Category: Published!

The captive audience meeting, “management’s most important weapon” in an anti-union campaign, is finally being challenged in a petition to the National Labor Relations Board that could help re-balance the scales in union representation elections.

Held in all-staff, small-group or one-on-one formats, employers use these mandatory meetings to confuse and intimidate employees into voting against union representation. In a 2009 study, labor relations scholar Kate Bronfenbrenner found that nine out of ten employers use captive audience meetings to fight a union organizing drive. Threatening to cut wages and benefits in 47 percent of documented cases, and to go out of business entirely in a staggering 57 percent, these captive audience meetings correlate with an unsurprising 43 percent union win rate when used.

Such meetings were illegal under the original National Labor Relations Act. The courts eventually decided that as long as a boss’s threats were merely implicit, it would be a violation of his putative “free speech” rights for the Labor Board to restrain their ability to make his obvious opinions unavoidable. (The courts still love to use “free speech” as a justification for union-busting; Friedrichs v. CTA, the case that could decimate American public sector unions currently before the court, is a claim of infringement of free speech.)

I recently advocated for an “equal time” provision, that any mandatory on-the-clock discussion of an upcoming union certification vote make room for a pro-union presentation, be incorporated in a new labor law reform bill. But these petitioners to the NLRB—106 of the leading labor-side and neutral-party experts on labor relations (the boss’ lawyers couldn’t bring themselves to endorse the need for fair debate, for some reason)—realized that “equal time” could be made a regulatory rule right now.

“Captive audience” meetings: not always the norm

Equal time was a rule, briefly in the 1950’s, and the NLRB is on record as inviting unions to ask for it to be restored since 1966. After the 1941 Supreme Court decision that established a boss’s First Amendment right to pummel his employees into anti-union submission, the NLRB spent the next quarter century ping-ponging back and forth between different legal standards on employer speech, union access to the employer’s property and the so-called “laboratory conditions” (basically, some fantasy world in judges’ imaginations where workers don’t feel threatened, bribed or uninformed) under which a fair election can be conducted.

In a 1966 case, General Electric Co. and McCulloch Corp., unions petitioned to overturn election losses caused by the employer’s combination of mandatory captive audience meetings and restriction of union organizers from the employer’s premises. The unions essentially sought to reestablish the equal time rules of the 1950’s. The Board declined to do so—but only conditionally and tentatively.

Their reason: on the very same day, the Board handed down a decision in a case called Excelsior Underwear, Inc., in which employers were mandated to hand over to the union a list of home addresses of all bargaining unit employees within a certain number of days of the scheduled election. The board declined to rule on the equal time complaint in General Electric “in light of the increased opportunities for employees’ access to communication which should flow from Excelsior, but with which we have, as yet, no experience.”

Several generations of union organizers now have experience with Excelsior lists. Chasing around a bunch of workers in visits to home addresses that are frequently incorrect after the boss has been free to spend an unlimited number of hours in mandatory meetings scaring the crap out of them is no substitute for having an equal amount of time at work during the workday to make the case for a “yes” vote for the union.

Why didn’t unions appeal the General Electric decision in 1967 (or 1977) after enough experience with the new Excelsior rules? The answer is probably that organizing was not an institutional and strategic priority for most international unions until John Sweeney became President of the AFL-CIO in 1995 with a promise to “organize at an unprecedented pace and scale.”

Regrettably, the organizers who recharged the union organizing departments in the mid-1990’s mostly accepted the legal rules as presented. And those of us who followed in their footsteps, myself included, mostly did the same. There is a pervasive tendency in our movement to accept that when it comes to labor structure, strategy and law, “it is what it is”— the horrible structures of American collective bargaining rules are a given and we don’t have much opportunity to change them.

Three reasons to cheer “equal time”

But this new rule, while a narrow tweak of an otherwise broken law, would be a big deal if adopted by the NLRB. First, because it would cause many employers to abandon the captive audience tactic altogether rather than make time for organizers to state the case for forming a union on the company’s premises and on the company’s time. Since these meetings are one of the boss’s principal tools for beating unions, that’s a good thing.

Other employers will likely continue the captive audience meetings and simply refuse to comply with the equal time requirement, since the only punishment for violating the rule would be a rerun election. This will particularly be the case while the new rule is inevitably challenged in the courts. In my experience, the new expedited election procedures that the NLRB instituted last May—which have increased both the number of union election petitions filed and the percentage of elections won by unions—have made employers more likely to engage in brazen violations of the Act in order to win delays before the union election. Determined to “win” at any cost, they have less fear of unfair labor practices and rerun elections, because while the legal bills will add up, at least they get to impact the election timeline.

Still, ULPs and grounds for overturning unfavorable elections, while hardly justice, are useful chips for organizers to hold. These things cost bosses money and credibility and can serve to help wear down an anti-union employer in a long-term campaign.

But the best possible outcome may come from the employers who embrace the equal time rule, thereby forcing unions to up their organizing game.

If the NLRB adopts the new rule (which is, to be clear, still a big “if”), they will almost certainly limit equal time to members of the bargaining unit only—not organizers and leaders on the union’s staff. Since intimidation is the point of captive audience meetings, some employers may assume that they can cow their own employees who stand in as union representatives.

What is needed are workers who can speak confidently and definitively on behalf of their fellow workers, in statements of “we” and “us.”

Despite the ample research that representative organizing committees are an essential component of successful campaigns, too many unions gloss over real committee building, run quick card drives and conduct too much of their contract bargaining in degrees of opacity. This is why too many organizing campaigns fail.

Take, for instance, a favorite topic of employer captive audience meetings: strikes. The boss’ message will inevitably be the union will make you go on strike. This is a double whammy of the boss’ real “most important weapon”: fear.

Fear, foremost, of the boss’ power. If the boss decides an anti-union presentation is a more important use of your time and his money than the actual job that you were hired to do and makes him money, shudder to think about what he may decide to do with your job if you defy his anti-union will.

But fear, also, of losing agency by submitting to the authority of “union bosses.” Who wants to run the gauntlet of employer opposition to workplace democracy only to find out that your union might jam decisions down your throat like the old boss did?

Imagine a well-trained and empowered workplace leader responding to the boss’s provocation with the calm explanation, “We would only go on strike if we wanted to, and had to, and if we could win. And we can only win if we all walk out together. I don’t know about you, but I would only strike for a damn good reason.” In one short breath, the boss’s message is blown away, and the workers are weighing the source of their power.

An uphill climb

The NLRB has recently issued a number of rule changes that have helped restore a degree of neutrality to workplace law. These have been extremely controversial in business circles. The Board also has issued weighty decisions regarding the ability of university graduate employees to organize and clarification on charter schools as private employers queued up for further controversy this spring. Plus, Board members who only got appointed through a rare bi-partisan deal will start seeing their terms expire this summer when an election-season Congress has little incentive to work together on approving their replacements.

All of which is to say, don’t hold your breath for a speedy response to this equal time petition.

After all, primary petitioner Charles Morris, author of The Blue Eagle At Work, has seen his petition on minority union certifications go unanswered for over a decade. His co-primary petitioner, Marquette University law professor Paul Secunda, says they understand the uphill climb. He says they filed, independently of any unions, simply to get the conversation going.

“We just want a fair vote. That’s all,” Secunda says.

If Morris and Secunda’s idea gains any traction in union circles, its fastest path to a ruling may be by a union appealing to overturn an election loss in a campaign where management locked out the organizers and conducted captive audience meetings. Unlike a petition, the NLRB would at least have to respond to such an appeal.

And there’s no shortage of grounds for appeal. Ninety percent of all union election campaigns see employers utilize captive audience meetings and more than half of those see workers directly threatened with job loss resulting in more than half of all union elections where employers subject workers to captive audience meetings. I suspect many union staffers and members reading this have a lost union election campaign near and dear to your heart that could be appealed on the grounds that Morris and Secunda lay out.

Still, Morris and Secunda’s effort highlights the value of bringing outside perspective into union strategy. While many unions are understandably focused on beating back the Friedrichs v. CTA assassination attempt and on practical efforts to sign up agency fee payers to union membership, there is a bad need for a no-holds-barred strategic dialogue on the future of labor. It would be wonderful if the AFL-CIO could formally convene it, but it clearly would need one or more of our great labor colleges to pull it together. When it comes to revitalizing the labor movement, there might not be a lot of new ideas, but there are clearly lots of good old ideas that we’ve somehow forgotten.

[Originally appeared at In These Times.]

As the spring semester starts up at the City University of New York, union activists continue the painstaking work of preparing for a strike authorization vote. Faculty and staff at CUNY have been working without a contract for over five years. While Governor Cuomo disinvests in the primary college system for working class New Yorkers, management proposes salary increases that amount to decreases after inflation.

The parallels between the struggle to save CUNY and the struggle over the future of Chicago Public Schools are obvious, with one major exception: it is totally illegal for teachers to strike in New York. The last major union to violate the draconian Taylor Law, TWU Local 100, was fined $2.5 million for waging a 60-hour strike that shut down the city’s subway and bus system in 2005. On top of that, the union’s ability to collect dues money was suspended for a year, its president jailed for 10 days and each individual striker was fined two days pay for each one day on strike.

But in an interesting twist, the anti-union Friedrichs v. CTA case currently under consideration by the Supreme Court could actually lay the ground work for making public employee strikes in New York and elsewhere constitutionally protected free speech.

A long history of carving unions out of the 1st Amendment
One could understandably be confused about how a collective protest that involves refusing to work could even be illegal in a country that prides itself on its supposed pursuit of life, liberty and whatnot. How is a strike and picket line not a constitutionally protected exercise of free speech and free assembly? And how is prohibiting workers from striking not a violation of the 13th Amendment’s protection from involuntary servitude?

Early on in our nation’s history, conservative courts treated unions as criminal conspiracies and strikes as interfering with employers’ property and contract rights and with Congress’ responsibility to regulate interstate commerce. Rooted in imported English common law and beginning as early as 1806, these instances of what early unionists derided as “judge-made law,” should be regarded as a betrayal of the American Revolution.

As detailed in William Forbath’s Law and the Shaping of the American Labor Movement, unions’ legislative agenda during the 19th and early 20th century was basically to get the government and courts out of labor disputes. Unions sought to have labor legally defined as “not a commodity” and to restrain judges from issuing injunctions against pickets and boycotts, with mixed results.

By the time the National Labor Relations Act was passed to encourage and regulate collective bargaining, its framers recognized that if they rooted the Act’s authority in the 1st Amendment, it would not be found constitutional by the conservative Supreme Court. And so labor rights in this country are rooted in the Interstate Commerce Clause, which is why they’re so wonky.

Public sector unions, whose ability to function is immediately at stake in the Friedrichs case, are not covered by the federal labor act. Instead, many states passed laws that are modeled on the NLRA. But with a crucial difference: when bosses get to pass laws that apply to their employees (which, if you think about it, is exactly what public sector labor law represents), they’re guaranteed to make it even more unfavorable than private sector rules.

Unsurprisingly, many states make strikes by public sector employees like the CUNY faculty and staff totally illegal, or else severely restrict them. Many states also make many union demands illegal, either by statute or by judicial decisions. The Friedrichs case, by inserting public employees’ 1st Amendment rights into collective bargaining could give unions a very useful tool for reversing many anti-union measures that are on the books.

If collective bargaining becomes political speech…
Public employees have actually enjoyed a degree of free speech protections at work for some time, making them the only workers in America who do. Remember, the 1st Amendment only prevents the government from restricting a citizen’s rights of free speech and assembly. Since public employees work for the government, their employer is constitutionally forbidden from restricting or coercing their political speech.

Historically, this has been limited to actual political speech (supporting a candidate, wearing a political button, speaking in the press and the like). Unions have carefully kept their political funds and activity separate from the agency fees that they collect from the public employees they are required to represent by law. Right-wing efforts to fight the ability of unions to collect dues and fees by arguing that the political activity of public employee unions is compelled political activity have been decisively rejected since 1978.

So, in order to overturn this long-settled precedent the parties behind Friedrichs—egged on by Justice Alito—are lodging a wildly expansive argument that every interaction that a union has with its government employer is inherently political. Bargaining demands, grievances, labor-management committees, job actions: all of it, goes the Friedrichs argument, is political, thereby making the collection of agency fees compelled political speech.

Let’s think about some of the implications of this argument. For starters, the Taylor law that tells CUNY faculty and staff that they will be fined and their leaders imprisoned if they strike seems clearly to be a coercive restriction on their chosen method of political speech. If the Professional Staff Congress is hit with any penalties for either planning or going through with a job action, one hopes they can time their appeals to reach higher level courts after the Friedrichs decision comes down in June.

Across the river in New Jersey, another state with strong unions and shitty labor law, the scope of items that unions are even allowed to raise at the table is restricted by statute and a number of horrible court decisions.

One area of restriction is a strong prohibition on pattern bargaining (i.e. one bargaining unit aligning its demands with another bargaining unit’s settlement). The most farcical example of this is Rutgers University, where management habitually creates new job titles that they argue fall outside the bounds of the existing faculty bargaining unit.

When the union organizes these new groups (adjuncts, post-docs, summer and winter instructors), management threatens legal hellfire and judicial damnation when the union seeks the same rights and benefits for all their members. The union could, however, propose one contract, comprehensive of all of the job titles it represents, in the next round of bargaining and tell the state university to go ahead and take them to court when they stick to their guns.

More galling: teachers unions in NJ are prohibited from even raising demands around class size and staffing levels. I can think of few issues that teachers have more of a burning desire to talk about! But they can’t, at least at the bargaining table.

However, once those bargaining sessions between union reps and their government employers are redefined by the Supreme Court to be political speech, any law restricting what can be said, what items can be raised, seems to be a restriction by the government on those union members’ free speech rights. Perhaps the New Jersey Education Association and American Federation of Teachers New Jersey locals should celebrate their new rights with a coordinated campaign to lower class sizes across the state?

Perhaps most deliciously, the right-wing Friedrichs effort is in direct opposition to Gov. Scott Walker’s offensive agenda in Wisconsin. Walker’s anti-union Act 10 did a lot of nasty things to public employees, some of which will continue to stand. It took away payroll deduction and forced unions to annually recertify as the collective bargaining agents for their members.

But what mostly caused union membership to plummet in the state was that certified unions were prohibited from bargaining over anything of substance; not just raises that exceed inflation, but duties, hours and work schedules and every other everyday issue that workers want to have a voice at work about.

If Justice Alito gets his way, then Scott Walker is suddenly massively violating the free speech rights of Wisconsin public employees. I humbly suggest that every union still certified demand to bargain the day after the decision. They could throw their old contracts on the table and sue every school board and state agency that refuses to discuss those items. I’d also suggest that they begin drawing up some new picket signs.

Labor needs a Plan B
The hubris and general stupidity of Justice Alito—who tried and failed to get this ruling in last year’s Harris v. Quinn—and the vast right-wing conspiracy of union-busters who raced this case through the courts in less than a year perhaps shouldn’t be surprising. They just want to kill the unions, and they’re used to getting their way.

But, in their narrow-minded pursuit of denying unions in the public sector agency fee, they are mindlessly trying to just hand to us free speech rights that conservative jurists and politicians have studiously avoided granting to union efforts for over two centuries.

Unions’ and their allies’ public messaging against the Friedrichs assault has focused on how it is an assassination on the labor movements, a nakedly partisan attempt to weaken a field operation that helps turn out votes against the GOP and how it will deprive many thousands of working people—particularly women and workers of color—from a pathway to a better life. And all of that is true. And unions have put together a very robust defense against Friedrichs, with an impressive array of supporting briefs, that is right on the facts, right on the legal precedents and right on the politics.

But labor also needs more people engaging in a debate about what, in theory, could come the day after an adverse Friedrichs decision. That shouldn’t be limited to toying with the legal implications of the Court’s logic, but also what kind of mobilizations, boycotts and—dare we dream?—strikes could be launched in the days and weeks after.

Outlets like In These Times are great for offering alternative perspectives that contribute to a broadening debate. But I sure as hell hope that the unions that have the most to lose from a “bad” Friedrichs decision, and who have done most of the heavy lifting on winning in court, are also putting together alternative war rooms to figure out Plan B.

The more that we visibly and loudly plan and prepare our response, and calculate the potential upsides of a “bad” decision and maybe (some of us) even get a bit excited about the chaos we can create post-Friedrichs, the more likely that five members of the Court might realize that Alito is pushing for them to make a very big mistake. But if the Supreme Court goes ahead and tears up the current labor law regime in a nakedly partisan act in the middle of a presidential election, then we had better be prepared to create the chaos that the Court is inviting.

[Originally appeared at In These Times.]

On December 14, Chicago Teachers Union Vice President Jesse Sharkey announced the results of the union’s strike authorization vote. For the second time in three years, the union’s membership voted overwhelmingly to strike if necessary. “Our ability to withhold our labor is our power,” declared CTU President Karen Lewis on the eve of voting.

That axiom, that strikes are where unions derive their power, is pretty out of favor these days. A wave of disastrous strikes and lockouts beginning in the Reagan era that helped deunionize much of American industry has left the surviving labor movement skittish about the prospect of full-scale walk-outs. But bright spots like Fight for 15, Bargaining for the Common Good and the Chicago teachers strike have shown that workers can win strikes (if one defines victory as workers walking away from the ordeal feeling more powerful). Labor activists and leaders, particularly as they anticipate a viciously anti-union Supreme Court decision in Friedrichs v. CTA, have to figure out more strategies to revive the strike weapon in our current era.

How strikes became a “bad idea”

Ironically, the seeds of labor’s 1980s defeats were planted during its best seasons for growth in the 1930s. During the wave of sit-down strikes that grew union membership by leaps and bounds, Congress passed the National Labor Relations Act in 1935. The purpose of the act was to establish an orderly process for certifying unions and compelling employers to bargain in good faith with them. The plain language of the law also made it illegal to fire an employee for union activity.

But in two of the early Supreme Court cases that established the constitutionality of this law, the court casually cut into workers’ rights to their jobs.

In a 1939 case called NLRB vs. Fansteel Metallurgical, the court ruled that the NLRB cannot compel the reinstatement of a fired worker who broke the law, even if his illegal activity was part of an otherwise protected union activity like striking. Sit-down strikes, the physical occupation of someone else’s property to prevent their business from operating without you, was simply not going to be a protected activity under this new labor law regime.

In an earlier case, 1938’s NLRB v. Mackay Radio, the Supreme Court stripped workers of their unalloyed right to return to their jobs after a strike. The Court held that not only was an employer allowed to replace striking workers to keep a business going during a strike, but that they could keep the scabs on the job after the strike was over. The strikers would not be fired, per se, as an employer would have to make provision to recall former strikers as vacancies occur.

The McKay germ lay dormant for over 40 years. There were thousands of strikes in the United States all the way through the 1970s. And while plenty of bosses hired plenty of scabs, those scabs were almost always let go after a strike. To take a worker’s job away for standing with her union was viewed as almost un-American.

Or at least it was, until no less of an American than the sitting President, Ronald Regan, fired the striking air traffic controllers in 1981, sending a strong signal to industry: have at it.

McKay was weaponized by the Phelps-Dodge Corporation in 1983. The copper mining company bargained its Steelworkers local to impasse over drastic cuts in pay, benefits and working conditions—essentially daring the union to strike. Exploiting the bad economic times, the company had no problem importing a permanent replacement workforce, for whom even the reduced pay was far better than most jobs available. After 12 very ugly months, the scabs voted to legally decertify the union.

This Phelps-Dodge blueprint is how much of the deunionization of American industry occurred in the Reagan-Bush (and Clinton) era. Unions that survived frequently did so by capitulating to management’s giveback demands.

Tellingly, the AFL-CIO’s 1990s version of labor law reform was not for organizing rights, like card check, but a bill to undo the McKay doctrine and ban the permanent replacement of strikers. In 1994, the year that the Workplace Fairness Act effectively died, there were 14 major strikes involving over 108,000 workers. By 2012, there were only four, and they involved less than 15,000 workers.

And perhaps most telling of all: Unions’ most recent attempt at labor law reform, the Employee Free Choice Act, did not include any provision on strikes. We have abandoned the strike weapon.

Well-planned strikes serve as inspiration

Not every union has abandoned strikes. The last Chicago teacher strike served as the strongest example in years for everyday workers of the power of a well-planned work stoppage.

On paper, it made no sense that a teachers union could wage a successful strike in 2012. Teachers unions had suffered from years of well-funded political attacks that cast them in the media as villains who prioritize “adults’ interests” over “students’.” The city’s power brokers, Mayor Rahm Emanuel in particular, were crying broke and exploiting civil rights rhetoric in their give-back demands. And there were thousands of teachers in charter schools and unemployed and recently retired teachers in the Chicago area who could have been recruited as replacements if they viewed the Chicago Teachers Union as striking against the public interest.

Instead, the Chicago public overwhelmingly viewed the CTU as striking for the common good. Partly, this was thanks to two years of deep and meaningful community organizing and partnerships that the union diligently pursued knowing there would likely be a strike. And partly, this was thanks to the union bargaining for school resources demands that resonated beyond just their membership.

For the last really big strike that got even non-union workers thinking about their power, you have to go all the way back to 1997. The Teamsters—who, like the CTU at the local level, had elected progressive reformers to their national leadership—also spent years preparing for a planned strike against UPS. These sort of well-planned strikes are crucial for getting workers, those in unions and those without, to think about power and the exercise of it.

In his book Only One Thing Can Save Us, labor lawyer Thomas Geoghegan expresses a preference for one-day strikes, which he has seen used effectively by the hotel employees union. In such a strike, a union signals its intent to return to work after 24 hours, allowing strikers to impact the employer’s business but protecting them from permanent replacement.

Joe Burns, also a labor lawyer, has written extensively on labor’s need to bring back the strike weapon. In his Reviving the Strike, he scorns one-day “publicity strikes” as no substitute for “an effective traditional strike,” which he defines as one that aims to halt production.

Burns’ contribution gets us thinking not just about the need to get more strikes going in this country, but to really think through how to define a “successful” strike. But his mantra-like focus on “halting production” is strangely limiting. As a result of union busting and globalization in manufacturing, most of the new organizing and strategic contract campaign action is in healthcare, education and the service industry. A Chicago teacher would likely rankle at the thought of their strike “halting production.” (What, after all, does their employer aim to produce? One hopes it is citizens and scholars, but fears it is docile workers and future prisoners.)

My own union work so far has been in hotels, home healthcare and education. I have worked on only a small number of work stoppages, most of a limited duration. In my experience, employers are working from such an ossified playbook that unions can get a lot of mileage out doing the last thing that the boss and his lawyers expect.

For example, hotel employees can cost the company more money by not striking on the day the company expects, thus costing them the expense of paying and lodging scabs as well as the continued payroll costs of the union members who stayed on the job an extra day.

I don’t prescribe a perfect form of strike. American workers will not learn to strike again from articles like this or books like Burns’ and Geoghegan’s, which are really more for labor nerds and bookish organizers—they will only learn to strike by watching contemporary examples of workers striking. Since it’s hard to raise chickens without eggs, even one-day “publicity strikes” have an educational value.

But many thousands times more working people will be educated by the next Chicago Teachers strike. The teachers will halt production, but, perversely, that will save their employer money. Chicago will continue to collect taxes and be freed of the burden of compensating its teachers for a few weeks. (In fairness, Joe Burns expounds upon this unique aspect of public sector strikes in his follow-up book, Strike Back.)

To be effective, the CTU must take the students and parents who will be disrupted and bring that disruption to the doorsteps of Rahm Emanuel, Illinois Gov. Bruce Rauner and Chicago’s unelected school board. To win for the working class, they must continue to loudly proclaim, as CTU President Karen Lewis did, “Your power is your ability to withhold your labor.”

Possible paths forward

Our challenge is to inspire even non-union workers to think about their power and how to exercise it using the tools we have on hand: a union movement with miniscule density in only a handful of service and public sector industries largely led by staff who have precious little personal experience with leading job actions. We should be clear about how deep this deficit is.

One of the most promising labor projects of the moment is Bargaining for the Common Good. This is an effort by public sector unions in Washington, Oregon, California, Minnesota, Wisconsin, Illinois and Ohio to align their bargaining demands with each other and with community demands around progressive taxation, affordable housing, youth incarceration and government transparency.

These community demands fall well outside a union’s scope of bargaining and are therefore technically illegal. But as long as the unions also have demands that are within their legal scope (not hard to do when employers refuse to pay people what they deserve), then the unions can press the community’s case. This is a brilliant way of getting community to see unions’ fights as their own and of building worker and community power—and the next Chicago teachers strike will likely be the highest profile test of the theory this side of the Mississppi.

What follows could be bigger. A number of public and private sector unions in Minnesota have contract expirations in 2016. Their bargaining demands for the common good are focused not just on their individual employers but also on the largest employers in the state: Target and Wells Fargo. This is the potential for the closest thing we’ve seen in a while to a general strike (something Minnesota has a history of doing).

Another promising project is the Fight for 15. Some have dismissed the series of rolling one-day strikes for increases in the minimum wage and organizing rights as mere P.R. stunts. But there is something deeply radical and significant at play here. Workers who don’t even technically have a union are proving their value—and their power—to their bosses by withholding their labor. And the response from the general public is, at worst, a sort of patronizing “Well, good for them” but more often something a bit closer to “Go get ‘em!”

Just two short years ago, it would have been inconceivable to most union strategists that the lowest paid and most vulnerable workers would be willing to risk it all as these fast food workers have done. But, then, one is reminded of the old Dylan lyric: “When you got nothing, you got nothing to lose.”

The great potential of Fight for 15 is that unorganized workers see reflections of themselves in the strikers and begin to fantasize about what a job action could look like at their workplace. This is the perfect complement to well-planned and executed strikes by established labor unions.

The labor wars of the 1980s and 1990s were won by bosses who caught their unions by surprise. The unions that are still here are survivors who have an obligation, both to their continued survival and to the hope of inspiring a greater wave of organizing, to meaningfully plan for job actions that can win in every round of bargaining.

Those who toil in alternative forms of worker representation—the workers centers, advocacy groups and non-majority unions—should strategize and experiment in job actions that help their members and anyone watching and drawing inspiration feel a sense of their own power and agency.

And the rest of labor, starting with the AFL-CIO, should send a strong signal that strike plans are back by incorporating a ban on permanent replacements in the successor to the Employee Free Choice Act and as part of a broader “right to your job” movement. For those public sector unions who are most threatened by the pending Friedrichs decision, a wave of “free speech” strikes to both celebrate and protest the dubious new rights that the Supreme Court threatens to give them.

[Originally appeared at In These Times.]

As unions file their legal briefs in the epic Friedrichs vs. CTA anti-union Supreme Court case, one clever legal scholar argues that Friedrichs is “an unexpected tool for labor.”

University of Chicago Teaching Fellow Heather Whitney’s forthcoming paper in the NYU Journal of Law and Liberty makes a compelling case that an adverse decision in Friedrichs would hand unions a first amendment argument to refuse to represent non-members. And, as I have argued, that is a roadmap to union competition at workplaces, competing demands on individual employers and the end of contractual no-strike agreements.

Chaos, in other words—and just the sort of chaos that this attack on unions deserves in response.

Friedrichs and labor’s response

The First Amendment is at the heart of the Friedrichs case. It is a right-wing argument that public sector employers (in other words, the government) violate individuals’ First amendment rights by compelling employees, through contracts negotiated with unions, to pay a fee to a union. Currently, unions that are certified to represent a group of employees in a bargaining unit are legally compelled to represent all of the employees in that unit. That means not just bargaining on their behalf, but expending significant resources on grievances, meetings, communications and everything else that goes into running a union.

But union membership, including the payment of dues, is completely voluntary. That’s why unions negotiate agency fees into contracts. These fees are calculated through complicated formulas to only represent the true cost of bargaining representation. Agency fees do not pay for things like political activity (unions usually have separate voluntary political funds).

But the Friedrichs case argues that any interaction that a union has with the government, including bargaining, is inherently political. Agency fees, therefore, are compelled political activity.

This ridiculous argument is only before the Supreme Court now because Justice Samuel Alito inserted the issue into last year’s otherwise unrelated Harris Vs. Quinn case. That case was only a partial defeat for unions, as Alito lacked the fifth vote to totally do away with agency fee in the public sector. In his written decision, Alito basically solicited for someone to bring a case with exactly Friedrichs’ set of facts, and it has raced up to the Supreme Court. This is the stuff of a vast right-wing conspiracy.

Unions have mounted an excellent legal case, backed up by a broad array of supporting briefs. A ruling against the unions would reverse a 37-year-old precedent. The Supreme Court is supposed to be guided by the principal of stare decisis, which is essentially to let long-settled precedent stand. And finally, the case will be decided in the middle of a presidential election that is already turning on questions of inequality and workers rights. In his handling of the Obamacare and gay marriage cases, Chief Justice Roberts has shown that he does seem to care about his legacy. Would he support such a nakedly partisan political move by his Court in this election cycle?

So, on the facts, on the law and on the politics, unions really ought to win this case. And, to be clear, agency fee and exclusive representation are worth defending. They create the conditions for tremendous worker power at workplaces that have both.

But if unions lose agency fee, then exclusive representation no longer makes sense. This is not simply because of the free-rider problem that will drain union resources. It is because exclusive representation is essential to labor peace, and a Friedrichs ruling that guts union rights is the clearest signal that the billionaire class does not want—nor does it deserve—any kind of peace.

Labor’s First Amendment rights

If the Supreme Court rules that every interaction that a union has with its government employer is inherently political, Heather Whitney argues in her article, then that would open the door to unions claiming their own First Amendment right—to choose who they represent. In other words, if agency fee is compelled speech, then the duty of exclusive representation imposed on unions is also compelled speech.

Imagine a group of registered nurses at a public hospital who want to bargain for much larger raises than the rest of the members of the bargaining unit. Or imagine a group of young workers who want to bargain away pensions in exchange for larger salaries in the here and now. (Forget for the moment that both scenarios are just bad unionism.) Once these contract demands are considered by the Court to be political speech, then the fact that these workers are compelled by the government to represent workers who disagree with them, and who could outvote them, is a violation of their First Amendment rights!

I’ll also point out that unions’ rights to freely engage in actual political speech is already impeded by the duties of exclusive representation. Unions are politically cautious and loathe to wade into non-economic controversies for fear of alienating a segment of their bargaining unit. For instance, most unions were slow to oppose the wars in Afghanistan and Iraq for fear of alienating bargaining unit members who were veterans or who had children in the military. Even in a so-called “Right to Work” state, those people may not be members but they could still express their displeasure by voting to decertify the union. Does that not coerce unions into more limited political activity?

This is not an abstraction. The day after the Friedrichs decision, if the Court kills agency fee by making all public sector union work “political,” does anybody doubt that the first time a non-member walks into a union office with a grievance that she will be told, “Join the union or get the hell out of our office?” And then we’ll be off to the races with a case that will go to the Supreme Court to revisit exclusive representation in the public sector without agency fee.

Then, the only question would be whether the government has a “compelling interest in requiring unions to negotiate and grieve their nonmembers’ complaints without receiving just compensation.” And here scholarship would demonstrate that it has been the employers’ preference to deal with one exclusive representative because it is easier for them, and, as Whitney writes, “convenience is no response to whether exclusive representation is properly tailored to the government’s legitimate interest.”

Breaking the peace

So far, we’re just talking about public sector unions because having the government as employer, Alito’s right-wing conspirators argue, converts all of the activities of those unions into inherently political acts. But if this Friedrichs logic takes hold, then arguably having the government—in the form of the National Labor Relations Board—compel unions to represent workers they would choose not to (and perhaps vice versa) might become unconstitutional as well.

Currently, the NLRB will only certify unions as exclusive representatives of all of the workers in a bargaining unit, and only if the union can win a majority vote. This is often an insurmountable threshold for unions to reach in the face of intense employer opposition. In his 2005 book The Blue Eagle at Work, law professor and labor law expert Charles J. Morris documented that in its early history the NLRB used to certify minority unions as the bargaining agent for their members only. Morris argued that this pathway was still technically open to unions to gain a foothold at a workplace and legally compel an employer to recognize a non-majority union.

The modern NLRB has dodged efforts by unions to get an advisory ruling on Morris’ theory. But if the Friedrichs logic holds, private sector unions may have a First Amendment challenge to the NLRB’s continued refusal to grant certifications for just the members they choose to represent.

And that, if you’ll follow me down this rabbit hole, could spell the end of contractual no-strike clauses. They would simply be unenforceable in an environment of competing, non-exclusive, members-only unions. Workers would simply drop their union memberships to participate in wildcat job actions. Or else join new workplace organizations that have not signed agreements committing to labor peace.

Don’t get me wrong. I don’t have any fantasy of some huge wave of potential strike actions that would occur tomorrow if only the enraged working class would stop being “repressed” by current union leadership and our current collective bargaining agreements. But these no-strike clauses go well beyond total shutdowns of production to include all manner or slow-downs, work-to-rule and refusal to carry out selective duties.

Any experienced union rep reading this can recall at least one incident of having to talk his members off a ledge—out of refusing a new duty or clocking out for lunch at the same time. These actions would be concerted protected activity in a non-union workplace, but under a “no-strike” contract could result in all participants legally getting fired. How the hell are we supposed to get workers who don’t enjoy union protection fired up about taking action against their bosses, when their unionized peers can’t set any kind of example in terms of actually enjoying their supposed protections?

It’s funny that the First Amendment could make this possible. Union rights in this country are not constitutionally rooted in the First Amendment, but in Congress’ power to regulate interstate commerce—which is one of the reasons that our labor laws make no damn sense. So, yes, Friedrichs could be a useful tool for labor by finally connecting our work to our rights of free speech and free assembly.

But if you’ve followed me down this rabbit hole and are starting to get a little excited about a possible post-Friedrichs world, let me give you an “on the other hand.” Heather Whitney’s First Amendment argument for ending the duty of exclusive representation would come before a Court that would not be weighing it against a long-established precedent as Roberts’ Court is considering Freidrichs. It will be weighing the argument against a very recent Court decision.

If labor successfully causes enough chaos of the nature I’m driving at—or even poses a credible threat to do so—don’t be surprised if the Supremes try to put the lid back on Alito’s can of worms.

[Originally appeared at at “In These Times.”]