A New Bill of Rights for Workers: 10 Demands the Labor Movement Can Fight for and Win
ON A CLOUDY AFTERNOON IN APRIL 2006, ROGER TOUSSAINT LED A PROCESSION OF UNION WORKERS ACROSS THE BROOKLYN BRIDGE. Toussaint, president of Transport Workers Union Local 100 and an immigrant from Trinidad and Tobago, was on his way to surrender himself to the authorities to serve a 10-day jail sentence. His crime? He led the largely Black and Latino union membership in a 60-hour strike the previous winter, shutting down the city’s subway and bus system in violation of a judge’s injunction and New York’s 1967 Taylor Law, which bans public-sector strikes.
The court also slapped the union with a $2.5 million fine and suspended its ability to collect dues for a year. Individual strikers were fined two days’ pay for each day on strike.
Punishments this draconian are rare outside the world of labor law. Toussaint saw more jail time than any of the top bank executives responsible for the 2008 financial crisis.
To change the law—and the barriers to organizing the law poses—we have to change the way we think about it. The sweeping 1935 National Labor Relations Act (NLRA) and the many local laws it spawned are not the source of workers’ rights to organize.
Rather, those rights are rooted in the Constitution through the rights of free speech and equal protection, as well as freedom from involuntary servitude. Labor laws simply regulate those constitutional rights, much as election laws regulate the right to vote. And just as restrictive voter ID laws can violate citizens’ voting rights, bad labor laws can trample workers’ rights. While “corporate persons” have established free speech rights, for example, a union—a collection of actual persons—has no similarly recognized protections. This disparity would in turn seem to violate the 14th Amendment right to equal protection under the law.
Unions must reverse a half-century-long strategy of avoiding the courts and mount legal and political challenges to labor laws that infringe on workers’ speech, curtail their bargaining power and deny them the right to extend solidarity to fellow workers. This is a long-term strategy, one made longer-term by the inability to appoint progressive federal judges in the near future. But if we are ever to restore key protections for labor, we need to demand a workers’ bill of rights.
In a July report for The Century Foundation, I propose 10 such rights as well as strategies to advance them that can be adopted by both union officials and rank-and-file workers.
THE FIRST RECORDED COURT CASE INVOLVING WORKER ORGANIZING in the United States dates back to Thomas Jefferson’s second term. Shoemakers picketing for higher wages were convicted of using “threats, menaces and other unlawful means” to maintain a conspiracy.
That set the tone for jurisprudence of workers’ rights in the new republic, where conservative jurists treated union organizing as a criminal activity. As a result, unions spent the 19th and early 20th centuries decrying “judge-made law” and demanding the codification of their rights.
These demands resulted in a landmark victory. The 1935 NLRA encouraged collective bargaining by establishing a federal agency, the National Labor Relations Board (NLRB), to certify the existence of a union at a workplace and sanction employers who refused to deal with a bona fide union.
Another point of the NLRA was to keep labor disputes out of the courts. Most unions have stuck with the intent of the Act and shied away from pursuing rights and benefits that cannot be won at the bargaining table. Employers have shown no such reticence. They’ve attacked workers’ rights in the courts since the day the NLRA was passed, steadily chipping away at hard-won protections.
A fundamental flaw in the Act opened the door to these successful attacks. The NLRA’s authority derives from the Constitution’s commerce clause. Legal experts at the time argued that this framing had the best shot at withstanding legal challenges under a Supreme Court hostile to New Deal legislation.
Representatives of the American Federation of Labor (AFL) had, instead, pushed hard to base the Act on the 13th Amendment, which banned slavery and involuntary servitude. The AFL’s Andrew Furuseth warned of settling for short-term legislative gains while leaving unsettled the legal question of “whether or not that man or woman shall have a right to combine with others for the purpose of … doing collectively what you can’t do individually.”
His concern proved prescient. The NLRA’s grounding in the commerce clause means that when labor disputes go to court, they are judged by their potential impact on business. The last half-century has demonstrated that, by this yardstick, the courts consistently sympathize with business interests. As a result, unions are hampered by rules that would never be applied to corporations, or to any other form of political action.
Consider what happens when workers decide to form a union. The rules of union certification elections, set by a series of unfortunate court cases and NLRB decisions, permit employers to force workers to attend “vote no” presentations or be fired.
In a 2009 study, Cornell University’s Kate Bronfenbrenner found that employers utilized these captive audience meetings in nine out of 10 union elections. Employers threatened to cut wages and benefits in 47 percent of documented cases, and to go out of business entirely in 57 percent of cases. In one in 10 instances, bosses actually hired goons to impersonate federal agents and lie about the process. Not surprisingly, unions lose 57 percent of elections when employers run these “captive audience” meetings.
Ironically, corporations have argued for—and won—the right to hold these meetings on the grounds of their First Amendment rights as “persons.” Yet union advocates possess no equivalent right to hold their own “vote yes” meetings.
The captive audience meeting is but one of many areas in which labor law favors employers. Workers form unions because they want a say on the job. Yet employer-friendly court decisions have created a distinction between “mandatory” and “permissive” bargaining issues. Employers are required to bargain over the former, but can legally tell the union to go to hell when it raises the latter. Labor law thus removes from the bargaining table many of the issues that matter most to workers, including the decision to downsize, subcontract or shift work overseas.
The existing labor law regime even circumscribes solidarity, the lifeblood of unions. “An injury to one is the concern of all” is one of the oldest precepts of the labor movement, yet it is illegal for unions and workers to officially join others’ strikes and boycotts.
Corporations, by contrast, engage in so-called secondary boycotts all the time. Cable providers, for example, black out television channels to protest a network’s rate increase, instructing viewers to call the network CEO to complain. Why are secondary boycotts legal when used by media companies for profit, but illegal when exercised in solidarity by workers?
UNIONS HAVE BEEN PLAYING DEFENSE FOR SO LONG, they tend to accept the rigged rules. But a fresh look at the body of labor law reveals many restrictions on union activity to be constitutionally suspect.
There are several arenas where unions can advance a rights-based agenda. First, they can push the NLRB for rule changes. A group of leading labor scholars is currently petitioning the NLRB to re-establish a rule guaranteeing equal time for pro- and anti-union presentations in the workplace. Trump’s Republican-dominated NLRB won’t be sympathetic. The next Democratic NLRB should be keenly aware of what a limited window for action it may have.
In some cases, unions must be prepared to defy NLRB orders and push key questions into the courts. Labor groups might start by challenging the excessive restrictions on signal picketing (efforts to embarrass unfair employers without an explicit call for a boycott). Noxious hate groups such as the Ku Klux Klan and the Westboro Baptist Church have seen their pickets vigorously defended by the courts. Unions should argue that to restrict signal picketing is to violate workers’ First and 14th Amendment rights.
Of course, labor can’t rely on the courts and the federal government to save it. Advancing a workers’ bill of rights will also require protest and direct action, but this must be complemented by new legal and political strategies. Whenever public-sector unions defy state-level no-strike laws, as the New York City transit workers did in 2006, they should seek federal injunctions to stop the state from issuing crippling punishments, arguing for their right to strike on First and 13th Amendment grounds.
In all of these arenas, labor must be willing to make bold demands. The NLRA was drafted and passed within a matter of months, in part because it reflected the rights-based agenda that labor advanced for decades.
It is time for unions to return to demanding workers’ rights without apology.
[This article originally appeared in the September issue of In These Times.]
The Right to Organize at Work Deserves Constitutional Protection
On Labor Day, alongside stories about parades and final trips to the beach, we can expect to read the usual depressing statistics about the decline of labor unions in the United States. The problem with this coverage isn’t the facts, which are undeniable — it’s the tone of inevitability.
Today, less than 11 percent of workers, including just 7 percent in the private sector, are members of a union — a dramatic drop from the 1950s, when more than one-third of the workforce was unionized. The recent loss by the United Auto Workers at a Mississippi Nissan factory, where workers voted by a three-to-one ratio against union representation, is just the latest in a long string of defeats for the labor movement.
And this decline has a real effect on families’ financial security: Researchers have shown that nearly half of the decline in middle-class incomes is due to the shrinking rates of unionization.
Few articles probe deeply into the cause of the decline, but here’s a hint: It isn’t because unions no longer make sense in the modern economy, nor is it about American workers’ supposed skepticism toward unions (especially in the South). And it’s not more evidence that the white working class stubbornly insists on voting against its own interests.
Rather, the decline of unions is a direct result of our nation’s badly broken labor laws — specifically, the ways in which those laws and court decisions fail to acknowledge, much less protect, the constitutional rights of workers.
American courts have never been kind to labor. From the beginning of our nation’s history well into the 20th century, union organizing efforts were treated by conservative jurists as criminal conspiracies and interferences with employers’ sacrosanct contract rights. Unions spent the 19th and early 20th centuries decrying “judge-made law” and seeking, essentially, to get the government and courts out of labor disputes.
This approach did notch a few victories. The Norris-LaGuardia Act of 1932 prevented the federal courts from issuing injunctions against union picket lines (which were frequently enforced at bayonet point). Many states passed similar laws to keep their courts and local police out of the fray.
But the modern labor era began in many ways in 1935, with the National Labor Relations Act, which made it the official policy of the United States to encourage collective bargaining. The act established a federal agency, the National Labor Relations Board (NLRB), which would certify unions and punish employers that refused to deal with them. While well intended, passage of the NLRA in the form it took has had many unintended, and some extremely detrimental, consequences for organized labor.
A failure to ground labor laws in the Bill of Rights
The framers of the legislation, who at the time were leery of a conservative Supreme Court, made the pragmatic decision to root the law’s authority in the Commerce Clause, which grants Congress the right “to regulate Commerce with foreign Nations, and among the several States.” This was the subject of no small debate at the time.
Many advocates believed that labor’s rights should be based on First Amendment rights to free speech and free assembly; others thought that the Fifth Amendment right to “due process” — interpreted as a broad protection of citizens’ rights — made sense. Leaders of the American Federation of Labor had been arguing for a half-century that the 13th Amendment, which prohibited both slavery and, crucially, “involuntary servitude,” was the appropriate constitutional basis for labor rights. But the act’s framers were convinced that the Lochner-era Court that made laissez faire economics a virtual state religion would never go for more lofty human rights justifications.
Practically speaking, the court was motivated to accept the NLRA more by the wave of sit-down strikes roiling the country in 1937 than by legal theories. But conceiving of unionization as a matter of business regulation led to a very narrow interpretation of the act. Before the end of World War II, the court took away legal protections for sit-down strikers, denied striking workers the right to return to his job, and granted employers a First Amendment right to run vicious union-busting campaigns.
Much of this anti-union thrust was endorsed and enhanced by the Taft-Hartley Act of 1947, passed by a Republican Congress over President Truman’s veto. The law declared it illegal for union members to boycott or picket a “secondary” employer — that is, a company that they do not work directly for, but who has significant or even essential business dealings with their employer.
Most people think of the Taft-Hartley Act for its “right-to-work” provisions. The Act permitted states to allow workers to decline to join a union, or pay fees, even if they benefitted from union-negotiated contracts.
But it’s the prohibition against solidarity activism, the heart and soul of the labor movement, that’s been most devastating. A cable provider that gets into a fight with a television channel over revenue sharing can black that channel out. But if the workers at your local unionized grocery store want to keep Oreo cookies created at a scab factory off the shelves, they face steep fines, effectively banning the practice.
Restrictions on labor accelerated in 1949, when 10 unionized technicians at the Jefferson Standard Broadcasting Company, in Charlotte, North Carolina, were fired for distributing handbills criticizing their employer. Workers quickly filed a complaint with the NLRB arguing that they were participating in a legally protected activity, but the NLRB ruled that the technicians’ actions were not protected because they were not explicitly connected to the union contract campaign — they involved more general complaints.
Courts recognized “disloyalty” as lawful grounds for firing a worker
Upon appeal, the US Supreme Court issued Labor Board v. Electrical Workers, one of its most aggressively anti-labor decisions. The majority wrote, among other things: “There is no more elemental cause for discharge of an employee than disloyalty to his employer.”
Interpretation of the Jefferson Standard decision has led to decades of harsh and contradictory court decisions that chill the rights of workers to speak out. This past July, the Eighth Circuit ruled that six workers at a Jimmy Johns sandwich shop could be fired because they circulated memes suggesting that customers might be eating food made by sick workers. They were protesting the franchise owner’s refusal to provide paid sick days (ill workers also had find their own replacements).
The “poster attack” was “so disloyal” that it was not protected under the law, the court found. Unsurprisingly, the judges had little to say about the employer’s reciprocal responsibility to be loyal enough to its workers to let them take a day off when they get sick.
And consider the recent vote at the Mississippi Nissan plant, in which efforts to form a union were turned back. In order to determine whether workers had a legal right to form a union, the NLRB held an election with rules set forth by Congress and the courts. Among them was the requirement that only one side — the party that opposes unionization — can force employees to attend mandatory presentations of their arguments as a condition of employment. The union, according to the federal government, has no equivalent right of access or response.
Employers’ speech to captive audiences of employees is protected
As expected, managers at Nissan forced employees to attend multiple one-on-one and small group “captive audience” meetings, in which they threatened that the plant could be relocated, or shuttered, if workers voted for a union. That is nothing new. Across the country, employers make fake “economic predictions” to threaten workers’ jobs in two-thirds of all union elections, according to Cornell professor Kate Bronfenbrenner.
But restrictions on workers’ speech don’t end at rigged elections; the government also censors what unions can do at the bargaining table. Federal law requires employers to negotiate “in good faith,” but only on a tightly circumscribed set of issues — basically just wages, hours and some working conditions. A decision to relocate a factory, as Nissan managers threatened, is not an issue unions can negotiate.
This is what makes threats of plant closures such effective anti-union tactics. Workers want unions that have the ability to veto or amend management’s decisions to downsize, subcontract, automate or shift work overseas. But in the American system, unlike in much of Europe, such matters are the prerogative of management alone. When the law restricts unions from being what workers want them to be, of course there are going to be low levels of union representation.
Simply put, employees are hampered by rules that would never be applied to corporations, or to any other form of political activism. That the government can dictate to workers what they can or cannot write on a flyer, where and how they can march, and what they can and cannot boycott, is not just unfair — it ought to be illegal.
In March 2016, the Supreme Court considered the issue of speech in bargaining in Friedrichs v. CTA, a case that deadlocked 4-4 (without Justice Scalia’s vote); in that case, conservatives argued that public-sector unions violate workers’ speech rights when they collect mandatory union fees. The goal was to bankrupt the last of the big unions. The parties are suing for a do-over in the pending Janus v. AFSCME.
Union advocates should wrest the free-speech issue from conservatives, because we have the far better case: Every interaction between the government and a union is a matter of political speech. Unions and their allies should challenge unequal restrictions on free speech and assembly as the violations of workers’ constitutional rights that they are.
As economists scratch their heads this Labor Day about why the longest economic expansion on record is not translating to increases in most Americans’ standard of living, let’s take a good, hard look at precisely how the power of unions has been curbed. Just as laws permitting collective bargaining helped build the American middle class, a vigorous First Amendment defense of workers’ constitutional rights can help rebuild it today.
[This post originally appeared at Vox.]
AUDIO: On America’s Work Force Radio Discussing Labor’s Bill of Rights
Want to Really Help Workers? Protect their Speech!
When does free speech stop being free? At the entranceway of one’s job, apparently.
That was the implication of a ruling this month from the Eighth Circuit Court, which found that the sandwich conglomerate Jimmy John’s was within its rights to fire six employees for making signs that protested the company’s policy of forcing workers to come to work when ill.
While the decision came as a surprise to many, the logic underlying it—that employees have few, if any, free speech protections on the job—has had devastating impacts on American workers for decades. Indeed, the dramatic drop in union representation is due in part to the fact that our court system regulates employees’ ability to organize by the impact of their organizing on businesses’ bottom line, devoid of any concern for the free speech or civil rights of workers.
Until we ensure that freedom of speech extends to the workplace, workers and the labor movement writ large will continue to suffer defeats at the hands of courts, corporations and legislatures. In short, we need a 21st-century Bill of Rights for Labor.
It’s no secret that laws meant to protect workers’ rights have been under assault for decades, in spite of greater protections and progress for workers in many areas. Unions are hampered by rules that would never be applied to corporations, or to any other form of political activism. Underlying this assault is the decision by the framers of the 1935 National Labor Relations Act (NLRA) to ground the Act’s constitutionality in the Commerce Clause, not the Bill of Rights or the Reconstruction amendments.
Just consider how unions get formed. To determine whether employees at a workplace have a legal right to form a union and bargain collectively, the National Labor Relations Board conducts an election to determine whether the workers “want” to form a union. The rules that govern this election, as set forth by Congress and, subsequently, the courts, are that only one side—the party that advocates a “no” vote—can force employees to attend mandatory presentations of their arguments as a condition of employment.
Employers use half of all of these “captive audience” meetings to threaten wage and benefit cuts should they vote to go union, according to researchers at Cornell. In two-thirds of these instances, bosses threaten to go out of business entirely; in one in ten cases, employers actually hire goons to impersonate federal agents and intentionally mislead workers about their rights and collective bargaining. It’s no wonder that anti-union consultants consider exploiting this imbalance of speech to be “management’s most important weapon in a campaign.”
Unions, for their part, have tried to fix this problem legislatively, perhaps most notably through the Employee Free Choice Act a decade ago. That attempt, however, which would have allowed workers to sidestep elections entirely by simply requiring a majority of workers to sign union-affiliation cards, was greeted by a multimillion dollar right-wing assault that extolled the “sanctity of the secret ballot.” The bill, not surprisingly, did not pass.
Given that attempts to reform labor law for the benefit of labor itself have largely failed since the 1935 NLRA passage, unions and their allies need a new strategy. That starts with changing the frame of the debate—returning to rights-based legal strategies and challenging the unequal restrictions on free speech for what they are: unconstitutional.
The rights of working people to unite, protest, boycott unfair businesses, and demand change in all areas of business are fundamentally rooted in the Bill of Rights and the Reconstruction amendments. Where labor law restricts these rights, either through statute or judicial fiat, it should be resisted and challenged as such.
Given that attempts to reform labor law for the benefit of labor itself have largely failed since the 1935 NLRA passage, unions and their allies need a new strategy. That starts with changing the frame of the debate—returning to rights-based legal strategies and challenging the unequal restrictions on free speech for what they are: unconstitutional.
The rights of working people to unite, protest, boycott unfair businesses, and demand change in all areas of business are fundamentally rooted in the Bill of Rights and the Reconstruction amendments. Where labor law restricts these rights, either through statute or judicial fiat, it should be resisted and challenged as such.
Affirming free speech rights won’t just help workers or unions; it will benefit all Americans. The decline of union participation has resulted in stunning income inequality, wage stagnation, and widespread gaps in basic health, retirement, and family leave benefits, among other perverse outcomes. Stronger worker protections and a more robust labor movement is one sure-fire way to create a more prosperous and inclusive economy.
When the government can dictate to workers what they can or cannot write on a flyer, a picket sign or a tweet; where and when they can march; even what they may demand at the bargaining table, something has gone very wrong. We don’t just shift power to large corporations at the expense of struggling families; we violate a bedrock ideal of this country.
Unions have been on the defensive for so long it can be easy to accept the rigged rules of the system as a given, as immune to change—but they are not. They remain bound by the Constitution, like all else. It’s time to make sure that’s the case in practice.
[This article originally appeared at The American Prospect.]