This May Day, It’s Time to Cut Work Down to Size
[This article was co-authored by Leo Gertner.]
Every year, the rest of the world marks the first of May with worker celebration and protest. American unions that sprung up in the years after the Civil War picked the day to launch their inspirational campaign for a better balance between work and life, captured in their slogan: “Eight hours for work, eight hours for rest, and eight hours for what you will.”
Back then, the average manufacturing worker toiled 100 hours a week. Conditions have improved, but we’ve hardly achieved the eight-hour day. Today, half of all Americans report working more than 50 hours a week, while millions of “involuntary part-time” employees at corporations like Walmart scramble to find enough hours of paid work to survive.
Even Republicans recognize this crisis, with their recent belated proposals for paid family leave. These ask working people to fund their time spent caring for their families by taking loans from Social Security, cannibalizing their retirements. They’re not wrong in principle, just in scope and methodology. Working families just deserve far more control over their own time—and many fewer years working—than most policymakers are ready to admit.
As productivity grows and automation produces new gains, fewer and fewer work hours are needed to provide for the material needs of global humanity. As a result, a concept often associated with science fiction has gained traction: “post-scarcity”—a world where abundance exists with little labor, due to advances in technology, making ideas like the four-day workweek possible.
Accordingly, there has never been a better time to equitably share the work that humans must still do, but at reasonable hours and adequate pay that do not result in increased risk of injury and illness. To get there, though, workers must control when and how they must devote themselves to paid labor.
Reducing the hours in the day, the days in the week, and the years in a life spent working for someone else has long animated worker organizing, while employer resistance to shorter working hours has been a through line in U.S. history.
The first recorded strike for shorter hours—an unsuccessful effort by Philadelphia carpenters to win a ten-hour day—occurred during George Washington’s first term as president. The first May Day strike in 1886 infamously climaxed with a violent confrontation in Chicago’s Haymarket Square; its leaders were martyred on the gallows in a frame-up that caused an international sensation.
Prodded by unions, states and even the federal government enacted shorter-hours laws throughout the 19th century, but these were quickly rendered null and void. The 1905 Supreme Court case that symbolizes the pre–New Deal era when the courts vigorously resisted government regulation of private industry, Lochner v. New York, specifically overturned a law that limited the working week for bakers to 60 hours. The Court’s position was that the law interfered with workers’ “right” to “agree” to work longer hours. In 1902, the National Association of Manufacturers campaigned against a federal short-hours law for what it termed workers’ “right to work more than 480 minutes of a calendar day.”
Where laws combined with strikes and boycotts to briefly win a shorter working day, employers routinely reduced wages along with hours. The very concept of hourly wages is a by-product of 19th-century fights for “ten hours pay for eight hours work.” We still measure compensation in units of time because time and money are inextricably linked, and because employers have spent centuries chipping away at whatever gains in personal time workers have managed to win.
In 1938, the Fair Labor Standards Act purported to settle the hours question. It set a weekly maximum of 40 hours of work—not a daily maximum of eight or fewer that unions had long demanded—and made the main enforcement mechanism a requirement to pay time-and-a-half on overtime work. Far from being a stick to punish companies that didn’t hire enough employees to avoid having to pay the overtime premium, it proved more of a carrot to entice employees to overwork. At one of the first meetings of the newly merged AFL-CIO, a 1956 Conference on Shorter Hours, the first speaker to follow Federation President George Meany flatly declared, “Workers are eager to increase their income, not to work for fewer hours.”
Workers’ need to put in extra hours was exacerbated beginning in the 1970s, when wages lagged productivity and inflation ate whatever material gains workers had won through collective bargaining. The rising costs of employer-paid health insurance also held down wages, making a bad situation worse.
Our current system—pegging benefits like health care and retirement to individual jobs and employers—warps employers’ hiring incentives. Full-time jobs cost more to create because of the additional costs of benefits. Employers try to squeeze as much time as possible from these workers to make up for the higher costs. Conversely, other parts of the workforce are kept part-time and temporary to avoid paying any benefits at all.
Hence, if an employer wants 60 hours of work to be done, it has two choices. Split the job into two 30-ish-hour jobs with no benefits and unpredictable schedules, or create one full-time job with 20 hours of overtime to get the biggest bang for the buck for the additional cost of benefits.
Whether they work too much to live or not enough to survive, workers can suffer burnout and mental illness, reduced life expectancy, and a whole range of undesirable outcomes.
This current state of affairs is hardly the eight-hour day that the original May Day strikers fought for. American workers once made republican arguments that reducing the workday was essential for full participation in a democratic society. As well, an early theory of the short-hours movement was that the extra leisure would drive up consumer demand in ways that would more than make up for the initial loss of corporate profit. Giving people the money they’ve earned and the free time to spend it has usually been healthy for the economy.
But the hopes of the original May Day demonstrators haven’t come to pass. Average annual hours have steadily crept up in the United States since the 1970s. Today, Americans work an average of 1,780 hours a year, less than South Korea’s 2,024 but substantially more than Germany’s 1,356 (a difference of ten full-time weeks). And yet, German unemployment stands at 3.4 percent, lower than in the U.S., and the nation has similar levels of productivity and a substantially larger middle class. Why can’t we dream bigger?
Our modern problem of striking a meaningful work-life balance is so complex that there’s no one law that could reduce our lifetime obligation to work for wages. But we should start with wages, knowing that they can alleviate poverty, if not solve inequality. As corporations adopt a $15 minimum wage, it’s become clear it’s the bare minimum. By 2024, a single adult without children will need $31,200 ($15 at full-time hours annually) to maintain an adequate standard of living anywhere in the United States. If the wage is not indexed to inflation, it will immediately lose its value again. If 1968’s $1.50 minimum wage had kept up with inflation, it would be close to $12 today and nearly $21 if matched with growth in productivity.
The overtime protections in the Fair Labor Standards Act need to be rethought as well. Right now, salaried employees like social workers and administrative office staff can essentially work unlimited hours without overtime. Obama’s Department of Labor tried to fix this by raising the salary threshold for overtime eligibility from $23,660 to $47,476, but conservative states and business groups successfully sued to block it. Trump’s Labor Department recently lowered the proposed threshold to $35,000, leaving half the affected workers behind. Even when employers are required to pay overtime, it hardly acts as a deterrent to hazardous levels of work.
We should cast aside the 40-hour week altogether—it is an arbitrary and antiquated formula, leaving plenty of room for employers to impose 12-hour days, split shifts, “clopens,” and all kinds of on-call assignments that deprive a worker of the space to be fully human when she’s finally off the clock. Why not six-hour days! Four-day weeks? Would that be so horrible?
But even doubling or tripling overtime pay would not fully discourage employers from overworking their employees so long as the cost of health care is factored into payroll. One less-discussed benefit of Medicare for All is the freedom it would grant workers to walk away from jobs they hate and extra hours they’d rather not work. Employers would lose the perverse incentive to either underwork a large workforce or overwork a smaller one in order to avoid insurance obligations. Medicare for All would enable us, as a society, to spread the work around a bit more evenly.
Social Security is also an important component of striking a better work-life balance. For that reason, we need to expand its coverage to public-sector, domestic, and agricultural workers who don’t currently benefit from a guaranteed federal pension—funding that expansion by taxing incomes above $132,900. Lowering the retirement age would create a better work-life balance too.
Paid vacation and sick leave are also a part of the equation. We are dead last when it comes to guaranteed paid time off. Countries like South Korea, Germany, the United Kingdom, France, and Chile all guarantee employees over 30 days off, while the U.S. won’t even guarantee pay for federal holidays. New Jersey and Washington are among the states leading the way by offering some form of parental leave, largely through temporary-disability insurance. Ten states and D.C. now provide paid sick days. New York City is even considering a paid-vacation law. These policies make employment less unstable for millions of workers and provide needed rest without risking job loss or savings.
The federal government could build on these local efforts by creating a new supplemental Social Security paid-leave fund. Setting it up as an insurance fund everyone pays into helps ensure that workers actually use their earned time off. Those who don’t raise families could use the time off for other pursuits, like returning to school, or even as a bridge to earlier retirement.
In our age of inequality, we are constantly hustling for advantages to meet the spiraling cost of living. Our current work culture tells us if only we got more money or hours, maybe ends would magically meet. Experience, however, makes clear that for the vast majority of working Americans, this time-and-money trap falls short of creating the conditions for a good life. What really would help is more control over our time.
It’s time we cut work down to size.
[This article originally appeared at The American Prospect.]
Fighting Against Racism—And For a Better Paycheck—On the Docks
“Dockworkers have power.” With that simple statement, Western Illinois University professor and In These Times contributor Peter Cole kicks off his compelling new history, Dockworker Power: Race and Activism in Durban and the San Francisco Bay Area (University of Illinois Press).
The story of the west coast International Longshore and Warehouse Union (ILWU), its legendary founder Harry Bridges, and the 1934 San Francisco general strike he led is broadly familiar to Americans who enjoy romantic stories of derring do from the labor movement’s past. Less familiar may be the union’s struggle for anti-racist hiring and layoff policies on the docks, and its crucial allyship in various civil rights struggles.
Cole pairs their history with that of black South African docker organizing that presaged the struggle against apartheid by decades, and created an early and durable institutional stronghold of black power in South Africa.
The similarities between the two unions don’t end with the struggle for their black members’ civil rights. Half a world away, the unions also struggled to maintain job control in a system of casual employment, grappled with job-killing containerization and flexed their power at the choke points of the global economy to extend solidarity to workers’ freedom struggles around the world.
Although rarely in direct communication with each other, especially during the Apartheid era, the unions had remarkably similar approaches to the issues that vexed them. Cole’s book is a valuable contribution to the relatively thin field of global union comparisons.
Workers of the world (trade)
By the nature of their work, dockworkers of all countries have long been more cosmopolitan than many comrades in their respective national labor movements. They are exposed to new ideas and far-away struggles. Cole’s book stresses how these two regional workers’ movements melded their organizing for a better paycheck with the struggle against racism in their broader societies and how—keenly aware of their leverage in the fast-moving global economy—they went on to exercise transnational solidarity at these ports of trade.
One of the substantial victories of the 1934 Bay Area strike was the replacement of the shape-up system—the informal hustle for day labor work—with a union-operated hiring hall that worked to racially integrate the workforce. African-Americans from southern states joined the ranks en masse during World War II and were welcomed into union membership.
But the end of the war brought a serious reduction in work on the docks. Union leadership recognized that if membership ranks within the hiring hall were reduced on a “last in, first out” basis, the newer black longshoremen would disproportionately feel the effects of the layoffs—an action that would leave scars within the port workforce for generations. In an act of racial solidarity that stands out in the pre-civil-rights era, the Bay Area locals of the ILWU decided instead to share the lack of work. All existing members stayed in the union, and worked fewer shifts until business picked back up.
As a racially integrated union with a large black membership, the ILWU naturally played a leading role in connecting the labor and civil rights movements. The Bay Area locals were key organizers of a local 1963 civil rights demonstration, in addition to organizing one of the farthest-traveling contingents to that year’s famous March on Washington. They formed the membership backbone of the local chapters of the NAACP and Urban League. They pressed successfully for fair employment and housing laws in Oakland, and the union used its pension fund to build racially-integrated cooperative housing in the rapidly gentrifying Fillmore neighborhood in San Francisco.
As Cole notes, the exceptional role of the ILWU in many left-wing struggles is often glancingly mentioned in historical accounts of the postwar labor movement. This book is the first time all of these examples and more have been brought together in a comprehensive narrative.
Durban dockers have enjoyed far less attention from American scholars. Their history of labor militancy dates back to the 1950s, although the apartheid state did not extend formal union recognition to industries that employed black workers until the 1980s. The union they formed—today called the South African Transport and Allied Workers Union (SATAWU)—made substantial gains in pensions, health and safety—and won for workers a guaranteed minimum wage regardless of the availability of work. It also affiliated with the Congress of South African Trade Unions (COSATU), a junior partner with the African National Congress (ANC) in both the successful final drive to end white minority rule and in the post-Apartheid government since 1994.
Interestingly, the ILWU’s commitment to civil rights extended to international solidarity. As early as 1962, Bay Area longshoremen occasionally refused to unload South African cargo in protest of Apartheid. In 1984, union members refused to unload South African cargo off of an older non-containerized ship, the Nedlloyd Kimberly, which sat docked at San Francisco’s Pier 80 for 11 days. The protest attracted the attention of community activists who joined daily rallies outside the port and eventually brought the ongoing work anti-apartheid boycotts to Bay Area colleges and community groups.
In more recent years, Bay Area longshoremen have refused to unload ships carrying Israeli cargo in 2010 and again in 2014, during periods of active military attacks against Palestinians.
Durban dockers, too, have notably refused to unload ships under contract with Israeli corporations in protest of what they call—and they have some license to say this—“an apartheid regime.” And their solidarity activism doesn’t end there. In 2008, they prevented a bloodbath by turning away a Chinese shipment of armaments that the embattled president of neighboring Zimbabwe, Robert Mugabe, had ordered in a last-ditch effort to prop up his regime.
Maintaining worker power in the face of economic change
Both dock workforces began their nonunion eras essentially as on-call temps. In addition to racially integrating the docks, the ILWU-operated hiring hall also freed workers from bribery and the blacklist and allowed them to keep the best part of casual employment—only showing up for work when they felt like it and needed the paycheck.
The non-employee status of Durban dockers, on the other hand, was a source of union power and legal protection, and made de-casualization the employers’ strategy to reign in the power of the unions. The Apartheid system of labor relations basically exempted industries that employed black workers from statutory collective bargaining, while making strikes illegal. But if workers finish their shift with no promise or guarantee of more work the next day and—collectively and entirely coincidentally—don’t bother showing up in the morning to see if there’s more work available until the wages get better, is that legally-speaking an “illegal” strike?
By defying white boss power in work stoppages, the Durban dockers became pioneers in the African freedom struggle. A 1954 Durban docker strike resulted in wage concessions, but also the termination and blacklisting of strike leaders. Other strikes followed, but the workers were careful to not elect any formal leadership. Cole argues that the dockers sparked a strike wave in other industries in the port city in 1973. Those Durban strikes are widely acknowledged as a turning point in the struggle against Apartheid.
White authorities retaliated by making the dockers regular hourly employees, which stabilized the workers’ incomes but legally restricted their ability to strike. (The Apartheid state did move to formally recognize unions of black workers by the end of the decade, and the post-Apartheid constitution protects the right to strike.)
Another economic change that all the world’s dock workers had to contend with was containerization. The standardized containers—40 or 20 feet long—that transition neatly from train to truck to boat (and back again) have revolutionized world trade. Filled with anything from diapers to televisions to just about any cheap plastic thing slapped with a “Made in (fill in the blank)” label, they rocket products around the world in the global logistics supply chain.
Amazon’s two-day shipping program would be largely impossible without them. Entire fleets of boats have been replaced to accommodate the containers. Harbors have been dredged, ports relocated and shorelines reshaped.
Of course, they’re job killers. Machines do much of the heavy lifting that used to require full crews of workers.
Containerization was imposed on Durban dockers in 1977, years before they gained formal collective bargaining rights. In the decade before container ships first appeared at the Durban docks, the workforce peaked at 3,500 workers. By the time automation was fully implemented in the mid-1980s only 1,200 workers remained.
In the Bay Area, Harry Bridges had the unique combination of street cred, shop-floor power and battle fatigue to make an accommodation with the shipping magnates. Rather than engage in dubious battle to preserve back-breaking jobs that were rapidly becoming unnecessary, Bridges struck deals in 1960 and 1966 that guaranteed all existing longshoremen wages even if there was no work. The slimmer crews who would work with the machines to remote control the giant steel boxes on and off the boats were promised a greater share of the profits.
When rank-and-filers felt that those financial gains did not make up for the loss of job control they had previously enjoyed, they went on strike over Bridges’ objections during the winter of 1971 to 1972. Stung, the old Communist militant lent no personal support to the strike.
Still, the organized workers who remained employed in the Bay Area and at the world’s ports enjoy a position of tremendous leverage within globalized capitalism.
Strangling the chokepoints of global capital
There is an understandable tendency among those of us who care deeply about restoring the power of unions to grasp for breakthrough strategies and inspiring flare-ups of worker militancy like the recent teachers strikes and digital newsroom organizing wins. In contrast, trade unionists who instead focus on port workers and truck drivers can seem hopelessly quaint and backwards-looking. Meanwhile, global capitalism is still at its root about making and selling products in the global marketplace. Workers who have a hand in how quickly those products move—if they move at all—retain the capacity for tremendous power.
Another book that takes stock of the potential power of workers at strategic locations in the global supply chain is Choke Points (Pluto), a new collection of essays edited by Jake Alimahomed-Wilson and Immanuel Ness. Peter Cole is here as well documenting the Durban dock workers’ solidarity actions on behalf of other African struggles for freedom from colonialism.
Elsewhere, Peter Olney, former organizing director of the ILWU, makes a characteristically masterful contribution on the evolving nature of the global economy and the west coast longshoremen’s role in it. He writes, “the future for powerful dockworkers lies in conceptualizing themselves as logistics workers.” By this he means extending longshore organizing and solidarity further inland to the warehouses and trucking companies that combine to form the central nervous system of so-called free trade. The threat of waging strikes that can roll from boat to truck to warehouse would be an obvious point of leverage.
Sheheryar Kaoosji contributes a vital and educational post-mortem assessment of one such effort, the comprehensive campaign to organize the warehouse workers and truck drivers a decade ago in the twin ports of Los Angeles and Long Beach. Despite being “resourced with strategic researchers and experienced organizers, and supported by motivated community partners,” this signature effort of Change-to-Win faltered with the changing political winds in Washington and the rival labor federations and the inability to get workers in different parts of the logistics chain to see their own common cause.
Although the strategic location and potential power of the people who work at these choke points is obvious to outside agitators, the tendency of workers to focus on the boss who gets in their face and the name that signs their paycheck instead is a perennial obstacle to the untapped power of solidarity. Looking at labor battles in Turkey, contributors Çağatay Edgücan Şahin and Pekin Bengisu Tepe describe the problem as a “nineteenth-century working class” going up against the “Age of Industry 4.0’s capital.”
Some of the other essays in the volume are thick with academic jargon that make them less accessible to the layman. It’s regrettable, because if you can parse the language Choke Points is a blueprint for revolution.
The best contribution both of these books could make is to help focus the new generation of young socialists who are eager to help rebuild the labor movement as rank-and-file organizers on where our power really lies. I mean no disrespect to the crucial work of journalists and teachers, but global capitalism can grind to a halt when the ships don’t sail on time.
[This article was originally posted at In These Times.]
“The Class Idea” (And How to Get It)
Many progressives in the United States are prone to making gloomy jokes about moving North whenever conservative forces grip our national institutions. After all: Canadians have unions! They have health care! They don’t pretend that everyone’s middle class!
Why, people wonder, are the politics and labor movements of the two countries so different?
In his new book, Labor and the Class Idea in the United States and Canada, sociology professor Barry Eidlin grapples with this question. His explanation not only illuminates the history but suggests some ideas about a course correction for the U.S. labor movement.
Canada, by contrast, strengthened its labor laws. The Canadian labor party—the New Democratic Party—is frequently in power in certain provinces, acting like a left pressure bloc on Canada’s not-quite two party system.
Eidlin locates the source of this reversal of fortune, in part, in how much harder the Canadian unions had to fight to establish themselves. In contrast, an American labor law regime was handed to union organizers by the New Deal. The fight in Canada took a decade longer for the government to recognize a protected right to engage in union activity, and it solidified a class consciousness among Canadian workers that in the United States is a bit more, well, flippy-floppy.
And this raises the perennial question: How can we get the American working class to recognize its own existence and fight like hell for what it deserves?
The United States and Canada are remarkably similar countries in terms of labor politics. We were colonized by the same European nations—England and France—which shaped our political cultures. And U.S. unions colonized Canadian workplaces by chartering locals north of the border. (The “I” in most unions’ acronyms stands not for “Industrial” but for “International,” which basically means, “Oh, and we have some members in Canada.”) For that reason, Canada’s labor law regime was modeled on the U.S. emphasis on government-certified bargaining units with firm-level contract bargaining, exclusive representation, and the union shop.
The passage of key pro-union legislation, including the 1935 National Labor Relations Act, preceded and in some ways made possible U.S. labor’s great upsurge in organizing and strike activity, Eidlin argues. Union rights were in effect “granted” by the Roosevelt Administration, which was rewarded, in turn, with the entrance of unions into the Democratic Party coalition as a special interest.
The Canadian government responded to increasing worker militancy during the Great Depression with equal parts repression and indifference. By way of example, Vancouver dockworkers went on strike in 1935 for union recognition. The struggle faced armed resistance from employers and the police, briefly spreading to a general strike punctuated by a bloody street fight—the Battle of Ballantyne Pier. In the United States, the West Coast longshoremen who had gone on strike the year prior, won union recognition through federal pressure and a nascent system of New Deal tripartite arbitration. The Vancouver dockworkers’ fight dragged on another decade until the Canadian government created more labor-friendly laws.
As a result, Canadian workers were far more likely to see themselves as a working class with distinctly different interests than the bosses, government, and two major parties. They made common cause with farmers in a third party—the forerunner of today’s New Democratic Party—that continued to gain votes and threaten the power of the established party. Crucially, they continued to strike during World War II for their rights and in protest of rising inflation.
That electoral threat, combined with the impact of the strikes on wartime production, finally compelled Canada’s government to enact a labor law that protected workers’ rights in 1944.
American unions’ post-war rise in militancy, by contrast, was greeted with legislative repression. The Taft-Hartley Act—which outlawed many forms of strikes and legalized anti-union “right to work” legislation—codified the legal status of unions as a mere special interest, one to be “balanced” against management.
Eidlin explores the key tests of strength faced by unions in the postwar years, and how that shaped the divergence in fortunes. Both countries faced a Red Scare, but unions in the U.S. contended with a 1960s New Left not centered on questions of class.
Canada’s labor movement, in contrast, made room for New Left politics within its New Democratic Party. They were able to tap into the hard-fought recognition of class interests to convince the government to strengthen labor laws as a way to mediate industrial disputes.
Eidlin, I think, underestimates the explanation given by many previous scholars for the lack of an American labor party: that property-based restrictions on voting were abolished before American workers had a chance to fully conceive of themselves as a separate class. The American labor movement entered the Great Depression already an atomized collection of special interests to be courted by the two major parties.
Regardless, a more urgent question for American activists is how to to wake the working-class giant. I suggest two trends—legal reform and political realignment—that contain promise.
One idea for creating a new labor relations system is an old idea that’s gaining traction: wage boards. These are public, tripartite industrial standards boards that can raise wages and working standards across entire industries. They were a cornerstone of the early New Deal framework, and still exist in some states, waiting for a demand to be revived.
The National Industrial Recovery Act of 1933, FDR’s first legislative effort to woo unions into the Democratic fold, is perhaps best remembered for its Section 7 guarantee of workers’ rights to organize unions. Though lacking an enforcement mechanism, the guarantee did inspire workers to sign up for unions in droves and helped get labor’s great uprising going.
The act also created tripartite industrial boards, like the National Longshore Board that arbitrated end of the 1934 strike. These consisted of a representative each from companies, unions, and “the public” for each major industry—with the power to establish minimum wages, work rules and union recognition. Strong unions like the Amalgamated Clothing Workers and United Mine Workers were able to press the boards to raise wages and spread union standards across non-union firms in their industries. In non-union industries where workers didn’t rise up in paralyzing strikes, the boards gave little thought to working conditions.
The National Labor Relations Act was meant to be an enforcement mechanism for the National Industrial Recovery Act’s “right to organize.” The 1935 act outlawed pervasive union-busting techniques like retaliation and surveillance of union activity of employees. It threatened the power of the state to restrain “unfair labor practices,” and it demanded that employers bargain in good faith when workers declared themselves to be a union.
But the National Industrial Recovery Act was declared unconstitutional by an arch-conservative Supreme Court that detested the idea of any kind of federal intervention in the private market. Roosevelt signed the 1935 National Labor Relations Act into law a few weeks after the court struck down the earlier law. His expectation had been that the two laws would exist side by side. The NLRA-created National Labor Relations Board would protect workers’ rights to organize and strike, while the NIRA-created industrial wage boards (and their state-level counterparts) would arbitrate union demands and impose the terms on employers.
University of Michigan law professor Kate Andrias proposes that wage boards, still on the books in states like California and New Jersey, could be used to pioneer a new form of social bargaining in the here and now. This is not pie in the sky. New York’s wage board system was dusted off by Governor Andrew Cuomo in response to the Fight for $15 movement.
American unionists might hear “tripartite” as “two votes to one against the workers.” But what do you call a group of decision-makers who could vote to give you and your peers a wage increase or fairer scheduling practices or the right to several weeks of paid family leave but resists doing so? I call that a boss – a big one that we can run campaigns against.
Let’s imagine a hospitality industry labor board. The board could enact a whole range of changes, from raising the minimum wage to abolishing the practice of tipping. It could ban “clopens,” the practice of assigning an employee to work the first shift of the day after she just finished the last shift of the night before. It could take on issues of harassment in the workplace, like granting cocktail waitresses the right to refuse to wear “uniforms” that are too sexually exploitative.
The workers’ representative on the board could force a vote on any issue. Once that vote is scheduled, every union and workers center with an organizing stake in the industry would agitate for a yes vote. Join us. Sign this petition. Wear this button. Pay your dues. The unions could anticipate which major employers would have the most influence on the other two board members, and target them for disruption with actions like slowdowns, consumer boycotts, and rolling strikes.
Unlike in our current system, where workers are siloed in their bargaining relationships with individual employers, unions could take on entire industries as a class.
Our political system is in the midst of a rare political realignment, suggesting that a class-based party of the people is possible, even in America. As the Republican Party degenerates into authoritarianism and white nationalism, it becomes unelectable in many large city and big urban states. The Democratic Party, meanwhile, remains a big blob of incoherence, grappling with an energized left flank while trying to absorb “former” Republicans who would drag it to the right.
The solution may be regional. We are seeing the ideological fight, appropriately, in primaries, as witnessed by Alexandria Ocasio-Cortez’s upsetwin over Congressman Joseph Crowley, and Cynthia Nixon’s challenge to Andrew Cuomo’s reelection.
But states like New York have essentially a one-party system—there is no threat of a Republican eking out a win in a three-way race. This makes a formation like the Working Families Party a viable second party.
With affiliates in more than a dozen states, the Working Families Party tends to act as a left pressure group in Democratic primaries, but doesn’t shy away from challenging corporate Democrats in general elections. It represents our best chance at an independent labor party in the United States and, like Canada’s New Democratic Party, could work on a regional basis.
More crucially, if the GOP continues its death rattle of naked racism and authoritarian hero-worship, while billionaire vampires like Howard Schutz and Michael Bloomberg abandon its corpse to suck what life remains from the Democratic Party, the rest of us are going to need a party to continue to fight for the survival and uplift of the 99 percent.
That is not to say permanent union opposition to both boss and state is a long-term winning strategy. Eidlin’s book—along with two centuries of union organizing in practice—make clear that workers need state power to restrict the worst impulses of corporations. But a degree of explicitly declared political autonomy within the current Democratic coalition, combined with a labor relations framework that treats workers as a distinct and protected class interest, could revive the class idea in the United States.
[This article originally appeared in The Progressive.]
Can the Courts Strike Down Right-to-Work?
Last week, in a move that’s as likely to baffle union activists as it is to encourage them, a West Virginia judge struck down key portions of the state’s “right-to-work” law.
The Kenawha County judge’s ruling may amount to no more than a temporary hiccup in West Virginia Republicans’ war to destroy unions. But it’s another example of how hotly provisions of the 1947 federal Taft-Hartley Act are being contested in the courts as it becomes clearer that the anti-union impact of the law has contributed to an era of massive inequality that threatens our democracy.
West Virginia’s “right to work” law was rammed through on a party-line vote prior to 2016’s presidential election and the recent statewide teachers strikes. It had survived a Democratic gubernatorial veto and a previous injunction based in part on its ridiculously sloppy drafting. Last week, however, siding with a coalition of unions that included the building trades, Teamsters and Mineworkers, Judge Jennifer Bailey ruled the law “unnecessarily and unconstitutionally imposes an excessive burden on Plaintiffs’ associational rights,” and that the goal of letting workers opt out of union membership “can be, and have been, fully accomplished without taking the additional steps of prohibiting agency fees, and giving free riders something for nothing.”
Anne Marie Lofaso, a professor of law at West Virginia University, describes Bailey’s ruling as “an extremely well-done decision that holds together and reflects some excellent lawyering for the union plaintiffs.”
In many respects, the West Virginia decision is a replay of a briefly encouraging moment in April of 2016 when a Dane County judge struck down Wisconsin’s recently enacted “right-to-work” law. That decision was predictably reversed by a Republican-dominated higher state court one year later.
Of the more recent West Virginia decision, Losafo says “Unless the [state] Supreme Court is willing to strip West Virginians of the individual liberties that our [state] constitution guarantees,” which, she notes are stronger than the federal constitution’s Bill of Rights, “this will be a very difficult decision to overturn.”
Not that West Virginia’s Supreme Court can be counted on to act in a nonpartisan manner. The Republican state legislature has been busy impeaching the entire elected Supreme Court for the past couple of months in a bizarre soft coup. The five-person judicial body had tilted towards the Democrats, but is likelier to favor GOP lawmaking if this unprecedented power grab proves to be successful.
As in Wisconsin, the West Virginia unions’ argument was first asserted by Chief Judge Diane Wood of the Seventh Circuit in a 2014 federal case Sweeney vs. Pence. In a dissent, Wood argued that it is actually unclear what the 1947 Taft-Hartley legislators meant by “right-to-work”—that is, whether they were allowing states to ban mandatory fees or just mandatory union membership. Forcing unions to expend resources on non-members without any financial compensation, she further argued, represented an unconstitutional “taking” under the Fifth Amendment.
The West Virginia decision is based on parallel due process language in the state’s constitution, meaning that even if the decision stands, it holds no precedent anywhere else in the country. But if made in a federal case, it’s a legal argument that could overturn “right-to-work” laws around the country. A federal decision embracing Judge Wood’s logic would make the section of Taft-Hartley that even allows states to pass “right to work” unconstitutional, and all the state laws that followed it null and void.
To be clear: This “takings” deus ex machine came as a dissent in a case that labor lost, setting a precedent within the Seventh Circuit—which covers Illinois, Indiana, and Wisconsin. Still, any federal court outside of those states could strike down all of the “right to work” laws in its jurisdiction, thereby swiftly sending the issue to the Supreme Court.
Perhaps the speed with which such a case would hurtle towards Trump’s Supreme Court is why the West Virginia unions decided to challenge the “right-to-work” law in state court rather than in the federal Fourth Circuit. Similarly, a once-promising case in the liberal Ninth Circuit, Operating Engineers Local 370 v. Wasden, was quietly abandoned after Hillary Clinton lost the 2016 election. The hyper-partisan treatment of workers rights at all levels of the judiciary cannot be overstated.
At a time of rampant economic inequality that is stressing the foundations of our democratic institutions, many experts—even some conservatives—are noting, however belatedly,the decline of unions as a key factor in the end of shared prosperity.
In this context, the way that decades of pro-business case law singles out and restricts the rights of unions is ripe for challenge. Some judges (some of the Democrats, at least) are reconsidering decades of anti-union case law. And smart unions are looking for ways to break through these cracks in the wall.
“Right-to-work” laws arguably aren’t even the part of the Taft-Hartley Act most responsible for the labor movement’s long slow decline in membership and power. The Act also banned solidarity activism—or what the law dryly refers to as “secondary activity”—that is, the right of workers to extend a workplace dispute to a company that is not their direct employer but is nevertheless essential to their employer’s business. This, too, is finally being challenged by unions as an unconstitutional restriction on First Amendment rights.
Last month, the Service Employees International Union (SEIU) filed a Ninth Circuit challenge to the Taft-Hartley Act’s ban on secondary activity. Because almost all janitorial work is subcontracted to small, often fly-by-night employers, the long-term strategy of SEIU’s successful “Justice for Janitors” campaign has been to bring their union demands to the landlords who have the real power to raise wages.
In SEIU vs. NLRB, a Bay Area janitors local picketed the building in which they work to protest low pay and sexual harassment. When the subcontractor fired a group of workers who participated in the action, the National Labor Relations Board refused to reinstate them, ruling they lost the protections of the Act by picketing a “secondary” employer. In a statement to Bloomberg Law SEIU contends, “By construing the NLRA to prohibit non-coercive picketing, leafleting, and speech simply because the workers asked the managers and tenants of the building where they worked to help them improve the unjust working conditions in that building, the Board engaged in content-based discrimination in a manner that cannot survive modern First Amendment scrutiny.”
The legal assumption of coercion has been used to carve unions out of many First Amendment protections—even as the free speech rights of corporations have been greatly expanded. SEIU is making a point that should be obvious to anyone who isn’t Neil Gorsuch or Samuel Alito. If there’s no physical restraint, no threats of violence, then where is the coercion? What is wrong with workers talking with others workers about how poorly they’re being treated on the job and asking them to withhold their labor or consumer dollars from an unfair boss in solidarity?
“Coercion” has been left so unchallenged in the courts that Trump’s NLRB General Counsel appointee, Peter Robb, thinks he can ban unions from inflating a giant inflatable rat because he can argue that its presence at any union protest is inherently coercive. (Or actually because, as he’s been heard to say he “hates” it.) But with a proper regard for the First Amendment, it could be deemed “content-based” discrimination against workers’ free speech.
That would open yet another avenue to challenge to the nation’s anti-union labor law regime as grossly unequal and constitutional. To be sure, waging any fight for union rights in the courts if not without its risks. But not fighting for workers’ constitutional rights, it should now be clear, will only lead to more billionaire-funded Republican attempts to roll back our few remaining legal labor protections.
[This article originally appeared at The American Prospect.]