Trump is all bluster on trade, but Democrats haven’t shown voters they can do better
[This article was co-written by Erik Loomis.]
Our commander in chief, noted admirer of military parades, might finally have his war: a trade war. Victims will include cheap domestic beer and foreign trade in motorcycles, blue jeans and bourbon. Whether Trump is destroying American manufacturing to “save” it remains to be seen.
Before proclaiming new tariffs on steel and aluminum last week (which he formally imposed on Thursday), Trump loudly initiated a process to renegotiate the North American Free Trade Agreement. These stunts highlight a continuing weakness of Democrats hoping for a blue wave in the midterm elections and beyond. Trump’s posturing on blue-collar jobs is a strong contrast to the Democratic Party’s seeming indifference to the working lives of industrial communities.
Trump is known to brag about job creation and take credit for the economic growth generated in the Obama administration, but his big talk is mostly empty. Despite his bluster about saving jobs at the Carrier plant in Indiana, the company has continued to move jobs to Mexico over the last year. Yet Democrats have struggled to counter Trump with any agenda on trade or jobs that touches the heart of working-class voters. For example, the earliest version of their “Better Deal” slogan (“Better Skills, Better Jobs, Better Wages”) was killed on Twitter by angry millennials for its victim-blaming implication that going to school for even longer will somehow make everything better.
Only through a vigorous program aimed at creating and protecting good jobs will Democrats build upon their recent special elections victories and win back the working-class voters they need to win in states such as Michigan, Wisconsin and Pennsylvania.
So-called free trade was only one of many reasons industrial jobs left these communities. Squeezing more seconds out of every minute and more hours out of every day of the workers remaining on payroll, replacing the rest with machines and shifting production to southern states to avoid the reach of unions arguably claimed more jobs than foreign competition. But coming in the middle of 40 years of this sustained corporate attack on good jobs, NAFTA has become emblematic for many Americans about how the rules of the system are rigged against them.
Adding insult to injury, the solutions that free trade evangelists peddled for how workers should adapt to the loss of jobs that provided decent incomes and retirement benefits have been haughty and tone-deaf. Relocate to where the “good jobs” are, like digital-era Okies! Borrow a ton of money and get a degree in computer science! It’s hard to overstate how furious people are at this kind of blithe disregard for their homes, their communities and their version of the American Dream. The Manhattan Institute’s Aaron M. Renn has noted the “rage of those left behind.” He concedes that arguments for the virtues of continued free trade “have no obvious connection to the daily experience of those living such a precarious existence that they can’t come up with $400 in emergency cash.”
Democrats went into the 2016 elections without a basic understanding about what an absolute curse word NAFTA is in many parts of the country, much to their peril. Most national polls show a narrow majority of voters have a favorable opinion of NAFTA, and college-educated and suburban voters whom Democrats counted on in 2016 seem broadly more supportive. But, according to Public Citizen, when the conversation is shifted to “outsourcing” of jobs, 60 percent hold a negative opinion, “with nearly half intensely negative.”
Trump understood and has exploited this rage by redirecting it at his favorite targets: foreigners and immigrants. The tariffs reinforce the mentality of too many working Americans that their ability to live a dignified life is under attack from nefarious foreigners. Regardless of the complexity of deindustrialization and trade policy, for many voters, this is a fairly simple question over what it means to be an American. Trump tapped into that in 2016 and could again in 2020.
To create an economic populism that can counter Trump while not demonizing foreign workers for American economic problems, Democrats need an easily understood set of programs that workers can believe in. That should start with a push for job creation for working-class people where they live. Young people growing up in Peoria and Youngstown need to have job opportunities in their communities. The original draft of the 1978 Humphrey-Hawkins Act — which commits the federal government to full employment — had a clause where workers could sue the government if they could not find a job. It is worth revisiting the full-employment ideas of the recent past as serious policy proposals for the future.
And there’s no shortage of work that needs to be done. Government investment in rebuilding the nation’s infrastructure should create high-paying jobs around the nation. Fighting to prioritize union labor for this infrastructure must be a priority. Building a green energy grid could both mitigate climate change and help rebuild the working class if union workers produced the steel in the turbines, built the energy grid and ran the daily operations.
Similar investment is needed to expand access to child care and elder care. Those could be good jobs, too, as could the millions of existing jobs in retail, hospitality and the service sector — if we raised the minimum wage and fixed our labor laws so that employers can’t run away from union wage and benefit standards. That would be a war worth fighting.
Beyond racial demagoguery, Trump’s approach to saving and creating jobs is all flashy announcements that do nothing to improve workers’ lives, taking credit for jobs and raises that were in motion before him and, of course, massive corporate giveaways. Yet, this could prove effective if voters in key states believe the president is fighting for them. Trump’s “handling” of the economy remains the one bright spot in his national polls. Despite his low overall approval ratings, his reelection prospects will likely revolve around the same small number of critical states as 2016, many of which Trump is targeting through his nationalistic trade agenda.
In an election that is really 50 mini-elections, a Democratic inability to articulate a strong jobs agenda could once again put Trump over the top in Pennsylvania, Michigan and Wisconsin, handing him an electoral college win even if he loses by even larger margins in California and New York. This could be true even if Trump’s agenda brings no steel jobs back to the United States — and it almost certainly will not. Moreover, in this year’s midterms, especially with Pennsylvania redistricting creating a number of newly competitive seats, a close race for control of the House could well rest on how Trump’s tariffs play in the steel communities of the Keystone State.
Democrats would be foolish to fall into the trap of offering voters a Trump-lite alternative on jobs. Tax breaks for corporations to “create” the jobs they need to hire anyway, retraining programs for jobs that don’t exist or pay poorly, and breast-beating posturing in front of shuttered factories are go-to’s for too many politicians — and underline much of the Senate Democrats’ current proposal for a “Better Deal” for workers. For the working class to once again identify as Democrats, the party needs to provide real solutions to their communities that center on creating and protecting good jobs where they live and make people believe the government cared about their lives once again.
[This article originally appeared at the Washington Post.]
If the Supreme Court rules against unions, conservatives won’t like what happens next
On Monday, the Supreme Court heard the case Janus vs. AFSCME, with the fate of the labor movement seemingly in the balance. At stake are agency fees — public sector unions can collect fees for service from employees who don’t join the union that represents them, which the plaintiff argues is an unconstitutional act of compelled speech.
The deep-pocketed backers of Janus aim to bankrupt unions and strip them of whatever power they still have, but if the court rules that an interaction a union has with the government is political speech, they might not be so happy with the results. Many have noted that such an overreaching and inconsistent decision could have unintended consequences by granting a heretofore denied constitutional right to collective bargaining and transforming thousands of workplace disputes into constitutional controversies.
What the Janus backers (and most commentators) miss is that agency fees are not just compensation for the financial costs of representation, but for the political costs of representing all the members in the bargaining unit and maintaining labor peace. As AFSCME’s attorney pointed out in his oral arguments, the agency fee is routinely traded for a no-strike clause in most union contracts. Should those clauses disappear, employers will have chaos and discord on their hands.
American labor laws, and the employers who benefit from them, prefer that if there’s going to be a union, only one should serve as the exclusive representative of all eligible employees in a workplace. That scheme imposes on unions a legal obligation to fairly represent all members of the bargaining unit, and a political imperative to defend the terms of any deal as “the best we could get” (even if it includes concessions on benefits and work rules). It rewards the unions with a guaranteed right to exist and a reliable base of fee-paying membership. But it rewards employers with the far more valuable guarantee of the right to direct the uninterrupted work of the enterprise while union leadership has to tamp down rank-and-file gripes and discord for the length of the contract.
The combination of exclusive union representation, mandatory agency fees, no-strike clauses and “management’s rights” are the foundation of our peculiar labor relations system. No other country structures its labor relations system quite like this. Knock one part out, as the Janus plaintiffs aim to do with agency fees, and the whole system can fall apart. Employers will not like the chaos that this will bring.
Before this system evolved during the New Deal, multiple unions did compete in individual workplaces for dues-paying members and shop floor leadership. They would compete over who made the boldest wage and hour demands and who led the most disruptive job actions, as well as who could forge a more productive relationship with management or just flat-out take a sweetheart deal. But no deal could bring lasting labor peace, as any union cut out of the deal had a political need to disparage its terms and agitate for a fresh round of protests. In the New York City hotel industry, for example, rival anarchist and Communist unions competed with a number of craft unions. Their one-upmanship resulted in half a dozen industry-wide strikes between 1911 and 1934, until the industry voluntarily recognized one merged union council in 1938.
World War II strained this system. As a show of patriotism, unions pledged not to strike to maintain defense production, but were rewarded with federally enforced wage freezes to combat inflation. Workers who were squeezed by rising consumer prices found themselves unable to file a grievance if they were fired for engaging in wildcat strikes; many chose to quit their unions in protest. With their leadership and revenue under threat, union leaders considered abandoning their no-strike pledge.
To maintain production and labor peace, federal arbitrators began granting unions a “maintenance of membership” clause in contracts, which compelled union members to continue to pay dues during the terms of a collective bargaining agreement. That evolved into today’s union shop and agency fee. Public-sector labor laws, which are immediately at issue in Janus vs. AFSCME, are modeled on private-sector labor law and ruled by the same bargaining dynamics.
If the Supreme Court rules against AFSCME in Janus, many unions will abandon exclusive representation altogether. Their primary motivation will be avoiding the “free rider” problem — being required to expend resources on workers who opt out of paying anything for those services. And new unions will form to compete in that abandoned space.
The first unions to compete will probably be conservative. In non-bargaining Southern states that do not recognize formal union representation, organizations already exist that vie with teachers unions by offering minimal services and the promise to refrain from political activity. And right-wing foundations are paying for “organizers” to go door-to-door to convince union-represented workers to stop paying dues where they no longer have to. Would anybody really be surprised if rich and powerful funders encouraged new anti-union “unions” to more closely align members with the GOP agenda?
Those will eventually be followed by new unions that are more left-wing or militant (or at least crankier). They will not be satisfied with the current work rules and compensation and will have little incentive to settle.
Under the current scheme, those kinds of differences of opinion are aired in winner-take-all leadership elections between competing factions. A post-Janus system of voluntary representation would encourage many opposition caucuses to break away and form alternative, minority unions for their members only.
The solicitor general of Illinois — indirectly a party to the Janus case — warned in Monday’s oral arguments “that when unions are deprived of agency fees, they tend to become more militant, more confrontational.” And AFSCME’s counsel warned about the thousands of contracts that would have to be renegotiated in a climate where an agency fee is no longer a trade for a no-strike pledge, raising “an untold specter of labor unrest throughout the country.”
Although Janus vs. AFSCME applies to public-sector unions, this same logic applies to the majority of states that have passed “right to work” laws prohibiting mandatory union fees in the private sector. And the big-money, right-wing plotters who have been pushing Janus are gunning for the blue states, too.
“No-strike” clauses buy employers a period of guaranteed labor peace. They would be basically unenforceable if workers could quit a voluntary association to engage in a wildcat strike, or join an alternative union that eschews signed agreements to have the freedom to engage in sudden unannounced job actions.
Many union organizers, frustrated by the unequal application of constitutional rights in labor relations and hungry for breakthrough strategies to revive the labor movement, will welcome this kind of chaos. Conservatives who just want to deprive unions of financial resources for short-term partisan gain should think twice about this attack — if the court rules their way, they will not like what comes next.
[This piece originally appeared at the Washington Post.]
Here’s How a Supreme Court Decision To Gut Public Sector Unions Could Backfire on the Right
Janus v. AFSCME, which begins oral arguments on February 26, is the culmination of a years-long right-wing plot to financially devastate public-sector unions. And a Supreme Court ruling against AFSCME would indeed have that effect, by banning public-sector unions from collecting mandatory fees from the workers they are compelled to represent. But if the Court embraces the weaponization of free speech as a cudgel to beat up on unions, the possibility of other, unintended consequences is beginning to excite some union advocates and stir fear among conservative constitutional scholars.
The ruling could both wildly increase workers’ bargaining power and clog the lower courts with First Amendment challenges to routine uses of taxpayer money. At a minimum, it has the potential to turn every public sector workplace dispute into a constitutional controversy—and one Midwest local is already laying plans to maximize the chaos this could cause.
Toward labor’s bill of rights
From the earliest court decision dealing with workers’ protest activity—the 1806 Cordwainers Trial in Philadelphia–courts have strenuously avoided applying the First Amendment to unions. Instead, conservative courts treated unions as criminal conspiracies that interfered with employers’ property and contract rights.
I have been arguing that unions and their allies should be challenging the most unequal aspects of labor law as violations of our constitutional rights. Currently, employers in the private sector have a legal right to force employees to attend mandatory anti-union presentations, on penalty of firing. Workers can also be fired for making “disloyal” statements, even in the course of otherwise protected concerted activity. Meanwhile, the government has restricted the scope of issues that unions can legally compel employers to bargain over.
All of these practices are vulnerable to First Amendment challenges as government restrictions of workers’ speech. They become more vulnerable if the Supreme Court rules in Janus that every interaction that a union has with a governmental subdivision is inherently political.
Even more vulnerable are anti-union laws in the public sector. Take Scott Walker’s Act 10, which forbids unions from making bargaining proposals over anything other than wages that don’t exceed the cost of living. Or the New Jersey case law that forbids teachers unions from even proposing restrictions on class size. How are those not explicit restrictions on workers’ speech?
The most common objection to this kind of thinking on the Left is that a judiciary that could buy such a craven argument as Janus will refuse to take the precedent to its logical conclusion and shamelessly waving away workers’ free speech rights. That may be true, but there is a decent chance that the next couple of federal elections could bring a “blue wave” that will alter the ideological make-up of the courts for decades. Janus could hand new liberal majorities a roadmap for restoring a legal balance of power between corporations and workers. It’s enough of a possibility that conservative legal scholars have begun paying attention to the case, and they see the potential peril for their cause.
Every workplace dispute, a constitutional controversy
Amicus briefs in the Janus case have been rolling in since the summer. These briefs are filed by scholars and organizations who are not parties in the case, but who nevertheless have strong opinions about its outcome. They may (or most likely may not) be read by the justices, but they could influence questions and oral arguments at the hearing.
Most of the amici have been from the usual suspects. Right-wing think tanks are spouting the same tired clichés and intellectually bankrupt arguments. Union advocates question the standing of the plaintiff to even mount a First Amendment claim, argue in favor of respecting long-settled precedent, or—in a new argument—suggest treating agency fees as a kind of tax .
But two briefs stand out, both for what they say and for who is saying it.
One brief, filed by influential right-wing libertarian ideologues Eugene Volokh of UCLA and William Baude of the University of Chicago, actually argues for strengthening the 40-year-old precedent that Janus aims to overturn. The 1978 Abood decision was wrong, they argue, to moot the question of whether workers compelled to pay their fair share for union representation might have a legitimate First Amendment objection to how a union might spend any portion of their fees. That opened the door, Baude and Volokh say, to taxpayers making line-by-line objections to how the government spends its money. “Just as non-union members may find many reasons to disagree with a public union’s speech, there are countless grounds to object to other speech supported by government funds,” they write.
Pointing to government propaganda urging military enlistment and purchase of war bonds, the scholars note that there has never been an option for taxpayers to opt out of funding such practices with which they may disagree, nor even any kind of “equal time” right of rebuttal. A ruling for the plaintiff in Janus could tug at the loose threads of the very notion of a common interest in government.
Another amicus, filed by law professors Charles Fried of Harvard and Robert C. Post of Yale, warns of undermining the precedent set in the 2006 Garcetti v. Ceballos. That decision gave public sector employers “the broad discretion they need to manage their workplaces” by permitting them to compel employees to comply with directives they find politically objectionable. Ruling in favor of Janus, they warn, “would therefore threaten to transform every workplace dispute into a constitutional controversy.”
Fried served as Solicitor General under Ronald Reagan, so his brief likely carries more water with the conservative justices than pro-union arguments for status quo. Furthermore, swing Justice Anthony Kennedy wrote the majority decision in Garcetti, so he would presumably take interest in how the Janus case could blow his work up.
A lot of time and money and energy
One local union in the Midwest is champing at the bit to turn every disagreement they have with the bosses into a constitutional controversy. A January blog post by the Joliet, Ill.-based Operating Engineers Local 150, titled, “Union Busters Set Themselves Up for Janus Backfire,” was widely circulated in #1u social media circles. In it, the union eyes overturning the laws that have made public-sector bargaining illegal in many jurisdictions. It also suggests that workers should be able to opt out of paying for their pension funds’ lobbying expenses and taxpayers opt out of funding municipal lobbyists (the American Legislative Exchange Council (ALEC), for example, receives indirect support from many taxpayer-funded organizations.)
While the gauntlet thrown down by Local 150 was certainly exciting for the few minutes it took to read their fantastical plan to make utter chaos out of a post-Janus world, many readers were left wondering, Are these guys for real?
“We’re going to immediately respond by filing suits to say these laws are unconstitutional,” confirms Local 150 president Jim Sweeney. “Maybe we get screwed again, but we’re going to put corporate powers in a position where they’re forced to explain why workers should only have free speech when it serves them.” So, file that answer under: Hell to the yes.
Local 150 has a track record of pushing the envelope on legal arguments in defense of unions. They’re the union that filed Sweeney vs. Pence, a federal court challenge to Indiana’s “right-to-work” law. Although ultimately unsuccessful, it resulted in a strong dissenting opinion from Chief Judge Diane Wood that forcing unions to spend resources on non-members without compensation is an unconstitutional “taking” under the Fifth Amendment. That has become the legal argument that could overturn “right-to-work” laws around the country, with several cases wending their way through federal circuits at this very moment.
The union has already sent a formal demand letter, chock full of legal citations, to the Illinois Municipal Retirement Fund. In it, they complain that their members’ mandatory 4.5 percent retirement contributions are going towards Bank of America lobbying and demand to opt out.
More letters are on the way. Local leaders are hoping to trigger a few rounds of panicked, “WTF?” phone calls to Illinois Gov. Bruce Rauner and other Janus cheerleaders.
If enough unions follow Local 150’s lead and make enough hay out of Janus—or even pose a credible threat to do so—don’t be surprised if more conservative jurists rethink their strategy.
[This article originally appeared at In These Times.]
Beyond Bread and Butter: Labor Disputes for Social Justice
Football player Colin Kaepernick’s epic protest for Black civil rights has finally become an explicit labor relations dispute. As hundreds of players spent this season taking a knee during the national anthem in solidarity with Black Lives Matter and in defiance of Donald Trump, Kaepernick – who inspired the actions – was not there. The quarterback’s contract with the 49ers came to an end in between seasons. Although he is ranked as better than half of all players starting in that position this season, no team has signed him.
In response to this obvious retaliation by team owners for his political activity, Kaepernick has filed a grievance under the contract’s prohibition against collusion, and the players union has offered words of support.
The grievance, and the collective protest that Kaepernick’s symbolic action sparked, suggest two areas where unions should be doing more work to push beyond our traditional issues of wages and benefits. We should be fighting more for our right to free speech and greatly expanding the scope of issues that we bring to the bargaining table.
Consider the case of the Twin Cities-area Jimmy Johns sandwich chain, which fired workers who protested their employer’s sick leave policy. Actually, “policy” is a tad generous. Their boss’s rule was: come in to work – sick! – unless you can convince a coworker to cover your shift. When workers circulated leaflets to customers in protest, Jimmy Johns fired the organizers. Obama’s NLRB recognized this as retaliation for protected concerted activity and ordered Jimmy Johns to rehire the activists.
This summer, however, a federal circuit judge ordered the workers to remain fired because he did not approve of their speech. The workers, he ruled, were being disloyal when they aired Jimmy Johns’ dirty secrets in public. (Unsurprisingly, the judge had little to say about the fast food chain’s need to reciprocate this loyalty by letting its workers take a day off when they’re sick!)
Incredibly, the judge was citing a half-century-old Supreme Court precedent. In that case, called Jefferson Standard, the Court majority thundered, “There is no more elemental cause for discharge of an employee than disloyalty to his employer.” But how can workers call for improvements at work and disagree with their boss’ priorities without committing acts of “disloyalty?” This is one of the many laws that ties union organizing campaigns in knots.
It’s possible to consider Kaepernick’s protest “disloyal” – not to the nation or the armed services, as the president and right-wingers whined, but to the reputation of the National Football League for highlighting that the game has devolved into a spectacle of mostly black and brown men breaking their bodies and brains for a largely white audience of consumers who are so easily offended by a silent and respectful request to respect the basic human dignity of people of color.
It’s a little-known fact that only very recently that the NFL began making players come out on to the field during the national anthem, part of a lucrative advertising contract with the Department of Defense. That makes Kaepernick’s taking a knee a protest over a change in working conditions, albeit not one that his union has a legal right to force the league to bargain over.
The obligation to bargain in good faith has been drastically narrowed by the Supreme Court to apply only to “mandatory” subjects of bargaining like wages, hours and some working conditions. “Permissive” subjects carry no legal obligation to bargain, and the Court has privileged “managerial decision, which lie at the core of entrepreneurial control” in this manner.
But the “voice at work” that people want include a say in those core decisions. Teachers form unions to gain a say in advanced placement offerings, student discipline and extracurricular activities. Nurses organize to gain a voice in staffing ratios, treatment regimens, patient billing and discharge.
Some unions are pushing well beyond the legal scope of bargaining. In a project called Bargaining for the Common Good, key unions in some cities align their contract expirations and bargaining demands with community demands advanced by partner organizations. Through protest actions, they try to drag the actual power brokers – banks, multinational corporations and large political donors – to the table along with the direct employers.
One common demand by teachers unions has been to stop banks from foreclosing on family homes during the school year. Teachers in St. Paul, MN, in tight partnership with community organizations fighting foreclosure, forced their district to divest from banks that continue to do so. They continue to press for other demands, including removing police from schools and expanding recess and the arts. This union was also in the streets in support of Black Lives Matter after police shot and killed one of their own members, Philando Castille.
Much as Colin Kaepernick didn’t show up for work merely focused on how to win his team’s game, these unions go to the table concerned about the health of their communities. To fight back against the relentless corporate agenda, workers cannot surrender their free speech in the workplace nor limit their demands for a better world to simple shop floor issues.
[This article originally appeared in the January 2018 issue of The Unionist.]