Review of Sarah Jaffe’s “Necessary Trouble”
Something is happening. Socialism is no longer a dirty word (the “S-word”), but something a sizeable portion of Americans tell pollsters is their preferred vision for society. It’s no longer an anachronism to speak of “the Left.” A brave and quickly organized movement for black lives has not only sparked a new civil rights movement but has gotten many of us to see the criminal justice system for what it is: the evolution of Jim Crow. Oh, and a hell of a lot more workers are striking than before.
There have been attempts to describe this emerging movement for social justice in book form before. The latest, Necessary Trouble: Americans in Revolt by Sarah Jaffe, is the best so far. The Nation Books publication was released Tuesday.
Jaffe, a freelance writer whose work has appeared everywhere from In These Times to The Guardian and The Atlantic, is a leading light in the new generation of labor and social justice reporters. It wasn’t that long ago that if you had a campaign you wanted to get in the press you had exactly two full-time labor reporters to lobby to convince them that your campaign was interesting enough to warrant fighting with their editors to get it in print.
Now our movement has a slew of journalists who dig deep and follow campaigns and movements over the long haul. The result is not just that good campaigns get press attention, but that movements grow and expand as people read about them and get inspired to join or do something similar.
Jaffe has a good eye for characters and a great ear for what they have to say, making Necessary Trouble a very engaging read. She weaves a narrative that connects the 2008 economic collapse to the outrage that gave rise to the Tea Party, the Wisconsin protests against Scott Walker’s union-busting agenda and Occupy Wall Street. The movement for black lives, the Occupy Homes protests against bank foreclosures, the occupation of the Republic Windows and Doors factory in Chicago, student debt protests, the Chicago teachers strike(s) and the rolling strikes led by OUR Walmart and the Fight for $15, Jaffe argues, are all connected to a growing sense among Americans that the rules of the system are rigged against the working class—and doubly or triply so against workers who are black, queer, young, old, immigrants or women.
These movements are often “analyzed as if they had each happened in a vacuum,” she writes. “But in fact, as I followed them through the years, I would find similar patterns and even direct connections between them.”
The connections come, in part, to activists’ increasing understanding of “intersectionality.” That is, according to Jaffe, a term used by protestors to describe the way that people experience different forms of oppression (say, racism and sexism) as “intertwined, overlapping experiences.”
Intersectionality has become a mainstream enough concept that even Hillary Clinton felt the need to pay lip service to it on the campaign trail. “This generation,” notes City University of New York professor Ruth Milkman, “uses the word intersectionality as if it were a household label.” Jaffe makes a good case that this is a strength of the emerging movement.
Another concept that Jaffe emphasizes in her book is “horizontalism” in social movement structures. She defines the term as broad-based democratic decision-making without formalized leadership—where any member is free to speak out, propose and carry out a movement action.
“The ideal of horizontalism,” Jaffe writes “is connected to the sense that democracy, in this country, is failing, or perhaps, as some are coming to believe, that it never really worked.”
She points to Occupy Wall Street as the most obvious example of the movement’s horizontalism and experimentation with democracy. Occupy, I must say, never struck me as particularly new. It’s more like a welcome return of the Direct Action Network (DAN). Never a formal organization, the activist network was responsible for the 1999 Seattle protests that shut down a meeting of the World Trade Organization and went on to disrupt meetings of the World Bank and International Monetary Fund and the Republican and Democratic conventions.
The lack of elected leaders, the consensus decision-making with “blocking concerns” and “stand asides”—even the “spirit fingers” to silently mark agreement—all of it first appeared in the DNA of DAN. The fact that a decade and a half later we are still reinventing the same wheel suggests the need for some more permanent organizations.
Jaffe agrees. “The next challenge for the movements,” she writes, “will be creating organizations that last, that suit the needs of twenty-first-century troublemakers, that can be flexible and still enduring, that can overlap and connect up with one another and create more long-term plans for the future they want to see.”
There is a deep-seated aversion to formal organization on the Left. Part of it is, as Jaffe notes, the fear of a movement becoming dominated by “charismatic leaders.” But part of it too, I think, is charismatic leaders not wanting to deal with the indignities of democratic accountability.
I worry that Jaffe’s readers will take the word “horizontalism” and use it to justify and fetishize a lack of formal organization. A better word, I think, is one she quotes to describe the movement for black lives: “leaderfull.” That is a concept that doesn’t preclude dues-paying membership, elected committees and formalized leadership. It’s more about maintaining a culture where good ideas, speakers and writers that come “from the floor” are not merely tolerated but actively solicited.
Two good examples of leaderfull organizing that Jaffe highlights come from labor. In 2008, the workers at Chicago’s Republic Windows and Doors factory engaged in a sit-down strike. Their leaders at the United Electrical, Radio and Machine Workers of America union (UE) had proposed a small, symbolic civil disobedience action. The workers took that idea and ran with it—locking the bosses out and eventually winning their owed severance. They even got a shot at running the business themselves as a cooperative.
The second example was in 2012, when the Chicago Teachers Union (CTU) struck against Rahm Emanuel’s giveback demands. Rank-and-file activists engaged in some pretty deep coalition building and picket captains were given wide latitude with how to conduct their protests. The result was a traditional union strike that got converted into a community protest against austerity and corporate “ed reform.”
There’s no shortage of formal structure and elected leaders in labor. And while the UE and CTU are obviously exceptional unions, leaderfull organizing is more prevalent (and certainly has more potential) than is commonly recognized.
To her credit, union activists and campaigns are described throughout Jaffe’s narrative as essential to a movement fighting for an end to injustice and inequality. But I’m slightly disappointed that she didn’t delve into the recent rise in strike activity. Many of these strikes—like at Kohler and Verizon—were big, visible wins for workers.
There’s been so much written about worker centers and “alt labor” that it’s beginning to skew the market for labor writing. Yes, there’s a lot of action in alternative models of worker organizing, but old (not so) Big Labor is also showing encouraging signs of renewed militancy. Activists will learn from each other by example, and books like this must connect the dots.
To that point, Jaffe tells a delightful and inspiring story about the first night that then-New York Mayor Michael Bloomberg attempted to clear an Occupy encampment at the newly rechristened Liberty Park, near Wall Street, because it had to be cleaned. Occupy activists spent the night scrubbing the park down and, at dawn, were joined by hundreds of union activists, in their respective union colors, to stare down riot police. Bloomberg blinked and ordered law enforcement to withdraw. Jaffe reports that a burly orange-shirted member of the Laborers’ union turned to her to say, “This is power.”
[This article originally appeared at In These Times.]
When the Hell Did the NLRB Become More Activist Than Labor?
When the hell did the federal government get bolder than most labor unions about asserting the legal rights of workers?
On Monday, in a 3-1 ruling, the National Labor Relations Board (NLRB) reversed a Bush the Younger-era precedent that gave employers a say over whether temporary and subcontracted workers can be included in the same bargaining unit as the regular, full-time employees with whom they work beside. Go figure, most employers said “no” to the proposition that people who work shoulder to shoulder, but are paid from separate checkbooks, could bargain together in the same union. But the new Miller & Anderson, Inc. decision could force subcontractors to bargain with a certified union over the wages and working conditions determined by the controlling employer.
The ruling comes hot on the heels of the Board’s American Baptist Homes decision. That case re-established a balancing test for whether a boss’ employment of permanent replacement strikers is actually motivated by a desire to bust a union —which goes a long way towards restoring a legal right to strike.
And, of course, the Board’s attempt to expedite representation elections by holding frivolous management objections in abeyance until after the workers vote nearly broke the Congress. (Seriously, if you want to drink some delicious boss’ tears Google “quickie NLRB election.”)
As veteran union organizer Stephen Lerner succinctly puts it, “Unions have been significantly hobbled by the legal regime, and a lack of imagination to challenge it.” I have advocated that unions should pursue an agenda of judicial activism. These recent NLRB actions prove that the time is ripe to challenge the rules of the system that keep unions shackled. I’ve spent most of my career complaining about how slow and ineffective the NLRB is, as have most union organizers. That bias should not blind us to the opportunity of the moment.
Grandma’s pot roast
After eight years of a Democratic administration, and—with the implosion of Trump’s GOP—the reasonable expectation of at least another eight years, we finally have a labor board that will no longer shrug and sigh that it “is what it is” when it comes to the unfair rules of the system.
But are union leaders and staff bold enough to reject the “is what it is” mentality? There’s an analogy that makes the rounds in Cornell University’s labor extension programs. It involves a man sharing his grandma’s pot roast recipe with a friend. The first step of the recipe calls for cutting the ends off the raw rump, which prompts the friend to ask, “Really? Does that, like, make the roast more tender … or what?”
The man sharing the recipe, who had never questioned why it called for the ends to be cut off, calls around to his parents, siblings and aunts and uncles to find out why grandma’s recipe does so. Finally, he gets his grandma on the phone and she says, “Oh, that’s because the grocer only sold rump roasts that were too big for our roast pan.”
This is the most devastatingly on-the-nose analogy for how unions engage in long-term strategy. We hope and assume that sometime in the past, someone smarter than us considered all the possible options and settled on what we are currently doing as the best possible choice.
What if I told you … that isn’t what it is?
A good case in point is employers’ “right” to force employees to attend mandatory anti-union “captive audience” meetings during a union organizing drive. Most organizers accept that it “is what it is”—another fucked up way that NLRB election rules are rigged so that unions lose a ton of representation elections. (Although, it should be noted that unions used to lose half of all representation elections during the Clinton I-era and now tend to win about two-thirds of elections, thanks partly to more strategic organizing choices and partly to the NLRB’s recent return to its historic mission of encouraging unions and collective bargaining.)
Meanwhile, apparently, the NLRB has been on the record for half a century as inviting unions to make a case that there should be some kind of equal access standard for unions if an employer forces workers to attend mandatory meetings on the subject of union representation. A group of 106 leading labor scholars, led by Charles Morris and Paul Secunda, have filed a petition at the NLRB to re-establish just such a rule.
The speculation is that the NLRB is unlikely to act on Morris’ and Secunda’s petition, as it prefers to act on union (or employer) initiated procedural cases. The Miller & Anderson decision came in response to a union representation petition; the American Baptist Homes decision in response to an unfair labor practice charge. To win equal time, a union will have to file exceptions to a losing representation election in which the employer made use of mandatory captive audience meetings. Surely, and sadly, someone reading this article has recently lost an election under such circumstances, and can take the initiative.
Similarly, most unionists just accept that an employer has a “right” to permanently replace striking workers. For example, Jane McAlevey, in her organizing memoir Raising Hell (and Raising Expectations), incorrectly chalks it up to a law signed by Ronald Reagan. It wasn’t. It was a poorly decided 1938 Supreme Court case that was dusted off in the 1980s. Like referees in a schlocky Hulk Hogan wrestling match, Reagan’s NLRB appointees looked the other way as employers engaged in a coordinated union-busting drive that weaponized the unfrozen caveman Supreme Court precedent.
After an unsuccessful attempt to legislatively ban permanent replacements during the first Clinton era, most unions seem to have shrugged and accepted that workers can legally lose their jobs for striking—that is until the NLRB reverted to the pre-Reagan rules. But the Board can go further. The crucial phrase in that 1938 Court decision, NLRB vs. Mackay Radio, is that an employer can hire permanent replacements if it is necessary “to protect and continue his business.”
In other words, to meet the Supreme Court standard, the NLRB could force Verizon or any other Fortune 500 company to prove that they would otherwise go out of business unless they can hire scabs to steal the jobs of their striking workers. Good luck with that. Unions should get in the habit of filing unfair labor practice charges any time a boss advertises for scabs.
The NLRB even potentially has the power to reverse “Right to Work.” The statutes, passed on a state-by-state basis, aim to prevent unions from collecting fees from all of the workers they are legally obligated to represent. But the federal law that allows “Right to Work” statutes has, until recently, faced very few judicial challenges. One open question is whether the legislative intent of the Taft-Hartley act was merely to ban union membership as a condition of employment—not whether unions could negotiate mandatory fees for grievance representation services. Seattle University Associate Professor of Law Charlotte Garden notes that the NLRB could approve such a formula, and has indicated openness to cases arguing for it.
Only 3,114 days to go
Tom Perez, the current Secretary of Labor, is apparently a bit notorious for noting exactly how many days the Obama administration has left (190, as of today) to make any gains for working Americans. Perez, who has milked every ounce of executive authority that his department has in the pursuit of that goal, is most well known (on Wall Street, at least) for getting Obama to sign an executive order that extended overtime protections to salaried workers earning less than $47,476 per year (up from the mid-1970’s standard of $23,660). In so doing, he won a pay raise, or reduction in hours, for millions of working Americans. And for that mitzvah he is reportedly on the shortlist for Hillary Rodham Clinton’s vice-presidential pick. And, honestly, choosing Perez is Clinton’s last chance to disprove Erik Loomis’ contention that she’s “a Martha Coakley-level campaigner with a once-brilliant campaigner for a husband.”
If labor leaders allowed themselves enough optimism to last not just until the end of Obama’s term but to anticipate at least another eight years of a Democrat in the White House, while maintaining the urgency with which Secretary Perez conducts himself, imagine what we could win for working families. If I didn’t mess up my math, that means we have at least 3,114 days left of an activist, majority-Democratic NLRB with which to press our case for a restoration of workers rights.
Because here’s the thing: challenging bad labor law involves breaking the law. When unions violate the law in pursuit of a voice at work for unorganized workers (by, say, engaging in solidarity boycotts, waging partial strikes or making “permissive” community goals their essential bargaining demands), the NLRB is the sheriff that is tasked with taking them to court. Is it crazy to think that this NLRB might treat bad labor law the way that Obama’s Justice Department treated the Defense of Marriage Act? In the court because they have to be, but conceding that the law is unjust?
Grandma’s pot roast recipe should be revised for our newly remodeled kitchen.
[This article originally appeared at In These Times.]
Making Abortion Rights Real
The week began on a surprisingly strong note for reproductive justice advocates, as the US Supreme Court, by a 5–3 margin, overturned Texas’s draconian House Bill 2.
The law, which Wendy Davis famously filibustered in her pink tennis shoes, purported to protect women’s health by requiring that health clinics providing abortion services “meet the standards for ambulatory surgical centers, including regulations concerning buildings, equipment and staffing” and that “doctors performing abortions . . . have admitting privileges at a nearby hospital.” These regulations, which the Supreme Court found on Monday to be an “undue burden” for those seeking an abortion, would have shuttered half of the Texas facilities that perform abortions.
Activists are rightly celebrating the ruling as a win for abortion rights. In Texas and elsewhere, women seeking to terminate unwanted pregnancies likely won’t have to contend with the anti-abortion statutes passed since the 2010 Tea Party wave.
But the decision in Whole Women’s Health v. Texas, much like the 4–4 tie in the recent anti-labor Friedrichs v. CTA case, is more a reprieve than an absolute victory. Rather than overturn an earlier, poorly decided decision, the Court potentially locked in the justification for restricting the unalloyed right to an abortion by ruling that the Texas law was simply an overreach.
That earlier, poorly decided case, 1992’s Planned Parenthood v. Casey, represented the culmination of the Reagan-Bush-era legal drive to overturn Roe v. Wade. In a 5–4 decision, in which Anthony Kennedy cast the decisive vote, the Court upheld a Pennsylvania law that mandated a twenty-four-hour waiting period, parental consent for minors, and spousal notification before a woman could obtain an abortion.
While the ruling nominally rendered Roe v. Wade a settled precedent (Antonin Scalia and Clarence Thomas voted against it for that reason), it opened the door for state law restrictions, as long as they didn’t present a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” In other words, Casey simultaneously protected the right to an abortion and gutted it.
This is strikingly similar to how the Supreme Court has handled labor rights. In 1937, Congress passed the National Labor Relations Act, which enshrined workers’ right to form unions and go on strikes, and gave the federal government the power to go after bosses who interfered with those rights.
But one year later, a key Supreme Court decision, which was similarly celebrated at the time, protected the right to strike while utterly gutting it. In Mackay Radio v. NLRB, the Court upheld the law and ordered the employer to reinstate four striking workers who had been fired.
Yet despite the statute’s guarantee that “Nothing in the Act should be interpreted to interfere with or impede or diminish in any way the right to strike,” as well as its explicit protection of striking workers against “discrimination,” the Court held that in order to “protect and continue his business,” the boss could permanently replace workers in the order of reserve seniority. Employers, in other words, could get rid of striking workers as long as it didn’t present a substantial obstacle to exercising their union rights.
Obsessive union-busters seized on the new precedent. In one important case, an employer tried to give its scabs “super-seniority” — workers who had gone on strike would get laid off first, even years after the job action. The Court struck down that action in 1963, ruling that it was too discriminatory and “not proper under Mackay.” But like Whole Women’s Health, the Court’s Erie Resistor decision further legitimized restrictions on a fundamental right by declaring that a certain set of actions simply went too far — not that the right was improperly restricted in the first place.
A ticking time bomb for decades, the so-called Mackay Doctrine was deployed by employers in the 1980s and 1990s as part of a broader union-busting campaign. Beginning with a strike at the Phelps-Dodge mining corporation in 1983, employers bargained hard for drastic concessions in pay, benefits, and working conditions; dared their unions to strike; hired scabs to take their jobs; and after twelve months encouraged the replacement workers to vote to decertify the union. This is the union-busting playbook that has decimated labor’s ranks and paved the way for massive income and wealth inequality.
Casey has worked out about as poorly for reproductive rights advocates.
The past quarter century has seen a sustained drive to place all kinds of limits on reproductive rights: waiting periods, forced “counseling,” trans-vaginal ultrasounds, burdensome zoning regulations. Already more than a third of women seeking an abortion have to travel at least twenty-five miles to find a facility. Add in mandatory waiting periods (still constitutional, alas), and you’re talking about entire days off from work, travel and motel expenses as well as the cost of the procedure itself, which is often not covered by insurance. (Now, as ever, is an excellent time to donate to your local abortion access fund.)
For far too many working-class women, the right to an abortion exists on paper, rather than as a genuine right — just as for many workers, the right to strike remains purely formal.
So by all means, let’s breathe a sigh of relief. Let’s take some time to celebrate. This was supposed to be a much worse Supreme Court term, and maybe, just maybe, we’re seeing the beginning of the end for constitutionally accepted restrictions on abortion rights.
But the labor movement’s experience with Mackay should give us pause. Even if the heat dies down on new anti-choice efforts, if the now-legitimized Casey precedent is not overturned, and soon, it could be used as legal ammunition in the next massive assault on reproductive rights.
The next president could appoint as many as three Supreme Court justices — totally changing the high court’s makeup and voting dynamics. We need to begin thinking beyond the defensive strategies of Friedrichs and Whole Women’s Health and start planning campaigns of judicial activism to overturn rotten Court precedents and put women’s fundamental rights on firmer legal footing.
[This article originally appeared at Jacobin.]
The Right to Strike Must Mean the Right to Return to Work After a Strike
With the decisive victory for union members at Verizon, 2016 is already on pace to be the second year in a row where recorded strike activity has increased over the previous half-decade. Now, a new decision from the National Labor Relations Board (NLRB) could restore legal job protections for striking workers, making workplace job actions a more common—and more powerful—union strategy.
Workers simply do not have a meaningful right to strike if they do not have a right to return to the job when the strike is over. But, thanks to the judicial gutting of labor rights, going on strike is a high stakes proposition for American workers. Not only do striking workers lose out on pay and benefits during the strike, but they run the risk of losing their jobs entirely. So, while work stoppages are on the rise relative to the last few years, they are at historically low levels compared to the post-war era when wages actually rose with corporate profits.
In a new case, American Baptist Homes, the NLRB attempts to strike a balance between workers’ statutory right to strike and protection against employer retaliation for union activity and a boss’s Supreme Court-granted “right” to hire permanent replacement workers “to protect and continue his business.” Thankfully in this case, the exceptionally arrogant and stupid Executive Director of the employer in this case and her counsel went on the record that their use of permanent replacements was meant to “punish the strikers and the Union” and to discourage future strikes, as Benjamin Sachs has detailed.
For much of the last four decades, the NLRB has simply taken a boss’s word that the permanent replacement of striking workers was necessary to continue her business. Now, the NLRB has declared that it will return to an earlier, Supreme Court-approved standard in which employers’ rights to permanently replace striking workers may be “wholly impeached by the showing of an intent to encroach upon protected rights.”
In other words, the NLRB will investigate when an employer hires scabs—and they better have a good case. Since most strikes these days are defensive—pushing back against employers’ attempts to gut work rules, slash pay and benefits and bust the union—this is a big deal.
“…to interfere with or impede or diminish in any way the right to strike.”
A forthcoming book by labor law scholar Julius Getman, The Supreme Court on Unions: Why Labor Law is Failing American Workers, explores in depth the “judicial arrogance” of the court in substituting their own ideology and facts when shaping the labor law regime. It is particularly well timed as we look forward to a profound change in the Court in the wake of Justice Antonin Scalia’s death (although Getman clearly did not anticipate Scalia’s timely passing when he wrote the book).
One aspect that stands out in Getman’s book, to this writer at least, is the shakiness of the legal precedent that allows employers to permanently replace striking workers. It begs for a campaign of judicial activism to repeal it.
This legal vulnerability of strikers was established by a 1938 Supreme Court decision, NLRB vs. Mackay Radio. It was a poorly decided and little-revisited case upon which the entire anti-union playbook depends. Getman shines a welcome spotlight on the case, and inspires the conclusion that the so-called “Mackay Doctrine” is overdue for a sustained campaign of judicial challenge from unions and their allies.
In the original case, NLRB v. Mackay Radio & Telegraph Co., the union’s strike lasted all of one weekend. The employer continued operating by transferring workers from its other facilities, and when support for the union’s goals failed to materialize, the leaders called off the strike. When the strikers returned to work on Monday, four of the leaders were singled out and denied reinstatement.
The NLRB quickly ruled that the employer’s actions were clear violations of the law and went to court to order the employer to reinstate the four fired strikers, with back pay. The 9th Circuit Court refused to enforce the NLRB’s order, as this was generally a period when many jurists considered the labor act, in part or in whole, to be unconstitutional. That’s how the case got to the Supreme Court.
Ironically, the Mackay decision was hailed at the time as a victory for labor. It was yet another decision that cemented the constitutionality of labor law, but the Court also found for the union and the NLRB.
The labor relations act, after all, was meant to protect workers who engage in union activity from “discrimination in regard to hire or tenure of employment or any term or condition of employment,” and these four workers were singled out for their strike activity and told that they no longer had jobs.
Of course, Mackay had no time to hire permanent replacements in a weekend.
The issue was inserted by Justice Owen Roberts as an offhand comment, which I’ll quote in full because it bears scrutiny:
Although Section 13 of the act, provides, ‘Nothing in the Act should be interpreted to interfere with or impede or diminish in any way the right to strike,’ it does not follow that an employer, guilty of no act denounced by the statute, has lost the right to protect and continue his business by supplying places left vacant by strikers. And he is not bound to discharge those hired to fill the places of strikers, upon the election of the latter to resume their employment in order to create places for them.
In other words, the employer in Mackay broke the law because it discriminated against the strike leaders by singling them out and firing them, but if the employer had found a non-discriminatory way to discriminate against strikers (like, say, hiring scabs to replace them in the order of reverse seniority) then that would be hunky dory.
“…the right to protect and continue his business…”
In the four decades that followed Mackay, very few employers took the liberty to permanently replace striking workers, as it generally fell outside what was considered socially acceptable behavior by employers in the post-war era.
Which isn’t to say that some employers didn’t try to push the envelope in their union-busting attempts. Most judicial revisiting of Mackay comes from cases where the Courts rejected employer attempts to go further.
For instance, in a 1963 case the Supreme Court rejected an employer’s attempt to grant replacements a “super seniority” for their service as scabs by ruling that it was not “proper under Mackay.” It was this sort of right-wing judicial activism that pushed back on union rights and served to give a bad footnote the appearance of settled legal doctrine. But the court has never revisited the facts or logic of the Mackay decision.
As Getman points out, what is now considered the “Mackay Doctrine” is in direct conflict with the actual Mackay decision:
The holding is that it is illegal to decide which employees are entitled to work after a strike on the basis of union activity. But the dictum insists that the employer may give employment preference to those who work during a strike over those who strike, which is precisely the same result, penalizing union activity that was outlawed by the holding.
“It is impossible to know,“ writes Getman, “what led the Court to go out of its way to announce that the hiring of permanent replacements was consistent with the Act.” But one can easily guess that the conservative judges, aghast at New Deal encroachments on property rights, sought to ensure that the bargaining power of unions was “balanced” in some way.
The Mackay Doctrine wasn’t really put to use until the 1980s, starting with the Phelps-Dodge copper mining company, which bargained its Steelworkers local to impasse over drastic cuts in pay, benefits and working conditions, pushed them out on strike and then had the scabs vote to decertify the union 12 months later. This is how employers have weaponized Mackay to union-bust much of American industry. (And it would be clearly illegal under the new American Baptist Homes standard.)
The results are far from Justice Roberts’ nebulous “right to protect and continue his business,” and farther still from “balancing” the power of unions and management. Common sense dictates that the right of management to permanently replace striking workers be revisited; justice demands that the Mackay Doctrine be overturned.
Call me a cockeyed optimist, but I think Mackay is vulnerable to constitutional challenge as a violation of workers’ 1st amendment rights of free speech and assembly, 13th amendment protections against involuntary servitude and 14th amendment guarantees of due process and equal protection. As it is, the American Baptist Homes NLRB decision is certain to be resisted and appealed by business and industry, and will inevitably wind its way up the federal courts.
Even if the Court doesn’t go for those constitutional arguments, it could be ruled to have been “wrong the day it was decided” for having ignored both the plain language of the law, as well as the clear legislative intent. Or the Court could decide that their predecessors acted in the public interest by attempting to “balance” the power of unions and management in 1938, but that the track record of Mackay since 1983 demonstrates that true balance can only be achieved by restoring the right to strike without reprisal.
Or if the Court really wants to weasel out of the controversy, they could lean on the crucial (and crucially forgotten) “protect and continue his business” portion of the initial Mackay dictum—only granting the “right” to permanently replace strikers to employers who can demonstrate that they might go out of business otherwise, or, as in American Baptist Homes, that they have no ulterior union-busting motive.
Not that Julius Getman would necessarily agree with my proposal. “The long existence of the doctrine,” he writes, “its acceptance by Court after Court, and the fact that it has survived attempts to overturn it by amendment all will make it a ward of stare decises, safe even from liberal courts.”
Getman is a brilliant and accomplished legal scholar. I’m just an organizer who argues with lawyers a lot. So, with respect, I don’t see a substantial downside to trying. It was the dogged pursuit of anti-union lawsuits by the right-wing—often, initially, unsuccessful—that helped make Mackay precedent, as well as brought us on the verge of outlawing neutrality agreements and outlawing the union shop in the public sector. It is time that we launched a sustained counter-offensive in the courts.
And what about striking workers who do lose their jobs under the current doctrine? Who could argue against taking every step imaginable to restore their rights and their livelihoods?