The de Blasio Paradox
New York Mayor Bill de Blasio launched his bid for president last week, amidst protests and jeers.
On Good Morning America, where he was having what should have been his first softball interview as a candidate, chants of “LIAR” could be heard from a rally outside the Times Square studio. The anti–de Blasio protest somehow united the local cop union and Black Lives Matter protestors, along with housing advocates and anti-poverty activists.
While New Yorkers greet de Blasio’s quixotic campaign with hostility or befuddlement, distant observers might wonder how this is more outrageous than, say, Beto O’Rourke or any number of red-state Democrats with thin records throwing away their shot at statewide office for similarly doomed runs at the White House.
Overlooked in all the grousing is Hizzoner’s actual achievements: Bill de Blasio is one of the best mayors that New York City has ever had. But he lacks that easygoing charm with voters (the kind that mainstream political commentators call “likability” when discussing women candidates). And his candidacy is a victim of the rising expectations of the resurgent progressive wing of the Democratic Party. Ironically, his own successful 2013 campaign for mayor—with its Occupy Wall Street–inspired “Tale of Two Cities” rhetoric—helped nurture a political climate that has rendered his race dead on arrival.
None of which is to say that being one of the city’s greatest head honchos is a particularly high bar. We’ve had mayors literally flee the country to avoid prosecution. But for the last half-century, almost every Big Apple mayor who managed to get re-elected left office with delusions of La Guardia–like status and presidential ambitions. De Blasio, by contrast, actually has progressive bona fides that ought to eclipse less-accomplished mayors like Pete Buttigieg and Julian Castro, who are also currently tilting at presidential windmills.
Take the singular achievement of de Blasio’s first term: the introduction of universal pre-K. Studies show that early-childhood education pays remarkable dividends in student achievement for years. And, as Katha Pollitt noted in a remarkable piece of advocacy in The New York Times, market-rate child care “is one of the biggest costs a family faces.” That expense averages $14,144 per child in New York, which can diminish both family wealth and women’s career progress for years.
When de Blasio launched a universal tuition-free pre-kindergarten program, he made a revolutionary improvement in the lives of 70,000 children and their families. His achievement was twofold: First, he found the money to fund it, establishing a massive program of wealth redistribution. Second, his administration mastered the logistical challenges of expanding the country’s largest public-education system by an entire grade level.
Under de Blasio, New York City did it in two years. Rather than take the extended victory lap that most politicians would for lesser achievements, de Blasio followed up by expanding the program by another grade level. Universal “3K”—preschool for three-year-olds—is in the pilot stage in neighborhoods around the city.
The older of my two kids turned three in January. She’ll be going to school tuition-free in September. Bill de Blasio saved my family approximately $56,546 over the next three years! That’s exactly the kind of “free stuff” politicking that Democrats can run on in 2020.
The de Blasio administration has served as an incubator of progressive policy, and not just his own. Freed from a Republican mayor who believed that the most important quality in a City Council Speaker is “keeping legislation that never should have made it to the floor … from ever getting there,” today the City Council often drafts the first versions of future congressional bills.
Just cause for terminations, banning urine tests, and criminal background checks for employment, and mandating paid vacations: These are just some of the reforms getting a dress rehearsal in New York before they become federal initiatives.
As free child care has become a signature issue of Elizabeth Warren’s presidential campaign, so too could any of these de Blasio reforms become national campaign issues.
The de Blasio administration also pioneered universal free lunches (without the stigma of means testing) in public schools, a fair workweek law, and round-the-clock service on the Staten Island Ferry. It curtailed the police department’s stop-and-frisk policy.
That last policy—combined with his balanced statement about the 2014 death of Eric Garner—provoked an unprecedented mutiny from the Police Benevolent Association. In the least effective job action in our country’s otherwise inspiring recent spike in strike activity, officers stopped ticketing for minor nuisances. Quality of life in the city briefly surged, while 80 percent of New Yorkers thought the union was “too extreme.” Still, de Blasio—who is the father of two mixed-race children and made racist police misconduct a signature issue in his first mayoral run—has mostly backed off from being critical of police actions. He’s remained sidelined on one of the major progressive causes of our time, the demands of the black community for respect and police accountability.
That the police officer who killed Eric Garner is only now facing a semblance of due process—five years after Garner’s killing and at the exact time that de Blasio is presenting himself as a progressive hero on the national stage—partly explains the left’s deafening yawn in response to his candidacy.
There’s also the subway system’s ongoing breakdown, which is not technically the mayor’s responsibility but is often uppermost in the mind of every sweaty, late-for-work straphanger who might rightly resent the mayor for not making this his new campaign. Then there’s the city’s public-housing authority, which is leaving its residents in such squalor that even the TrumpWhite House has to respond. And de Blasio’s failure to challenge entrenched real-estate interests has helped spin a tale of one city for the rich while the rest of us are moving to the boondocks because the rent is too damn high.
Compounding his failure to meet the heightened expectations of progressives, there’s also this: He’s a lousy retail politician. He lacks whatever that “it” is that makes voters like a pol. Being a jerk to a press corps that follows him around and hangs on his every word hasn’t helped either. A New York mayor who actually enjoys his job can hold court on a daily basis with dozens of reporters from around the world and advance his political philosophy and naked ambition. Or he can be defensive, brittle, and petulant and inspire those same reporters to dig a fresh grave for him every morning.
It’s not hard to look at the fawning media coverage of a small-town mayor who’s read a lot of books and an ex-congressman who lost an election to Ted Cruz and view de Blasio’s presidential campaign as an act of spite. If these punks get to set our national agenda, he’s probably thinking, why not me?
Term-limited as mayor, de Blasio has just two more years in City Hall. As a lame duck he has little power to whip votes for another landmark progressive victory, as he did for Councilman Brad Lander’s bill to require a “just cause” for discharging fast-food workers or Rafael L. Espinal Jr.’s bill to forbid bosses from making their employees check their work email after clocking out.
Basically, the mayor is bored. Campaigning for a new office is his way of making his daily rounds fun again. Besides, due in part to that deficit of likability, he lacks the political capital to contest either Senator Chuck Schumer or Governor Andrew Cuomo in 2022 Democratic primaries, though progressives clearly yearn for candidates to take them on. The Intercept has published fan fiction masquerading as speculative analysis about Alexandria Ocasio-Cortez getting redistricted out of her House seat so that she simply has to challenge Schumer. And the Working Families Party had to recruit a TV star to run against the vindictive and still unpopular Cuomo last year.
De Blasio is New York’s mayor because in 2013, no other left-winger thought it was possible to beat back the city’s developers and real-estate interests and whomever they would anoint to perpetuate Michael Bloomberg’s dubious legacy. Still, he was a long shot in 2013, too—until former City Council Speaker Christine Quinn’s and former Congressman Anthony Weiner’s campaigns both ran aground (for very different reasons). So who can blame the man for thinking he’s got a shot this time, too? But also, who can really blame him for finally taking a victory lap for having re-injected rich vs. poor rhetoric into Democratic politics—two years before Bernie Sanders first ran for president—and putting issues like universal pre-K on the national agenda?
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.]
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.]
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.]