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.]
The Case for “A Right to Your Job” Campaign
[This article was co-authored by Moshe Z. Marvit.]
It is time for the labor movement to campaign for a “Right to Your Job” law.
With anti-union Republicans in control of Washington, this might not seem like the best time to think and plan about workers’ rights. But to surrender to a mere survival mentality would be a mistake. We are on the verge of a major opportunity for labor renewal.
Among congressional Democrats, there is a growing recognition that a strong labor movement is vital to building a constituency for progressive change, and that delivering tangible wins for workers is vital to gaining and maintaining office. As one small example, the official labor bill that the Senate Democrats are currently offering is essentially a repeal of Taft-Hartley.[note]Moshe Marvit, “‘A Better Deal’ Ensures Long- Overdue Worker Protections,” The Century Foundation, November 3, 2017, available at https://tcf.org/content/commentary/better-deal- ensures-long-overdue-worker-protections/.[/note]
This could be opposition theatrics, of course, but we believe something deeper is at play.
A better example is a draft bill by Rep. Keith Ellison—as of this writing not yet introduced— which would amend the Fair Labor Standards Act of 1938 to make “just cause” the legal standard of employment and is at once a deeply radical and eminently sensible proposal. That it is a dead letter in a Republican-dominated Congress should not discourage us. Rather, we should press to keep it on the agenda and make it a battleground.
Thus, legitimized by actual federal legislation, a campaign to win just cause as a “Right to Your Job” law in blue states and rebel cities would strongly contrast with and make the false term right to work ring hollow. There would also be a neat symmetry, as “Right to Your Job” is most winnable in non–“right to work” states.
Explained simply, “just cause” is the principle that an employee can be fired only for a legitimate, serious, work-performance reason.
“Just cause” empowers workers to have a voice. It gives them the power to say, “No.” “No” to requests that fall outside of a job description, to unwanted sexual advances or jokes, to an employer’s demand that the worker lobby the government on its behalf.[note] Josh Eidelson and Hassan Kanu, “The Newest Weapons against Unions Are Employees,” Bloomberg Politics, April 2, 2018, available at https://www.bloomberg.com/news/articles/2018-04-02/the-newest-weapons-against-unio ns-are-employees.[/note] It gives workers the right to engage in free speech out- side the workplace, to flip off the president, to attend a protest, and to engage in all manner of non-work-related speech, without risking their jobs. Just cause puts the onus on the employer to prove that a termination was for a valid work-performance-related reason and not—as a worker would have to prove today—that it was based on one of the few improper reasons contained in the law, such as racial discrimination, retaliation for blowing the whistle on inappropriate or unfair working conditions, or some public policy exception.
That makes the campaign for just cause a natural complement to the #MeToo movement. Women are overrepresented in the service sector, where they may be subject to more demands that fall well outside their job description (if there even is a clear job description). Much of this comes in forms of emotional labor—where supervisors, customers, and clients alike expect female workers to fill roles analogous to surrogate moms, daughters, and wives. Furthermore, in every one of the most common occupations for women, they are paid less on average than their male counterparts.[note]“Most Common Occupations for Women,” U.S. Bureau of Labor Statistics, available at https://www.dol.gov/wb/stats/most_common_occupat ions_for_women.htm.[/note] Women who request equitable pay increases know they are inviting undue scrutiny or new “duties as assigned” in retaliation. Women also experience sexual harassment in the workplace at alarming rates. A major 2016 Equal Employment Opportunity Commission report found that 25 to 85 percent of women experience sexual harassment in the workplace.[note]“Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace,” June, 2016, Equal Employment Opportunity Commission. https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf.[/note]
This range is so broad because workers are not empowered to say anything. Just cause laws would permit workers to speak up, without having to make the impossible choice of demanding fairness and dignity or risking their livelihoods. (See “Beyond #MeToo” in this issue.)
The “Right to Your Job” law also makes sense as a defensive strategy for Black Lives Matter and Antifa (anti-Facist) organizers, who are currently vulnerable to targeted far-right attacks aimed at getting those organizers fired for their activism from the day jobs that are unrelated to their non-workplace endeavors. Because arbitrary termination is the boss’ greatest weapon, “just cause” can serve as the rule that protects all other rights at work.
The labor movement must make common cause with these newly enlivened movements in the workplace. “Just cause” for all makes sense as a progressive coalition demand.
This could be a winning issue in blue states with a political culture of ballot initiatives. We saw in 2016 that when paycheck issues and workers’ rights are put on the ballot, voters support those initiatives and often come out to vote for down-ballot Democrats in greater numbers.
The At-Will Doctrine and Faulty Judge-Made Law
The alternative to “just cause” is the current mess of affairs euphemistically referred to as the “at-will” employment doctrine. “At will” is based on the false concept that because employees have the freedom to quit their job at any time, the employer should have the right to fire them at any time, for good cause, bad cause, or no cause. This formulation does not recognize that a worker’s right to quit stems from the Constitutional protections against involuntary servitude, while the employer’s right to fire does not stem from any fundamental right. Furthermore, “at-will” does not recognize the huge imbalance inherent in the employment relationship, where a worker who leaves his or her job rarely puts the entire enterprise at risk of failure, but an employer who fires a worker can cause that worker to lose his or her health insurance, home, and livelihood. Most workers who do not have an individual or collective contract find themselves as “at will” employees.
Some may question whether workers will rally to win employment rights that many mistakenly believe they already have. To the extent that that is true, naming and blaming the “at will” doctrine must be taken up by the newly invigorated socialist left as a popular education project.[note]Bill Fletcher Jr., and Shaun Richman, “What the Revival of Socialism in America Means for the Labor Movement,” In These Times, October 9, 2017, available at http://inthesetimes.com/[/note] In some ways, that would be a return to our roots.
“At will” is entirely a judge-made law, and it has been unpopular with workers’ movements from the start. Early on in our nation’s history, judges imported the doctrine from English common law. This coincided with the Industrial Revolution breaking up the traditional relation- ship between master craftsmen and their journeymen and apprentices. It ensured that the new class of capitalists had no obligations to displaced workers.
Earlier generations of the labor movement resisted the “at-will” doctrine and fought for employment rights for all workers. That changed with the advent of the National Labor Relations Act in 1935.
Basing employment rights—along with retirement, health insurance, and pay standards—on the enterprise-level of contract bar- gaining was an accident of history, and one that places U.S. workers well outside the norms of employment standards around the globe. It worked—on its own terms—for a few decades. But it is increasingly clear that the system is breaking down under a sustained corporate assault and unions’ continued fidelity to the model of a bygone era that is part of the trap we find ourselves in.
With “just cause” routinely negotiated into collective bargaining agreements, unions evolved to accept that job security is something a worker only gets for being in a union. Even today, many union leaders and organizers might have a slight preference for retaining “at-will” to drive more unrepresented workers to organize for a union contract at their place of work. Although that might have made sense in the 1950s, it is a completely counterproductive strategy in an era where union rights are under attack and employers routinely fire union activists to chill new organizing campaigns as well as subcontract and offshore jobs to avoid the reach of union contracts. The logic of this approach is also dangerous, as it could easily be used to argue against an increased minimum wage, universal health care, or a slew of other issues that would make all workers’ lives better.
“Just Cause” as a New Tool for New Organizing
As a practical matter, “Right to Your Job” laws would open up new pathways to organizing.
In a “just cause” legal environment, employers would have a self-interest in professionalizing their human resources department to avoid lawsuits and maintain discipline. Many companies would wisely institute forms of progressive discipline to document that underperforming employees were informed and counseled on areas of needed improvement before a “just” termination. Some might even institute an internal appeals process.
A worker who receives a warning that his or her job is in peril might reasonably want to contest a write-up and seek help and representation. This provides unions with an opportunity for a new model of representation and membership growth. Unions could offer unrepresented workers an at- large membership for a reasonable fee. Unions could offer telephone or in-person counseling.
If the “grievant” works at a company that the union is interested in organizing, providing onsite representation could be a good way to make inroads with other workers. More generally, providing such services would provide workers who have no experience with unions a positive view of them.
The United Teachers of New Orleans (UTNO) re-established collective bargaining through such a strategy in 2014. Infamously, of course, the city fired all of its teachers in the wake of Hurricane Katrina in 2005 and methodically replaced most of the district with charter schools.[note]Technically, it was more like a reduction in force. Teachers at the five and a half schools that remained in the Orleans Parish Schools district kept their jobs and their tenure. Everyone else had to “apply” for a “new” job in the Recovery School District or one of the private charter school companies it subcontracted to in the rest of the city’s schools.[/note] But some schools retained forms of tenure in the rule books. The employers tended to evade it through a strategy of churning both the workforce and the “portfolio” of charter management organizations.
However, at the historically elite high schools that were converted to charters, many of the former teachers were rehired and retained long enough to re-achieve tenure. When Benjamin Franklin High School moved to terminate a popular Latin teacher, UTNO represented him at a school board hearing and successfully saved his job. Before the school year was over, a rank- and-file organizing committee had signed up 90 percent of their colleagues for the union and successfully pressed the school board for voluntary union recognition.
Contrast that with what happens these days when an unrepresented worker whose job is in peril calls most local unions for help. The worker is most often told “They’re allowed to do that” and “We can’t help you,” and the union usually writes off the shop as an organizing prospect, because how can you start a campaign with a worker who is about to get fired?
The ability to contest a termination through mediation, arbitration, or lawsuits would also create a proliferation of worker/union-side labor lawyers. This is important because despite the common disdain for attorneys, especially those who advertise their services, the avail- ability and outreach by attorneys can serve an important educational function for workers who may not know their rights at work. Think of it as Better Call Saul, with more of a social justice focus. The increase of lawyers who rep- resent workers can also create a virtuous cycle, where there becomes an increase in judges who understand worker issues and thereby change the law to make it more worker-friendly.
Why Now?
For decades, unions have watched in frustration as badly needed labor law reforms have died under Democratic administrations and Democratic congressional majorities. As a result, we have understandably tended to lower our legislative ambitions. To take advantage of this moment, unions, workers centers, alt-labor organizations, and workers’ rights advocates of various stripes need to take the opposite approach from what we did for the doomed Employee Free Choice Act (EFCA). Rather than try to cobble together a consensus around a small tweak of the National Labor Relations Act (NLRA), we need to vastly expand our list of reform proposals and think way beyond the bounds of the NLRA. We need to promote legislative change that protects and empowers all workers to vindicate their rights on the job, to have a voice, and to form a union and collectively bargain.
We have a rare opportunity to move big, bold ideas at the federal level. These can serve as trial balloons for what issues should be at stake in 2020 and beyond. They can also help spur and encourage state- and local-level campaigns to win them sooner. “Just cause” employment legislation[note] Moshe Marvit and Shaun Richman, “American Workers Need Better Job Protections,” The New York Times, December 28, 2017, available at https://www.nytimes.com/2017/12/28/opinion/ american-workers-job-protections.html.[/note] should be high on the progressive community’s short- list of demands.
We are in a unique moment. After decades of unions losing members and power, that regrettable trend is now widely recognized as a political crisis. Simultaneously, there is a resurgent left and a broad-based grassroots movement, and a Democratic Party hungry to reclaim it. It would be a mistake to tiptoe around the edges of labor law, only hoping that if we advocate modest reform, it might survive business opposition and Senate filibuster. The more minor and esoteric the reform, the more difficult it is to build broad- based coalitions to fight for it.
A “just cause” employment campaign would not only serve the disparate goals of various workers’ rights groups, but it also carries the possibility of changing perceptions about employment and the employer. The more workers begin to experience and feel a right to their jobs, the more they can imagine what’s possible in the workplace. And, with the protections of “just cause,” the more workers can act on it without danger of losing their jobs.
We do not propose this as a silver bullet to reverse labor’s sagging fortunes. Rather, we advocate the development of a bold and broad list of demands for workers’ rights. We would also suggest sectoral wage boards (see On the Contrary: “The Time Has Come for Sectoral Bargaining” in this issue), outlawing noncompete clauses (see Organized Money: “A Not-So Free Market in Bad Jobs” in this issue), and forced arbitration clauses, the criminalization of wage theft as some of the other items to be considered—along with a comprehensive repeal of the Taft-Hartley Act and modernization of the NLRA.
But the demand for “Right to Your Job” is both overdue and timely. It is compelling and easily understandable, and contains within it the potential for widespread appeal. It is a demand that is worthy of unions who still consider labor to be a “movement.”
[This article originally appeared in Volume 27 Issue 3 (Fall 2018) of New Labor Forum.]