It’s Time for the Labor Movement To Pursue a New Judicial Activist Agenda
Unions that were bracing for a major defeat in Friedrichs v. CTA breathed a sigh of relief following the death of Supreme Court Justice Antonin Scalia. He was expected to be the decisive fifth vote against the California Teachers, and the outcome likely would have severely weakened American public sector unions. But Friedrichs likely died with Scalia.
More than a respite between anti-union attacks, this moment is an opportunity for a new judicial activism by the labor movement to win new rights and benefits and to match the planning and aggressiveness of the right-wing plot to kill unions.
Moshe Marvit detailed in these pages how Friedrichs was part of a grander scheme of right-wing litigation aimed at destroying unions. Well-heeled union-busters strategically lodge lawsuits to line up Supreme Court appeals that build on precedents like Harris v. Quinn and the now never-to-be Friedrichs, confident of a 5-4 vote in their favor.
Heretofore, unions have mostly limited their own judicial advocacy to stopping these attacks. With the Supreme Court now poised to tilt to a liberal majority that will last a generation, it is time for labor to develop its own judicial activist agenda. Ironically, a decision for the bosses in Friedrichs could have had the confounding effect of granting unions new 1st Amendment rights we have long been denied. Now, we have the opportunity to advance our own agenda to make union activity constitutionally protected free speech.
“The judge can drop dead in his black robes.”
The sad legal fact that corporations are “people” with free speech rights is well known, but you may be surprised to learn that unions enjoy no such rights. In order to get past the last most conservative Supreme Court, the 1935 National Labor Relations Act (NLRA) was constitutionally rooted in the Commerce Clause—not the Bill of Rights. Long before that, judges were hostile to the country’s first union efforts, treating strikes and boycotts as unlawful restraints of trade. The judiciary spent the 19th century building up a body of case law that regulated labor as a commodity and prioritized contracts, property rights and the smooth flow of commerce over the free speech and free assembly of working people.
Law professor William Forbath wrote a book on the topic that is essential reading for anyone who wants a deeper understanding of why American unions behave the way they do. Law and the Shaping of the American Labor Movement details not just the bad body of case law that metastasized in the Gilded Age, but also the development of the voluntarist instinct that still runs deep in the veins of our movement.
Prior to the NLRA, both conservative and radical unions wanted to get government and the courts to butt out of labor relations. To this day, most unions shy away from pursuing rights and benefits that cannot be won at the bargaining table.
In one of the sharpest analyses of labor’s prospects following Scalia’s death, Joe Burns reminds us of how labor leaders once railed against “judge-made law” and warns, “As long as labor allows nine establishment figures to dictate policy, we will never revive ourselves as a movement.” Most judges are too far removed from the lives of the working class to be reliable advocates for unions. And, as professor James B. Atleson argues in his book Values and Assumptions in American Labor Law, the primacy of business interests is a pervasive ideological influence on labor case law.
Take the original sin of judicial gutting of the NLRA, 1938’s NLRB v. Mackay Radio, which gave employers the “right” to permanently replace strikers despite the Act’s explicit protection of strike activity and literal ban on termination of union activists. That decision was based not on previously existing case law, or any attempt to divine legislative intent—just the justices’ tossed off assumption that “of course” employers should be free to hire new permanent employees in order to ensure their right to continue to run their business during a strike.
Labor law is currently so far removed from the First Amendment that the Court has ruled that workers can be legally fired under the Act for making “disloyal” statements about the employer’s product in the course of a union campaign. (Any organizer who’s run a corporate campaign has lost precious days of her life arguing with union lawyers about whether a lit piece runs afoul of the NLRB v. Electrical Workers Local 1229 (Jefferson Standard) decision (which was, for the record, written by a Harry Truman appointee).
So Joe Burns is right. In pursuing a new judicial activist labor agenda, we should not view judges as our saviors—or even as our allies. The best analogy I would make for a judicial activist labor agenda would be the civil rights movement of the 1950’s and 1960’s. During that movement, an army of civil rights attorneys found the right plaintiffs and facts and guided cases like Brown vs. Board of Ed through the courts. But it was sit-ins, boycotts and marches that changed the political context in which the cases were decided. A judicial activist agenda for labor will not be successful without a substantial increase in worker protest activity.
In pursuit of free speech, choice and solidarity
A good example of what currently passes for judicial activism in labor is a recent petition filed by 106 leading scholars at the National Labor Relations Board (NLRB), seeking reinstatement of an equal time rule for mandatory on-the-clock anti-union presentations.
The idea itself is brilliant. Co-petitioners Charles Morris and Paul Secunda noticed that the NLRB has been on the record for the last half century as soliciting union advocates to make a case that when a boss requires employees to attend an anti-union lecture in the run-up to a union election, and denies union organizers access to the workplace, it is at least grounds for overturning an election result, if not an outright unfair labor practice.
As outsider advocates, Morris, Secunda, et.al. could only file an advisory petition, which the NLRB is free to ignore for, well, forever. Actual judicial activism requires a union challenging the results of a lost certification election in which an employer used mandatory captive audience meetings while physically restraining union organizers from access to the workers and the workplace. Nearly every union has seen such meetings used against them in organizing drives; one of them should seek to overturn a union election’s result and cite Morris and Secunda’s brief in their appeal. The Board must rule on the request.
To keep up the pressure, many unions should do the same. There is, unfortunately, no shortage of election losses to appeal. Once the first employer refuses to comply with an equal time rule, we’ll be off to the races with a free speech labor law case.
The NLRB is currently ignoring another petition filed by Charles Morris, seeking confirmation of the brilliant thesis he laid out in his 2005 book, The Blue Eagle At Work: The labor act was not written with the intention that the only way a union could be certified was by winning a winner-take-all election to represent all workers in a bargaining unit. In the early history of the NLRB, unions filed card check petitions to represent their members only. If unions were able to file such petitions for only part of the workforce in a given workplace today, millions of workers who want a union would gain rights on the job right now, and unions would win footholds in thousands of new workplaces.
But instead of demanding such representation as a right, unions are waiting for permission from the courts. Someone has to press the case.
I have an idea that will make my former colleagues at the AFT’s heads explode. There are currently half a dozen unions competing to represent adjunct faculty. It is common for the same workers to belong to different unions at multiple institutions of higher education. It is also common for them to want to organize their additional non-unionized schools, and to have a strong preference, based upon experience and membership, for which union it should be. Therefore, it would be reasonable for one union that gets wind that another is organizing a targeted school to rush a members-only petition to the NLRB.
This would be a helpful set of facts for re-establishing a Blue Eagle precedent. Since unions win most adjunct faculty elections, this won’t look like a shortcut to otherwise-impossible majority status (like a failed effort by the Steelworkers at a Dick’s Sporting Goods during the Bush administration). And whether the NLRB refuses to issue a members-only certification, or an employer refuses to comply with one, it gets into federal court pretty quickly. Now, I’m no lawyer (I just argue with a lot of them), but it seems to me that the legal case is that an arm of the government is interfering with the First Amendment rights of workers by restricting legal recognition of their union to only the form and choice it dictates.
To be clear, a win in a case like this could radically transform unions. Members-only certifications could undermine the principle of exclusive representation and, with it, the agency fees that unions collect from all represented workers to compensate for the expenses of having to represent everyone in a workplace. As I have written, there is both promise and peril in that trade-off.
The ultimate goal of a judicial activist agenda must be restoring solidarity rights. In a complex economy made up of suppliers, subsidiaries and franchises, unions are banned from extending a dispute with their employers to the so-called “secondary” employers who profit from and help make profitable an unfair business.
What is the difference between a cable company blacking out a sports channel to demand more money, a liberal boycott of NBC and its advertisers demanding that the racist reality television personality Donald Trump be fired and a campaign for people to stop eating at restaurants that profit from the exploitation of workers in the food supply chain? The only difference is that if the latter is conducted by a union, they could be sued for triple the economic damages of the boycott.
In the Friedrichs oral arguments, Chief Justice Roberts said, “It’s all money,” when it comes to unions’ free speech—tempting grounds for challenging the ban on secondary boycotts as the case law on solidarity activism has always emphasized money without even considering speech. Finding a test case is tricky. Triple damages could utterly bankrupt a union, so understandably no union is eager to risk that.
For this reason, the food supply chain boycott work I described earlier is currently run not by unions, but by workers centers like Brandworkers and the Coalition of Immokalee Workers (who are not exactly sitting on millions of dollars). If sued, perhaps they could mount a fight on constitutional grounds?
Worth renewed consideration is a 2004 proposal from the American Federation of Teachers for labor to sponsor new “start-up unions” that “might enjoy greater strategic and tactical flexibility and would have substantially less to lose.” That was proposed during the debate on union form and structure that preceded the Change to Win split in the labor movement, and, sadly, promptly forgotten. But it is more relevant than ever. Providing seed money to “start-up unions” that can challenge, break and resist unjust labor laws could be very wise investment of the “Scalia dividend,” the revenue unions were expecting to lose post-Friedrichs that now represents “found” money for new organizing.
The whole damn system is out of order!
To be at all successful, a judicial activist agenda must be joined by many more labor lawyers, scholars and organizers calling out unjust areas of labor law and proposing plans to defy them—even if it ruffles some feathers. We also need more people writing about how unfair the system is; it does help inexorably shift public opinion about the need for change.
It’s worth noting that this agenda will require suing—or being sued by—the NLRB, which has quietly become a functional agency for workers rights of late. Just as Obama’s Justice Department declined to defend the Defense of Marriage Act while a party to court challenges against it, perhaps the NLRB could signal that the interesting constitutional questions raised by unions are worthy of judicial consideration?
Labor law, and the rules of the system, are rigged against workers. This call for a judicial activist agenda for labor is explicitly a call to question, challenge and break the law where it works against us. In so doing, we will be breaking up what remains of labor peace and helping foment more of the only thing that will save us: chaos, strife and unrest.
[This article originally appeared at In These Times.]
Our Political System Is in the Midst of a Massive Realignment. Here’s How the Left Should Respond.
America needs a New Democratic Party.
No, I don’t mean a Democratic Party made new by a restored commitment to liberal idealism (although that would be useful, too). I mean an American version of Canada’s NDP: an explicitly socialist party that can win on a regional basis, credibly compete on a national basis and actually win on issues that matter.
The leftist debate on electoral activism is depressingly reductive. It’s either be the “left-wing of the possible” within the Democratic party or immediately form a third party, as if we are not capable of sorting out complicated solutions for complicated times. We have a historic opportunity. Whether one realizes it or not, we are in the midst of a profound political realignment that could make a third party conceivable.
The right-wing realignment and its pull on the Democrats
A political realignment happens when the two main parties significantly alter their ideology and campaign appeal and in so doing shift their regional bases of support. They are rare. One happened when Roosevelt’s New Deal effectively wooed urban progressives away from the GOP, while preserving the Democrats’ traditional base of southern support (largely by avoiding black civil rights demands). For the next 36 years, the Democrats won seven out of nine presidential elections, and controlled the House and Senate for much of the period.
Nixon’s “Southern Strategy” tapped into reaction against the civil rights, women’s rights and anti-war movements and produced a new realignment. With the former Confederate states now solidly in the GOP column, and white working-class voters increasingly willing to cast reactionary votes for the party in the north, Republicans won seven out of 10 of the next presidential elections and have, since the mid-1990s, tended to control the House.
The Republicans’ crisis, and our opportunity, is that the party has been so captured by its base that it is circling the drain of national viability. The hateful, racist, misogynistic, xenophobic and just plain reality-denying rhetoric that the current crop of their presidential aspirants must use to pander to their troglodytic base makes them simply unelectable in a national contest.
Look at the demographics, as the Pew Research Center did earlier this year. The GOP alienates the majority of women voters, the vast majority of black and Latino voters and has all but lost the so-called millennial generation—voter groups that are an increasing proportion of the electorate.
More importantly, look at the so-called “big sort,” the geopolitical trend of people moving into or out of communities in order to be surrounded by more like-minded neighbors. Researchers James A. Thompson and Jesse Sussell found that the “big sort” is significantly contributing to the political polarization of Congress. Republican voters have created for themselves an echo chamber that goes beyond Fox News to include their like-minded neighbors. This contributes to the GOP reinforcing and doubling down on its extremism. It’s hard to imagine how the GOP can break this cycle any time soon.
Republicans can win—and win big—on a regional basis and implement awful policies. And to be sure, the Left should be concerned with keeping the Republicans out of national office. But the Republicans are going to do a good job of that themselves.
Meanwhile, the “big sort” leaves viable progressive majorities in our large urban centers and even entire states like California, Massachusetts, New York and New Jersey for the most part trapped in a Democratic party that will also continue to move to the right unless we do something about it. This realignment is pushing moderate and even conservative voters into the Democratic camp. There are, after all, plenty of stockbrokers and corporate executives who support gay marriage and immigration. The GOP is no longer a comfortable home for them—the Democrats are.
These progressive enclaves are increasingly a one-party political system, with the GOP’s carcass lying around as an empty vessel for whatever rich white guy wants to run a vampiric vanity campaign. And, sure, Republicans like Bruce Rauner and Chris Christie can win fluke elections when voters are so disgusted by the laziness and corruption of monopolistic Democratic machines that they stay home – or vote for nebulous “change”—in protest. But for the most part, there is a huge vacuum on the left in these progressive enclaves that should trump any tired liberal objections about “electability” and “lesser evils.”
An inside/outside strategy
What the Left needs is an inside/outside electoral strategy vis-à-vis the Democrats.
Inside the Democratic Party, engaged in primary campaigns to push progressive candidates and causes, because current election laws as well as fear of playing the spoiler mean that this is where we must focus out electoral energy for the time being if we are hold together the broadest possible coalition.
But outside in terms of being clearly delineated as something more specific: more critical of capitalism, more independent of corporations and more accountable to its base of supporters than being just another Democrat. And outside in terms of having a real plan to break with the Democrats and become a fully independent third party when the opportunity comes.
Inside/outside electoral strategies have long been incubated in New York state, where the law allows—and political realities demand—that candidates run on multiple ballot lines. Since 1998, the Working Families Party has been the preeminent inside/outside experiment on the Left. The WFP has an impressive track record of endorsing insurgent progressives early and backing them in the Democratic primary, as well as occasionally running a candidate in the general election against the Democratic nominee—a strategy that has put scores of new progressives in office across the state, culminating in the election of NYC Mayor Bill DeBlasio.
The Working Families Party has expanded to five more states plus the District of Columbia, although the inability to run a candidate on more than one ballot line makes the party’s efforts in those places somewhat less visible. In Illinois, unions like SEIU and the Chicago Teachers Union have formed an independent political organization called United Working Families, which supported Jesus “Chuy” Garcia’s insurgent challenge to Rahm Emanuel in Chicago’s technically non-partisan mayoral election. In Vermont, Bernie Sanders’ long run of successful independent runs for office has led to the creation of the Progressive Party, which represents over a dozen local, state and federal offices—a viable third party if ever there was one.
Add to that the various progressive caucuses in legislatures and councils—progressive Democrats and independents who work together to press their agenda within the larger Democratic caucus—and you have, essentially, an undeclared, disunited party within the party.
It is time to unite and declare it so.
What’s in a name?
What you stand for matters, but having a label and an identity of standing for the right causes matters perhaps more. Thanks to the realignment that is expanding the Democratic Party and turning it much more conservative, a “Democrat” can be anybody from Rahm Emanuel and Andrew Cuomo to Elizabeth Warren and Keith Ellison.
What the hell is a “Democrat” and what do they stand for? Without a clear distinction, a vote for a Democrat might as well be a vote for war, for police brutality and mass incarceration, for demonizing teachers and slashing pensions, for shipping jobs overseas and keeping the minimum wage low. An untapped constituency remains alienated from a progressive movement that suffers from guilt by association with the corporate Dems.
Further, a progressive Democrat—even one who runs with a Working Families-type endorsement—is susceptible to all of the pressure from party leadership for the corporate agenda that any other Democrat faces, with little accountability to a base of supporters that comes from public identification with a movement. Most people reading this can think of some maddening state legislator or alderman who’s only progressive when it doesn’t count.
Bernie Sanders jokes about how often he hears from supporters and constituents, “We always know how you vote, Bernie.” Because Sanders, famously, insisted on being registered in Congress as an “Independent,” even while he caucused with the Democrats, C-SPAN had to create a third “Independent” category for vote tallies, and so, yes, we all know how Bernie votes on an issue. As a result, Sanders’ voting record has been the most second guessed and debated by the left for a quarter century (even though there have been members of the House who were arguably to Bernie’s left).
By standing out as an “I,” Bernie was held much more accountable to the Left on a national level than any other Democrat. Working Families public officials need to stand out and caucus and have their votes recorded as “W,” not “D.”
Whether we settle on the name “Working Families,” call it the “Progressive Party” or borrow “New Democrats” from our friends to the north, we do need one name that stretches from candidacy to office-holding to everyday activism. And we need one party, coast to coast, that people join and pay dues, that has a national committee and that gets people in a room together in meetings, teach-ins, conventions and trainings.
What holds us back?
There is a regrettable deficit of trust when it comes to any sort of left unity effort. Movements unify when they are on the ascendency, which is not a position that the Left is used to being in. Plus, there is a long history on the Left of dissension, discord and split. Going bigger and broader brings the potential for the project to get out of control. And these efforts—United Working Families, the Progressive Party, the WFP—seem to be self-consciously designed to be small and manageable.
United Working Families is a good case in point. The organizers toyed with forming a chapter of the WFP, but ultimately decided to organize independently with complementary—yet distinct—branding. The WFP has since welcomed the UWF as an affiliate with seats on the national board. (What choice did they have? There’s no space for both organizations to operate in Chicago).
A united party would have to have a federated structure, with autonomous state parties and local clubs. But the resistance to the shared branding goes deeper than a structural concern. It can be read as a desire to not be tarnished by someone else’s mistake.
United Working Families was formed while the Working Families Party was grappling whether or not to endorse Gov. Andrew Cuomo’s re-election bid. The New Yorkers could have really used some tough love and advice from Chicago on the feasibility of cutting a deal with Cuomo. Regrettably, the Chicago organizers chose parochialism and keeping their distance over solidarity.
Another thing that holds us back is fear of playing the spoiler. Again, the value of an inside/outside strategy is holding together the widest possible coalition while we are inside the Democratic Party. To be clear, the risk of letting the now-far-right Republicans eke out a win if the center and Left were to split the vote in a general election is substantial. The Supreme Court, the right to choose, union rights and questions of war and peace are not to be dismissed lightly.
But a split must one day come. If the Republicans cease to be a major party in the northeast, on the west coast and in the major urban centers of the mid-west, and lose the next three or four presidential elections, then anyone who is still harping on about lesser evils or unity at any cost is probably simply not comfortable with a turn towards explicitly anti-capitalist politics.
I write of presidential election cycles because they are important epochal markers, not because we should fritter away our time debating when to make a break and run a Nader-style third party campaign. Look, I get it. Presidential elections are years when more working people actually pay attention to mainstream politics and vote, so what we do and whom we’re supporting is big and symbolic. But big changes in social outlook and political policy are ratified in presidential elections. The changes are made more gradually and much more locally. Our challenge for the next decade and a half is to run Working Families campaigns for legislature, council and Congress and win; to build up a base that makes for “safe” Working Families districts; and to build Working Families legislative caucuses that put real pressure on the corporate Dems.
Some of this can be accomplished, as the Progressive Party seems to have done in Vermont, through a degree of brokering. The Progressives build up enough of a base in a district that they hold the plurality, and the Democrats decide not to run a strong candidate against them. I presume that the Progressives agree in exchange to not make a hard run at a district where the Democrats hold the edge. In this way, a center-left split doesn’t have to be a 100% spoiler effort.
The ultimate split may, indeed, be signaled by an independent presidential campaign. I’m getting many years ahead of myself here, but let me suggest that the timing would only be right if our new party posed a credible threat of actually winning some electoral votes. Could we pose enough of a threat of throwing the election into chaos to extract meaningful election reforms—like abolishing the electoral college and instituting instant runoff voting—to make “spoilers” a thing of the past?
Our big challenge right now, though, is whether we are bold enough to actually get in a room and hammer out a program, a structure and a common name.
The Sanders presidential campaign is a very timely opportunity. Whether Bernie wins the Democratic nomination (still a distinct possibility) or takes his delegates and forces a convention fight over the Democratic Party’s platform, that platform will be the highest profile list of “Left” demands in generations. It will arouse the interest and support of many thousands times more working people than currently number in our tiny movement. What those freshly inspired potential activists will need is to see a party that they can join that will work past the election on winning those demands.
We have a historic opportunity in 2016. Shame on all of us if we don’t recognize the opportunity and capitalize on it.
[Originally appeared at In These Times.]
Friedrichs Is Dead; Labor’s Crisis Is Not. The ‘Scalia Dividend’ Is a Rare Opportunity for Unions.
The Friedrichs vs. CTA Supreme Court case, a nakedly partisan assassination attempt on the labor movement, has died with Justice Antonin Scalia. What cannot die with it is the sense of existential crisis within the labor movement. We need a far-reaching conversation about the pathway back to increased activism, membership and power.
Like few moments before it, the Friedrichs case sparked a broad consensus within labor that our movement faced an existential crisis and that business as usual was a prescription for assisted suicide. Unfortunately, too many union leaders and staff based out of Washington, D.C. are now at risk of being dismissed as a bunch of Chicken Littles who overhyped a sky that never fell by the people who have the greatest ability to determine labor’s future: the local leaders and disengaged members.
It was a mistake to use the Friedrichs case to forge this somewhat rare agreement that labor faces an acute crisis. It seemed like a long shot that the Supremes would even take up the case just a few months after rejecting Justice Alito’s wet dream of a public sector “Right to Work” standard by a 5-4 margin in last session’s Harris vs. Quinn case (I lost a lot of bar bets when they did). Even with the case proceeding to oral arguments, there was always the possibility that the Court would punt on the issue or even rule in favor of the unions for political reasons or that one of these old farts would die and the case would deadlock.
But labor’s crisis predated Friedrichs and will live on after it. The “Right to Work” agenda, and the gutting of public sector collective bargaining laws, will continue to be pressed at the state level. And if the general financial commitment and philosophical approach to new union organizing remains the same, union density will surely continue to decline.
Fortunately, until the Friedrichs case gets re-argued or stalemates in a 4-4 decision, labor remains a bit like Schrödinger’s cat: simultaneously getting murdered by the judiciary and in the midst of a possible resurrection. So there’s still time to harness the sense of crisis into a renewed commitment to radical workplace democracy and activism. And the “rainy day” savings that many unions made in anticipation of an adverse decision can now be used as a “Scalia Dividend” to be invested in new campaigns.
A pragmatic approach to Armageddon
Faced with a potential revenue loss of millions of dollars, international unions focused pragmatically (and conservatively) on cajoling their locals to sign up agency fee payers to full union membership. But that was merely a matter of mechanics—a pragmatic approach to the coming Armageddon. Where workers are exclusively represented by a union and already compelled to pay fees for the benefit of that representation, those that haven’t joined typically haven’t been asked. It is a problem that too many unions don’t make a face-to-face contact to new employees and ask them to join, but it’s hardly labor’s biggest one.
The actual crisis in labor is rooted in a framework that has turned unions into agencies for workers, instead of organizations of workers.
The legal obligation of the duty of fair representation forces unions to focus on grievances and contract bargaining while the Taft-Hartley law and contractual no-strike agreements strongly discourage rank-and-file worker protest. Too many members then develop a “what have you done for me lately?” relationship with their union that is vulnerable to a “give yourself a raise” campaign that deep-pocketed right-wing outfits can launch following the loss of agency fee, encouraging union members to stop paying dues or agency fees and gain a bump in their paycheck.
That is the crisis that has been largely unaddressed, or at least unsolved, even while unions have spent two decades genuinely trying to meet the charge from the AFL-CIO to “organize at an unprecedented pace and scale.”
Not to mention, while union supporters were dancing on Justice Scalia’s grave, the West Virginia legislature just voted to become the 26th so-called “Right-to-Work” state. How long can agency fee survive in the other half of the states?
So the crisis still exists in that declining union density leads to declining union power. The billionaire class still wants to kill us, and we don’t make a compelling case about why workers should risk their jobs and relationships to fight with unions that look like ineffective special interests.
One of the under-told stories of the last two decades is how badly, and often how subtly, the organizing model conflicts with unions’ business as usual. In order to win, organizers introduce a radical and inclusive democracy into workplaces. We recruit often large and unwieldy organizing committees of workplace leaders through whom all major decisions about tactics, timing and demands must go for deliberation and approval.
And then we throw these newly radicalized workers into local unions where leadership all too often feel a political need to control bargaining and messaging themselves, going off into backrooms to meet with management and come back with a “win.” This is an unspoken conflict between international unions—who feel the need to “organize or die” more acutely—and locals who too often receive new bargaining units as an unwelcome disruption.
Many organizers wanted to use Friedrichs as an opportunity to work through this conflict. Instead, panicked about potential revenue loss, the leadership of the international unions talked too much about “agency fee conversion” (shop talk for convincing union-represented non-members to join and pay full dues) and a single Court case that is now moot. The organizers caught in the middle could find themselves locked out of further conversations about labor renewal and change with locals that now feel the crisis has passed. They need to broaden the sense of crisis and bring newfound resources to the table.
The “Scalia Dividend”: Labor’s second chance to get it right
Many unions that had Friedrichs’ sword of Damocles over their heads have quietly been squirreling money away, by under-funding or delaying funding new campaigns and not filling vacant staffing positions. Which means those unions now wake up to a “Scalia Dividend”—an unexpected windfall of newly available financial resources for new campaigns and initiatives.
Unions can and should commit resources to comprehensive campaigns for new bargaining units—the kind of campaigns that have quietly ceased in recent years. These organizing campaigns should have an eye towards enhancing density in union strongholds like auto manufacturing, education and retail, but also for big public campaigns that could potentially inspire more non-union workers to take action.
What could go further in inspiring non-union workers to contemplate their power is to build on the internal organizing that’s been going on in anticipation of Friedrichs with contract campaigns. Meaningful member engagement—the kind that can withstand the loss of agency fee—comes from stoking workers’ desires for better pay and working conditions (even their less “reasonable” demands) and extracting sweat equity from them in the form of escalating actions. These campaigns should culminate in a plan to demonstrate, as Chicago Teachers Union President Karen Lewis has said that, “Our ability to withhold our labor is our power.”
We also need a new attempt at labor law reform. The fact that a workers rights bill has less of a chance passing Congress than Obama’s Supreme Court nominee shouldn’t make us say “Why bother?” Instead, it should inspire us to propose big, bold and meaningful reforms. Restoring solidarity rights, rooting unions’ collective actions in the First Amendment, outlawing “Right to Work,” banning permanent replacement of strikers—put it all on the table.
God forbid we do manage to spark the kind of mass strike wave that panics the billionaire class into throwing workers a few bones. What would we win for our effort? Card check? The AFL-CIO should convene an open call for legal reform proposals and put a new “Right To Your Job” bill on the record and on the lips of our members and allies.
The erstwhile House of Labor should also convene a wide-ranging strategic retreat for local leaders, rank-and-filers, staff, academics and activists that treats no idea as unwelcome or unthinkable. The recent petition filed by 106 leading labor scholars in response to a question on union access to mandatory captive audience meetings left open by the NLRB (and promptly forgotten by union organizers) for 50 years highlights how badly labor needs more and different perspectives brought into the conversation. The poor souls who have spent the last few months poring over organizing databases, wall charts and lit pieces in anticipation of the Friedrichs decision need some fresh air and some new people to talk to.
Unions are no longer facing a multi-million dollar hit in June. We can give the bunker mentality a break, but we can’t pretend that we’re in the clear. There aren’t a lot of second chances in life. Labor must not squander this one.
[Originally appeared at In These Times.]
With 3 Recent High-Profile Walkoffs, Is the Wildcat Strike Back?
Three high-profile wildcat strikes have caught business watchers and union leaders by surprise in recent weeks. Could they be bellwethers for a rising tide of worker militancy?
A wildcat strike is one that occurs with little notice or legal sanction. Wildcats are often organized in violation of a contractual commitment not to strike or a legal prohibition to do so, and in defiance of both the employer and official union leadership. Non-union workplaces wildcat by striking without formally certifying or affiliating with a union.
Wildcat job actions have sparked some of the largest strike waves and union gains in American history, and the revitalization of the 21st century labor movement will require a degree of worker organizing that is not dependent on union staff and resources. So spontaneous job actions merit attention.
The sudden return of the wildcat
Longshoreman at the New York and New Jersey ports launched a classic wildcat strike on Friday, January 29, catching the Port Authority, the Shipping Association and their own International Longshoremen Association totally unaware. The strike, which cost businesses that rely on the ports to ship goods in and out of the country hundreds of thousands of dollars in a few short hours, was apparently in protest of a government agency, the Waterfront Commission of New York Harbor, imposing new job requirements on top of and outside the bounds of the longshoremen’s collective bargaining agreement.
The walkout seems to have been a genuinely spontaneous action, sparked and spread within a few short minutes and over by nightfall. Industry observers are still scratching their heads at what it all meant, and whether it will happen again.
The following Monday, NYC-based drivers for the controversial “rideshare” app, Uber, began a 24-hour work stoppage and staged a rally outside of the company’s local headquarters. The tech firm is notorious for its questionable legal practices of treating its employees as “independent contractors” and often operating outside of taxi and limousine regulations in order to undercut traditional yellow cabs and car services. Drivers struck in protest of a 15% reduction in Uber’s fares, a cost that they alone must absorb.
While planned at least a day or two in advance, this wildcat strike was organized by an informal network calling themselves “Uber Drivers United,” according to the homemade fliers they handed out (although some coordination with the Taxi Workers Alliance has been noted). Uber was designed by its Silicon Valley founders to “disrupt” traditional work rules and regulation and to definitely be union free. The strikers are not demanding union recognition in the modern sense, but simply demanding a rollback of the wage cut.
While the smug business press scoffs (Fast Company said of the strike, “The irony, of course, is that by taking a slew of drivers off the road, the strike actually serves as a good opportunity for other drivers to profit from surge pricing, the fare increase that Uber imposes when demand is high”), the protests could spread to other cities.
Earlier in January, a faction of Detroit schoolteachers led by former Detroit Federation of Teachers (DFT) president Steve Conn staged a wildcat sickout over the abhorrent physical conditions of the school buildings that forced 64 out of 97 schools to close. Conn’s group is exactly the sort of alternative competitive union that I have predicted will become the norm if unions embrace non-exclusive members-only organizing.
Conn, a polarizing perennial opposition leader, eked out a narrow win for president in a low turnout election in January of 2015. But he failed to carry his slate in the union’s executive board elections and seemingly made little effort to unify the union around his agenda. An unpopular attempt to disaffiliate the DFT from the national American Federation of Teachers resulted in his removal from office eight months later. (Full disclosure: I am a former organizer at the AFT.)
Conn has since tried to decertify the DFT in favor of a new union he calls the Detroit Teachers Union. The sickouts over the crumbling infrastructure and lack of investment in Detroit public schools was his group’s attempt to vie for shop floor power. In so doing, Conn may have found his true calling as the leader of a proudly independent militant minority union.
As far as I can tell, most Detroit public school teachers retain their loyalty to the DFT, even if many were willing to take part in the frankly long overdue protest. The DFT, of course, had to denounce the action. They signed a contract with a no-strike clause, Michigan public sector law makes any strike illegal and the viciously right-wing state legislature is seeking retribution via a bill that would decertify any union that allows a wildcat strike to happen.
But the AFT has embraced the issue, if not the wildcat tactic, and successfully connected the deplorable condition of Detroit schools with the poisoning of the children of Flint as a national scandal that naturally follows from electing the GOP equivalent of Immortan Joe to run a once-functional state government.
A bellwether or a fluke?
The U.S. labor movement has historically grown in incredibly short and intense periods of activity, and then slowly declined in the interim periods. All of these periods of growth corresponded with a mass strike wave (although not every mass strike wave—of which there have only been about seven or eight since the Civil War—has resulted in membership growth for unions).
Most American strike waves have been led from below. Many began with wildcats that were unplanned or even opposed by union leadership. When conditions were right, union leaders swooped in to take charge of the actions and cut peace deals with the bosses that led to measurable gains for the working class. This is a healthy—and missing—dynamic in the labor movement.
Arguably only two of the great strike waves were planned and led by unions. One was the post-WWII wave of strikes that saw demands for a better quality of life, long-delayed by war and depression, finally begin to be realized. The other was the wave of strikes for union recognition in the public sector in the 1960’s and 1970’s.
Those are examples of union leadership recognizing and harnessing genuine rank-and-file militancy and winning big. Because they are two of the most recent strike waves, they have left an outsized psychic impression on our movement as well as the residual magical thinking that if only Richard Trumka or [insert your favorite union leader to complain about here] would snap his fingers and call for a general strike, then labor would be restored to its rightful position of power and influence.
This is both ahistorical and betrays a lack of awareness of labor’s current state of organization.
The best that the presently existing unions can do is prep for job actions that can serve as an inspiration to even non-union workers and have a decent shot at winning. The once and future Chicago teachers strike, Fight for 15 and Bargaining for the Common Good are the best contemporary examples of the kind of union leadership that’s needed.
In response to my last piece on labor’s ultimate weapon, historian Erik Loomis writes, “The real lesson of studying strikes is that they can serve as a great window into their time. Sometimes they are aspirational, demanding and winning real changes in the lives of workers.” He points to the sit-down strikes that organized General Motors and the Lawrence Bread and Roses strike as examples of aspirational strikes. (The two planned strike waves I cite above also fit the bill.) “Other times though, what strikes really tell us is that workers are desperate,” and their strikes represent “last-ditch efforts to save what they once had.”
All three of the wildcat strikes highlighted here certainly have an air of desperation about them. With workers rights under attack and middle-class living standards increasingly out of reach for most, desperation is likely to be what inspires militancy in the short run. The key, I think, is for workers to at least feel some agency in their struggle against descending into a worse life, if not actually winning a better one.
And, for better or for worse, the workers who took part in these three wildcat actions do come away feeling more powerful because at least the action was their decision and their protest. Each action clearly caused the employer some discomfort, which is in turn some comfort to the activists who took the risk. And that small win, one hopes, did not go unnoticed by other workers who are now fantasizing about how to ruin their boss’ day one day.
[Originally appeared at In These Times.]