member of an education union can tell you, budget cuts are a really easy way for a city to demand concessions from unions. But what’s the point of taking away someone’s ability to bargain over sick days or the ability to get reimbursed for the cost of dry cleaning a work uniform?
Finally, the vast majority of police unions are estranged from the labor movement. But the handful that have chosen to affiliate with the AFL-CIO offer a point of engagement with police leaders who are indicating that they can listen and want to be heard. If police departments can be reformed (and we should be skeptical), community-centered collective bargaining could be a reasonable experiment. Although the toxic response by the President of the AFL-CIO’s largest police affiliate, the International Union of Police Associations, to AFL-CIO President Richard Trumka’s diplomatic statement on the intersection of Black civil rights and police union rights suggests that I’m probably engaging in wishful thinking.
[This article originally appeared at In These Times.]