Shaun Richman

With the decisive victory for union members at Verizon, 2016 is already on pace to be the second year in a row where recorded strike activity has increased over the previous half-decade. Now, a new decision from the National Labor Relations Board (NLRB) could restore legal job protections for striking workers, making workplace job actions a more common—and more powerful—union strategy.

Workers simply do not have a meaningful right to strike if they do not have a right to return to the job when the strike is over. But, thanks to the judicial gutting of labor rights, going on strike is a high stakes proposition for American workers. Not only do striking workers lose out on pay and benefits during the strike, but they run the risk of losing their jobs entirely. So, while work stoppages are on the rise relative to the last few years, they are at historically low levels compared to the post-war era when wages actually rose with corporate profits.

In a new case, American Baptist Homes, the NLRB attempts to strike a balance between workers’ statutory right to strike and protection against employer retaliation for union activity and a boss’s Supreme Court-granted “right” to hire permanent replacement workers “to protect and continue his business.” Thankfully in this case, the exceptionally arrogant and stupid Executive Director of the employer in this case and her counsel went on the record that their use of permanent replacements was meant to “punish the strikers and the Union” and to discourage future strikes, as Benjamin Sachs has detailed.

For much of the last four decades, the NLRB has simply taken a boss’s word that the permanent replacement of striking workers was necessary to continue her business. Now, the NLRB has declared that it will return to an earlier, Supreme Court-approved standard in which employers’ rights to permanently replace striking workers may be “wholly impeached by the showing of an intent to encroach upon protected rights.”

In other words, the NLRB will investigate when an employer hires scabs—and they better have a good case. Since most strikes these days are defensive—pushing back against employers’ attempts to gut work rules, slash pay and benefits and bust the union—this is a big deal.

“…to interfere with or impede or diminish in any way the right to strike.”

A forthcoming book by labor law scholar Julius Getman, The Supreme Court on Unions: Why Labor Law is Failing American Workers, explores in depth the “judicial arrogance” of the court in substituting their own ideology and facts when shaping the labor law regime. It is particularly well timed as we look forward to a profound change in the Court in the wake of Justice Antonin Scalia’s death (although Getman clearly did not anticipate Scalia’s timely passing when he wrote the book).

One aspect that stands out in Getman’s book, to this writer at least, is the shakiness of the legal precedent that allows employers to permanently replace striking workers. It begs for a campaign of judicial activism to repeal it.

This legal vulnerability of strikers was established by a 1938 Supreme Court decision, NLRB vs. Mackay Radio. It was a poorly decided and little-revisited case upon which the entire anti-union playbook depends. Getman shines a welcome spotlight on the case, and inspires the conclusion that the so-called “Mackay Doctrine” is overdue for a sustained campaign of judicial challenge from unions and their allies.

In the original case, NLRB v. Mackay Radio & Telegraph Co., the union’s strike lasted all of one weekend. The employer continued operating by transferring workers from its other facilities, and when support for the union’s goals failed to materialize, the leaders called off the strike. When the strikers returned to work on Monday, four of the leaders were singled out and denied reinstatement.

The NLRB quickly ruled that the employer’s actions were clear violations of the law and went to court to order the employer to reinstate the four fired strikers, with back pay. The 9th Circuit Court refused to enforce the NLRB’s order, as this was generally a period when many jurists considered the labor act, in part or in whole, to be unconstitutional. That’s how the case got to the Supreme Court.

Ironically, the Mackay decision was hailed at the time as a victory for labor. It was yet another decision that cemented the constitutionality of labor law, but the Court also found for the union and the NLRB.

The labor relations act, after all, was meant to protect workers who engage in union activity from “discrimination in regard to hire or tenure of employment or any term or condition of employment,” and these four workers were singled out for their strike activity and told that they no longer had jobs.

Of course, Mackay had no time to hire permanent replacements in a weekend.

The issue was inserted by Justice Owen Roberts as an offhand comment, which I’ll quote in full because it bears scrutiny:

Although Section 13 of the act, provides, ‘Nothing in the Act should be interpreted to interfere with or impede or diminish in any way the right to strike,’ it does not follow that an employer, guilty of no act denounced by the statute, has lost the right to protect and continue his business by supplying places left vacant by strikers. And he is not bound to discharge those hired to fill the places of strikers, upon the election of the latter to resume their employment in order to create places for them.

In other words, the employer in Mackay broke the law because it discriminated against the strike leaders by singling them out and firing them, but if the employer had found a non-discriminatory way to discriminate against strikers (like, say, hiring scabs to replace them in the order of reverse seniority) then that would be hunky dory.

“…the right to protect and continue his business…”

In the four decades that followed Mackay, very few employers took the liberty to permanently replace striking workers, as it generally fell outside what was considered socially acceptable behavior by employers in the post-war era.

Which isn’t to say that some employers didn’t try to push the envelope in their union-busting attempts. Most judicial revisiting of Mackay comes from cases where the Courts rejected employer attempts to go further.

For instance, in a 1963 case the Supreme Court rejected an employer’s attempt to grant replacements a “super seniority” for their service as scabs by ruling that it was not “proper under Mackay.” It was this sort of right-wing judicial activism that pushed back on union rights and served to give a bad footnote the appearance of settled legal doctrine. But the court has never revisited the facts or logic of the Mackay decision.

As Getman points out, what is now considered the “Mackay Doctrine” is in direct conflict with the actual Mackay decision:

The holding is that it is illegal to decide which employees are entitled to work after a strike on the basis of union activity. But the dictum insists that the employer may give employment preference to those who work during a strike over those who strike, which is precisely the same result, penalizing union activity that was outlawed by the holding.

“It is impossible to know,“ writes Getman, “what led the Court to go out of its way to announce that the hiring of permanent replacements was consistent with the Act.” But one can easily guess that the conservative judges, aghast at New Deal encroachments on property rights, sought to ensure that the bargaining power of unions was “balanced” in some way.

The Mackay Doctrine wasn’t really put to use until the 1980s, starting with the Phelps-Dodge copper mining company, which bargained its Steelworkers local to impasse over drastic cuts in pay, benefits and working conditions, pushed them out on strike and then had the scabs vote to decertify the union 12 months later. This is how employers have weaponized Mackay to union-bust much of American industry. (And it would be clearly illegal under the new American Baptist Homes standard.)

The results are far from Justice Roberts’ nebulous “right to protect and continue his business,” and farther still from “balancing” the power of unions and management. Common sense dictates that the right of management to permanently replace striking workers be revisited; justice demands that the Mackay Doctrine be overturned.

Call me a cockeyed optimist, but I think Mackay is vulnerable to constitutional challenge as a violation of workers’ 1st amendment rights of free speech and assembly, 13th amendment protections against involuntary servitude and 14th amendment guarantees of due process and equal protection. As it is, the American Baptist Homes NLRB decision is certain to be resisted and appealed by business and industry, and will inevitably wind its way up the federal courts.

Even if the Court doesn’t go for those constitutional arguments, it could be ruled to have been “wrong the day it was decided” for having ignored both the plain language of the law, as well as the clear legislative intent. Or the Court could decide that their predecessors acted in the public interest by attempting to “balance” the power of unions and management in 1938, but that the track record of Mackay since 1983 demonstrates that true balance can only be achieved by restoring the right to strike without reprisal.

Or if the Court really wants to weasel out of the controversy, they could lean on the crucial (and crucially forgotten) “protect and continue his business” portion of the initial Mackay dictum—only granting the “right” to permanently replace strikers to employers who can demonstrate that they might go out of business otherwise, or, as in American Baptist Homes, that they have no ulterior union-busting motive.

Not that Julius Getman would necessarily agree with my proposal. “The long existence of the doctrine,” he writes, “its acceptance by Court after Court, and the fact that it has survived attempts to overturn it by amendment all will make it a ward of stare decises, safe even from liberal courts.”

Getman is a brilliant and accomplished legal scholar. I’m just an organizer who argues with lawyers a lot. So, with respect, I don’t see a substantial downside to trying. It was the dogged pursuit of anti-union lawsuits by the right-wing—often, initially, unsuccessful—that helped make Mackay precedent, as well as brought us on the verge of outlawing neutrality agreements and outlawing the union shop in the public sector. It is time that we launched a sustained counter-offensive in the courts.

And what about striking workers who do lose their jobs under the current doctrine? Who could argue against taking every step imaginable to restore their rights and their livelihoods?

Union supporters had reason to cheer earlier this month when Wisconsin Gov. Scott Walker’s hated “right to work” law was overturned by a Dane County Circuit Judge. Unfortunately, the decision is all but certain to be overturned by Wisconsin’s conservative Supreme Court. But contained in the case is a line of questioning over the constitutionality of the right-to-work concept that has quietly been playing out in federal courts.

The result could be that all right-to-work laws are nullified—and sooner than you might imagine.

“RTW” takes money and power from unions, but is that a ‘taking?’

The logic that the Wisconsin judge leaned upon in his decision has its origins in a federal case called Sweeney v. Pence, in which unions made an unsuccessful attempt to overturn Indiana’s recent right-to-work statute on constitutional grounds. Although the unions themselves did not raise this argument in the 2014 case, Chief Judge Diane Wood argued in her dissent that “right-to-work” provisions violate the U.S. Constitution’s Takings Clause.

“This is a law,” says Marquette Law Professor Paul Secunda, “that compels one private party to provide benefits to another private party with no compensation.” He is convinced that right-to-work laws, which permit represented workers to quit their union and stop paying fees while simultaneously obligating that union to continue to spend resources representing them, are an unconstitutional “taking.”

If the issue makes its way up to the Supreme Court, and the justices agree with Secunda, the result could overturn the section of the National Labor Relations Act that allows states to pass right-to-work measures as well as the statutes in all 26 states that have passed them in one fell swoop.

The Wisconsin case won’t get there. Because Wisconsin is in the same 7th Circuit that rejected the “takings” argument in Sweeny v. Pence (making it, for now, a settled matter there), unions filed their case in state court over the state’s constitution.

But West Virginia and Michigan are states that recently passed right-to-work laws, and they are both in different federal court circuits. Unions in those states could challenge the constitutionality of right to work on the federal level. Unions in Idaho already have a case pending, which is a particularly exciting prospect as that state falls within the liberal 9th circuit. (Keep an eye out for Operating Engineers Local 370 v. Wasden.)

The “takings” approach is not without its critics. Seattle University Associate Professor of Law Charlotte Garden notes that Judge Wood’s interpretation of the Takings clause is one more commonly advanced by anti-regulatory conservatives, and that labor taking up the cause could have unintended consequences. “There’s a difficulty of applying existing ‘takings’ law in this kind of context,” she says. “Takings” is generally applied to property, she says, and what’s being taken from unions is the labor of their staff.

As an alternative strategy, Garden points out that the NLRB has indicated an openness to considering whether unions in right-to-work states can charge a fee to non-members who want to file a grievance.

Any rulemaking by the Board on right to work can expect to be challenged by business interests, which could open different constitutional questions about the law. The Indiana unions actually argued in Sweeney v. Pence that the Taft-Hartley amendments to the NLRA were only meant to apply to questions of compelled union membership, not fees for service. But I believe there remains a compelling argument about legislative intent.

Remembering our history will be vital to success

The judges who rejected the “takings” logic in Sweeney vs. Pence argued that unions weren’t uncompensated for their duty to represent all workers in a bargaining unit. They wrote, “we believe the union is justly compensated by federal law’s grant to the Union the right to bargain exclusively with the employer. The reason the Union must represent all employees is that the Union alone gets a seat at the negotiation table.” This is a bunch of ahistorical nonsense that betrays a lack of understanding of labor relations and power dynamics.

But why should we expect a couple of judges to get this right when most union activists are so muddled on the history and effects of the duties of exclusive representation and the union shop? To win, we need to understand our history and have real clarity on our goals to regain power.

When the National Labor Relations Act was written, unions were “members-only” organizations that competed with each other. They contested for power in the same workplaces over who would make the best bargaining demands, who could extract the bigger concessions from management and who could organize the most successful job actions. Employers hated this.

In pursuit of labor peace, employers began signing contracts with unions as the “sole and exclusive representative” of their workers. These early contracts gave employers a one-year guarantee that there would be no new union demands and no strikes. Unions went with it because it helped knock out the competition. The NLRB, which had been certifying unions as representing their members only, also went with it and now certifies unions as exclusive representatives, exclusively.

Agency fee originated not merely as compensation for the financial costs of representing all the workers in a unit, but for the political costs. During World War II, patriotically motivated unions pledged not to strike, and were rewarded with government-dictated wage freezes. Workers protested by quitting their unions. In order to keep unions from dropping their no-strike pledges, the War Labor Board began to reward unions a “maintenance of membership” rule which prevented workers from quitting the union during the term of a contract. This evolved into the union shop and agency fees.

The combination of exclusive representation and agency fee does contain the potential for real power and real wins for unions, as well as labor peace for employers. But it also tends to make unions more conservative and less militant. Exclusive representation without agency fee is the worst of both worlds, and should be resisted.

For three quarters of a century the only way that the NLRB would “certify” a union was as the exclusive representative of all of the workers at a represented workplace, mostly with the union’s understanding that it could bargain for a contract clause that obligates represented workers to pay some fair share of the union’s expenses.

This “union certification” gives collective bargaining the force of law that an arm of the federal government—the NLRB—will drag an employer that refuses to recognize and bargain “in good faith” with a certified union to court to force them to. So, for a union to tear up this “certification” to represent all of the workers and say, “we only represent our members now” carries the risk of losing the backing of the NLRB—but the potential reward of forcing the courts to grapple with the tradeoffs of forced representation without taxation.

To win big, we need a union in a right-to-work state that is genuinely willing to cede exclusive representation to kick out the scabs.

What I think this would look like is that union, just prior to the expiration of their current contract, filing a letter with the employer and the labor board disclaiming representation of the entire bargaining unit but demanding to bargain for their members only (and subsequently refusing to bargain over a no strike clause). We’ve got a much stronger case if it’s brought to federal court by an employer complaining that a union won’t represent all the workers than one brought by a union complaining about a loss in agency fee revenue.

It is time to start using the courts more strategically

The idea that the Supreme Court could swing from seriously considering forcing the entire public sector to go right to work in this term, to weighing the very constitutionality of right-to-work laws two or three years later might seem too fantastical, but such is the strange lack of case law over the underlying legal justification for requiring that a union represent all the workers but forbidding them to mandate dues and fees for that service work.

“This isn’t stare decisis at all,” says Paul Secunda, describing the Latin term for the legal obligation of judges to stand by settled decisions. “You’ve got one decision from one circuit court. This is hardly settled case law.”

As I’ve noted, unions have tended to shy away from judicial strategies, and, on right to work in particular, labor has long favored a legislative solution. Repealing the Taft-Hartley Act that contained the right-to-work amendment to our nation’s main labor law was the top legislative priority of the AFL, the CIO and its merged successor from the time of its passage in 1947 well into the 1980s.

There were 12 right-to-work laws on the books—mostly in former slave states—at the time of Taft-Hartley’s passage. They had no force of law, as the federal NLRA preempted them—that is, until Taft-Hartley. And again, a close look at the legislative intent might reveal that Congress merely meant to allow states to ban union membership—not agency fees—as a requirement of employment. Or, more crudely, they may have basically been saying, “Let the Confederacy secede from the New Deal.”

The AFL and the CIO, which by 1947 had both abandoned organizing the south, seemingly wrote the former Confederacy off at the time. Since labor lost little to no membership as a result of those first 12 right-to-work states, little brainpower was devoted to challenging the constitutionality of the scheme. Likewise, when right to work next spread to western and plains states like Arizona and Nebraska, labor similarly wrote them off.

When right to work first spread to a bedrock labor stronghold, Indiana in 1959, the move was so controversial that within eight years labor had managed to overthrow the Republicans, who supported it in all three chambers of government and repeal the law. This win—the only instance of a right-to-work law in a vital blue-collar labor state being repealed legislatively—may have ultimately been counterproductive, giving unions false hope that killing right to work is a matter of making sure the bad guys don’t win re-election.

The labor movement of 1965 could entertain such fantasies. The labor movement that has seen bases of union power in Indiana, Michigan, Wisconsin and West Virginia go “right to work” within the same half decade must wake up to the fact that it will take more than elections to reverse the damage. It will also take a judicial activism agenda for labor, like I have advocated.

And ultimately, working people in America will gain no new rights without stoking a hell of a lot of chaos, through strikes and more. But we’ll also gain no new rights without legal demands like the Operating Engineers Local 370 v. Wasden case hanging out there. It is now up to the sisters and brothers in other “right to work” states—Michigan, West Virginia and beyond—to join the fight.

[This article originally appeared at In These Times.]