Shaun Richman

September 3, 2018

A history lesson on saving labor: Look to how unions rebounded in the 1920s for insight on how they can make progress today

Many obituaries have been written for labor. The anti-union Janus vs. AFSCME Supreme Court decision is already being followed by a dark money campaign to convince workers to quit their unions. In the private sector, employers evade the reach of workplace-based union contracts by off-shoring, sub-contracting and freelancing jobs.

Despite occasional bright spots like Missouri voters’ rejection of right-to-work, this is labor’s lowest point in a century.

The parallels between today and the 1920s are striking. Like then, unions faced existential threats and structural challenges with no obvious solutions. Yet that nadir was quickly followed by the wave of sit-down strikes, the passage of laws protecting workers’ rights to organize and an unprecedented half-century of shared prosperity.

This begs the question: what were union activists and allies doing in the 1920’s that set them up for such a dramatic reversal of fortune? And is there similar under-the-radar work we should be doing today?

Perhaps the least-appreciated most-impactful effort came from the labor colleges that served as strategic retreats for union activists. At Brookwood Labor College, in upstate New York, activists got away from the daily grind of their defensive crouch organizing. College leaders, prodded by legendary organizer A.J. Muste, pursued a line of critical inquiry with little patience for easy answers or sacred cows.

They grappled with how to reconcile traditional craft union strategies with mass production and how to revive a movement that’s rooted in our occasional refusal to work at a time that few workers were willing or able to strike. Without them, it’s hard to imagine the sit-down strikes and huge organizing campaigns of the 1930’s would have sprung up in such a briefly revolutionary time period.

That culture of debate and disagreement is badly needed today. Unions prioritize unity but without a real plan to win it can lead to a strategic cul-de-sac, much like the one unions found themselves in a century ago.
In the 1920s, an organized left advocated for “one big union”-style multiracial organizing and contested for leadership within the traditional unions. Where there was no union, they embraced alternative forms of organizing.

These activists had an analysis of what core industries of the economy were essential to be organized. Socialists took jobs in steel and auto factories when no unions were serious about organizing nor was there a clear model for how to do it. Their presence as workplace leaders made them indispensable activists in the 1930s strike wave.
For the past four decades’ corporate assault on labor there haven’t been a lot of socialists around. Thankfully, thousands of new activists are rallying to the red flag.

Witness Democratic Socialists of America, lately seen toppling machine Democrats and ruining the meals of Trumpist baby-snatchers. These activists may be essential to labor’s next upsurge. They must be similarly thoughtful as their ideological forebearers were about where to be organizing.

I don’t know what a successful union campaign would look like in the tech sector. It definitely won’t look quite like the sit-down strikes of 1934 or following the National Labor Relations Board’s rigged election rules, but it will require activists intentionally taking those jobs together and becoming trusted and respected colleagues.

Finally, the 1920s — like today — saw an emerging coterie of intellectuals and reformers advocate for getting out of the boom and bust cycle of periodic economic depressions by empowering unions to do the real Robin Hood work of income redistribution.

They didn’t talk of “making it easier for unions to organize.” Their labor law was a blunter instrument, formally encouraging collective bargaining as the country’s policy by forcing employers to recognize unions and punishing retaliation for or interference with workers rights to organize.

If the only thing that can arrest our country’s slide into barbarism and economic disorder is a robust labor movement we need legal regime that thunders, “there will be unions!” and puts union pay standards, benefits and rights in every workplace.

The biggest lesson of the 1920’s to heed is that while organizing for long-term change, we must also be formulating big demands to democratize the workplace. We’ll have a very brief and unexpected window. Let’s be ready.

[This article originally appeared in the New York Daily News.]

August 30, 2018July 17, 2023

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.]

August 16, 2018

‘Cut red tape?’ People are dying in the workplace!

The horrific death of Carlos Gabrielli on a Westerleigh construction site should shock us all to the core. His throat slashed by an electrical saw after a slip and fall, he died in an ambulance after his coworkers frantically tried to stanch the bleeding with the shirts off their backs in the immediate aftermath of the gruesome accident.

As the Advance notes in its coverage, this was only the second of three dreadful workplace accidents in Staten Island last week. One day later, a crane collapsed at the construction site of a new Amazon warehouse in Rosebank. One worker’s leg reportedly “snapped in half.” Three days before that, a 25-year-old electrician was knocked unconscious at a construction site in Bloomfield after a small panel explosion exposed him to a 500 volt arc of electricity.

These kinds of workplace accidents, unfortunately, are not rare. On average, thirteen workers die on the job every day in this country. Most of these deaths are completely preventable. And yet the complex web of state and federal agencies and insurance programs meant to protect worker’s safety and incomes are persistently under-funded and under attack.

Our workplace safety laws – the federal Occupational Health & Safety Act (OSHA) and a patchwork of state worker’s compensation laws – are badly out of date and under attack from deep-pocketed corporate interests who want to slash benefits and shirk responsibility in the name of cutting “red tape.”

A new book, Dying to Work: Death and Injury in the American Workplace by workers rights attorney Jonathan D. Karmel is a compelling call for action on a national health crisis that’s hiding in plain sight. The book’s everyday horror stories could compete with the past week’s news in the Advance.

These are just a few: Yvonne Shurelds suffered an “internal decapitation” when the forklift that she was not properly trained to operate backed up into a metal bar. Her employer was fined $7,100 for safety violations. Hannah Phillips lost her arm to a meat grinder at a Kroger grocery store when her ill-fitting uniform snagged on the power switch. She feels “lucky” because the amputation was below the elbow and she was able to get off worker’s comp when she landed a $10.50 an hour job (with no health insurance) at a non-union Honda plant. Paul King was electrocuted on the roof of Terminal 3 at Logan airport while doing routine maintenance work. He was not trained as an electrician and his employer – a subcontractor of a subcontractor – did not provide him with protective gear or electrical test equipment. It contested its $54,000 OSHA fine, and neglected to include his last deadly hours of work in the final paycheck it sent to his widow.

Seemingly every widow in these stories is tormented by unannounced visits from inspectors, hoping to find her remarried so the state can discontinue its paltry workman’s comp survivor benefits. None of these families left behind gets a big payout, or even returns to the standard of living they had scraped together before the fateful accidents.

The workers comp system was a “grand bargain” that preceded the New Deal by decades. In exchange for providing some insurance for workers who lose life and limb, it shields employers from greater liability for their callous disregard for their human resources. Workers compensation laws generally prevent survivors from directly suing an employer for damages. Successful suits must include a third party like a subcontractor or machinery manufacturer.

Karmel suggests a list of reforms that’s longer than an amputated arm.

A “know your rights” posting requirements at every workplace – like we have for the minimum wage – is long overdue. A mandate that medical professionals who treat injured workers have no affiliation with the employer and a Medicare-style insurance system to pay for their treatment is pretty common sense. The fact that attorney’s fees for these cases have been reduced or remained stagnant is ridiculous if one believes that “you get what you pay for.”

Karmel also calls for enhanced civil penalties and criminal prosecution under OSHA. Usually the idea that stiffer sentences act as deterrence against future crimes beggars belief. Who calmly weighs the consequences during a crime of passion or desperation? But corporate crimes – which unsafe workplaces must be viewed as – are coolly calculated in boardrooms as matters of dollars and sense (and the continued comfort of the far-removed executives).

Financial OSHA penalties, which were set as a specific hard-dollar amount in 1970, have been raised just once – 28 years ago. Obviously, a company that kills an employee through willful negligence should pay more than a pittance in fines. Those statutory fines should not only be exponentially increased, but indexed to inflation like almost every other federal regulatory penalty is.

Finally, he calls for a streamlined process to replace the “complex and oppressive legal system that requires employees to bear the burden of establishing their entitlement to benefits.” That sounds to me that we should just federalize the system under a well-funded OHSA (and stop electing Republicans to Congress).

[This op-ed originally appeared in the Staten Island Advance.]

July 20, 2018

Nonunion Workers Can Save Unions. We Just Need to Reimagine How We Collect Dues.

IT SHOULD HAVE BEEN A MOMENT OF TRIUMPH. The writers at DNAinfo and the Gothamist network had voted to form a union. But a few days later, on Nov. 2, 2017, their sullen jerk of a CEO decided to fold operations in perfectly legal retaliation.

Our peculiar labor relations system bases whether or not you are protected by a union contract on whether you can survive a campaign of threats, harassment and outright lies to prevail in a winner-take-all vote. Even then, a union contract can still be voided by a crybaby boss picking up his marbles and offshoring, subcontracting or “shutting down” operations entirely. A workers’ rights system that can be so baldly circumvented by billionaires and soulless corporations is clearly and inalterably broken.

Many of the best ideas currently on the table for labor law reform transcend workplace-based contract unionism. We could revive the New Deal model of wage boards, which dictate minimum standards for all companies in an industry. Even, or perhaps especially, if they are dominated by corporate interests, they would provide unions with a campaign target and all kinds of organizing opportunities to gain new associate or “at-large” members.

As I have advocated and Bill Fletcher proposes, “just cause” measures like the one Keith Ellison is considering create an opportunity for unions and worker centers to offer tangible benefits to employees in nearly every workplace in America. Having expert advice and representation while contesting a boss’s write-up or termination is worth paying dues. Even the fair scheduling, paid sick days and assorted anti-discrimination laws that have proliferated in blue states and rebel cities in the Trump era represent opportunities to expand the ranks of union membership. The laws are a dead letter without an enforcement mechanism; enforcement should be the role of unions. These strategies are not meant to replace union contracts but to support, expand and enhance union standards across all workplaces.

The federal policy that would tie all of these reforms together and make them work as a union membership organizing strategy is a dues check-off law, voluntary for workers but mandatory for employers. Workers would be able to make voluntary paycheck contributions to any nonprofit of their choice—including unions. If they were getting enforcement help from a union, this would be a way of paying for the service. Other times, as when unions are waging battles for labor law reform, it would be more like throwing a few bucks at an advocacy group. Either way, for workers, it should be as simple as filling out a confidential form, or logging in to a website, to join or quit any time.

Voluntary contributions are very hard to maintain without access to payroll deductions. While I appreciate the romantic turn-of-the-20th-century history of Wobbly dues stamps and “walking delegates” hand-collecting voluntary union dues, modern experiences with alternative forms of dues collection have proven to be wheel-spinning exercises that can’t properly fund unions.

I spent years organizing with the United Teachers of New Orleans after all the teachers were fired in the wake of Hurricane Katrina. With no collective bargaining and little access to payroll deductions, we were asking union supporters to rejoin and pay their dues through credit cards or bank account debits. In our new age of inequality, even supposedly “middle class” teachers bounce checks and miss monthly credit card payments with distressing regularity. In a typical year, we would sign up 500 new members for a net gain of 100 new dues payers.

Any right-wing opposition to this bill would be laughable. Imagine the “right-to-work” and “forced unionism” dittoheads straining to argue that they should be allowed to make it more difficult for their employees to voluntarily pay dues to a union of their choosing. Oh, what an administrative burden for some back-office staffer at Paychex or ADP or one of the other small handful of companies to which basically every employer in America has subcontracted their payroll processing to tick a donation box! What a threat to democracy! Damn you, Nanny State!

Janus is an opportunity to break our understanding of “what a union is” into its component parts and decide what we want to keep and what requires change. Payroll deduction does not have to be limited to union shop contracts. Employees in every workplace in America deserve the immediate choice to join a union.

[This is the fourth of a four-part series on rebuilding labor after the Supreme Court’s Janus ruling. You can read the first part here, the second here and the third here. All four pieces, as well as an exclusive interview with Bernie Sanders on the future of the labor movement, are featured in the August 2018 issue of In These Times magazine.]