Will Trump’s Labor Board Say Workers Have No Right to Float a Balloon?
Union activists eager for a free speech fight after the Supreme Court’s Janus v. AFSCME attack on union rights may have found one in the form of a giant inflatable rat.
Bloomberg reported last week that Trump-appointed General Counsel Peter Robb wants to issue a rule making it illegal to engage in any protest activity in the company of a balloon rat.
Cartoon rats—often with nasty red eyes, gnarly teeth and occasionally suitcases and neckties—have been a feature of worker demonstrations in the United States for almost 30 years. Initially conceived as a way to circumvent the Taft-Hartley Act’s restrictions on unions coming to the aid of fellow unions during a strike, they have since become a routine presence at legal picket lines and protest rallies. When not nicknamed “Scabby,” a rat is often named in ways that satirize an unfair boss. Many workers who find themselves in tough fights are warmed by this meme-of-memes’ way of dragging a low-road employer’s image even lower.
The rat’s legality under the Taft-Hartley Act has been heavily litigated and the symbol’s free speech protections are a mostly settled precedent. It’s not entirely clear what Robb’s legal strategy for exterminating the rat could be; what is clear, one senior NLRB official told Bloomberg, is just that he “hates” the inflatable beasts. One option reportedly under consideration would be to declare the rat’s presence at any strike, picket line, or rally to be inherently “coercive.” Conjuring up the worst union thug stereotypes, the argument would be that the presence of a large balloon implies the threat of violence and property destruction for those who do not comply with its silent demands.
It would be a curious time for the NLRB—which is tasked by statute to enforce and protect workers rights—to further restrict workers’ right to protest, and do so in a way that raises major First Amendment concerns. In June’s Janus decision, the Supreme Court endorsed an argument that any interaction that a union has with an arm of the government is inherently political, finally injecting the First Amendment directly into labor law. That was because in order to cripple public sector unions, the Court’s rightwing justices had to invent a free speech right for workers covered by union contracts who refused to pay for their representation or engage in union activity. If Scabby the Rat winds up before the Supreme Court, how would those justices reconcile their Janus affirmation of First Amendment rights to workers’ ability to freely engage in union activity?
Inflatable vermin were already a work-around for an egregious restriction of workers’ speech rights. The law currently forbids workers engaged in a union fight from talking to workers at companies that do business with their employer and asking those workers to strike their own employer in solidarity.
But the unequal application of the First Amendment to labor relations hardly ends there. Consider the legally-sanctioned “captive audience meeting.” In the run-up to an NLRB-conducted union certification election, an employer is allowed to force workers to attend mandatory anti-union presentations. In these meetings, the employer can threaten workers’ job security and benefits, as long as the threats are phrased as economic possibilities. They can even lie to workers about the process and the law, with one in ten employers going so far as to hire consultants to impersonate government agents, according to research from Cornell University.
A worker who refuses to attend a captive audience meeting can be legally fired. Pro-union workers have no right to respond or to correct the record and no right to equivalent access to address the electorate.
Consider also the Jefferson Standard doctrine that workers lose their legal organizing protections if they make “disloyal” statements about their employer. In one recent case that I highlighted previously, six employees at a Jimmy Johns franchise were fired for circulating leaflets to customers protesting their employers’ policy of forcing sick employees to report for work.
Two years ago, I authored a report for the Century Foundation calling “for unions and their allies to return to the rights-based rhetoric and constitutional legal strategies that preceded the passage of the National Labor Relations Act and the development of our current labor law regime.” Because federal labor law is constitutionally rooted in Congress’s power to regulate interstate commerce, the courts have built up a body of case law that considers unions’ impact on business first and foremost—with the constitutional rights of workers to free speech only a distant concern.
Part of what I was trying to challenge was the overly cautious strategy of union lawyers to avoid the courts—even as workers’ legal rights continue to be assaulted—for fear of unknown consequences. But what are the consequences of inaction if the rat is outlawed? That the courts might also outlaw the inflatable skunks and cockroaches that some unions have used as “just in case” alternatives? Spare us this small-bore thinking. If the NLRB tries to outlaw Scabby, they will present workers’ advocates with a strong case to make a First Amendment challenge to the Taft-Hartley Act’s unconstitutional ban on solidarity activism.
After all, is the presence of the rat outside of a non-union workplace or on a union picket line coercive? Hardly. The sad truth is that Scabby is largely ineffective at silently encouraging even the most ardent union supporter to take action. As I write this, there’s a giant rat outside the building across the street from the labor education center where I work. It’s under the (presumably) non-union scaffolding around the Cadillac dealership on Hudson Street in Manhattan’s Soho neighborhood. Nobody’s even handing out leaflets to explain the labor dispute. There’s a sign exhorting passersby to take a picture of the rat and post it on social media using the hashtag #WhyTheRat to learn more. I posted my tweet into the digital ether two weeks ago, and I still don’t know why Scabby’s hanging out in the hood.
What the rat does—and effectively—is raise the spirits of workers who know a rat when they see one. They turn union-busting employers into objects of ridicule. NLRB Counsel Robb spent his private sector legal career representing construction industry employers, who no doubt passed countless billable hours complaining to him about their pest problems. Bosses really are personally offended to be called a rat and to have giant inflatable rats mocking them outside of their property. That is what makes defending Scabby the Rat a First Amendment issue. An agent of the government is making a value judgment about the method and content of unions’ free speech and protest activity that has nothing to do with its impact on commerce or his agency’s charge under the law.
Such a case, at a minimum, may heighten the contradictions of the post-Janus legal world. If the First Amendment applies to labor relations, then it must apply to workers’ speech in their attempt to win or defend a union just as much as it does to workers’ speech when they quit one.
[This post originally appeared at The American Prospect.]
The Rise of Feminist Labor Unions in Japan
A good union is a feminist organization. We reduce the gender wage gap, fight for family-work-life balance and non-discriminatory promotion standards and sometimes literally sound the alarm on workplace sexual harassment and assault – among many other ways that working women use their union membership to fight for equality.
For a time, Japanese labor unions fell far short of that standard.
Although there are very strong labor protections and anti-discrimination laws on the books in Japan, they are often evaded through the proliferation of contingent employment and ignored with lame appeals to “cultural traditions.” Female workers routinely experience sexual harassment, workplace bullying and lack of career advancement. The traditional enterprise unions that are common in Japan had a pretty bad track record of even seeing these practices as wrong, let alone standing up for their female members.
Starting in the 1990’s, a group of activists started new women-only unions to compete with the official unions and advocate for their members’ rights at work and in society. A recent book by Anne Zacharias-Walsh explores this story as part of a transnational solidarity project. Our Unions, Our Selves: The Rise of Feminist Labor Unions in Japan (Cornell University Press) is a fascinating account of union decline and potential rebirth that feels both entirely alien and yet very familiar.
It is also very interesting to anyone who is thinking deeply about the pros and cons of exclusive representation here in the United States. In most countries, unions compete for members and workplace leaders across industries and sometimes on the shop floor. Our peculiar system of one exclusive representative in a workplace, and formal agreements between unions not to compete is only shared, in part, by two other countries. American trade unionists literally exported their model to Canada and Japan. Following World War II, CIO union leaders helped Japanese workers craft their labor relations framework as a part of the U.S.-led rebuilding process.
Because of that, Japanese experiments with women-only unions are instructive about how new unions could even go about breaking the exclusivity model, and what might happen as a result.
The Japanese unions took the exclusive representation system and mutated it into a very peculiar model of company unions. There is no Japanese equivalent of the United Auto Workers union; that is there’s no union that seeks to represent all workers at every domestic factory in the auto industry. Instead, there’s a union for Toyota workers and another one for Honda workers. Although the unions don’t shy from militant job actions – particularly when contracts are being renegotiated – they remain very loyal to the company. After all, increased profits and efficiency could mean higher wages. This loyalty is further enticed by Japanese firms offering jobs for life for their regular, full-time employees with a career track of promotions
Women are excluded from much of this framework. This is partly explained by the proliferation of temporary and subcontracted jobs that have been created to offset the costs of those well-paying lifetime jobs with an underclass of workers who just don’t count in the companies’ promises of mutual loyalty. But the reason that women more often fall into these substandard jobs is better explained by a patriarchal society that makes the U.S. look like some kind of working women’s paradise by contrast.
As Zacharias-Welch describes it, a female colleague is expected to pour tea for all of her male co-workers – no matter what her seniority or rank is in relation to them – before a work meeting will begin. Worse, when an employer feels an economic need to downsize a workforce that has been promised jobs for life, a supervisor might bully and orchestrate the social ostracization of a woman who refuses to voluntarily “retire.” The traditional enterprise unions rarely filed grievances to defend women’s jobs since they were politically dominated by men who believed that men need the jobs more in order to provide for their families.
It’s no wonder that some women decided to go their own way and form voluntary membership unions for women only. The members of the union join as individuals, not as collective groups. A worker would tend to join only when she had a grievance that the traditional union was not helping with or if she fell into any number of sub-contracted or temp work schemes that kept her out of union contract protections. The women’s union would provide advice and counsel. By threatening legal action over employer practices that were plainly in violation of laws that were routinely flouted, the women-only unions could force a recalcitrant employer to the table over a grievance. Theirs would not be the strongest hand. Lacking the legal power of the collective bargaining agreement and the collective power of the woman’s co-workers, most of these grievances would still result in a “voluntary” resignation, but also some financial compensation. In other words, workers who would otherwise have been totally screwed received a degree of justice and compassion.
Women who remained members of the women-only unions might do so openly and quit the official union. Many others chose to quietly pay dues to the women’s unions while retaining membership in the traditional union in order to go along to get along – a Japanese feminist slant on the American radical tradition of the “two card man.”
Lessons for America
An important point, and an instructive lesson for U.S. trade unionists, is that Japanese women’s shift from exclusive representation to a competitive union model didn’t come about through legislative reform, which is as difficult to achieve there as it currently is here. It was achieved by exploiting the very brokenness of the labor relations system.
Recently, over at In These Times, I participated in a roundtable discussion with Kate Bronfenbrenner and Labor Notes’ Chris Brooks about whether unions should abandon exclusive representation after the anti-union Janus decision.
In Janus, the five right-wing justices weaponized the First Amendment to outlaw agency fees in the public sector. They aim to bankrupt unions, who must continue to spend resources on workers who decline to pay union fees. At this point, our labor laws are completely broken. I have advocated that we break the laws even further in ways that will make employers regret ever tinkering with Right-to-Work.
If unions competed on the shop floor level for workplace leadership and dues-paying members, that would have the effect of making it much harder to achieve any kind of enduring labor peace and would make no-strike clauses basically unenforceable.
Dr. Bronfenbrenner warns, quite rightly, that what causes the so-called “free-rider” problem that has some unions thinking about ceding exclusivity is the Duty of Fair Representation:
Those of us who were progressives saw that Duty of Fair Representation was the best thing that ever happened to unions because DFR said that unions had to represent women, people of color, the LGBT community, and you couldn’t discriminate against part-time versus full-time [workers]. Historically it was used to force the old guard had to give up domination of unions and to fight for union democracy because the simplest basis of DFR is the concept of good faith. If used effectively, it would be the thing that could break the hold of the mob, or the old guard, or just white men. So you have to remember when you give up exclusive representation you could lose DFR. I can tell you that women and people of color are not going to want to give it up.
The feminist labor unions in Japan are evidence that backs up my contention that in a competitive union model, even without the statutory protections of DFR, some organization inevitably steps into the void and serves as the feminist or anti-racist union.
Lessons for Japan
The heart of Our Unions, Our Selves documents a transnational solidarity project that Zacharias-Walsh coordinated where leaders of the Japanese women’s unions came to the U.S. to learn about women’s union organizing strategy and experience before embarking on a series of strategic retreats to grapple with the challenges of their model.
To be clear: the Japanese women-only unions face serious organizational challenges. While individual women have won small measures of dignity and justice, these new unions – at least at the time that the book was written – have not won much power for women collectively nor established much of a permanent presence in many workplaces.
One major challenge they face is that most members stop paying dues shortly after their grievance is settled. The union leaders’ theory of change was that women who participated in prosecuting their own grievance would come away empowered and more active. Encouraged by their American sisters, the unions surveyed their current and former members and found that the opposite was true. The workers who joined because they had grievances were the least likely to remain members. The workers who joined to be a part of a social movement – as increasing numbers of younger women are doing – stayed for the long haul.
Part of this challenge is inherently Japanese. The women who founded the women-only unions intentionally embraced an individual membership model because they felt strongly that few women workers were ready to take charge and “act out” as unions with a more collective model must.
But part of this dynamic is sure to pop up if new alternative unions experiment with workplace competition in the U.S. The traditional or dominant union is likely to retain the loyalty of most workers in a shop, as they have the historical track record of wins in the past and as the official bargaining agent on record with a legal right to demand negotiations with the employer. Individual memberships in the alternative unions are more likely to be situational. Workers may switch unions – or become dual-card holders – when the alternative union is running a campaign that makes sense with a demand on the boss that resonates.
Imagine here a collective bargaining agreement that settles with no progress on paid family leave or child care allowances. The minority of younger workers for whom this is a major issue break away to campaign for it. That campaign could now include slowdowns and work-to-rule actions that are forbidden by the union contract they now claim not to be bound by. While there are actions taking place, and as long as they provoke any management response, that alternative union may retain a loyal militant minority. But as soon as the union takes a break from campaign, or picks a new issue that isn’t as important, it might see a decline in membership.
Now, this might read like the labor law version of a sci-fi spec script. We just won’t know how a multiple competitive union model might play out in the U.S. until someone tries it. But the Japanese women-only unions provide a reasonable example. Most importantly, they provide the most important object lesson here: They just did it. And after a few years of experimentation, they stepped back and engaged in the thoughtful introspection and strategic readjustment that Our Unions, Our Selves details.
[This post originally appeared at Unionist.com]
You’re a Sad Scab, Mr. Chait
Is there a German word for when a presumptive scab confirms your lowest expectations?
The writers and editorial staff at New York Magazine have formed a union, joining a veritable organizing wave in digital and traditional news media. Nearly 80 percent of the workers have signed union cards and are asking management to voluntarily recognize their union.
Longtime columnist Jonathan Chait did not sign a union card, and rushed to Twitter this week to lick management’s boots, because of course he did. The liberal-in-his-own-mind columnist has spent the last few years—before Fox News inevitably invites him to be one of its resident “liberals,” where he can ride out his shambles of a career—lazily defending neoliberalism and Nazis’ rights to free speech.
Less than 24 hours after throwing his colleagues under the bus, Chait took again to Twitter to whine that only three scorching hot takes had published about his profile in cowardice. “Feels like the left is really undercovering this issue,” complained the cork-screw soul (to borrow from Jack London’s poetic description of the “awful substance” that makes a scab).
Patriotism may be the last refuge of the scoundrel, but in the 21st century, online trolling is the final cold comfort for the mediocre white man.
Jonathan Chait is a small man in some ways, a small, petty man. In March of 2016, Tyler Zimmer took the columnist to task for a piece for In These Times titled, “Why Jonathan Chait Is Wrong About Marxism, Liberalism and Free Speech.” Chait literally spent the night of its publication cranking out a bunch of tired Cold War basement noise in response, which was published the following day.
So, I have the rare pleasure as a writer of knowing that I have what the union-busting consultants that Chait’s bosses have likely hired call a “captive audience.”
Hi, Jonathan Chait. You’re a scab.
I’m not really going to bother with the substance of Chait’s derpa derping about unions and profit-sharing or whatever. The man doesn’t know what he’s talking about and refuses to actually learn anything about what he’s talking about. He’s the platonic ideal of a dipshit columnist. Ping me when he gets some sort of “woke” epiphany in a sandwich shop.
Instead I’ll say this: In my experience as a union organizer—not just for blue-collar workers who hacks like Chait might condescendingly acknowledge “deserve” a union, like maintenance contractors and hotel room attendants, but largely for white collar professionals like university professors, post-docs and charter school teachers—I’ve found that those who are quickest to carry water for management are usually afraid they will be outed for being overpaid for what little they contribute to the enterprise.
Hilarously, Chait reveals his misunderstanding that pay equity for “lower-earning workers” would come “at the cost of more established staffers like myself.” That’s almost certainly not going to be the case. From professional sports to higher education, the higher paid workers tend to make out like bandits in collective bargaining, even if they sit on the sidelines during the really tough fights.
But, as a part of the collective bargaining process, Chait’s colleagues are going to learn how much money he earns—and it’s going to be laughable compared to how little intellectual rigor he puts in to informing the opinions he’s paid to write about.
Jonathan Chait, I hope you don’t sign a union card. I hope your anachronistic anti-union stand destroys the last few shreds of your credibility. I hope this is when we all collectively agree to start ignoring you.
You demonstrate a remarkable lack of intellectual curiosity for an opinion writer. As the political ground shifts beneath your feet, you steadfastly refuse to engage with the nature of liberalism and capitalism and the actual ideas of those of us who struggle for a 21st century socialist project. Instead you do the lazy middle-aged man thing of believing your opinion to be fact, and backing that up with stuff you half-remember pretending to read in college. Your schtick has worn thin and you are on the wrong side of history.
Oh, what a writer with intellectual curiosity and a deep Rolodex could do with the column inches that are wasted on your left-punching shadow-boxing! The campaigns that could be highlighted! The game-changing activists who could be lifted up!
To the editors at New York Magazine, let this serve as my declaration of interest to take Jonathan Chait’s place. Of course, I would sign a union card, but you should just hurry up and recognize the union before Chait gets the chance to publish another piece of crap. And if you don’t hire me that’s basically an unfair labor practice charge that I’m already drafting in my mind.
Staten Island Goes Purple
Voters on Staten Island—long the only Republicn corner of New York City—have turned their Republican Congressman Dan Donovan out of office. New York’s 11th District—which the island shares with a couple of neighborhoods across the Verrazanno Bridge in Brooklyn—was the last part of the city to be represented by a Republican in the U.S. House. Although Democrats in the district outnumber Republicans by a 2-to-1 margin, Donald Trump won 58 percent of the vote there in 2016. The President retains some popular support on the island, his policies less so.
The surprising victory of Democrat Max Rose signals that Staten Island is genuinely a swing district—something that New York Democrats have precious little experience with. The combination of gerrymandering and “big sort” demographic shifts created a sort of district-by-district one-party domination in New York State that has resulted, at least within the city, in neither party knowing how to run in competitive elections.
In a deep-blue city like New York, political posts are handed down like family heirlooms. More politicians leave office in handcuffs or a pine box than because of voter will. As a result, the county—or, in NYC-speak, borough—political organizations are hollowed out. They’re less machines than automatons that go through the motions with little if any involvement from actual people.
A Purple Heart military veteran, Rose was recruited to move to Staten Island and run for office by the Democratic Congressional Campaign Committee. His campaign messaging included complaints about “both sides” and swipes at Mayor Bill DeBlasio, a focus on opioid addiction and an allergic reaction to Medicare-for-All, with a wonkish focus on expanding access to health care within the framework of the Affordable Care Act.
Centrist Democratic consultants will point to Rose’s campaign messaging as a lesson for Democrats in 2020, but there’s probably more of an organizing lesson to be learned. The Rose campaign activated hundreds of volunteers who canvassed the district to identify over 86,000 likely voters, and then turn them—and more—out to win with a decisive 52.8 percent of the vote.
Rose has staying power, and Staten Island’s political landscape will never be the same. The election is no less than a political realignment in New York’s most conservative borough, which can no longer be written off as Republican territory. Now comes a day of reckoning for both parties’ local organizations, and some badly-needed soul-searching for New York’s unions about how they approach the question of “electability” and “sure-things.”
WHEN DISTRICTS REALIGN, both parties’ old orders are threatened.
The Republican party operation on Staten Island was once a nigh-unstoppable machine that was crucial to the election victories of Ronald Reagan, Alphonse D’amato, and Rudy Giuliani. In recent years it’s been dependant on low-turnout special and midterm elections to retain its competitive edge.
For four decades, the Staten Island GOP was led by Guy V. Molinari, the politician who first flipped what had been a reliably Democratic congressional district in 1980—the year of Reagan’s presidential election—before moving on to become Borough President. Molinari passed away this summer, but his party machine never outgrew him or his grudges. He openly feuded with Representative Donovan as well as James Oddo, the current Republican Borough President. In a healthy organization either of these elected officials would be their party’s official leader. Instead Molinari threatened them both with primary challenges. He encouraged his protege, ex-con ex-Representative Michael Grimm, to run against Donovan for his old seat. That bruising primary campaign fatally damaged Donovan’s credibility as a moderate by compelling him, as Republican primaries do, to move further to the right.
One party operative publicly blamed “years of neglect and years of trying to make the county organization smaller and subservient to its leaders” for the historic loss of Molinari’s old seat.
Lawn signs ordinarily might not be an indication of anything significant, but it was notable how few Dan Donovan lawn signs could be seen around the island—especially compared to Max Rose’s and even the faded Michael Grimm signs from his failed primary bid. I don’t know a single friend or neighbor who had a Donovan volunteer knock on their door or call on the phone. None of my fellow commuters could recall seeing the Donovan team passing out campaign lit at the Staten Island Ferry, which is the barest minimum that any local political effort must do.
We all assumed that the Republicans had some secret weapon or really reliable internal polling, but the post-election public recriminations in our local paper of record, the Staten Island Advance, confirm that there was nothing; just a misguided assumption that the rubes would keep on voting Republican in sufficient numbers.
It is all but certain that there will be a significant personnel shake-up at the Staten Island GOP.
On the Democratic side, the county committee has been a baffling mess. Earlier in the year, one of Staten Island’s few elected Democratic state legislators, Matthew Titone, decided to forego re-election for his safe seat in order to run for the borough-wide position of Surrogate Judge. Party chairman John Gulino strong-armed his county committee to deny Titone the party’s endorsement—possibly because Titone is an out gay man, and Gulino has some notion that such a thing is political poison in Staten Island’s more conservative enclaves (or it could be for an even dumber reason that we’ll never fully understand).
Nonetheless, Titone trounced the party’s hand-picked mediocrity in the primary and cruised to victory in the same general election that saw Rose upend the borough’s political calculus. In the interim, the rusty S.I. Democratic machine failed to even file the necessary paperwork for its down-ballot judicial nominees, allowing the Republicans to win those races free from competition.
In 2014, with Michael Grimm running for re-election under the cloud of a 20-count indictment, the SI Dems allowed the Brooklyn machine to fob off an inarticulate city councilman from the other side other side of the Verrazzano who bumbled his way to an ignominious defeat. Before that, they ran the son of the crook who had lost his seat to Molinari four decades ago.
Clearly there are going to be big changes in the thoroughly-discredited Democratic county committee, and Rose would be the natural party leader. One close observer of S.I. politics speculates that Rose’s chief of staff, Kevin Elkins, will replace Gulino and turn the party into the kind of GOTV organization that put Rose over the top.
MOSTLY ABSENT FROM THE STORY of Max Rose’s ground-breaking victory are unions. The New York state AFL-CIO endorsed Donovan, the Republican incumbent. Although 1199 SEIU and the Staten Island-based local 1102 of the Communications Workers put a lot of feet in the street on Rose’s behalf, the rest of the labor movement took the cautious approach of issuing paper endorsements of the GOP incumbent who was favored to win re-election.
Their calculation was as simple as it was cold. Donovan picked up the phone when they called. He could do them small favors and GOP leadership gave him permission to vote no on the really big bad bills like the billionaire tax cut and health care repeal. That those bills came to the floor at all was because Donovan caucused with the death cult that is the congressional Republican party, but his permission from Paul Ryan to avoid getting his hands dirty allowed him to avoid hardcore opposition from the unions. For the unions, the question was why risk losing access to a flawed Republican when a good Democrat who wins without labor’s backing can be expected to forgive and forget (and count on their backing for re-election)?
Staying away from Rose’s long-shot campaign was hardly the most embarrassing inaction by New York’s unions this political season. The most electrifying primary election in the country saw newcomer Alexandria Ocasio-Cortez defeat 10-term congressman Joe Crowley. The idea that the fourth ranked Democrat in Congress and chairman of his county’s Democratic machine could be crushed by a 28-year-old democratic socialist with no financial war chest stunned the political establishment. And in New York unions are very much a part of the political establishment. With nearly a quarter of New York workers belonging to one, unions remain powerful and influential—and exceedingly cautious when it comes to political endorsements.In that primary, the unions reflexively endorsed the incumbent, Crowley.
Nationally, 2020 likely will see more left wing primary challenges in deep blue districts—and the general election will see the last of the moderate Republicans in the fight of their political lives. Unions that back centrist Democrats and moderate Republicans will have some difficult decisions to make.
[This article originally appeared at The American Prospect.]