Shaun Richman

As the spring semester starts up at the City University of New York, union activists continue the painstaking work of preparing for a strike authorization vote. Faculty and staff at CUNY have been working without a contract for over five years. While Governor Cuomo disinvests in the primary college system for working class New Yorkers, management proposes salary increases that amount to decreases after inflation.

The parallels between the struggle to save CUNY and the struggle over the future of Chicago Public Schools are obvious, with one major exception: it is totally illegal for teachers to strike in New York. The last major union to violate the draconian Taylor Law, TWU Local 100, was fined $2.5 million for waging a 60-hour strike that shut down the city’s subway and bus system in 2005. On top of that, the union’s ability to collect dues money was suspended for a year, its president jailed for 10 days and each individual striker was fined two days pay for each one day on strike.

But in an interesting twist, the anti-union Friedrichs v. CTA case currently under consideration by the Supreme Court could actually lay the ground work for making public employee strikes in New York and elsewhere constitutionally protected free speech.

A long history of carving unions out of the 1st Amendment
One could understandably be confused about how a collective protest that involves refusing to work could even be illegal in a country that prides itself on its supposed pursuit of life, liberty and whatnot. How is a strike and picket line not a constitutionally protected exercise of free speech and free assembly? And how is prohibiting workers from striking not a violation of the 13th Amendment’s protection from involuntary servitude?

Early on in our nation’s history, conservative courts treated unions as criminal conspiracies and strikes as interfering with employers’ property and contract rights and with Congress’ responsibility to regulate interstate commerce. Rooted in imported English common law and beginning as early as 1806, these instances of what early unionists derided as “judge-made law,” should be regarded as a betrayal of the American Revolution.

As detailed in William Forbath’s Law and the Shaping of the American Labor Movement, unions’ legislative agenda during the 19th and early 20th century was basically to get the government and courts out of labor disputes. Unions sought to have labor legally defined as “not a commodity” and to restrain judges from issuing injunctions against pickets and boycotts, with mixed results.

By the time the National Labor Relations Act was passed to encourage and regulate collective bargaining, its framers recognized that if they rooted the Act’s authority in the 1st Amendment, it would not be found constitutional by the conservative Supreme Court. And so labor rights in this country are rooted in the Interstate Commerce Clause, which is why they’re so wonky.

Public sector unions, whose ability to function is immediately at stake in the Friedrichs case, are not covered by the federal labor act. Instead, many states passed laws that are modeled on the NLRA. But with a crucial difference: when bosses get to pass laws that apply to their employees (which, if you think about it, is exactly what public sector labor law represents), they’re guaranteed to make it even more unfavorable than private sector rules.

Unsurprisingly, many states make strikes by public sector employees like the CUNY faculty and staff totally illegal, or else severely restrict them. Many states also make many union demands illegal, either by statute or by judicial decisions. The Friedrichs case, by inserting public employees’ 1st Amendment rights into collective bargaining could give unions a very useful tool for reversing many anti-union measures that are on the books.

If collective bargaining becomes political speech…
Public employees have actually enjoyed a degree of free speech protections at work for some time, making them the only workers in America who do. Remember, the 1st Amendment only prevents the government from restricting a citizen’s rights of free speech and assembly. Since public employees work for the government, their employer is constitutionally forbidden from restricting or coercing their political speech.

Historically, this has been limited to actual political speech (supporting a candidate, wearing a political button, speaking in the press and the like). Unions have carefully kept their political funds and activity separate from the agency fees that they collect from the public employees they are required to represent by law. Right-wing efforts to fight the ability of unions to collect dues and fees by arguing that the political activity of public employee unions is compelled political activity have been decisively rejected since 1978.

So, in order to overturn this long-settled precedent the parties behind Friedrichs—egged on by Justice Alito—are lodging a wildly expansive argument that every interaction that a union has with its government employer is inherently political. Bargaining demands, grievances, labor-management committees, job actions: all of it, goes the Friedrichs argument, is political, thereby making the collection of agency fees compelled political speech.

Let’s think about some of the implications of this argument. For starters, the Taylor law that tells CUNY faculty and staff that they will be fined and their leaders imprisoned if they strike seems clearly to be a coercive restriction on their chosen method of political speech. If the Professional Staff Congress is hit with any penalties for either planning or going through with a job action, one hopes they can time their appeals to reach higher level courts after the Friedrichs decision comes down in June.

Across the river in New Jersey, another state with strong unions and shitty labor law, the scope of items that unions are even allowed to raise at the table is restricted by statute and a number of horrible court decisions.

One area of restriction is a strong prohibition on pattern bargaining (i.e. one bargaining unit aligning its demands with another bargaining unit’s settlement). The most farcical example of this is Rutgers University, where management habitually creates new job titles that they argue fall outside the bounds of the existing faculty bargaining unit.

When the union organizes these new groups (adjuncts, post-docs, summer and winter instructors), management threatens legal hellfire and judicial damnation when the union seeks the same rights and benefits for all their members. The union could, however, propose one contract, comprehensive of all of the job titles it represents, in the next round of bargaining and tell the state university to go ahead and take them to court when they stick to their guns.

More galling: teachers unions in NJ are prohibited from even raising demands around class size and staffing levels. I can think of few issues that teachers have more of a burning desire to talk about! But they can’t, at least at the bargaining table.

However, once those bargaining sessions between union reps and their government employers are redefined by the Supreme Court to be political speech, any law restricting what can be said, what items can be raised, seems to be a restriction by the government on those union members’ free speech rights. Perhaps the New Jersey Education Association and American Federation of Teachers New Jersey locals should celebrate their new rights with a coordinated campaign to lower class sizes across the state?

Perhaps most deliciously, the right-wing Friedrichs effort is in direct opposition to Gov. Scott Walker’s offensive agenda in Wisconsin. Walker’s anti-union Act 10 did a lot of nasty things to public employees, some of which will continue to stand. It took away payroll deduction and forced unions to annually recertify as the collective bargaining agents for their members.

But what mostly caused union membership to plummet in the state was that certified unions were prohibited from bargaining over anything of substance; not just raises that exceed inflation, but duties, hours and work schedules and every other everyday issue that workers want to have a voice at work about.

If Justice Alito gets his way, then Scott Walker is suddenly massively violating the free speech rights of Wisconsin public employees. I humbly suggest that every union still certified demand to bargain the day after the decision. They could throw their old contracts on the table and sue every school board and state agency that refuses to discuss those items. I’d also suggest that they begin drawing up some new picket signs.

Labor needs a Plan B
The hubris and general stupidity of Justice Alito—who tried and failed to get this ruling in last year’s Harris v. Quinn—and the vast right-wing conspiracy of union-busters who raced this case through the courts in less than a year perhaps shouldn’t be surprising. They just want to kill the unions, and they’re used to getting their way.

But, in their narrow-minded pursuit of denying unions in the public sector agency fee, they are mindlessly trying to just hand to us free speech rights that conservative jurists and politicians have studiously avoided granting to union efforts for over two centuries.

Unions’ and their allies’ public messaging against the Friedrichs assault has focused on how it is an assassination on the labor movements, a nakedly partisan attempt to weaken a field operation that helps turn out votes against the GOP and how it will deprive many thousands of working people—particularly women and workers of color—from a pathway to a better life. And all of that is true. And unions have put together a very robust defense against Friedrichs, with an impressive array of supporting briefs, that is right on the facts, right on the legal precedents and right on the politics.

But labor also needs more people engaging in a debate about what, in theory, could come the day after an adverse Friedrichs decision. That shouldn’t be limited to toying with the legal implications of the Court’s logic, but also what kind of mobilizations, boycotts and—dare we dream?—strikes could be launched in the days and weeks after.

Outlets like In These Times are great for offering alternative perspectives that contribute to a broadening debate. But I sure as hell hope that the unions that have the most to lose from a “bad” Friedrichs decision, and who have done most of the heavy lifting on winning in court, are also putting together alternative war rooms to figure out Plan B.

The more that we visibly and loudly plan and prepare our response, and calculate the potential upsides of a “bad” decision and maybe (some of us) even get a bit excited about the chaos we can create post-Friedrichs, the more likely that five members of the Court might realize that Alito is pushing for them to make a very big mistake. But if the Supreme Court goes ahead and tears up the current labor law regime in a nakedly partisan act in the middle of a presidential election, then we had better be prepared to create the chaos that the Court is inviting.

[Originally appeared at In These Times.]

On December 14, Chicago Teachers Union Vice President Jesse Sharkey announced the results of the union’s strike authorization vote. For the second time in three years, the union’s membership voted overwhelmingly to strike if necessary. “Our ability to withhold our labor is our power,” declared CTU President Karen Lewis on the eve of voting.

That axiom, that strikes are where unions derive their power, is pretty out of favor these days. A wave of disastrous strikes and lockouts beginning in the Reagan era that helped deunionize much of American industry has left the surviving labor movement skittish about the prospect of full-scale walk-outs. But bright spots like Fight for 15, Bargaining for the Common Good and the Chicago teachers strike have shown that workers can win strikes (if one defines victory as workers walking away from the ordeal feeling more powerful). Labor activists and leaders, particularly as they anticipate a viciously anti-union Supreme Court decision in Friedrichs v. CTA, have to figure out more strategies to revive the strike weapon in our current era.

How strikes became a “bad idea”

Ironically, the seeds of labor’s 1980s defeats were planted during its best seasons for growth in the 1930s. During the wave of sit-down strikes that grew union membership by leaps and bounds, Congress passed the National Labor Relations Act in 1935. The purpose of the act was to establish an orderly process for certifying unions and compelling employers to bargain in good faith with them. The plain language of the law also made it illegal to fire an employee for union activity.

But in two of the early Supreme Court cases that established the constitutionality of this law, the court casually cut into workers’ rights to their jobs.

In a 1939 case called NLRB vs. Fansteel Metallurgical, the court ruled that the NLRB cannot compel the reinstatement of a fired worker who broke the law, even if his illegal activity was part of an otherwise protected union activity like striking. Sit-down strikes, the physical occupation of someone else’s property to prevent their business from operating without you, was simply not going to be a protected activity under this new labor law regime.

In an earlier case, 1938’s NLRB v. Mackay Radio, the Supreme Court stripped workers of their unalloyed right to return to their jobs after a strike. The Court held that not only was an employer allowed to replace striking workers to keep a business going during a strike, but that they could keep the scabs on the job after the strike was over. The strikers would not be fired, per se, as an employer would have to make provision to recall former strikers as vacancies occur.

The McKay germ lay dormant for over 40 years. There were thousands of strikes in the United States all the way through the 1970s. And while plenty of bosses hired plenty of scabs, those scabs were almost always let go after a strike. To take a worker’s job away for standing with her union was viewed as almost un-American.

Or at least it was, until no less of an American than the sitting President, Ronald Regan, fired the striking air traffic controllers in 1981, sending a strong signal to industry: have at it.

McKay was weaponized by the Phelps-Dodge Corporation in 1983. The copper mining company bargained its Steelworkers local to impasse over drastic cuts in pay, benefits and working conditions—essentially daring the union to strike. Exploiting the bad economic times, the company had no problem importing a permanent replacement workforce, for whom even the reduced pay was far better than most jobs available. After 12 very ugly months, the scabs voted to legally decertify the union.

This Phelps-Dodge blueprint is how much of the deunionization of American industry occurred in the Reagan-Bush (and Clinton) era. Unions that survived frequently did so by capitulating to management’s giveback demands.

Tellingly, the AFL-CIO’s 1990s version of labor law reform was not for organizing rights, like card check, but a bill to undo the McKay doctrine and ban the permanent replacement of strikers. In 1994, the year that the Workplace Fairness Act effectively died, there were 14 major strikes involving over 108,000 workers. By 2012, there were only four, and they involved less than 15,000 workers.

And perhaps most telling of all: Unions’ most recent attempt at labor law reform, the Employee Free Choice Act, did not include any provision on strikes. We have abandoned the strike weapon.

Well-planned strikes serve as inspiration

Not every union has abandoned strikes. The last Chicago teacher strike served as the strongest example in years for everyday workers of the power of a well-planned work stoppage.

On paper, it made no sense that a teachers union could wage a successful strike in 2012. Teachers unions had suffered from years of well-funded political attacks that cast them in the media as villains who prioritize “adults’ interests” over “students’.” The city’s power brokers, Mayor Rahm Emanuel in particular, were crying broke and exploiting civil rights rhetoric in their give-back demands. And there were thousands of teachers in charter schools and unemployed and recently retired teachers in the Chicago area who could have been recruited as replacements if they viewed the Chicago Teachers Union as striking against the public interest.

Instead, the Chicago public overwhelmingly viewed the CTU as striking for the common good. Partly, this was thanks to two years of deep and meaningful community organizing and partnerships that the union diligently pursued knowing there would likely be a strike. And partly, this was thanks to the union bargaining for school resources demands that resonated beyond just their membership.

For the last really big strike that got even non-union workers thinking about their power, you have to go all the way back to 1997. The Teamsters—who, like the CTU at the local level, had elected progressive reformers to their national leadership—also spent years preparing for a planned strike against UPS. These sort of well-planned strikes are crucial for getting workers, those in unions and those without, to think about power and the exercise of it.

In his book Only One Thing Can Save Us, labor lawyer Thomas Geoghegan expresses a preference for one-day strikes, which he has seen used effectively by the hotel employees union. In such a strike, a union signals its intent to return to work after 24 hours, allowing strikers to impact the employer’s business but protecting them from permanent replacement.

Joe Burns, also a labor lawyer, has written extensively on labor’s need to bring back the strike weapon. In his Reviving the Strike, he scorns one-day “publicity strikes” as no substitute for “an effective traditional strike,” which he defines as one that aims to halt production.

Burns’ contribution gets us thinking not just about the need to get more strikes going in this country, but to really think through how to define a “successful” strike. But his mantra-like focus on “halting production” is strangely limiting. As a result of union busting and globalization in manufacturing, most of the new organizing and strategic contract campaign action is in healthcare, education and the service industry. A Chicago teacher would likely rankle at the thought of their strike “halting production.” (What, after all, does their employer aim to produce? One hopes it is citizens and scholars, but fears it is docile workers and future prisoners.)

My own union work so far has been in hotels, home healthcare and education. I have worked on only a small number of work stoppages, most of a limited duration. In my experience, employers are working from such an ossified playbook that unions can get a lot of mileage out doing the last thing that the boss and his lawyers expect.

For example, hotel employees can cost the company more money by not striking on the day the company expects, thus costing them the expense of paying and lodging scabs as well as the continued payroll costs of the union members who stayed on the job an extra day.

I don’t prescribe a perfect form of strike. American workers will not learn to strike again from articles like this or books like Burns’ and Geoghegan’s, which are really more for labor nerds and bookish organizers—they will only learn to strike by watching contemporary examples of workers striking. Since it’s hard to raise chickens without eggs, even one-day “publicity strikes” have an educational value.

But many thousands times more working people will be educated by the next Chicago Teachers strike. The teachers will halt production, but, perversely, that will save their employer money. Chicago will continue to collect taxes and be freed of the burden of compensating its teachers for a few weeks. (In fairness, Joe Burns expounds upon this unique aspect of public sector strikes in his follow-up book, Strike Back.)

To be effective, the CTU must take the students and parents who will be disrupted and bring that disruption to the doorsteps of Rahm Emanuel, Illinois Gov. Bruce Rauner and Chicago’s unelected school board. To win for the working class, they must continue to loudly proclaim, as CTU President Karen Lewis did, “Your power is your ability to withhold your labor.”

Possible paths forward

Our challenge is to inspire even non-union workers to think about their power and how to exercise it using the tools we have on hand: a union movement with miniscule density in only a handful of service and public sector industries largely led by staff who have precious little personal experience with leading job actions. We should be clear about how deep this deficit is.

One of the most promising labor projects of the moment is Bargaining for the Common Good. This is an effort by public sector unions in Washington, Oregon, California, Minnesota, Wisconsin, Illinois and Ohio to align their bargaining demands with each other and with community demands around progressive taxation, affordable housing, youth incarceration and government transparency.

These community demands fall well outside a union’s scope of bargaining and are therefore technically illegal. But as long as the unions also have demands that are within their legal scope (not hard to do when employers refuse to pay people what they deserve), then the unions can press the community’s case. This is a brilliant way of getting community to see unions’ fights as their own and of building worker and community power—and the next Chicago teachers strike will likely be the highest profile test of the theory this side of the Mississppi.

What follows could be bigger. A number of public and private sector unions in Minnesota have contract expirations in 2016. Their bargaining demands for the common good are focused not just on their individual employers but also on the largest employers in the state: Target and Wells Fargo. This is the potential for the closest thing we’ve seen in a while to a general strike (something Minnesota has a history of doing).

Another promising project is the Fight for 15. Some have dismissed the series of rolling one-day strikes for increases in the minimum wage and organizing rights as mere P.R. stunts. But there is something deeply radical and significant at play here. Workers who don’t even technically have a union are proving their value—and their power—to their bosses by withholding their labor. And the response from the general public is, at worst, a sort of patronizing “Well, good for them” but more often something a bit closer to “Go get ‘em!”

Just two short years ago, it would have been inconceivable to most union strategists that the lowest paid and most vulnerable workers would be willing to risk it all as these fast food workers have done. But, then, one is reminded of the old Dylan lyric: “When you got nothing, you got nothing to lose.”

The great potential of Fight for 15 is that unorganized workers see reflections of themselves in the strikers and begin to fantasize about what a job action could look like at their workplace. This is the perfect complement to well-planned and executed strikes by established labor unions.

The labor wars of the 1980s and 1990s were won by bosses who caught their unions by surprise. The unions that are still here are survivors who have an obligation, both to their continued survival and to the hope of inspiring a greater wave of organizing, to meaningfully plan for job actions that can win in every round of bargaining.

Those who toil in alternative forms of worker representation—the workers centers, advocacy groups and non-majority unions—should strategize and experiment in job actions that help their members and anyone watching and drawing inspiration feel a sense of their own power and agency.

And the rest of labor, starting with the AFL-CIO, should send a strong signal that strike plans are back by incorporating a ban on permanent replacements in the successor to the Employee Free Choice Act and as part of a broader “right to your job” movement. For those public sector unions who are most threatened by the pending Friedrichs decision, a wave of “free speech” strikes to both celebrate and protest the dubious new rights that the Supreme Court threatens to give them.

[Originally appeared at In These Times.]

As unions file their legal briefs in the epic Friedrichs vs. CTA anti-union Supreme Court case, one clever legal scholar argues that Friedrichs is “an unexpected tool for labor.”

University of Chicago Teaching Fellow Heather Whitney’s forthcoming paper in the NYU Journal of Law and Liberty makes a compelling case that an adverse decision in Friedrichs would hand unions a first amendment argument to refuse to represent non-members. And, as I have argued, that is a roadmap to union competition at workplaces, competing demands on individual employers and the end of contractual no-strike agreements.

Chaos, in other words—and just the sort of chaos that this attack on unions deserves in response.

Friedrichs and labor’s response

The First Amendment is at the heart of the Friedrichs case. It is a right-wing argument that public sector employers (in other words, the government) violate individuals’ First amendment rights by compelling employees, through contracts negotiated with unions, to pay a fee to a union. Currently, unions that are certified to represent a group of employees in a bargaining unit are legally compelled to represent all of the employees in that unit. That means not just bargaining on their behalf, but expending significant resources on grievances, meetings, communications and everything else that goes into running a union.

But union membership, including the payment of dues, is completely voluntary. That’s why unions negotiate agency fees into contracts. These fees are calculated through complicated formulas to only represent the true cost of bargaining representation. Agency fees do not pay for things like political activity (unions usually have separate voluntary political funds).

But the Friedrichs case argues that any interaction that a union has with the government, including bargaining, is inherently political. Agency fees, therefore, are compelled political activity.

This ridiculous argument is only before the Supreme Court now because Justice Samuel Alito inserted the issue into last year’s otherwise unrelated Harris Vs. Quinn case. That case was only a partial defeat for unions, as Alito lacked the fifth vote to totally do away with agency fee in the public sector. In his written decision, Alito basically solicited for someone to bring a case with exactly Friedrichs’ set of facts, and it has raced up to the Supreme Court. This is the stuff of a vast right-wing conspiracy.

Unions have mounted an excellent legal case, backed up by a broad array of supporting briefs. A ruling against the unions would reverse a 37-year-old precedent. The Supreme Court is supposed to be guided by the principal of stare decisis, which is essentially to let long-settled precedent stand. And finally, the case will be decided in the middle of a presidential election that is already turning on questions of inequality and workers rights. In his handling of the Obamacare and gay marriage cases, Chief Justice Roberts has shown that he does seem to care about his legacy. Would he support such a nakedly partisan political move by his Court in this election cycle?

So, on the facts, on the law and on the politics, unions really ought to win this case. And, to be clear, agency fee and exclusive representation are worth defending. They create the conditions for tremendous worker power at workplaces that have both.

But if unions lose agency fee, then exclusive representation no longer makes sense. This is not simply because of the free-rider problem that will drain union resources. It is because exclusive representation is essential to labor peace, and a Friedrichs ruling that guts union rights is the clearest signal that the billionaire class does not want—nor does it deserve—any kind of peace.

Labor’s First Amendment rights

If the Supreme Court rules that every interaction that a union has with its government employer is inherently political, Heather Whitney argues in her article, then that would open the door to unions claiming their own First Amendment right—to choose who they represent. In other words, if agency fee is compelled speech, then the duty of exclusive representation imposed on unions is also compelled speech.

Imagine a group of registered nurses at a public hospital who want to bargain for much larger raises than the rest of the members of the bargaining unit. Or imagine a group of young workers who want to bargain away pensions in exchange for larger salaries in the here and now. (Forget for the moment that both scenarios are just bad unionism.) Once these contract demands are considered by the Court to be political speech, then the fact that these workers are compelled by the government to represent workers who disagree with them, and who could outvote them, is a violation of their First Amendment rights!

I’ll also point out that unions’ rights to freely engage in actual political speech is already impeded by the duties of exclusive representation. Unions are politically cautious and loathe to wade into non-economic controversies for fear of alienating a segment of their bargaining unit. For instance, most unions were slow to oppose the wars in Afghanistan and Iraq for fear of alienating bargaining unit members who were veterans or who had children in the military. Even in a so-called “Right to Work” state, those people may not be members but they could still express their displeasure by voting to decertify the union. Does that not coerce unions into more limited political activity?

This is not an abstraction. The day after the Friedrichs decision, if the Court kills agency fee by making all public sector union work “political,” does anybody doubt that the first time a non-member walks into a union office with a grievance that she will be told, “Join the union or get the hell out of our office?” And then we’ll be off to the races with a case that will go to the Supreme Court to revisit exclusive representation in the public sector without agency fee.

Then, the only question would be whether the government has a “compelling interest in requiring unions to negotiate and grieve their nonmembers’ complaints without receiving just compensation.” And here scholarship would demonstrate that it has been the employers’ preference to deal with one exclusive representative because it is easier for them, and, as Whitney writes, “convenience is no response to whether exclusive representation is properly tailored to the government’s legitimate interest.”

Breaking the peace

So far, we’re just talking about public sector unions because having the government as employer, Alito’s right-wing conspirators argue, converts all of the activities of those unions into inherently political acts. But if this Friedrichs logic takes hold, then arguably having the government—in the form of the National Labor Relations Board—compel unions to represent workers they would choose not to (and perhaps vice versa) might become unconstitutional as well.

Currently, the NLRB will only certify unions as exclusive representatives of all of the workers in a bargaining unit, and only if the union can win a majority vote. This is often an insurmountable threshold for unions to reach in the face of intense employer opposition. In his 2005 book The Blue Eagle at Work, law professor and labor law expert Charles J. Morris documented that in its early history the NLRB used to certify minority unions as the bargaining agent for their members only. Morris argued that this pathway was still technically open to unions to gain a foothold at a workplace and legally compel an employer to recognize a non-majority union.

The modern NLRB has dodged efforts by unions to get an advisory ruling on Morris’ theory. But if the Friedrichs logic holds, private sector unions may have a First Amendment challenge to the NLRB’s continued refusal to grant certifications for just the members they choose to represent.

And that, if you’ll follow me down this rabbit hole, could spell the end of contractual no-strike clauses. They would simply be unenforceable in an environment of competing, non-exclusive, members-only unions. Workers would simply drop their union memberships to participate in wildcat job actions. Or else join new workplace organizations that have not signed agreements committing to labor peace.

Don’t get me wrong. I don’t have any fantasy of some huge wave of potential strike actions that would occur tomorrow if only the enraged working class would stop being “repressed” by current union leadership and our current collective bargaining agreements. But these no-strike clauses go well beyond total shutdowns of production to include all manner or slow-downs, work-to-rule and refusal to carry out selective duties.

Any experienced union rep reading this can recall at least one incident of having to talk his members off a ledge—out of refusing a new duty or clocking out for lunch at the same time. These actions would be concerted protected activity in a non-union workplace, but under a “no-strike” contract could result in all participants legally getting fired. How the hell are we supposed to get workers who don’t enjoy union protection fired up about taking action against their bosses, when their unionized peers can’t set any kind of example in terms of actually enjoying their supposed protections?

It’s funny that the First Amendment could make this possible. Union rights in this country are not constitutionally rooted in the First Amendment, but in Congress’ power to regulate interstate commerce—which is one of the reasons that our labor laws make no damn sense. So, yes, Friedrichs could be a useful tool for labor by finally connecting our work to our rights of free speech and free assembly.

But if you’ve followed me down this rabbit hole and are starting to get a little excited about a possible post-Friedrichs world, let me give you an “on the other hand.” Heather Whitney’s First Amendment argument for ending the duty of exclusive representation would come before a Court that would not be weighing it against a long-established precedent as Roberts’ Court is considering Freidrichs. It will be weighing the argument against a very recent Court decision.

If labor successfully causes enough chaos of the nature I’m driving at—or even poses a credible threat to do so—don’t be surprised if the Supremes try to put the lid back on Alito’s can of worms.

[Originally appeared at at “In These Times.”]

The Employee Free Choice Act (EFCA) was a bad bill, and it is deader than dead. It is time for labor to propose a comprehensive set of amendments to the nation’s primary collective bargaining law, the National Labor Relations Act.

EFCA would have guaranteed a union’s right to a first contract, imposed punitive fines on employers that break the law and certified new union bargaining units by card check. EFCA was labor’s stalking horse for years before it effectively died when the Tea Party congress took office in 2011. It was our primary way of articulating to allies and legislators how the law stacks the deck in favor of the boss. It was our main vision for reform, membership growth and power.

Our allies look to the unions for our plan to restore workers rights in this country. If we don’t propose a new workers law, they will continue to flog the dead horse of EFCA.

The problem with EFCA was that it was too narrowly conceived and the card check proposal was a blunder. Industry pounced on it, waging a high-priced media campaign decrying how un-American it was that unions wanted to do away with the supposed sanctity of the secret ballot in certification elections. Nevermind the fact that such elections are a farce that would make Vladimir Putin blush; that the boss gets to draw up the voter list and watches every employee walk into the voting booth after having spent months threatening their jobs if they vote against his wishes and just generally scaring the shit out of people. (Although, having written that, it occurs to me that I’ve described a very American way of conducting an election. But I digress.)

The media onslaught had the effect of temporarily degrading public opinion of unions, and Obama did not prioritize the bill during the two years when his party controlled Congress. But Obama’s indifference did labor the favor of sparing us the humiliation of not gaining significantly more new members had EFCA passed.

I’ve organized under public sector card check systems, as well as under private card check agreements. It’s nice. It’s also more democratic. But, at best, card check helps workers who already want a union and who are already working with a union’s organizing department to possibly side step some of the worst parts of a boss fight. Creating the conditions for the great upsurge in union membership that this country badly needs will require more than a narrow tweak of the law.

But narrow tweaks are all that labor seems to put forward. In the Clinton years, unions merely sought a ban on the permanent replacement of strikers. Like Obama, Clinton failed to prioritize labor law while he had a congress he could work with. Today, the closest thing that unions have to a proposal for labor law reform is actually an amendment to federal civil rights statute. Richard Kahlenberg and Moishe Marvit’s proposal to make union organizing a civil right is a tacit admission that the labor act is just too difficult to amend. It is.

For 30 years after the passage of the 1947 anti-union amendments to the labor act, full repeal of Taft-Hartley was labor’s main legislative goal. George Meany’s AFL-CIO campaigned—unsuccessfully—for repeal like a special interest. There was little recognition from the broader progressive movement that Taft-Hartley—which carved workers out of coverage, restricted unions’ ability to engage in solidarity job actions and legalized “right to work”—was designed to kill the labor movement and had, in fact, kicked off the long, slow decline that are we still experiencing.

Our new reform proposal should aim to undo the worst of Taft-Hartley.

There will be no significant labor law reform for many years. Washington will remain gridlocked, and even if the Democrats did control all branches of government, they won’t move on our bill without a huge amount of pressure. This sad political fact should liberate us to propose a sweeping bill that gets at the heart of what constitutes economic power and civil rights. We should emphasize reform proposals that demonstrate how corporations want one set of rules for working people and another one for themselves. Here are some ideas for how to do just that.

Equal time. Why do bosses get to force employees to sit through mandatory anti-union presentations where lies by omission and outright lies are presented with no debate or challenge? The original Labor Relations Act declared it the policy of the United States to encourage collective bargaining, and to restrain employer interference with workers’ organizing rights. The concept of neutrality was inherent in the law. Employers successfully argued that it was unconstitutional for the government to prevent them from saying anything at all about their opinions on unionization. Employers now use their constitutionally protected dog-whistle speech to terrorize employees out of wanting a union. (Riddle: When is a threat that you will lose your job if you vote for a union not a threat? When it is phrased as a prediction of what might happen if a union forms and the company becomes “uncompetitive!”)

Fine, you have a right to free speech. But what right do you have to make your employees attend a “debate” where only the representatives of the “no” option can speak? An equal time provision for mandatory discussions of unionization, that made the non-invitation or non-attendance of a “yes” representative an unfair labor practice could serve to end the practice of captive audience meetings altogether. Regardless, think of the fun of making Rick Berman or the Chamber of Commerce defend the propriety of a restricted, one-sided “debate.”

Financial penalties. Don’t do the crime if you can’t pay the fine. Seems perfectly reasonable, right? Unfortunately, the NLRB is limited to remedies that “make whole” an employee who is fired for union activity. Worse than that, technically the Board is supposed to subtract any unemployment insurance or other wages made in the interim from a back pay award. So, if an employer fires a union leader on the eve of a union election, his only punishment is to pay what he would have paid anyway minus whatever the employee was able to scrape together while waiting to get her job back.

Obviously, this incentivizes employee terminations during an organizing campaign, as the fine is far cheaper than bargaining wages and benefits increases for all the workers. EFCA contained a provision for real fines against employers who fire union activists, but that didn’t get enough attention over all the noise about card check. This provision should be a focus of future legislative efforts. There is no shortage of workers who can testify about how horribly they were treated by union-busting employers, and these stories must be told.

But why limit fines to cases of termination? Any violation of the act, particularly egregious on-going violations, should face a potential remedy of fines. The NLRB would be entirely self-funded if it could impose fines for the rampant violations of the act that employers commit. Hell, it could be an income generator for the entire federal government. And what would employers’ argument against financial penalties for breaking the law be? It couldn’t be anything more sophisticated than “we just think we shouldn’t have to take this law seriously.”

Organizing rights for supervisors. The idea that supervisors are not workers and don’t belong in a union is an ideology that was foisted upon us by Taft-Hartley. The prohibition on organizing rights for supervisors was inserted into the law at the request of the auto manufacturers who were deeply disturbed that their foremen had begun to form unions of their own after WWII. First-line supervisors are rarely given enough decision-making authority to be an actual boss and, prior to 1947, unions counted them as members (still do in some public sector units, and contracts where the boss agrees to look the other way).

These days, the questionable “supervisory status” of certain workers is used to force hearings that delay union elections and tie unions up in knots over concerns that “supervisory taint” of union activists ruled out of the unit could cause a successful union election to be over-turned. The bloat of middle management is one of the major inefficiencies in the U.S. economy – and union avoidance is a primary culprit. Give supervisors organizing rights. Give the workers that they nominally supervise a vote on whether they would be in the same bargaining unit or not.

Restore solidarity rights. Taft-Hartley placed severe limits on unions’ ability to engage in what, in mid-century shoptalk, is referred to as “secondary boycotts” or “hot cargo agreements,” but which the layman might simply understand as solidarity activism. Imagine a world where Yuengling busted their union (you live in that world; the year was 2007). Shouldn’t members of the UFCW have the freedom to refuse to touch that scabby piss-water and keep it off the shelves of your local grocery store? Now, imagine that workers at a Chinese sneaker factory go on strike. Shouldn’t members of the ILWU be free to refuse to help unload those dirty goods from the shipping containers, and Teamsters free to refuse to put them on their trailers? Before 1947: sure. Now: totally illegal.

Imagine the power we would have if workers could actually support each other’s organizing efforts across industries, and if companies who profit from the exploitation of “secondary” employers were brought to account for their complicity. Here’s the kicker: American consumers are subjected to secondary boycotts all the time! Usually it’s in the form of a cable company cutting off its subscribers’ access to a cable sports channel in a pay dispute. If the American people can understand and tolerate the one kind of “secondary” boycott, then they surely could tolerate the kind that’s actually in their economic interest. Alternatively, it should all be made illegal, and all cable companies should be compelled to carry every conceivable cable channel on their network for all consumers at all times.

Ban “right to work.” The Taft-Hartley amendment allowed states to pass so-called “right to work” laws that prohibit unions from negotiating an agency fee in shops where they are compelled to represent everyone. Initially, only the former slave states passed such laws. The Republican governors in states like Wisconsin and Michigan who have recently rushed these attacks on unions through their Republican legislatures have revealed the RTW agenda to be a nakedly partisan act. They’ve done us the favor of creating an opening for a serious proposal that union rights should be the law of the land and not the plaything of ALEC. It is time to ban “tight to work.”

The AFL-CIO should initiate a broad debate on what the “workers’ law” of the 21st century should look like, and all involved in the endeavor should shun cute or simple solutions. We’re gonna be out in the wilderness, politically speaking, for a while. Let’s not domesticate our demands for restored rights and powers too easily.

[Originally appeared at In These Times.]